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EN BANC [G.R. No. L-63915. December 29, 1986.] LORENZO M. TAADA, ABRAHAM F.

SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. HON. JUAN C. TUVERA. in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents. SYLLABUS FERNAN, J., concurring: 1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS MADE TO ENSURE CONSTITUTIONAL RIGHT TO DUE PROCESS AND TO INFORMATION. The categorical statement by this Court on the need for publication before any law be made effective seeks to prevent abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to due process and to information on matter of public concern. RESOLUTION CRUZ, J p: Due process was invoked by the petitioners in demanding the disclosure or a number of presidential decrees which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows: "WHEREFORE, the Court hereby orders respondents to publish to the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect." The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. Specifically, they ask the following questions: 1. 2. 3. 4. 5. What is meant by "law of public nature" or "general applicability"? Must a distinction be made between laws of general applicability and laws which are not? What is meant by "publication"? Where is the publication to be made? When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general applicability and those which are not; that publication means complete publication; and that the publication must be made forthwith in the Official Gazette. In the Comment required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject decision was concurred in only by three justices and consequently not binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the interval administration of a government agency or for particular persons did not have to be published; that publication when necessary must be in full and in the Official Gazette;

and that, however, the decision under reconsideration was not binding because it was not supported by eight members of this Court. 5 The subject of contention is Article 2 of the Civil Code providing as follows: "ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication." After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion, and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided." It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate. LexLib We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government. The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people only, and not to the public as a whole. We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. LibLex Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. cdasia

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce. However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code. We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration. 7 The evident purpose was to withhold rather than disclose information on this vital law. Coming now to the original decision, it is true that only four justices were categorically for publication in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the need for due publication without indicating where it should be made, 11 It is therefore necessary for the present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote. There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published. At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and approved by the political departments of the government in accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazette, and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature. LLphil We also hold that the publication must be made forthwith, or at least as soon as possible, to give effect to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need to examine at this time. Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say the least, and deserves no further comment. The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them. Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn. WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code. dctai SO ORDERED.

[G.R. No. 178902. April 21, 2010.] MANUEL O. FUENTES and LETICIA L. FUENTES, petitioners, vs. CONRADO G. ROCA, ANNABELLE R. JOSON, ROSE MARIE R. CRISTOBAL and PILAR MALCAMPO, respondents. DECISION ABAD, J p: This case is about a husband's sale of conjugal real property, employing a challenged affidavit of consent from an estranged wife. The buyers claim valid consent, loss of right to declare nullity of sale, and prescription. IHCDAS The Facts and the Case Sabina Tarroza owned a titled 358-square meter lot in Canelar, Zamboanga City. On October 11, 1982 she sold it to her son, Tarciano T. Roca (Tarciano) under a deed of absolute sale. 1 But Tarciano did not for the meantime have the registered title transferred to his name. Six years later in 1988, Tarciano offered to sell the lot to petitioners Manuel and Leticia Fuentes (the Fuentes spouses). They arranged to meet at the office of Atty. Romulo D. Plagata whom they asked to prepare the documents of sale. They later signed an agreement to sell that Atty. Plagata prepared 2 dated April 29, 1988, which agreement expressly stated that it was to take effect in six months. The agreement required the Fuentes spouses to pay Tarciano a down payment of P60,000.00 for the transfer of the lot's title to him. And, within six months, Tarciano was to clear the lot of structures and occupants and secure the consent of his estranged wife, Rosario Gabriel Roca (Rosario), to the sale. Upon Tarciano's compliance with these conditions, the Fuentes spouses were to take possession of the lot and pay him an additional P140,000.00 or P160,000.00, depending on whether or not he succeeded in demolishing the house standing on it. If Tarciano was unable to comply with these conditions, the Fuentes spouses would become owners of the lot without any further formality and payment. The parties left their signed agreement with Atty. Plagata who then worked on the other requirements of the sale. According to the lawyer, he went to see Rosario in one of his trips to Manila and had her sign an affidavit of consent. 3 As soon as Tarciano met the other conditions, Atty. Plagata notarized Rosario's affidavit in Zamboanga City. On January 11, 1989 Tarciano executed a deed of absolute sale 4 in favor of the Fuentes spouses. They then paid him the additional P140,000.00 mentioned in their agreement. A new title was issued in the name of the spouses 5 who immediately constructed a building on the lot. On January 28, 1990 Tarciano passed away, followed by his wife Rosario who died nine months afterwards. SacTCA Eight years later in 1997, the children of Tarciano and Rosario, namely, respondents Conrado G. Roca, Annabelle R. Joson, and Rose Marie R. Cristobal, together with Tarciano's sister, Pilar R. Malcampo, represented by her son, John Paul M. Trinidad (collectively, the Rocas), filed an action for annulment of sale and reconveyance of the land against the Fuentes spouses before the Regional Trial Court (RTC) of Zamboanga City in Civil Case 4707. The Rocas claimed that the sale to the spouses was void since Tarciano's wife, Rosario, did not give her consent to it. Her signature on the affidavit of consent had been forged. They thus prayed that the property be reconveyed to them upon reimbursement of the price that the Fuentes spouses paid Tarciano. 6 The spouses denied the Rocas' allegations. They presented Atty. Plagata who testified that he personally saw Rosario sign the affidavit at her residence in Paco, Manila, on September 15, 1988. He admitted, however, that he notarized the document in Zamboanga City four months later on January 11, 1989. 7 All the same, the Fuentes spouses pointed out that the claim of forgery was personal to Rosario and she alone could invoke it. Besides, the four-year prescriptive period for nullifying the sale on ground of fraud had already lapsed. Both the Rocas and the Fuentes spouses presented handwriting experts at the trial. Comparing Rosario's standard signature on the affidavit with those on various documents she signed, the Rocas' expert testified that the signatures were not written by the same person. Making the same comparison, the spouses' expert concluded that they were. 8

On February 1, 2005 the RTC rendered judgment, dismissing the case. It ruled that the action had already prescribed since the ground cited by the Rocas for annulling the sale, forgery or fraud, already prescribed under Article 1391 of the Civil Code four years after its discovery. In this case, the Rocas may be deemed to have notice of the fraud from the date the deed of sale was registered with the Registry of Deeds and the new title was issued. Here, the Rocas filed their action in 1997, almost nine years after the title was issued to the Fuentes spouses on January 18, 1989. 9 Moreover, the Rocas failed to present clear and convincing evidence of the fraud. Mere variance in the signatures of Rosario was not conclusive proof of forgery. 10 The RTC ruled that, although the Rocas presented a handwriting expert, the trial court could not be bound by his opinion since the opposing expert witness contradicted the same. Atty. Plagata's testimony remained technically unrebutted. 11 HSATIC Finally, the RTC noted that Atty. Plagata's defective notarization of the affidavit of consent did not invalidate the sale. The law does not require spousal consent to be on the deed of sale to be valid. Neither does the irregularity vitiate Rosario's consent. She personally signed the affidavit in the presence of Atty. Plagata. 12 On appeal, the Court of Appeals (CA) reversed the RTC decision. The CA found sufficient evidence of forgery and did not give credence to Atty. Plagata's testimony that he saw Rosario sign the document in Quezon City. Its jurat said differently. Also, upon comparing the questioned signature with the specimen signatures, the CA noted significant variance between them. That Tarciano and Rosario had been living separately for 30 years since 1958 also reinforced the conclusion that her signature had been forged. Since Tarciano and Rosario were married in 1950, the CA concluded that their property relations were governed by the Civil Code under which an action for annulment of sale on the ground of lack of spousal consent may be brought by the wife during the marriage within 10 years from the transaction. Consequently, the action that the Rocas, her heirs, brought in 1997 fell within 10 years of the January 11, 1989 sale. Considering, however, that the sale between the Fuentes spouses and Tarciano was merely voidable, the CA held that its annulment entitled the spouses to reimbursement of what they paid him plus legal interest computed from the filing of the complaint until actual payment. Since the Fuentes spouses were also builders in good faith, they were entitled under Article 448 of the Civil Code to payment of the value of the improvements they introduced on the lot. The CA did not award damages in favor of the Rocas and deleted the award of attorney's fees to the Fuentes spouses. 13 Unsatisfied with the CA decision, the Fuentes spouses came to this court by petition for review. 14 The Issues Presented The case presents the following issues: 1. Whether or not Rosario's signature on the document of consent to her husband Tarciano's sale of their conjugal land to the Fuentes spouses was forged; 2. 3. Whether or not the Rocas' action for the declaration of nullity of that sale to the spouses already prescribed; and Whether or not only Rosario, the wife whose consent was not had, could bring the action to annul that sale. HCTAEc

The Court's Rulings First. The key issue in this case is whether or not Rosario's signature on the document of consent had been forged. For, if the signature were genuine, the fact that she gave her consent to her husband's sale of the conjugal land would render the other issues merely academic. The CA found that Rosario's signature had been forged. The CA observed a marked difference between her signature on the affidavit of consent 15 and her specimen signatures. 16 The CA gave no weight to Atty. Plagata's testimony that he saw Rosario sign the document in Manila on September 15, 1988 since this clashed with his declaration in the jurat that Rosario signed the affidavit in Zamboanga City on January 11, 1989.

The Court agrees with the CA's observation that Rosario's signature strokes on the affidavit appears heavy, deliberate, and forced. Her specimen signatures, on the other hand, are consistently of a lighter stroke and more fluid. The way the letters "R" and "s" were written is also remarkably different. The variance is obvious even to the untrained eye. Significantly, Rosario's specimen signatures were made at about the time that she signed the supposed affidavit of consent. They were, therefore, reliable standards for comparison. The Fuentes spouses presented no evidence that Rosario suffered from any illness or disease that accounted for the variance in her signature when she signed the affidavit of consent. Notably, Rosario had been living separately from Tarciano for 30 years since 1958. And she resided so far away in Manila. It would have been quite tempting for Tarciano to just forge her signature and avoid the risk that she would not give her consent to the sale or demand a stiff price for it. What is more, Atty. Plagata admittedly falsified the jurat of the affidavit of consent. That jurat declared that Rosario swore to the document and signed it in Zamboanga City on January 11, 1989 when, as Atty. Plagata testified, she supposedly signed it about four months earlier at her residence in Paco, Manila on September 15, 1988. While a defective notarization will merely strip the document of its public character and reduce it to a private instrument, that falsified jurat, taken together with the marks of forgery in the signature, dooms such document as proof of Rosario's consent to the sale of the land. That the Fuentes spouses honestly relied on the notarized affidavit as proof of Rosario's consent does not matter. The sale is still void without an authentic consent. Second. Contrary to the ruling of the Court of Appeals, the law that applies to this case is the Family Code, not the Civil Code. Although Tarciano and Rosario got married in 1950, Tarciano sold the conjugal property to the Fuentes spouses on January 11, 1989, a few months after the Family Code took effect on August 3, 1988. TIDaCE When Tarciano married Rosario, the Civil Code put in place the system of conjugal partnership of gains on their property relations. While its Article 165 made Tarciano the sole administrator of the conjugal partnership, Article 166 17 prohibited him from selling commonly owned real property without his wife's consent. Still, if he sold the same without his wife's consent, the sale is not void but merely voidable. Article 173 gave Rosario the right to have the sale annulled during the marriage within ten years from the date of the sale. Failing in that, she or her heirs may demand, after dissolution of the marriage, only the value of the property that Tarciano fraudulently sold. Thus: Art. 173. The wife may, during the marriage, and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband. But, as already stated, the Family Code took effect on August 3, 1988. Its Chapter 4 on Conjugal Partnership of Gains expressly superseded Title VI, Book I of the Civil Code on Property Relations Between Husband and Wife. 18 Further, the Family Code provisions were also made to apply to already existing conjugal partnerships without prejudice to vested rights. 19 Thus: Art. 105. . . . The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) Consequently, when Tarciano sold the conjugal lot to the Fuentes spouses on January 11, 1989, the law that governed the disposal of that lot was already the Family Code. In contrast to Article 173 of the Civil Code, Article 124 of the Family Code does not provide a period within which the wife who gave no consent may assail her husband's sale of the real property. It simply provides that without the other spouse's written consent or a court order allowing the sale, the same would be void. Article 124 thus provides: Art. 124. . . . In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. . . .

Under the provisions of the Civil Code governing contracts, a void or inexistent contract has no force and effect from the very beginning. And this rule applies to contracts that are declared void by positive provision of law, 20 as in the case of a sale of conjugal property without the other spouse's written consent. A void contract is equivalent to nothing and is absolutely wanting in civil effects. It cannot be validated either by ratification or prescription. 21 But, although a void contract has no legal effects even if no action is taken to set it aside, when any of its terms have been performed, an action to declare its inexistence is necessary to allow restitution of what has been given under it. 22 This action, according to Article 1410 of the Civil Code does not prescribe. Thus: Art. 1410. The action or defense for the declaration of the inexistence of a contract does not prescribe. HTCESI

Here, the Rocas filed an action against the Fuentes spouses in 1997 for annulment of sale and reconveyance of the real property that Tarciano sold without their mother's (his wife's) written consent. The passage of time did not erode the right to bring such an action. Besides, even assuming that it is the Civil Code that applies to the transaction as the CA held, Article 173 provides that the wife may bring an action for annulment of sale on the ground of lack of spousal consent during the marriage within 10 years from the transaction. Consequently, the action that the Rocas, her heirs, brought in 1997 fell within 10 years of the January 11, 1989 sale. It did not yet prescribe. The Fuentes spouses of course argue that the RTC nullified the sale to them based on fraud and that, therefore, the applicable prescriptive period should be that which applies to fraudulent transactions, namely, four years from its discovery. Since notice of the sale may be deemed given to the Rocas when it was registered with the Registry of Deeds in 1989, their right of action already prescribed in 1993. But, if there had been a victim of fraud in this case, it would be the Fuentes spouses in that they appeared to have agreed to buy the property upon an honest belief that Rosario's written consent to the sale was genuine. They had four years then from the time they learned that her signature had been forged within which to file an action to annul the sale and get back their money plus damages. They never exercised the right. If, on the other hand, Rosario had agreed to sign the document of consent upon a false representation that the property would go to their children, not to strangers, and it turned out that this was not the case, then she would have four years from the time she discovered the fraud within which to file an action to declare the sale void. But that is not the case here. Rosario was not a victim of fraud or misrepresentation. Her consent was simply not obtained at all. She lost nothing since the sale without her written consent was void. Ultimately, the Rocas ground for annulment is not forgery but the lack of written consent of their mother to the sale. The forgery is merely evidence of lack of consent. Third. The Fuentes spouses point out that it was to Rosario, whose consent was not obtained, that the law gave the right to bring an action to declare void her husband's sale of conjugal land. But here, Rosario died in 1990, the year after the sale. Does this mean that the right to have the sale declared void is forever lost? The answer is no. As stated above, that sale was void from the beginning. Consequently, the land remained the property of Tarciano and Rosario despite that sale. When the two died, they passed on the ownership of the property to their heirs, namely, the Rocas. 23 As lawful owners, the Rocas had the right, under Article 429 of the Civil Code, to exclude any person from its enjoyment and disposal. In fairness to the Fuentes spouses, however, they should be entitled, among other things, to recover from Tarciano's heirs, the Rocas, the P200,000.00 that they paid him, with legal interest until fully paid, chargeable against his estate. Further, the Fuentes spouses appear to have acted in good faith in entering the land and building improvements on it. Atty. Plagata, whom the parties mutually entrusted with closing and documenting the transaction, represented that he got Rosario's signature on the affidavit of consent. The Fuentes spouses had no reason to believe that the lawyer had violated his commission and his oath. They had no way of knowing that Rosario did not come to Zamboanga to give her consent. There is no evidence that they had a premonition that the requirement of consent presented some difficulty. Indeed, they willingly made a 30 percent down payment on the selling price months earlier on the assurance that it was forthcoming. DHAcET

Further, the notarized document appears to have comforted the Fuentes spouses that everything was already in order when Tarciano executed a deed of absolute sale in their favor on January 11, 1989. In fact, they paid the balance due him. And, acting on the documents submitted to it, the Register of Deeds of Zamboanga City issued a new title in the names of the Fuentes spouses. It was only after all these had passed that the spouses entered the property and built on it. He is deemed a possessor in good faith, said Article 526 of the Civil Code, who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. As possessor in good faith, the Fuentes spouses were under no obligation to pay for their stay on the property prior to its legal interruption by a final judgment against them. 24 What is more, they are entitled under Article 448 to indemnity for the improvements they introduced into the property with a right of retention until the reimbursement is made. Thus: Art. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. (361a) The Rocas shall of course have the option, pursuant to Article 546 of the Civil Code, 25 of indemnifying the Fuentes spouses for the costs of the improvements or paying the increase in value which the property may have acquired by reason of such improvements. WHEREFORE, the Court DENIES the petition and AFFIRMS WITH MODIFICATION the decision of the Court of Appeals in CAG.R. CV 00531 dated February 27, 2007 as follows: 1. The deed of sale dated January 11, 1989 that Tarciano T. Roca executed in favor of Manuel O. Fuentes, married to Leticia L. Fuentes, as well as the Transfer Certificate of Title T-90,981 that the Register of Deeds of Zamboanga City issued in the names of the latter spouses pursuant to that deed of sale are DECLARED void; 2. The Register of Deeds of Zamboanga City is DIRECTED to reinstate Transfer Certificate of Title 3533 in the name of Tarciano T. Roca, married to Rosario Gabriel; 3. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R. Cristobal, and Pilar Malcampo are ORDERED to pay petitioner spouses Manuel and Leticia Fuentes the P200,000.00 that the latter paid Tarciano T. Roca, with legal interest from January 11, 1989 until fully paid, chargeable against his estate; 4. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R. Cristobal, and Pilar Malcampo are further ORDERED, at their option, to indemnify petitioner spouses Manuel and Leticia Fuentes with their expenses for introducing useful improvements on the subject land or pay the increase in value which it may have acquired by reason of those improvements, with the spouses entitled to the right of retention of the land until the indemnity is made; and DEIHSa 5. The RTC of Zamboanga City from which this case originated is DIRECTED to receive evidence and determine the amount of indemnity to which petitioner spouses Manuel and Leticia Fuentes are entitled. SO ORDERED.

[G.R. No. 179579. February 1, 2012.] COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF SUBIC, petitioners, vs. HYPERMIX FEEDS CORPORATION, respondent. DECISION SERENO, J p: Before us is a Petition for Review under Rule 45, 1 assailing the Decision 2 and the Resolution 3 of the Court of Appeals (CA), which nullified the Customs Memorandum Order (CMO) No. 27-2003 4 on the tariff classification of wheat issued by petitioner Commissioner of Customs. The antecedent facts are as follows: On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the Memorandum, for tariff purposes, wheat was classified according to the following: (1) importer or consignee; (2) country of origin; and (3) port of discharge. 5 The regulation provided an exclusive list of corporations, ports of discharge, commodity descriptions and countries of origin. Depending on these factors, wheat would be classified either as food grade or feed grade. The corresponding tariff for food grade wheat was 3%, for feed grade, 7%. CMO 27-2003 further provided for the proper procedure for protest or Valuation and Classification Review Committee (VCRC) cases. Under this procedure, the release of the articles that were the subject of protest required the importer to post a cash bond to cover the tariff differential. 6 A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a Petition for Declaratory Relief 7 with the Regional Trial Court (RTC) of Las Pias City. It anticipated the implementation of the regulation on its imported and perishable Chinese milling wheat in transit from China. 8 Respondent contended that CMO 27-2003 was issued without following the mandate of the Revised Administrative Code on public participation, prior notice, and publication or registration with the University of the Philippines Law Center. Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier without the benefit of prior assessment and examination; thus, despite having imported food grade wheat, it would be subjected to the 7% tariff upon the arrival of the shipment, forcing them to pay 133% more than was proper. Furthermore, respondent claimed that the equal protection clause of the Constitution was violated when the regulation treated non-flour millers differently from flour millers for no reason at all. Lastly, respondent asserted that the retroactive application of the regulation was confiscatory in nature. On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for twenty (20) days from notice. 9 Petitioners thereafter filed a Motion to Dismiss. 10 They alleged that: (1) the RTC did not have jurisdiction over the subject matter of the case, because respondent was asking for a judicial determination of the classification of wheat; (2) an action for declaratory relief was improper; (3) CMO 27-2003 was an internal administrative rule and not legislative in nature; and (4) the claims of respondent were speculative and premature, because the Bureau of Customs (BOC) had yet to examine respondent's products. They likewise opposed the application for a writ of preliminary injunction on the ground that they had not inflicted any injury through the issuance of the regulation; and that the action would be contrary to the rule that administrative issuances are assumed valid until declared otherwise. On 28 February 2005, the parties agreed that the matters raised in the application for preliminary injunction and the Motion to Dismiss would just be resolved together in the main case. Thus, on 10 March 2005, the RTC rendered its Decision 11 without having to resolve the application for preliminary injunction and the Motion to Dismiss. The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs Memorandum Order 27-2003 is declared INVALID and OF NO FORCE AND EFFECT. Respondents Commissioner of Customs, the District Collector of Subic or anyone acting in their behalf are to immediately cease and desist from enforcing the said Customs Memorandum Order 272003. SO ORDERED. 12 The RTC held that it had jurisdiction over the subject matter, given that the issue raised by respondent concerned the quasilegislative powers of petitioners. It likewise stated that a petition for declaratory relief was the proper remedy, and that respondent was the proper party to file it. The court considered that respondent was a regular importer, and that the latter would be subjected to the application of the regulation in future transactions. With regard to the validity of the regulation, the trial court found that petitioners had not followed the basic requirements of hearing and publication in the issuance of CMO 27-2003. It likewise held that petitioners had "substituted the quasi-judicial determination of the commodity by a quasi-legislative predetermination." 13 The lower court pointed out that a classification based on importers and ports of discharge were violative of the due process rights of respondent. Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the same allegations in defense of CMO 27-2003. 14 The appellate court, however, dismissed the appeal. It held that, since the regulation affected substantial rights of petitioners and other importers, petitioners should have observed the requirements of notice, hearing and publication. Hence, this Petition. Petitioners raise the following issues for the consideration of this Court: I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN ACCORD WITH THE LAW AND PREVAILING JURISPRUDENCE. II. CASE. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT HAS JURISDICTION OVER THE

The Petition has no merit. We shall first discuss the propriety of an action for declaratory relief. Rule 63, Section 1 provides: Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination. 15 We find that the Petition filed by respondent before the lower court meets these requirements. First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner Commissioner of Customs. In Smart Communications v. NTC, 16 we held: The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law or the constitution is within the jurisdiction of the regular courts. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts. This is within the scope of judicial power, which includes the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable

and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, 17 we said: . . . [A] legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. . . . In addition such rule must be published. On the other hand, interpretative rules are designed to provide guidelines to the law which the administrative agency is in charge of enforcing. Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the rule is within the delegated authority of the administrative agency; (ii) whether it is reasonable; and (iii) whether it was issued pursuant to proper procedure. But the court is not free to substitute its judgment as to the desirability or wisdom of the rule for the legislative body, by its delegation of administrative judgment, has committed those questions to administrative judgments and not to judicial judgments. In the case of an interpretative rule, the inquiry is not into the validity but into the correctness or propriety of the rule. As a matter of power a court, when confronted with an interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its judgment; or (iii) give some intermediate degree of authoritative weight to the interpretative rule. (Emphasis supplied) Second, the controversy is between two parties that have adverse interests. Petitioners are summarily imposing a tariff rate that respondent is refusing to pay. Third, it is clear that respondent has a legal and substantive interest in the implementation of CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat, on 14 August 2003, it has actually made shipments of wheat from China to Subic. The shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to the conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates, depending on the factors enumerated therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade wheat, instead of the 3% tariff on food grade wheat. In addition, respondent would have to go through the procedure under CMO 27-2003, which would undoubtedly toll its time and resources. The lower court correctly pointed out as follows: . . . As noted above, the fact that petitioner is precisely into the business of importing wheat, each and every importation will be subjected to constant disputes which will result into (sic) delays in the delivery, setting aside of funds as cash bond required in the CMO as well as the resulting expenses thereof. It is easy to see that business uncertainty will be a constant occurrence for petitioner. That the sums involved are not minimal is shown by the discussions during the hearings conducted as well as in the pleadings filed. It may be that the petitioner can later on get a refund but such has been foreclosed because the Collector of Customs and the Commissioner of Customs are bound by their own CMO. Petitioner cannot get its refund with the said agency. We believe and so find that Petitioner has presented such a stake in the outcome of this controversy as to vest it with standing to file this petition. 18 (Emphasis supplied) Finally, the issue raised by respondent is ripe for judicial determination, because litigation is inevitable 19 for the simple and uncontroverted reason that respondent is not included in the enumeration of flour millers classified as food grade wheat importers. Thus, as the trial court stated, it would have to file a protest case each time it imports food grade wheat and be subjected to the 7% tariff. It is therefore clear that a petition for declaratory relief is the right remedy given the circumstances of the case. Considering that the questioned regulation would affect the substantive rights of respondent as explained above, it therefore follows that petitioners should have applied the pertinent provisions of Book VII, Chapter 2 of the Revised Administrative Code, to wit: Section 3. Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from that date shall not thereafter be the bases of any sanction against any party of persons. xxx xxx xxx

Section 9. Public Participation. (1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule. (2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon. (3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance, for it gives no real consequence more than what the law itself has already prescribed. When, on the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. 20 Likewise, in Taada v. Tuvera, 21 we held: The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa and for the diligent ones, ready access to the legislative records no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. (Emphasis supplied) Because petitioners failed to follow the requirements enumerated by the Revised Administrative Code, the assailed regulation must be struck down. Going now to the content of CMO 27-2003, we likewise hold that it is unconstitutional for being violative of the equal protection clause of the Constitution. The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the equal protection of laws is not violated if there is a reasonable classification. For a classification to be reasonable, it must be shown that (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all members of the same class. 22 Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of wheat is affected by who imports it, where it is discharged, or which country it came from. Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade wheat, the product would still be declared as feed grade wheat, a classification subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO 27-2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus depriving the state of the taxes due. The regulation, therefore, does not become disadvantageous to respondent only, but even to the state. It is also not clear how the regulation intends to "monitor more closely wheat importations and thus prevent their misclassification." A careful study of CMO 27-2003 shows that it not only fails to achieve this end, but results in the opposite. The application of the regulation forecloses the possibility that other corporations that are excluded from the list import food grade wheat; at the same time, it creates an assumption that those who meet the criteria do not import feed grade wheat. In

the first case, importers are unnecessarily burdened to prove the classification of their wheat imports; while in the second, the state carries that burden. Petitioner Commissioner of Customs also went beyond his powers when the regulation limited the customs officer's duties mandated by Section 1403 of the Tariff and Customs Law, as amended. The law provides: Section 1403. Duties of Customs Officer Tasked to Examine, Classify, and Appraise Imported Articles. The customs officer tasked to examine, classify, and appraise imported articles shall determine whether the packages designated for examination and their contents are in accordance with the declaration in the entry, invoice and other pertinent documents and shall make return in such a manner as to indicate whether the articles have been truly and correctly declared in the entry as regard their quantity, measurement, weight, and tariff classification and not imported contrary to law. He shall submit samples to the laboratory for analysis when feasible to do so and when such analysis is necessary for the proper classification, appraisal, and/or admission into the Philippines of imported articles. Likewise, the customs officer shall determine the unit of quantity in which they are usually bought and sold, and appraise the imported articles in accordance with Section 201 of this Code. Failure on the part of the customs officer to comply with his duties shall subject him to the penalties prescribed under Section 3604 of this Code. The provision mandates that the customs officer must first assess and determine the classification of the imported article before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified the article even before the customs officer had the chance to examine it. In effect, petitioner Commissioner of Customs diminished the powers granted by the Tariff and Customs Code with regard to wheat importation when it no longer required the customs officer's prior examination and assessment of the proper classification of the wheat. It is well-settled that rules and regulations, which are the product of a delegated power to create new and additional legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law; and that it be not in contradiction to, but in conformity with, the standards prescribed by law. 23 In summary, petitioners violated respondent's right to due process in the issuance of CMO 27-2003 when they failed to observe the requirements under the Revised Administrative Code. Petitioners likewise violated respondent's right to equal protection of laws when they provided for an unreasonable classification in the application of the regulation. Finally, petitioner Commissioner of Customs went beyond his powers of delegated authority when the regulation limited the powers of the customs officer to examine and assess imported articles. WHEREFORE, in view of the foregoing, the Petition is DENIED. SO ORDERED.

[G.R. No. 46623. December 7, 1939.] MARCIAL KASILAG, petitioner, vs. RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL ROSARIO, respondents. Luis M. Kasilag; for petitioner. Fortunato de Leon; for respondents. SYLLABUS 1. CONTRACTS, INTERPRETATION; MORTGAGE OF IMPROVEMENTS UPON LAND ACQUIRED AS HOMESTEAD. The cardinal rule in the interpretation of contracts is to the effect that the intention of the contracting parties should always prevail because their will has the force of law between them. Article 1281 of the Civil Code consecrates this rule and provides, further, that if the terms of a contract are clear and leave no doubt as to the intention of the contracting parties, the literal sense of its stipulations shall be followed; and if the words appear to be contrary to the evident intention of the contracting parties, the intention shall prevail. The contract set out in Exhibit 1' should be interpreted in accordance with these rules. As the terms thereof are clear and leave no room for doubt, it should be interpreted according to the literal meaning of its clauses. The words used by the contracting parties in Exhibit 1 clearly show that they intended to enter into the principal contract of loan in the amount of P1,000, with interest at 12 per cent per annum, and into the accessory contract of mortgage of the improvements on the land acquired as homestead, the parties having, moreover, agreed upon the pacts and conditions stated in the deed. In other words, the parties entered into a contract of mortgage of the improvements on the land acquired as homestead, to secure the payment of the indebtedness for P1,000 and the stipulated interest thereon. 2. ID.; ID.; ID.; ANTICHRESIS. Another fundamental rule in the interpretation of contracts, not less important than those indicated is to the effect that the terms, clauses and conditions contrary to law, morals and public order should be separated from the valid and legal contract when such separation can be made because they are independent of the valid contract which expresses the will of the contracting parties. Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated that the principal contract is that of loan and the accessory that of mortgage of the improvements upon the land acquired as a homestead. There is no question that the first of these contracts is valid as it is not against the law. The second, or the mortgage of the improvements, is expressly authorized by section 116 of Act No. 2874, as amended by section 23 of Act No. 3517. It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should E. A. fail to redeem the mortgage within the stipulated period of four and a half years, by paying the loan together with interest, she would execute in favor of the petitioner an absolute deed of sale of the land for P1,000, including the interest stipulated and owing. This stipulation was verbally modified by the same parties after the expiration of one year, in the sense that the petitioner would take possession of the land and would benefit by the fruits thereof on condition that he would condone the payment of interest upon the loan and he would attend to the payment of the land tax. These pacts made by the parties independently, were calculated to alter the mortgage contract clearly entered into, converting the latter into a contract of antichresis (article 1881 of the Civil Code). The contract of antichresis, being a real incumbrance burdening the land, is illegal and void because it is condemned by section 116 of Act No. 2874, as amended, but the clauses regarding the contract of antichresis being independent and separable from the contract of mortgage, can be eliminated, thereby leaving the latter in being because it is legal and valid. 3. ID.; ID.; ID.; ID.; POSSESSION IN GOOD FAITH. It is a fact that the petitioner is not conversant with the laws because he is not a lawyer. In accepting the mortgage of the improvements he proceeded on the well-grounded belief that he was not violating the prohibition regarding the alienation of the land. In taking possession thereof and in consenting to receive its fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the contract of antichresis and that the latter, as a lien, was prohibited by section 116. These considerations again bring us to the conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is excusable and may, therefore, be the basis of his good faith. We do not give much importance to the change of the tax declaration, which consisted in making the petitioner appear as the owner of the land, because such an act may only be considered as a sequel to the change of possession and enjoyment of the fruits by the petitioner, about which we have stated that the petitioner's ignorance of the law is possible and excusable. We, therefore, hold that the petitioner acted in good faith in taking possession of the land and enjoying its fruits.

4. ID.; ID.; ID.; ID.; ID. The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and having introduced the improvements upon the land as such, the provisions of article 361 of the same Code are applicable; wherefore, the respondents are entitled to have the improvements and plants upon indemnifying the petitioner the value thereof which we fix at P3,000, as appraised by the trial court; or the respondents may elect to compel the petitioner to have the land by paying its market value to be fixed by the court of origin. DECISION IMPERIAL, J p: This is an appeal taken by the defendant-petitioner from the decision of the Court of Appeals which modified that rendered by the Court of First Instance of Bataan in civil case No. 1504 of said court and held: that the contract, Exhibit "1" is entirely null and void and without effect; that the plaintiffs-respondents, then appellants, are the owners of the disputed land, with its improvements, in common ownership with their brother Gavino Rodriguez, hence, they are entitled to the possession thereof; that the defendant-petitioner should yield possession of the land in their favor, with all the improvements thereon and free from any lien; that the plaintiffs-respondents jointly and severally pay to the defendant-petitioner the sum of P1,000 with interest at 6 per cent per annum from the date of the decision; and absolved the plaintiffs-respondents from the crosscomplaint relative to the value of the improvements claimed by the defendant-petitioner. The appealed decision also ordered the registrar of deeds of Bataan to cancel certificate of title No. 325, in the name of the deceased Emiliana Ambrosio and to issue in lieu thereof another certificate of title in favor of the plaintiffs-respondents and their brother Gavino Rodriguez, as undivided owners in equal parts, free of all liens and incumbrances except those expressly provided by law, without special pronouncement as to the costs. The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the aforesaid civil case to the end that they recover from the petitioner the possession of the land and its improvements granted by way of homestead to Emiliana Ambrosio under patent No. 16074 issued on January 11, 1931, with certificate of title No. 325 issued by the registrar of deeds of Bataan on June 27, 1931 in her favor, under section 122 of Act. No. 496, which land was surveyed and identified in the cadastre of the municipality of Limay, Province of Bataan, as lot No. 285; that the petitioner pay to them the sum of P650 being the approximate value of the fruits which he received from the land; that the petitioner sign all the necessary documents to transfer the land and its possession to the respondents; that the petitioner be restrained, during the pendency of the case, from conveying or encumbering the land and its improvements; that the registrar of deeds of Bataan cancel certificate of title No. 325 and issue in lieu thereof another in favor of the respondents, and that the petitioner pay the costs of suit. The petitioner denied in his answer all the material allegations of the complaint and by way of special defense alleged that he was in possession of the land and that he was receiving the fruits thereof by virtue of a mortgage contract, entered into between him and the deceased Emiliana Ambrosio on May 16, 1932, which was duly ratified by a notary public; and in counterclaim asked that the respondents pay him the sum of P1,000 with 12 per cent interest per annum which the deceased owed him and that, should the respondents be declared to have a better right to the possession of the land, that they be sentenced to pay him the sum of P5,000 as value of all the improvements which he introduced upon the land. On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public deed: "This agreement, made and entered into this 16th day of May, 1932, by and between Emiliana Ambrosio, Filipino, of legal age, widow and resident of Limay, Bataan, P. I., hereinafter called the party of the first part, and Marcial Kasilag, Filipino, of legal age, married to Asuncion Roces, and resident at 312 Perdigon Street, Manila, P. I., hereinafter called party of the second part. "WITNESSETH: That the parties hereto hereby covenant and agree to and with each other as follows: "ARTICLE I. That the party of the first part is the absolute registered owner of a parcel of land in the barrio of Alagan, municipality of Limay, Province of Bataan, her title thereto being evidenced by homestead certificate of title No. 325 issued by the bureau of Lands on June 11, 1931, said land being lot No. 285 of the Limay Cadastre, General Land Registration Office Cadastral Record No. 1054, bounded and described as follows: "Beginning at point marked 1 on plan E-57394, N. 84 32' W. 614.82 m. from B. B. M. No. 3, thence N. 66 35' E. 307.15 m. to point "2"; S. 5 07' W. to point "5"; 6 10' E. 104.26 m. to point "4"; S. 82 17' W. to point "5"; S. 28 63' W. 72.26 m. to point "6"; N. 71 09' W. to point "7"; N. 1 42' E. 173.72 m. to point 1, point of beginning,

"Containing an area of 6.7540 hectares. "Points 1, 2, 6 and 7, B. L.; points 3, 4 and 5, stakes; points 4, 5 and 6 on bank of Alagan River. "Bounded on the North, by property claimed by Maria Ambrocio; on the East, by Road; on the South, by Alagan River and property claimed by Maxima de la Cruz; and on the West, by property claimed by Jose del Rosario. "Bearing true. Declination 0 51' E. "Surveyed under authority of sections 12-22, Act No. 2874 and in accordance with existing regulations of the Bureau of Lands, by Mamerto Jacinto, public land surveyor, on July 8, 1927 and approved on February 25, 1931. "ARTICLE II. That the improvements on the above described land consist of the following:

"Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one (1) tamarind and six (6) bonga trees. "ARTICLE III. That the assessed value of the land is P940 and the assessed value of the improvements is P860, as evidenced by tax declaration No. 3531 of the municipality of Limay, Bataan. "ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000) Philippine currency, paid by the party of second part to the party of the first part, receipt whereof is hereby acknowledged, the party of the first part hereby encumbers and hypothecates, by way of mortgage, only the improvements described in Articles II and III hereof, of which improvements the party of the first part is the absolute owner. "ARTICLE V. That the condition of said mortgage is such that if the party of the first part shall well and truly pay, or cause to be paid to the party of the second part, his heirs, assigns, or executors, on or before the 16th day of November, 1936, or four and one-half (41) years after date of the execution of this instrument, the aforesaid sum of one thousand pesos (P1,000) with interest at 12 Per cent per annum, then said mortgage shall be and become null and void; otherwise the same shall be and shall remain in full force and effect, and subject to foreclosure in the manner and form provided by law for the amount due thereunder, with costs and also attorney's fees in the event of such foreclosure. "ARTICLE VI. That the party of the first part shall pay all taxes and assessments which are or may become due on the above described land and improvements during the term of this agreement "ARTICLE VII. That within thirty (30) days after date of execution of this agreement, the party of the first part shall file a motion before the Court of First Instance at Balanga, Bataan, P. I., requesting cancellation of Homestead Certificate of Title No. 325 referred to in Article I hereof and the issuance, in lieu thereof, of a certificate of title under the provisions of Land Registration Act No. 496, as amended by Act 3901. "ARTICLE VIII. It is further agreed that if upon the expiration of the period of time (4) years stipulated in this mortgage, the mortgagor should fail to redeem this mortgage, she would execute a deed of absolute sale of the property herein described for the same amount as this mortgage, including all unpaid interests at the rate of 12 per cent per annum, in favor of the mortgagee. "ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not approved by the Court, the foregoing contract of sale shall automatically become null and void, and the mortgage stipulated under Article IV and V shall remain in full force and effect. "In testimony whereof, the parties hereto have hereunto set their hands the day and year first hereinbefore written. ( Sgd. ) "MARCIAL KASILAG ( Sgd. ) EMILIANA AMBROSIO "Signed in the presence of: ( Sgd. ) "ILLEGIBLE ( Sgd. ) GAVINO RODRIGUEZ

PHILIPPINE ISLANDS BALANGA, BATAAN

} } ss.

"Before me this day personally appeared Emiliana Ambrosio without cedula by reason of her sex, to me known and known to me to be the person who signed the foregoing instrument, and acknowledged to me that she executed the same as her free and voluntary act and deed. "I hereby certify that this instrument consists of three (3) pages including this page of the acknowledgment and that each page thereof is signed by the parties to the instrument and the witnesses in their presence and in the presence of each other, and that the land treated in this instrument consists of only one parcel. "In witness whereof I have hereunto set my hand and affixed my notarial seal, this 16th day of May, 1932.

(Sgd.) "NICOLAS NAVARRO Notary Public

My commission expires December 31, 1933

"DOC. NO. 178 Page 36 of my register Book NO. IV"

One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana Ambrosio was unable to pay the stipulated interest as well as the tax on the land and its improvements. For this reason, she and the petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the land on condition that the latter would not collect the interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of the land, and would introduce improvements thereon. By virtue of this verbal contract, the petitioner entered upon the possession of the land, gathered the products thereof, did not collect the interest on the loan, introduced improvements upon the land valued at P5,000, according to him and on May 22, 1934 the tax declaration was transferred in his name and on March 6, 1936 the assessed value of the land was in- creased from P1,020 to P2,180. After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the conclusion and so held that the contract entered into by and between the parties, set out in the said public deed, was one of absolute purchase and sale of the land and its improvements. And upon this ruling it held null and void and without legal effect the entire Exhibit 1 as well as the subsequent verbal contract entered into between the parties, ordering, however, the respondents to pay to the petitioner, jointly and severally, the loan of P1,000, with legal interest at 6 per cent per annum from the date of the decision. In this first assignment of error the petitioner contends that the Court of appeals violated the law in holding that Exhibit 1 is an absolute deed of sale of the land and its improvements and that it is void and without any legal effect. The cardinal rule in the interpretation of contracts is to the effect that the intention of the contracting parties should always prevail because their will has the force of law between them. Article 1281 of the Civil Code consecrates this rule and provides, that if the terms of a contract are clear and leave no doubt as to the intention of the contracting parties, the literal sense of its

stipulations shall be followed; and if the words appear to be contrary to the evident intention of the contracting parties, the intention shall prevail. The contract set out in Exhibit I should be interpreted in accordance with these rules. As the terms thereof are clear and leave no room for doubt, it should be interpreted according to the literal meaning of its clauses. The words used by the contracting parties in Exhibit 1 clearly show that they intended to enter into the principal contract of loan in the amount of P1,000, with interest at 12 per cent per annum, and into the accessory contract of mortgage of the improvements on the land acquired as homesteads the parties having, moreover, agreed upon the pacts and conditions stated in the deed. In other words, the parties entered into a contract of mortgage of the improvements on the land acquired as homestead, to secure the payment of the indebtedness for P1,000 and the stipulated interest thereon. In clause V the parties stipulated that Emiliana Ambrosio was to pay, within four and a half years, or until November 16, 1936, the debt with interest thereon, in which event the mortgage would not have any effect; in clause VI the parties agreed that the tax on the land and its improvements, during the existence of the mortgage, should be paid by the owner of the land; in clause VII it was covenanted that within thirty days from the date of the contract, the owner of the land would file a motion in the Court of First Instance of Bataan asking that certificate of title No. 325 be cancelled and that in lieu thereof another be issued under the provisions of the Land Registration Act, No. 496, as amended by Act No. 3901; in clause VIII the parties agreed that should Emiliana Ambrosio fail to redeem the mortgage within the stipulated period of four years and a half, she would execute an absolute deed of sale of the land in favor of the mortgagee, the petitioner, for the same amount of the loan of P1,000 including unpaid interest; and in clause IX it was stipulated that in case the motion to be presented under clause VII should be disapproved by the Court of First Instance of Bataan, the contract of sale would automatically become void and the mortgage would subsist in all its force. Another fundamental rule in the interpretation of contracts, not less important than those indicated, is to the effect that the terms, clauses and conditions contrary to law, morals and public order should be separated from the valid and legal contract when such separation can be made because they are independent of the valid contract which expresses the will of the contracting parties. Manresa, commenting on article 1255 of the Civil Code and stating the rule of separation just mentioned, gives his views as follows: "On the supposition that the various pacts, clauses or conditions are valid, no difficulty is presented; but should they be void, the question is as to what extent they may produce the nullity of the principal obligation. Under the view that such features of the obligation are added to it and do not go to its essence, a criterion based upon the stability of juridical relations should tend to consider the nullity as confined to the clause or pact suffering therefrom, except in case where the latter, by an established connection or by manifest intention of the parties, is inseparable from the principal obligation, and is a condition, juridically speaking, of that the nullity of which it would also occasion." ( Manresa, Commentaries on the Civil Code, Volume 8, p. 575.) The same view prevails in the Anglo-American law, as condensed in the following words: "Where an agreement founded on a legal consideration contains several promises, or a promise to do several things, and a part only of the things to be done are illegal, the promises which can be separated, or the promise, so far as it can be separated, from the illegality, may be valid. The rule is that a lawful promise made for a lawful consideration is not invalid merely because an unlawful promise was made at the same time and for the same consideration, and this rule applies, although the invalidity is due to violation of a statutory provision, unless the statute expressly or by necessary implication declares the entire contract void. . . " (13 C. J., par. 470, p. 512; New York Cent. etc. R. Co. v. Gray, 239 U. S., 583; 60 Law. ed., 451; U. S. v. Moran, 97 U. S., 413, 24 Law. ed., 1017: U. S. v. Ilodson, 10 Wall, 395; 19 Law ed. 937; Gelpcke v. Dubuque, 1 Wall. 175, 17 Law. ed., 520; U. S. v. Bradly, 10 Pet. 343, 9 Law. ed., 448; Borland v. Prindle, 144 Fed. 713; Western Union Tel. Co. v. Kansas Pac. R. Co., 4 Fed., 284; Northern Pac. R. Co. v. U. S., 15 Ct. Cl., 428.) Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated that the principal contract is that of loan and the accessory that of mortgage of the improvements upon the land acquired as a homestead. There is no question that the first of these contracts is valid as it is not against the law. The second, or the mortgage of the improvements, is expressly authorized by section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, reading: "SEC. 116. Except in favor of the Government or any of its branches, units, or institutions, or legally constituted banking corporations, lands acquired under the free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period; but the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations."

It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana Ambrosio fail to redeem the mortgage within the stipulated period of four and a half years, by paying the loan together with interest, she would execute in favor of the petitioner an absolute deed of sale of the land for P1,000, including the interest stipulated and owing. This stipulation was verbally modified by the same parties after the expiration of one year, in the sense that the petitioner would take possession of the land and would benefit by the fruits thereof on condition that he would condone the payment of interest upon the loan and he would attend to the payment of the land tax. These pacts made by the parties independently were calculated to alter the mortgage contract clearly entered into, converting the latter into a contract of antichresis. (Article 1881 of the Civil Code.) The contract of antichresis, being a real encumbrance burdening the land, is illegal and void because it is condemned by section 116 of Act No. 2874, as amended, but the clauses regarding the contract of antichresis, being independent of and separable from the contract of mortgage, can be eliminated, thereby leaving the latter in being because it is legal and valid. The foregoing considerations bring us to the conclusion that the first assignment of error is well-founded and that error was committed in holding that the contract entered into between the parties was one of absolute sale of the land and its improvements and that Exhibit 1 is null and void. In the second assignment of error the petitioner contends that the Court of Appeals erred in holding that he is guilty of violating the Public Land Act because he entered into the contract, Exhibit 1. The assigned error is vague and not specific. If it attempts to show that the said document is valid in its entirety, it is not well-founded because we have already said that certain pacts thereof are illegal because they are prohibited by section 116 of Act No. 2874, as amended. In the third assignment of error the petitioner insists that his testimony, as to the verbal agreement entered into between him and Emiliana Ambrosio, should have been accepted by the Court of Appeals; and in the fourth and last assignment of error the same petitioner contends that the Court of Appeals erred in holding that he acted in bad faith in taking possession of the land and in taking advantage of the fruits thereof, resulting in the denial of his right to be reimbursed for the value of the improvements introduced by him. We have seen that subsequent to the execution of the contract, Exhibit 1, the parties entered into another verbal contract whereby the petitioner was authorized to take possession of the land, to receive the fruits thereof and to introduce improvements thereon, provided that he would renounce the payment of stipulated interest and he would assume payment of the land tax. The possession by the petitioner and his receipt of the fruits of the land, considered as integral elements of the contract of antichresis, are illegal and void agreements because, as already stated, the contract of antichresis is a lien and as such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of Appeals held that the petitioner acted in bad faith in taking possession of the land because he knew that the contract he made with Emiliana Ambrosio was an absolute deed of sale and, further, that the latter could not sell the land because it is prohibited by section 116. The Civil Code does not expressly define what is meant by bad faith, but section 433 provides that "Every person who is unaware of any flaw in his title, or in the manner of its acquisition, by which it is invalidated, shall be deemed a possessor in good faith"; and provides, further, that "Possessors aware of such flaw are deemed possessors in bad faith." Article 1950 of the same Code, covered by Chapter II relative to prescription of ownership and other real rights, provides, in turn, that "Good faith on the part of the possessor consists in his belief that the person from whom he received the thing was the owner of the same, and could transmit the title thereto." We do not have before us a case of prescription of ownership, hence, the last article is not squarely in point. In resume, it may be stated that a person is deemed a possessor in bad faith when he knows that there is a flaw in his title or in the manner of its acquisition, by which it is invalidated. Borrowing the language of Article 433, the question to be answered is whether the petitioner should be deemed a possessor in good faith because he was unaware of any flaw in his title or in the manner of its acquisition by which it is invalidated. It will be noted that ignorance of the flaw is the keynote of the rule. From the facts found established by the Court of Appeals we can neither deduce nor presume that the petitioner was aware of a flaw in his title or in the manner of its acquisition, aside from the prohibition contained in section 116. This being the case, the question is whether good faith may be premised upon ignorance of the laws. Manresa, commenting on article 434 in connection with the preceding article, sustains the affirmative. He says: "We do not believe that in real life there are not many cases of good faith founded upon an error of law. When the acquisition appears in a public document, the capacity of the parties has already been passed upon by competent authority, and even established by appeals taken from final judgments and administrative remedies against the qualification of registrars, and the possibility of error is remote under such circumstances; but, unfortunately, private documents and even verbal agreements

far exceed public documents in number, and while no one should be ignorant of the law, the truth is that even we who are called upon to know and apply it fall into error not infrequently. However, a clear, manifest, and truly unexcusable ignorance is one thing, to which undoubtedly refers article 2, and another and different thing is possible and excusable error arising from complex legal principles and from the interpretation of conflicting doctrines. "But even ignorance of the law may be based upon an error of fact, or better still, ignorance of a fact is possible as to the capacity to transmit and as to the intervention of certain persons, compliance with certain formalities and appreciation of certain acts, and an error of law is possible in the interpretation of doubtful doctrines." (Manresa, Commentaries on the Spanish Civil Code. Volume IV, pp. 100, 101 and 102.) According to this author, gross and inexeusable ignorance of the law may not be the basis of good faith, but possible, excusable ignorance may be such basis. It is a fact that the petitioner is not conversant with the laws because he is not a lawyer. In accepting the mortgage of the improvements he proceeded on the well-grounded belief that he was not violating the prohibition regarding the alienation of the land. In taking possession thereof and in consenting to receive its fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the contract of antichresis and that the latter, as a lien, was prohibited by section 116. These considerations again bring us to the conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is excusable and may, therefore, be the basis of his good faith. We do not give much importance to the change of the tax declaration, which consisted in making the petitioner appear as the owner of the land, because such an act may only be considered as a sequel to the change of possession and enjoyment of the fruits by the petitioner, to about which we have stated that the petitioner's ignorance of the law is possible and excusable. We, therefore, hold that the petitioner acted in good faith in taking possession of the land and enjoying its fruits. The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and having introduced the improvements upon the land as such, the provisions of article 361 of the same Code are applicable; wherefore, the respondents are entitled to have the improvements and plants upon indemnifying the petitioner the value thereof which we fix at P3,000, as appraised by the trial court; or the respondents may elect to compel the petitioner to have the land by paying its market value to be fixed by the court of origin. The respondents also prayed in their complaint that the petitioner be compelled to pay them the sum of P650, being the approximate value of the fruits obtained by the petitioner from the land. The Court of Appeals affirmed the judgment of the trial court denying the claim or indemnity for damages, being of the same opinion as the trial court that the respondents have not established such damages. Under the verbal contract between the petitioner and the deceased Emiliana Ambrosio, during the latter's lifetime, the former would take possession of the land and would receive the fruits of the mortgaged improvements on condition that he would no longer collect the stipulated interest and that he would attend to the payment of the land tax. This agreement, at bottom, is tantamount to the stipulation that the petitioner should apply the value of the fruits of the land to the payment of stipulated interest on the loan of P1,000 which is, in turn, another of the elements characterizing the contract of antichresis under article 1881 of the Civil Code. It was not possible for the parties to stipulate further that the value of the fruits be also applied to the payment of the capital, because the truth was that nothing remained after paying the interest at 12% per annum. This interest, at the rate fixed, amounted to P120 per annum, whereas the market value of the fruits obtainable from the land hardly reached said amount in view of the fact that the assessed value of said improvements was, according to the decision, P860. To this should be added the fact that, under the verbal agreement, from the value of the fruits had to be taken a certain amount to pay the annual land tax. We mention these data here to show that the petitioner is also not bound to render an accounting of the value of the fruits of the mortgaged improvements for the reason stated that said value hardly covers the interest earned by the secured indebtedness. For all the foregoing considerations, the appealed decision is reversed, and we hereby adjudge: (1) that the contract of mortgage of the improvements, set out in Exhibit 1, is valid and binding (2) that the contract of antichresis agreed upon verbally by the parties is a real incumbrance which burdens the land and, as such, is null and without effect; (3) that the petitioner is a possessor in good faith; (4) that the respondents may elect to have the improvements introduced by the petitioner by paying the latter the value thereof, P3,000, or to compel the petitioner to buy and have the land where the improvements or plants are found, by paying them its market value to be fixed by the court of origin, upon hearing the parties; (5) that the respondents have a right to the possession of the land and to enjoy the mortgaged improvements; and (6) that the respondents may redeem the mortgage of the improvements by paying to the petitioner within three months the amount of P1,000, without interest, as that stipulated is set off by the value of the fruits of the mortgaged improvements which the petitioner received; and in default thereof the petitioner may ask for the public sale of said improvements for the purpose of

applying the proceeds thereof to the payment of his said credit. Without special pronouncement as to the costs in all instances. So ordered. Diaz, J., concur. Separate Opinions VILLA-REAL, J., concurring and dissenting: According to the contract entered into on May 16, 1932, between Emiliana Ambrosio, in life, and the petitioner Marcial Kasilag, the first, in consideration of the sum of P1,000 given to her by the second, constituted a mortgage on the improvements only of the land which she acquired by way of homestead. The improvements which she mortgaged consisted of four fruit-bearing mango trees, one hundred ten hills of bamboo trees, 1 tamarind tree and 6 betelnut trees, the assessed value of which was P660. The conditions of the loan were that if the mortgagor should pay the mortgagee on November 16, 1936, that is, four and a half years after the execution of the deed, said sum of P1,000 with interest thereon at 12% per annum, the aforesaid mortgage would become null and void, otherwise it would remain in full force and effect and would be subject to foreclosure in the manner provided by law; that the mortgagor would pay all the land taxes on the land and its improvements during the duration of the contract; and that if after the expiration of the said period of four and a half years the mortgagor should fail to redeem the mortgage, she would execute in favor of the mortgagee an absolute deed of sale of the property described in the contract for the same sum of P1,000 plus interest due and unpaid at the rate of 12 per cent per annum. The principal rule in the interpretation of contracts is that "If the terms of a contract are clear and leave no doubt as to the intention of the contracting parties, the literal sense of its stipulations shall be followed. If the words appear to be contrary to the evident intention of the contracting parties, the intention shall prevail" (article 1281, Civil Code). "In order to judge as to the intention of the contracting parties, attention must be paid principally to their conduct at the time of making the contract and subsequently thereto." (Article 1282.) Now, then, what is the true nature of the contract entered into between the parties by virtue of the deed of sale executed by them on May 16, 1932? The Court of Appeals held that it is an absolute deed of sale of a land with a homestead certificate of title, under the guise of a loan secured by a mortgage upon its improvements in order to go around the prohibition contained in section 116 of Act No. 2874, as amended by section 23 of Act No. 3517. Closely examined, the only clauses of the contract which may lead to the conclusion that it is one of sale are those which state that if at the expiration of the period of four years and a half the mortgagor should fail to pay the amount of the loan plus interest due and unpaid at the rate of 12 per cent per annum, she would execute in favor of the mortgagee a deed of absolute sale of the land whose improvements were mortgaged for the amount of the loan and the interest owing. It will be seen that the sale would not be made until after the lapse of four and a half years from the execution of the deed, if the mortgagor should fail or should not wish to redeem the mortgaged improvements. Consequently, the obligation contracted by said mortgagor was no more than a conditional promise to sell. Now, then, is this promise to sell valid? Like any other onerous, consensual and mutually binding contract, that of promise to sell requires for its legal existence and validity the concurrence of consent, consideration and subject-matter. The contract before us does not show what is the cause or consideration for such promise to sell. Assuming that it was the economic impotence of the mortgagor to redeem the mortgaged improvements, before she could be compelled to comply with her obligation to sell, there is need to wait until she should fail to exercise the right to redeem either due to lack of funds or to abandonment. The cause will come into being only upon the happening of said event after the four and a half years and only then will the said contract of promise to sell have juridical existence. The P1,000 and its interest, should the mortgagor fail to redeem the improvements upon the maturity of the indebtedness, would be the consideration of the sale; because the promise to sell is a contract different and distinct from that of sale and each requires a consideration for its legal existence and validity. The terms of the contract are clear and explicit and do not leave room for doubt that the intention of the contracting parties was to constitute a mortgage on the improvements of the land in litigation to secure the payment of the loan for P1,000, with interest thereon at 12 per cent per annum. It cannot be said that this contract is simulated because the assessed value of the improvements is P860 only. It is well known that rural properties are valued for assessment purposes not less than half of their market value. The true value of the said improvements may therefore be P1,720, and the mortgagee may have considered that adequate. Moreover, the petitioner could not have the property whose improvements were mortgaged to him

even should the mortgagor default in the payment of interest. He could only have the mortgaged improvements in case of foreclosure should he bid therefor at the sale. Neither could the mortgagor sell the same property to the mortgagee, even after the expiration of five years from the issuance of the homestead certificate of title, for then the sale would be in satisfaction of an obligation contracted during the five years, which is prohibited by the of mentioned section 116 of Act No. 2874, as amended by section 23 of Act No. 3517. The fact that after one year the contracting parties had novated the contract of loan secured by a mortgage, converting the same into a contract of antichresis because of the mortgagor's failure to pay the accrued interest, does not show that they intended to enter into a contract of sale, because the conversion in this case of the contract of loan secured by a mortgage into one of antichresis was accidental, due to the mortgagor's default in the payment of unpaid interest for the first year. If the parties' intention from the beginning had been to sell the property, the mortgagee would have immediately entered upon the possession of the land instead of waiting until after the expiration of one year. The transfer of the Torrens certificate of title to the homestead by the original owner to the mortgagee in 1934 was only a consequence of the conversion of the mortgage loan into an antichretic loan, the parties having erroneously believed that it was necessary to make such a transfer. The setting off of the interest on the debt against the fruits of the property given in antichresis finds authority in article 1885 of the Civil Code. There is, therefore, no ambiguity in the terms of the contract warranting the search outside its four corners for the true intention of the contracting parties other than that of entering into a contract of loan secured by the said improvements. If the true intention of the contracting parties, as clearly gathered from the terms of the contract, was to enter into a contract of loan secured by a mortgage upon the improvements, although they should convert it into a contract of antichresis after one year and although after the maturity of the loan with interest they may wish to convert it into one of absolute sale-both conversions being illegal and, hence, void,-the original intention of entering into a contract of loan secured by a mortgage upon the improvements would prevail, the said contract of loan being the only one legal and valid, and the petitioner having acted in good faith in making it. The verbal contract of antichresis, entered into by the petitioner Marcial Kasilag and Emiliana Ambrosio, being null and void ab initio and without any legal effect because it is in violation of the express prohibition of section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, (article 4 of the Civil Code), the contracting parties should restore to each other the things which have been the subject-matter of the contract, together with their fruits, and the price paid therefor, together with interest, pursuant to Article 1303 of the same Code. Marcial Kasilag, therefore, should return to Emiliana Ambrosio or to her heirs the possession of the homestead and the improvements thereon with its fruits, and Emiliana Ambrosio or her heirs should pay him the sum of P1,000, being the amount of the loan, plus interest due and unpaid. As to the improvements introduced upon the land by the petitioner, having done so with the knowledge and consent of its owner Emiliana-Ambrosio, the former acted in good faith, and under article 361 of the Civil Code, the owner of the land may have the said improvements upon paying the indemnity provided in articles 453 and 454, or may compel the said Marcial Kasilag, who introduced the said improvements, to pay the price of the land. If the herein respondents, as heirs of Emiliana Ambrosio, do not wish or are unable to pay for said improvements, and Marcial Kasilag does not wish or is unable to pay for the land, said petitioner would lose his right of retention over the same (Bernardo vs. Batclan, 37 Off. G., No. 74, p. 1382), provided that he may remove the improvements which he had introduced in good faith. In view of the foregoing, I concur in the majority opinion except insofar as it holds that the interest is set off against the fruits of the mortgaged improvements, because as a result of the nullity of the contract of antichresis the petitioner should return to the respondents the products of the mortgaged improvements, and the latter should pay to the petitioner the amount of the loan plus interest due and unpaid at the rate of 12 per cent per annum from the date of the contract until fully paid. LAUREL, J., concurring: On August 27, 1918, Emiliana Ambrosio put in a home- stead application for lot No. 285 of the Limay Cadastre, Province of Bataan. After complying with the requisite legal formalities, she obtained therefor homestead patent No. 16074 and homestead certificate of title 325 on June 11, 1931, the same having been recorded in the registry of Deeds of Bataan on June 26, 1931. On May 16, 1932, she entered with the herein petitioner, Marcial Kasilag, into a contract, Exhibit 1, inserted in the foregoing majority opinion. Sometime in 1933, or a year after the execution of the aforequoted deed, the patentee failed to pay the stipulated interest and land taxes, whereupon, the mortgagee, Marcial Kasilag, and the mortgagor, Emiliana Ambrosio, verbally agreed that the former would pay the land taxes and waive the unpaid interest, enter into the possession of the property in question, introducing improvements thereon, and thereafter be reimbursed for the value of such improvements. Under this verbal pact,

Kasilag went into possession of the property, planted it with fruit trees allegedly valued at P5,000, and, on May 22, 1934, declared the same for taxation purposes. In 1934 the original homesteader, Emiliana Ambrosio, died leaving as heirs her children, Rafaela Rodriguez, Severo Mapilisan, Ignacio del Rosario and Gavino Rodriguez. On May 16, 1936, the said heirs, with the exception of Gavino Rodriguez who testified for the defendant, sued Marcial Kasilag in the Court of First Instance of Bataan to recover the possession of the aforesaid property belonging to their mother. For answer, the defendant put in as a general denial plea, a special defense that his possession was in good faith with the knowledge and tolerance of the plaintiffs, a counterclaim for P1,000 representing the loan to the deceased homesteader with stipulated interest thereon, and a recoupment for P5,000 allegedly the value of the improvements he had introduced upon the land. On the issues thus joined, the trial court gave judgment for the defendant couched in the following language: "Resuming all that has been said above, the court finds and declares that the deed of combined mortgage and sale executed by Emiliana Ambrosio in favor of the defendant Marcial Kasilag and dated May 16, 1932, is null and void as a contract for a future conveyance or sale of the homestead, but valid as an equitable mortgage on the improvements for the sum of P1,000; and that the possession of the homestead by the defendant Marcial Kasilag by virtue of paid contract or by virtue of any other agreement is null and void, but that the making of the improvements thereon by him, which the court finds to be valued at P3,000, by virtue of the verbal agreement entered into after the executing of the original instrument of mortgage, was in good faith, entitling the said Marcial Kasilag to be reimbursed of their actual value, the above-mentioned amount. Where- fore, let judgment be entered declaring that the plaintiffs are entitled to the possession as owners of the homestead subject of the present suit, lot No. 285 of the Limay cadastral survey, subject to an encumbrance of the improvements for the sum of P1,000 in favor of the defendant, ordering the defendant to deliver unto the plaintiffs the possession of said homestead, and directing the said plaintiffs in turn to pay unto the defendant jointly and severally, as heirs of their deceased mother Rafaela Rodriguez the sum of P3,000, value of improvements introduced on said homestead by defendant. Let there be no pronouncement as to costs." On appeal by the plaintiffs, the Third Division of the Court of Appeals reached a different result and modified the judgment of the trial court as follows: "Wherefore, the appealed judgment is hereby modified by declaring that the contract, Exhibit '1', is entirely null and void; that the plaintiffs and appellants are the owners of the lot in question together with all the improvements thereon in common with their brother, Gavino Rodriguez, and are, therefore, entitled to the possession thereof; ordering the defendant and appellee to vacate and deliver the possession of the aforesaid lot together with all the improvements thereon to the aforementioned plaintiffs and appellants free from any encumbrance; requiring the latter, however, to pay jointly and severally to the said appellee the sum of P1,000 with interest thereon at the rate of 6 per cent per annum from and including the date this decision becomes final; and absolving the said plaintiffs and appellants from the cross-complaint with respect to the value of the improvements claimed by the appellee. "It is further ordered that the register of deeds of Bataan cancel the certificate of title No. 325 in the name of the deceased, Emiliana Ambrosio, and issue in lieu thereof a new certificate of title in favor of the herein plaintiffs and appellants and their brother, Gavino Rodriguez, as owners pro indiviso and in equal shares free from any lien or encumbrance except those expressly provided by law. "Without special pronouncement as to the costs." The case is before us on petition for certiorari which was given due course, filed by defendant-appellee, Marcial Kasilag, now petitioner, against plaintiffs-appellants, Rafaela Rodriguez and others, now respondents. The burden of petitioner's case is condensed in the following assignments of error: The Honorable Court of Appeals erred: "I. In having interpreted that document Exhibit '1' is an absolute sale and declared it entirely null and void, and in not having interpreted and declared that it is a deed of combined mortgage and future sale which, if void as a contract for the future conveyance of the homestead in question is, however, valid as an equitable mortgage on the improvements thereof for the sum of P1,000 loaned by the petitioner Marcial Kasilag to the homestead owner Emiliana Ambrosio. "II. In holding that the petitioner was guilty of the violation of the public land law for having entered into said contract Exhibit '1'.

"III. In not giving probative value to the uncontradicted testimony of the petitioner Marcial Kasilag that he was expressly authorized by the homestead owner Emiliana Ambrosio to introduce improvements in said homestead. "IV. In not declaring that the possession by the petitioner Marcial Kasilag of said homestead and the introduction by him of improvements therein by virtue of the verbal agreement entered into after the execution of the original instrument of mortgage was in good faith, entitling him to be reimbursed of the actual value of improvements he introduced." Boiled down to the fundamentals, there are only two propositions which stand to be resolved in this appeal: (1) What is the legal nature of the agreement, Exhibit 1, entered into by and between the parties? and (2) Is Marcial Kasilag guilty of bad faith in entering upon the possession of the homestead, paying the land tax and introducing improvements thereon? The numerous adjudications in controversies of this nature will show that each case must be decided in the light of the attendant circumstances and the situation of the parties which, upon the whole, mark its character. However, for the purpose of ascertaining the manner and extent to which persons have intended to be bound by their written agreements, the safe criterion, the time honored test, is their intention which is intimately woven into the instrument itself. It is true that resort to extrinsic evidence is imperative when the contract is ambiguous and is susceptible of divergent interpretations; nevertheless, the primary obligation of the courts is to discover the intention of the contracting parties, as it is expressed by the language of the document itself. We are not authorized to make a contract for the parties. In the trial court as in the Court of Appeals, the discussion centered on the nature and validity of the document, Exhibit 1. This is the correct approach. The Court of Appeals, however, rejected the conclusion of the trial court that it is a deed of combined mortgage and sale, and ruled that it is an absolute deed of sale which is null and void in its entirety because it is banned by section 116, as amended of the Public Land Act. The ruling is now assailed by the petitioner. I share petitioner's view that the deed is not what it was construed to be by the Court of Appeals. From Article I to III thereof is a description of the homestead and the improvements existing thereon. By its Article IV the homesteader, Emiliana Ambrosio, "encumbers and hipothecates, by way of mortgage, only the improvements described in Articles II and III" under the conditions set out in Articles V, VI and VII. Its closing Articles VIII and IX, particularly relied upon by the Court of Appeals, speak, not of a present deed of absolute sale, but of one to be executed "upon the expiration of the period of time (41, years) stipulated in the mortgage" if "the mortgagor should fail to redeem this mortgage". In other words, the redemption of the mortgage by the payment of the loan may bring about the frustration of the contemplated sale, hence, to hold unqualifiedly that the whole of Exhibit 1, or even a part thereof, is an absolute deed of sale would be to do violence to the terms of the document itself. Still other tokens drive home the same conviction. The intimation by the Court of Appeals that the petitioner "know, therefore, that the land subject of the patent could not be alienated by express prohibition of law," is an argument that the petitioner could not have brazenly disregarded the law by intending Exhibit 1 to be an absolute deed of sale. Its further observation that "the stipulation under article VIII of the contract, Exhibit '1' . . . clearly indicates that there was nothing left to be done except the execution of the deed of absolute sale," is a concession that no such sale has yet been executed. Finally, it will be recalled that under Article VII of Exhibit 1, "within thirty (30) days after date of execution of this agreement the party of the first part shall file a motion before the Court of First Instance of Balanga, Bataan, P. I., requesting cancellation of homestead certificate of title No. 325 referred to in Article 1 hereof and the issuance, in lieu thereof, of a certificate of title under the provisions of Land Registration Act 496, as amended by Act 3901." And by its Article IX it provides "That in the event the contemplated motion under Article VII hereof is not approved by the Court, the foregoing contract of sale shall automatically become null and void." (Emphasis is mine.) We have nothing in the record to show that the required motion was filed within thirty days or thereafter, by Emiliana Ambrosio in life, or by her successors-in-interest after her death. Indeed, Homestead Certificate of Title No. 325, sought to be substituted by another through the said motion, still stands. It is, evident, therefore, that the projected sale has and may never come into being, because under Article IX of Exhibit 1, it became automatically null and void. This view, incidentally, precludes further consideration of the validity or invalidity of the sale clause of Exhibit 1, as it will be purely academic to dwell upon the nature and effect of a contract that has passed out of existence in the contemplation of the parties. Having reached the conclusion, upon its plain language and unequivocal import, that Exhibit 1 is essentially and fundamentally a mortgage upon the improvements found on the questioned homestead, with a conditional clause for the future sale of said homestead and improvements which has become a "dead twig" still attached to a living tree because the

condition has never been performed, I would, under Articles 1281 and 1283 of the Civil Code, be otherwise content in resting our decision of this aspect of the case on this interpretation. But I do not propose to so limit my inquiry in view of the fact that the Court of Appeals points to contemporaneous and subsequent circumstances, beyond the four corners of the document, Exhibit 1, allegedly revelatory of petitioner's concealed but evident intention to circumvent the law. I may state, at the outset, that these circumstances are fairly susceptible of legitimate explanations. The appealed decision could not conceive of a man, of petitioner's intelligence, who "would accept improvements valued at only P860 as security for the payment of a larger amount of P1,000." But we are concerned with an assessed valuation which is not always nor even frequently the value that it can command in the market. To ignore this is to live in monastic seclusion. The appealed decision would imply from the fact that petitioner subsequently paid the land taxes and from the further fact that Emiliana never paid stipulated interest on the one thousand-peso loan, that Exhibit 1 was meant to vest absolute title irretrievably in the petitioner. It could hardly be supposed at the time of the execution of Exhibit 1 that the homesteader would fail to make these payments, nor does it seem just to draw from these circumstances, induced by Emiliana's own neglect, deductions unfavorable to the petitioner. That the petitioner went upon the possession of the questioned property is not proof that he was even then already the would-be owner thereof, for as elsewhere stated, the said possession came practically at the suggestion of or at least with the consent of Emiliana Ambrosio as a result of her failure to live up to her part of the bargain. Finally, the Court of Appeals asked: "If the real purpose was to mortgage the improvements only as specified in article IV of the contract, why is it that in article VIII thereof it was provided that in case of failure to redeem the alleged mortgage the grantor would be required to execute a deed of absolute sale of the property described therein for the same amount of the mortgage in favor of the grantee, and not of 'the improvements only'?" The precaution which the petitioner took to have the sale clause of Exhibit I so phrased that the said sale would not be effected until after the expiration of the five- year period prohibited by law, at which time the alienation of the homestead would then have been perfectly legitimate, may not be without significance to show petitioner's respect for and intention to be on the side of the law. The very mention of the word "sale" in the document in question argues against any attempt at concealment, for if the said document was intended as a cover and cloak of an illegal alienation, then the reference to the contract of sale therein was illtimed and foolhardy. The question next at hand is whether or not the mortgage constituted upon the improvements of the homestead is valid. It is, under express provisions of section 116 of the Public Land Act, before 2nd after its amendment, reading pertinently that "the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations." I find no occasion to dispute this legislative policy however mistaken it may be. It is sufficient to observe that what the law permits may be done. Upon the other hand, I find no occasion to test the legality of the sale provisions of Exhibit 1 for, as I have heretofore said, this question is, in my opinion, moot. Moreover, the petitioner, technically, is barred from raising this question, as he did not appeal from and, therefore, abided by the decision of the trial court which outlawed this sale clause as violative of the provisions of section 116 of the Public Land Act. This part of the decision of the trial court was affirmed by the Court of Appeals when the latter struck down Exhibit 1 in its entirety and, even now, petitioner does not complain against the destruction of Exhibit 1 with respect to its sale clause. In other words, counsel for petitioner concedes all along that the said sale clause may be properly legislated out. As the mortgage provisions of Exhibit 1 are independent of and severable from the rest thereof, the same are perfectly enforceable. Where a part of the contract is perfectly valid and separable from the rest, the valid portion should not be avoided. (Ollendorff vs. Abrahamson, 38 Phil., 585.) The question yet to be answered is whether the petitioner's possession of the questioned homestead was in good faith so as to entitle him to reimbursement for improvements introduced upon the land. The basis of petitioner's possession was a verbal agreement with the original homesteader whereby, for failure of the latter to comply with her obligations to pay land taxes and stipulated interest on the loan, the former assumed the said obligations for the privilege of going into possession of the property, introducing improvements thereon, and thereafter being reimbursed for the value of such improvements. The petitioner did enter upon such possession, planted the land to fruit trees valued at P5,000, according to him, and P3,000, according to the trial judge. It should be stated, in passing, that the Court of Appeals was unable to belie this verbal agreement, although it was of the opinion "that the trial court erred in giving probative value to the testimony of the appellee with reference to the alleged verbal agreement". Its reason for the opinion is not because the testimony is untrue, but because even if it were true, "it only tends to corroborate the allegation that he acted in bad faith when he took possession of the property and made improvements thereon, because then he knew full well that the homestead owner could not enter into an agreement involving the future final and absolute alienation of the homestead in his favor." As the said opinion and the reason back of it does not involve a question of strict fact, it is in our power to inquire into its soundness. The weakness of the argument lies, first, in its (a) inconsistency and (b) in the misconception of the legal principle involved: inconsistency, because it considers entry of possession, payment of land tax as facts tending to show the real character of the transaction and as

evidencing bad faith on the part of the petitioner, but at the same time it improperly rejects the verbal agreement by which such facts are established. It is clear that we cannot directly reject the verbal agreement between the parties in so far as it is favorable to Ambrosio and indirectly reject it in so far as it is favorable to the petitioner. The misconception proceeds from the erroneous legal conclusion that, upon the facts, the good faith is atributable to the petitioner alone and that Ambrosio was not to be blamed for the prohibited alienation of the homestead, as I shall presently proceed to discuss. In holding that the petitioner was a possessor in bad faith, the decision sought to be reviewed first laid down the premise that such possession is banned by law at least for five years from the issuance of patent (section 116, Public Land Act), assumed that the petitioner had knowledge of such law, and then drew the conclusion that petitioner was aware of the illegality of his possession. We think that the assumption and conclusion are precipitate. As observed in the foregoing majority opinion-citing Manresa-knowledge of a legal provision does not necessarily mean knowledge of its true meaning and scope, or of the interpretation which the courts may place upon it. In this particular case, what section 116 of the Public Land Act prohibits is the "incumbrance or alienation" of land acquired thereunder within the period prescribed therein. We may concede, as assumed by the appealed decision, that the petitioner was cognizant of said section 116, but this is not saying that petitioner knew that his possession came under the phrase "incumbrance or alienation" prohibited by law, and that the petitioner, therefore, knew that his possession was illegal. The import of the phrase "incumbrance or alienation" is a subject upon which "men of reason may reasonably differ," in the same way that we ourselves have differed in the deliberation of this case. It is not correct to assume that the petitioner had knowledge of the illegality of his possession. The contrary assumption, namely, that petitioner had no idea of such illegality, would have been more in accord with the experience of everyday, for petitioner would not have invested money and labor in the land and assumed obligations incumbent upon the homesteader if he had even the least suspicion that all his efforts would count for nothing and would in the end entangle him in a mild scandal. As possession in bad faith does not necessarily mean possession illegal under the law, is being necessary that the possessor be aware of such illegality, it follows that the petitioner's possession of the homestead of the respondents was in good faith. (Art. 433, Civil Code.) "Good faith is always presumed, and the burden of proving bad faith on the part of the possessor rests upon the person alleging it" (article 434, Civil Code.) As a bona fide possessor, and it being unquestioned that the improvements introduced by him upon the land redounded to its benefit, the petitioner is by law entitled to be paid for the value of such improvements in the amount of P3,000, as found by the trial judge. "Useful expenditures shall be paid the possessor in good faith with the same right of retention, the person who has defeated him in his possession having the option of refunding the amount of such expenditures or paying him the increase in value which the thing has acquired by reason thereof." (Article 453, 2nd par., Civil Code). The reimbursement in this particular case is the more in order in view of the express undertaking of respondents' predecessor-in-interest to pay therefor. Even the equities of the case militate against the respondents and in favor of the petitioner. There is a concession that the petitioner's possession was neither imposed upon nor wrested from the homesteader; on the contrary, it came about by virtue of a mutual agreement whereby the said homesteader and the herein respondents were spared the burden of paying for land taxes and stipulated interest and extended the benefit of having their land improved on condition that they pay the value of such improvements upon redeeming the land. We also have uncontradicted fact that P400 of the one thousand-peso loan were given to the herein respondents and the balance kept by their mother. They may not reap and retain these benefits and at the same time repudiate and go back upon contractual obligations solemnly entered into. But let me grant that the contract, Exhibit 1, is one of absolute sale, as found by the Court of Appeals, what then? As the land could not be alienated for five years from the date of the issuance of the patent, the sale was illegal and void because it was entered into in violation of section 116 of the Public Land Act, as amended. By whom was the law violated? Certainly, not by Kasilag alone but by Ambrosio as well. Both are presumed to know the law, and we cannot justly charge Kasilag alone with that knowledge on the alleged reason that Kasilag is rich and Ambrosio is poor. Neither can we proceed on the bare assumption that because Exhibit 1 was written in English it was prepared by Kasilag as if he were the only English speaking person in the Province of Bataan where the document was executed. Are we already living in the midst of a communistic society that we shall have to incline invariably the balance in favor of a litigant because he happens to be poor and against the litigant who happens to be well-to-do, regardless of the merits of the case? And to this end, shall we, by a series of assumptions and deductions, impute to a party malice aforethought dishonesty and bad faith, in entering into a transaction made in the open sun, publicly recorded and whose effectiveness was even conditioned by the approval of a court of justice? If so, then I dare say that we have not profited by the admonition of Aristotle in his Metaphysics centuries ago that "justice is a virtue of the soul which discards party, friendship and sentiment and is therefore always represented as blind." There is a charm in rhetoric but its value in cool judicial reasoning is nil.

And if as we are confidently told we should relax the legal principle with reference to Ambrosio, because she was "poor and ignorant," I am reluctant to believe that she was ignorant of the condition against the alienation inserted in all homestead patents, and my knowledge of the Public Land Law, of the activities of the Department and bureau charged with the administration of public lands, gives me just the contrary impression. Every homestead patent contains that condition. Circulars and instructions and general information have been issued in pursuance with law. (Sec. 5, Act No. 2874; see also sec. 5, Commonwealth Act No. 141.) I must presume that the Government and its officials charged with the administration of public lands have complied with the law and their duties in this connection, and I cannot believe that Ambrosio, when she alienated the property, was unaware of the legal prohibition. Under the circumstances, then, it is reasonable to conclude that on the hypothesis that the document, Exhibit 1, was a contract of absolute sale between Kasilag and Ambrosio, both of them were guilty of infraction of the law. If this is correct, what is the legal situation of the parties? Justinian who, by his Corpus Juris Civiles, still speaks through practically all the civil codes of Continental Europe, considers both as having acted in good faith. "Realmente," bluntly observes Manresa, "si los dos que se encuentran en lucha sobre la propiedad han provocado el conflicto por su voluntad; a ciencia y paciencia del dueo del suelo, ante cuya vista las obras se han ejecutado, y con conciencia, por parte del que edifica o planta, de que el terreno no es suyo, no hay razon alguna que abone derecho preferente en favor de ninguno de los dos; deben, por tanto, tratarse como si los dos hubiesen obrado de buena fe; la mala fe del uno extingue y neutraliza, en justa reciprocidad, la del otro." (Manresa, Codigo Civil, segunda edicion Tomo III pag. 203.)Article 364 of our Civil Code then comes into play. "When there has been bad faith, not only on the part of the person who built, sewed, or planted on another's land, but also on the part of the owner of the latter, the rights of both shall be the same as if they had acted in good faith. Bad faith on the part of the owner is deemed to exist whenever the act has been done in his presence, with his knowledge and tolerance, and without opposition on his part." (Article 364, Civil Code; see also arts. 1303, 1306 ibid.) The codal section is evidently based upon the venerable maxim of equity that one who comes into equity must come with clean hands. A court which seeks to enforce on the part of the defendant uprightness, fairness, and conscientiousness also insists that, if relief is to be granted, it must be to a plaintiff whose conduct is not inconsistent with the standards he seeks to have applied to his adversary. Fundamenta justitiae sunt, ut ne cui noceatur, deinde ut communi serviatur. I therefore concur in the result. CONCEPCION, J., dissenting: In view of the findings of fact of the Court of Appeals, which are final according to law, I dissent from the majority opinion as to the legal denomination of the contract really entered into by the petitioner and the now deceased Emiliana Ambrosio. The facts according to the decision of the Court of Appeals are as follows: "On August 27, 1918, the deceased, Emiliana Ambrosio applied for the land in question as a homestead, now known as lot No. 285 of the Limay cadastral survey of Bataan, and the application was approved on September 10, 1919. A final proof was submitted on November 10, 1927 which was approved on October 17, 1929. The homestead patent No. 16074 and homestead certificate of title No. 325 were issued in favor of the applicant on June 11, 1931 which were re- corded on June 26, 1931 in the office of the register of deeds in accordance with the provisions of section 122 of ,Act 496. "On or about May 16, 1932, the homestead owner, Emiliana Ambrosio offered to sell the property to the defendant and appellee, Marcial Kasilag. The latter, upon examining her title found that it was a homestead patent and knew, therefore, that the land subject of the patent could not be alienated by express prohibition of law, so he devised a means by which the proposed sale might not appear in any document and had the patentee, Emiliana Ambrosio, execute a public instrument, Exhibit '1', purporting to be a mere mortgage of the improvements thereon consisting of four mango trees, fruit bearing; 110 hills of bamboo trees, 1 tamarind, and 6 bonga trees, with the assessed value of P860, in consideration of the sum of P1,000 alleged to have been loaned by the said Kasilag to the said patentee, Emiliana Ambrosio. It was expressly stipulated in that document that the aforementioned amount should be paid within four and a half years from the date of the instrument (May 16, 1932), the condition being that if she would fail to redeem the alleged mortgage at the expiration of the stipulated period, she would execute a deed of absolute sale of the property therein described for the same amount of the alleged mortgage (P1,000) including all unpaid interest at the rate of 12 per cent per annum in favor of the alleged mortgagee. It was further stipulated therein that the said Emiliana should pay all the taxes and assessment which might become due on the land and improvements during the term of the agreement and that within thirty days after the date of the execution thereof she should file a motion before the Court of First Instance of Bataan requesting the cancellation of the homestead certificate No. 325

above referred to and the issuance in lieu thereof a certificate of title under the provisions of the Land Registration Act 496, as amended by Act 3901. "The lot in question was originally declared for land tax purposes in the name of the homestead (owner) Emiliana Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax declaration was transferred in the name of the appellee, Marcial Kasilag, and on March 6, 1936 the assessed value was raised to P2,180. "Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land since the execution of the contract. "The evidence further discloses that the appellant entered upon the actual possession of the land and had been holding the same up to the present time, having planted various kinds of fruit trees valued according to him at P5,000, and collected the products thereof for his own exclusive benefit." Relying upon the foregoing facts, the majority contends that the contract executed by the parties was one of mortgage, as per Exhibit 1, with a promise to sell the land in question. I cannot hold to these rulings of the majority, because the nature of the contract of mortgage is inconsistent with the idea that the creditor should immediately enter upon the possession of the mortgaged land; that he should pay the land tax; that he should introduce improvements thereon, and that he should accept as security something whose values does not cover the amount of the loan sought to be secured, for in this case the supposed loan was P1,000, and what were mortgaged were only the improvements consisting of 4 mango trees, 110 hills of bamboo trees, 1 tamarind tree and 6 betelnut trees, assessed at P860. I believe that the contract which the parties intended to execute is a promise to sell the land, for which reason Ambrosio retained the right of ownership of the land and its improvements while the deed of the promised sale had not been executed. Under the terms of the deed Exhibit 1, Kasilag could not be considered the owner of the land, nor could he execute any act premised upon the assumption of ownership, nor could he alienate the same as he had no title to it. But the parties, in consideration of the fact that Kasilag paid in advance the price of the land and assumed the obligation to pay the tax thereon, which Ambrosio could not pay, agreed that Kasilag may enter upon the enjoyment of the land until the promise to sell is converted in fact into an absolute sale by the execution of the corresponding deed by Ambrosio. It was stipulated, however, that if the sale is not approved by the Court, Kasilag would collect the amount of P1,000 paid by him as a mortgage credit, with all the interest due and payable. Under these circumstances, the conclusion of law that Kasilag acted in bad faith is not supported by the established facts. Wherefore, the plaintiffs are bound to comply with the contract as heirs of Ambrosio, by executing in favor of Kasilag the deed of sale of the land, but should the sale, for any reason, be not approved, Kasilag may collect the amount of P1,000 with all the interests thereon, and may execute the judgment obtained by him upon the land and all its improvements, deducting, however, in his favor the value of the improvements which he introduced upon the land in good faith. In view of the foregoing, I am of the opinion that the decision of the Court of Appeals should be reversed and that another should be entered against the respondents, requiring them to execute the deed of sale of the land in favor of the petitioner, provided that if the sale, for any reason, be not approved by the court, the petitioner may execute his credit upon the land and all its improvements, after deducting the value of the improvements introduced by him upon the land. MORAN, J., dissenting: According to section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, "lands acquired under the free patent or homestead provisions shall not be subject to en- cumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period." About June 11, 1931, homestead patent No. 16074 was issued to Emiliana Ambrosio, now deceased. On May 16, 1932 Emiliana Ambrosio offered the sale of the said homestead to the herein petitioner, Marcial Kasilag, and in view of the abovequoted legal prohibition, the parties executed the document Exhibit 1, copied in the majority decision. The heirs of Emiliana Ambrosio filed a complaint for the annulment of the contract in the Court of First Instance of Bataan, and from the judgment rendered by said court an appeal was taken to the Court of Appeals, which held that the true contract between the parties is

one of absolute sale, wherefore, it is null and void under the already cited legal prohibition. Marcial Kasilag comes to this court on certiorari, and this Court reverses the decision of the Court of Appeals. The only question is as to the true contract between the parties at the time of the execution of the deed Exhibit 1: Kasilag contends that the contract is that set out in the document Exhibit 1, that is, a mortgage of the improvements of the homestead to secure a loan of one thousand pesos given to Emiliana Ambrosio; and the latter's heirs, in turn, contend that the contract is one of absolute sale of the homestead, wherefore, it is null and void. The findings of the Court of Appeals are as follows: "The pertinent facts as disclosed by the evidence of record are as follows: "On August 27, 1918 the deceased, Emiliana Ambrosio, applied for the land in question as a homestead, now known as lot No. 285 of the Limay cadastral survey of Bataan, and the application was approved on September 10, 1919. A final proof was submitted on November 10, 1927 which was approved on October 17, 1929. The homestead patent No. 16074 and homestead certificate of title No. 325 were issued in favor of the applicant on June 11, 1931 which were recorded on June 26, 1931 in the office of the register of deeds in accordance with the provisions of Section 122 of Act No. 496. "On or about May 16, 1932, the homestead owner Emiliana Ambrosio offered to sell the property to the defendant and appellee, Marcial Kasilag. The latter, upon examining her title found that its was a homestead patent and knew, therefore, that the land subject of the patent could not be alienated by express prohibition of law, so he devised means by which the proposed sale might not appear in any document and had the patentee, Emiliana Ambrosio, execute a public instrument, Exhibit 1, purporting to be a mere mortgage of the improvements thereon consisting of four mango trees, fruit bearing; one hundred ten hills of bamboo trees, one thousand and six bonga trees, with the assessed value of P860, in consideration of the sum of P1,000 alleged to have been loaned by the said Kasilag to the said patentee Emiliana Ambrosio. It was expressly stipulated in that document that the aforementioned amount should be paid within four and a half years from the date of the instrument (May 16, 1932), the condition being that if she failed to redeem the alleged mortgage at the expiration of the stipulated period, she would execute a deed of absolute sale of the property therein described for the same amount of the alleged mortgage (P1,000) including all unpaid interest at the rate of 12 per cent per annum in favor of the alleged mortgagee. It was further stipulated therein that the said Emiliana should pay all the taxes and assessment which might become due on the land and improvements during the term of the agreement and that within thirty days after the date of the execution thereof she should file a motion before the Court of First Instance of Bataan requesting the cancellation of the homestead certificate No. 325 above referred to and the issuance in lieu thereof of a certificate of title under the provisions of the Land Registration Act No. 496, as amended by Act No. 3901. "The lot in question was originally declared for land tax purposes in the name of the homestead owner, Emiliana Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax declaration was transferred in the name of the appellee, Marcial Kasilag, and on March 6, 1936 the assessed value was raised to P2,180. "Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land since the execution of the contract. "The evidence further discloses that the appellee entered upon the actual possession of the land and had been holding the same up to the present time, having planted various kinds of fruit trees valued according to him at P5,000, and collected the products thereof for his own exclusive benefit. "Construing the contract, Exhibit 1, in the light of all the foregoing facts and circumstances under which it was executed in relation to the subsequent acts of the contracting parties, we are led to the inescapable conclusion that their real intention was to execute an agreement of absolute sale of the homestead together with the improvements thereon. The stipulation concerning an alleged mortgage in the instrument is a mere devise to circumvent the law which expressly prohibits the alienation or encumbrance of the homestead during the period of five years from the date of the issuance of the homestead patent. (Sec. 116 of Act No. 2874 as amended by Act No. 3517.) "It is inconceivable, and, therefore, we refuse to believe that the appellee, Marcial Kasilag, being an intelligent man far above the average, would accept improvements valued at only P860 as security for the payment of a larger amount of P1,000, the alleged loan. We entertain no doubt that at the time the execution of the contract, Exhibit 1, the appellee knew that the homestead owner, Emiliana Ambrosio, a poor ignorant woman, was badly in need of money and that she was determined to dispose of and alienate definitely her homestead, as evidenced by the fact testified to by Gavino Rodriguez as witness for the

said appellee that she actually offered to sell the land to the latter. He also knew that she would not be able to pay back to him such a large amount with interest of 12 per cent per annum because she had no other income except what she would derive from the homestead. Under such circumstances, there is reason to believe that she was no longer concerned with the form in which the contract would be drawn, as long as she could obtain the amount of P1,000 which was agreeable to her as the price of the homestead she offered to sell to the appellee. This conclusion is supported in part by the subsequent action of Emiliana in not paying any interest on the alleged loan of P1,000 or the land taxes thereon since the execution of the contract and by the action of the appellee in declaring the land for tax purposes in his own name as owner thereof, notwithstanding that he had no interest in the land, as he alleged, except in the improvements only. "The contract of absolute sale was consummated, because the grantor, Emiliana, received full payment of the purchase price disguised as a loan of P1,000 and placed the grantee, Marcial Kasilag, in absolute possession and control of the land conveyed to him with all the improvements thereon. The stipulation under article VIII of the contract, Exhibit 1, to the effect that the grantor 'would execute a deed of absolute sale of the property herein described for the said amount of this mortgage including all unpaid interest at the rate of 12 per cent per annum in favor of the mortgagee,' clearly indicates that there was nothing left to be done except the execution of the deed of absolute sale, which is merely a matter of form in contracts of this nature, which was postponed until after the expiration of four and a half years because by that time the period of five years within which the property could not be alienated nor encumbered in any way, as provided by section 116 of Act No. 2874 as amended by Act No. 3517, supra, would have already expired. If the real purpose was to mortgage the improvements only as specified in article IV of the contract, why is it that in article VIII thereof it was provided that in case of failure to redeem the alleged mortgage the grantor would be required to execute a deed of absolute sale of the property described therein for the same amount of the mortgage in favor of the grantee, and not of 'the improvements only'? It is clear, therefore, that the real contract under Exhibit 1, was one of absolute sale and not a mortgage with future sale." In other words, although the document Exhibit 1 states that it is a mortgage of the improvements, with a stipulation regarding a future sale of the land in case of failure to comply with the mortgage obligations, in reality the true contract between the parties is one of absolute sale in the light of the circumstances of the case, among them the following: First. Emiliana Ambrosio offered the sale, not the mortgage, of her homestead to Marcial Kasilag, and it is a fact found established by the Court of Appeals that she was agreeable to the sum of one thousand pesos as the price of the sale offered by her. If this is so, it is unlikely that Kasilag would refuse the offer of sale of the homestead and would accept in lieu thereof a simple mortgage of the improvements, for the same sum of one thousand pesos; Second. In the deed it is stipulated that, if at the expiration of the period of four and a half years, the debtor should fail to redeem the mortgage, she would execute in favor of the creditor, Marcial Kasilag, a deed of absolute sale not only of the mortgaged improvements but also of the land for the same amount of the loan of one thousand pesos. This magic conversion of the mortgage of the improvements into an absolute sale of the land at the expiration of four and a half years and without any additional consideration can only mean that the two contracts are one and the same thing, and that the first has been availed of to go around the legal prohibition. The scheme is very obvious, and to make any attempt to reconcile it with good faith is simply to fall into it. The mortgage of the improvements could not have been intended because the supposed loan which it guaranteed was the same price of the stipulated sale to be later executed, and further because Kasilag knew, according to the findings of fact of the Court of Appeals, that Emiliana Ambrosio was a poor and ignorant woman who was not in a position to return the one thousand pesos; Third. Kasilag had always considered the contract as one of sale of the land and not as a mortgage of the improvements, because he put the tax declaration of the land in his name, paid the corresponding land tax, took possession of the land, received the fruits thereof for his exclusive use, and introduced thereon permanent improvements, one of them being a summer house, all of which were valued at about five thousand pesos. It is not an attribute of a contract of mortgage that the creditor should take possession of the mortgaged property, or that he should pay the taxes thereon. Kasilag would not spend five thousand pesos for permanent improvements if he knew that his possession was precarious. Fourth. In the document it is stipulated that the debtor would pay interest, but she did not pay any, and the alleged t mortgage was not foreclosed thereby, which shows that the stipulation was nothing but a ruse.

Fifth. The deed Exhibit 1 was drawn by Kasilag, because it is in English, and the other party is a poor and ignorant woman, wherefore, all doubts and uncertainties arising therefrom should be resolved against Kasilag. It is to be noted that in this document are phrases indicative of the real contract between the parties. For instance: in clause IV the word paid and not loaned is used in referring to the loan of one thousand pesos; and clause IX of the document states "the foregoing contract of sale". Under all these circumstances, the irresistible conclusion is that the real contract between the parties is an absolute sale, and that the contract of mortgage was made to appear in the document Exhibit 1 for the sole purpose of defeating the legal prohibition. Nevertheless, the majority of this Court, brushing aside the findings of fact made by the Court of Appeals without stating its reasons therefor, holds as to the document Exhibit 1, that "as the terms thereof are clear and leave no room for doubt, it should be interpreted according to the literal meaning of its clauses." I have already shown in speaking of the second circumstance, that the context itself of the document Exhibit 1 discloses strong tokens that the contract between the parties was one of sale and not of mortgage. Moreover, the rule relied upon by the majority is only applicable in the absence of any allegation that the document does not express the real contract between the parties. Under section 285, No. 1, of Act No. 190, a document, however clear its conditions may be, may and should be rejected when it is alleged and shown by evidence aliunde that it does not express the true intent of the parties. We have often considered a document, by its terms a contract of absolute sale, as one of mortgage because it has been so alleged and established by convincing oral evidence. (Cuyugan vs. Santos, 34 Phil., 100; Villa vs. Santiago, 38 Phil., 167; Laureano vs. Kilayco, 34 Phil., 148; Cuyugan vs. Santos, 39 Phil., 970; Rodriguez vs. Pamintuan, 37 Phil., 876; see also Manalo vs. Gueco, 42 Phil., 925; Gatmaitan vs. Nepomuceno, 42 Phil., 295.) The majority decision does not only pass over the findings of fact made by the Court of Appeals, but, further, gives weight to certain facts which said court finds not to have been established. For instance, we have the following passages from the majority decision: "One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana Ambrosio was unable to pay the stipulated interest as well as the tax on the land and its improvements. For this reason, she and the petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the land on condition that the latter would not collect the interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of the land, and would introduce improvements thereon. . . . . . This stipulation was verbally modified by the same parties after the expiration of one year, in the sense that the petitioner would take possession of the land and would benefit by the fruits thereof on condition that he would condone the payment of interest upon the loan and he would attend to the payment of the land tax. . . " These two paragraphs state as an established fact the supposed verbal contract between the parties which Kasilag tried to prove by his testimony. However, the Court of Appeals expressly held: "We believe, however, that the trial court erred in giving probative value to the testimony of the appellee (Marcial Kasilag) with reference to the alleged verbal agreement with the deceased, Emiliana Ambrosio, and based thereon the conclusion that the appellee acted in good faith." (Words in parenthesis are mine.) Rule 47, paragraph (b), of our Rules, provides expressly that in appeals to this court on certiorari, "only questions of law may be raised and must be distinctly set forth." And we have held in various decisions that in passing upon the legal conclusions of the Court of Appeals, we shall abide by the findings of fact of said court. I, moreover, find certain ambiguities in the majority decision, for while it states on the one hand that the verbal contract had for its purpose the "alteration of the mortgage contract clearly entered into, converting the latter into a contract of antichresis," (underscoring mine) thereby implying that the mortgage contract was abandoned by the parties and ceased to exist, in the dispositive part of its decision, the majority holds that the mortgage of the improvements is valid and binding, and gives to the respondents the right to "redeem the mortgage of the improvements by paying to the petitioner within three months the amount of P1,000 . . ." It, therefore, requires compliance with a contract that has ceased to exist. While on the one hand the majority states that the aforesaid verbal contract is one of antichresis and that it is void, on the other hand, it gives force thereto by holding that the interest on the loan of one thousand pesos is sufficiently "set off by the value of the fruits of the mortgaged improvements which the petitioner received." And, furthermore, why should the interest be set off against the fruits of the improvements only and not against those of the entire land? And if the verbal contract of

antichresis is void, why is Kasilag not required to render an accounting of the fruits of the land received by him which may exceed the total amount of interest, taxes and even the principal itself ? The majority states that Kasilag, in taking possession of the homestead, receiving its fruits and introducing improvements thereon did so under the void contract of antichresis, and did so in good faith as he was excusably unaware of the legal provision which prohibits the incumbrance of the homestead within the period of five years. Whether Kasilag was aware or unaware of the legal prohibition is again a factual question resolved by the Court of Appeals as follows: "the appellee (Marcial Kasilag) was also aware of these provisions which were incorporated in the homestead patent shown to him at the beginning of the transaction" (Words in parenthesis are mine). I do not understand how we can disturb this factual finding. I found, moreover, that in the majority decision it is ordered that, if the heirs of Emiliana Ambrosio cannot pay the value of the permanent improvements introduced by Marcial Kasilag, the latter may have the homestead by paying to them its price in the market. The improvements were appraised by the trial court at three thousand pesos, and as the heirs of Emiliana Ambrosio probably inherited nothing from the latter but poverty, they will eventually be unable to pay the said amount and, in the last analysis, will lose the homestead of their mother. The practical effect, therefore, of the majority decision is that the heirs of Emiliana Ambrosio will be deprived of the homestead by virtue of a void antichretic obligation contracted by her within the period of five years from the granting of the homestead. And this, at least, is in violation of the spirit of section 116 of the Homestead Act. I have other reasons which I need not set out to bring this dissent to a close. But before I conclude, I should like to state that the Homestead Act has been enacted for the welfare and protection of the poor. The law gives a needy citizen a piece of land where he may build a modest house for himself and family and plant what is necessary for subsistence and for the satisfaction of life's other needs. The right of the citizens to their homes and to the things necessary for their subsistence is as vital as the right to life itself. They have a right to live with a certain degree of comfort as become human beings, and the State which looks after the welfare of the people's happiness is under a duty to safeguard the satisfaction of this vital right. Moreover, a man with a home and a means of subsistence is a lover of peace and order and will profess affection for his country, whereas one without a home and in penury is not only a social parasite but also a dangerous element in the social order. The Homestead Act at once aims at the promotion of wholesome and happy citizenship and the wiping out of the germs of social discontent found everywhere. Considering the social and economic ends of the Homestead Act, the courts should exercise supreme care and strict vigilance towards faithful compliance with all its benign provisions and against the defeat, directly or indirectly, of its highly commendable purposes. And it is my firm conviction that where, as in the present case, a rich and clever man attempts to wrest a homestead granted to a poor and ignorant woman, the slightest tokens of illegality should be enough to move the courts to apply the strong arm of the law. I dissent from the majority decision and vote for the affirmance of the decision of the Court of Appeals. Avancea, C.J., concurs.

ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late WARREN Taylor GRAHAM, petitioner, vs. HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE, respondents. Agrava, Lucero & Gineta for petitioner. The Office of the Solicitor General for public respondents. SYLLABUS 1. TAXATION; NATIONAL INTERNAL REVENUE CODE; ESTATE TAX; SECOND ASSESSMENT OF LESSER AMOUNT DOES NOT CANCEL PREVIOUS ASSESSMENT WHICH HAS BECOME FINAL AND EXECUTORY. It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the Commissioner made it clear that "the aforesaid amount is considered provisional only based on the estate tax return filed subject to investigation by this Office for final determination of the correct estate tax due from the estate. Any amount that may be found due after said investigation will be assessed and collected later." It is illogical to suggest that a provisional second assessment of P72,948.87 can supersede an earlier assessment of P96,509.35 which had clearly become final and executory for failure to contest the assessment for six (6) years. 2. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; IGNORANCE OF THE LAW EXCUSES NO ONE FROM COMPLIANCE THEREWITH; APPLICABLE WITH EQUAL FORCE AND EFFECT ON TAX CASES; CASE AT BAR. The petitioner cannot be serious when he argues that the first assessment was invalid because the foreign lawyers who filed the return on which it was based were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused from compliance therewith because of their ignorance? If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws in our own country. A more obvious and shallow discrimination than that suggested by the petitioner is indeed difficult to find. 3. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; ISSUES WHICH HAD ATTAINED FINALITY CAN NO LONGER BE RAISED ANEW ON APPEAL; CASE AT BAR. In view of the finality of the first assessment, the petitioner cannot now raise the question of its validity before this Court any more than he could have done so before the Court of Tax Appeals. What the estate of the decedent should have done earlier, following the denial of its protest on July 7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it received notice of said denial. It was in such appeal that the petitioner could then have raised the first two issues he now raises without basis in the present petition. DECISION CRUZ, J p: What the petitioner presents as a rather complicated problem is in reality a very simple question from the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue to be resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred in dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action. Appeal from what? That indeed is the question. But first the facts. On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the Philippines, died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son, Ward Graham, filed an estate tax return on September 16, 1976, with the Philippine Revenue Representative in San Francisco, U.S.A. 2 On the basis of this return, the respondent Commissioner of Internal Revenue assessed the decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978. 3 This assessment was protested on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the estate. 4 The protest was denied by the Commissioner on July 7, 1978. 5 No further action was taken by the estate in pursuit of that protest. cdll Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit Court of Oregon. 6 Ward Graham, the designated executor, then appointed Ildefonso Elegado, the herein petitioner, as his attorney-in-fact for the allowance of the will in the Philippines. 7

Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First Instance of Rizal. 8 The will was allowed on December 18, 1978, with the petitioner as ancillary administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on June 4, 1980. 10 On the basis of this second return, the Commissioner imposed an assessment on the estate in the amount of P72,948.87. 11 This was protested on behalf of the estate by the Agrava, Lucero and Gineta Law Office on August 13, 1980. 12 While this protest was pending, the Commissioner filed in the probate proceedings a motion for the allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978. 13 He said that this liability had not yet been paid although the assessment had long become final and executory. The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980, against the second assessment of P72,948.87. 14 On this understanding, he filed on September 15, 1981, a petition for review with the Court of Tax Appeals challenging the said assessment. 15 The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was filed during a delay of 195 days) and in the end instead cancelled the protested assessment in a letter to the decedent's estate dated March 31, 1982. 16 This cancellation was notified to the Court of Tax Appeals in a motion to dismiss on the ground that the protest had become moot and academic. 17 The motion was granted and the petition dismissed on April 25, 1984. 18 The petitioner then came to this Court on certiorari under Rule 45 of the Rules of Court. The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the decedent should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks should be assessed as of the time of the owner's death or six months thereafter; and (3) whether the appeal filed with the respondent court should be considered moot and academic. We deal first with the third issue as it is decisive of this case. In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue wrote as follows: Estate of WARREN T. GRAHAM c/o Mr. ILDEFONSO O. ELEGADO Ancillary Administrator Philex Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila Sir: This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a resident of Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of demand were issued by this Bureau. One is for the amount of P96,509.35 based on the first return filed, and the other in the amount of P72,948.87, based on the second return filed. It appears that the first assessment of P96,509.35 was issued on February 9, 1978 on the basis of the estate tax return filed on September 16, 1976. The said assessment was, however, protested in a letter dated March 7, 1978 but was denied on July 7, 1978. Since no appeal was made within the regulatory period, the same has become final. In view thereof, it is requested that you settle the aforesaid assessment for P96,509.35 within fifteen (15) days upon receipt thereof to the Receivable Accounts Division, this Bureau, BIR National Office Building, Diliman, Quezon City. The assessment for P72,949.57 dated July 3, 1980, referred to above is hereby cancelled. Very truly yours,

(SGD.) RUBEN B. ANCHETA Acting Commissioner 19 It is obvious from the express cancellation of the second assessment for P72,948.87 that the petitioner had been deprived of a cause of action as it was precisely from this assessment that he was appealing. In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3, 1980, was "premature" since the protest to the assessment had not yet been resolved. 20 As a matter of fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The respondent court was on surer ground, however, when it followed with the finding that the said cancellation had rendered the petition moot and academic. There was really no more assessment to review. cdphil The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the second assessment did not have the effect of automatically reviving the first. Moreover, the first assessment is not binding on him because it was based on a return filed by foreign lawyers who had no knowledge of our tax laws or access to the Court of Tax Appeals. The petitioner is clutching at straws. It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the Commissioner made it clear that "the aforesaid amount is considered provisional only based on the estate tax return filed subject to investigation by this Office for final determination of the correct estate tax due from the estate. Any amount that may be found due after said investigation will be assessed and collected later. 21 It is illogical to suggest that a provisional assessment can supersede an earlier assessment which had clearly become final and executory. The second contention is no less flimsy. The petitioner cannot be serious when he argues that the first assessment was invalid because the foreign lawyers who filed the return on which it was based were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused from compliance therewith because of their ignorance? If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws in our own country. A more obvious and shallow discrimination than that suggested by the petitioner is indeed difficult to find. But the most compelling consideration in this case is the fact that the first assessment is already final and executory and can no longer be questioned at this late hour. The assessment was made on February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no further action was taken thereon by the decedent's estate, there is no question that the assessment has become final and executory. In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion with the probate court, the respondent Commissioner stressed that "in a letter dated January 29, 1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that they have paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313 Buendia Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although he added that such payment had not yet been received. 22 This letter was an acknowledgment by the estate of the validity and finality of the first assessment. Significantly, it has not been denied by the petitioner. llcd In view of the finality of the first assessment, the petitioner cannot now raise the question of its validity before this Court any more than he could have done so before the Court of Tax Appeals. What the estate of the decedent should have done earlier, following the denial of its protest on July 7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it received notice of said denial. It was in such appeal that the petitioner could then have raised the first two issues he now raises without basis in the present petition. The question of whether or not the shares of stock left by the decedent should be considered conjugal property or belonging to him alone is immaterial in these proceedings. So too is the time at which the assessment of these shares of stock should have been made by the BIR. These questions were not resolved by the Court of Tax Appeals because it had no jurisdiction to

act on the petitioner's appeal from an assessment that had already been cancelled. The assessment being no longer controversial or renewable, there was no justification for the respondent court to rule on the petition except to dismiss it. If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate tax, as the petitioner insists, that error can no longer be rectified because the original assessment has long become final and executory. If that assessment was not challenged on time and in accordance with the prescribed procedure, that error for error it was was committed not by the respondents but by the decedent's estate itself which the petitioner represents. So how can he now complain? WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered. Narvasa, Grio-Aquino and Medialdea, JJ., concur. Gancayco, J., is on leave.

EN BANC [G.R. No. 180236. January 17, 2012.] GEMMA P. CABALIT, petitioner, vs. COMMISSION ON AUDIT-REGION VII, respondent. [G.R. No. 180341. January 17, 2012.] FILADELFO S. APIT, petitioner, vs. COMMISSION ON AUDIT (COA) Legal and Adjudication, Region VII, respondent. [G.R. No. 180342. January 17, 2012.] LEONARDO G. OLAIVAR, in his capacity as Transportation Regulation Officer and Officer-In-Charge of Land Transportation Office, Jagna, Province of Bohol, petitioner, vs. HON. PRIMO C. MIRO, in his official capacity as Deputy Ombudsman for Visayas, EDGARDO G. CANTON, in his capacity as Graft Investigator Officer, ATTY. ROY L. URSAL, in his capacity as Regional Cluster Director, Commission on Audit, Cebu City, respondents. DECISION VILLARAMA, JR., J p: Three employees from the Land Transportation Office (LTO) in Jagna, Bohol were found by the Ombudsman to have perpetrated a scheme to defraud the government of proper motor vehicle registration fees. They now seek in the present consolidated petitions a judgment from this Court annulling the January 18, 2006 Decision 1 and September 21, 2007 Resolution 2 of the Court of Appeals (CA) which affirmed with modification the Decision 3 of the Office of the OmbudsmanVisayas dismissing them from government service. cDAEIH The facts follow: On September 4, 2001, the Philippine Star News, a local newspaper in Cebu City, reported that employees of the LTO in Jagna, Bohol, are shortchanging the government by tampering with their income reports. 4 Accordingly, Regional Director Ildefonso T. Deloria of the Commission on Audit (COA) directed State Auditors Teodocio D. Cabalit and Emmanuel L. Coloma of the Provincial Revenue Audit Group to conduct a fact-finding investigation. A widespread tampering of official receipts of Motor Vehicle Registration during the years 1998, 1999, 2000 and 2001 was then discovered by the investigators. According to the investigators, a total of 106 receipts were tampered. The scheme was done by detaching the Plate Release and Owner's copy from the set of official receipts then typing thereon the correct details corresponding to the vehicle registered, the owner's name and address, and the correct amount of registration fees. The other copies, consisting of the copies for the Collector, EDP, Record, Auditor, and Regional Office, meanwhile, were typed on to make it appear that the receipts were issued mostly for the registration of motorcycles with much lower registration charges. Incorrect names and/or addresses were also used on said file copies. The difference between the amounts paid by the vehicle owners and the amounts appearing on the file copies were then pocketed by the perpetrators, and only the lower amounts appearing on the retained duplicate file copies were reported in the Report of Collections. 5 According to State Auditors Cabalit and Coloma in their Joint-Affidavit, the scheme was perpetrated by LTO employees Leonardo G. Olaivar, Gemma P. Cabalit, Filadelfo S. Apit and Samuel T. Alabat, and resulted in an unreported income totaling P169,642.50. 6 aCTcDH On August 8, 2002, COA Regional Cluster Director Atty. Roy L. Ursal reported the tampering of official receipts to Deputy Ombudsman Primo C. Miro. 7 According to Atty. Ursal, the irregularity is penalized under Article 217, in relation to Article 171 of the Revised Penal Code; 8 Section 3 (e) 9 of the Anti-Graft and Corrupt Practices Act, and likewise violates Republic Act (R.A.) No. 6713. 10 In a Joint Evaluation Report, Graft Investigators Pio R. Dargantes and Virginia Palanca-Santiago found grounds to conduct a preliminary investigation. 11 Hence, a formal charge for dishonesty was filed against Olaivar, Cabalit, Apit and Alabat before the Office of the Ombudsman-Visayas, and the parties were required to submit their counter-affidavits. In compliance, Olaivar, Cabalit, Apit and Alabat submitted separate counter-affidavits, all essentially denying knowledge and responsibility for the anomalies. As to Olaivar, he maintained that the receipts were typed outside his office by regular and

casual employees. He claimed that the receipts were presented to him only for signature and he does not receive the payment when he signs the receipts. 12 Cabalit, for her part, claimed that her duty as cashier was to receive collections turned over to her and to deposit them in the Land Bank of the Philippines in Tagbilaran City. She claimed that she was not even aware of any anomaly in the collection of fees prior to the investigation. 13 As to Apit, he admitted that he countersigned the official receipts, but he too denied being aware of any illegal activity in their office. He claimed that upon being informed of the charge, he verified the photocopies of the tampered receipts and was surprised to find that the signatures above his name were falsified. 14 Alabat, meanwhile, claimed he did not tamper, alter or falsify any public document in the performance of his duties. He insisted that the initial above his name on Official Receipt No. 64056082 was Apit's, while the initial on Official Receipt No. 64056813 was that of Olaivar. 15 TASCEc During the hearing before Graft Investigator Pio R. Dargantes, State Auditor Cabalit testified on the investigation he conducted in the LTO in Jagna, Bohol. He testified that he was furnished with the owner's and duplicate copies of the tampered receipts. Upon comparison of the Owner's copy with the Collector or Record's copy, he noticed that the amounts shown in the original copies were much bigger than those appearing in the file copies. State Auditor Cabalit also declared that the basis for implicating Olaivar is the fact that his signature appears in all the 106 tampered official receipts and he signed as verified correct the Report of Collections, which included the tampered receipts. As to Apit and Cabalit, they are the other signatories of the official receipts. 16 In some official receipts, the Owner's copy is signed by F.S. Apit as Computer Evaluator, G.P. Cabalit as Cashier, and Leonardo Olaivar as District Head, but their signatures do not appear on the file copies. 17 On February 12, 2004, the Office of the Ombudsman-Visayas directed 18 the parties to submit their position papers pursuant to Administrative Order (A.O.) No. 17, dated September 7, 2003, amending the Rules of Procedure of the Office of the Ombudsman. 19 No cross-examination of State Auditor Cabalit was therefore conducted. SIEHcA Complying with the above Order, the COA submitted its position paper on March 18, 2004. Olaivar, Cabalit and Apit, for their part, respectively submitted their position papers on April 29, 2004, March 18, 2004 and March 15, 2004. In its position paper, 20 the COA pointed out that the signatures of Cabalit, Apit and Olaivar were indispensable to the issuance of the receipts. As to Olaivar, the original receipts bear his signature, thereby showing that he approved of the amounts collected for the registration charges. However, when the receipts were reported in the Report of Collections, the data therein were already tampered reflecting a much lesser amount. By affixing his signature on the Report of Collections and thereby attesting that the entries therein were verified by him as correct, he allowed the scheme to be perpetrated. As to Cabalit, the COA pointed out that as cashier, Cabalit's signature on the receipts signified that she received the registration fees. The correct amounts should have therefore appeared in the Report of Collections, but as already stated, lesser amounts appeared on the Report of Collections, which she prepares. In the same manner, Apit, as computer evaluator, also signed the subject receipts allowing the irregularities to be perpetuated. In his position paper, 21 Olaivar meanwhile insisted that he had no participation in the anomalies. He stressed that his only role in the issuance of the official receipts was to review and approve the applications, and that he was the last one to sign the official receipts. He argued that based on the standard procedure for the processing of applications for registration of motor vehicles, it could be deduced that there was a concerted effort or conspiracy among the evaluator, typist and cashier, while he was kept blind of their modus operandi. Cabalit, for her part, questioned the findings of the investigators. She stressed in her position paper 22 that had there been a thorough investigation of the questioned official receipts, the auditors would have discovered that the signatures appearing above her name were actually that of Olaivar. She outlined the standard paper flow of a regular transaction at the LTO. It begins when the registrant goes to the computer evaluator for the computation of applicable fees and proceeds to the cashier for payment. After paying, the typist will prepare the official receipts consisting of seven (7) copies, which will be routed to the computer evaluator, to the district head, and to the cashier for signature. The cashier retains the copies for the EDP, Regional Office, Collector and Auditor, while the remaining copies (Owner, Plate Release and Record's copy) will be forwarded to the Releasing Section for distribution and release. HEScID Cabalit insisted that on several occasions Olaivar disregarded the standard procedure and directly accommodated some registrants who were either his friends or referred to him by friends. For such transactions, Olaivar assumes the functions of computer evaluator, typist and cashier, as he is the one who computes the fees, receives the payment and prepares the official

receipts. Olaivar would then remit the payment to her. As the cashier, she has to accept the payment as a matter of ministerial duty. Apit, meanwhile, stressed in his position paper 23 that the strokes of the signatures appearing above his typewritten name on the official receipts are different, indicating that the same are falsified. He also explained that considering that the LTO in Jagna issues around 20 to 25 receipts a day, he signed the receipts relying on the faith that his co-employees had properly accomplished the forms. He also pointed out that Engr. Dano admitted signing accomplished official receipts when the regular computer encoder is out, which just shows that other personnel could have signed above the name of F.S. Apit. IHAcCS On May 3, 2004, the Office of the Ombudsman-Visayas rendered judgment finding petitioners liable for dishonesty for tampering the official receipts to make it appear that they collected lesser amounts than they actually collected. The OMBVisayas ruled: WHEREFORE, premises considered, it is hereby resolved that the following respondents be found guilty of the administrative infraction of DISHONESTY and accordingly be meted out the penalty of DISMISSAL FROM THE SERVICE with the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service: 1. Leonardo G. Olaivar Transportation Regulation Officer II/Office[r]-In-Charge LTO Jagna District Office Jagna, Bohol; 2. 3. Gemma P. Cabalit Cashier II, LTO Jagna District Office Jagna, Bohol; Filadelpo S. Apit Clerk II, LTO Jagna District Office Jagna, Bohol;

The complaint against respondent Samuel T. Alabat, presently the Head of Apprehension Unit of the Tagbilaran City LTO, is hereby DISMISSED for insufficiency of evidence. The complaint regarding the LTO official receipts/MVRRs issued by the LTO Jagna District Office, which are not covered by original copies are hereby DISMISSED without prejudice to the filing of the appropriate charges upon the recovery of the original copies thereof. SO DECIDED. 24 IaHAcT Petitioners sought reconsideration of the decision, but their motions were denied by the Ombudsman. 25 Thus, they separately sought recourse from the CA. On January 18, 2006, the CA promulgated the assailed Decision in CA-G.R. SP. Nos. 86256, 86394 and 00047. The dispositive portion of the CA decision reads, WHEREFORE, premises considered, judgment is hereby rendered by US DISMISSING the instant consolidated petitions. The assailed decision of the Office of the Ombudsman-Visayas dated May 3, 2004 in OMB-V-A-02-0415-H is hereby AFFIRMED with a modification that petitioner Olaivar be held administratively liable for gross neglect of duty which carries the same penalty as provided for dishonesty. No pronouncement as to costs. SO ORDERED. 26 According to the CA, it was unbelievable that from 1998 to 2001, Cabalit and Apit performed vital functions by routinely signing LTO official receipts but did not have any knowledge of the irregularity in their office. With regard to Olaivar, the CA believed that the tampering of the receipts could have been avoided had he exercised the required diligence in the performance of his duties. Thus, the CA held him liable merely for gross neglect of duty. ACTEHI Petitioners sought reconsideration of the CA decision, but the CA denied their motions. 27 Hence, they filed the instant petitions before the Court.

In her petition, petitioner Cabalit argues that I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE OMBUDSMAN'S DECISION WHICH GAVE RETROACTIVE EFFECT TO THE NEW ADMINISTRATIVE ORDER NO. 17 IN THE PROCEEDINGS BELOW THAT WAS ALREADY ON TRIAL IN ACCORDANCE WITH ADMINISTRATIVE ORDER NO. 07. II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT ALTHOUGH THE TRIAL TYPE HEARING UNDER ADMINISTRATIVE ORDER NO. 07 DID NOT PUSH THRU, PETITIONER WAS STILL ACCORDED HER RIGHT TO DUE PROCESS UNDER THE SUMMARY PROCEEDINGS PURSUANT TO ADMINISTRATIVE ORDER NO. 17. III. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT AFFIRMED THE DECISION OF RESPONDENT OMBUDSMAN DESPITE HAVING FAILED TO MAKE A CATEGORICAL RULING ON THE ISSUE OF WHETHER THE QUESTIONED AND/OR FORGED SIGNATURES BELONG TO PETITIONER GEMMA CABALIT. IV. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE DOCTRINAL VALUE AND/OR APPLICABILITY OF THE TAPIADOR VS. OFFICE OF THE OMBUDSMAN (G.R. [129124], MARCH 15, 2002) RULING HERE IN THE INSTANT CASE. 28 Meanwhile, Apit interposes the following arguments in his petition: I. ONLY. II. THE COURT OF APPEALS ERRED IN LIMITING ADMINISTRATIVE DUE PROCESS AS AN OPPORTUNITY TO BE HEARD

THE COURT OF APPEALS ERRED IN CONCLUDING THE DEFENSE OF PETITIONER APIT AS MERE DENIAL.

III. THE COURT OF APPEALS ERRED IN ITS FAILURE TO RECONSIDER THE EVIDENCE THAT CLEARLY PROVED THAT THE SIGNATURES ABOVE THE NAME OF PETITIONER APIT IN THE QUESTIONED RECEIPTS ARE ALL FORGED AND FALSIFIED. 29 As for Olaivar, he assails the CA Decision raising the following issues: I. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER LEONARDO G. OLAIVAR IS ADMINISTRATIVELY LIABLE FOR GROSS NEGLIGENCE. acCETD II. WHETHER THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT PETITIONER LEONARDO G. OLAIVAR WAS NOT DENIED DUE PROCESS WHEN THE OFFICE OF THE OMBUDSMAN VISAYAS FOUND HIM GUILTY FOR DISHONESTY AND METED OUT THE PENALTY OF DISMISSAL FROM SERVICE. 30 On January 15, 2008, said petitions were consolidated. 31 Essentially, the issues for our resolution are: (1) whether there was a violation of the right to due process when the hearing officer at the Office of the Ombudsman-Visayas adopted the procedure under A.O. No. 17 notwithstanding the fact that the said amendatory order took effect after the hearings had started; and (2) whether Cabalit, Apit and Olaivar are administratively liable. As regards the first issue, petitioners claim that they were denied due process of law when the investigating lawyer proceeded to resolve the case based only on the affidavits and other evidence on record without conducting a formal hearing. They lament that the case was submitted for decision without giving them opportunity to present witnesses and cross-examine the witnesses against them. Petitioner Cabalit also argues that the Office of the Ombudsman erred in applying the amendments under A.O. No. 17 to the trial of the case, which was already in progress under the old procedures under A.O. No. 07. She stressed that under A.O. No. 07, she had the right to choose whether to avail of a formal investigation or to submit the case for resolution on the basis of the evidence on record. Here, she was not given such option and was merely required to submit her position paper. Petitioners' arguments deserve scant consideration.

Suffice to say, petitioners were not denied due process of law when the investigating lawyer proceeded to resolve the case based on the affidavits and other evidence on record. Section 5 (b) (1) 32 Rule 3, of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O. No. 17, plainly provides that the hearing officer may issue an order directing the parties to file, within ten days from receipt of the order, their respective verified position papers on the basis of which, along with the attachments thereto, the hearing officer may consider the case submitted for decision. It is only when the hearing officer determines that based on the evidence, there is a need to conduct clarificatory hearings or formal investigations under Section 5 (b) (2) and Section 5 (b) (3) that such further proceedings will be conducted. But the determination of the necessity for further proceedings rests on the sound discretion of the hearing officer. As the petitioners have utterly failed to show any cogent reason why the hearing officer's determination should be overturned, the determination will not be disturbed by this Court. We likewise find no merit in their contention that the new procedures under A.O. No. 17, which took effect while the case was already undergoing trial before the hearing officer, should not have been applied. SCEHaD The rule in this jurisdiction is that one does not have a vested right in procedural rules. In Tan, Jr. v. Court of Appeals, 33 the Court elucidated: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. Nor is the retroactive application of procedural statutes constitutionally objectionable. The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws. It has been held that "a person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. (Emphasis supplied.) While the rule admits of certain exceptions, such as when the statute itself expressly or by necessary implication provides that pending actions are excepted from its operation, or where to apply it would impair vested rights, petitioners failed to show that application of A.O. No. 17 to their case would cause injustice to them. Indeed, in this case, the Office of the Ombudsman afforded petitioners every opportunity to defend themselves by allowing them to submit counter-affidavits, position papers, memoranda and other evidence in their defense. Since petitioners have been afforded the right to be heard and to defend themselves, they cannot rightfully complain that they were denied due process of law. Well to remember, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. It is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. More often, this opportunity is conferred through written pleadings that the parties submit to present their charges and defenses. 34 But as long as a party is given the opportunity to defend his or her interests in due course, said party is not denied due process. 35 Neither is there merit to Cabalit's assertion that she should have been investigated under the "old rules of procedure" of the Office of the Ombudsman, and not under the "new rules." In Marohomsalic v. Cole, 36 we clarified that the Office of the Ombudsman has only one set of rules of procedure and that is A.O. No. 07, series of 1990, as amended. There have been various amendments made thereto but it has remained, to date, the only set of rules of procedure governing cases filed in the Office of the Ombudsman. Hence, the phrase "as amended" is correctly appended to A.O. No. 7 every time it is invoked. A.O. No. 17 is just one example of these amendments. But did the CA correctly rule that petitioners Cabalit and Apit are liable for dishonesty while petitioner Olaivar is liable for gross neglect of duty? Cabalit argues that the CA erred in affirming the decision of the Ombudsman finding her liable for dishonesty. She asserts that it was not established by substantial evidence that the forged signatures belong to her. Meanwhile, Apit contends that the CA erred in not considering evidence which proves that the signatures appearing above his name are falsified. However, we note that both Cabalit and Apit raise essentially factual issues which are not proper in petitions filed under Rule 45. Settled jurisprudence dictates that subject to a few exceptions, only questions of law may be brought before the Court via a petition for review on certiorari. In Diokno v. Cacdac, 37 the Court held: IEAaST

. . . [T]he scope of this Court's judicial review of decisions of the Court of Appeals is generally confined only to errors of law, and questions of fact are not entertained. We elucidated on our fidelity to this rule, and we said: Thus, only questions of law may be brought by the parties and passed upon by this Court in the exercise of its power to review. Also, judicial review by this Court does not extend to a reevaluation of the sufficiency of the evidence upon which the proper . . . tribunal has based its determination. (Emphasis supplied.) It is aphoristic that a re-examination of factual findings cannot be done through a petition for review on certiorari under Rule 45 of the Rules of Court because this Court is not a trier of facts; it reviews only questions of law. The Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the proceedings below. 38 Here, the CA affirmed the findings of fact of the Office of the Ombudsman-Visayas which are supported by substantial evidence such as affidavits of witnesses and copies of the tampered official receipts. 39 The CA found that a perusal of the questioned receipts would easily reveal the discrepancies between the date, name and vehicle in the Owner's or Plate Release copies and the File, Auditor, and Regional Office copies. It upheld the factual findings of the Ombudsman that petitioners Cabalit and Apit tampered with the duplicates of the official receipts to make it appear that they collected a lesser amount. Their participation was found to have been indispensable as the irregularities could not have been committed without their participation. They also concealed the misappropriation of public funds by falsifying the receipts. Now, superior courts are not triers of facts. When the findings of fact of the Ombudsman are supported by substantial evidence, it should be considered as conclusive. 40 This Court recognizes the expertise and independence of the Ombudsman and will avoid interfering with its findings absent a finding of grave abuse of discretion. 41 Hence, being supported by substantial evidence, we find no reason to disturb the factual findings of the Ombudsman which are affirmed by the CA. As for Olaivar, he insists that the CA erred in holding him administratively liable for gross negligence when he relied to a reasonable extent and in good faith on the actions of his subordinates in the preparation of the applications for registration. He questions the appellate court's finding that he failed to exercise the required diligence in the performance of his duties. While as stated above, the general rule is that factual findings of the CA are not reviewable by this Court, we find that Olaivar's case falls in one of the recognized exceptions laid down in jurisprudence since the CA's findings regarding his liability are premised on the supposed absence of evidence but contradicted by the evidence on record. 42 The Office of the Ombudsman-Visayas found Olaivar administratively liable for dishonesty while the CA ruled that he may not be held liable for dishonesty supposedly for lack of sufficient evidence. The CA ruled that there was no substantial evidence to show that Olaivar participated in the scheme, but the tampering of the official receipts could have been avoided had he exercised the required diligence in the performance of his duties as officer-in-charge of the Jagna District Office. Thus, the CA found him liable only for gross neglect of duty. This, however, is clear error on the part of the CA. For one, there is clear evidence that Olaivar was involved in the anomalies. Witness Joselito Taladua categorically declared in his affidavit 43 that he personally paid Olaivar the sum of P2,675 for the renewal of registration of a jeep for which he was issued Official Receipt No. 47699853. Much to his dismay, Taladua later found out that his payment was not reflected correctly in the Report of Collections, and that the vehicle was deemed unregistered for the year 2000. HSCATc More, Cabalit pointed to Olaivar as the person behind the anomaly in the LTO-Jagna District Office. She narrated in her position paper that on several times, Olaivar directly accommodated some registrants and assumed the functions of computer evaluator, typist and cashier, and computed the fees, received payment and prepared the official receipts for those transactions. She also revealed that Olaivar would ask her for unused official receipts and would later return the duplicate copies to her with the cash collections. Later, he would verify the Report of Collections as correct. 44 Likewise, Motor Vehicle Inspector Engr. Lowell A. Dano confirmed that in several instances, he witnessed Olaivar type the data himself in the official receipts even if they have a typist in the office to do the job. Engr. Dano added that after typing, Olaivar personally brought the accomplished official receipts for him (Engr. Dano) to sign. 45 Moreover, Jacinto Jalop, the records officer of the LTO in Jagna, Bohol, illustrated how the official receipts were tampered. He disclosed that the correct charges were typed in the Owner's copy and the Plate Release copy of the official receipts, but a

much lower charge and an incorrect address were indicated in the other copies. He asserted that Olaivar was responsible for tampering the official receipts. 46 Neglect of duty implies only the failure to give proper attention to a task expected of an employee arising from either carelessness or indifference. 47 However, the facts of this case show more than a failure to mind one's task. Rather, they manifest that Olaivar committed acts of dishonesty, which is defined as the concealment or distortion of truth in a matter of fact relevant to one's office or connected with the performance of his duty. It implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity, or integrity in principle. 48 Hence, the CA should have found Olaivar liable for dishonesty. But be that as it may, still, the CA correctly imposed the proper penalty upon Olaivar. Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, dishonesty, like gross neglect of duty, is classified as a grave offense punishable by dismissal even if committed for the first time. 49 Under Section 58, 50 such penalty likewise carries with it the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from reemployment in the government service. EcTDCI One final note. Cabalit contends that pursuant to the obiter in Tapiador v. Office of the Ombudsman, 51 the Office of the Ombudsman can only recommend administrative sanctions and not directly impose them. However, in Office of the Ombudsman v. Masing, 52 this Court has already settled the issue when we ruled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory. We held, We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that "the Ombudsman's order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory." Implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held 'While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend . . . removal, suspension, demotion . . ." of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 6770.' (emphasis supplied.) 53 Subsequently, in Ledesma v. Court of Appeals, 54 and Office of the Ombudsman v. Court of Appeals, 55 the Court upheld the Ombudsman's power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault in the exercise of its administrative disciplinary authority. In Office of the Ombudsman v. Court of Appeals, we held that the exercise of such power is well founded in the Constitution and R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, thus: The Court further explained in Ledesma that the mandatory character of the Ombudsman's order imposing a sanction should not be interpreted as usurpation of the authority of the head of office or any officer concerned. This is because the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and in Republic Act No. 6770 intended that the implementation of the order be coursed through the proper officer. Consequently in Ledesma, the Court affirmed the appellate court's decision which had, in turn, affirmed an order of the Office of the Ombudsman imposing the penalty of suspension on the erring public official. 56 The duty and privilege of the Ombudsman to act as protector of the people against the illegal and unjust acts of those who are in the public service emanate from no less than the 1987 Constitution. Section 12 of Article XI thereof states: Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. In addition, Section 15 (3) of R.A. No. 6770, provides:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: xxx xxx xxx

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. DHcEAa xxx xxx xxx

Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all administrative complaints: SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) (2) (3) (4) (5) (6) Are contrary to law or regulation; Are unreasonable, unfair, oppressive or discriminatory; Are inconsistent with the general course of an agency's functions, though in accordance with law; Proceed from a mistake of law or an arbitrary ascertainment of facts; Are in the exercise of discretionary powers but for an improper purpose; or Are otherwise irregular, immoral or devoid of justification.

In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His power is not limited merely to receiving, processing complaints, or recommending penalties. He is to conduct investigations, hold hearings, summon witnesses and require production of evidence and place respondents under preventive suspension. This includes the power to impose the penalty of removal, suspension, demotion, fine, or censure of a public officer or employee. 57 The provisions in R.A. No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. 58 Thus, it is settled that the Office of the Ombudsman can directly impose administrative sanctions. We find it worthy to state at this point that public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. 59 WHEREFORE, the petitions for review on certiorari are DENIED. The assailed Decision dated January 18, 2006 and Resolution dated September 21, 2007 of the Court of Appeals in CA-G.R. SP. Nos. 86256, 86394 and 00047 are AFFIRMED with MODIFICATION. Petitioner Leonardo G. Olaivar is held administratively liable for DISHONESTY and meted the penalty of dismissal from the service as well as the accessory penalties inherent to said penalty. With costs against petitioners. AHDacC SO ORDERED.

Corona, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Abad, Perez, Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ., concur. Brion, J., is on official leave.

SECOND DIVISION [G.R. No. 187512. June 13, 2012.] REPUBLIC OF THE PHILIPPINES, petitioner, vs. YOLANDA CADACIO GRANADA, respondent. DECISION SERENO, J p: This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009 1 and 3 April 2009 2 issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial Court (RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of respondent. TIEHDC In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric Philippines, an electronics company in Paraaque where both were then working. The two eventually got married at the Manila City Hall on 3 March 1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada. Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to seek employment. Yolanda claimed that from that time, she had not received any communication from her husband, notwithstanding efforts to locate him. Her brother testified that he had asked the relatives of Cyrus regarding the latter's whereabouts, to no avail. After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530. On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead. ADSTCI On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to prove her well-founded belief that he was already dead. However, in an Order dated 29 June 2007, the RTC denied the motion. Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41, Section 2 (a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no jurisdiction over the appeal. She argued that her Petition for Declaration of Presumptive Death, based on Article 41 of the Family Code, was a summary judicial proceeding, in which the judgment is immediately final and executory and, thus, not appealable. In its 23 January 2009 Resolution, the appellate court granted Yolanda's Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino, 3 the CA ruled that a petition for declaration of presumptive death under Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is immediately final and executory upon notice to the parties. TacADE Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution dated 3 April 2009. 4 Hence, the present Rule 45 Petition. Issues 1. Whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and, hence, is not subject to ordinary appeal 2. Whether the CA seriously erred in affirming the RTC's grant of the Petition for Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent presented Our Ruling 1. On whether the CA seriously erred

in dismissing the Petition on the ground that the Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and, hence, is not subject to ordinary appeal EHSIcT In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTC's grant of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family Code. Citing Republic v. BermudezLorino, 5 the appellate court noted that a petition for declaration of presumptive death for the purpose of remarriage is a summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately final and executory upon notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing. We affirm the CA ruling. Article 41 of the Family Code provides: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. TAcDHS For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Underscoring supplied.) Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding "as provided for" under the Family Code. Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family Law." Subsumed thereunder are Articles 238 and 247, which provide: Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. AaCTcI xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory. Further, Article 253 of the Family Code reads: ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for declaration of presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino, 6 the Republic likewise appealed the CA's affirmation of the RTC's grant of respondent's Petition for Declaration of Presumptive Death of her absent spouse. The Court therein held that it was an error for the Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to wit: ECSaAc In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are "immediately final and executory." xxx xxx xxx

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTC's decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground. Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic v. BermudezLorino, additionally opined that what the OSG should have filed was a petition for certiorari under Rule 65, not a petition for review under Rule 45. HaTDAE In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent Decision of the Court in Republic v. Jomoc, 7 issued a few months later. In Jomoc, the RTC granted respondent's Petition for Declaration of Presumptive Death of her absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under the Rules of Court, 8 a record on appeal is required to be filed when appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for declaration of death or absence under Rule 72, Section 1 (m), expressly falls under the category of special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable her to contract a subsequent valid marriage, petitioner's action was a summary proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was not a special proceeding, petitioner was not required to file a record on appeal when it appealed the RTC Decision to the CA. aTEHCc We do not agree with the Republic's argument that Republic v. Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the characteristics of a summary proceeding under the Family Code. In contrast, the Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a vehicle for questioning the trial court's Decision in a summary proceeding for declaration of presumptive death under Article 41 of the Family Code was intended "to set the records straight and for the future guidance of the bench and the bar." At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango: 9 This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings under the Family Code and accordingly, refine our previous decisions thereon. IEAHca Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code: ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.) DEICHc In plain text, Article 247 in Chapter 2 of the same title reads: ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. From the decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal. IDASHa In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court. Evidently then, the CA did not commit any error in dismissing the Republic's Notice of Appeal on the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondent's spouse was immediately final and executory and, hence, not subject to ordinary appeal. 2. On whether the CA seriously erred

in affirming the RTC's grant of the Petition for Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent had presented aDCIHE Petitioner also assails the RTC's grant of the Petition for Declaration of Presumptive Death of the absent spouse of respondent on the ground that she had not adduced the evidence required to establish a well-founded belief that her absent spouse was already dead, as expressly required by Article 41 of the Family Code. Petitioner cites Republic v. Nolasco, 10 United States v. Biasbas 11 and Republic v. Court of Appeals and Alegro 12 as authorities on the subject. In Nolasco, petitioner Republic sought the reversal of the CA's affirmation of the RTC's grant of respondent's Petition for Declaration of Presumptive Death of his absent spouse, a British subject who left their home in the Philippines soon after giving birth to their son while respondent was on board a vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the ground that respondent was not able to establish his "well-founded belief that the absentee is already dead," as required by Article 41 of the Family Code. In ruling thereon, this Court recognized that this provision imposes more stringent requirements than does Article 83 of the Civil Code. 13 The Civil Code provision merely requires either that there be no news that the absentee is still alive; or that the absentee is generally considered to be dead and is believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision prescribes a "well-founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted. As noted by the Court in that case, the four requisites for the declaration of presumptive death under the Family Code are as follows: DHcESI

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code; 2. 3. 4. That the present spouse wishes to remarry; That the present spouse has a well-founded belief that the absentee is dead; and That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

In evaluating whether the present spouse has been able to prove the existence of a "well-founded belief" that the absent spouse is already dead, the Court in Nolasco cited United States v. Biasbas, 14 which it found to be instructive as to the diligence required in searching for a missing spouse. In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the whereabouts of his first wife, considering his admission that that he only had a suspicion that she was dead, and that the only basis of that suspicion was the fact of her absence. TCaADS Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA ruling affirming the RTC's grant of the Petition for Declaration of Presumptive Death of the absent spouse on the ground that the respondent therein had not been able to prove a "well-founded belief" that his spouse was already dead. The Court reversed the CA, granted the Petition, and provided the following criteria for determining the existence of a "well-founded belief" under Article 41 of the Family Code: For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde en motivos racionales." TAHIED Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions, competence [sic] evidence on the ultimate question of his death. The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse. (Footnotes omitted, underscoring supplied.) aCITEH Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus from the latter's relatives, these relatives were not presented to corroborate Diosdado's testimony. In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were, she would have sought information from the Taiwanese Consular Office or assistance from other government agencies in Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these omissions. The Republic's arguments are well-taken. Nevertheless, we are constrained to deny the Petition. The RTC ruling on the issue of whether respondent was able to prove her "well-founded belief" that her absent spouse was already dead prior to her filing of the Petition to declare him presumptively dead is already final and can no longer be

modified or reversed. Indeed, "[n]othing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law." 15 DSAICa WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED. SO ORDERED.

SECOND DIVISION [G.R. No. 190102. July 11, 2012.] ACCENTURE, INC., petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent. DECISION SERENO, J p: This is a Petition filed under Rule 45 of the 1997 Rules of Civil Procedure, praying for the reversal of the Decision of the Court of Tax Appeals En Banc (CTA En Banc) dated 22 September 2009 and its subsequent Resolution dated 23 October 2009. 1 IASTDE Accenture, Inc. (Accenture) is a corporation engaged in the business of providing management consulting, business strategies development, and selling and/or licensing of software. 2 It is duly registered with the Bureau of Internal Revenue (BIR) as a Value Added Tax (VAT) taxpayer or enterprise in accordance with Section 236 of the National Internal Revenue Code (Tax Code). 3 On 9 August 2002, Accenture filed its Monthly VAT Return for the period 1 July 2002 to 31 August 2002 (1st period). Its Quarterly VAT Return for the fourth quarter of 2002, which covers the 1st period, was filed on 17 September 2002; and an Amended Quarterly VAT Return, on 21 June 2004. 4 The following are reflected in Accenture's VAT Return for the fourth quarter of 2002: 5 Purchases Amount Input VAT 12,312,722.00 64,789,507.90 P1,231,272.20 6,478,950.79

Domestic Purchases Capital Goods Domestic Purchases Goods other than capital Goods Domestic Purchases Services Total Input Tax Zero-rated Sales Total Sales P9,355,809.80 P316,113,513.34 P335,640,544.74

16,455,868.10

1,645,586.81

Accenture filed its Monthly VAT Return for the month of September 2002 on 24 October 2002; and that for October 2002, on 12 November 2002. These returns were amended on 9 January 2003. Accenture's Quarterly VAT Return for the first quarter of 2003, which included the period 1 September 2002 to 30 November 2002 (2nd period), was filed on 17 December 2002; and the Amended Quarterly VAT Return, on 18 June 2004. The latter contains the following information: 6 IcCATD Purchases Amount Input VAT 80,765,294.10 P8,076,529.41

Domestic Purchases Capital Goods Domestic Purchases Goods other than capital Goods Domestic Purchases Services

132,820,541.70 13,282,054.17

63,238,758.00

6,323,875.80

Total Input Tax Zero-rated Sales Total Sales

P27,682,459.38 P545,686,639.18 P572,880,982.68

The monthly and quarterly VAT returns of Accenture show that, notwithstanding its application of the input VAT credits earned from its zero-rated transactions against its output VAT liabilities, it still had excess or unutilized input VAT credits. These VAT credits are in the amounts of P9,355,809.80 for the 1st period and P27,682,459.38 for the 2nd period, or a total of P37,038,269.18. 7 Out of the P37,038,269.18, only P35,178,844.21 pertained to the allocated input VAT on Accenture's "domestic purchases of taxable goods which cannot be directly attributed to its zero-rated sale of services." 8 This allocated input VAT was broken down to P8,811,301.66 for the 1st period and P26,367,542.55 for the 2nd period. 9 The excess input VAT was not applied to any output VAT that Accenture was liable for in the same quarter when the amount was earned or to any of the succeeding quarters. Instead, it was carried forward to petitioner's 2nd Quarterly VAT Return for 2003. 10 Thus, on 1 July 2004, Accenture filed with the Department of Finance (DoF) an administrative claim for the refund or the issuance of a Tax Credit Certificate (TCC). The DoF did not act on the claim of Accenture. Hence, on 31 August 2004, the latter filed a Petition for Review with the First Division of the Court of Tax Appeals (Division), praying for the issuance of a TCC in its favor in the amount of P35,178,844.21. DaScCH The Commissioner of Internal Revenue (CIR), in its Answer, 11 argued thus: 1. The sale by Accenture of goods and services to its clients are not zero-rated transactions.

2. Claims for refund are construed strictly against the claimant, and Accenture has failed to prove that it is entitled to a refund, because its claim has not been fully substantiated or documented. In a 13 November 2008 Decision, 12 the Division denied the Petition of Accenture for failing to prove that the latter's sale of services to the alleged foreign clients qualified for zero percent VAT. 13 In resolving the sole issue of whether or not Accenture was entitled to a refund or an issuance of a TCC in the amount of P35,178,844.21, 14 the Division ruled that Accenture had failed to present evidence to prove that the foreign clients to which the former rendered services did business outside the Philippines. 15 Ruling that Accenture's services would qualify for zerorating under the 1997 National Internal Revenue Code of the Philippines (Tax Code) only if the recipient of the services was doing business outside of the Philippines, 16 the Division cited Commissioner of Internal Revenue v. Burmeister and Wain Scandinavian Contractor Mindanao, Inc. (Burmeister) 17 as basis. Accenture appealed the Division's Decision through a Motion for Reconsideration (MR). 18 In its MR, it argued that the reliance of the Division on Burmeister was misplaced 19 for the following reasons: TcDIaA 1. The issue involved in Burmeister was the entitlement of the applicant to a refund, given that the recipient of its service was doing business in the Philippines; it was not an issue of failure of the applicant to present evidence to prove the fact that the recipient of its services was a foreign corporation doing business outside the Philippines. 20 2. Burmeister emphasized that, to qualify for zero-rating, the recipient of the services should be doing business outside the Philippines, and Accenture had successfully established that. 21 3. Having been promulgated on 22 January 2007 or after Accenture filed its Petition with the Division, Burmeister cannot be made to apply to this case. 22 Accenture also cited Commissioner of Internal Revenue v. American Express (Amex) 23 in support of its position. The MR was denied by the Division in its 12 March 2009 Resolution. 24

Accenture appealed to the CTA En Banc. There it argued that prior to the amendment introduced by Republic Act No. (R.A.) 9337, 25 there was no requirement that the services must be rendered to a person engaged in business conducted outside the Philippines to qualify for zero-rating. The CTA En Banc agreed that because the case pertained to the third and the fourth quarters of taxable year 2002, the applicable law was the 1997 Tax Code, and not R.A. 9337. 26 Still, it ruled that even though the provision used in Burmeister was Section 102 (b) (2) of the earlier 1977 Tax Code, the pronouncement therein requiring recipients of services to be engaged in business outside the Philippines to qualify for zero-rating was applicable to the case at bar, because Section 108 (B) (2) of the 1997 Tax Code was a mere reenactment of Section 102 (b) (2) of the 1977 Tax Code. The CTA En Banc concluded that Accenture failed to discharge the burden of proving the latter's allegation that its clients were foreign-based. 27 Resolute, Accenture filed a Petition for Review with the CTA En Banc, but the latter affirmed the Division's Decision and Resolution. 28 A subsequent MR was also denied in a Resolution dated 23 October 2009. TcDAHS Hence, the present Petition for Review 29 under Rule 45. In a Joint Stipulation of Facts and Issues, the parties and the Division have agreed to submit the following issues for resolution: 1. Whether or not Petitioner's sales of goods and services are zero-rated for VAT purposes under Section 108(B)(2)(3) of the 1997 Tax Code. 2. Whether or not petitioner's claim for refund/tax credit in the amount of P35,178,884.21 represents unutilized input VAT paid on its domestic purchases of goods and services for the period commencing from 1 July 2002 until 30 November 2002. 3. Whether or not Petitioner has carried over to the succeeding taxable quarter(s) or year(s) the alleged unutilized input VAT paid on its domestic purchases of goods and services for the period commencing from 1 July 2002 until 30 November 2002, and applied the same fully to its output VAT liability for the said period. 4. Whether or not Petitioner is entitled to the refund of the amount of P35,178,884.21, representing the unutilized input VAT on domestic purchases of goods and services for the period commencing from 1 July 2002 until 30 November 2002, from its sales of services to various foreign clients. 5. Whether or not Petitioner's claim for refund/tax credit in the amount of P35,178,884.21, as alleged unutilized input VAT on domestic purchases of goods and services for the period covering 1 July 2002 until 30 November 2002 are duly substantiated by proper documents. 30 AcHEaS For consideration in the present Petition are the following issues: 1. Should the recipient of the services be "doing business outside the Philippines" for the transaction to be zero-rated under Section 108 (B) (2) of the 1997 Tax Code? 2. Has Accenture successfully proven that its clients are entities doing business outside the Philippines?

Recipient of services must be doing business outside the Philippines for the transactions to qualify as zerorated. Accenture anchors its refund claim on Section 112 (A) of the 1997 Tax Code, which allows the refund of unutilized input VAT earned from zero-rated or effectively zero-rated sales. The provision reads: SEC. 112. Refunds or Tax Credits of Input Tax.

(A) Zero-Rated or Effectively Zero-Rated Sales. Any VAT-registered person, whose sales are zero-rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except transitional input tax, to the extent that such input tax has not been applied against output tax: Provided, however, That in the case of zero-rated sales under Section 106(A)(2)(a)(1), (2) and (B) and Section 108 (B)(1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP): Provided, further, That where the taxpayer is engaged in zero-rated or effectively zero-rated sale and also in taxable or exempt sale of goods of properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of sales. IEHaSc Section 108 (B) referred to in the foregoing provision was first seen when Presidential Decree No. (P.D.) 1994 31 amended Title IV of P.D. 1158, 32 which is also known as the National Internal Revenue Code of 1977. Several Decisions have referred to this as the 1986 Tax Code, even though it merely amended Title IV of the 1977 Tax Code. Two years thereafter, or on 1 January 1988, Executive Order No. (E.O.) 273 33 further amended provisions of Title IV. E.O. 273 by transferring the old Title IV provisions to Title VI and filling in the former title with new provisions that imposed a VAT. The VAT system introduced in E.O. 273 was restructured through Republic Act No. (R.A.) 7716. 34 This law, which was approved on 5 May 1994, widened the tax base. Section 3 thereof reads: SECTION 3. Section 102 of the National Internal Revenue Code, as amended, is hereby further amended to read as follows: CAaSED "SEC. 102. xxx xxx Value-added tax on sale of services and use or lease of properties. . . . xxx

"(b) Transactions subject to zero-rate. The following services performed in the Philippines by VAT-registered persons shall be subject to 0%: "(1) Processing, manufacturing or repacking goods for other persons doing business outside the Philippines which goods are subsequently exported, where the services are paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP). "(2) Services other than those mentioned in the preceding sub-paragraph, the consideration for which is paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP)." Essentially, Section 102 (b) of the 1977 Tax Code as amended by P.D. 1994, E.O. 273, and R.A. 7716 provides that if the consideration for the services provided by a VAT-registered person is in a foreign currency, then this transaction shall be subjected to zero percent rate. The 1997 Tax Code reproduced Section 102 (b) of the 1977 Tax Code in its Section 108 (B), to wit: (B) Transactions Subject to Zero Percent (0%) Rate. The following services performed in the Philippines by VATregistered persons shall be subject to zero percent (0%) rate. IEaCDH (1) Processing, manufacturing or repacking goods for other persons doing business outside the Philippines which goods are subsequently exported, where the services are paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); (2) Services other than those mentioned in the preceding paragraph, the consideration for which is paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); . . . . On 1 November 2005, Section 6 of R.A. 9337, which amended the foregoing provision, became effective. It reads:

SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows: "SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties.

(B) Transactions Subject to Zero Percent (0%) Rate. The following services performed in the Philippines by VATregistered persons shall be subject to zero percent (0%) rate: (1) Processing, manufacturing or repacking goods for other persons doing business outside the Philippines which goods are subsequently exported, where the services are paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); "(2) Services other than those mentioned in the preceding paragraph rendered to a person engaged in business conducted outside the Philippines or to a nonresident person not engaged in business who is outside the Philippines when the services are performed, the consideration for which is paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); . . . ." (Emphasis supplied) ACcTDS The meat of Accenture's argument is that nowhere does Section 108 (B) of the 1997 Tax Code state that services, to be zerorated, should be rendered to clients doing business outside the Philippines, the requirement introduced by R.A. 9337. 35 Required by Section 108 (B), prior to the amendment, is that the consideration for the services rendered be in foreign currency and in accordance with the rules of the Bangko Sentral ng Pilipinas (BSP). Since Accenture has complied with all the conditions imposed in Section 108 (B), it is entitled to the refund prayed for. In support of its claim, Accenture cites Amex, in which this Court supposedly ruled that Section 108 (B) reveals a clear intent on the part of the legislators not to impose the condition of being "consumed abroad" in order for the services performed in the Philippines to be zero-rated. 36 The Division ruled that this Court, in Amex and Burmeister, did not declare that the requirement that the client must be doing business outside the Philippines can be disregarded, because this requirement is expressly provided in Article 108 (2) of the Tax Code. 37 ITScAE Accenture questions the Division's application to this case of the pronouncements made in Burmeister. According to petitioner, the provision applied to the present case was Section 102 (b) of the 1977 Tax Code, and not Section 108 (B) of the 1997 Tax Code, which was the law effective when the subject transactions were entered into and a refund was applied for. In refuting Accenture's theory, the CTA En Banc ruled that since Section 108 (B) of the 1997 Tax Code was a mere reproduction of Section 102 (b) of the 1977 Tax Code, this Court's interpretation of the latter may be used in interpreting the former, viz.: In the Burmeister case, the Supreme Court harmonized both Sections 102(b)(1) and 102(b)(2) of the 1977 Tax Code, as amended, pertaining to zero-rated transactions. A parallel approach should be accorded to the renumbered provisions of Sections 108(B)(2) and 108(B)(1) of the 1997 NIRC. This means that Section 108(B)(2) must be read in conjunction with Section 108(B)(1). Section 108(B)(2) requires as follows: a) services other than processing, manufacturing or repacking rendered by VAT registered persons in the Philippines; and b) the transaction paid for in acceptable foreign currency duly accounted for in accordance with BSP rules and regulations. The same provision made reference to Section 108(B)(1) further imposing the requisite c) that the recipient of services must be performing business outside of Philippines. Otherwise, if both the provider and recipient of service are doing business in the Philippines, the sale transaction is subject to regular VAT as explained in the Burmeister case . . . . TDCcAE xxx xxx xxx

Clearly, the Supreme Court's pronouncements in the Burmeister case requiring that the recipient of the services must be doing business outside the Philippines as mandated by law govern the instant case. 38 Assuming that the foregoing is true, Accenture still argues that the tax appeals courts cannot be allowed to apply to Burmeister this Court's interpretation of Section 102 (b) of the 1977 Tax Code, because the Petition of Accenture had already been filed before the case was even promulgated on 22 January 2007, 39 to wit:

. . . . While the Burmeister case forms part of the legal system and assumes the same authority as the statute itself, however, the same cannot be applied retroactively against the Petitioner because to do so will be prejudicial to the latter. 40 The CTA en banc is of the opinion that Accenture cannot invoke the non-retroactivity of the rulings of the Supreme Court, whose interpretation of the law is part of that law as of the date of its enactment. 41 We rule that the recipient of the service must be doing business outside the Philippines for the transaction to qualify for zerorating under Section 108 (B) of the Tax Code. DIECTc This Court upholds the position of the CTA en banc that, because Section 108 (B) of the 1997 Tax Code is a verbatim copy of Section 102 (b) of the 1977 Tax Code, any interpretation of the latter holds true for the former. Moreover, even though Accenture's Petition was filed before Burmeister was promulgated, the pronouncements made in that case may be applied to the present one without violating the rule against retroactive application. When this Court decides a case, it does not pass a new law, but merely interprets a preexisting one. 42 When this Court interpreted Section 102 (b) of the 1977 Tax Code in Burmeister, this interpretation became part of the law from the moment it became effective. It is elementary that the interpretation of a law by this Court constitutes part of that law from the date it was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the interpreted law carried into effect. 43 HCTaAS Accenture questions the CTA's application of Burmeister, because the provision interpreted therein was Section 102 (b) of the 1977 Tax Code. In support of its position that Section 108 of the 1997 Tax Code does not require that the services be rendered to an entity doing business outside the Philippines, Accenture invokes this Court's pronouncements in Amex. However, a reading of that case will readily reveal that the provision applied was Section 102 (b) of the 1977 Tax Code, and not Section 108 of the 1997 Tax Code. As previously mentioned, an interpretation of Section 102 (b) of the 1977 Tax Code is an interpretation of Section 108 of the 1997 Tax Code, the latter being a mere reproduction of the former. This Court further finds that Accenture's reliance on Amex is misplaced. We ruled in Amex that Section 102 of the 1977 Tax Code does not require that the services be consumed abroad to be zerorated. However, nowhere in that case did this Court discuss the necessary qualification of the recipient of the service, as this matter was never put in question. In fact, the recipient of the service in Amex is a nonresident foreign client. The aforementioned case explains how the credit card system works. The issuance of a credit card allows the holder thereof to obtain, on credit, goods and services from certain establishments. As proof that this credit is extended by the establishment, a credit card draft is issued. Thereafter, the company issuing the credit card will pay for the purchases of the credit card holders by redeeming the drafts. The obligation to collect from the card holders and to bear the loss in case they do not pay rests on the issuer of the credit card. cCaATD The service provided by respondent in Amex consisted of gathering the bills and credit card drafts from establishments located in the Philippines and forwarding them to its parent company's regional operating centers outside the country. It facilitated in the Philippines the collection and payment of receivables belonging to its Hong Kong-based foreign client. The Court explained how the services rendered in Amex were considered to have been performed and consumed in the Philippines, to wit: Consumption is "the use of a thing in a way that thereby exhausts it." Applied to services, the term means the performance or "successful completion of a contractual duty, usually resulting in the performer's release from any past or future liability . . . ." The services rendered by respondent are performed or successfully completed upon its sending to its foreign client the drafts and bills it has gathered from service establishments here. Its services, having been performed in the Philippines, are therefore also consumed in the Philippines. 44 SIcCTD The effect of the place of consumption on the zero-rating of the transaction was not the issue in Burmeister. Instead, this Court addressed the squarely raised issue of whether the recipient of services should be doing business outside the Philippines for the transaction to qualify for zero-rating. We ruled that it should. Thus, another essential condition for qualification for zero-

rating under Section 102 (b) (2) of the 1977 Tax Code is that the recipient of the business be doing that business outside the Philippines. In clarifying that there is no conflict between this pronouncement and that laid down in Amex, we ruled thus: . . . . As the Court held in Commissioner of Internal Revenue v. American Express International, Inc. (Philippine Branch), the place of payment is immaterial, much less is the place where the output of the service is ultimately used. An essential condition for entitlement to 0% VAT under Section 102 (b) (1) and (2) is that the recipient of the services is a person doing business outside the Philippines. In this case, the recipient of the services is the Consortium, which is doing business not outside, but within the Philippines because it has a 15-year contract to operate and maintain NAPOCOR's two 100-megawatt power barges in Mindanao. (Emphasis in the original) 45 In Amex we ruled that the place of performance and/or consumption of the service is immaterial. In Burmeister, the Court found that, although the place of the consumption of the service does not affect the entitlement of a transaction to zero-rating, the place where the recipient conducts its business does. THCSAE Amex does not conflict with Burmeister. In fact, to fully understand how Section 102 (b) (2) of the 1977 Tax Code and consequently Section 108 (B) (2) of the 1997 Tax Code was intended to operate, the two aforementioned cases should be taken together. The zero-rating of the services performed by respondent in Amex was affirmed by the Court, because although the services rendered were both performed and consumed in the Philippines, the recipient of the service was still an entity doing business outside the Philippines as required in Burmeister. That the recipient of the service should be doing business outside the Philippines to qualify for zero-rating is the only logical interpretation of Section 102 (b) (2) of the 1977 Tax Code, as we explained in Burmeister: This can only be the logical interpretation of Section 102 (b) (2). If the provider and recipient of the "other services" are both doing business in the Philippines, the payment of foreign currency is irrelevant. Otherwise, those subject to the regular VAT under Section 102 (a) can avoid paying the VAT by simply stipulating payment in foreign currency inwardly remitted by the recipient of services. To interpret Section 102 (b) (2) to apply to a payer-recipient of services doing business in the Philippines is to make the payment of the regular VAT under Section 102 (a) dependent on the generosity of the taxpayer. The provider of services can choose to pay the regular VAT or avoid it by stipulating payment in foreign currency inwardly remitted by the payer-recipient. Such interpretation removes Section 102 (a) as a tax measure in the Tax Code, an interpretation this Court cannot sanction. A tax is a mandatory exaction, not a voluntary contribution. ECaScD xxx xxx xxx

Further, when the provider and recipient of services are both doing business in the Philippines, their transaction falls squarely under Section 102 (a) governing domestic sale or exchange of services. Indeed, this is a purely local sale or exchange of services subject to the regular VAT, unless of course the transaction falls under the other provisions of Section 102 (b). Thus, when Section 102 (b) (2) speaks of "[s]ervices other than those mentioned in the preceding subparagraph," the legislative intent is that only the services are different between subparagraphs 1 and 2. The requirements for zero-rating, including the essential condition that the recipient of services is doing business outside the Philippines, remain the same under both subparagraphs. (Emphasis in the original) 46 Lastly, it is worth mentioning that prior to the promulgation of Burmeister, Congress had already clarified the intent behind Sections 102 (b) (2) of the 1977 Tax Code and 108 (B) (2) of the 1997 Tax Code amending the earlier provision. R.A. 9337 added the following phrase: "rendered to a person engaged in business conducted outside the Philippines or to a nonresident person not engaged in business who is outside the Philippines when the services are performed." Accenture has failed to establish that the recipients of its services do business outside the Philippines. Accenture argues that based on the documentary evidence it presented, 47 it was able to establish the following circumstances: DCASIT

1. The records of the Securities and Exchange Commission (SEC) show that Accenture's clients have not established any branch office in which to do business in the Philippines. 2. For these services, Accenture bills another corporation, Accenture Participations B.V. (APB), which is likewise a foreign corporation with no "presence in the Philippines." 3. Only those not doing business in the Philippines can be required under BSP rules to pay in acceptable currency for their purchase of goods and services from the Philippines. Thus, in a domestic transaction, where the provider and recipient of services are both doing business in the Philippines, the BSP cannot require any party to make payment in foreign currency. 48 Accenture claims that these documentary pieces of evidence are supported by the Report of Emmanuel Mendoza, the Courtcommissioned Independent Certified Public Accountant. He ascertained that Accenture's gross billings pertaining to zerorated sales were all supported by zero-rated Official Receipts and Billing Statements. These documents show that these zerorated sales were paid in foreign exchange currency and duly accounted for in the rules and regulations of the BSP. 49 In the CTA's opinion, however, the documents presented by Accenture merely substantiate the existence of the sales, receipt of foreign currency payments, and inward remittance of the proceeds of these sales duly accounted for in accordance with BSP rules. Petitioner presented no evidence whatsoever that these clients were doing business outside the Philippines. 50 Accenture insists, however, that it was able to establish that it had rendered services to foreign corporations doing business outside the Philippines, unlike in Burmeister, which allegedly involved a foreign corporation doing business in the Philippines. 51 CcADHI We deny Accenture's Petition for a tax refund. The evidence presented by Accenture may have established that its clients are foreign. This fact does not automatically mean, however, that these clients were doing business outside the Philippines. After all, the Tax Code itself has provisions for a foreign corporation engaged in business within the Philippines and vice versa, to wit: SEC. 22. Definitions. When used in this Title: xxx xxx xxx

(H) The term "resident foreign corporation" applies to a foreign corporation engaged in trade or business within the Philippines. (I) The term 'nonresident foreign corporation' applies to a foreign corporation not engaged in trade or business within the Philippines. (Emphasis in the original) Consequently, to come within the purview of Section 108 (B) (2), it is not enough that the recipient of the service be proven to be a foreign corporation; rather, it must be specifically proven to be a nonresident foreign corporation. There is no specific criterion as to what constitutes "doing" or "engaging in" or "transacting" business. We ruled thus in Commissioner of Internal Revenue v. British Overseas Airways Corporation: 52 . . . . There is no specific criterion as to what constitutes "doing" or "engaging in" or "transacting" business. Each case must be judged in the light of its peculiar environmental circumstances. The term implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of commercial gain or for the purpose and object of the business organization. "In order that a foreign corporation may be regarded as doing business within a State, there must be continuity of conduct and intention to establish a continuous business, such as the appointment of a local agent, and not one of a temporary character." 53 ADETca A taxpayer claiming a tax credit or refund has the burden of proof to establish the factual basis of that claim. Tax refunds, like tax exemptions, are construed strictly against the taxpayer. 54

Accenture failed to discharge this burden. It alleged and presented evidence to prove only that its clients were foreign entities. However, as found by both the CTA Division and the CTA En Banc, no evidence was presented by Accenture to prove the fact that the foreign clients to whom petitioner rendered its services were clients doing business outside the Philippines. As ruled by the CTA En Banc, the Official Receipts, Intercompany Payment Requests, Billing Statements, Memo InvoicesReceivable, Memo Invoices-Payable, and Bank Statements presented by Accenture merely substantiated the existence of sales, receipt of foreign currency payments, and inward remittance of the proceeds of such sales duly accounted for in accordance with BSP rules, all of these were devoid of any evidence that the clients were doing business outside of the Philippines. 55 WHEREFORE, the instant Petition is DENIED. The 22 September 2009 Decision and the 23 October 2009 Resolution of the Court of Tax Appeals En Banc in C.T.A. EB No. 477, dismissing the Petition for the refund of the excess or unutilized input VAT credits of Accenture, Inc., are AFFIRMED. SEHTAC SO ORDERED.

FIRST DIVISION [G.R. No. 171182. August 23, 2012.] UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN, RUBEN P. ASPIRAS, EMMANUEL P. BELLO, WILFREDO P. DAVID, CASIANO S. ABRIGO, and JOSEFINA R. LICUANAN, petitioners, vs. HON. AGUSTIN S. DIZON, in his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 80, STERN BUILDERS, INC., and SERVILLANO DELA CRUZ, respondents. DECISION BERSAMIN, J p: Trial judges should not immediately issue writs of execution or garnishment against the Government or any of its subdivisions, agencies and instrumentalities to enforce money judgments. 1 They should bear in mind that the primary jurisdiction to examine, audit and settle all claims of any sort due from the Government or any of its subdivisions, agencies and instrumentalities pertains to the Commission on Audit (COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code of the Philippines). aHTEIA The Case On appeal by the University of the Philippines and its then incumbent officials (collectively, the UP) is the decision promulgated on September 16, 2005, 2 whereby the Court of Appeals (CA) upheld the order of the Regional Trial Court (RTC), Branch 80, in Quezon City that directed the garnishment of public funds amounting to P16,370,191.74 belonging to the UP to satisfy the writ of execution issued to enforce the already final and executory judgment against the UP. Antecedents On August 30, 1990, the UP, through its then President Jose V. Abueva, entered into a General Construction Agreement with respondent Stern Builders Corporation (Stern Builders), represented by its President and General Manager Servillano dela Cruz, for the construction of the extension building and the renovation of the College of Arts and Sciences Building in the campus of the University of the Philippines in Los Baos (UPLB). 3 IASTDE In the course of the implementation of the contract, Stern Builders submitted three progress billings corresponding to the work accomplished, but the UP paid only two of the billings. The third billing worth P273,729.47 was not paid due to its disallowance by the Commission on Audit (COA). Despite the lifting of the disallowance, the UP failed to pay the billing, prompting Stern Builders and dela Cruz to sue the UP and its co-respondent officials to collect the unpaid billing and to recover various damages. The suit, entitled Stern Builders Corporation and Servillano R. Dela Cruz v. University of the Philippines Systems, Jose V. Abueva, Raul P. de Guzman, Ruben P. Aspiras, Emmanuel P. Bello, Wilfredo P. David, Casiano S. Abrigo, and Josefina R. Licuanan, was docketed as Civil Case No. Q-93-14971 of the Regional Trial Court in Quezon City (RTC). 4 After trial, on November 28, 2001, the RTC rendered its decision in favor of the plaintiffs, 5 viz.: ISTHED Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to pay plaintiff, jointly and severally, the following, to wit: 1. 2. 3. 4. 5. P503,462.74 amount of the third billing, additional accomplished work and retention money P5,716,729.00 in actual damages P10,000,000.00 in moral damages P150,000.00 and P1,500.00 per appearance as attorney's fees; and Costs of suit.

SO ORDERED.

Following the RTC's denial of its motion for reconsideration on May 7, 2002, 6 the UP filed a notice of appeal on June 3, 2002. 7 Stern Builders and dela Cruz opposed the notice of appeal on the ground of its filing being belated, and moved for the execution of the decision. The UP countered that the notice of appeal was filed within the reglementary period because the UP's Office of Legal Affairs (OLS) in Diliman, Quezon City received the order of denial only on May 31, 2002. On September 26, 2002, the RTC denied due course to the notice of appeal for having been filed out of time and granted the private respondents' motion for execution. 8 CDESIA The RTC issued the writ of execution on October 4, 2002, 9 and the sheriff of the RTC served the writ of execution and notice of demand upon the UP, through its counsel, on October 9, 2002. 10 The UP filed an urgent motion to reconsider the order dated September 26, 2002, to quash the writ of execution dated October 4, 2002, and to restrain the proceedings. 11 However, the RTC denied the urgent motion on April 1, 2003. 12 On June 24, 2003, the UP assailed the denial of due course to its appeal through a petition for certiorari in the Court of Appeals (CA), docketed as CA-G.R. No. 77395. 13 On February 24, 2004, the CA dismissed the petition for certiorari upon finding that the UP's notice of appeal had been filed late, 14 stating: Records clearly show that petitioners received a copy of the Decision dated November 28, 2001 and January 7, 2002, thus, they had until January 22, 2002 within which to file their appeal. On January 16, 2002 or after the lapse of nine (9) days, petitioners through their counsel Atty. Nolasco filed a Motion for Reconsideration of the aforesaid decision, hence, pursuant to the rules, petitioners still had six (6) remaining days to file their appeal. As admitted by the petitioners in their petition (Rollo, p. 25), Atty. Nolasco received a copy of the Order denying their motion for reconsideration on May 17, 2002, thus, petitioners still has until May 23, 2002 (the remaining six (6) days) within which to file their appeal. Obviously, petitioners were not able to file their Notice of Appeal on May 23, 2002 as it was only filed on June 3, 2002. SEIcAD In view of the said circumstances, We are of the belief and so holds that the Notice of Appeal filed by the petitioners was really filed out of time, the same having been filed seventeen (17) days late of the reglementary period. By reason of which, the decision dated November 28, 2001 had already become final and executory. "Settled is the rule that the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but jurisdictional, and failure to perfect that appeal renders the challenged judgment final and executory. This is not an empty procedural rule but is grounded on fundamental considerations of public policy and sound practice." (Ram's Studio and Photographic Equipment, Inc. vs. Court of Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco received the order of denial of the Motion for Reconsideration on May 17, 2002 but filed a Notice of Appeal only on June 3, 3003. As such, the decision of the lower court ipso facto became final when no appeal was perfected after the lapse of the reglementary period. This procedural caveat cannot be trifled with, not even by the High Court. 15 TDEASC The UP sought a reconsideration, but the CA denied the UP's motion for reconsideration on April 19, 2004. 16 On May 11, 2004, the UP appealed to the Court by petition for review on certiorari (G.R. No. 163501). On June 23, 2004, the Court denied the petition for review. 17 The UP moved for the reconsideration of the denial of its petition for review on August 29, 2004, 18 but the Court denied the motion on October 6, 2004. 19 The denial became final and executory on November 12, 2004. 20 In the meanwhile that the UP was exhausting the available remedies to overturn the denial of due course to the appeal and the issuance of the writ of execution, Stern Builders and dela Cruz filed in the RTC their motions for execution despite their previous motion having already been granted and despite the writ of execution having already issued. On June 11, 2003, the RTC granted another motion for execution filed on May 9, 2003 (although the RTC had already issued the writ of execution on October 4, 2002). 21 On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of garnishment on the UP's depository banks, namely: Land Bank of the Philippines (Buendia Branch) and the Development Bank of the Philippines (DBP), Commonwealth Branch. 22 The UP assailed the garnishment through an urgent motion to quash the notices of garnishment; 23 and a motion to quash the writ of execution dated May 9, 2003. 24 cDAEIH

On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance of a release order. 25 On October 14, 2003, the RTC denied the UP's urgent motion to quash, and granted Stern Builders and dela Cruz's ex parte motion for issuance of a release order. 26 The UP moved for the reconsideration of the order of October 14, 2003, but the RTC denied the motion on November 7, 2003. 27 On January 12, 2004, Stern Builders and dela Cruz again sought the release of the garnished funds. 28 Despite the UP's opposition, 29 the RTC granted the motion to release the garnished funds on March 16, 2004. 30 On April 20, 2004, however, the RTC held in abeyance the enforcement of the writs of execution issued on October 4, 2002 and June 3, 2003 and all the ensuing notices of garnishment, citing Section 4, Rule 52, Rules of Court, which provided that the pendency of a timely motion for reconsideration stayed the execution of the judgment. 31 cDCIHT On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon, authorized the release of the garnished funds of the UP, 32 to wit: WHEREFORE, premises considered, there being no more legal impediment for the release of the garnished amount in satisfaction of the judgment award in the instant case, let the amount garnished be immediately released by the Development Bank of the Philippines, Commonwealth Branch, Quezon City in favor of the plaintiff. SO ORDERED. The UP was served on January 3, 2005 with the order of December 21, 2004 directing DBP to release the garnished funds. 33 On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct contempt of court for its non-compliance with the order of release. 34 Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA to challenge the jurisdiction of the RTC in issuing the order of December 21, 2004 (CA-G.R. CV No. 88125). 35 Aside from raising the denial of due process, the UP averred that the RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that there was no longer any legal impediment to the release of the garnished funds. The UP argued that government funds and properties could not be seized by virtue of writs of execution or garnishment, as held in Department of Agriculture v. National Labor Relations Commission, 36 and citing Section 84 of Presidential Decree No. 1445 to the effect that "[r]evenue funds shall not be paid out of any public treasury or depository except in pursuance of an appropriation law or other specific statutory authority;" and that the order of garnishment clashed with the ruling in University of the Philippines Board of Regents v. Ligot-Telan 37 to the effect that the funds belonging to the UP were public funds. On January 19, 2005, the CA issued a temporary restraining order (TRO) upon application by the UP. 38 SITCcE On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended motion for sheriff's assistance to implement the release order dated December 21, 2004, stating that the 60-day period of the TRO of the CA had already lapsed. 39 The UP opposed the amended motion and countered that the implementation of the release order be suspended. 40 On May 3, 2005, the RTC granted the amended motion for sheriff's assistance and directed the sheriff to proceed to the DBP to receive the check in satisfaction of the judgment. 41 The UP sought the reconsideration of the order of May 3, 2005. 42 On May 16, 2005, DBP filed a motion to consign the check representing the judgment award and to dismiss the motion to cite its officials in contempt of court. 43 On May 23, 2005, the UP presented a motion to withhold the release of the payment of the judgment award. 44 HSDIaC On July 8, 2005, the RTC resolved all the pending matters, 45 noting that the DBP had already delivered to the sheriff Manager's Check No. 811941 for P16,370,191.74 representing the garnished funds payable to the order of Stern Builders and dela Cruz as its compliance with the RTC's order dated December 21, 2004. 46 However, the RTC directed in the same order

that Stern Builders and dela Cruz should not encash the check or withdraw its amount pending the final resolution of the UP's petition for certiorari, to wit: 47 To enable the money represented in the check in question (No. 00008119411) to earn interest during the pendency of the defendant University of the Philippines application for a writ of injunction with the Court of Appeals the same may now be deposited by the plaintiff at the garnishee Bank (Development Bank of the Philippines), the disposition of the amount represented therein being subject to the final outcome of the case of the University of the Philippines, et al. vs. Hon. Agustin S. Dizon, et al., (CA G.R. 88125) before the Court of Appeals. Let it be stated herein that the plaintiff is not authorized to encash and withdraw the amount represented in the check in question and enjoy the same in the fashion of an owner during the pendency of the case between the parties before the Court of Appeals which may or may not be resolved in plaintiff's favor. cTAaDC With the end in view of seeing to it that the check in question is deposited by the plaintiff at the Development Bank of the Philippines (garnishee bank), Branch Sheriff Herlan Velasco is directed to accompany and/or escort the plaintiff in making the deposit of the check in question. SO ORDERED. On September 16, 2005, the CA promulgated its assailed decision dismissing the UP's petition for certiorari, ruling that the UP had been given ample opportunity to contest the motion to direct the DBP to deposit the check in the name of Stern Builders and dela Cruz; and that the garnished funds could be the proper subject of garnishment because they had been already earmarked for the project, with the UP holding the funds only in a fiduciary capacity, 48 viz.: Petitioners next argue that the UP funds may not be seized for execution or garnishment to satisfy the judgment award. Citing Department of Agriculture vs. NLRC, University of the Philippines Board of Regents vs. Hon. Ligot-Telan, petitioners contend that UP deposits at Land Bank and the Development Bank of the Philippines, being government funds, may not be released absent an appropriations bill from Congress. TcIAHS The argument is specious. UP entered into a contract with private respondents for the expansion and renovation of the Arts and Sciences Building of its campus in Los Baos, Laguna. Decidedly, there was already an appropriations earmarked for the said project. The said funds are retained by UP, in a fiduciary capacity, pending completion of the construction project. We agree with the trial Court [sic] observation on this score: "4. Executive Order No. 109 (Directing all National Government Agencies to Revert Certain Accounts Payable to the Cumulative Result of Operations of the National Government and for Other Purposes) Section 9. Reversion of Accounts Payable, provides that, all 1995 and prior years documented accounts payable and all undocumented accounts regardless of the year they were incurred shall be reverted to the Cumulative Result of Operations of the National Government (CROU). This shall apply to accounts payable of all funds, except fiduciary funds, as long as the purpose for which the funds were created have not been accomplished and accounts payable under foreign assisted projects for the duration of the said project. In this regard, the Department of Budget and Management issued Joint-Circular No. 99-6 4.0 (4.3) Procedural Guidelines which provides that all accounts payable that reverted to the CROU may be considered for payment upon determination thru administrative process, of the existence, validity and legality of the claim. Thus, the allegation of the defendants that considering no appropriation for the payment of any amount awarded to plaintiffs appellee the funds of defendant-appellants may not be seized pursuant to a writ of execution issued by the regular court is misplaced. Surely when the defendants and the plaintiff entered into the General Construction of Agreement there is an amount already allocated by the latter for the said project which is no longer subject of future appropriation." 49 cADEHI After the CA denied their motion for reconsideration on December 23, 2005, the petitioners appealed by petition for review. Matters Arising During the Pendency of the Petition On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and dela Cruz's motion to withdraw the deposit, in consideration of the UP's intention to appeal to the CA, 50 stating:

Since it appears that the defendants are intending to file a petition for review of the Court of Appeals resolution in CA-G.R. No. 88125 within the reglementary period of fifteen (15) days from receipt of resolution, the Court agrees with the defendants stand that the granting of plaintiffs' subject motion is premature. Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of the amount represented therein being subject to the final outcome of the case of the University of the Philippines, et al. vs. Hon. Agustin S. Dizon, et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or resolution of said court has to be final and executory, for if the same will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered its own final judgment or resolution. 51 CAScIH However, on January 22, 2007, the UP filed an Urgent Application for A Temporary Restraining Order and/or A Writ of Preliminary Injunction, 52 averring that on January 3, 2007, Judge Maria Theresa dela Torre-Yadao (who had meanwhile replaced Judge Dizon upon the latter's appointment to the CA) had issued another order allowing Stern Builders and dela Cruz to withdraw the deposit, 53 to wit: DcAEIS It bears stressing that defendants' liability for the payment of the judgment obligation has become indubitable due to the final and executory nature of the Decision dated November 28, 2001. Insofar as the payment of the [sic] judgment obligation is concerned, the Court believes that there is nothing more the defendant can do to escape liability. It is observed that there is nothing more the defendant can do to escape liability. It is observed that defendant U.P. System had already exhausted all its legal remedies to overturn, set aside or modify the decision (dated November 28, 2001 (rendered against it. The way the Court sees it, defendant U.P. System's petition before the Supreme Court concerns only with the manner by which said judgment award should be satisfied. It has nothing to do with the legality or propriety thereof, although it prays for the deletion of [sic] reduction of the award of moral damages. It must be emphasized that this Court's finding, i.e., that there was sufficient appropriation earmarked for the project, was upheld by the Court of Appeals in its decision dated September 16, 2005. Being a finding of fact, the Supreme Court will, ordinarily, not disturb the same was said Court is not a trier of fact. Such being the case, defendants' arguments that there was no sufficient appropriation for the payment of the judgment obligation must fail. While it is true that the former Presiding Judge of this Court in its Order dated January 30, 2006 had stated that: Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of the amount represented therein being subject to the final outcome of the case of the University of the Philippines, et al. vs. Hon. Agustin S. Dizon, et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or resolution of said court has to be final and executory, for if the same will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered its own final judgment or resolution. ITDHcA it should be noted that neither the Court of Appeals nor the Supreme Court issued a preliminary injunction enjoining the release or withdrawal of the garnished amount. In fact, in its present petition for review before the Supreme Court, U.P. System has not prayed for the issuance of a writ of preliminary injunction. Thus, the Court doubts whether such writ is forthcoming. The Court honestly believes that if defendants' petition assailing the Order of this Court dated December 31, 2004 granting the motion for the release of the garnished amount was meritorious, the Court of Appeals would have issued a writ of injunction enjoining the same. Instead, said appellate [c]ourt not only refused to issue a wit of preliminary injunction prayed for by U.P. System but denied the petition, as well. 54 The UP contended that Judge Yadao thereby effectively reversed the January 30, 2006 order of Judge Dizon disallowing the withdrawal of the garnished amount until after the decision in the case would have become final and executory. EHSAaD Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all persons acting pursuant to her authority from enforcing her order of January 3, 2007, 55 it appears that on January 16, 2007, or prior to the issuance of the TRO, she had already directed the DBP to forthwith release the garnished amount to Stern Builders and dela Cruz; 56 and that DBP had forthwith complied with the order on January 17, 2007 upon the sheriff's service of the order of Judge Yadao. 57

These intervening developments impelled the UP to file in this Court a supplemental petition on January 26, 2007, 58 alleging that the RTC (Judge Yadao) gravely erred in ordering the immediate release of the garnished amount despite the pendency of the petition for review in this Court. The UP filed a second supplemental petition 59 after the RTC (Judge Yadao) denied the UP's motion for the redeposit of the withdrawn amount on April 10, 2007, 60 to wit: TESICD This resolves defendant U.P. System's Urgent Motion to Redeposit Judgment Award praying that plaintiffs be directed to redeposit the judgment award to DBP pursuant to the Temporary Restraining Order issued by the Supreme Court. Plaintiffs opposed the motion and countered that the Temporary Restraining Order issued by the Supreme Court has become moot and academic considering that the act sought to be restrained by it has already been performed. They also alleged that the redeposit of the judgment award was no longer feasible as they have already spent the same. It bears stressing, if only to set the record straight, that this Court did not in its Order dated January 3, 2007 (the implementation of which was restrained by the Supreme Court in its Resolution dated January 24, 2002) direct that that garnished amount "be deposited with the garnishee bank (Development Bank of the Philippines)". In the first place, there was no need to order DBP to make such deposit, as the garnished amount was already deposited in the account of plaintiffs with the DBP as early as May 13, 2005. What the Court granted in its Order dated January 3, 2007 was plaintiff's motion to allow the release of said deposit. It must be recalled that the Court found plaintiff's motion meritorious and, at that time, there was no restraining order or preliminary injunction from either the Court of Appeals or the Supreme Court which could have enjoined the release of plaintiffs' deposit. The Court also took into account the following factors: DCASIT a) b) c) d) and e) the Decision in this case had long been final and executory after it was rendered on November 28, 2001; the propriety of the dismissal of U.P. System's appeal was upheld by the Supreme Court; a writ of execution had been issued; defendant U.P. System's deposit with DBP was garnished pursuant to a lawful writ of execution issued by the Court;

the garnished amount had already been turned over to the plaintiffs and deposited in their account with DBP.

The garnished amount, as discussed in the Order dated January 16, 2007, was already owned by the plaintiffs, having been delivered to them by the Deputy Sheriff of this Court pursuant to par. (c), Section 9, Rule 39 of the 1997 Rules of Civil Procedure. Moreover, the judgment obligation has already been fully satisfied as per Report of the Deputy Sheriff. TCaADS Anent the Temporary Restraining Order issued by the Supreme Court, the same has become functus oficio, having been issued after the garnished amount had been released to the plaintiffs. The judgment debt was released to the plaintiffs on January 17, 2007, while the Temporary Restraining Order issued by the Supreme Court was received by this Court on February 2, 2007. At the time of the issuance of the Restraining Order, the act sought to be restrained had already been done, thereby rendering the said Order ineffectual. After a careful and thorough study of the arguments advanced by the parties, the Court is of the considered opinion that there is no legal basis to grant defendant U.P. System's motion to redeposit the judgment amount. Granting said motion is not only contrary to law, but it will also render this Court's final executory judgment nugatory. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final the issue or cause involved therein should be laid to rest. This doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice. In fact, nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. WHEREFORE, premises considered, finding defendant U.P. System's Urgent Motion to Redeposit Judgment Award devoid of merit, the same is hereby DENIED. AScHCD

SO ORDERED. Issues The UP now submits that: I THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE PETITION, ALLOWING IN EFFECT THE GARNISHMENT OF UP FUNDS, WHEN IT RULED THAT FUNDS HAVE ALREADY BEEN EARMARKED FOR THE CONSTRUCTION PROJECT; AND THUS, THERE IS NO NEED FOR FURTHER APPROPRIATIONS. DcCEHI II THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING GARNISHMENT OF A STATE UNIVERSITY'S FUNDS IN VIOLATION OF ARTICLE XIV, SECTION 5(5) OF THE CONSTITUTION. III IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW POWERS OF THIS HONORABLE COURT TO MODIFY, IF NOT TOTALLY DELETE THE AWARD OF P10 MILLION AS MORAL DAMAGES TO RESPONDENTS. IV THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY 2007 ON THE GROUND OF EQUITY AND JUDICIAL COURTESY. IHDCcT V THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY 2007 ON THE GROUND THAT PETITIONER UNIVERSITY STILL HAS A PENDING MOTION FOR RECONSIDERATION OF THE ORDER DATED 3 JANUARY 2007. VI THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE REDEPOSIT OF THE GARNISHED AMOUNT TO THE DBP IN VIOLATION OF THE CLEAR LANGUAGE OF THE SUPREME COURT RESOLUTION DATED 24 JANUARY 2007. The UP argues that the amount earmarked for the construction project had been purposely set aside only for the aborted project and did not include incidental matters like the awards of actual damages, moral damages and attorney's fees. In support of its argument, the UP cited Article 12.2 of the General Construction Agreement, which stipulated that no deductions would be allowed for the payment of claims, damages, losses and expenses, including attorney's fees, in case of any litigation arising out of the performance of the work. The UP insists that the CA decision was inconsistent with the rulings in Commissioner of Public Highways v. San Diego 61 and Department of Agriculture v. NLRC 62 to the effect that government funds and properties could not be seized under writs of execution or garnishment to satisfy judgment awards. HaECDI Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the Constitution by allowing the garnishment of UP funds, because the garnishment resulted in a substantial reduction of the UP's limited budget allocated for the remuneration, job satisfaction and fulfillment of the best available teachers; that Judge Yadao should have exhibited judicial courtesy towards the Court due to the pendency of the UP's petition for review; and that she should have also desisted from declaring that the TRO issued by this Court had become functus officio. Lastly, the UP states that the awards of actual damages of P5,716,729.00 and moral damages of P10 million should be reduced, if not entirely deleted, due to its being unconscionable, inequitable and detrimental to public service. aECSHI In contrast, Stern Builders and dela Cruz aver that the petition for review was fatally defective for its failure to mention the other cases upon the same issues pending between the parties (i.e., CA-G.R. No. 77395 and G.R. No. 163501); that the UP was evidently resorting to forum shopping, and to delaying the satisfaction of the final judgment by the filing of its petition for

review; that the ruling in Commissioner of Public Works v. San Diego had no application because there was an appropriation for the project; that the UP retained the funds allotted for the project only in a fiduciary capacity; that the contract price had been meanwhile adjusted to P22,338,553.25, an amount already more than sufficient to cover the judgment award; that the UP's prayer to reduce or delete the award of damages had no factual basis, because they had been gravely wronged, had been deprived of their source of income, and had suffered untold miseries, discomfort, humiliation and sleepless years; that dela Cruz had even been constrained to sell his house, his equipment and the implements of his trade, and together with his family had been forced to live miserably because of the wrongful actuations of the UP; and that the RTC correctly declared the Court's TRO to be already functus officio by reason of the withdrawal of the garnished amount from the DBP. EAICTS The decisive issues to be considered and passed upon are, therefore: (a) whether the funds of the UP were the proper subject of garnishment in order to satisfy the judgment award; and (b) whether the UP's prayer for the deletion of the awards of actual damages of P5,716,729.00, moral damages of P10,000,000.00 and attorney's fees of P150,000.00 plus P1,500.00 per appearance could be granted despite the finality of the judgment of the RTC. Ruling The petition for review is meritorious. I. UP's funds, being government funds, are not subject to garnishment The UP was founded on June 18, 1908 through Act 1870 to provide advanced instruction in literature, philosophy, the sciences, and arts, and to give professional and technical training to deserving students. 63 Despite its establishment as a body corporate, 64 the UP remains to be a "chartered institution" 65 performing a legitimate government function. It is an institution of higher learning, not a corporation established for profit and declaring any dividends. 66 In enacting Republic Act No. 9500 (The University of the Philippines Charter of 2008), Congress has declared the UP as the national university 67 "dedicated to the search for truth and knowledge as well as the development of future leaders." 68 ASIDTa Irrefragably, the UP is a government instrumentality, 69 performing the State's constitutional mandate of promoting quality and accessible education. 70 As a government instrumentality, the UP administers special funds sourced from the fees and income enumerated under Act No. 1870 and Section 1 of Executive Order No. 714, 71 and from the yearly appropriations, to achieve the purposes laid down by Section 2 of Act 1870, as expanded in Republic Act No. 9500. 72 All the funds going into the possession of the UP, including any interest accruing from the deposit of such funds in any banking institution, constitute a "special trust fund," the disbursement of which should always be aligned with the UP's mission and purpose, 73 and should always be subject to auditing by the COA. 74 Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes in the possession of an agency of the government or of a public officer as trustee, agent or administrator, or that is received for the fulfillment of some obligation. 75 A trust fund may be utilized only for the "specific purpose for which the trust was created or the funds received." 76 The funds of the UP are government funds that are public in character. They include the income accruing from the use of real property ceded to the UP that may be spent only for the attainment of its institutional objectives. 77 Hence, the funds subject of this action could not be validly made the subject of the RTC's writ of execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP, 78 because suability of the State did not necessarily mean its liability. 79 DacASC A marked distinction exists between suability of the State and its liability. As the Court succinctly stated in Municipality of San Fernando, La Union v. Firme: 80 A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the

mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. Also, in Republic v. Villasor, 81 where the issuance of an alias writ of execution directed against the funds of the Armed Forces of the Philippines to satisfy a final and executory judgment was nullified, the Court said: CDaTAI . . . The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's action "only up to the completion of proceedings anterior to the stage of execution" and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. DHITSc The UP correctly submits here that the garnishment of its funds to satisfy the judgment awards of actual and moral damages (including attorney's fees) was not validly made if there was no special appropriation by Congress to cover the liability. It was, therefore, legally unwarranted for the CA to agree with the RTC's holding in the order issued on April 1, 2003 that no appropriation by Congress to allocate and set aside the payment of the judgment awards was necessary because "there (were) already an appropriations (sic) earmarked for the said project." 82 The CA and the RTC thereby unjustifiably ignored the legal restriction imposed on the trust funds of the Government and its agencies and instrumentalities to be used exclusively to fulfill the purposes for which the trusts were created or for which the funds were received except upon express authorization by Congress or by the head of a government agency in control of the funds, and subject to pertinent budgetary laws, rules and regulations. 83 Indeed, an appropriation by Congress was required before the judgment that rendered the UP liable for moral and actual damages (including attorney's fees) would be satisfied considering that such monetary liabilities were not covered by the "appropriations earmarked for the said project." The Constitution strictly mandated that "(n)o money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 84 TEacSA II COA must adjudicate private respondents' claim before execution should proceed The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. This was expressly provided in Section 26 of Presidential Decree No. 1445, to wit: cSTHaE Section 26. General jurisdiction. The authority and powers of the Commission shall extend to and comprehend all matters relating to auditing procedures, systems and controls, the keeping of the general accounts of the Government, the preservation of vouchers pertaining thereto for a period of ten years, the examination and inspection of the books, records, and papers relating to those accounts; and the audit and settlement of the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as the examination, audit, and settlement of all debts and claims of any sort due from or owing to the Government or any of its subdivisions, agencies and instrumentalities. The said jurisdiction extends to all government-owned or controlled corporations, including their subsidiaries, and other selfgoverning boards, commissions, or agencies of the Government, and as herein prescribed, including non-governmental entities subsidized by the government, those funded by donations through the government, those required to pay levies or government share, and those for which the government has put up a counterpart fund or those partly funded by the government. It was of no moment that a final and executory decision already validated the claim against the UP. The settlement of the monetary claim was still subject to the primary jurisdiction of the COA despite the final decision of the RTC having already validated the claim. 85 As such, Stern Builders and dela Cruz as the claimants had no alternative except to first seek the approval of the COA of their monetary claim. ASHaDT

On its part, the RTC should have exercised utmost caution, prudence and judiciousness in dealing with the motions for execution against the UP and the garnishment of the UP's funds. The RTC had no authority to direct the immediate withdrawal of any portion of the garnished funds from the depository banks of the UP. By eschewing utmost caution, prudence and judiciousness in dealing with the execution and garnishment, and by authorizing the withdrawal of the garnished funds of the UP, the RTC acted beyond its jurisdiction, and all its orders and issuances thereon were void and of no legal effect, specifically: (a) the order Judge Yadao issued on January 3, 2007 allowing Stern Builders and dela Cruz to withdraw the deposited garnished amount; (b) the order Judge Yadao issued on January 16, 2007 directing DBP to forthwith release the garnish amount to Stern Builders and dela Cruz; (c) the sheriff's report of January 17, 2007 manifesting the full satisfaction of the writ of execution; and (d) the order of April 10, 2007 denying the UP's motion for the redeposit of the withdrawn amount. Hence, such orders and issuances should be struck down without exception. ScHADI Nothing extenuated Judge Yadao's successive violations of Presidential Decree No. 1445. She was aware of Presidential Decree No. 1445, considering that the Court circulated to all judges its Administrative Circular No. 10-2000, 86 issued on October 25, 2000, enjoining them "to observe utmost caution, prudence and judiciousness in the issuance of writs of execution to satisfy money judgments against government agencies and local government units" precisely in order to prevent the circumvention of Presidential Decree No. 1445, as well as of the rules and procedures of the COA, to wit: In order to prevent possible circumvention of the rules and procedures of the Commission on Audit, judges are hereby enjoined to observe utmost caution, prudence and judiciousness in the issuance of writs of execution to satisfy money judgments against government agencies and local government units. Judges should bear in mind that in Commissioner of Public Highways v. San Diego (31 SCRA 617, 625 [1970]), this Court explicitly stated: TSAHIa "The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's action 'only up to the completion of proceedings anterior to the stage of execution' and that the power of the Court ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. IaHSCc Moreover, it is settled jurisprudence that upon determination of State liability, the prosecution, enforcement or satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in P.D. No. 1445, otherwise known as the Government Auditing Code of the Philippines (Department of Agriculture v. NLRC, 227 SCRA 693, 701-02 [1993] citing Republic vs. Villasor, 54 SCRA 84 [1973]). All money claims against the Government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and in effect, sue the State thereby (P.D. 1445, Sections 49-50). However, notwithstanding the rule that government properties are not subject to levy and execution unless otherwise provided for by statute (Republic v. Palacio, 23 SCRA 899 [1968]; Commissioner of Public Highways v. San Diego, supra) or municipal ordinance (Municipality of Makati v. Court of Appeals, 190 SCRA 206 [1990]), the Court has, in various instances, distinguished between government funds and properties for public use and those not held for public use. Thus, in Viuda de Tan Toco v. Municipal Council of Iloilo (49 Phil. 52 [1926]), the Court ruled that "[w]here property of a municipal or other public corporation is sought to be subjected to execution to satisfy judgments recovered against such corporation, the question as to whether such property is leviable or not is to be determined by the usage and purposes for which it is held." The following can be culled from Viuda de Tan Toco v. Municipal Council of Iloilo: TaCEHA 1. Properties held for public uses and generally everything held for governmental purposes are not subject to levy and sale under execution against such corporation. The same rule applies to funds in the hands of a public officer and taxes due to a municipal corporation. 2. Where a municipal corporation owns in its proprietary capacity, as distinguished from its public or government capacity, property not used or used for a public purpose but for quasi-private purposes, it is the general rule that such property may be seized and sold under execution against the corporation.

3. Property held for public purposes is not subject to execution merely because it is temporarily used for private purposes. If the public use is wholly abandoned, such property becomes subject to execution. This Administrative Circular shall take effect immediately and the Court Administrator shall see to it that it is faithfully implemented. Although Judge Yadao pointed out that neither the CA nor the Court had issued as of then any writ of preliminary injunction to enjoin the release or withdrawal of the garnished amount, she did not need any writ of injunction from a superior court to compel her obedience to the law. The Court is disturbed that an experienced judge like her should look at public laws like Presidential Decree No. 1445 dismissively instead of loyally following and unquestioningly implementing them. That she did so turned her court into an oppressive bastion of mindless tyranny instead of having it as a true haven for the seekers of justice like the UP. TaCDIc III Period of appeal did not start without effective service of decision upon counsel of record; Fresh-period rule announced in Neypes v. Court of Appeals can be given retroactive application The UP next pleads that the Court gives due course to its petition for review in the name of equity in order to reverse or modify the adverse judgment against it despite its finality. At stake in the UP's plea for equity was the return of the amount of P16,370,191.74 illegally garnished from its trust funds. Obstructing the plea is the finality of the judgment based on the supposed tardiness of UP's appeal, which the RTC declared on September 26, 2002. The CA upheld the declaration of finality on February 24, 2004, and the Court itself denied the UP's petition for review on that issue on May 11, 2004 (G.R. No. 163501). The denial became final on November 12, 2004. caSDCA It is true that a decision that has attained finality becomes immutable and unalterable, and cannot be modified in any respect, 87 even if the modification is meant to correct erroneous conclusions of fact and law, and whether the modification is made by the court that rendered it or by this Court as the highest court of the land. 88 Public policy dictates that once a judgment becomes final, executory and unappealable, the prevailing party should not be deprived of the fruits of victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement of such judgment sets at naught the role and purpose of the courts to resolve justiciable controversies with finality. 89 Indeed, all litigations must at some time end, even at the risk of occasional errors. But the doctrine of immutability of a final judgment has not been absolute, and has admitted several exceptions, among them: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and (d) whenever circumstances transpire after the finality of the decision that render its execution unjust and inequitable. 90 Moreover, in Heirs of Maura So v. Obliosca, 91 we stated that despite the absence of the preceding circumstances, the Court is not precluded from brushing aside procedural norms if only to serve the higher interests of justice and equity. Also, in Gumaru v. Quirino State College, 92 the Court nullified the proceedings and the writ of execution issued by the RTC for the reason that respondent state college had not been represented in the litigation by the Office of the Solicitor General. We rule that the UP's plea for equity warrants the Court's exercise of the exceptional power to disregard the declaration of finality of the judgment of the RTC for being in clear violation of the UP's right to due process. aAcHCT Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of appeal to be tardy. They based their finding on the fact that only six days remained of the UP's reglementary 15-day period within which to file the notice of appeal because the UP had filed a motion for reconsideration on January 16, 2002 vis--vis the RTC's decision the UP received on

January 7, 2002; and that because the denial of the motion for reconsideration had been served upon Atty. Felimon D. Nolasco of the UPLB Legal Office on May 17, 2002, the UP had only until May 23, 2002 within which to file the notice of appeal. The UP counters that the service of the denial of the motion for reconsideration upon Atty. Nolasco was defective considering that its counsel of record was not Atty. Nolasco of the UPLB Legal Office but the OLS in Diliman, Quezon City; and that the period of appeal should be reckoned from May 31, 2002, the date when the OLS received the order. The UP submits that the filing of the notice of appeal on June 3, 2002 was well within the reglementary period to appeal. TAEcSC We agree with the submission of the UP. Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the UPLB Legal Office was invalid and ineffectual because he was admittedly not the counsel of record of the UP. The rule is that it is on the counsel and not the client that the service should be made. 93 That counsel was the OLS in Diliman, Quezon City, which was served with the denial only on May 31, 2002. As such, the running of the remaining period of six days resumed only on June 1, 2002, 94 rendering the filing of the UP's notice of appeal on June 3, 2002 timely and well within the remaining days of the UP's period to appeal. Verily, the service of the denial of the motion for reconsideration could only be validly made upon the OLS in Diliman, and no other. The fact that Atty. Nolasco was in the employ of the UP at the UPLB Legal Office did not render the service upon him effective. It is settled that where a party has appeared by counsel, service must be made upon such counsel. 95 Service on the party or the party's employee is not effective because such notice is not notice in law. 96 This is clear enough from Section 2, second paragraph, of Rule 13, Rules of Court, which explicitly states that: "If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side." As such, the period to appeal resumed only on June 1, 2002, the date following the service on May 31, 2002 upon the OLS in Diliman of the copy of the decision of the RTC, not from the date when the UP was notified. 97 TaEIcS Accordingly, the declaration of finality of the judgment of the RTC, being devoid of factual and legal bases, is set aside. Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that the remaining period for the UP to take a timely appeal would end by May 23, 2002, it would still not be correct to find that the judgment of the RTC became final and immutable thereafter due to the notice of appeal being filed too late on June 3, 2002. In so declaring the judgment of the RTC as final against the UP, the CA and the RTC applied the rule contained in the second paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing of a motion for reconsideration interrupted the running of the period for filing the appeal; and that the period resumed upon notice of the denial of the motion for reconsideration. For that reason, the CA and the RTC might not be taken to task for strictly adhering to the rule then prevailing. However, equity calls for the retroactive application in the UP's favor of the fresh-period rule that the Court first announced in mid-September of 2005 through its ruling in Neypes v. Court of Appeals, 98 viz.: THEDcS To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. The retroactive application of the fresh-period rule, a procedural law that aims "to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution," 99 is impervious to any serious challenge. This is because there are no vested rights in rules of procedure. 100 A law or regulation is procedural when it prescribes rules and forms of procedure in order that courts may be able to administer justice. 101 It does not come within the legal conception of a retroactive law, or is not subject of the general rule prohibiting the retroactive operation of statutes, but is given retroactive effect in actions pending and undetermined at the time of its passage without violating any right of a person who may feel that he is adversely affected. AEIcSa We have further said that a procedural rule that is amended for the benefit of litigants in furtherance of the administration of justice shall be retroactively applied to likewise favor actions then pending, as equity delights in equality. 102 We may even

relax stringent procedural rules in order to serve substantial justice and in the exercise of this Court's equity jurisdiction. 103 Equity jurisdiction aims to do complete justice in cases where a court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction. 104 It is cogent to add in this regard that to deny the benefit of the fresh-period rule to the UP would amount to injustice and absurdity injustice, because the judgment in question was issued on November 28, 2001 as compared to the judgment in Neypes that was rendered in 1998; absurdity, because parties receiving notices of judgment and final orders issued in the year 1998 would enjoy the benefit of the fresh-period rule but the later rulings of the lower courts like that herein would not. 105 Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the denial, the UP's filing on June 3, 2002 of the notice of appeal was not tardy within the context of the fresh-period rule. For the UP, the fresh period of 15days counted from service of the denial of the motion for reconsideration would end on June 1, 2002, which was a Saturday. Hence, the UP had until the next working day, or June 3, 2002, a Monday, within which to appeal, conformably with Section 1 of Rule 22, Rules of Court, which holds that: "If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day." aIETCA IV Awards of monetary damages, being devoid of factual and legal bases, did not attain finality and should be deleted Section 14 of Article VIII of the Constitution prescribes that express findings of fact and of law should be made in the decision rendered by any court, to wit: Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. cDHAES Implementing the constitutional provision in civil actions is Section 1 of Rule 36, Rules of Court, viz.: Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a) The Constitution and the Rules of Court apparently delineate two main essential parts of a judgment, namely: the body and the decretal portion. Although the latter is the controlling part, 106 the importance of the former is not to be lightly regarded because it is there where the court clearly and distinctly states its findings of fact and of law on which the decision is based. To state it differently, one without the other is ineffectual and useless. The omission of either inevitably results in a judgment that violates the letter and the spirit of the Constitution and the Rules of Court. EAcIST The term findings of fact that must be found in the body of the decision refers to statements of fact, not to conclusions of law. 107 Unlike in pleadings where ultimate facts alone need to be stated, the Constitution and the Rules of Court require not only that a decision should state the ultimate facts but also that it should specify the supporting evidentiary facts, for they are what are called the findings of fact. The importance of the findings of fact and of law cannot be overstated. The reason and purpose of the Constitution and the Rules of Court in that regard are obviously to inform the parties why they win or lose, and what their rights and obligations are. Only thereby is the demand of due process met as to the parties. As Justice Isagani A. Cruz explained in Nicos Industrial Corporation v. Court of Appeals: 108

It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in favor of X and against Y and just leave it at that without any justification whatsoever for its action. The losing party is entitled to know why he lost, so he may appeal to a higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. AECacS Here, the decision of the RTC justified the grant of actual and moral damages, and attorney's fees in the following terse manner, viz.: . . . The Court is not unmindful that due to defendants' unjustified refusal to pay their outstanding obligation to plaintiff, the same suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located in Quezon City to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of interest and penalties incurred in the course of the construction of the subject project. 109 The statement that "due to defendants' unjustified refusal to pay their outstanding obligation to plaintiff, the same suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located in Quezon City to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of interest and penalties incurred in the course of the construction of the subject project" was only a conclusion of fact and law that did not comply with the constitutional and statutory prescription. The statement specified no detailed expenses or losses constituting the P5,716,729.00 actual damages sustained by Stern Builders in relation to the construction project or to other pecuniary hardships. The omission of such expenses or losses directly indicated that Stern Builders did not prove them at all, which then contravened Article 2199, Civil Code, the statutory basis for the award of actual damages, which entitled a person to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. As such, the actual damages allowed by the RTC, being bereft of factual support, were speculative and whimsical. Without the clear and distinct findings of fact and law, the award amounted only to an ipse dixit on the part of the RTC, 110 and did not attain finality. ICacDE There was also no clear and distinct statement of the factual and legal support for the award of moral damages in the substantial amount of P10,000,000.00. The award was thus also speculative and whimsical. Like the actual damages, the moral damages constituted another judicial ipse dixit, the inevitable consequence of which was to render the award of moral damages incapable of attaining finality. In addition, the grant of moral damages in that manner contravened the law that permitted the recovery of moral damages as the means to assuage "physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury." 111 The contravention of the law was manifest considering that Stern Builders, as an artificial person, was incapable of experiencing pain and moral sufferings. 112 Assuming that in granting the substantial amount of P10,000,000.00 as moral damages, the RTC might have had in mind that dela Cruz had himself suffered mental anguish and anxiety. If that was the case, then the RTC obviously disregarded his separate and distinct personality from that of Stern Builders. 113 Moreover, his moral and emotional sufferings as the President of Stern Builders were not the sufferings of Stern Builders. Lastly, the RTC violated the basic principle that moral damages were not intended to enrich the plaintiff at the expense of the defendant, but to restore the plaintiff to his status quo ante as much as possible. Taken together, therefore, all these considerations exposed the substantial amount of P10,000,000.00 allowed as moral damages not only to be factually baseless and legally indefensible, but also to be unconscionable, inequitable and unreasonable. cSTDIC Like the actual and moral damages, the P150,000.00, plus P1,500.00 per appearance, granted as attorney's fees were factually unwarranted and devoid of legal basis. The general rule is that a successful litigant cannot recover attorney's fees as part of the damages to be assessed against the losing party because of the policy that no premium should be placed on the right to litigate. 114 Prior to the effectivity of the present Civil Code, indeed, such fees could be recovered only when there was a stipulation to that effect. It was only under the present Civil Code that the right to collect attorney's fees in the cases mentioned in Article 2208 115 of the Civil Code came to be recognized. 116 Nonetheless, with attorney's fees being allowed in the concept of actual damages, 117 their amounts must be factually and legally justified in the body of the decision and not stated for the first time in the decretal portion. 118 Stating the amounts only in the dispositive portion of the judgment is not enough; 119 a rendition of the factual and legal justifications for them must also be laid out in the body of the decision. 120

That the attorney's fees granted to the private respondents did not satisfy the foregoing requirement suffices for the Court to undo them. 121 The grant was ineffectual for being contrary to law and public policy, it being clear that the express findings of fact and law were intended to bring the case within the exception and thereby justify the award of the attorney's fees. Devoid of such express findings, the award was a conclusion without a premise, its basis being improperly left to speculation and conjecture. 122 ETAICc Nonetheless, the absence of findings of fact and of any statement of the law and jurisprudence on which the awards of actual and moral damages, as well as of attorney's fees, were based was a fatal flaw that invalidated the decision of the RTC only as to such awards. As the Court declared in Velarde v. Social Justice Society, 123 the failure to comply with the constitutional requirement for a clear and distinct statement of the supporting facts and law "is a grave abuse of discretion amounting to lack or excess of jurisdiction" and that "(d)ecisions or orders issued in careless disregard of the constitutional mandate are a patent nullity and must be struck down as void." 124 The other item granted by the RTC (i.e., P503,462.74) shall stand, subject to the action of the COA as stated herein. aETAHD WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the decision of the Court of Appeals under review; ANNULS the orders for the garnishment of the funds of the University of the Philippines and for the release of the garnished amount to Stern Builders Corporation and Servillano dela Cruz; and DELETES from the decision of the Regional Trial Court dated November 28, 2001 for being void only the awards of actual damages of P5,716,729.00, moral damages of P10,000,000.00, and attorney's fees of P150,000.00, plus P1,500.00 per appearance, in favor of Stern Builders Corporation and Servillano dela Cruz. The Court ORDERS Stern Builders Corporation and Servillano dela Cruz to redeposit the amount of P16,370,191.74 within 10 days from receipt of this decision. Costs of suit to be paid by the private respondents. SO ORDERED. TaHDAS

SECOND DIVISION [G.R. No. 197528. September 5, 2012.] PERT/CPM MANPOWER EXPONENT CO., INC., petitioner, vs. ARMANDO A. VINUYA, LOUIE M. ORDOVEZ, ARSENIO S. LUMANTA, JR., ROBELITO S. ANIPAN, VIRGILIO R. ALCANTARA, MARINO M. ERA, SANDY O. ENJAMBRE and NOEL T. LADEA, respondents. DECISION BRION, J p: We resolve the present petition for review on certiorari 1 assailing the decision 2 dated May 9, 2011 and the resolution 3 dated June 23, 2011 of the Court of Appeals (CA) in CA-G.R. SP No. 114353. ACTISE The Antecedents On March 5, 2008, respondents Armando A. Vinuya, Louie M. Ordovez, Arsenio S. Lumanta, Jr., Robelito S. Anipan, Virgilio R. Alcantara, Marino M. Era, Sandy O. Enjambre and Noel T. Ladea (respondents) filed a complaint for illegal dismissal against the petitioner Pert/CPM Manpower Exponent Co., Inc. (agency), and its President Romeo P. Nacino. The respondents alleged that the agency deployed them between March 29, 2007 and May 12, 2007 to work as aluminum fabricator/installer for the agency's principal, Modern Metal Solution LLC/MMS Modern Metal Solution LLC (Modern Metal) in Dubai, United Arab Emirates. The respondents' employment contracts, 4 which were approved by the Philippine Overseas Employment Administration (POEA), provided for a two-year employment, nine hours a day, salary of 1,350 AED with overtime pay, food allowance, free and suitable housing (four to a room), free transportation, free laundry, and free medical and dental services. They each paid a P15,000.00 processing fee. 5 On April 2, 2007, Modern Metal gave the respondents, except Era, appointment letters 6 with terms different from those in the employment contracts which they signed at the agency's office in the Philippines. Under the letters of appointment, their employment was increased to three years at 1,000 to 1,200 AED and food allowance of 200 AED. CHDAEc The respondents claimed that they were shocked to find out what their working and living conditions were in Dubai. They were required to work from 6:30 a.m. to 6:30 p.m., with a break of only one hour to one and a half hours. When they rendered overtime work, they were most of the time either underpaid or not paid at all. Their housing accommodations were cramped and were shared with 27 other occupants. The lodging house was in Sharjah, which was far from their jobsite in Dubai, leaving them only three to four hours of sleep a day because of the long hours of travel to and from their place of work; there was no potable water and the air was polluted. When the respondents received their first salaries (at the rates provided in their appointment letters and with deductions for placement fees) and because of their difficult living and working conditions, they called up the agency and complained about their predicament. The agency assured them that their concerns would be promptly addressed, but nothing happened. HCEcaT On May 5, 2007, Modern Metal required the respondents to sign new employment contracts, 7 except for Era who was made to sign later. The contracts reflected the terms of their appointment letters. Burdened by all the expenses and financial obligations they incurred for their deployment, they were left with no choice but to sign the contracts. They raised the matter with the agency, which again took no action. On August 5, 2007, despondent over their unbearable living and working conditions and by the agency's inaction, the respondents expressed to Modern Metal their desire to resign. Out of fear, as they put it, that Modern Metal would not give them their salaries and release papers, the respondents, except Era, cited personal/family problems for their resignation. 8 Era mentioned the real reason "because I dont (sic) want the company policy" 9 for his resignation. cHCaIE

It took the agency several weeks to repatriate the respondents to the Philippines. They all returned to Manila in September 2007. Except for Ordovez and Enjambre, all the respondents shouldered their own airfare. For its part, the agency countered that the respondents were not illegally dismissed; they voluntarily resigned from their employment to seek a better paying job. It claimed that the respondents, while still working for Modern Metal, applied with another company which offered them a higher pay. Unfortunately, their supposed employment failed to materialize and they had to go home because they had already resigned from Modern Metal. The agency further alleged that the respondents even voluntarily signed affidavits of quitclaim and release after they resigned. It thus argued that their claim for benefits, under Section 10 of Republic Act No. (R.A.) 8042, damages and attorney's fees is unfounded. TcADCI The Compulsory Arbitration Rulings On April 30, 2008, Labor Arbiter Ligerio V. Ancheta rendered a decision 10 dismissing the complaint, finding that the respondents voluntarily resigned from their jobs. He also found that four of them Alcantara, Era, Anipan and Lumanta even executed a compromise agreement (with quitclaim and release) before the POEA. He considered the POEA recourse a case of forum shopping. The respondents appealed to the National Labor Relations Commission (NLRC). They argued that the labor arbiter committed serious errors in (1) admitting in evidence the quitclaims and releases they executed in Dubai, which were mere photocopies of the originals and which failed to explain the circumstances behind their execution; (2) failing to consider that the compromise agreements they signed before the POEA covered only the refund of their airfare and not all their money claims; and (3) ruling that they violated the rule on non-forum shopping. SHIETa On May 12, 2009, the NLRC granted the appeal. 11 It ruled that the respondents had been illegally dismissed. It anchored its ruling on the new employment contracts they were made to sign in Dubai. It stressed that it is illegal for an employer to require its employees to execute new employment papers, especially those which provide benefits that are inferior to the POEA-approved contracts. The NLRC rejected the quitclaim and release executed by the respondents in Dubai. It believed that the respondents executed the quitclaim documents under duress as they were afraid that they would not be allowed to return to the Philippines if they did not sign the documents. Further, the labor tribunal disagreed with the labor arbiter's opinion that the compromise agreement they executed before the POEA had effectively foreclosed the illegal dismissal complaint before the NLRC and that the respondents had been guilty of forum shopping. It pointed out that the POEA case involved pre-deployment issues; whereas, the complaint before the NLRC is one for illegal dismissal and money claims arising from employment. DIETcH Consequently, the NLRC ordered the agency, Nacino and Modern Metal to pay, jointly and severally, the respondents, as follows: WHEREFORE, the Decision dated 30 April 2008 is hereby REVERSED and SET ASIDE, a new Decision is hereby issued ordering the respondents PERT/CPM MANPOWER EXPONENTS CO., INC., ROMEO NACINO, and MODERN METAL SOLUTIONS, INC. to jointly and severally, pay the complainants the following: Employee Salary Underpaid fee the Placement Damages Salary for Exemplary

unexpired portion of the contract (1350 x 6 months)

Vinuya, 150 x 6 = ARMANDO Alcantara VIRGILIO Era, 900 AED

USD 400 8100 AED

P20,000.00

150 X 4 = 600 AED

USD 400 8100 AED

P20,000.00

350 x 4 =

USD 400 8100 AED

P20,000.00

MARINO 1400 AED Ladea, NOEL 150 x 5 = 750 AED 250 X 3 = USD 400 8100 AED P20,000.00 USD 400 8100 AED P20,000.00

Ordovez, LOUIE 750 AED

Anipan, 150 x 4 = ROBELITO Enjambre, SANDY 600 AED Lumanta, ARSENIO 600 AED

USD 400 8100 AED

P20,000.00

150 x 4 =

USD 400 8100 AED

P20,000.00

250 x 5 = 1250 AED

USD 400 8100 AED

P20,000.00

TOTAL: 6,850 AED

US$3,200

64,800 AED

P400,000.00

or their peso equivalent at the time of actual payment plus attorney[']s fees equivalent to 10% of the judgment award. 12 The agency moved for reconsideration, contending that the appeal was never perfected and that the NLRC gravely abused its discretion in reversing the labor arbiter's decision. IECAaD The respondents, on the other hand, moved for partial reconsideration, maintaining that their salaries should have covered the unexpired portion of their employment contracts, pursuant to the Court's ruling in Serrano v. Gallant Maritime Services, Inc. 13 The NLRC denied the agency's motion for reconsideration, but granted the respondents' motion. 14 It sustained the respondents' argument that the award needed to be adjusted, particularly in relation to the payment of their salaries, consistent with the Court's ruling in Serrano. The ruling declared unconstitutional the clause, "or for three (3) months for every year of the unexpired term, whichever is less," in Section 10, paragraph 5, of R.A. 8042, limiting the entitlement of illegally dismissed overseas Filipino workers to their salaries for the unexpired term of their contract or three months, whichever is less. Accordingly, it modified its earlier decision and adjusted the respondents' salary entitlement based on the following matrix: EaHIDC Employee Contract contract Vinuya, 2 years 29 March 2007 8 August 2007 19 months Duration of Departure date Date dismissed Unexpired

portion of

ARMANDO Alcantara, VIRGILIO Era, MARINO Ladea, NOEL Ordovez, LOUIE Anipan, 2 years 3 April 2007 ROBELITO Enjambre, SANDY Lumanta, ARSENIO 2 years 29 March 2007 2 years 29 March 2007 2 years 12 May 2007 2 years 3 April 2007

and 21 days 8 August 2007 and 5 days 8 August 2007 and 4 days 8 August 2007 and 21 days 2 years 3 April 2007 26 July 2007 21 months 19 months 21 months 20 months

and 23 days 8 August 2007 20 months

and 5 days 26 July 2007 20 months

and 3 days 2 years 29 March 2007 8 August 2007 and 21 days 15 19 months

Again, the agency moved for reconsideration, reiterating its earlier arguments and, additionally, questioning the application of the Serrano ruling in the case because it was not yet final and executory. The NLRC denied the motion, prompting the agency to seek recourse from the CA through a petition for certiorari. IATHaS The CA Decision The CA dismissed the petition for lack of merit. 16 It upheld the NLRC ruling that the respondents were illegally dismissed. It found no grave abuse of discretion in the NLRC's rejection of the respondents' resignation letters, and the accompanying quitclaim and release affidavits, as proof of their voluntary termination of employment. The CA stressed that the filing of a complaint for illegal dismissal is inconsistent with resignation. Moreover, it found nothing in the records to substantiate the agency's contention that the respondents' resignation was of their own accord; on the contrary, it considered the resignation letters "dubious for having been lopsidedly-worded to ensure that the petitioners (employer[s]) are free from any liability." 17 The appellate court likewise refused to give credit to the compromise agreements that the respondents executed before the POEA. It agreed with the NLRC's conclusion that the agreements pertain to the respondents' charge of recruitment violations against the agency distinct from their illegal dismissal complaint, thus negating forum shopping by the respondents. aHADTC Lastly, the CA found nothing legally wrong in the NLRC correcting itself (upon being reminded by the respondents), by adjusting the respondents' salary award on the basis of the unexpired portion of their contracts, as enunciated in the Serrano case. The agency moved for, but failed to secure, a reconsideration of the CA decision. 18 The Petition The agency is now before the Court seeking a reversal of the CA dispositions, contending that the CA erred in:

1.

affirming the NLRC's finding that the respondents were illegally dismissed; TCDcSE

2. holding that the compromise agreements before the POEA pertain only to the respondents' charge of recruitment violations against the agency; and 3. affirming the NLRC's award to the respondents of their salaries for the unexpired portion of their employment contracts, pursuant to the Serrano ruling. The agency insists that it is not liable for illegal dismissal, actual or constructive. It submits that as correctly found by the labor arbiter, the respondents voluntarily resigned from their jobs, and even executed affidavits of quitclaim and release; the respondents stated family concerns for their resignation. The agency posits that the letters were duly proven as they were written unconditionally by the respondents. It, therefore, assails the conclusion that the respondents resigned under duress or that the resignation letters were dubious. TAEcSC The agency raises the same argument with respect to the compromise agreements, with quitclaim and release, it entered into with Vinuya, Era, Ladea, Enjambre, Ordovez, Alcantara, Anipan and Lumanta before the POEA, although it submitted evidence only for six of them. Anipan, Lumanta, Vinuya and Ladea signing one document; 19 Era 20 and Alcantara 21 signing a document each. It points out that the agreement was prepared with the assistance of POEA Conciliator Judy Santillan, and was duly and freely signed by the respondents; moreover, the agreement is not conditional as it pertains to all issues involved in the dispute between the parties. On the third issue, the agency posits that the Serrano ruling has no application in the present case for three reasons. First, the respondents were not illegally dismissed and, therefore, were not entitled to their money claims. Second, the respondents filed the complaint in 2007, while the Serrano ruling came out on March 24, 2009. The ruling cannot be given retroactive application. Third, R.A. 10022, which was enacted on March 8, 2010 and which amended R.A. 8042, restored the subject clause in Section 10 of R.A. 8042, declared unconstitutional by the Court. cdrep The Respondents' Position In their Comment (to the Petition) dated September 28, 2011, 22 the respondents ask the Court to deny the petition for lack of merit. They dispute the agency's insistence that they resigned voluntarily. They stand firm on their submission that because of their unbearable living and working conditions in Dubai, they were left with no choice but to resign. Also, the agency never refuted their detailed narration of the reasons for giving up their employment. The respondents maintain that the quitclaim and release affidavits, 23 which the agency presented, betray its desperate attempt to escape its liability to them. They point out that, as found by the NLRC, the affidavits are ready-made documents; for instance, in Lumanta's 24 and Era's 25 affidavits, they mentioned a certain G & A International Manpower as the agency which recruited them a fact totally inapplicable to all the respondents. They contend that they had no choice but to sign the documents; otherwise, their release papers and remaining salaries would not be given to them, a submission which the agency never refuted. CSEHIa On the agency's second line of defense, the compromise agreement (with quitclaim and release) between the respondents and the agency before the POEA, the respondents argue that the agreements pertain only to their charge of recruitment violations against the agency. They add that based on the agreements, read and considered entirely, the agency was discharged only with respect to the recruitment and pre-deployment issues such as excessive placement fees, non-issuance of receipts and placement misrepresentation, but not with respect to post-deployment issues such as illegal dismissal, breach of contract, underpayment of salaries and underpayment and nonpayment of overtime pay. The respondents stress that the agency failed to controvert their contention that the agreements came about only to settle their claim for refund of their airfare which they paid for when they were repatriated. Lastly, the respondents maintain that since they were illegally dismissed, the CA was correct in upholding the NLRC's award of their salaries for the unexpired portion of their employment contracts, as enunciated in Serrano. They point out that the Serrano ruling is curative and remedial in nature and, as such, should be given retroactive application as the Court declared in Yap v. Thenamaris Ship's Management. 26 Further, the respondents take exception to the agency's contention that the Serrano ruling cannot, in any event, be applied in the present case in view of the enactment of R.A. 10022 on March 8, 2010, amending

Section 10 of R.A. 8042. The amendment restored the subject clause in paragraph 5, Section 10 of R.A. 8042 which was struck down as unconstitutional in Serrano. DISEaC The respondents maintain that the agency cannot raise the issue for the first time before this Court when it could have raised it before the CA with its petition for certiorari which it filed on June 8, 2010; 27 otherwise, their right to due process will be violated. The agency, on the other hand, would later claim that it is not barred by estoppel with respect to its reliance on R.A. 10022 as it raised it before the CA in CA-G.R. SP No. 114353. 28 They further argue that RA 10022 cannot be applied in their case, as the law is an amendatory statute which is, as a rule, prospective in application, unless the contrary is provided. 29 To put the issue to rest, the respondents ask the Court to also declare unconstitutional Section 7 of R.A. 10022. Finally, the respondents submit that the petition should be dismissed outright for raising only questions of fact, rather than of law. The Court's Ruling The procedural question We deem it proper to examine the facts of the case on account of the divergence in the factual conclusions of the labor arbiter on the one hand, and, of the NLRC and the CA, on the other. 30 The arbiter found no illegal dismissal in the respondents' loss of employment in Dubai because they voluntarily resigned; whereas, the NLRC and the CA adjudged them to have been illegally dismissed because they were virtually forced to resign. HCITcA The merits of the case We find no merit in the petition. The CA committed no reversible error and neither did it commit grave abuse of discretion in affirming the NLRC's illegal dismissal ruling. The agency and its principal, Modern Metal, committed flagrant violations of the law on overseas employment, as well as basic norms of decency and fair play in an employment relationship, pushing the respondents to look for a better employment and, ultimately, to resign from their jobs. First. The agency and Modern Metal are guilty of contract substitution. The respondents entered into a POEA-approved twoyear employment contract, 31 with Modern Metal providing among others, as earlier discussed, for a monthly salary of 1350 AED. On April 2, 2007, Modern Metal issued to them appointment letters 32 whereby the respondents were hired for a longer three-year period and a reduced salary, from 1,100 AED to 1,200 AED, among other provisions. Then, on May 5, 2007, they were required to sign new employment contracts 33 reflecting the same terms contained in their appointment letters, except that this time, they were hired as "ordinary laborer," no longer aluminum fabricator/installer. The respondents complained with the agency about the contract substitution, but the agency refused or failed to act on the matter. TCaEIc The fact that the respondents' contracts were altered or substituted at the workplace had never been denied by the agency. On the contrary, it admitted that the contract substitution did happen when it argued, "[a]s to their claim for [underpayment] of salary, their original contract mentioned 1350 AED monthly salary, which includes allowance while in their Appointment Letters, they were supposed to receive 1,300 AED. While there was [a] difference of 50 AED monthly, the same could no longer be claimed by virtue of their Affidavits of Quitclaims and Desistance[.]" 34 Clearly, the agency and Modern Metal committed a prohibited practice and engaged in illegal recruitment under the law. Article 34 of the Labor Code provides: Art. 34. Prohibited Practices. It shall be unlawful for any individual, entity, licensee, or holder of authority: cAaETS xxx xxx xxx

(i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor[.] Further, Article 38 of the Labor Code, as amended by R.A. 8042, 35 defined "illegal recruitment" to include the following act:

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment[.] Second. The agency and Modern Metal committed breach of contract. Aggravating the contract substitution imposed upon them by their employer, the respondents were made to suffer substandard (shocking, as they put it) working and living arrangements. Both the original contracts the respondents signed in the Philippines and the appointment letters issued to them by Modern Metal in Dubai provided for free housing and transportation to and from the jobsite. The original contract mentioned free and suitable housing. 36 Although no description of the housing was made in the letters of appointment except: "Accommodation: Provided by the company," it is but reasonable to think that the housing or accommodation would be "suitable." SDHTEC As earlier pointed out, the respondents were made to work from 6:30 a.m. to 6:30 p.m., with a meal break of one to one and a half hours, and their overtime work was mostly not paid or underpaid. Their living quarters were cramped as they shared them with 27 other workers. The lodging house was in Sharjah, far from the jobsite in Dubai, leaving them only three to four hours of sleep every workday because of the long hours of travel to and from their place of work, not to mention that there was no potable water in the lodging house which was located in an area where the air was polluted. The respondents complained with the agency about the hardships that they were suffering, but the agency failed to act on their reports. Significantly, the agency failed to refute their claim, anchored on the ordeal that they went through while in Modern Metal's employ. Third. With their original contracts substituted and their oppressive working and living conditions unmitigated or unresolved, the respondents' decision to resign is not surprising. They were compelled by the dismal state of their employment to give up their jobs; effectively, they were constructively dismissed. A constructive dismissal or discharge is "a quitting because continued employment is rendered impossible, unreasonable or unlikely, as, an offer involving a demotion in rank and a diminution in pay." 37 Without doubt, the respondents' continued employment with Modern Metal had become unreasonable. A reasonable mind would not approve of a substituted contract that pays a diminished salary from 1350 AED a month in the original contract to 1,000 AED to 1,200 AED in the appointment letters, a difference of 150 AED to 250 AED (not just 50 AED as the agency claimed) or an extended employment (from 2 to 3 years) at such inferior terms, or a "free and suitable" housing which is hours away from the job site, cramped and crowded, without potable water and exposed to air pollution. cSEaTH We thus cannot accept the agency's insistence that the respondents voluntarily resigned since they personally prepared their resignation letters 38 in their own handwriting, citing family problems as their common ground for resigning. As the CA did, we find the resignation letters "dubious," 39 not only for having been lopsidedly worded to ensure that the employer is rendered free from any liability, but also for the odd coincidence that all the respondents had, at the same time, been confronted with urgent family problems so that they had to give up their employment and go home. The truth, as the respondents maintain, is that they cited family problems as reason out of fear that Modern Metal would not give them their salaries and their release papers. Only Era was bold enough to say the real reason for his resignation to protest company policy. We likewise find the affidavits 40 of quitclaim and release which the respondents executed suspect. Obviously, the affidavits were prepared as a follow through of the respondents' supposed voluntary resignation. Unlike the resignation letters, the respondents had no hand in the preparation of the affidavits. They must have been prepared by a representative of Modern Metal as they appear to come from a standard form and were apparently introduced for only one purpose to lend credence to the resignation letters. In Modern Metal's haste, however, to secure the respondents' affidavits, they did not check on the model they used. Thus, Lumanta's affidavit 41 mentioned a G & A International Manpower as his recruiting agency, an entity totally unknown to the respondents; the same thing is true for Era's affidavit. 42 This confusion is an indication of the employer's hurried attempt to avoid liability to the respondents. The respondents' position is well-founded. The NLRC itself had the same impression, which we find in order and hereunder quote: HEDSIc

The acts of respondents of requiring the signing of new contracts upon reaching the place of work and requiring employees to sign quitclaims before they are paid and repatriated to the Philippines are all too familiar stories of despicable labor practices which our employees are subjected to abroad. While it is true that quitclaims are generally given weight, however, given the facts of the case, We are of the opinion that the complainants-appellants executed the same under duress and fear that they will not be allowed to return to the Philippines. 43 Fourth. The compromise agreements (with quitclaim and release) 44 between the respondents and the agency before the POEA did not foreclose their employer-employee relationship claims before the NLRC. The respondents, except Ordovez and Enjambre, aver in this respect that they all paid for their own airfare when they returned home 45 and that the compromise agreements settled only their claim for refund of their airfare, but not their other claims. 46 Again, this submission has not been refuted or denied by the agency. On the surface, the compromise agreements appear to confirm the agency's position, yet a closer examination of the documents would reveal their true nature. Copy of the compromise agreement is a standard POEA document, prepared in advance and readily made available to parties who are involved in disputes before the agency, such as what the respondents filed with the POEA ahead (filed in 2007) of the illegal dismissal complaint before the NLRC (filed on March 5, 2008). EHaCID Under the heading "Post-Deployment," the agency agreed to pay Era 47 and Alcantara 48 P12,000.00 each, purportedly in satisfaction of the respondents' claims arising from overseas employment, consisting of unpaid salaries, salary differentials and other benefits, including money claims with the NLRC. The last document was signed by (1) Anipan, (2) Lumanta, (3) Ladea, (4) Vinuya, (5) Jonathan Nangolinola, and (6) Zosimo Gatchalian (the last four signing on the left hand side of the document; the last two were not among those who filed the illegal dismissal complaint). 49 The agency agreed to pay them a total of P72,000.00. Although there was no breakdown of the entitlement for each of the six, but guided by the compromise agreement signed by Era and Alcantara, we believe that the agency paid them P12,000.00 each, just like Era and Alcantara. The uniform insubstantial amount for each of the signatories to the agreement lends credence to their contention that the settlement pertained only to their claim for refund of the airfare which they shouldered when they returned to the Philippines. The compromise agreement, apparently, was intended by the agency as a settlement with the respondents and others with similar claims, which explains the inclusion of the two (Nangolinola and Gatchalian) who were not involved in the case with the NLRC. Under the circumstances, we cannot see how the compromise agreements can be considered to have fully settled the respondents' claims before the NLRC illegal dismissal and monetary benefits arising from employment. We thus find no reversible error nor grave abuse of discretion in the rejection by the NLRC and the CA of said agreements. cIHSTC Fifth. The agency's objection to the application of the Serrano ruling in the present case is of no moment. Its argument that the ruling cannot be given retroactive effect, because it is curative and remedial, is untenable. It points out, in this respect, that the respondents filed the complaint in 2007, while the Serrano ruling was handed down in March 2009. The issue, as the respondents correctly argue, has been resolved in Yap v. Thenamaris Ship's Management, 50 where the Court sustained the retroactive application of the Serrano ruling which declared unconstitutional the subject clause in Section 10, paragraph 5 of R.A. 8042, limiting to three months the payment of salaries to illegally dismissed Overseas Filipino Workers. Undaunted, the agency posits that in any event, the Serrano ruling has been nullified by R.A. No. 10022, entitled "An Act Amending Republic Act No. 8042, Otherwise Known as the Migrant Workers and Overseas Filipinos Act of 1995, As Amended, Further Improving the Standard of Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas Filipinos in Distress, and for Other Purposes." 51 It argues that R.A. 10022, which lapsed into law (without the Signature of the President) on March 8, 2010, restored the subject clause in the 5th paragraph, Section 10 of R.A. 8042. The amendment, contained in Section 7 of R.A. 10022, reads as follows: In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement "of" his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. 52 (emphasis ours) HcACTE This argument fails to persuade us. Laws shall have no retroactive effect, unless the contrary is provided. 53 By its very nature, the amendment introduced by R.A. 10022 restoring a provision of R.A. 8042 declared unconstitutional cannot be

given retroactive effect, not only because there is no express declaration of retroactivity in the law, but because retroactive application will result in an impairment of a right that had accrued to the respondents by virtue of the Serrano ruling entitlement to their salaries for the unexpired portion of their employment contracts. All statutes are to be construed as having only a prospective application, unless the purpose and intention of the legislature to give them a retrospective effect are expressly declared or are necessarily implied from the language used. 54 We thus see no reason to nullify the application of the Serrano ruling in the present case. Whether or not R.A. 10022 is constitutional is not for us to rule upon in the present case as this is an issue that is not squarely before us. In other words, this is an issue that awaits its proper day in court; in the meanwhile, we make no pronouncement on it. cCSEaA WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated May 9, 2011 and the Resolution dated June 23, 2011 of the Court of Appeals in CA-G.R. SP No. 114353 are AFFIRMED. Let this Decision be brought to the attention of the Honorable Secretary of Labor and Employment and the Administrator of the Philippine Overseas Employment Administration as a black mark in the deployment record of petitioner Pert/CPM Manpower Exponent Co., Inc., and as a record that should be considered in any similar future violations. Costs against the petitioner. SO ORDERED.

FIRST DIVISION [G.R. No. 167057. April 11, 2012.] NERWIN INDUSTRIES CORPORATION, petitioner, vs. PNOC-ENERGY DEVELOPMENT CORPORATION, and ESTER R. GUERZON, Chairman, Bids and Awards Committee, respondents. DECISION BERSAMIN, J p: Republic Act No. 8975 1 expressly prohibits any court, except the Supreme Court, from issuing any temporary restraining order (TRO), preliminary injunction, or preliminary mandatory injunction to restrain, prohibit or compel the Government, or any of its subdivisions or officials, or any person or entity, whether public or private, acting under the Government's direction, from: (a) acquiring, clearing, and developing the right-of-way, site or location of any National Government project; (b) bidding or awarding of a contract or project of the National Government; (c) commencing, prosecuting, executing, implementing, or operating any such contract or project; (d) terminating or rescinding any such contract or project; and (e) undertaking or authorizing any other lawful activity necessary for such contract or project. Accordingly, a Regional Trial Court (RTC) that ignores the statutory prohibition and issues a TRO or a writ of preliminary injunction or preliminary mandatory injunction against a government contract or project acts contrary to law. IcADSE Antecedents The following antecedents are culled from the assailed decision of the Court of Appeals (CA) promulgated on October 22, 2004, 2 viz.: In 1999, the National Electrification Administration ("NEA") published an invitation to pre-qualify and to bid for a contract, otherwise known as IPB No. 80, for the supply and delivery of about sixty thousand (60,000) pieces of woodpoles and twenty thousand (20,000) pieces of crossarms needed in the country's Rural Electrification Project. The said contract consisted of four (4) components, namely: PIA, PIB and PIC or woodpoles and P3 or crossarms, necessary for NEA's projected allocation for Luzon, Visayas and Mindanao. In response to the said invitation, bidders, such as private respondent [Nerwin], were required to submit their application for eligibility together with their technical proposals. At the same time, they were informed that only those who would pass the standard pre-qualification would be invited to submit their financial bids. Following a thorough review of the bidders' qualifications and eligibility, only four (4) bidders, including private respondent [Nerwin], qualified to participate in the bidding for the IPB-80 contract. Thereafter, the qualified bidders submitted their financial bids where private respondent [Nerwin] emerged as the lowest bidder for all schedules/components of the contract. NEA then conducted a pre-award inspection of private respondent's [Nerwin's] manufacturing plants and facilities, including its identified supplier in Malaysia, to determine its capability to supply and deliver NEA's requirements. In the Recommendation of Award for Schedules PIA, PIB, PIC and P3 IBP No. 80 [for the] Supply and Delivery of Woodpoles and Crossarms dated October 4, 2000, NEA administrator Conrado M. Estrella III recommended to NEA's Board of Directors the approval of award to private respondent [Nerwin] of all schedules for IBP No. 80 on account of the following: aTEHCc a. Nerwin is the lowest complying and responsive bidder;

b. The price difference for the four (4) schedules between the bid of Nerwin Industries (lowest responsive and complying bidder) and the second lowest bidder in the amount of $1.47 million for the poles and $0.475 million for the crossarms, is deemed substantial and extremely advantageous to the government. The price difference is equivalent to 7,948 pcs. of poles and 20.967 pcs. of crossarms; c. The price difference for the three (3) schedules between the bids of Nerwin and the Tri-State Pole and Piling, Inc. approximately in the amount of $2.36 million for the poles and $0.475 million for the crossarms are equivalent to additional 12.872 pcs. of poles and 20.967 pcs. of crossarms; and

d. The bidder and manufacturer are capable of supplying the woodpoles and specified in the bid documents and as based on the pre-award inspection conducted. However, on December 19, 2000, NEA's Board of Directors passed Resolution No. 32 reducing by 50% the material requirements for IBP No. 80 "given the time limitations for the delivery of the materials, . . . , and with the loan closing date of October 2001 fast approaching". In turn, it resolved to award the four (4) schedules of IBP No. 80 at a reduced number to private respondent [Nerwin]. Private respondent [Nerwin] protested the said 50% reduction, alleging that the same was a ploy to accommodate a losing bidder. AHcCDI On the other hand, the losing bidders Tri State and Pacific Synnergy appeared to have filed a complaint, citing alleged false or falsified documents submitted during the pre-qualification stage which led to the award of the IBP-80 project to private respondent [Nerwin]. Thus, finding a way to nullify the result of the previous bidding, NEA officials sought the opinion of the Government Corporate Counsel who, among others, upheld the eligibility and qualification of private respondent [Nerwin]. Dissatisfied, the said officials attempted to seek a revision of the earlier opinion but the Government Corporate Counsel declared anew that there was no legal impediment to prevent the award of IPB-80 contract to private respondent [Nerwin]. Notwithstanding, NEA allegedly held negotiations with other bidders relative to the IPB-80 contract, prompting private respondent [Nerwin] to file a complaint for specific performance with prayer for the issuance of an injunction, which injunctive application was granted by Branch 36 of RTC-Manila in Civil Case No. 01102000. IaAHCE In the interim, PNOC-Energy Development Corporation purporting to be under the Department of Energy, issued Requisition No. FGJ 30904R1 or an invitation to pre-qualify and to bid for wooden poles needed for its Samar Rural Electrification Project ("O-ILAW project"). Upon learning of the issuance of Requisition No. FGJ 30904R1 for the O-ILAW Project, Nerwin filed a civil action in the RTC in Manila, docketed as Civil Case No. 03106921 entitled Nerwin Industries Corporation v. PNOC-Energy Development Corporation and Ester R. Guerzon, as Chairman, Bids and Awards Committee, alleging that Requisition No. FGJ 30904R1 was an attempt to subject a portion of the items covered by IPB No. 80 to another bidding; and praying that a TRO issue to enjoin respondents' proposed bidding for the wooden poles. Respondents sought the dismissal of Civil Case No. 03106921, stating that the complaint averred no cause of action, violated the rule that government infrastructure projects were not to be subjected to TROs, contravened the mandatory prohibition against non-forum shopping, and the corporate president had no authority to sign and file the complaint. 3 On June 27, 2003, after Nerwin had filed its rejoinder to respondents' reply, the RTC granted a TRO in Civil Case No. 03106921. 4 IDSEAH On July 30, 2003, the RTC issued an order, 5 as follows: WHEREFORE, for the foregoing considerations, an order is hereby issued by this Court: 1. 2. DENYING the motion to consolidate; DENYING the urgent motion for reconsideration;

3. DISQUALIFYING Attys. Michael A. Medado, Datu Omar S. Sinsuat and Mariano H. Paps from appearing as counsel for the defendants; 4. 5. DECLARING defendants in default; GRANTING the motion for issuance of writ of preliminary injunction. TcDAHS

Accordingly, let a writ of preliminary injunction issue enjoining the defendant PNOC-EDC and its Chairman of Bids and Awards Committee Esther R. Guerzon from continuing the holding of the subject bidding upon the plaintiffs filing of a bond in the amount of P200,000.00 to answer for any damage or damages which the defendants may suffer should it be finally adjudged that petitioner is not entitled thereto, until final determination of the issue in this case by this Court.

This order shall become effective only upon the posting of a bond by the plaintiffs in the amount of P200,000.00. Let a copy of this order be immediately served on the defendants and strict compliance herein is enjoined. Furnish the Office of the Government Corporate Counsel copy of this order. SO ORDERED. Respondents moved for the reconsideration of the order of July 30, 2003, and also to set aside the order of default and to admit their answer to the complaint. On January 13, 2004, the RTC denied respondents' motions for reconsideration, to set aside order of default, and to admit answer. 6 ITSaHC Thence, respondents commenced in the Court of Appeals (CA) a special civil action for certiorari (CA-G.R. SP No. 83144), alleging that the RTC had thereby committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that Nerwin had been entitled to the issuance of the writ of preliminary injunction despite the express prohibition from the law and from the Supreme Court; in issuing the TRO in blatant violation of the Rules of Court and established jurisprudence; in declaring respondents in default; and in disqualifying respondents' counsel from representing them. 7 On October 22, 2004, the CA promulgated its decision, 8 to wit: WHEREFORE, the petition is GRANTED. The assailed Orders dated July 30 and December 29, 2003 are hereby ANNULED and SET ASIDE. Accordingly, Civil Case No. 03106921, private respondent's complaint for issuance of temporary restraining order/writ of preliminary injunction before Branch 37 of the Regional Trial Court of Manila, is DISMISSED for lack of merit. SO ORDERED. Nerwin filed a motion for reconsideration, but the CA denied the motion on February 9, 2005. 9 cCTIaS Issues Hence, Nerwin appeals, raising the following issues: I. Whether or not the CA erred in dismissing the case on the basis of Rep. Act 8975 prohibiting the issuance of temporary restraining orders and preliminary injunctions, except if issued by the Supreme Court, on government projects. II. Whether or not the CA erred in ordering the dismissal of the entire case on the basis of Rep. Act 8975 which prohibits the issuance only of a preliminary injunction but not injunction as a final remedy. III. Ruling The petition fails. In its decision of October 22, 2004, the CA explained why it annulled and set aside the assailed orders of the RTC issued on July 20, 2003 and December 29, 2003, and why it altogether dismissed Civil Case No. 03106921, as follows: DcSACE It is beyond dispute that the crux of the instant case is the propriety of respondent Judge's issuance of a preliminary injunction, or the earlier TRO, for that matter. Respondent Judge gravely abused his discretion in entertaining an application for TRO/preliminary injunction, and worse, in issuing a preliminary injunction through the assailed order enjoining petitioners' sought bidding for its O-ILAW Project. The same is a palpable violation of RA 8975 which was approved on November 7, 2000, thus, already existing at the time respondent Judge issued the assailed Orders dated July 20 and December 29, 2003. Section 3 of RA 8975 states in no uncertain terms, thus: Whether or not the CA erred in dismissing the case considering that it is also one for damages.

Prohibition on the Issuance of temporary Restraining Order, Preliminary Injunctions and Preliminary Mandatory Injunctions. No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials, or any person or entity, whether public or private, acting under the government's direction, to restrain, prohibit or compel the following acts: xxx (b) xxx xxx xxx

Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; aSCHcA xxx xxx

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. . . . The said proscription is not entirely new. RA 8975 merely supersedes PD 1818 which earlier underscored the prohibition to courts from issuing restraining orders or preliminary injunctions in cases involving infrastructure or National Resources Development projects of, and public utilities operated by, the government. This law was, in fact, earlier upheld to have such a mandatory nature by the Supreme Court in an administrative case against a Judge. Moreover, to bolster the significance of the said prohibition, the Supreme Court had the same embodied in its Administrative Circular No. 11-2000 which reiterates the ban on issuance of TRO or writs of Preliminary Prohibitory or Mandatory Injunction in cases involving Government Infrastructure Projects. Pertinent is the ruling in National Housing Authority vs. Allarde "As regards the definition of infrastructure projects, the Court stressed in Republic of the Phil. vs. Salvador Silverio and Big Bertha Construction: The term 'infrastructure projects' means 'construction, improvement and rehabilitation of roads, and bridges, railways, airports, seaports, communication facilities, irrigation, flood control and drainage, water supply and sewerage systems, shore protection, power facilities, national buildings, school buildings, hospital buildings and other related construction projects that form part of the government capital investment." SDaHEc Thus, there is nothing from the law or jurisprudence, or even from the facts of the case, that would justify respondent Judge's blatant disregard of a "simple, comprehensible and unequivocal mandate (of PD 1818) prohibiting the issuance of injunctive writs relative to government infrastructure projects." Respondent Judge did not even endeavor, although expectedly, to show that the instant case falls under the single exception where the said proscription may not apply, i.e., when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. Respondent Judge could not have legally declared petitioner in default because, in the first place, he should not have given due course to private respondent's complaint for injunction. Indubitably, the assailed orders were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. SaIHDA Perforce, this Court no longer sees the need to resolve the other grounds proffered by petitioners. 10 The CA's decision was absolutely correct. The RTC gravely abused its discretion, firstly, when it entertained the complaint of Nerwin against respondents notwithstanding that Nerwin was thereby contravening the express provisions of Section 3 and Section 4 of Republic Act No. 8975 for its seeking to enjoin the bidding out by respondents of the O-ILAW Project; and, secondly, when it issued the TRO and the writ of preliminary prohibitory injunction. Section 3 and Section 4 of Republic Act No. 8975 provide: Section 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Injunctions and Preliminary Mandatory Injunctions. No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private, acting under the government's direction, to restrain, prohibit or compel the following acts: SACEca

(a) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; (b) (c) (d) (e) Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; Commencement, prosecution, execution, implementation, operation of any such contract or project; Termination or rescission of any such contract/project; and The undertaking or authorization of any other lawful activity necessary for such contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. If after due hearing the court finds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the qualified and winning bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws. DHITCc Section 4. Nullity of Writs and Orders. Any temporary restraining order, preliminary injunction or preliminary mandatory injunction issued in violation of Section 3 hereof is void and of no force and effect. The text and tenor of the provisions being clear and unambiguous, nothing was left for the RTC to do except to enforce them and to exact upon Nerwin obedience to them. The RTC could not have been unaware of the prohibition under Republic Act No. 8975 considering that the Court had itself instructed all judges and justices of the lower courts, through Administrative Circular No. 11-2000, to comply with and respect the prohibition against the issuance of TROs or writs of preliminary prohibitory or mandatory injunction involving contracts and projects of the Government. CEDHTa It is of great relevance to mention at this juncture that Judge Vicente A. Hidalgo, the Presiding Judge of Branch 37 of the RTC, the branch to which Civil Case No. 03106921 had been raffled, was in fact already found administratively liable for gross misconduct and gross ignorance of the law as the result of his issuance of the assailed TRO and writ of preliminary prohibitory injunction. The Court could only fine him in the amount of P40,000.00 last August 6, 2008 in view of his intervening retirement from the service. That sanction was meted on him in A.M. No. RTJ-08-2133 entitled Sinsuat v. Hidalgo, 11 where this Court stated: The Court finds that, indeed, respondent is liable for gross misconduct. As the CA explained in its above-stated Decision in the petition for certiorari, respondent failed to heed the mandatory ban imposed by P.D. No. 1818 and R.A. No. 8975 against a government infrastructure project, which the rural electrification project certainly was. He thereby likewise obstinately disregarded this Court's various circulars enjoining courts from issuing TROs and injunctions against government infrastructure projects in line with the proscription under R.A. No. 8975. Apropos are Gov. Garcia v. Hon. Burgos and National Housing Authority v. Hon. Allarde wherein this Court stressed that P.D. No. 1818 expressly deprives courts of jurisdiction to issue injunctive writs against the implementation or execution of a government infrastructure project. DAHEaT Reiterating the prohibitory mandate of P.D. No. 1818, the Court in Atty. Caguioa v. Judge Lavia faulted a judge for grave misconduct for issuing a TRO against a government infrastructure project thus: . . . It appears that respondent is either feigning a misunderstanding of the law or openly manifesting a contumacious indifference thereto. In any case, his disregard of the clear mandate of PD 1818, as well as of the Supreme Court Circulars enjoining strict compliance therewith, constitutes grave misconduct and conduct prejudicial to the proper administration of justice. His claim that the said statute is inapplicable to his January 21, 1997 Order extending the dubious TRO is but a contrived subterfuge to evade administrative liability.

In resolving matters in litigation, judges should endeavor assiduously to ascertain the facts and the applicable laws. Moreover, they should exhibit more than just a cursory acquaintance with statutes and procedural rules. Also, they are expected to keep abreast of and be conversant with the rules and the circulars which the Supreme Court has adopted and which affect the disposition of cases before them. Although judges have in their favor the presumption of regularity and good faith in the performance of their judicial functions, a blatant disregard of the clear and unmistakable terms of the law obviates this presumption and renders them susceptible to administrative sanctions. (Emphasis and underscoring supplied) cSATDC The pronouncements in Caguioa apply as well to respondent. The questioned acts of respondent also constitute gross ignorance of the law for being patently in disregard of simple, elementary and well-known rules which judges are expected to know and apply properly. IN FINE, respondent is guilty of gross misconduct and gross ignorance of the law, which are serious charges under Section 8 of Rule 140 of the Rules of Court. He having retired from the service, a fine in the amount of P40,000 is imposed upon him, the maximum amount fixed under Section 11 of Rule 140 as an alternative sanction to dismissal or suspension. 12 Even as the foregoing outcome has rendered any further treatment and discussion of Nerwin's other submissions superfluous and unnecessary, the Court notes that the RTC did not properly appreciate the real nature and true purpose of the injunctive remedy. This failing of the RTC presses the Court to use this decision to reiterate the norms and parameters long standing jurisprudence has set to control the issuance of TROs and writs of injunction, and to now insist on conformity to them by all litigants and lower courts. Only thereby may the grave misconduct committed in Civil Case No. 03106921 be avoided. cDCaTS A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or person, to refrain from a particular act or acts. 13 It is an ancillary or preventive remedy resorted to by a litigant to protect or preserve his rights or interests during the pendency of the case. As such, it is issued only when it is established that: (a) The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; or (b) The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or aSTECA (c) A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. 14 The existence of a right to be protected by the injunctive relief is indispensable. In City Government of Butuan v. Consolidated Broadcasting System (CBS), Inc., 15 the Court elaborated on this requirement, viz.: As with all equitable remedies, injunction must be issued only at the instance of a party who possesses sufficient interest in or title to the right or the property sought to be protected. It is proper only when the applicant appears to be entitled to the relief demanded in the complaint, which must aver the existence of the right and the violation of the right, or whose averments must in the minimum constitute a prima facie showing of a right to the final relief sought. Accordingly, the conditions for the issuance of the injunctive writ are: (a) that the right to be protected exists prima facie; (b) that the act sought to be enjoined is violative of that right; and (c) that there is an urgent and paramount necessity for the writ to prevent serious damage. An injunction will not issue to protect a right not in esse, or a right which is merely contingent and may never arise; or to restrain an act which does not give rise to a cause of action; or to prevent the perpetration of an act prohibited by statute. Indeed, a right, to be protected by injunction, means a right clearly founded on or granted by law or is enforceable as a matter of law. 16 Conclusive proof of the existence of the right to be protected is not demanded, however, for, as the Court has held in Saulog v. Court of Appeals, 17 it is enough that: IaSAHC

. . . for the court to act, there must be an existing basis of facts affording a present right which is directly threatened by an act sought to be enjoined. And while a clear showing of the right claimed is necessary, its existence need not be conclusively established. In fact, the evidence to be submitted to justify preliminary injunction at the hearing thereon need not be conclusive or complete but need only be a "sampling" intended merely to give the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. This should really be so since our concern here involves only the propriety of the preliminary injunction and not the merits of the case still pending with the trial court. Thus, to be entitled to the writ of preliminary injunction, the private respondent needs only to show that it has the ostensible right to the final relief prayed for in its complaint . . . . 18 In this regard, the Rules of Court grants a broad latitude to the trial courts considering that conflicting claims in an application for a provisional writ more often than not involve and require a factual determination that is not the function of the appellate courts. 19 Nonetheless, the exercise of such discretion must be sound, that is, the issuance of the writ, though discretionary, should be upon the grounds and in the manner provided by law. 20 When that is done, the exercise of sound discretion by the issuing court in injunctive matters must not be interfered with except when there is manifest abuse. 21 Moreover, judges dealing with applications for the injunctive relief ought to be wary of improvidently or unwarrantedly issuing TROs or writs of injunction that tend to dispose of the merits without or before trial. Granting an application for the relief in disregard of that tendency is judicially impermissible, 22 for it is never the function of a TRO or preliminary injunction to determine the merits of a case, 23 or to decide controverted facts. 24 It is but a preventive remedy whose only mission is to prevent threatened wrong, 25 further injury, 26 and irreparable harm 27 or injustice 28 until the rights of the parties can be settled. Judges should thus look at such relief only as a means to protect the ability of their courts to render a meaningful decision. 29 Foremost in their minds should be to guard against a change of circumstances that will hamper or prevent the granting of proper reliefs after a trial on the merits. 30 It is well worth remembering that the writ of preliminary injunction should issue only to prevent the threatened continuous and irremediable injury to the applicant before the claim can be justly and thoroughly studied and adjudicated. 31 DEcSaI WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals; and ORDERS petitioner to pay the costs of suit. The Court Administrator shall disseminate this decision to the lower courts for their guidance. SO ORDERED.

FIRST DIVISION [G.R. No. 137873. April 20, 2001.] D.M. CONSUNJI, INC., petitioner, vs. COURT OF APPEALS and MARIA J. JUEGO, respondents. Castillo Laman Tan Pantaleon and San Jose Law Offices for petitioner. Manuel Y. Fausto for respondent. SYNOPSIS Jose Juego was a construction worker of D.M. Consunji, Inc. when he fell to his death from the 14th floor of Renaisance Tower. He was performing his work as a carpenter at the elevator core of the building when suddenly the platform on which he was on board fell down to the basement of the core. His widow filed a complaint for damages against D.M. Consunji, Inc. Consunji raised the defense that the widow availed of the benefits from the State Insurance Fund. After trial, the Regional Trial Court (RTC) rendered a decision in favor of the widow. On appeal by D.M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto. D.M. Consunji seeks the reversal of the CA decision questioning the admissibility of the police report as evidence of the negligence of the petitioner, the applicability of the doctrine of res ipsa loquitur, the presumption of negligence under Article 2180 of the Civil Code, and that the respondent was not precluded from recovering damages under the Civil Code. EASCDH The Supreme Court ruled that the police report in this case was inadmissible for the purpose of proving the truth of the statements contained therein but was admissible insofar as it constituted part of the testimony of the police officer involved. However, such inadmissibility loses relevance in the face of the application of res ipsa loquitur. The effect of the doctrine is to warrant the presumption that the mere fall of the elevator was a result of the person having charge of the instrumentality was negligent. Petitioner in this case was unable to present evidence to rebut the inference or presumption of negligence arising from the application of res ipsa loquitur. The Court also ruled that the respondent was not precluded from recovering damages under the Civil Code. There was no showing that she knew of the remedies available to her when the claim before the ECC was filed. The case was remanded to the Regional Trial Court to determine whether the award decreed in its decision was more than that of the ECC. Should the award be greater, payments already made to the private respondent pursuant to the ECC shall be deducted therefrom. The decision of the Court of Appeals was affirmed. cCHITA SYLLABUS 1. REMEDIAL LAW; EVIDENCE; HEARSAY RULE; CONSTRUED. The Rules of Court provide that a witness can testify only to those facts which he knows of his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. This is known as the hearsay rule. Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements. The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination. The hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination. ADSIaT 2. ID.; ID.; ID.; EXCEPTION; ENTRIES IN OFFICIAL RECORDS; REQUISITES. The Rules of Court allow several exceptions to the rule, among which are entries in official records. Section 44, Rule 130 provides: Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief Justice Moran, enumerated the requisites for admissibility under the above rule: (a) that the entry was made by a public officer or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

3. ID.; ID.; RES IPSA LOQUITUR; DEFINED AND CONSTRUED. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The concept of res ipsa loquitur has been explained in this wise: While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendant's part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. . . . where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care. One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendant's negligence is beyond plaintiff's power. Accordingly, some courts add to the three prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident. DITEAc 4. ID.; ID.; ID.; PROCEDURAL EFFECT OF THE DOCTRINE; APPLICATION IN CASE AT BAR. Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell respondent's husband". Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant's negligence is presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established. ADSTCa 5. ID.; ID.; AFFIDAVITS; INADMISSIBLE UNDER THE HEARSAY RULE; RATIONALE; EXCEPTION. Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to crossexamine the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant's statements which may either be omitted or misunderstood by the one writing them. Petitioner, therefore, cannot use said statement as proof of its due care any more than private respondent can use it to prove the cause of her husband's death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the incident. CEcaTH 6. LABOR AND SOCIAL LEGISLATION; LABOR RELATIONS; DEATH BENEFITS; RECOVERY OF DAMAGES FROM WORKMEN'S COMPENSATION ACT AND TO PROSECUTE AN ORDINARY CIVIL ACTION; CHOICE OF ONLY ONE REMEDY SHOULD BE AVAILABLE FOR THE HEIRS; EXCEPTION. Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc, following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative. We now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection or choice of action

between availing themselves of the worker's right under the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmen's Compensation Act and sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled that an injured worker has a choice of either to recover from the employer the fixed amounts set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher damages but he cannot pursue both courses of action simultaneously. Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code despite having availed of the benefits provided under the Workmen's Compensation Act. The Court reasoned: With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments . . . . Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated May 27, 1968 . . . in the lower court, but they set up the defense that the claims were filed under the Workmen's Compensation Act before they learned of the official report of the committee created to investigate the accident which established the criminal negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only . . . . We hold that although the other petitioners had received the benefits under the Workmen's Compensation Act, such may not preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Act. Had petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not have sought redress under the Workmen's Compensation Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the petitioners be successful in their bid before the lower court, the payments made under the Workmen's Compensation Act should be deducted from the damages that may be decreed in their favor. The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs. Avelino, Vda. de Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs. Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court said: In the Robles case, it was held that claims for damages sustained by workers in the course of their employment could be filed only under the Workmen's Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the claimants may invoke either the Workmen's Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other remedy. The exception is where a claimant who has already been paid under the Workmen's Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy. cda 7. ID.; ID.; ID.; ID.; ID.; WAIVER OF REMEDIES THROUGH ELECTION; EFFECT THEREOF. When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The first act of election acts as a bar. Equitable in nature, the doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong. The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the other. Waiver is the intentional relinquishment of a known right. [It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party's rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact. A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its

consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or by the evidence. cCaATD 8. ID.; ID.; ID.; ID.; ID.; ID.; WHEN NULLIFIED; APPLICATION IN CASE AT BAR. That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca. It is in light of the foregoing principles that we address petitioner's contentions. Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its Answer; otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial court. Does the evidence show that private respondent knew of the facts that led to her husband's death and the rights pertaining to a choice of remedies? It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as a basis for nullifying the waiver is the negligence of petitioner's employees, of which private respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation of government rules and regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar. HAECID 9. CIVIL LAW; CIVIL CODE; IGNORANCE OF THE LAW EXCUSES NO ONE FROM COMPLIANCE THEREWITH (ARTICLE 3); LIMITED TO MANDATORY OR PROHIBITORY LAWS. The application of Article 3 of the Civil Code is limited to mandatory and prohibitory laws. This may be deduced from the language of the provision, which, notwithstanding a person's ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her. TIaCcD DECISION KAPUNAN, J p: At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D.M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. THIECD PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November 25, 1990, stating that: . . . . [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date. Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with the [p]latform, got loose . . . causing the whole [p]latform assembly and the victim to fall down to the basement of the elevator core, Tower D of the building under construction thereby crushing the victim to death, save his two (2) companions who luckily jumped out for safety. It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the pin which was merely inserted to the connecting points of the chain block and [p]latform but without a safety lock. 1 On May 9, 1991, Jose Juego's widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for damages against the deceased's employer, D.M. Consunji, Inc. The employer raised, among other defenses, the widow's prior availment of the benefits from the State Insurance Fund. After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows: 1. 2. 3. 4. 5. P50,000.00 for the death of Jose A. Juego. P10,000.00 as actual and compensatory damages. P464,000.00 for the loss of Jose A. Juego's earning capacity. P100,000.00 as moral damages. P20,000.00 as attorney's fees, plus the costs of suit.

SO ORDERED. 2 On appeal by D.M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto. D.M. Consunji now seeks the reversal of the CA decision on the following grounds: THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER. THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER. THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3 Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule. The Rules of Court provide that a witness can testify only to those facts which he knows of his personal knowledge, that is, which are derived from his perception. 4 A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. 5 This is known as the hearsay rule. HAICcD Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements. 6 The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of crossexamination. 7 The hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination. 8 The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records. Section 44, Rule 130 provides: Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. In Africa, et al. vs. Caltex (Phil. ), Inc., et al., 10 this Court, citing the work of Chief Justice Moran, enumerated the requisites for admissibility under the above rule: (a) that the entry was made by a public officer or by another person specially enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not present. The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court. In Rodriguez vs. Court of Appeals, 11 which involved a Fire Investigation Report, the officer who signed the fire report also testified before the trial court. This Court held that the report was inadmissible for the purpose of proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the testimony of the officer who executed the report. . . . . Since Major Enriquez himself took the witness stand and was available for cross-examination, the portions of the report which were of his personal knowledge or which consisted of his perception and conclusions were not hearsay. The rest of the report, such as the summary of the statements of the parties based on their sworn statements (which were annexed to the Report) as well as the latter, having been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may then be considered as independently relevant statements which were gathered in the course of the investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that: "Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact." When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for crossexamination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony in open court of the officer who made the official record, considers the matter as an exception to the hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon. The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official sources. Were there no exception for official statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering deposition before an officer. The work of administration of government and the interest of the public having business with officials would alike suffer in consequence. For these reasons, and for many others, a certain verity is accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631). AEDCHc The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given in evidence and shall be taken to be true under such a degree of caution as to the nature and circumstances of each case may appear to require. It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination, and this Court would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to qualify as "official information," there being no showing that, at the very least, they were under a duty to give the statements for record. Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements contained therein but is admissible insofar as; it constitutes part of the testimony of PO3 Villanueva. In any case, the Court holds that portions of PO3 Villanueva's testimony which were of his personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juego's remains at the morgue, 12 making the latter's death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building

the day after the incident 13 and saw the platform for himself. 14 He observed that the platform was crushed 15 and that it was totally damaged. 16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without any pin or bolt. 17 What petitioner takes particular exception to is PO3 Villanueva's testimony that the cause of the fall of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to certain exceptions, 18 the opinion of a witness is generally not admissible. 19 Petitioner's contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. 20 The concept of res ipsa loquitur has been explained in this wise: While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendant's part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. . . . where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care. 21 One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. 22 The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendant's negligence is beyond plaintiff's power. Accordingly, some courts add to the three prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident. 23 The CA held that all the requisites of res ipsa loquitur are present in the case at bar: SHIETa There is no dispute that appellee's husband fell down from the 14th floor of a building to the basement while he was working with appellant's construction project, resulting to his death. The construction site is within the exclusive control and management of appellant. It has a safety engineer, a project superintendent, a carpenter leadman and others who are in complete control of the situation therein. The circumstances of any accident that would occur therein are peculiarly within the knowledge of the appellant or its employees. On the other hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent;

(2) the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. . . . . No worker is going to fall from the 14th floor of a building to the basement while performing work in a construction site unless someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive control and management of appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the appellee's deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of appellant's negligence arises. . . . 24 Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell respondent's husband." Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant's negligence is presumed or inferred 25 when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. 26 The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. 27 It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established. In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator as evidence of its due care. According to Fabro's sworn statement, the company enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its use. It is ironic that petitioner relies on Fabro's sworn statement as proof of its due care but, in arguing that private respondent failed to prove negligence on the part of petitioner's employees, also assails the same statement for being hearsay. Petitioner is correct. Fabro's sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant's statements which may either be omitted or misunderstood by the one writing them. 29 Petitioner, therefore, cannot use said statement as proof of its due care any more than private respondent can use it to prove the cause of her husband's death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the incident. Next, petitioner argues that private respondent had previously availed of the death benefits provided under the Labor Code and is, therefore, precluded from claiming from the deceased's employer damages under the Civil Code. Article 173 of the Labor Code states: ARTICLE 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered Fortyeight hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government. The precursor of Article 173 of the Labor Code, Section 5 of the Workmen's Compensation Act, provided that: DcCEHI

SECTION 5. Exclusive right to compensation. The rights -and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of said injury . . . . Whether Section 5 of the Workmen's Compensation Act allowed recovery under said Act as well as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca vs. Philex Mining Corporation, 30 which involved a cave-in resulting in the death of the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations, failed to take the required precautions for the protection of the employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court. Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc, 31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative. WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection or choice of action between availing themselves of the worker's right under the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmen's Compensation Act and sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled that an injured worker has a choice of either to recover from the employer the fixed amounts set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the tort-feasor for higher damages but he cannot pursue both courses of action simultaneously. [Emphasis supplied.] Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code despite having availed of the benefits provided under the Workmen's Compensation Act. The Court reasoned: With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments . . . . Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated May 27, 1968 . . . in the lower court, but they set up the defense that the claims were filed under the Workmen's Compensation Act before they learned of the official report of the committee created to investigate the accident which established the criminal negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only . . . . WE hold that although the other petitioners had received the benefits under the Workmen's Compensation Act, such may not preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Act. Had petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not have sought redress under the Workmen's Compensation Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the petitioners be successful in their bid before the lower court, the payments made under the Workmen's Compensation Act should be deducted from the damages that may be decreed in their favor. [Emphasis supplied.] The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs. Avelino, 32 Vda. de Severo vs. Feliciano-Go, 33 and Marcopper Mining Corp. vs. Abeleda. 34 In the last case, the Court again recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court said: aIHCSA In the Robles case, it was held that claims for damages sustained by workers in the course of their employment could be filed only under the Workmen's Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the claimants may invoke either the Workmen's Compensation Act or the

provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other remedy. The exception is where a claimant who has already been paid under the Workmen's Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy. (Emphasis supplied.) Here, the CA held that private respondent's case came under the exception because private respondent was unaware of petitioner's negligence when she filed her claim for death benefits from the State Insurance Fund. Private respondent filed the civil complaint for damages after she received a copy of the police investigation report and the Prosecutor's Memorandum dismissing the criminal complaint against petitioner's personnel. While stating that there was no negligence attributable to the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception in Floresca: . . . We do not agree that appellee has knowledge of the alleged negligence of appellant as early as November 25, 1990, the date of the police investigator's report. The appellee merely executed her sworn statement before the police investigator concerning her personal circumstances, her relation to the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence Resulting to Homicide" against appellant's employees. It was the investigator who recommended the filing of said case and his supervisor referred the same to the prosecutor's office. This. is a standard operating procedure for police investigators which appellee may not have even known. This may explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro . . . are being charged by complaint of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not have a chance to appear before the public prosecutor as can be inferred from the following statement in said memorandum: "Respondents who were notified pursuant to Law waived their rights to present controverting evidence," thus there was no reason for the public prosecutor to summon the appellee. Hence, notice of appellant's negligence cannot be imputed on appellee before she applied for death benefits under ECC or before she received the first payment therefrom. Her using the police investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutor's Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not attributable to any negligence on the part of the respondents. If at all and as shown by the records this case is civil in nature." (Emphasis supplied.) Considering the foregoing, We are more inclined to believe appellee's allegation that she learned about appellant's negligence only after she applied for and received the benefits under ECC. This is a mistake of fact that will make this case fall under the exception held in the Floresca ruling. 35 The CA further held that not only was private respondent ignorant of the facts, but of her rights as well: . . . . Appellee [Maria Juego] testified that she has reached only elementary school for her educational attainment; that she did not know what damages could be recovered from the death of her husband; and that she did not know that she may also recover more from the Civil Code than from the ECC. . . . . 36 Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue." Petitioner also claims that private respondent could not have been ignorant of the facts because as early as November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting to Homicide" against petitioner's employees. On February 6, 1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient evidence against petitioner's employees, the case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive the benefits from the ECC. IcTEaC When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The first act of election acts as a bar. 37 Equitable in nature, the doctrine of election of remedies is designed to mitigate possible unfairness to

both parties. It rests on the moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong. 38 The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the other. Waiver is the intentional relinquishment of a known right. 39 [It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party's rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact. A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or by the evidence. 40 That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca. It is in light of the foregoing principles that we address petitioner's contentions. Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial court. Does the evidence show that private respondent knew of the facts that led to her husband's death and the rights pertaining to a choice of remedies? It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as a basis for nullifying the waiver is the negligence of petitioner's employees, of which private respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation of government rules and regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar. In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the application in her behalf on November 27, 1990. There is also no showing that private respondent knew of the remedies available to her when the claim before the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights. Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Court's ruling in Floresca allowing a choice of remedies. AaSHED The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws. 42 This may be deduced from the language of the provision, which, notwithstanding a person's ignorance, does not excuse his or her compliance with

the laws. The rule in Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her. Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total amount private respondent ought to receive from the ECC, although it appears from Exhibit "K" 43 that she received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she will eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is subject to speculation, and the case is remanded to the trial court for such determination. Should the trial court find that its award is greater than that of the ECC, payments already received by private respondent under the Labor Code shall be deducted from the trial court's award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double compensation. WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED. SO ORDERED.

SECOND DIVISION [G.R. No. 193484. January 18, 2012.] HYPTE R. AUJERO, petitioner, vs. PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, respondent. DECISION REYES, J p: This is a Petition for Review under Rule 45 of the Rules of Court from the November 12, 2009 Decision 1 and July 28, 2010 Resolution 2 of the Court of Appeals (CA) in CA-G.R. SP No. 107233 entitled "Hypte R. Aujero v. National Labor Relations Commission and Philippine Communications Satellite Corporation." In its November 12, 2009 Decision, the CA dismissed the petitioner's petition for certiorari under Rule 65 of the Rules of Court from the National Labor Relations Commission's (NLRC) July 4, 2008 and September 29, 2008 Resolutions, the dispositive portion of which states: WHEREFORE, the petition is DISMISSED. The assailed Resolutions dated July 4, 2008 and September 29, 2008 of public respondent National Labor Relations Commission in NLRC NCR Case No. 00-07-08921-2004 [NLRC NCR CA No. 049644-06] are AFFIRMED. DTcHaA SO ORDERED. 3 The petitioner filed a Motion for Reconsideration from the above Decision but this was likewise denied by the CA in its July 28, 2010 Resolution. The Antecedent Facts It was in 1967 that the petitioner started working for respondent Philippine Communications Satellite Corporation (Philcomsat) as an accountant in the latter's Finance Department. On August 15, 2001 or after thirty-four (34) years of service, the petitioner applied for early retirement. His application for retirement was approved, effective September 15, 2001, entitling him to receive retirement benefits at a rate equivalent to one and a half of his monthly salary for every year of service. At that time, the petitioner was Philcomsat's Senior Vice-President with a monthly salary of Two Hundred SeventyFour Thousand Eight Hundred Five Pesos (P274,805.00). 4 On September 12, 2001, the petitioner executed a Deed of Release and Quitclaim 5 in Philcomsat's favor, following his receipt from the latter of a check in the amount of Nine Million Four Hundred Thirty-Nine Thousand Three Hundred Twenty-Seven and 91/100 Pesos (P9,439,327.91). 6 Almost three (3) years thereafter, the petitioner filed a complaint for unpaid retirement benefits, claiming that the actual amount of his retirement pay is Fourteen Million Fifteen Thousand and Fifty-Five Pesos (P14,015,055.00) and the P9,439,327.91 he received from Philcomsat as supposed settlement for all his claims is unconscionable, which is more than enough reason to declare his quitclaim as null and void. According to the petitioner, he had no choice but to accept a lesser amount as he was in dire need thereof and was all set to return to his hometown and he signed the quitclaim despite the considerable deficiency as no single centavo would be released to him if he did not execute a release and waiver in Philcomsat's favor. 7 aHSAIT The petitioner claims that his right to receive the full amount of his retirement benefits, which is equivalent to one and a half of his monthly salary for every year of service, is provided under the Retirement Plan that Philcomsat created on January 1, 1977 for the benefit of its employees. 8 On November 3, 1997, Philcomsat and the United Coconut Planters Bank (UCPB) executed a Trust Agreement, where UCPB, as trustee, shall hold, administer and manage the respective contributions of Philcomsat and its employees, as well as the income derived from the investment thereof, for and on behalf of the beneficiaries of the Retirement Plan. 9 The petitioner claims that Philcomsat has no right to withhold any portion of his retirement benefits as the trust fund created pursuant to the Retirement Plan is for the exclusive benefit of Philcomsat employees and Philcomsat had expressly recognized

that it has no right or claim over the trust fund even on the portion pertaining to its contributions. 10 As Section 4 of the Trust Agreement provides: Section 4. The Companies, in accordance with the provisions of the Plan, hereby waive all their rights to their contributions in money or property which are and will be paid or transferred to the Trust Fund, and no person shall have any right in, or with respect to, the Trust Fund or any part thereof except as expressly provided herein or in the Plan. At no time, prior to the satisfaction of all liabilities with respect to the participants and their beneficiaries under the Plan, shall any part of the corpus or income of the Fund be used for or diverted to purposes other than for the exclusive benefit of Plan participants and their beneficiaries. 11 cDTSHE The petitioner calls attention to the August 15, 2001 letter of Philcomsat's Chairman and President, Mr. Carmelo Africa, addressed to UCPB for the release of P9,439,327.91 to the petitioner and P4,575,727.09 to Philcomsat, which predated the execution of his quitclaim on September 12, 2001. 12 According to the petitioner, this indicates Philcomsat's pre-conceived plans to deprive him of a significant portion of his retirement pay. On May 31, 2006, Labor Arbiter Joel S. Lustria (LA Lustria) issued a Decision 13 in the petitioner's favor, directing Philcomsat to pay him the amount of P4,575,727.09 and P274,805.00, representing the balance of his retirement benefits and salary for the period from August 15 to September 15, 2001, respectively. LA Lustria found it hard to believe that the petitioner would voluntary waive a significant portion of his retirement pay. He found the consideration supporting the subject quitclaim unconscionable and ruled that the respondent failed to substantiate its claim that the amount received by the petitioner was a product of negotiations between the parties. Thus: It would appear from the tenor of the letter that, rather that the alleged agreement, between complainant and respondent, respondent is claiming payment for an "outstanding due to Philcomsat" out of the retirement benefits of complainant. This could hardly be considered as proof of an agreement to reduce complainant's retirement benefits. Absent any showing of any agreement or authorization, the deductions from complainant's retirement benefits should be considered as improper and illegal. If we were to give credence to the claim of respondent, it would appear that complainant has voluntarily waived a total amount of [P]4,575,727.09. Given the purpose of retirement benefits to provide for a retiree a source of income for the remainder of his years, it defies understanding how complainant could accept such an arrangement and lose more than [P]4.5 million in the process. One can readily see the unreasonableness of such a proposition. By the same token, the Quitclaim and Waiver over benefits worth millions is apparently unconscionable and unacceptable under normal circumstances. The Supreme Court has consistently ruled that waivers must be fair, reasonable, and just and must not be unconscionable on its face. The explanation of the complainant that he was presented with a lower amount on pain that the entire benefits will not be released is more believable and consistent with evidence. We, therefore, rule against the effectivity of the waiver and quitclaim, thus, complainant is entitled to the balance of his retirement benefits in the amount of [P]4,575,727.09. 14 HISAET In its July 4, 2008 Resolution, 15 the NLRC granted Philcomsat's appeal and reversed and set aside LA Lustria's May 31, 2006 Decision. The NLRC dismissed the petitioner's complaint for unpaid retirement benefits and salary in consideration of the Deed of Release and Quitclaim he executed in September 12, 2001 following his receipt from Philcomsat of the amount of P9,439,327.91, which constitutes the full settlement of all his claims against Philcomsat. According to the NLRC, the petitioner failed to allege, much less, adduce evidence that Philcomsat employed means to vitiate his consent to the quitclaim. The petitioner is well-educated, a licensed accountant and was Philcomsat's Senior Vice-President prior to his retirement; he cannot therefore claim that he signed the quitclaim without understanding the consequences and implications thereof. The relevant portions of the NLRC's July 4, 2008 Resolution states: After analyzing the antecedent, contemporaneous and subsequent facts surrounding the alleged underpayment of retirement benefits, We rule that respondent-appellant have no more obligation to the complainant-appellee. The complainant-appellee willingly received the check for the said amount, without having filed any objections nor reservations thereto, and even executed and signed a Release and Quitclaim in favor of the respondent-appellant. Undoubtedly, the quitclaim the complainant-appellee signed is valid. Complainant-appellee has not denied at any time its due execution and authenticity. He never imputed claims of coercion, undue influence, or fraud against the respondent-appellant. His statement in his reply to the respondent-appellant's position paper that the quitclaim is void alleging that it was obtained

through duress is only an afterthought to make his claim appear to be convincing. If it were true, complainant-appellee should have asserted such fact from the very beginning. Also, there was no convincing proof shown by the complainant-appellee to prove existence of duress exerted against him. His stature and educational attainment would both negate that he can be forced into something against his will. ESTCDA It should be stressed that complainant-appellee even waited for a period of almost three (3) years before he filed the complaint. If he really felt aggrieved by the amount he received, prudence dictates that he immediately would call the respondent-appellant's attention and at the earliest opportune shout his objections, rather than wait for years, before deciding to claim his supposed benefits, [e]specially that his alleged entitlement is a large sum of money. Thus, it is evident that the filing of the instant case is a clear case of afterthought, and that complainant-appellee simply had a change of mind. This We cannot allow. xxx xxx xxx

In the instant case, having willingly signed the Deed of Release and Quitclaim dated September 12, 2001, it is hard to conclude that the complainant-appellee was merely forced by the necessity to execute the quitclaim. Complainant-appellee is not a gullible or unsuspecting person who can easily be tricked or inveigled and, thus, needs the extra protection of law. He is welleducated and a highly experienced man. The release and quitclaim executed by the complainant-appellee is therefore considered valid and binding on him and the respondent-appellant. He is already estopped from questioning the same. 16 Philcomsat's appeal to the NLRC from LA Lustria's May 31, 2006 Decision was filed and its surety bond posted beyond the prescribed period of ten (10) days. On June 20, 2006, a copy of LA Lustria's Decision was served on Maritess Querubin (Querubin), one of Philcomsat's executive assistants, as Philcomsat's counsel and the executive assistant assigned to her were both out of the office. It was only the following day that Querubin gave a copy of the said Decision to the executive assistant of Philcomsat's counsel, leading the latter to believe that it was only then that the said Decision had been served. In turn, this led Philcomsat's counsel to believe that it was on June 21, 2006 that the ten (10) day-period started to run. SEDIaH Having in mind that the delay was only one (1) day and the explanation offered by Philcomsat's counsel, the NLRC disregarded Philcomsat's procedural lapse and proceeded to decide the appeal on its merits. Thus: It appears that on June 20[,] 2006[,] copy of the Decision was received by one (Maritess) who is not the Secretary of respondents-appellants' counsel and therefore not authorized to receive such document. It was only the following day, June 21, 2006, that respondents-appellants['] counsel actually received the Decision which was stamped received on said date. Verily, counsel has until July 3, 2006 within which to perfect the appeal, which he did. In PLDT vs. NLRC, et al., G.R. No. 60250, March 26, 1984, the Honorable Supreme Court held that: "where notice of the Decision was served on the receiving station at the ground floor of the defendant's company building, and received much later at the office of the legal counsel on the ninth floor of said building, which was his address of record, service of said decision has taken effect from said later receipt at the aforesaid office of its legal counsel." Be that as it may, the provisions of Section 10, Rule VII of the NLRC Rules of Procedure, states, that: HAEDIS "SECTION 10. TECHNICAL RULES NOT BINDING. The rules of procedure and evidence prevailing in courts of law and equity shall not be controlling and the Commission shall use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. . . ." Additionally, the Supreme Court has allowed appeals from decisions of the Labor Arbiter to the NLRC, even if filed beyond the reglementary period, in the interest of justice. Moreover, under Article 218 (c) of the Labor Code, the NLRC may, in the exercise of its appellate powers, correct, amend or waive any error, defect or irregularity whether in substance or in form. Further, Article 221 of the same provides that: In any proceedings before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. 17 In his petition for certiorari under Rule 65 of the Rules of Court to the CA, the petitioner accused the NLRC of grave abuse of discretion in giving due course to the respondent's belated appeal by relaxing the application of one of the fundamental requirements of appeal. An appeal, being a mere statutory right, should be exercised in a manner that strictly conforms to the

prescribed procedure. As of July 3, 2006, or when Philcomsat filed its appeal and posted its surety bond, LA Lustria's Decision had become final and executory and Philcomsat's counsel's failure to verify when the copy of said Decision was actually received does not constitute excusable negligence. The petitioner likewise anchored his allegation of grave abuse of discretion against the NLRC on the latter's refusal to strike as invalid the quitclaim he executed in Philcomsat's favor. According to the petitioner, his retirement pay amounts to P14,015,055.00 and P9,439,327.91 he received from Philcomsat as supposed settlement for all his claims against it is unconscionable and this is more than enough reason to declare his quitclaim as null and void. By way of the assailed Decision, the CA found no merit in the petitioner's claims, holding that the NLRC did not act with grave abuse of discretion in giving due course to the respondent's appeal. IcCDAS The Supreme Court has ruled that where a copy of the decision is served on a person who is neither a clerk nor one in charge of the attorney's office, such service is invalid. In the case at bar, it is undisputed that Maritess Querubin, the person who received a copy of the Labor Arbiter's decision, was neither a clerk of Atty. Yanzon, private respondent's counsel, nor a person in charge of Atty. Yanzon's office. Hence, her receipt of said decision on June 20, 2006 cannot be considered as notice to Atty. Yanzon. Since a copy of the decision was actually delivered by Maritess to Atty. Yanzon's secretary only on June 21, 2006, it was only on this date that the ten-day period for the filing of private respondent's appeal commenced to run. Thus, private respondent's July 3, 2006 appeal to the NLRC was seasonably filed. Similarly, the provision of Article 223 of the Labor Code requiring the posting of a bond for the perfection of an appeal of a monetary award must be given liberal interpretation in line with the desired objective of resolving controversies on the merits. If only to achieve substantial justice, strict observance of the reglementary periods may be relaxed if warranted. However, this liberal interpretation must be justified by substantial compliance with the rule. As the Supreme Court ruled in Buenaobra v. Lim King Guan: cAHIST xxx xxx xxx

We note that in the instant case, private respondent substantially complied with the filing of its appeal and the required appeal bond on July 3, 2006 the next working day after July 1, 2006, the intervening days between the said two dates being a Saturday and a Sunday. Substantial justice dictates that the present case be decided on the merits, especially since there was a mere one-day delay in the filing by private respondent of its appeal and appeal bond with the NLRC. . . . . 18 (citation omitted) The CA further ruled that the NLRC was correct in upholding the validity of the petitioner's quitclaim. Thus: In the same vein, this Court finds that the NLRC did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring as valid the Deed of Release and Quitclaim dated September 12, 2001 absolving private respondent from liability arising from any and all suits, claims, demands or other causes of action of whatever nature in consideration of the amount petitioner received in connection with his retirement signed by petitioner. . . . xxx xxx xxx

The assertion of petitioner that the Deed of Release and Quitclaim he signed should be struck down for embodying unconscionable terms is simply untenable. Petitioner himself admits that he has received the amount of [P]9,327,000.00 representing his retirement pay and other benefits from private respondent. By no stretch of the imagination could the said amount be considered unconscionably low or shocking to the conscience, so as to warrant the invalidation of the Deed of Release and Quitclaim. Granting that the source of the retirement pay of petitioner is the trust fund maintained by private respondent at the UCPB for the payment of the retirement pay of private-respondent's employees, the said circumstance would still not justify the invalidation of the Deed of Release and Quitclaim, for petitioner clearly understood the contents thereof at the time of its execution but still choose to sign the deed. The terms thereof being reasonable and there being no showing that private respondent employed coercion, fraud or undue influence upon petitioner to compel him to sign the same, the subject Deed of Release and Quitclaim signed by petitioner shall be upheld as valid. 19 (citations omitted) CHDaAE The petitioner ascribes several errors on the part of the CA. Specifically, the petitioner claims that the CA erred in not dismissing the respondent's appeal to the NLRC, which was filed beyond the prescribed period. There is no dispute that

Querubin was authorized to receive mails and correspondences on behalf of Philcomsat's counsel and her receipt of LA Lustria's Decision on June 20, 2006 is binding on Philcomsat. Also, the failure of Philcomsat's counsel to ascertain when exactly the copy of LA Lustria's Decision was received by Querubin is inexcusable negligence. Since the perfection of an appeal within the ten (10)-day period is a mandatory and jurisdictional requirement, Philcomsat's failure to justify its delay should have been reason enough to dismiss its appeal. The petitioner also claims that the CA erred in upholding the validity of the subject quitclaim. The respondent has no right to retain a portion of his retirement pay and the consideration for the execution of the quitclaim is simply unconscionable. The petitioner submits that the CA should have taken into account that Philcomsat's retirement plan was for the exclusive benefit of its employees and to allow Philcomsat to appropriate a significant portion of his retirement pay is a clear case of unjust enrichment. On the other hand, Philcomsat alleges that the petitioner willfully and knowingly executed the subject quitclaim in consideration of his receipt of his retirement pay. Albeit his retirement pay was in the reduced amount of P9,439,327.91, Philcomsat alleges that this was arrived at following its negotiations with the petitioner and the latter participated in the computation thereof, taking into account his accountabilities to Philcomsat and the latter's financial debacles. AECacS Philcomsat likewise alleges that the NLRC is clothed with ample authority to set aside technical rules; hence, the NLRC did not act with grave abuse of discretion in entertaining Philcomsat's appeal in consideration of the circumstances surrounding the late filing thereof and the amount subject of the dispute. Issues In view of the conflicting positions adopted by the parties, this Court is confronted with two (2) issues that are far from being novel, to wit: a. Whether the delay in the filing of Philcomsat's appeal and posting of surety bond is inexcusable; and

b. Whether the quitclaim executed by the petitioner in Philcomsat's favor is valid, thereby foreclosing his right to institute any claim against Philcomsat. ATcEDS Our Ruling A petition for certiorari under Rule 65 of the Rules of Court is confined to the correction of errors of jurisdiction and will not issue absent a showing of a capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction. Not every error in a proceeding, or every erroneous conclusion of law or of fact, is an act in excess of jurisdiction or an abuse of discretion. 20 The prerogative of writ of certiorari does not lie except to correct, not every misstep, but a grave abuse of discretion. 21 Procedural rules may be relaxed to give way to the full determination of a case on its merits. Confronted with the task of determining whether the CA erred in not finding grave abuse of discretion in the NLRC's decision to give due course to Philcomsat's appeal despite its being belatedly filed, this Court rules in Philcomsat's favor. Procedural rules may be waived or dispensed with in absolutely meritorious cases. A review of the cases cited by the petitioner, Rubia v. Government Service Insurance System 22 and Videogram Regulatory Board v. Court of Appeals, 23 where this Court adhered to the strict implementation of the rules and considered them inviolable, shows that the patent lack of merit of the appeals render liberal interpretation pointless and naught. The contrary obtains in this case as Philcomsat's case is not entirely unmeritorious. Specifically, Philcomsat alleged that the petitioner's execution of the subject quitclaim was voluntary and he made no claim that he did so. Philcomsat likewise argued that the petitioner's educational attainment and the position he occupied in Philcomsat's hierarchy militate against his claim that he was pressured or coerced into signing the quitclaim. CHcTIA

The emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause free from the constraints of technicalities. 24 Far from having gravely abused its discretion, the NLRC correctly prioritized substantial justice over the rigid and stringent application of procedural rules. This, by all means, is not a case of grave abuse of discretion calling for the issuance of a writ of certiorari. Absent any evidence that any of the vices of consent is present and considering the petitioner's position and education, the quitclaim executed by the petitioner constitutes a valid and binding agreement. In Goodrich Manufacturing Corporation v. Ativo, 25 this Court reiterated the standards that must be observed in determining whether a waiver and quitclaim has been validly executed: Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. 26 (emphasis supplied) In Callanta v. National Labor Relations Commission, 27 this Court ruled that: It is highly unlikely and incredible for a man of petitioner's position and educational attainment to so easily succumb to private respondent company's alleged pressures without even defending himself nor demanding a final audit report before signing any resignation letter. Assuming that pressure was indeed exerted against him, there was no urgency for petitioner to sign the resignation letter. He knew the nature of the letter that he was signing, for as argued by respondent company, petitioner being "a man of high educational attainment and qualification, . . . he is expected to know the import of everything that he executes, whether written or oral." 28 EScaIT While the law looks with disfavor upon releases and quitclaims by employees who are inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities, a legitimate waiver representing a voluntary settlement of a laborer's claims should be respected by the courts as the law between the parties. 29 Considering the petitioner's claim of fraud and bad faith against Philcomsat to be unsubstantiated, this Court finds the quitclaim in dispute to be legitimate waiver.

While the petitioner bewailed as having been coerced or pressured into signing the release and waiver, his failure to present evidence renders his allegation self-serving and inutile to invalidate the same. That no portion of his retirement pay will be released to him or his urgent need for funds does not constitute the pressure or coercion contemplated by law. That the petitioner was all set to return to his hometown and was in dire need of money would likewise not qualify as undue pressure sufficient to invalidate the quitclaim. "Dire necessity" may be an acceptable ground to annul quitclaims if the consideration is unconscionably low and the employee was tricked into accepting it, but is not an acceptable ground for annulling the release when it is not shown that the employee has been forced to execute it. 30 While it is our duty to prevent the exploitation of employees, it also behooves us to protect the sanctity of contracts that do not contravene our laws. 31

The petitioner is not an ordinary laborer. He is mature, intelligent and educated with a college degree, who cannot be easily duped or tricked into performing an act against his will. As no proof was presented that the said quitclaim was entered into through fraud, deception, misrepresentation, the same is valid and binding. The petitioner is estopped from questioning the said quitclaim and cannot renege after accepting the benefits thereunder. This Court will never satisfy itself with surmises, conjectures or speculations for the purpose of giving imprimatur to the petitioner's attempt to abdicate from his obligations under a valid and binding release and waiver. The petitioner's educational background and employment stature render it improbable that he was pressured, intimidated or inveigled into signing the subject quitclaim. This Court cannot permit the petitioner to relieve himself from the consequences of his act, when his knowledge and understanding thereof is expected. Also, the period of time that the petitioner allowed to lapse before filing a complaint to recover the supposed deficiency in his retirement pay clouds his motives, leading to the reasonable conclusion that his claim of being aggrieved is a mere afterthought, if not a mere pretention. DcITaC The CA and the NLRC were unanimous in holding that the petitioner voluntarily executed the subject quitclaim. The Supreme Court (SC) is not a trier of facts, and this doctrine applies with greater force in labor cases. Factual questions are for the labor tribunals to resolve and whether the petitioner voluntarily executed the subject quitclaim is a question of fact. In this case, the factual issues have already been determined by the NLRC and its findings were affirmed by the CA. Judicial review by this Court does not extend to a reevaluation of the sufficiency of the evidence upon which the proper labor tribunal has based its determination. 32 Factual findings of labor officials who are deemed to have acquired expertise in matters within their respective jurisdictions are generally accorded not only respect, but even finality, and are binding on the SC. Verily, their conclusions are accorded great weight upon appeal, especially when supported by substantial evidence. Consequently, the SC is not duty-bound to delve into the accuracy of their factual findings, in the absence of a clear showing that the same were arbitrary and bereft of any rational basis. 33 WHEREFORE, premises considered, the Petition is hereby DENIED. The assailed November 12, 2009 Decision and July 28, 2010 Resolution of the Court of Appeals in CA-G.R. SP No. 107233 are hereby AFFIRMED. No pronouncements as to cost. EDHTAI SO ORDERED.

[G.R. No. 151258. February 1, 2012.] ARTEMIO VILLAREAL, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. [G.R. No. 154954. February 1, 2012.] PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, AND RONAN DE GUZMAN, respondents. [G.R. No. 155101. February 1, 2012.] FIDELITO DIZON, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. [G.R. Nos. 178057 & 178080. February 1, 2012.] GERARDA H. VILLA, petitioner, vs. MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR., and ANSELMO ADRIANO, respondents. DECISION SERENO, J p: The public outrage over the death of Leonardo "Lenny" Villa the victim in this case on 10 February 1991 led to a very strong clamor to put an end to hazing. 1 Due in large part to the brave efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death. This widespread condemnation prompted Congress to enact a special law, which became effective in 1995, that would criminalize hazing. 2 The intent of the law was to discourage members from making hazing a requirement for joining their sorority, fraternity, organization, or association. 3 Moreover, the law was meant to counteract the exculpatory implications of "consent" and "initial innocent act" in the conduct of initiation rites by making the mere act of hazing punishable or mala prohibita. 4 CSHEAI Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. 5 Within a year of his death, six more cases of hazing-related deaths emerged those of Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in Baguio City. 6 Although courts must not remain indifferent to public sentiments, in this case the general condemnation of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice system "[N]o act constitutes a crime . . . unless it is made so by law." 7 Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly based on the elements of the offense and the facts allowed in evidence. Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona). FACTS The pertinent facts, as determined by the Court of Appeals (CA) 8 and the trial court, 9 are as follows: In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).

On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo's Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during the initiation rites. The latter were informed that there would be physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for the commencement of their initiation. HDTcEI Even before the neophytes got off the van, they had already received threats and insults from the Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs; the "Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the latter were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the "Auxies' Privilege Round," in which the auxiliaries were given the opportunity to inflict physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles. They survived their first day of initiation. On the morning of their second day 9 February 1991 the neophytes were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity's principles. Whenever they would give a wrong answer, they would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment them physically and psychologically. The neophytes were subjected to the same manner of hazing that they endured on the first day of initiation. After a few hours, the initiation for the day officially ended. After a while, accused non-resident or alumni fraternity members 10 Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to "paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at the carport. EDACSa After an hour of sleep, the neophytes were suddenly roused by Lenny's shivering and incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started helping him. They removed his clothes and helped him through a sleeping bag to keep him warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival. Consequently, a criminal case for homicide was filed against the following 35 Aquilans: In Criminal Case No. C-38340(91) 1. 2. 3. 4. 5. 6. Fidelito Dizon (Dizon) Artemio Villareal (Villareal) Efren de Leon (De Leon) Vincent Tecson (Tecson) Junel Anthony Ama (Ama) Antonio Mariano Almeda (Almeda)

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

Renato Bantug, Jr. (Bantug) Nelson Victorino (Victorino) Eulogio Sabban (Sabban) Joseph Lledo (Lledo) Etienne Guerrero (Guerrero) Michael Musngi (Musngi) Jonas Karl Perez (Perez) Paul Angelo Santos (Santos) Ronan de Guzman (De Guzman) Antonio General (General) ICTHDE Jaime Maria Flores II (Flores) Dalmacio Lim, Jr. (Lim) Ernesto Jose Montecillo (Montecillo) Santiago Ranada III (Ranada) Zosimo Mendoza (Mendoza) Vicente Verdadero (Verdadero) Amante Purisima II (Purisima) Jude Fernandez (J. Fernandez) Adel Abas (Abas) Percival Brigola (Brigola)

In Criminal Case No. C-38340 1. 2. 3. 4. 5. 6. 7. 8. 9. Manuel Escalona II (Escalona) Crisanto Saruca, Jr. (Saruca) Anselmo Adriano (Adriano) Marcus Joel Ramos (Ramos) Reynaldo Concepcion (Concepcion) Florentino Ampil (Ampil) Enrico de Vera III (De Vera) Stanley Fernandez (S. Fernandez) Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. 11 On the other hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance due to certain matters that had to be resolved first. 12 HCTDIS On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal under Article 249 of the Revised Penal Code. 13 A few weeks after the trial court rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced anew. 14 On 10 January 2002, the CA in (CA-G.R. No. 15520) 15 set aside the finding of conspiracy by the trial court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused according to individual participation. Accused De Leon had by then passed away, so the following Decision applied only to the remaining 25 accused, viz.: 1. Nineteen of the accused-appellants Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) were acquitted, as their individual guilt was not established by proof beyond reasonable doubt. 2. Four of the accused-appellants Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) were found guilty of the crime of slight physical injuries and sentenced to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the sum of P30,000 as indemnity. 3. Two of the accused-appellants Fidelito Dizon and Artemio Villareal were found guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of P50,000 and to pay the additional amount of P1,000,000 by way of moral damages. CDaSAE On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused Concepcion on the ground of violation of his right to speedy trial. 16 Meanwhile, on different dates between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano. 17 On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153 18 reversed the trial court's Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial. 19 From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before this Court. G.R. No. 151258 Villareal v. People The instant case refers to accused Villareal's Petition for Review on Certiorari under Rule 45. The Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January 2002 in CA-G.R. No. 15520 first, denial of due process; and, second, conviction absent proof beyond reasonable doubt. 20 While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011. Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does not survive the death of the accused. G.R. No. 155101 Dizon v. People Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA's Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520. 21 Petitioner sets forth two main issues first, that he was denied due process when the CA sustained the trial court's forfeiture of his right to present evidence; and, second, that he was deprived of due process when the CA did not apply to him the same "ratio decidendi that served as basis of acquittal of the other accused." 22 As regards the first issue, the trial court made a ruling, which forfeited Dizon's right to present evidence during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused, Antonio General, no longer presented separate evidence during trial. According to Dizon, his right should not have been considered as waived because he was justified in

asking for a postponement. He argues that he did not ask for a resetting of any of the hearing dates and in fact insisted that he was ready to present evidence on the original pre-assigned schedule, and not on an earlier hearing date. DHEcCT Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil motives. 23 He claims that the additional paddling session was part of the official activity of the fraternity. He also points out that one of the neophytes admitted that the chairperson of the initiation rites "decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the paddling. . . ." 24 Further, petitioner echoes the argument of the Solicitor General that "the individual blows inflicted by Dizon and Villareal could not have resulted in Lenny's death." 25 The Solicitor General purportedly averred that, "on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the victim." 26 Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lenny's father could not have stolen the parking space of Dizon's father, since the latter did not have a car, and their fathers did not work in the same place or office. Revenge for the loss of the parking space was the alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were only part of the "psychological initiation." He then cites the testimony of Lenny's coneophyte witness Marquez who admitted knowing "it was not true and that he was just making it up. . . ." 27 Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned that the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent the latter's chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is contradicted by his manifestation of compassion and concern for the victim's well-being. G.R. No. 154954 People v. Court of Appeals This Petition for Certiorari under Rule 65 seeks the reversal of the CA's Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical injuries. 28 According to the Solicitor General, the CA erred in holding that there could have been no conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time Lenny died. caTESD In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the victim's death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code. 29 The said article provides: "Criminal liability shall be incurred . . . [b]y any person committing a felony (delito) although the wrongful act done be different from that which he intended." Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in setting aside the trial court's finding of conspiracy and in ruling that the criminal liability of all the accused must be based on their individual participation in the commission of the crime. G.R. Nos. 178057 and 178080 Villa v. Escalona Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CA's Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and 90153. 30 The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos, Saruca, and Adriano. Due to "several pending incidents," the trial court ordered a separate trial for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case No. C-38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused guilty beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-accused recommenced on 29 November 1993. For "various reasons," the initial trial of the case did not commence until 28 March 2005, or almost 12 years after the arraignment of the nine accused.

Petitioner Villa assails the CA's dismissal of the criminal case involving 4 of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to speedy trial within a reasonable period of time. She also points out that the prosecution cannot be faulted for the delay, as the original records and the required evidence were not at its disposal, but were still in the appellate court. AHTICD We resolve herein the various issues that we group into five. ISSUES 1. Whether the forfeiture of petitioner Dizon's right to present evidence constitutes denial of due process;

2. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of the right of the accused to speedy trial; 3. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the liability of each accused according to individual participation; 4. Whether accused Dizon is guilty of homicide; and

5. Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight physical injuries. DISCUSSION Resolution on Preliminary Matters G.R. No. 151258 Villareal v. People In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note of counsel for petitioner's Notice of Death of Party. According to Article 89 (1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the service of personal or imprisonment penalties, 31 while the term "pecuniary penalties" (las pecuniarias) refers to fines and costs, 32 including civil liability predicated on the criminal offense complained of (i.e., civil liability ex delicto). 33 However, civil liability based on a source of obligation other than the delict survives the death of the accused and is recoverable through a separate civil action. 34 aCcADT Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal and pecuniary penalties, including his civil liability directly arising from the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and terminated. G.R. No. 155101 (Dizon v. People) In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October 1993. 35 The Order likewise stated that "it will not entertain any postponement and that all the accused who have not yet presented their respective evidence should be ready at all times down the line, with their evidence on all said dates. Failure on their part to present evidence when required shall therefore be construed as waiver to present evidence." 36 However, on 19 August 1993, counsel for another accused manifested in open court that his client Antonio General would no longer present separate evidence. Instead, the counsel would adopt the testimonial evidence of the other accused who had already testified. 37 Because of this development and pursuant to the trial court's Order that the parties "should be ready at all times down the line," the trial court expected Dizon to present evidence on the next trial date 25 August 1993 instead of his originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September 1993. 38 Counsel for accused Dizon was not able to present evidence on the accelerated date. To address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a previously scheduled case, and that he would be ready to

present evidence on the dates originally assigned to his clients. 39 The trial court denied the Manifestation on the same date and treated the Constancia as a motion for postponement, in violation of the three-day-notice rule under the Rules of Court. 40 Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a waiver of that right. 41 Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court forfeited his right to present evidence. According to him, the postponement of the 25 August 1993 hearing should have been considered justified, since his original pre-assigned trial dates were not supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that he was ready to present evidence on the dates assigned to him. He also points out that he did not ask for a resetting of any of the said hearing dates; that he in fact insisted on being allowed to present evidence on the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating the schedule of presentation of evidence, thereby invalidating the finding of his guilt. aEAcHI The right of the accused to present evidence is guaranteed by no less than the Constitution itself. 42 Article III, Section 14 (2) thereof, provides that "in all criminal prosecutions, the accused . . . shall enjoy the right to be heard by himself and counsel. . ." This constitutional right includes the right to present evidence in one's defense, 43 as well as the right to be present and defend oneself in person at every stage of the proceedings. 44 In Crisostomo v. Sandiganbayan, 45 the Sandiganbayan set the hearing of the defense's presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to "lack of quorum in the regular membership" of the Sandiganbayan's Second Division and upon the agreement of the parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant for the arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he had waived his right to present evidence because of his nonappearance at "yesterday's and today's scheduled hearings." In ruling against the Order, we held thus: Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo's non-appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such date only and not for the succeeding trial dates. . .

xxx

xxx

xxx

Moreover, Crisostomo's absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel. In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware of the consequences of a waiver of the right to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of another failure to attend the succeeding hearings. The court must first explain to the accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing. DCHIAS Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching inquiry into the waiver . . . . 46 (Emphasis supplied) The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993 as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of counsel justified, especially since counsel for another accused General had made a last-minute adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was to forfeit one out of the five days set for Dizon's testimonial evidence. Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process.

Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to enforce an automatic remand of the case to the trial court. 47 In People v. Bodoso, we ruled that where facts have adequately been represented in a criminal case, and no procedural unfairness or irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the evidence on record. 48 We do not see any material inadequacy in the relevant facts on record to resolve the case at bar. Neither can we see any "procedural unfairness or irregularity" that would substantially prejudice either the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what he is really contesting in his Petition is the application of the law to the facts by the trial court and the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition that "all actions of the petitioner were part of the traditional rites," and that "the alleged extension of the initiation rites was not outside the official activity of the fraternity." 49 He even argues that "Dizon did not request for the extension and he participated only after the activity was sanctioned." 50 IECcAT For one reason or another, the case has been passed or turned over from one judge or justice to another at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This case has been going on for almost two decades. Its resolution is long overdue. Since the key facts necessary to decide the case have already been determined, we shall proceed to decide it. G.R. Nos. 178057 and 178080 (Villa v. Escalona) Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have been dismissed, since they failed to assert their right to speedy trial within a reasonable period of time. She points out that the accused failed to raise a protest during the dormancy of the criminal case against them, and that they asserted their right only after the trial court had dismissed the case against their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that "the prosecution could not be faulted for the delay in the movement of this case when the original records and the evidence it may require were not at its disposal as these were in the Court of Appeals." 51 The right of the accused to a speedy trial has been enshrined in Sections 14 (2) and 16, Article III of the 1987 Constitution. 52 This right requires that there be a trial free from vexatious, capricious or oppressive delays. 53 The right is deemed violated when the proceeding is attended with unjustified postponements of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause or justifiable motive. 54 In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. 55 The conduct of both the prosecution and the defense must be weighed. 56 Also to be considered are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice wrought upon the defendant. 57 We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of the accused to speedy trial is tantamount to acquittal. 58 As a consequence, an appeal or a reconsideration of the dismissal would amount to a violation of the principle of double jeopardy. 59 As we have previously discussed, however, where the dismissal of the case is capricious, certiorari lies. 60 The rule on double jeopardy is not triggered when a petition challenges the validity of the order of dismissal instead of the correctness thereof. 61 Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction prevents double jeopardy from attaching. 62 IDaEHS We do not see grave abuse of discretion in the CA's dismissal of the case against accused Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held thus: An examination of the procedural history of this case would reveal that the following factors contributed to the slow progress of the proceedings in the case below: xxx xxx xxx

5) The fact that the records of the case were elevated to the Court of Appeals and the prosecution's failure to comply with the order of the court a quo requiring them to secure certified true copies of the same.

xxx

xxx

xxx

While we are prepared to concede that some of the foregoing factors that contributed to the delay of the trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly violated in this case . . . . xxx xxx xxx

[T]he absence of the records in the trial court [was] due to the fact that the records of the case were elevated to the Court of Appeals, and the prosecution's failure to comply with the order of the court a quo requiring it to secure certified true copies of the same. What is glaring from the records is the fact that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution, through the Department of Justice, to secure the complete records of the case from the Court of Appeals. The prosecution did not comply with the said Order as in fact, the same directive was repeated by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on the part of the prosecution. It is not stated when such order was complied with. It appears, however, that even until August 5, 2002, the said records were still not at the disposal of the trial court because the lack of it was made the basis of the said court in granting the motion to dismiss filed by co-accused Concepcion . . . . DASEac xxx xxx xxx

It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed by both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by petitioner Saruca's motion to set case for trial on August 17, 1998 which the court did not act upon, the case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is precisely the kind of delay that the constitution frowns upon . . . . 63 (Emphasis supplied) This Court points out that on 10 January 1992, the final amended Information was filed against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera. 64 On 29 November 1993, they were all arraigned. 65 Unfortunately, the initial trial of the case did not commence until 28 March 2005 or almost 12 years after arraignment. 66 As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the Sandiganbayan for close to five years since the arraignment of the accused amounts to an unreasonable delay in the disposition of cases a clear violation of the right of the accused to a speedy disposition of cases. 67 Thus, we held: The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him; and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its discretion in not quashing the information which was filed six years after the initiatory complaint was filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the instant case, where the reinvestigation by the Ombudsman has dragged on for a decade already. 68 (Emphasis supplied) From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused Escalona et al.'s right to speedy trial was violated. Since there is nothing in the records that would show that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano. DHETIS G.R. No. 154954 (People v. Court of Appeals) The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a person is charged with an offense, and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused the accused cannot again be charged with the same or an identical offense. 69 This principle is founded upon the law of reason, justice and conscience. 70 It is embodied in the civil law maxim non bis in idem found in the common law of England and undoubtedly in every system of jurisprudence. 71 It found expression in the Spanish Law, in the Constitution of the United States, and in our own Constitution as one of the fundamental rights of the citizen, 72 viz.:

Article III Bill of Rights Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides as follows: 73 SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules. 74 The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise terminated without the defendant's express consent. 75 ESTcIA As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty." 76 We further stressed that "an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal." 77 This prohibition, however, is not absolute. The state may challenge the lower court's acquittal of the accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a deprivation of due process; 78 (2) where there is a finding of mistrial; 79 or (3) where there has been a grave abuse of discretion. 80 The third instance refers to this Court's judicial power under Rule 65 to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. 81 Here, the party asking for the review must show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of passion and hostility; 82 or a blatant abuse of authority to a point so grave and so severe as to deprive the court of its very power to dispense justice. 83 In such an event, the accused cannot be considered to be at risk of double jeopardy. 84 The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight physical injuries, both on the basis of a misappreciation of facts and evidence. According to the Petition, "the decision of the Court of Appeals is not in accordance with law because private complainant and petitioner were denied due process of law when the public respondent completely ignored the a) Position Paper . . . b) the Motion for Partial Reconsideration . . . and c) the petitioner's Comment . . . ." 85 Allegedly, the CA ignored evidence when it adopted the theory of individual responsibility; set aside the finding of conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code. 86 The Solicitor General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as well as the appreciation of Lenny Villa's consent to hazing. 87 IEHaSc In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of the evidence presented by the parties. 88 In People v. Maquiling, we held that grave abuse of discretion cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence. 89 Mere errors of judgment are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court, and not by an application for a writ of certiorari. 90 Therefore, pursuant to the

rule on double jeopardy, we are constrained to deny the Petition contra Victorino et al. the 19 acquitted fraternity members. We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug the four fraternity members convicted of slight physical injuries. Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state seeks the imposition of a higher penalty against the accused. 91 We have also recognized, however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. 92 The present case is one of those instances of grave abuse of discretion. In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA reasoned thus: Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical punishment heaped on him were serious in nature. However, by reason of the death of the victim, there can be no precise means to determine the duration of the incapacity or the medical attendance required. To do so, at this stage would be merely speculative. In a prosecution for this crime where the category of the offense and the severity of the penalty depend on the period of illness or incapacity for labor, the length of this period must likewise be proved beyond reasonable doubt in much the same manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said period is absent, the crime committed should be deemed only as slight physical injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature. 93 (Emphasis supplied and citations included) cCaSHA The appellate court relied on our ruling in People v. Penesa 94 in finding that the four accused should be held guilty only of slight physical injuries. According to the CA, because of "the death of the victim, there can be no precise means to determine the duration of the incapacity or medical attendance required." 95 The reliance on Penesa was utterly misplaced. A review of that case would reveal that the accused therein was guilty merely of slight physical injuries, because the victim's injuries neither caused incapacity for labor nor required medical attendance. 96 Furthermore, he did not die. 97 His injuries were not even serious. 98 Since Penesa involved a case in which the victim allegedly suffered physical injuries and not death, the ruling cited by the CA was patently inapplicable. On the contrary, the CA's ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four accused "were found to have inflicted more than the usual punishment undertaken during such initiation rites on the person of Villa." 99 It then adopted the NBI medico-legal officer's findings that the antecedent cause of Lenny Villa's death was the "multiple traumatic injuries" he suffered from the initiation rites. 100 Considering that the CA found that the "physical punishment heaped on [Lenny Villa was] serious in nature," 101 it was patently erroneous for the court to limit the criminal liability to slight physical injuries, which is a light felony. Article 4 (1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences of an act, even if its result is different from that intended. Thus, once a person is found to have committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the death of the victim, courts are required to automatically apply the legal framework governing the destruction of life. This rule is mandatory, and not subject to discretion. The CA's application of the legal framework governing physical injuries punished under Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies is therefore tantamount to a whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies should be based on the framework governing the destruction of the life of a person, punished under Articles 246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under the aforementioned provisions. We emphasize that these two types of felonies are distinct from and legally inconsistent with each other, in that the accused cannot be held criminally liable for physical injuries when actual death occurs. 102 HcaATE Attributing criminal liability solely to Villareal and Dizon as if only their acts, in and of themselves, caused the death of Lenny Villa is contrary to the CA's own findings. From proof that the death of the victim was the cumulative effect of the multiple injuries he suffered, 103 the only logical conclusion is that criminal responsibility should redound to all those who

have been proven to have directly participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give due course to the Petition in G.R. No. 154954. Resolution on Ultimate Findings According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article 4 (1) of the Revised Penal Code, the accused fraternity members were guilty of homicide, as it was the direct, natural and logical consequence of the physical injuries they had intentionally inflicted. 104 The CA modified the trial court's finding of criminal liability. It ruled that there could have been no conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the consequences of their individual acts. Accordingly, 19 of the accused Victorino et al. were acquitted; 4 of them Tecson et al. were found guilty of slight physical injuries; and the remaining 2 Dizon and Villareal were found guilty of homicide. The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with, the victim. Rather, the case involves an ex ante situation in which a man driven by his own desire to join a society of men pledged to go through physically and psychologically strenuous admission rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal laws apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the underlying concepts shaping intentional felonies, as well as on the nature of physical and psychological initiations widely known as hazing. DcCASI Intentional Felony and Conspiracy Our Revised Penal Code belongs to the classical school of thought. 105 The classical theory posits that a human person is essentially a moral creature with an absolute free will to choose between good and evil. 106 It asserts that one should only be adjudged or held accountable for wrongful acts so long as free will appears unimpaired. 107 The basic postulate of the classical penal system is that humans are rational and calculating beings who guide their actions with reference to the principles of pleasure and pain. 108 They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the crime. 109 Here, criminal liability is thus based on the free will and moral blame of the actor. 110 The identity of mens rea defined as a guilty mind, a guilty or wrongful purpose or criminal intent is the predominant consideration. 111 Thus, it is not enough to do what the law prohibits. 112 In order for an intentional felony to exist, it is necessary that the act be committed by means of dolo or "malice." 113 The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and intent. 114 The first element, freedom, refers to an act done with deliberation and with power to choose between two things. 115 The second element, intelligence, concerns the ability to determine the morality of human acts, as well as the capacity to distinguish between a licit and an illicit act. 116 The last element, intent, involves an aim or a determination to do a certain act. 117 The element of intent on which this Court shall focus is described as the state of mind accompanying an act, especially a forbidden act. 118 It refers to the purpose of the mind and the resolve with which a person proceeds. 119 It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the act. 120 While motive is the "moving power" that impels one to action for a definite result, intent is the "purpose" of using a particular means to produce the result. 121 On the other hand, the term "felonious" means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose. 122 With these elements taken together, the requirement of intent in intentional felony must refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus that the act or omission be done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought." 123 The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent. 124 As is required of the other elements of a felony, the existence of malicious intent must be proven beyond reasonable doubt. 125 AcICHD

In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the Revised Penal Code which provides that "conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it" is to be interpreted to refer only to felonies committed by means of dolo or malice. The phrase "coming to an agreement" connotes the existence of a prefaced "intent" to cause injury to another, an element present only in intentional felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the wrong done being simply the result of an act performed without malice or criminal design. 126 Here, a person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act. 127 Verily, a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa. 128 The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the commission of the intentional felony of homicide. 129 Being mala in se, the felony of homicide requires the existence of malice or dolo 130 immediately before or simultaneously with the infliction of injuries. 131 Intent to kill or animus interficendi cannot and should not be inferred, unless there is proof beyond reasonable doubt of such intent. 132 Furthermore, the victim's death must not have been the product of accident, natural cause, or suicide. 133 If death resulted from an act executed without malice or criminal intent but with lack of foresight, carelessness, or negligence the act must be qualified as reckless or simple negligence or imprudence resulting in homicide. 134 Hazing and other forms of initiation rites The notion of hazing is not a recent development in our society. 135 It is said that, throughout history, hazing in some form or another has been associated with organizations ranging from military groups to indigenous tribes. 136 Some say that elements of hazing can be traced back to the Middle Ages, during which new students who enrolled in European universities worked as servants for upperclassmen. 137 It is believed that the concept of hazing is rooted in ancient Greece, 138 where young men recruited into the military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare the recruits for battle. 139 Modern fraternities and sororities espouse some connection to these values of ancient Greek civilization. 140 According to a scholar, this concept lends historical legitimacy to a "tradition" or "ritual" whereby prospective members are asked to prove their worthiness and loyalty to the organization in which they seek to attain membership through hazing. 141 ITHADC Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an organization to receive an invitation in order to be a neophyte for a particular chapter. 142 The neophyte period is usually one to two semesters long. 143 During the "program," neophytes are required to interview and to get to know the active members of the chapter; to learn chapter history; to understand the principles of the organization; to maintain a specified grade point average; to participate in the organization's activities; and to show dignity and respect for their fellow neophytes, the organization, and its active and alumni members. 144 Some chapters require the initiation activities for a recruit to involve hazing acts during the entire neophyte stage. 145 Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for admission to an organization. 146 In hazing, the "recruit," "pledge," "neophyte," "initiate," "applicant" or any other term by which the organization may refer to such a person is generally placed in embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks or activities. 147 It encompasses different forms of conduct that humiliate, degrade, abuse, or physically endanger those who desire membership in the organization. 148 These acts usually involve physical or psychological suffering or injury. 149 The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our national hero Andres Bonifacio organized a secret society named Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association of the Sons and Daughters of the Nation). 150 The Katipunan, or KKK, started as a small confraternity believed to be inspired by European Freemasonry, as well as by confraternities or sodalities approved by the Catholic Church. 151 The Katipunan's ideology was brought home to each member through the society's initiation ritual. 152 It is said that initiates were brought to a dark room, lit by a single point of illumination, and were asked a series of questions to determine their fitness, loyalty, courage, and resolve. 153 They were made to go through vigorous trials such as "pagsuot sa isang lungga" or "[pagtalon] sa balon." 154 It would seem that they were also made to withstand the blow of "pangherong bakal sa pisngi" and to endure a "matalas na punyal." 155 As a final step in the ritual, the neophyte Katipunero was made to sign membership papers with the his own blood. 156

It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the late 19th century. As can be seen in the following instances, the manner of hazing in the United States was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa. AcaEDC Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable foods; and in various ways to humiliate themselves. 157 In 1901, General Douglas MacArthur got involved in a congressional investigation of hazing at the academy during his second year at West Point. 158 In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the shriner's hazing event, which was part of the initiation ceremonies for Hejaz membership. 159 The ritual involved what was known as the "mattressrotating barrel trick." 160 It required each candidate to slide down an eight- to nine-foot-high metal board onto connected mattresses leading to a barrel, over which the candidate was required to climb. 161 Members of Hejaz would stand on each side of the mattresses and barrel and fun-paddle candidates en route to the barrel. 162 In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte paratroopers' chests. 163 The victims were shown writhing and crying out in pain as others pounded the spiked medals through the shirts and into the chests of the victims. 164 In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi invited male students to enter into a pledgeship program. 165 The fraternity members subjected the pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy book and a cookie sheet while the pledges were on their hands and knees; various kicks and punches to the body; and "body slamming," an activity in which active members of the fraternity lifted pledges up in the air and dropped them to the ground. 166 The fraternity members then put the pledges through a seven-station circle of physical abuse. 167 In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of the Kappa Alpha Order at the Auburn University in Alabama. 168 The hazing included the following: (1) having to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits and trash cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as cleaning the fraternity house and yard, being designated as driver, and running errands; (6) appearing regularly at 2 a.m. "meetings," during which the pledges would be hazed for a couple of hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and hit as they ran down a hallway and descended down a flight of stairs. 169 IDCcEa In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim Sylvester Lloyd was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. 170 He participated in initiation activities, which included various forms of physical beatings and torture, psychological coercion and embarrassment. 171 In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from hazing activities during the fraternity's initiation rites. 172 Kenner and the other initiates went through psychological and physical hazing, including being paddled on the buttocks for more than 200 times. 173 In Morton v. State, Marcus Jones a university student in Florida sought initiation into the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year. 174 The pledge's efforts to join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks. 175 In these rituals described as "preliminaries," which lasted for two evenings, he received approximately 60 canings on his buttocks. 176 During the last two days of the hazing, the rituals intensified. 177 The pledges sustained roughly 210 cane strikes during the four-night initiation. 178 Jones and several other candidates passed out. 179 The purported raison d'tre behind hazing practices is the proverbial "birth by fire," through which the pledge who has successfully withstood the hazing proves his or her worth. 180 Some organizations even believe that hazing is the path to enlightenment. It is said that this process enables the organization to establish unity among the pledges and, hence, reinforces and ensures the future of the organization. 181 Alleged benefits of joining include leadership opportunities; improved

academic performance; higher self-esteem; professional networking opportunities; and the esprit d'corp associated with close, almost filial, friendship and common cause. 182 Anti-Hazing laws in the U.S. The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military. 183 The hazing of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of military hazing, harmful or not. 184 It was not until 1901 that Illinois passed the first state anti-hazing law, criminalizing conduct "whereby any one sustains an injury to his [or her] person therefrom." 185 EHScCA However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt Useless College Killings and other similar organizations, that states increasingly began to enact legislation prohibiting and/or criminalizing hazing. 186 As of 2008, all but six states had enacted criminal or civil statutes proscribing hazing. 187 Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively light consequences for even the most severe situations. 188 Only a few states with anti-hazing laws consider hazing as a felony in case death or great bodily harm occurs. 189 Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great bodily harm, which is a Class 4 felony. 190 In a Class 4 felony, a sentence of imprisonment shall be for a term of not less than one year and not more than three years. 191 Indiana criminal law provides that a person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to a person commits criminal recklessness, a Class D felony. 192 The offense becomes a Class C felony if committed by means of a deadly weapon. 193 As an element of a Class C felony criminal recklessness resulting in serious bodily injury, death falls under the category of "serious bodily injury." 194 A person who commits a Class C felony is imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years. 195 Pursuant to Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk to the life of the student or prospective member, in which case it becomes a Class C felony. 196 A Class C felony provides for an imprisonment term not to exceed seven years. 197 In Texas, hazing that causes the death of another is a state jail felony. 198 An individual adjudged guilty of a state jail felony is punished by confinement in a state jail for any term of not more than two years or not less than 180 days. 199 Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of a third-degree felony. 200 A person who has been convicted of a third-degree felony may be sentenced to imprisonment for a term not to exceed five years. 201 West Virginia law provides that if the act of hazing would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties provided therefor. 202 In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of another. 203 A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both. 204 In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing statute. 205 This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry Ballou's family resorted to a civil action for wrongful death, since there was no anti-hazing statute in South Carolina until 1994. 206 DcHaET The existence of animus interficendi or intent to kill not proven beyond reasonable doubt The presence of an ex ante situation in this case, fraternity initiation rites does not automatically amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that the perpetrators were equipped with a guilty mind whether or not there is a contextual background or factual premise they are still criminally liable for intentional felony. The trial court, the CA, and the Solicitor General are all in agreement that with the exception of Villareal and Dizon accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding.

As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated by ill will while beating up Villa. Dizon kept repeating that his father's parking space had been stolen by the victim's father. 207 As to Villareal, the court said that the accused suspected the family of Bienvenido Marquez, one of the neophytes, to have had a hand in the death of Villareal's brother. 208 The CA then ruled as follows: The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa, appellants Dizon and Villareal must and should face the consequence of their acts, that is, to be held liable for the crime of homicide. 209 (Emphasis supplied) We cannot subscribe to this conclusion. The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of animus interficendi. For a full appreciation of the context in which the supposed utterances were made, the Court deems it necessary to reproduce the relevant portions of witness Marquez's testimony: IEHSDA Witness We were brought up into [Michael Musngi's] room and we were briefed as to what to expect during the next three days and we were told the members of the fraternity and their batch and we were also told about the fraternity song, sir. xxx Witness We were escorted out of [Michael Musngi's] house and we were made to ride a van and we were brought to another place in Kalookan City which I later found to be the place of Mariano Almeda, sir. xxx Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the driver of the van and other members of the Aquilans who were inside left us inside the van, sir. xxx Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion Patay ka" and the people outside pound the van, rock the van, sir. Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks uttered upon your arrival? Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir. xxx Atty. Tadiar During all these times that the van was being rocked through and through, what were the voices or utterances that you heard? cSTHAC xxx xxx xxx xxx xxx xxx xxx xxx

Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir. Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the van which lasted for 5 minutes? xxx Witness Even after they rocked the van, we still kept on hearing voices, sir. xxx Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any utterances by anybody? Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed looking us being pounded, sir. Atty. Tadiar Do you recall what were those voices that you heard? Witness One particular utterance always said was, they asked us whether "matigas pa yan, kayang-kaya pa niyan." Atty. Tadiar Do you know who in particular uttered those particular words that you quote? HDITCS Witness I cannot particularly point to because there were utterances simultaneously, I could not really pin point who uttered those words, sir. xxx Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express? Witness Yes, sir I heard utterances. Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you remember? Witness xxx xxx xxx xxx xxx xxx

For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn sort of justifying him in inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then after on was Lenny Villa. He was saying to the effect that "this guy, his father stole the parking space of my father," sir. So, that's why he inflicted more pain on Villa and that went on, sir. Atty. Tadiar And you were referring to which particular accused? Witness Boyet Dizon, sir. Atty. Tadiar ETHSAI When Boyet Dizon at that particular time was accusing you of having your family have his brother killed, what was your response? Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on uttering those words/statements so that it would in turn justify him and to give me harder blows, sir. xxx Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa's father stole the parking space allotted for his father, do you recall who were within hearing distance when that utterance was made? Witness Yes, sir. All of the neophytes heard that utterance, sir. xxx Witness There were different times made this accusation so there were different people who heard from time to time, sir. xxx Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villa's father was made? Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villa's turn, I heard him uttered those statements, sir. Atty. Tadiar cCSHET What happened after he made this accusation to Lenny Villa's father? Witness He continued to inflict blows on Lenny Villa. xxx xxx xxx xxx xxx xxx

Atty. Tadiar How were those blows inflicted? Witness There were slaps and he knelt on Lenny Villa's thighs and sometime he stand up and he kicked his thighs and sometimes jumped at it, sir. xxx Atty. Tadiar We would go on to the second day but not right now. You mentioned also that accusations made by Dizon "you or your family had his brother killed," can you inform this Honorable Court what exactly were the accusations that were charged against you while inflicting blows upon you in particular? Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who had his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And another incident was when a talk was being given, Dizon was on another part of the pelota court and I was sort of looking and we saw that he was drinking beer, and he said and I quote: "Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir. Atty. Tadiar What else? ECaSIT Witness That's all, sir. Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around as promised to you earlier? Witness No, sir. 210 (Emphasis supplied) On cross-examination, witness Bienvenido Marquez testified thus: Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was a briefing that was conducted immediately before your initiation as regards to what to expect during the initiation, did I hear you right? Witness Yes, sir. Judge Purisima Who did the briefing? Witness xxx xxx

Mr. Michael Musngi, sir and Nelson Victorino. Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the initiation? Witness They told us at the time we would be brought to a particular place, we would be mocked at, sir. Judge Purisima IDAaCc So, you expected to be mocked at, ridiculed, humiliated etc., and the likes? Witness Yes, sir. Judge Purisima You were also told beforehand that there would be physical contact? Witness Yes, sir at the briefing. xxx Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long sleeves, it would be covered actually so we have no thinking that our face would be slapped, sir. Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that will be covered? Witness Yes, sir. Judge Purisima So, what kind of physical contact or implements that you expect that would create bruises to your body? Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir. DAaIHT xxx xxx xxx xxx xxx

Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is psychological in nature? Witness Combination, sir. 211 (Emphasis supplied)

xxx Atty. Jimenez

xxx

xxx

The initiation that was conducted did not consist only of physical initiation, meaning body contact, is that correct? Witness Yes, sir. Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct? Witness Yes, sir. Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you, correct? Witness Yes, sir. Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify you, frighten you, scare you into perhaps quitting the initiation, is this correct? HIACEa Witness Sometimes sir, yes. Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to have said according to you that your family were responsible for the killing of his brother who was an NPA, do you remember saying that? Witness Yes, sir. Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not believe him because that is not true, correct? Witness Yes, sir. Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct? Witness

No, sir, perhaps it is one but the main reason, I think, why he was saying those things was because he wanted to inflict injury. Atty. Jimenez He did not tell that to you. That is your only perception, correct? Witness HaIATC No, sir, because at one point, while he was telling this to Villareal, he was hitting me. Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by all the initiating masters? You said that earlier, right? Witness Yes, sir. Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something similar as was told to you by Mr. Dizon? Witness No, sir. Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on your thighs, right? Witness Yes, sir. Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on you but also on the other neophytes? Witness Yes, sir. Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by one master, was also administered by one master on a neophyte, was also administered by another master on the other neophyte, this is correct? CcSEIH Witness Yes, sir. 212 (Emphasis supplied) According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal were "baseless," 213 since the statements of the accused were "just part of the psychological initiation calculated to instill fear on the part of the neophytes"; that "[t]here is no element of truth in it as testified by Bienvenido Marquez"; and that the "harsh words uttered by

Petitioner and Villareal are part of 'tradition' concurred and accepted by all the fraternity members during their initiation rites." 214 We agree with the Solicitor General. The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the part of the CA it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be tolerated, especially because it was the CA's primary basis for finding that Villareal had the intent to kill Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to Bienvenido Marquez's testimony, as reproduced above, it was Dizon who uttered both "accusations" against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by the CA. It was "Boyet Dizon [who] stepped on [Marquez's] thigh"; and who told witness Marquez, "[I]to, yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who jumped on Villa's thighs while saying, "[T]his guy, his father stole the parking space of my father." With the testimony clarified, we find that the CA had no basis for concluding the existence of intent to kill based solely thereon. As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez. At the outset, the neophytes were briefed that they would be subjected to psychological pressure in order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard fraternity members shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka," "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other words to that effect. 215 While beating the neophytes, Dizon accused Marquez of the death of the former's purported NPA brother, and then blamed Lenny Villa's father for stealing the parking space of Dizon's father. According to the Solicitor General, these statements, including those of the accused Dizon, were all part of the psychological initiation employed by the Aquila Fraternity. 216 DSHTaC Thus, to our understanding, accused Dizon's way of inflicting psychological pressure was through hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could "justify" giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even one of the neophytes admitted that the accusations were untrue and made-up. The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows: Senator Lina. so as to capture the intent that we conveyed during the period of interpellations on why we included the phrase "or psychological pain and suffering." xxx xxx xxx

So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte is made to undergo certain acts which I already described yesterday, like playing the Russian roulette extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to be a member of the fraternity, sorority or similar organization or playing and putting a noose on the neck of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the building facing outside, asking him to jump outside after making him turn around several times but the reality is that he will be made to jump towards the inside portion of the building these are the mental or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors who appeared during the public hearing testified that such acts can result in some mental aberration, that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent. 217 (Emphasis supplied) Thus, without proof beyond reasonable doubt, Dizon's behavior must not be automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of the fraternity's psychological initiation. This Court points out that it was not even established whether the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the veracity of Dizon's threats. The testimony of Lenny's co-neophyte, Marquez, only confirmed this view. According to Marquez, he "knew it was not true and that [Dizon] was just making it up. . . ." 218 Even the trial court did not give weight to the utterances of Dizon as constituting intent to kill: "[T]he cumulative acts of all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of the fraternity initiation rites . . . ." 219 The Solicitor General shares the same view. aSTAcH

Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should not be inferred unless there is proof beyond reasonable doubt of such intent. 220 Instead, we adopt and reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had the specific intent to kill Lenny Villa. 221 The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all of them should be liable for the crime of homicide pursuant to Article 4 (1) of the Revised Penal Code. In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code, 222 the employment of physical injuries must be coupled with dolus malus. As an act that is mala in se, the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are. 223 Thus, we have ruled in a number of instances 224 that the mere infliction of physical injuries, absent malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v. People, 225 the accused teacher, using a bamboo stick, whipped one of her students behind her legs and thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In reversing the trial court's finding of criminal liability for slight physical injuries, this Court stated thus: "Independently of any civil or administrative responsibility . . . [w]e are persuaded that she did not do what she had done with criminal intent . . . the means she actually used was moderate and that she was not motivated by ill-will, hatred or any malevolent intent." Considering the applicable laws, we then ruled that "as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil." In People v. Carmen, 226 the accused members of the religious group known as the Missionaries of Our Lady of Fatima under the guise of a "ritual or treatment" plunged the head of the victim into a barrel of water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side with a kitchen knife, in order to cure him of "nervous breakdown" by expelling through those means the bad spirits possessing him. The collective acts of the group caused the death of the victim. Since malicious intent was not proven, we reversed the trial court's finding of liability for murder under Article 4 of the Revised Penal Code and instead ruled that the accused should be held criminally liable for reckless imprudence resulting in homicide under Article 365 thereof. DAHCaI Indeed, the threshold question is whether the accused's initial acts of inflicting physical pain on the neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the Revised Penal Code, thereby making it subject to Article 4 (1) thereof. In People v. Regato, we ruled that malicious intent must be judged by the action, conduct, and external acts of the accused. 227 What persons do is the best index of their intention. 228 We have also ruled that the method employed, the kind of weapon used, and the parts of the body on which the injury was inflicted may be determinative of the intent of the perpetrator. 229 The Court shall thus examine the whole contextual background surrounding the death of Lenny Villa. Lenny died during Aquila's fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to "traditional" initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and the "Auxies' Privilege Round." The beatings were predominantly directed at the neophytes' arms and legs.

In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity's principles. Late in the afternoon, they were once again subjected to "traditional" initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another "traditional" ritual paddling by the fraternity. During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates. 230 It was their regular duty to stop foul or excessive physical blows; to help the neophytes to "pump" their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or "round"; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed. These rituals were performed with Lenny's consent. 231 A few days before the "rites," he asked both his parents for permission to join the Aquila Fraternity. 232 His father knew that Lenny would go through an initiation process and would be gone for three days. 233 The CA found as follows: CETIDH It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given briefings on what to expect. It is of common knowledge that before admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as mocking, psychological tests and physical punishment would take place. They knew that the initiation would involve beatings and other forms of hazing. They were also told of their right and opportunity to quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told him that "after a week, you can already play basketball." Prosecution witness Marquez for his part, admitted that he knew that the initiates would be hit "in the arms and legs," that a wooden paddle would be used to hit them and that he expected bruises on his arms and legs. . . . Indeed, there can be no fraternity initiation without consenting neophytes. 234 (Emphasis supplied) Even after going through Aquila's grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation. Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional "rounds" on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other "weapon" was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of "traditional" initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes. 235 The totality of the circumstances must therefore be taken into consideration. HACaSc The underlying context and motive in which the infliction of physical injuries was rooted may also be determined by Lenny's continued participation in the initiation and consent to the method used even after the first day. The following discussion of the framers of the 1995 Anti-Hazing Law is enlightening: SENATOR GUINGONA. Most of these acts, if not all, are already punished under the Revised Penal Code. SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If hazing is done at present and it results in death, the charge would be murder or homicide. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious physical injuries. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized under rape or acts of lasciviousness. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of the crime of hazing? SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity or any association from making this requirement of initiation that has already resulted in these specific acts or results, Mr. President. That is the main rationale. We want to send a strong signal across the land that no group or association can require the act of physical initiation before a person can become a member without being held criminally liable. xxx xxx xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death, et cetera as a result of hazing which are already covered crimes. AICHaS The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may be a legitimate defense for invoking two or more charges or offenses, because these very same acts are already punishable under the Revised Penal Code. That is my difficulty, Mr. President. SENATOR LINA. ... Another point, Mr. President, is this, and this is a very telling difference: When a person or group of persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that they should really shun this activity called "hazing." Because, initially, these fraternities or sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are even committed initially, Mr. President. So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo." xxx xxx xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again disturbed by his statement that the prosecution does not have to prove the intent that resulted in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged mind. We do not have to prove the willful intent of the accused in proving or establishing the crime of hazing. This seems, to me, a novel situation where we create the special crime without having to go into the intent, which is one of the basic elements of any crime. cDAISC If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to the result. But if these results are not going to be proven by intent, but just because there was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President. SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the context of what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged. If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters or those who inflict the physical pain can easily escape responsibility and say, "We did not have the intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or maim." This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if they are separate offenses. xxx xxx xxx

SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died. The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove conspiracy or not anymore? SENATOR LINA. Mr. President, if the person is present during hazing . . . SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove conspiracy? Second, would the prosecution have to prove intent to kill or not? CITcSH

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need to prove intent to kill. SENATOR GUINGONA. But the charge is murder. SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President. 236 (Emphasis supplied) During a discussion between Senator Biazon and Senator Lina on the issue of whether to include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus: SENATOR BIAZON. Mr. President, this Representation has no objection to the inclusion of sodomy as one of the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can be committed by two persons with or without consent. To make it clearer, what is being punished here is the commission of sodomy forced into another individual by another individual. I move, Mr. President, that sodomy be modified by the phrase "without consent" for purposes of this section. SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going to aggravate the crime of hazing if it is done without consent will change a lot of concepts here. Because the results from hazing aggravate the offense with or without consent. In fact, when a person joins a fraternity, sorority, or any association for that matter, it can be with or without the consent of the intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the crime of hazing. This is a proposed law intended to protect the citizens from the malpractices that attend initiation which may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless of whether there is announcement that there will be physical hazing or whether there is none, and therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that there is an infliction of physical pain. The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity, so that at a certain point in time, the State, the individual, or the parents of the victim can run after the perpetrators of the crime, regardless of whether or not there was consent on the part of the victim. cCTAIE xxx xxx xxx

SENATOR LINA. Mr. President, I understand the position taken by the distinguished Gentleman from Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and practices. In this bill, we are not going to encroach into the private proclivities of some individuals when they do their acts in private as we do not take a peek into the private rooms of couples. They can do their thing if they want to make love in ways that are not considered acceptable by the mainstream of society. That is not something that the State should prohibit. But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of the neophyte. If the law is passed, that does not make the act of hazing not punishable because the neophyte accepted the infliction of pain upon himself. If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon himself. He consented to it." So, if we allow that reasoning that sodomy was done with the consent of the victim, then we would not have

passed any law at all. There will be no significance if we pass this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as part of the initiation rites. But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent will not apply because the very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. The result of the act of hazing, like death or physical injuries merely aggravates the act with higher penalties. But the defense of consent is not going to nullify the criminal nature of the act. So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without consent of the victim, then the whole foundation of this proposed law will collapse. SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very much. cIaCTS THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the same is approved. 237 (Emphasis supplied) Realizing the implication of removing the state's burden to prove intent, Senator Lina, the principal author of the Senate Bill, said: I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it is mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go to. If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that suggestion, Mr. President. 238 (Emphasis supplied) Thus, having in mind the potential conflict between the proposed law and the core principle of mala in se adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma faced by Congress is further proof of how the nature of hazing unique as against typical crimes cast a cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at the time. It is safe to presume that Lenny's parents would not have consented 239 to his participation in Aquila Fraternity's initiation rites if the practice of hazing were considered by them as mala in se. Furthermore, in Vedaa v. Valencia (1998), we noted through Associate Justice (now retired Chief Justice) Hilario Davide that "in our nation's very recent history, the people have spoken, through Congress, to deem conduct constitutive of . . . hazing, [an] act[] previously considered harmless by custom, as criminal." 240 Although it may be regarded as a simple obiter dictum, the statement nonetheless shows recognition that hazing or the conduct of initiation rites through physical and/or psychological suffering has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law; hazing was not clearly considered an intentional felony. And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of the accused. In dubio pro reo. For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial court's finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as required in mala in se cases, considering the contextual background of his death, the unique nature of hazing, and absent a law prohibiting hazing. EAIcCS The accused fraternity members guilty of reckless imprudence resulting in homicide

The absence of malicious intent does not automatically mean, however, that the accused fraternity members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Reckless imprudence or negligence consists of a voluntary act done without malice, from which an immediate personal harm, injury or material damage results by reason of an inexcusable lack of precaution or advertence on the part of the person committing it. 241 In this case, the danger is visible and consciously appreciated by the actor. 242 In contrast, simple imprudence or negligence comprises an act done without grave fault, from which an injury or material damage ensues by reason of a mere lack of foresight or skill. 243 Here, the threatened harm is not immediate, and the danger is not openly visible. 244 The test 245 for determining whether or not a person is negligent in doing an act is as follows: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes negligence. 246 As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of precaution and diligence required varies with the degree of the danger involved. 247 If, on account of a certain line of conduct, the danger of causing harm to another person is great, the individual who chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or avoid damage or injury. 248 In contrast, if the danger is minor, not much care is required. 249 It is thus possible that there are countless degrees of precaution or diligence that may be required of an individual, "from a transitory glance of care to the most vigilant effort." 250 The duty of the person to employ more or less degree of care will depend upon the circumstances of each particular case. 251 There was patent recklessness in the hazing of Lenny Villa. SHDAEC According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic injuries. 252 The officer explained that cardiac failure refers to the failure of the heart to work as a pump and as part of the circulatory system due to the lack of blood. 253 In the present case, the victim's heart could no longer work as a pumping organ, because it was deprived of its requisite blood and oxygen. 254 The deprivation was due to the "channeling" of the blood supply from the entire circulatory system including the heart, arteries, veins, venules, and capillaries to the thigh, leg, and arm areas of Lenny, thus causing the formation of multiple hematomas or blood clots. 255 The multiple hematomas were wide, thick, and deep, 256 indicating that these could have resulted mainly from injuries sustained by the victim from fist blows, knee blows, paddles, or the like. 257 Repeated blows to those areas caused the blood to gradually ooze out of the capillaries until the circulating blood became so markedly diminished as to produce death. 258 The officer also found that the brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the lack of blood, which was redirected to the thighs and forearms. 259 It was concluded that there was nothing in the heart that would indicate that the victim suffered from a previous cardiac arrest or disease. 260 The multiple hematomas or bruises found in Lenny Villa's arms and thighs, resulting from repeated blows to those areas, caused the loss of blood from his vital organs and led to his eventual death. These hematomas must be taken in the light of the hazing activities performed on him by the Aquila Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs. 261 They were also "paddled" at the back of their thighs or legs; 262 and slapped on their faces. 263 They were made to play rough basketball. 264 Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya sa spine." 265 The NBI medico-legal officer explained that the death of the victim was the cumulative effect of the multiple injuries suffered by the latter. 266 The relevant portion of the testimony is as follows: Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously marked as Exhibit "G-1" to "G-14" individually by themselves would not cause the death of the victim. The question I am going to propound to you is what is the cumulative effect of all of these injuries marked from Exhibit "G-1" to "G-14"? ESIcaC

Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to isolate such injuries here because we are talking of the whole body. At the same manner that as a car would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those injuries in whole and not in part. 267 There is also evidence to show that some of the accused fraternity members were drinking during the initiation rites. 268 Consequently, the collective acts of the fraternity members were tantamount to recklessness, which made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to their initiates a duty of care not to cause them injury in the process. 269 With the foregoing facts, we rule that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal officer found that the victim's death was the cumulative effect of the injuries suffered, criminal responsibility redounds to all those who directly participated in and contributed to the infliction of physical injuries. It appears from the aforementioned facts that the incident may have been prevented, or at least mitigated, had the alumni of Aquila Fraternity accused Dizon and Villareal restrained themselves from insisting on reopening the initiation rites. Although this point did not matter in the end, as records would show that the other fraternity members participated in the reopened initiation rites having in mind the concept of "seniority" in fraternities the implication of the presence of alumni should be seen as a point of review in future legislation. We further note that some of the fraternity members were intoxicated during Lenny's initiation rites. In this light, the Court submits to Congress, for legislative consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. It is truly astonishing how men would wittingly or unwittingly impose the misery of hazing and employ appalling rituals in the name of brotherhood. There must be a better way to establish "kinship." A neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits it offered, such as tips during bar examinations. 270 Another initiate did not give up, because he feared being looked down upon as a quitter, and because he felt he did not have a choice. 271 Thus, for Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent under the circumstances, they left their fates in the hands of the fraternity members. Unfortunately, the hands to which lives were entrusted were barbaric as they were reckless. IHAcCS Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these five accused fraternity members would have all been convicted of the crime of hazing punishable by reclusion perpetua (life imprisonment). 272 Since there was no law prohibiting the act of hazing when Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.'s individual participation in the infliction of physical injuries upon Lenny Villa. 273 As to accused Villareal, his criminal liability was totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code. Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda, Ama, Bantug, and Tecson. The accused liable to pay damages The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of P50,000 as civil indemnity ex delicto and P1,000,000 as moral damages, to be jointly and severally paid by accused Dizon and Villareal. It also awarded the amount of P30,000 as indemnity to be jointly and severally paid by accused Almeda, Ama, Bantug, and Tecson. Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim. 274 In accordance with prevailing jurisprudence, 275 we sustain the CA's award of indemnity in the amount of P50,000. The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in connection with the death of the victim, so long as the claim is supported by tangible documents. 276 Though we are prepared to award actual damages, the Court is prevented from granting them, since the records are bereft of any evidence to show that actual expenses were incurred or proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual

damages. 277

The heirs of the deceased may recover moral damages for the grief suffered on account of the victim's death. 278 This penalty is pursuant to Article 2206 (3) of the Civil Code, which provides that the "spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased." 279 Thus, we hereby we affirm the CA's award of moral damages in the amount of P1,000,000. HEISca WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries is also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of P50,000, and moral damages in the amount of P1,000,000, plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this Decision until satisfaction. 280 Costs de oficio. The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89 (1) of the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal deemed CLOSED and TERMINATED. Let copies of this Decision be furnished to the Senate President and the Speaker of the House of Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. IHEAcC SO ORDERED.

SECOND DIVISION [G.R. No. 187521. March 14, 2012.] F.F. CRUZ & CO., INC., petitioner, vs. HR CONSTRUCTION CORP., respondent. DECISION REYES, J p: This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner F.F. Cruz & Co., Inc. (FFCCI) assailing the Decision 1 dated February 6, 2009 and Resolution 2 dated April 13, 2009 issued by the Court of Appeals (CA) in CA-G.R. SP No. 91860. HDAECI The Antecedent Facts Sometime in 2004, FFCCI entered into a contract with the Department of Public Works and Highways (DPWH) for the construction of the Magsaysay Viaduct, known as the Lower Agusan Development Project. On August 9, 2004, FFCCI, in turn, entered into a Subcontract Agreement 3 with HR Construction Corporation (HRCC) for the supply of materials, labor, equipment, tools and supervision for the construction of a portion of the said project called the East Bank Levee and Cut-Off Channel in accordance with the specifications of the main contract. The subcontract price agreed upon by the parties amounted to P31,293,532.72. Pursuant to the Subcontract Agreement, HRCC would submit to FFCCI a monthly progress billing which the latter would then pay, subject to stipulated deductions, within 30 days from receipt thereof. The parties agreed that the requests of HRCC for payment should include progress accomplishment of its completed works as approved by FFCCI. Additionally, they agreed to conduct a joint measurement of the completed works of HRCC together with the representative of DPWH and consultants to arrive at a common quantity. aIcETS Thereafter, HRCC commenced the construction of the works pursuant to the Subcontract Agreement. On September 17, 2004, HRCC submitted to FFCCI its first progress billing in the amount of P2,029,081.59 covering the construction works it completed from August 16 to September 15, 2004. 4 However, FFCCI asserted that the DPWH was then able to evaluate the completed works of HRCC only until July 25, 2004. Thus, FFCCI only approved the gross amount of P423,502.88 for payment. Pursuant to the Subcontract Agreement, FFCCI deducted from the said gross amount P42,350.29 for retention and P7,700.05 for expanded withholding tax leaving a net payment in the amount of P373,452.54. This amount was paid by FFCCI to HRCC on December 3, 2004. 5 FFCCI and the DPWH then jointly evaluated the completed works of HRCC for the period of July 26 to September 25, 2004. FFCCI claimed that the gross amount due for the completed works during the said period was P2,008,837.52. From the said gross amount due, FFCCI deducted therefrom P200,883.75 for retention and P36,524.07 for expanded withholding tax leaving amount of P1,771,429.45 as the approved net payment for the said period. FFCCI paid this amount on December 21, 2004. 6 SEIaHT On October 29, 2004, HRCC submitted to FFCCI its second progress billing in the amount of P1,587,760.23 covering its completed works from September 18 to 25, 2004. 7 FFCCI did not pay the amount stated in the second progress billing, claiming that it had already paid HRCC for the completed works for the period stated therein. On even date, HRCC submitted its third progress billing in the amount of P2,569,543.57 for its completed works from September 26 to October 25, 2004. 8 FFCCI did not immediately pay the amount stated in the third progress billing, claiming that it still had to evaluate the works accomplished by HRCC. On November 25, 2004, HRCC submitted to FFCCI its fourth progress billing in the amount of P1,527,112.95 for the works it had completed from October 26 to November 25, 2004.

Subsequently, FFCCI, after it had evaluated the completed works of HRCC from September 26 to November 25, 2004, approved the payment of the gross amount of P1,505,570.99 to HRCC. FFCCI deducted therefrom P150,557.10 for retention and P27,374.02 for expanded withholding tax leaving a net payment of P1,327,639.87, which amount was paid to HRCC on March 11, 2005. 9 SCIcTD Meanwhile, HRCC sent FFCCI a letter 10 dated December 13, 2004 demanding the payment of its progress billings in the total amount of P7,340,046.09, plus interests, within three days from receipt thereof. Subsequently, HRCC completely halted the construction of the subcontracted project after taking its Christmas break on December 18, 2004. On March 7, 2005, HRCC, pursuant to the arbitration clause in the Subcontract Agreement, filed with the Construction Industry Arbitration Commission (CIAC) a Complaint 11 against FFCCI praying for the payment of the following: (1) overdue obligation in the reduced amount of P4,096,656.53 as of December 15, 2004 plus legal interest; (2) P1,500,000.00 as attorney's fees; (3) P80,000.00 as acceptance fee and representation expenses; and (4) costs of litigation. In its Answer, 12 FFCCI claimed that it no longer has any liability on the Subcontract Agreement as the three payments it made to HRCC, which amounted to P3,472,521.86, already represented the amount due to the latter in view of the works actually completed by HRCC as shown by the survey it conducted jointly with the DPWH. FFCCI further asserted that the delay in the payment processing was primarily attributable to HRCC inasmuch as it presented unverified work accomplishments contrary to the stipulation in the Subcontract Agreement regarding requests for payment. HCEISc Likewise, FFCCI maintained that HRCC failed to comply with the condition stated under the Subcontract Agreement for the payment of the latter's progress billings, i.e., joint measurement of the completed works, and, hence, it was justified in not paying the amount stated in HRCC's progress billings. On June 16, 2005, an Arbitral Tribunal was created composed of Engineer Ricardo B. San Juan, Joven B. Joaquin and Attorney Alfredo F. Tadiar, with the latter being appointed as the Chairman. In a Preliminary Conference held on July 5, 2005, the parties defined the issues to be resolved in the proceedings before the CIAC as follows: 1. What is the correct amount of [HRCC's] unpaid progress billing?

2. Did [HRCC] comply with the conditions set forth in subparagraph 4.3 of the Subcontract Agreement for the submission, evaluation/processing and release of payment of its progress billings? 3. 3.1 Did [HRCC] stop work on the project? TSacID If so, is the work stoppage justified?

3.2 If so, what was the percentage and value of [HRCC's] work accomplishment at the time it stopped work on the project? 4. 13 Who between the parties should bear the cost of arbitration or in what proportion should it be shared by the parties?

Likewise, during the said Preliminary Conference, HRCC further reduced the amount of overdue obligation it claimed from FFCCI to P2,768,916.66. During the course of the proceedings before the CIAC, HRCC further reduced the said amount to P2,635,397.77 the exact difference between the total amount of HRCC's progress billings (P6,107,919.63) and FFCCI's total payments in favor of the latter (P3,472,521.86). The CIAC Decision On September 6, 2005, after due proceedings, the CIAC rendered a Decision 14 in favor of HRCC, the decretal portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the Claimant HR CONSTRUCTION CORPORATION and AWARD made on its monetary claim against Respondent F.F. CRUZ & CO., INC., as follows: HSIDTE

[P]2,239,452.63 as the balance of its unpaid billings and 101,161.57 as reimbursement of the arbitration costs.

[P]2,340,614.20 Total due the Claimant Interest on the foregoing amount [P]2,239,452.63 shall be paid at the rate of 6% per annum from the date of this Decision. After finality of this Decision, interest at the rate of 12% per annum shall be paid thereon until full payment of the awarded amount shall have been made . . . . SO ORDERED. 15 The CIAC held that the payment method adopted by FFCCI is actually what is known as the "back-to-back payment scheme" which was not agreed upon under the Subcontract Agreement. As such, the CIAC ruled that FFCCI could not impose upon HRCC its valuation of the works completed by the latter. The CIAC gave credence to HRCC's valuation of its completed works as stated in its progress billings. Thus: During the trial, [FFCCI's] Aganon admitted that [HRCC's] accomplishments are included in its own billings to the DPWH together with a substantial mark-up to cover overhead costs and profit. He further admitted that it is only when DPWH approves its (Respondent's) billings covering [HRCC's] scope of work and pays for them, that [FFCCI] will in turn pay [HRCC] for its billings on the sub-contracted works. HcACTE On clarificatory questioning by the Tribunal, [FFCCI] admitted that there is no "back-to-back" provision in the sub-contract as basis for this sequential payment arrangement and, therefore, [FFCCI's] imposition thereof by withholding payment to [HRCC] until it is first paid by the project owner on the Main Contract, clearly violates said sub-contract. It [is] this unauthorized implementation of a back-to-back payment scheme that is seen to be the reason for [FFCCI's] non-payment of the third progress billings. It is accordingly the holding of this Arbitral Tribunal that [FFCCI] is not justified in withholding payment of [HRCC's] third progress billing for this scheme that [HRCC] has not agreed to in the sub-contract agreement . . . . xxx xxx xxx

The total retention money deducted by [FFCCI] from [HRCC's] three progress billings, amounts to [P]395,945.14 . . . . The retention money is part of [HRCC's] progress billings and must, therefore, be credited to this account. The two amounts (deductions and net payments) total [P]3,868,467.00 . . . . This represents the total gross payments that should be credited and deducted from the total gross billings to arrive at what has not been paid to the [HRCC]. This results in the amount of [P]2,239,452.63 ([P]6,107,919.63 - [P]3,868,467.00) as the correct balance of [HRCC's] unpaid billings. 16 CHIaTc Further, the CIAC ruled that FFCCI had already waived its right under the Subcontract Agreement to require a joint measurement of HRCC's completed works as a condition precedent to the payment of the latter's progress billings. Hence: [FFCCI] admits that in all three instances where it paid [HRCC] for its progress billings, it never required compliance with the aforequoted contractual provision of a prior joint quantification. Such repeated omission may reasonably be construed as a waiver by [FFCCI] of its contractual right to require compliance of said condition and it is now too late in the day to so impose it. Article 6 of the Civil Code expressly provides that "rights may be waived unless the waiver is contrary to law, public order, public policy, morals or good customs". The tribunal cannot see any such violation in this case. xxx xxx xxx

[FFCCI's] omission to enforce the contractually required condition of payment, has led [HRCC] to believe it to be true that indeed [FFCCI] has waived the condition of joint quantification and, therefore, [FFCCI] may not be permitted to falsify such resulting position. 17 Likewise, the CIAC held that FFCCI's non-payment of the progress billings submitted by HRCC gave the latter the right to rescind the Subcontract Agreement and, accordingly, HRCC's work stoppage was justified. It further opined that, in effect,

FFCCI had ratified the right of HRCC to stop the construction works as it did not file any counterclaim against HRCC for liquidated damages arising therefrom. AHDacC FFCCI then filed a petition for review with CA assailing the foregoing disposition by the CIAC. The CA Decision On February 6, 2009, the CA rendered the herein assailed Decision 18 denying the petition for review filed by FFCCI. The CA agreed with the CIAC that FFCCI had waived its right under the Subcontract Agreement to require a joint quantification of HRCC's completed works. The CA further held that the amount due to HRCC as claimed by FFCCI could not be given credence since the same was based on a survey of the completed works conducted without the participation of HRCC. Likewise, being the main contractor, it ruled that it was the responsibility of FFCCI to include HRCC in the joint measurement of the completed works. Furthermore, the CA held that HRCC was justified in stopping its construction works on the project as the failure of FFCCI to pay its progress billings gave the former the right to rescind the Subcontract Agreement. FFCCI sought a reconsideration 19 of the said February 6, 2009 Decision but it was denied by the CA in its Resolution 20 dated April 13, 2009. Issues In the instant petition, FFCCI submits the following issues for this Court's resolution: TaSEHC [I.] . . . First, [d]oes the act of [FFCCI] in conducting a verification survey of [HRCC's] billings in the latter's presence amount to a waiver of the right of [FFCCI] to verify and approve said billings? What, if any, is the legal significance of said act? [II.] . . . Second, [d]oes the payment of [FFCCI] to [HRCC] based on the results of the above mentioned verification survey result in the former being obliged to accept whatever accomplishment was reported by the latter? [III.] . . . Third, [d]oes the mere comparison of the payments made by [FFCCI] with the contested progress billings of [HRCC] amount to an adjudication of the controversy between the parties? cADTSH [IV.] . . . Fourth, [d]oes the failure of [FFCCI] to interpose a counterclaim against [HRCC] for liquidated damages due to the latter's work stoppage, amount to a ratification of such work stoppage? [V.] . . . Fifth, [d]id the [CA] disregard or overlook significant and material facts which would affect the result of the litigation? 21 In sum, the crucial issues for this Court's resolution are: first, what is the effect of FFCCI's non-compliance with the stipulation in the Subcontract Agreement requiring a joint quantification of the works completed by HRCC on the payment of the progress billings submitted by the latter; and second, whether there was a valid rescission of the Subcontract Agreement by HRCC. The Court's Ruling The petition is not meritorious. Procedural Issue:

Finality and Conclusiveness of the CIAC's Factual Findings Before we delve into the substantial issues raised by FFCCI, we shall first address the procedural issue raised by HRCC. According to HRCC, the instant petition merely assails the factual findings of the CIAC as affirmed by the CA and, accordingly, not proper subjects of an appeal under Rule 45 of the Rules of Court. It likewise pointed out that factual findings of the CIAC, when affirmed by the CA, are final and conclusive upon this Court. cSCADE Generally, the arbitral award of CIAC is final and may not be appealed except on questions of law. Executive Order (E.O.) No. 1008 22 vests upon the CIAC original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered into by parties involved in construction in the Philippines. Under Section 19 of E.O. No. 1008, the arbitral award of CIAC "shall be final and inappealable except on questions of law which shall be appealable to the Supreme Court." 23 In Hi-Precision Steel Center, Inc. v. Lim Kim Steel Builders, Inc., 24 we explained raison d' etre for the rule on finality of the CIAC's arbitral award in this wise: Voluntary arbitration involves the reference of a dispute to an impartial body, the members of which are chosen by the parties themselves, which parties freely consent in advance to abide by the arbitral award issued after proceedings where both parties had the opportunity to be heard. The basic objective is to provide a speedy and inexpensive method of settling disputes by allowing the parties to avoid the formalities, delay, expense and aggravation which commonly accompany ordinary litigation, especially litigation which goes through the entire hierarchy of courts. Executive Order No. 1008 created an arbitration facility to which the construction industry in the Philippines can have recourse. The Executive Order was enacted to encourage the early and expeditious settlement of disputes in the construction industry, a public policy the implementation of which is necessary and important for the realization of national development goals. TSacID Aware of the objective of voluntary arbitration in the labor field, in the construction industry, and in any other area for that matter, the Court will not assist one or the other or even both parties in any effort to subvert or defeat that objective for their private purposes. The Court will not review the factual findings of an arbitral tribunal upon the artful allegation that such body had "misapprehended the facts" and will not pass upon issues which are, at bottom, issues of fact, no matter how cleverly disguised they might be as "legal questions." The parties here had recourse to arbitration and chose the arbitrators themselves; they must have had confidence in such arbitrators. . . . 25 (Citation omitted) Thus, in cases assailing the arbitral award rendered by the CIAC, this Court may only pass upon questions of law. Factual findings of construction arbitrators are final and conclusive and not reviewable by this Court on appeal. This rule, however, admits of certain exceptions. In Spouses David v. Construction Industry and Arbitration Commission, 26 we laid down the instances when this Court may pass upon the factual findings of the CIAC, thus: We reiterate the rule that factual findings of construction arbitrators are final and conclusive and not reviewable by this Court on appeal, except when the petitioner proves affirmatively that: (1) the award was procured by corruption, fraud or other undue means; (2) there was evident partiality or corruption of the arbitrators or of any of them; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; (4) one or more of the arbitrators were disqualified to act as such under section nine of Republic Act No. 876 and willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (5) the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made. . . . 27 (Citation omitted) acIHDA

Issues on the proper interpretation of the terms of the Subcontract Agreement involve questions of law. A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. 28 On the surface, the instant petition appears to merely raise factual questions as it mainly puts in issue the appropriate amount that is due to HRCC. However, a more thorough analysis of the issues raised by FFCCI would show that it actually asserts questions of law. FFCCI primarily seeks from this Court a determination of whether amount claimed by HRCC in its progress billing may be enforced against it in the absence of a joint measurement of the former's completed works. Otherwise stated, the main question advanced by FFCCI is this: in the absence of the joint measurement agreed upon in the Subcontract Agreement, how will the completed works of HRCC be verified and the amount due thereon be computed? The determination of the foregoing question entails an interpretation of the terms of the Subcontract Agreement vis--vis the respective rights of the parties herein. On this point, it should be stressed that where an interpretation of the true agreement between the parties is involved in an appeal, the appeal is in effect an inquiry of the law between the parties, its interpretation necessarily involves a question of law. 29 SEIaHT Moreover, we are not called upon to examine the probative value of the evidence presented before the CIAC. Rather, what is actually sought from this Court is an interpretation of the terms of the Subcontract Agreement as it relates to the dispute between the parties. First Substantive Issue: Effect of Non-compliance with the Joint Quantification Requirement on the Progress Billings of HRCC Basically, the instant issue calls for a determination as to which of the parties' respective valuation of accomplished works should be given credence. FFCCI claims that its valuation should be upheld since the same was the result of a measurement of the completed works conducted by it and the DPWH. On the other hand, HRCC maintains that its valuation should be upheld on account of FFCCI's failure to observe the joint measurement requirement in ascertaining the extent of its completed works. The terms of the Subcontract Agreement should prevail. In resolving the dispute as to the proper valuation of the works accomplished by HRCC, the primordial consideration should be the terms of the Subcontract Agreement. It is basic that if the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. 30 In Abad v. Goldloop Properties, Inc., 31 we stressed that: A court's purpose in examining a contract is to interpret the intent of the contracting parties, as objectively manifested by them. The process of interpreting a contract requires the court to make a preliminary inquiry as to whether the contract before it is ambiguous. A contract provision is ambiguous if it is susceptible of two reasonable alternative interpretations. Where the written terms of the contract are not ambiguous and can only be read one way, the court will interpret the contract as a matter of law. If the contract is determined to be ambiguous, then the interpretation of the contract is left to the court, to resolve the ambiguity in the light of the intrinsic evidence. 32 (Emphasis supplied and citation omitted) IDaEHC Article 4 of the Subcontract Agreement, in part, contained the following stipulations:

ARTICLE 4 SUBCONTRACT PRICE 4.1 The total SUBCONTRACT Price shall be THIRTY ONE MILLION TWO HUNDRED NINETY THREE THOUSAND FIVE HUNDRED THIRTY TWO PESOS & 72/100 ONLY ([P]31,293,532.72) inclusive of Value Added Tax . . . . xxx 4.3 xxx Terms of Payment xxx

FFCCI shall pay [HRCC] within thirty (30) days upon receipt of the [HRCC's] Monthly Progress Billings subject to deductions due to ten percent (10%) retention, and any other sums that may be due and recoverable by FFCCI from [HRCC] under this SUBCONTRACT. In all cases, however, two percent (2%) expanded withholding tax on the [HRCC's] income will be deducted from the monthly payments. CacEIS Requests for the payment by the [HRCC] shall include progress accomplishment of completed works (unit of work accomplished x unit cost) as approved by [FFCCI]. Cut-off date of monthly billings shall be every 25th of the month and joint measurement shall be conducted with the DPWH's representative, Consultants, FFCCI and [HRCC] to arrive at a common/agreed quantity. 33 (Emphasis supplied) Pursuant to the terms of payment agreed upon by the parties, FFCCI obliged itself to pay the monthly progress billings of HRCC within 30 days from receipt of the same. Additionally, the monthly progress billings of HRCC should indicate the extent of the works completed by it, the same being essential to the valuation of the amount that FFCCI would pay to HRCC. The parties further agreed that the extent of HRCC's completed works that would be indicated in the monthly progress billings should be determined through a joint measurement conducted by FFCCI and HRCC together with the representative of DPWH and the consultants. It is the responsibility of FFCCI to call for the joint measurement of HRCC's completed works. It bears stressing that the joint measurement contemplated under the Subcontract Agreement should be conducted by the parties herein together with the representative of the DPWH and the consultants. Indubitably, FFCCI, being the main contractor of DPWH, has the responsibility to request the representative of DPWH to conduct the said joint measurement. HDTCSI On this score, the testimony of Engineer Antonio M. Aganon, Jr., project manager of FFCCI, during the reception of evidence before the CIAC is telling, thus: MR. J. B. JOAQUIN: Engr. Aganon, earlier there was a stipulation that in all the four billings, there never was a joint quantification. PROF. A. F. TADIAR: He admitted that earlier. Pinabasa ko sa kanya. HaAIES ENGR. R. B. SAN JUAN: The joint quantification was done only between them and DPWH. xxx xxx xxx

ENGR. AGANON:

Puwede ko po bang i-explain sandali lang po regarding lang po doon sa quantification na iyon? Basically po as main contractor of DPWH, we are the ones who [are] requesting for joint survey quantification with the owner, DPWH. Ngayon po, although wala sa papel na nag-witness and [HRCC] still the same po, nandoon din po sila during that time, kaya lang ho . . . MR. J. B. JOAQUIN: Hindi pumirma? ENGR. AGANON: Hindi sila puwede pumirma kasi ho kami po ang contractor ng DPWH hindi sila. 34 (Emphasis supplied) cHEATI FFCCI had waived its right to demand for a joint measurement of HRCC's completed works under the Subcontract Agreement. The CIAC held that FFCCI, on account of its failure to demand the joint measurement of HRCC's completed works, had effectively waived its right to ask for the conduct of the same as a condition sine qua non to HRCC's submission of its monthly progress billings. We agree. In People of the Philippines v. Donato, 35 this Court explained the doctrine of waiver in this wise: Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." CEcaTH As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . 36 (Emphasis supplied and citations omitted) Here, it is undisputed that the joint measurement of HRCC's completed works contemplated by the parties in the Subcontract Agreement never materialized. Indeed, HRCC, on separate occasions, submitted its monthly progress billings indicating the extent of the works it had completed sans prior joint measurement. Thus: THCSEA Progress Billing Period Covered Amount 1st Progress Billing dated August 16 to September 15, 2004 P2,029,081.59 September 17, 2004 37 2nd Progress Billing dated September 18 to 25, 2004 P1,587,760.23

October 29, 2004 38 3rd Progress Billing dated September 26 to October 25, 2004 P2,569,543.57 October 29, 2004 39 4th Progress Billing dated October 26 to November 25, 2004 P1,527,112.95 November 25, 2004 FFCCI did not contest the said progress billings submitted by HRCC despite the lack of a joint measurement of the latter's completed works as required under the Subcontract Agreement. Instead, FFCCI proceeded to conduct its own verification of the works actually completed by HRCC and, on separate dates, made the following payments to HRCC: Date of Payment Period Covered Amount December 3, 2004 40 December 21, 2004 41 March 11, 2005 42 April 2 to July 25, 2004 P373,452.24 P1,771,429.45 P1,327,639.87

July 26 to September 25, 2004

September 26 to November 25, 2004

FFCCI's voluntary payment in favor of HRCC, albeit in amounts substantially different from those claimed by the latter, is a glaring indication that it had effectively waived its right to demand for the joint measurement of the completed works. FFCCI's failure to demand a joint measurement of HRCC's completed works reasonably justified the inference that it had already relinquished its right to do so. Indeed, not once did FFCCI insist on the conduct of a joint measurement to verify the extent of HRCC's completed works despite its receipt of the four monthly progress billings submitted by the latter. FFCCI is already barred from contesting HRCC's valuation of the completed works having waived its right to demand the joint measurement requirement. In view of FFCCI's waiver of the joint measurement requirement, the CA, essentially echoing the CIAC's disposition, found that FFCCI is obliged to pay the amount claimed by HRCC in its monthly progress billings. The CA reasoned thus: DCTHaS Verily, the joint measurement that [FFCCI] claims it conducted without the participation of [HRCC], to which [FFCCI] anchors its claim of full payment of its obligations to [HRCC], cannot be applied, nor imposed, on [HRCC]. In other words, [HRCC] cannot be made to accept a quantification of its works when the said quantification was made without its participation. As a consequence, [FFCCI's] claim of full payment cannot be upheld as this is a result of a quantification that was made contrary to the express provisions of the Subcontract Agreement. The Court is aware that by ruling so, [FFCCI] would seem to be placed at a disadvantage because it would result in [FFCCI] having to pay exactly what [HRCC] was billing the former. If, on the other hand, the Court were to rule otherwise[,] then [HRCC] would be the one at a disadvantage because it would be made to accept payment that is less than what it was billing. TaCDAH Circumstances considered, however, the Court deems it proper to rule in favor of [HRCC] because of the explicit provision of the Subcontract Agreement that requires the participation of the latter in the joint measurement. If the Court were to rule otherwise, then the Court would, in effect, be disregarding the explicit agreement of the parties in their contract. 43 Essentially, the question that should be resolved is this: In view of FFCCI's waiver of its right to demand a joint measurement of HRCC's completed works, is FFCCI now barred from disputing the claim of HRCC in its monthly progress billings?

We rule in the affirmative. As intimated earlier, the joint measurement requirement is a mechanism essentially granting FFCCI the opportunity to verify and, if necessary, contest HRCC's valuation of its completed works prior to the submission of the latter's monthly progress billings. In the final analysis, the joint measurement requirement seeks to limit the dispute between the parties with regard to the valuation of HRCC's completed works. Accordingly, any issue which FFCCI may have with regard to HRCC's valuation of the works it had completed should be raised and resolved during the said joint measurement instead of raising the same after HRCC had submitted its monthly progress billings. Thus, having relinquished its right to ask for a joint measurement of HRCC's completed works, FFCCI had necessarily waived its right to dispute HRCC's valuation of the works it had accomplished. DHEACI Second Substantive Issue: Validity of HRCC's Rescission of the Subcontract Agreement Both the CA and the CIAC held that the work stoppage of HRCC was justified as the same is but an exercise of its right to rescind the Subcontract Agreement in view of FFCCI's failure to pay the former's monthly progress billings. Further, the CIAC stated that FFCCI could no longer assail the work stoppage of HRCC as it failed to file any counterclaim against HRCC pursuant to the terms of the Subcontract Agreement. For its part, FFCCI asserted that the work stoppage of HRCC was not justified and, in any case, its failure to raise a counterclaim against HRCC for liquidated damages before the CIAC does not amount to a ratification of the latter's work stoppage. The determination of the validity of HRCC's work stoppage depends on a determination of the following: first, whether HRCC has the right to extrajudicially rescind the Subcontract Agreement; and second, whether FFCCI is already barred from disputing the work stoppage of HRCC. EcDATH HRCC had waived its right to rescind the Subcontract Agreement. The right of rescission is statutorily recognized in reciprocal obligations. Article 1191 of the Civil Code pertinently reads: Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law. ECAaTS The rescission referred to in this article, more appropriately referred to as resolution is on the breach of faith by the defendant which is violative of the reciprocity between the parties. 44 The right to rescind, however, may be waived, expressly or impliedly. 45 While the right to rescind reciprocal obligations is implied, that is, that such right need not be expressly provided in the contract, nevertheless the contracting parties may waive the same. 46

Contrary to the respective dispositions of the CIAC and the CA, we find that HRCC had no right to rescind the Subcontract Agreement in the guise of a work stoppage, the latter having waived such right. Apropos is Article 11.2 of the Subcontract Agreement, which reads: 11.2 Effects of Disputes and Continuing Obligations

Notwithstanding any dispute, controversy, differences or arbitration proceedings relating directly or indirectly to this SUBCONTRACT Agreement and without prejudice to the eventual outcome thereof, [HRCC] shall at all times proceed with the prompt performance of the Works in accordance with the directives of FFCCI and this SUBCONTRACT Agreement. 47 (Emphasis supplied) DaCEIc Hence, in spite of the existence of dispute or controversy between the parties during the course of the Subcontract Agreement, HRCC had agreed to continue the performance of its obligations pursuant to the Subcontract Agreement. In view of the provision of the Subcontract Agreement quoted above, HRCC is deemed to have effectively waived its right to effect extrajudicial rescission of its contract with FFCCI. Accordingly, HRCC, in the guise of rescinding the Subcontract Agreement, was not justified in implementing a work stoppage. The costs of arbitration should be shared by the parties equally. Section 1, Rule 142 of the Rules of Court provides: Section 1. Costs ordinarily follow results of suit. Unless otherwise provided in these rules, costs shall be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable. No costs shall be allowed against the Republic of the Philippines unless otherwise provided by law. (Emphasis supplied) DEcITS Although, generally, costs are adjudged against the losing party, courts nevertheless have discretion, for special reasons, to decree otherwise. Here, considering that the work stoppage of HRCC is not justified, it is only fitting that both parties should share in the burden of the cost of arbitration equally. HRCC had a valid reason to institute the complaint against FFCCI in view of the latter's failure to pay the full amount of its monthly progress billings. However, we disagree with the CIAC and the CA that only FFCCI should shoulder the arbitration costs. The arbitration costs should be shared equally by FFCCI and HRCC in view of the latter's unjustified work stoppage. WHEREFORE, in consideration of the foregoing disquisitions, the Decision dated February 6, 2009 and Resolution dated April 13, 2009 of the Court of Appeals in CA-G.R. SP No. 91860 are hereby AFFIRMED with MODIFICATION that the arbitration costs shall be shared equally by the parties herein. cSEAHa SO ORDERED.

THIRD DIVISION [G.R. No. 154598. August 16, 2004.] IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA JENNIFER DELLE FRANCISCO THORNTON, petitioner, vs. ADELFA FRANCISCO THORNTON, respondent. Urbano Palamos & Fabros for petitioner. SYNOPSIS Petitioner herein is an American married to a Filipina. Their union produced a baby girl. After three years of marriage, the Filipina wife became restless and irresponsible. Petitioner admonished her but she continued her carefree ways until she left home with her daughter without notifying her husband. Petitioner filed a petition for habeas corpus in the designated Family Court in Makati, but this was dismissed, presumably because of the allegation that the child was in Basilan, the place where the wife claimed she would bring the baby. Petitioner then filed another petition for habeas corpus, this time with the Court of Appeals (CA) which could issue a writ of habeas corpus enforceable in the entire country. The CA denied the petition on the ground that it did not have jurisdiction over the case. It ruled that The Family Courts Act of 1997 (RA 8369) gave family courts exclusive original jurisdiction over petitions for habeas corpus. It impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980). The only issue for resolution in this case, therefore, is whether the Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors.

The Supreme Court granted the petition. According to the Court, the CA should take cognizance of the case since the provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and the Supreme Court to issue writs of habeas corpus relating to the custody of minors. RA 8369 must be read in harmony with RA 7092 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. HEacAS SYLLABUS 1. REMEDIAL LAW; FAMILY COURT; DOES NOT DIVEST THE SUPREME COURT AND COURT OF APPEALS OF THEIR JURISDICTION OVER HABEAS CORPUS CASES INVOLVING CUSTODY OF MINORS; RATIONALE. As observed by the Solicitor General: Under the Family Courts Act of 1997, the avowed policy of the State is to "protect the rights and promote the welfare of children". The creation of the Family Court is geared towards addressing three major issues regarding children's welfare cases, as expressed by the legislators during the deliberations for the law. The legislative intent behind giving Family Courts exclusive and original jurisdiction over such cases was to avoid further clogging of regular court dockets, ensure greater sensitivity and specialization in view of the nature of the case and the parties, as well as to guarantee that the privacy of the children party to the case remains protected. The primordial consideration is the welfare and best interests of the child. We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors. Again, to quote the Solicitor General: To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus involving a minor child whose whereabouts are uncertain and transient will not result in one of the situations that the legislature seeks to avoid. First, the welfare of the child is paramount. Second, the ex parte nature of habeas corpus proceedings will not result in disruption of the child's privacy and emotional well-being; whereas to deprive the appellate court of jurisdiction will result in the evil sought to be avoided by the legislature: the child's welfare and well being will be prejudiced. 2. CIVIL LAW; STATUTE; AS A RULE WHAT IS CONTROLLING IS THE SPIRIT AND INTENT, NOT THE LETTER, OF THE LAW; APPLICATION IN CASE AT BAR. It also applied the well-established rule that what is controlling is the spirit and intent, not the letter, of the law: "Idolatrous reverence" for the law sacrifices the human being. The spirit of the law insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life". . . . It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the fundamental law and the implementing legislation aforementioned. Language is rarely so free from ambiguity as to be incapable of being

used in more than one sense. Sometimes, what the legislature actually had in mind is not accurately reflected in the language of a statute, and its literal interpretation may render it meaningless, lead to absurdity, injustice or contradiction. In the case at bar, a literal interpretation of the word "exclusive" will result in grave injustice and negate the policy "to protect the rights and promote the welfare of children" under the Constitution and the United Nations Convention on the Rights of the Child. This mandate must prevail over legal technicalities and serve as the guiding principle in construing the provisions of RA 8369. acHDTE 3. ID.; ID.; STATUTORY CONSTRUCTION; IMPLIED REPEALS ARE NOT FAVORED. Settled is the rule in statutory construction that implied repeals are not favored: The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject." 4. REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS; CONCURRENT JURISDICTION OF THE COURT OF APPEALS AND SUPREME COURT WITH THE FAMILY COURTS IN HABEAS CORPUS CASES WHERE CUSTODY OF MINORS IS CONCERNED, JUSTIFIED. The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that: Section 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. . . . The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. SHTcDE DECISION CORONA, J p: This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002 resolution 1 of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501 dismissing the petition for habeas corpus on the grounds of lack of jurisdiction and lack of substance. The dispositive portion 2 read: WHEREFORE, the Court DISMISSES the petition for habeas corpus on the grounds that: a) this Court has no jurisdiction over the subject matter of the petition; and b) the petition is not sufficient in substance. acSECT Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in the Catholic Evangelical Church at United Nations Avenue, Manila. A year later, respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle Francisco Thornton. However, after three years, respondent grew restless and bored as a plain housewife. She wanted to return to her old job as a "guest relations officer" in a nightclub, with the freedom to go out with her friends. In fact, whenever petitioner was out of the country, respondent was also often out with her friends, leaving her daughter in the care of the househelp. Petitioner admonished respondent about her irresponsibility but she continued her carefree ways. On December 7, 2001, respondent left the family home with her daughter Sequiera without notifying her husband. She told the servants that she was bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.

Petitioner filed a petition for habeas corpus in the designated Family Court in Makati City but this was dismissed, presumably because of the allegation that the child was in Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and their daughter. However, he did not find them there and the barangay office of Sta. Clara, Lamitan, Basilan, issued a certification 3 that respondent was no longer residing there. IEaHSD Petitioner gave up his search when he got hold of respondent's cellular phone bills showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other provinces. Petitioner then filed another petition for habeas corpus, this time in the Court of Appeals which could issue a writ of habeas corpus enforceable in the entire country. However, the petition was denied by the Court of Appeals on the ground that it did not have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of 1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus, it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980): ECaScD Under Sec. 9(1), BP 129 (1981) the Intermediate Appellate Court (now Court of Appeals) has jurisdiction to issue a writ of habeas corpus whether or not in aid of its appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1, RA 7902 (1995), an act expanding the jurisdiction of this Court. This jurisdiction finds its procedural expression in Sec. 1, Rule 102 of the Rules of Court. In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It provides: Sec. 5. Jurisdiction of Family Court. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: xxx b. xxx xxx

Petition for guardianship, custody of children, habeas corpus in relation to the latter.

The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar as the jurisdiction of this Court to issue writ of habeas corpus in custody of minor cases is concerned? The simple answer is, yes, it did, because there is no other meaning of the word "exclusive" than to constitute the Family Court as the sole court which can issue said writ. If a court other than the Family Court also possesses the same competence, then the jurisdiction of the former is not exclusive but concurrent and such an interpretation is contrary to the simple and clear wording of RA 8369. Petitioner argues that unless this Court assumes jurisdiction over a petition for habeas corpus involving custody of minors, a respondent can easily evade the service of a writ of habeas corpus on him or her by just moving out of the region over which the Regional Trial Court issuing the writ has territorial jurisdiction. That may be so but then jurisdiction is conferred by law. In the absence of a law conferring such jurisdiction in this Court, it cannot exercise it even if it is demanded by expediency or necessity. Whether RA 8369 is a good or unwise law is not within the authority of this Court or any court for that matter to determine. The enactment of a law on jurisdiction is within the exclusive domain of the legislature. When there is a perceived defect in the law, the remedy is not to be sought from the courts but only from the legislature. The only issue before us therefore is whether the Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions. TIcAaH In his comment, the Solicitor General points out that Section 20 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule provides that a petition for habeas corpus may be filed in the Supreme Court, 4 Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. 5 The petition is granted. The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors.

The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129 since, by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended it to be the sole court which can issue writs of habeas corpus. To the court a quo, the word "exclusive" apparently cannot be construed any other way. HCTEDa We disagree with the CA's reasoning because it will result in an iniquitous situation, leaving individuals like petitioner without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed the Family Courts Act of 1997. As observed by the Solicitor General: aECSHI Under the Family Courts Act of 1997, the avowed policy of the State is to "protect the rights and promote the welfare of children." The creation of the Family Court is geared towards addressing three major issues regarding children's welfare cases, as expressed by the legislators during the deliberations for the law. The legislative intent behind giving Family Courts exclusive and original jurisdiction over such cases was to avoid further clogging of regular court dockets, ensure greater sensitivity and specialization in view of the nature of the case and the parties, as well as to guarantee that the privacy of the children party to the case remains protected. The primordial consideration is the welfare and best interests of the child. We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors. Again, to quote the Solicitor General: To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus involving a minor child whose whereabouts are uncertain and transient will not result in one of the situations that the legislature seeks to avoid. First, the welfare of the child is paramount. Second, the ex parte nature of habeas corpus proceedings will not result in disruption of the child's privacy and emotional well-being; whereas to deprive the appellate court of jurisdiction will result in the evil sought to be avoided by the legislature: the child's welfare and well being will be prejudiced. IAEcCT This is not the first time that this Court construed the word "exclusive" as not foreclosing resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca vs. Philex Mining Corporation, 6 the heirs of miners killed in a work-related accident were allowed to file suit in the regular courts even if, under the Workmen's Compensation Act, the Workmen's Compensation Commissioner had exclusive jurisdiction over such cases. We agree with the observations of the Solicitor General that: While Floresca involved a cause of action different from the case at bar, it supports petitioner's submission that the word "exclusive" in the Family Courts Act of 1997 may not connote automatic foreclosure of the jurisdiction of other courts over habeas corpus cases involving minors. In the same manner that the remedies in the Floresca case were selective, the jurisdiction of the Court of Appeals and Family Court in the case at bar is concurrent. The Family Court can issue writs of habeas corpus enforceable only within its territorial jurisdiction. On the other hand, in cases where the territorial jurisdiction for the enforcement of the writ cannot be determined with certainty, the Court of Appeals can issue the same writ enforceable throughout the Philippines, as provided in Sec. 2, Rule 102 of the Revised Rules of Court, thus: The Writ of Habeas Corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. (Emphasis supplied) In ruling that the Commissioner's "exclusive" jurisdiction did not foreclose resort to the regular courts for damages, this Court, in the same Floresca case, said that it was merely applying and giving effect to the constitutional guarantees of social justice in the 1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the well-established rule that what is controlling is the spirit and intent, not the letter, of the law:

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

It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the fundamental law and the implementing legislation aforementioned. Language is rarely so free from ambiguity as to be incapable of being used in more than one sense. Sometimes, what the legislature actually had in mind is not accurately reflected in the language of a statute, and its literal interpretation may render it meaningless, lead to absurdity, injustice or contradiction. 7 In the case at bar, a literal interpretation of the word "exclusive" will result in grave injustice and negate the policy "to protect the rights and promote the welfare of children" 8 under the Constitution and the United Nations Convention on the Rights of the Child. This mandate must prevail over legal technicalities and serve as the guiding principle in construing the provisions of RA 8369. TIaEDC Moreover, settled is the rule in statutory construction that implied repeals are not favored: The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject." 9 The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that: Section 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.

xxx

xxx

xxx

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. (Emphasis Ours) From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. IEAaST One final note. Requiring the serving officer to search for the child all over the country is not an unreasonable availment of a remedy which the Court of Appeals cited as a ground for dismissing the petition. As explained by the Solicitor General: 10 That the serving officer will have to "search for the child all over the country" does not represent an insurmountable or unreasonable obstacle, since such a task is no more different from or difficult than the duty of the peace officer in effecting a warrant of arrest, since the latter is likewise enforceable anywhere within the Philippines.

WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-G.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals, Sixteenth Division. SO ORDERED. CaTSEA Panganiban and Carpio-Morales, JJ ., concur. Sandoval-Gutierrez, J ., is on leave.

[G.R. No. 196271. February 28, 2012.] DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI, petitioners, vs. SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines, respondents. [G.R. No. 196305. February 28, 2012.] BASARI D. MAPUPUNO, petitioner, vs. SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives, respondents. [G.R. No. 197221. February 28, 2012.] REP. EDCEL C. LAGMAN, petitioner, vs. PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS, respondents. [G.R. No. 197280. February 28, 2012.] ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDPLABAN), petitioners, vs. THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, respondents. [G.R. No. 197282. February 28, 2012.] ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., respondents. [G.R. No. 197392. February 28, 2012.] LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., respondents. [G.R. No. 197454. February 28, 2012.] JACINTO V. PARAS, petitioner, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the COMMISSION ON ELECTIONS, respondents. MINORITY RIGHTS FORUM, PHILIPPINES, INC., respondents-intervenor. RESOLUTION BRION, J p: We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation

and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very urgent motion to issue clarificatory resolution that the temporary restraining order (TRO) is still existing and effective. cCHETI These motions assail our Decision dated October 18, 2011, where we upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of synchronization, RA No. 10153 postponed the regional elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of August 2011) to the second Monday of May 2013 and recognized the President's power to appoint officers-in-charge (OICs) to temporarily assume these positions upon the expiration of the terms of the elected officials. The Motions for Reconsideration The petitioners in G.R. No. 196271 raise the following grounds in support of their motion: I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT UNITS. II. III. IV. V. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE LAWS. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE X OF THE CONSTITUTION. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.] 1 ISCTcH

The petitioner in G.R. No. 197221 raises similar grounds, arguing that: I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM TRADITIONAL LGUs. II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY. III. THE PRESIDENT'S APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE POSITIONS. IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR SUCCESSORS. V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC ACTS. DTISaH VI. THE REQUIREMENT OF A SUPERMAJORITY OF 3/4 VOTES IN THE HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE LAW. VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION. VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELEC'S HOLDING OF SPECIAL ELECTIONS. 2 (italics supplied) The petitioner in G.R. No. 196305 further asserts that: I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE. THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS. IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN STATUTORY CONSTRUCTION. HTCSDE xxx xxx xxx

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054. xxx xxx xxx

III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS UNCONSTITUTIONAL. xxx xxx xxx

IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC ACT. xxx xxx xxx

V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL. xxx xxx xxx

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE APPOINTMENT OF OFFICERS-INCHARGE. 3 (italics and underscoring supplied) The petitioner in G.R. No. 197282 contends that: A. ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN "INTERIM MEASURE". cTIESa B. THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION. C.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. NO. 9054. D. WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS. 4 Finally, the petitioners in G.R. No. 197280 argue that: a) the Constitutional mandate of synchronization does not apply to the ARMM elections; cEDIAa

b) RA No. 10153 negates the basic principle of republican democracy which, by constitutional mandate, guides the governance of the Republic; c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with the 2/3 vote from the House of Representatives and the Senate, voting separately, and be ratified in a plebiscite; d) if the choice is between elective officials continuing to hold their offices even after their terms are over and nonelective individuals getting into the vacant elective positions by appointment as OICs, the holdover option is the better choice; e) the President only has the power of supervision over autonomous regions, which does not include the power to appoint OICs to take the place of ARMM elective officials; and f) it would be better to hold the ARMM elections separately from the national and local elections as this will make it easier for the authorities to implement election laws. In essence, the Court is asked to resolve the following questions: (a) Does the Constitution mandate the synchronization of ARMM regional elections with national and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with the supermajority vote and plebiscite requirements? (c) (d) Is the holdover provision in RA No. 9054 constitutional? Does the COMELEC have the power to call for special elections in ARMM?

(e) Does granting the President the power to appoint OICs violate the elective and representative nature of ARMM regional legislative and executive offices? ECaHSI (f) Does the appointment power granted to the President exceed the President's supervisory powers over autonomous regions? The Court's Ruling We deny the motions for lack of merit. Synchronization mandate includes ARMM elections The Court was unanimous in holding that the Constitution mandates the synchronization of national and local elections. While the Constitution does not expressly instruct Congress to synchronize the national and local elections, the intention can be inferred from the following provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:

Section 1. of May, 1987.

The first elections of Members of the Congress under this Constitution shall be held on the second Monday

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years. xxx xxx xxx

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. SICaDA The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. To fully appreciate the constitutional intent behind these provisions, we refer to the discussions of the Constitutional Commission: MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992." This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized. THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized. MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992." I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years. EAcCHI So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12 Senators and of course to the local officials and the Members of the Lower House. But, definitely, thereafter we can never have an election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first Senators are concerned. And so my proposal is the only way to effect the first synchronized election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective officials. THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say? cAaETS

MR. DE CASTRO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized. MR. DE CASTRO. Thank you. During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to synchronize the elections every three years, which the body approved the first national and local officials to be elected in 1987 shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first 12 Senators will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election every three years. So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which was already approved by the body. Thank you, Mr. Presiding Officer. xxx xxx xxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992. MR. DAVIDE. Yes. EHACcT MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and local officials with the election of the President? MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory Provisions on the term of the incumbent President and Vice-President would really end in 1992. MR. GUINGONA. Yes. MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal officials. 5 (emphases and underscoring ours) The framers of the Constitution could not have expressed their objective more clearly there was to be a single election in 1992 for all elective officials from the President down to the municipal officials. Significantly, the framers were even willing to temporarily lengthen or shorten the terms of elective officials in order to meet this objective, highlighting the importance of this constitutional mandate. We came to the same conclusion in Osmea v. Commission on Elections, 6 where we unequivocally stated that "the Constitution has mandated synchronized national and local elections." 7 Despite the length and verbosity of their motions, the petitioners have failed to convince us to deviate from this established ruling. AEcTaS Neither do we find any merit in the petitioners' contention that the ARMM elections are not covered by the constitutional mandate of synchronization because the ARMM elections were not specifically mentioned in the above-quoted Transitory Provisions of the Constitution. That the ARMM elections were not expressly mentioned in the Transitory Provisions of the Constitution on synchronization cannot be interpreted to mean that the ARMM elections are not covered by the constitutional mandate of synchronization. We have to consider that the ARMM, as we now know it, had not yet been officially organized at the time the Constitution was enacted and ratified by the people. Keeping in mind that a constitution is not intended to provide merely for the exigencies of a few years but is to endure through generations for as long as it remains unaltered by the people as ultimate sovereign, a constitution should be construed in the light of what actually is a continuing instrument to govern not only the present but also the unfolding events of the indefinite future. Although the principles embodied in a constitution remain fixed and

unchanged from the time of its adoption, a constitution must be construed as a dynamic process intended to stand for a great length of time, to be progressive and not static. 8 To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the intention of the Constitution to classify autonomous regions, such as the ARMM, as local governments. We refer to Section 1 of this Article, which provides: Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. The inclusion of autonomous regions in the enumeration of political subdivisions of the State under the heading "Local Government" indicates quite clearly the constitutional intent to consider autonomous regions as one of the forms of local governments. HSTaEC That the Constitution mentions only the "national government" and the "local governments," and does not make a distinction between the "local government" and the "regional government," is particularly revealing, betraying as it does the intention of the framers of the Constitution to consider the autonomous regions not as separate forms of government, but as political units which, while having more powers and attributes than other local government units, still remain under the category of local governments. Since autonomous regions are classified as local governments, it follows that elections held in autonomous regions are also considered as local elections. The petitioners further argue that even assuming that the Constitution mandates the synchronization of elections, the ARMM elections are not covered by this mandate since they are regional elections and not local elections. In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed." 9 Applying this principle to determine the scope of "local elections," we refer to the meaning of the word "local," as understood in its ordinary sense. As defined in Webster's Third New International Dictionary Unabridged, "local" refers to something "that primarily serves the needs of a particular limited district, often a community or minor political subdivision." Obviously, the ARMM elections, which are held within the confines of the autonomous region of Muslim Mindanao, fall within this definition. To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or municipalities is not enough reason to treat the ARMM regional elections differently from the other local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish. 10 RA No. 10153 does not amend RA No. 9054 The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections, amend RA No. 9054. We cannot agree with their position. HETDAa A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM elections; 11 it does not provide the date for the succeeding regular ARMM elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not amend RA No. 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054. We reiterate our previous observations: This view that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion finds support in ARMM's recent history. To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act RA No. 6734 not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections, leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or

modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification. The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite. From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054. 12 (emphases supplied) DEHcTI The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as regards the date of the subsequent ARMM elections. In his estimation, it can be implied from the provisions of RA No. 9054 that the succeeding elections are to be held three years after the date of the first ARMM regional elections. We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion. 13 Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention had been called to the omission. 14 Providing for lapses within the law falls within the exclusive domain of the legislature, and courts, no matter how well-meaning, have no authority to intrude into this clearly delineated space. Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no need for RA No. 10153 to comply with the amendment requirements set forth in Article XVII of RA No. 9054. Supermajority vote requirement makes RA No. 9054 an irrepealable law Even assuming that RA No. 10153 amends RA No. 9054, however, we have already established that the supermajority vote requirement set forth in Section 1, Article XVII of RA No. 9054 15 is unconstitutional for violating the principle that Congress cannot pass irrepealable laws. SAHEIc The power of the legislature to make laws includes the power to amend and repeal these laws. Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court has the duty to strike down such act for interfering with the plenary powers of Congress. As we explained in Duarte v. Dade: 16 A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. [emphasis ours] Under our Constitution, each House of Congress has the power to approve bills by a mere majority vote, provided there is quorum. 17 In requiring all laws which amend RA No. 9054 to comply with a higher voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly violated the very principle which we sought to establish in Duarte. To reiterate, the act of one legislature is not binding upon, and cannot tie the hands of, future legislatures. 18 HDTCSI We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting opinion, where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and

unconstitutionally, taking RA 9054 beyond the reach of Congress' amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution." 19 Plebiscite requirement in RA No. 9054 overly broad Similarly, we struck down the petitioners' contention that the plebiscite requirement 20 applies to all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite requirement set forth in the Constitution. Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose[.]" We interpreted this to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act 21 require ratification through a plebiscite. We stand by this interpretation. STDEcA The petitioners argue that to require all amendments to RA No. 9054 to comply with the plebiscite requirement is to recognize that sovereignty resides primarily in the people. While we agree with the petitioners' underlying premise that sovereignty ultimately resides with the people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the petitioners' interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite requirement before becoming effective, this would lead to impractical and illogical results hampering the ARMM's progress by impeding Congress from enacting laws that timely address problems as they arise in the region, as well as weighing down the ARMM government with the costs that unavoidably follow the holding of a plebiscite. Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President the power to appoint OICs to take the place of the elective officials of the ARMM, creates a fundamental change in the basic structure of the government, and thus requires compliance with the plebiscite requirement embodied in RA No. 9054. Again, we disagree. The pertinent provision in this regard is Section 3 of RA No. 10153, which reads: Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office. We cannot see how the above-quoted provision has changed the basic structure of the ARMM regional government. On the contrary, this provision clearly preserves the basic structure of the ARMM regional government when it recognizes the offices of the ARMM regional government and directs the OICs who shall temporarily assume these offices to "perform the functions pertaining to the said offices." HCITDc Unconstitutionality of the holdover provision The petitioners are one in defending the constitutionality of Section 7 (1), Article VII of RA No. 9054, which allows the regional officials to remain in their positions in a holdover capacity. The petitioners essentially argue that the ARMM regional officials should be allowed to remain in their respective positions until the May 2013 elections since there is no specific provision in the Constitution which prohibits regional elective officials from performing their duties in a holdover capacity. The pertinent provision of the Constitution is Section 8, Article X which provides: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours] On the other hand, Section 7 (1), Article VII of RA No. 9054 provides:

Section 7. Terms of Office of Elective Regional Officials. (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified. TIcEDC The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the Constitution to categorically set a limitation on the period within which all elective local officials can occupy their offices. We have already established that elective ARMM officials are also local officials; they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover capacity. Short of amending the Constitution, Congress has no authority to extend the three-year term limit by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local officials should stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by Congress. Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One significant difference between the present case and these past cases 22 is that while these past cases all refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution, the present case refers to local elective officials the ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative Assembly whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident. 23 Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its plenary legislative powers, has clearly acted within its discretion when it deleted the holdover option, and this Court has no authority to question the wisdom of this decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this Court, to decide how to fill the vacancies in the ARMM regional government which arise from the legislature complying with the constitutional mandate of synchronization. aHATDI COMELEC has no authority to hold special elections Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is sufficiently empowered to set the date of special elections in the ARMM. To recall, the Constitution has merely empowered the COMELEC to enforce and administer all laws and regulations relative to the conduct of an election. 24 Although the legislature, under the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another date, this power is confined to the specific terms and circumstances provided for in the law. Specifically, this power falls within the narrow confines of the following provisions: Section 5. Postponement of election. When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Section 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect

but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [emphases and underscoring ours] IcaHCS As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP 881 address instances where elections have already been scheduled to take place but do not occur or had to be suspended because of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and other analogous circumstances. In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of synchronization of national and local elections. Obviously, this does not fall under any of the circumstances contemplated by Section 5 or Section 6 of BP 881. More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the COMELEC has no authority to set a different election date. Even assuming that the COMELEC has the authority to hold special elections, and this Court can compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly elected officials in order to synchronize the ARMM elections with the May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials to three years. President's authority to appoint OICs The petitioner in G.R. No. 197221 argues that the President's power to appoint pertains only to appointive positions and cannot extend to positions held by elective officials. The power to appoint has traditionally been recognized as executive in nature. 25 Section 16, Article VII of the Constitution describes in broad strokes the extent of this power, thus: caCEDA Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours] The 1935 Constitution contained a provision similar to the one quoted above. Section 10 (3), Article VII of the 1935 Constitution provides: (3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [emphasis ours] The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935 Constitution is the sentence construction; while in the 1935 Constitution, the various appointments the President can make are enumerated in a single sentence, the 1987 Constitution enumerates the various appointments the President is empowered to make and divides the enumeration in two sentences. The change in style is significant; in providing for this change, the framers of the 1987 Constitution clearly sought to make a distinction between the first group of presidential appointments and the second group of presidential appointments, as made evident in the following exchange: MR. FOZ. Madame President . . . I propose to put a period (.) after "captain" and . . . delete "and all" and substitute it with HE SHALL ALSO APPOINT ANY. aHcACI MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. 26

The first group of presidential appointments, specified as the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the Armed Forces, and other officers whose appointments are vested in the President by the Constitution, pertains to the appointive officials who have to be confirmed by the Commission on Appointments. The second group of officials the President can appoint are "all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint." 27 The second sentence acts as the "catch-all provision" for the President's appointment power, in recognition of the fact that the power to appoint is essentially executive in nature. 28 The wide latitude given to the President to appoint is further demonstrated by the recognition of the President's power to appoint officials whose appointments are not even provided for by law. In other words, where there are offices which have to be filled, but the law does not provide the process for filling them, the Constitution recognizes the power of the President to fill the office by appointment. Any limitation on or qualification to the exercise of the President's appointment power should be strictly construed and must be clearly stated in order to be recognized. 29 Given that the President derives his power to appoint OICs in the ARMM regional government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution; the President's appointment power thus rests on clear constitutional basis. The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint OICs in elective positions, violates Section 16, Article X of the Constitution, 30 which merely grants the President the power of supervision over autonomous regions. DICSaH This is an overly restrictive interpretation of the President's appointment power. There is no incompatibility between the President's power of supervision over local governments and autonomous regions, and the power granted to the President, within the specific confines of RA No. 10153, to appoint OICs. The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." 31 This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter." 32 The petitioners' apprehension regarding the President's alleged power of control over the OICs is rooted in their belief that the President's appointment power includes the power to remove these officials at will. In this way, the petitioners foresee that the appointed OICs will be beholden to the President, and act as representatives of the President and not of the people. Section 3 of RA No. 10153 expressly contradicts the petitioners' supposition. The provision states: Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office. The wording of the law is clear. Once the President has appointed the OICs for the offices of the Governor, Vice Governor and members of the Regional Legislative Assembly, these same officials will remain in office until they are replaced by the duly elected officials in the May 2013 elections. Nothing in this provision even hints that the President has the power to recall the appointments he already made. Clearly, the petitioners' fears in this regard are more apparent than real. SDTcAH RA No. 10153 as an interim measure We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize the ARMM regional elections with the national and local elections. To do this, Congress had to postpone the scheduled ARMM elections for another date, leaving it with the problem of how to provide the ARMM with governance in the intervening period, between the expiration of the term of those elected in August 2008 and the assumption to office twenty-one (21) months away of those who will win in the synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to address the problem created by synchronization (a) allow the incumbent officials to remain in office after the expiration of their terms in a holdover capacity; (b) call for special elections to be held, and shorten the terms of those to be elected so the next ARMM regional elections can be held on May 13, 2013; or (c) recognize that the President, in the exercise of his appointment powers and in line with his power of supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the ARMM regional government upon the expiration of their terms. We have already established the unconstitutionality of the first two options, leaving us to consider the last available option. In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of reasonableness in responding to the challenges brought about by synchronizing the ARMM elections with the national and local elections. In other words, "given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President's power to appoint for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution an unconstitutional or unreasonable choice for Congress to make?" 33 STaHIC We admit that synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the community's choice of leaders. However, we have to keep in mind that the adoption of this measure is a matter of necessity in order to comply with a mandate that the Constitution itself has set out for us. Moreover, the implementation of the provisions of RA No. 10153 as an interim measure is comparable to the interim measures traditionally practiced when, for instance, the President appoints officials holding elective offices upon the creation of new local government units. The grant to the President of the power to appoint OICs in place of the elective members of the Regional Legislative Assembly is neither novel nor innovative. The power granted to the President, via RA No. 10153, to appoint members of the Regional Legislative Assembly is comparable to the power granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any cause in the Regional Legislative Assembly (then called the Sangguniang Pampook). 34 Executive is not bound by the principle of judicial courtesy The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011, question the propriety of the appointment by the President of Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue that since our previous decision was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the parties, the President, in recognition of the principle of judicial courtesy, should have refrained from implementing our decision until we have ruled with finality on this case. We find the petitioners' reasoning specious. cHATSI Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper for a lower court to suspend its proceedings for practical and ethical considerations. 35 In other words, the principle of "judicial courtesy" applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court or court of origin. 36 Consequently, this principle cannot be applied to the President, who represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of separation of powers, on which our whole system of government is founded upon. Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot, have the effect of making our ruling any less effective or binding. Regardless of how close the voting is, so long as there is concurrence of the majority of the members of the en banc who actually took part in the deliberations of the case, 37 a decision garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc and must be respected as such. The petitioners are, therefore, not in any position to speculate that, based on the voting, "the probability exists that their motion for reconsideration may be granted." 38 DTEHIA Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory Resolution, argues that since motions for reconsideration were filed by the aggrieved parties challenging our October 18, 2011 decision in the present case, the TRO we initially issued on September 13, 2011 should remain subsisting and effective. He further argues that any attempt

by the Executive to implement our October 18, 2011 decision pending resolution of the motions for reconsideration "borders on disrespect if not outright insolence" 39 to this Court. In support of this theory, the petitioner cites Samad v. COMELEC, 40 where the Court held that while it had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and executory, and can also be the subject of a motion for reconsideration. The petitioner also cites the minute resolution issued by the Court in Tolentino v. Secretary of Finance, 41 where the Court reproached the Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the decision of the Court, noting that the Court had not yet lifted the TRO previously issued. 42 aTIAES We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for reconsideration filed to assail our decision. It does not follow, however, that the TRO remains effective until after we have issued a final and executory decision, especially considering the clear wording of the dispositive portion of our October 18, 2011 decision, which states: WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs. 43 (emphases ours) In this regard, we note an important distinction between Tolentino and the present case. While it may be true that Tolentino and the present case are similar in that, in both cases, the petitions assailing the challenged laws were dismissed by the Court, an examination of the dispositive portion of the decision in Tolentino reveals that the Court did not categorically lift the TRO. In sharp contrast, in the present case, we expressly lifted the TRO issued on September 13, 2011. There is, therefore, no legal impediment to prevent the President from exercising his authority to appoint an acting ARMM Governor and Vice Governor as specifically provided for in RA No. 10153. Conclusion As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282 presents in his motion, that our Decision has virtually given the President the power and authority to appoint 672,416 OICs in the event that the elections of barangay and Sangguniang Kabataan officials are postponed or cancelled. TCAHES We find this speculation nothing short of fear-mongering. This argument fails to take into consideration the unique factual and legal circumstances which led to the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the ARMM elections with the national and local elections. In the course of synchronizing the ARMM elections with the national and local elections, Congress had to grant the President the power to appoint OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally impermissible; and (b) Congress cannot call for special elections and shorten the terms of elective local officials for less than three years. Unlike local officials, as the Constitution does not prescribe a term limit for barangay and Sangguniang Kabataan officials, there is no legal proscription which prevents these specific government officials from continuing in a holdover capacity should some exigency require the postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither legal nor factual basis to stand on. For the foregoing reasons, we deny the petitioners' motions for reconsideration. WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for lack of merit and UPHOLD the constitutionality of RA No. 10153. CEDScA SO ORDERED.

[G.R. No. 136921. April 17, 2001.] LORNA GUILLEN PESCA, petitioner, vs. ZOSIMO A. PESCA, respondent. Vigilia and Vigilia Law Offices for petitioner. Ernesto M. Tomameng for respondent. SYNOPSIS Petitioner sued respondent before the Regional Trial Court for the declaration of nullity of their marriage invoking psychological incapacity. The trial court rendered its decision declaring the marriage between petitioner and respondent to be null and void ab initio on the basis of psychological incapacity on the part of respondent and ordered the liquidation of the conjugal partnership. Respondent appealed the above decision to the Court of Appeals, contending that the trial court erred, particularly, in holding that there was legal basis to declare the marriage null and void and in denying his motion to reopen the case. The Court of Appeals reversed the decision of the trial court and declared the marriage between petitioner and respondent valid and subsisting. Petitioner, in her plea to the Court, would have the decision of the Court of Appeals reversed on the thesis that the doctrine enunciated in Santos vs. Court of Appeals, promulgated on 14 January 1995, as well as the guidelines set out in Republic vs. Court of Appeals and Molina, promulgated on 13 February 1997, should have no retroactive application and, on the assumption that the Molina ruling could be applied retroactively, the guidelines therein outlined should be taken to be merely advisory and not mandatory in nature. In any case, petitioner argued, the application of the Santos and Molina dicta should warrant only a remand of the case to the trial court for further proceedings and not its dismissal. DcTaEH The Supreme Court denied the petition and affirmed the decision of the Court of Appeals. In resolving petitioner's contention, the Court applied the "doctrine of stare decisis". The doctrine as ordained in Article 8 of the Civil Code declares that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim "legis interpretado legis vim obtinet" that the interpretation placed upon the written law by a competent court has the force of law. The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of the Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith under the familiar rule of "lex prospicit, non respicit". In the case at bar, the phrase "psychological incapacity", borrowed from Canon Law, is an entirely novel provision in our statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos vs. Court of Appeals when, for the first time, the Court has given life to the term. Republic vs. Court of Appeals and Molina, that followed, has additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. The Court, therefore, concluded that the Molina doctrine has strengthened, not overturned, the Santos doctrine. The Court also opined that petitioner has utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent so as to warrant a declaration of nullity of the marriage. The Court stressed that the alleged emotional immaturity and irresponsibility of respondent, invoked by petitioner, is not synonymous with psychological incapacity. SYLLABUS 1. CIVIL LAW; DOCTRINE OF "STARE DECISIS"; EXPLAINED. The "doctrine of stare decisis", ordained in Article 8 of the Civil Code, expresses that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim "legis interpretado legis vim obtinet" that the interpretation placed upon the written law by a competent court has the force of law. The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith under the familiar rule of "lex prospicit, non respicit". TSAHIa

2. ID.; FAMILY CODE; DECLARATION OF NULLITY OF MARRIAGE BY REASON OF PSYCHOLOGICAL INCAPACITY; EMOTIONAL IMMATURITY AND IRRESPONSIBILITY CANNOT BE EQUATED WITH PSYCHOLOGICAL INCAPACITY. The phrase "psychological incapacity", borrowed from Canon Law, is an entirely novel provision in our statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first time, the Court has given life to the term. Molina, that followed, has additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos. At all events, petitioner has utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent, let alone at the time of solemnization of the contract, so as to warrant a declaration of nullity of the marriage. Emotional immaturity and irresponsibility, invoked by her, cannot be equated with psychological incapacity. The Court reiterates its reminder that marriage is an inviolable social institution and the foundation of the family that the State cherishes and protects. While the Court commiserates with petitioner in her unhappy marital relationship with respondent, totally terminating that relationship, however, may not necessarily be the fitting denouement to it. In these cases, the law has not quite given up, neither should we. CIDcHA DECISION VITUG, J p: Submitted for review is the decision of the Court of Appeals, promulgated on 27 May 1998, in C.A. G.R. CV No 52374, reversing the decision of the Regional Trial Court ("RTC") of Caloocan City, Branch 130, which has declared the marriage between petitioner and respondent to be null and void ab initio on the ground of psychological incapacity on the part of respondent. EDACSa Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met sometime in 1975 while on board an inter-island vessel bound for Bacolod City. After a whirlwind courtship, they got married on 03 March 1975. Initially, the young couple did not live together as petitioner was still a student in college and respondent, a seaman, had to leave the country on board an oceangoing vessel barely a month after the marriage. Six months later, the young couple established their residence in Quezon City until they were able to build their own house in Caloocan City where they finally resided. It was blissful marriage for the couple during the two months of the year that they could stay together when respondent was on vacation. The union begot four children, 19-year old Ruhem, 17-year old Rez, 11-year old Ryan, and 9-year-old Richie. It started in 1988, petitioner said, when she noticed that respondent surprisingly showed signs of "psychological incapacity" to perform his marital covenant. His "true color" of being an emotionally immature and irresponsible husband became apparent. He was cruel and violent. He was a habitual drinker, staying with friends daily from 4:00 o'clock in the afternoon until 1:00 o'clock in the morning. When cautioned to stop or, to at least, minimize his drinking, respondent would beat, slap and kick her. At one time, he chased petitioner with a loaded shotgun and threatened to kill her in the presence of the children. The children themselves were not spared from physical violence. Finally, on 19 November 1992, petitioner and her children left the conjugal abode to live in the house of her sister in Quezon City as they could no longer bear his violent ways. Two months later, petitioner decided to forgive respondent, and she returned home to give him a chance to change. But, to her dismay, things did not so turn out as expected. Indeed, matters became worse. On the morning of 22 March 1994, about eight o'clock, respondent assaulted petitioner for about half an hour in the presence of the children. She was battered black and blue. She submitted herself to medical examination at the Quezon City General Hospital, which diagnosed her injuries as contusions and abrasions. Petitioner filed a complaint with the barangay authorities, and a case was filed against respondent for slight physical injuries. He was convicted by the Metropolitan Trial Court of Caloocan City and sentenced to eleven days of imprisonment. This time, petitioner and her children left the conjugal home for good and stayed with her sister. Eventually, they decided to rent an apartment. Petitioner sued respondent before the Regional Trial Court for the declaration of nullity of their marriage invoking psychological incapacity. Petitioner likewise sought the custody of her minor children and prayed for support pendente lite. Summons, together with a copy of the complaint, was served on respondent on 25 April 1994 by personal service by the sheriff. As respondent failed to file an answer or to enter his appearance within the reglementary period, the trial court

ordered the city prosecutor to look into a possible collusion between the parties. Prosecutor Rosa C. Reyes, on 03 August 1994, submitted her report to the effect that she found no evidence to establish that there was collusion between the parties. On 11 January 1995, respondent belatedly filed, without leave of court, an answer, and the same, although filed late, was admitted by the court. In his answer, respondent admitted the fact of his marriage with petitioner and the birth of their children. He also confirmed the veracity of Annex "A" of the complaint which listed the conjugal property. Respondent vehemently denied, however, the allegation that he was psychologically incapacitated. On 15 November 1995, following hearings conducted by it, the trial court rendered its decision declaring the marriage between petitioner and respondent to be null and void ab initio on the basis of psychological incapacity on the part of respondent and ordered the liquidation of the conjugal partnership. Respondent appealed the above decision to the Court of Appeals, contending that the trial court erred, particularly, in holding that there was legal basis to declare the marriage null and void and in denying his motion to reopen the case. cDCSTA The Court of Appeals reversed the decision of the trial court and declared the marriage between petitioner and responder valid and subsisting. The appellate court said: "Definitely the appellee has not established the following: That the appellant showed signs of mental incapacity as would cause him to be truly incognizant of the basic marital covenant, as so provided for in Article 68 of the Family Code; that the incapacity is grave, has preceded the marriage and is incurable; that his incapacity to meet his marital responsibility is because of a psychological, not physical illness; that the root cause of the incapacity has been identified medically or clinically, and has been proven by an expert; and that the incapacity is permanent and incurable in nature. "The burden of proof to show the nullity of marriage lies in the plaintiff and any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity." 1 Petitioner, in her plea to this Court, would have the decision of the Court of Appeals reversed on the thesis that the doctrine enunciated in Santos vs. Court of Appeals, 2 promulgated on 14 January 1995, as well as the guidelines set out in Republic vs. Court of Appeals and Molina, 3 promulgated on 13 February 1997, should have no retroactive application and, on the assumption that the Molina ruling could be applied retroactively, the guidelines therein outlined should be taken to be merely advisory and not mandatory in nature. In any case, petitioner argues, the application of the Santos and Molina dicta should warrant only a remand of the case to the trial court for further proceedings and not its dismissal. Be that as it may, respondent submits, the appellate court did not err in its assailed decision for there is absolutely no evidence that has been shown to prove psychological incapacity on his part as the term has been so defined in Santos. Indeed, there is no merit in the petition. The term "psychological incapacity," as a ground for the declaration of nullity of a marriage under Article 36 of the Family Code, has been explained by the Court in Santos and reiterated in Molina. The Court, in Santos, concluded: "It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase 'psychological incapacity' under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Balumad's 'Void and Voidable Marriages in the Family Code and their Parallels in Canon Law,' quoting from the Diagnostic Statistical Manuel of Mental Disorder by the American Psychiatric Association; Edward Hudson's 'Handbook II for Marriage Nullity Cases'). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, 'psychological incapacity' should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognizant of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." DTIACH

The "doctrine of stare decisis," ordained in Article 8 of the Civil Code, expresses that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim "legis interpretado legis vim obtinet" that the interpretation placed upon the written law by a competent court has the force of law. 4 The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith 5 under the familiar rule of "lex prospicit, non respicit." The phrase "psychological incapacity," borrowed from Canon law, is an entirely novel provision in our statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first time, the Court has given life to the term. Molina, that followed, has additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos. At all events, petitioner has utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent, let alone at the time of solemnization of the contract, so as to warrant a declaration of nullity of the marriage. Emotional immaturity and irresponsibility, invoked by her, cannot be equated with psychological incapacity. The Court reiterates its reminder that marriage is an inviolable social institution and the foundation of the family 6 that the State cherishes and protects. While the Court commiserates with petitioner in her unhappy marital relationship with respondent, totally terminating that relationship, however, may not necessarily be the fitting denouement to it. In these cases, the law has not quite given up, neither should we. aTAEHc WHEREFORE, the herein petition is DENIED. No Costs. SO ORDERED.

EN BANC [G.R. No. 191002. April 20, 2010.] ARTURO M. DE CASTRO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL-ARROYO, respondents. [G.R. No. 191032. April 20, 2010.] JAIME N. SORIANO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent. [G.R. No. 191057. April 20, 2010.] PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent. [A.M. No. 10-2-5-SC. April 20, 2010.] IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, petitioner, [G.R. No. 191149. April 20, 2010.] JOHN G. PERALTA, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent. PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL, JR., intervenors. [G.R. No. 191342. April 20, 2010.]

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), petitioners, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent. [G.R. No. 191420. April 20, 2010.] PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, respondents. RESOLUTION BERSAMIN, J p: On March 17, 2010, the Court promulgated its decision, holding: WHEREFORE, the Court: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; ICHDca 2. 3. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision. SO ORDERED. CHDaAE MOTIONS FOR RECONSIDERATION Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed. We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven order: Soriano 1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to designate the Chief Justice belonged to the Supreme Court en banc. 2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment and did not involve a justiciable controversy. EHcaAI 3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for him to participate as a Member of the Court.

Tolentino and Inting 1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial appointments from the express ban on midnight appointments. 2. exists. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions when none

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an executive, not a judicial, power. 4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary the terms of the clear prohibition. 5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court has raised the Constitution to the level of a venerated text whose intent can only be divined by its framers as to be outside the realm of understanding by the sovereign people that ratified it. SECIcT 6. 7. Valenzuela should not be reversed. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal composition of the JBC.

Philippine Bar Association 1. The Court's strained interpretation of the Constitution violates the basic principle that the Court should not formulate a rule of constitutional law broader than what is required by the precise facts of the case. 2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to apply it. The provision expressly and clearly provides a general limitation on the appointing power of the President in prohibiting the appointment of any person to any position in the Government without any qualification and distinction. 3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight appointments. cICHTD 4. The Constitution has installed two constitutional safeguards: the prohibition against midnight appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one over the other, for the Court's duty is to apply the safeguards as they are, not as the Court likes them to be. 5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting the Constitution.

6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents on statutory construction holding that such headings carried very little weight. 7. The Constitution has provided a general rule on midnight appointments, and the only exception is that on temporary appointments to executive positions. 8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court only the power of supervision over the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and justiciable case assailing any specific action or inaction of the JBC. cCSDTI 9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.

10. The constitutional ban on appointments being already in effect, the Court's directing the JBC to comply with the decision constitutes a culpable violation of the Constitution and the commission of an election offense.

11. banc.

The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated by the Court en

12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary. 13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the outgoing President's powers by means of proxies. The attempt of the incumbent President to appoint the next Chief Justice is undeniably intended to perpetuate her power beyond her term of office. IBP-Davao del Sur, et al. 1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela pronouncement. ASHICc 2. Section 16, Article VII of the Constitution provides for presidential appointments to the Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its phrase "other officers whose appointments are vested in him in this Constitution" is enough proof that the limitation on the appointing power of the President extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in the Executive and Judicial Branches of the Government. 3. Lim 1. There is no justiciable controversy that warrants the Court's exercise of judicial review. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief Justice in all cases.

2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court and to other appointments to the Judiciary. 3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII against midnight appointments in the Judiciary. IDAaCc Corvera 1. The Court's exclusion of appointments to the Judiciary from the Constitutional ban on midnight appointments is based on an interpretation beyond the plain and unequivocal language of the Constitution. 2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent political partisanship in all branches of the Government, should have controlled. 3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization and physical arrangement, especially considering that the Constitution must be interpreted as a whole. 4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution should yield to the plain and unequivocal language of the Constitution. AHaETS 5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with the Constitution.

BAYAN, et al. 1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering that the office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide whether or not to submit a list of nominees to the President.

2.

The collective wisdom of Valenzuela Court is more important and compelling than the opinion of Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4 (1), Article VIII, the Court has violated the principle of ut magis valeat quam pereat (which mandates that the Constitution should be interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give effect to all). There is no conflict between the provisions; they complement each other. 4. The form and structure of the Constitution's titles, chapters, sections, and draftsmanship carry little weight in statutory construction. The clear and plain language of Section 15, Article VII precludes interpretation. CHEIcS Tan, Jr. 1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual vacancy in the position of the Chief Justice has yet occurred. 2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs in conflict with long standing principles and doctrines of statutory construction. The provision admits only one exception, temporary appointments in the Executive Department. Thus, the Court should not distinguish, because the law itself makes no distinction. 3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted. DTEcSa 4. Section 15, Article VII is not incompatible with Section 4 (1), Article VIII. The 90-day mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within which to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees without haste and political uncertainty. 5. When the constitutional ban is in place, the 90-day period under Section 4 (1), Article VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election offense. 7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en banc, even when it acts as the sole judge of all contests relative to the election, returns and qualifications of the President and Vice-President. Fourteen other Members of the Court can validly comprise the Presidential Electoral Tribunal. CacEID WTLOP 1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief Justice to the President on or before May 17, 2010, and to continue its proceedings for the nomination of the candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not provided by law or the Constitution; exercised control instead of mere supervision over the JBC; and lacked sufficient votes to reverse Valenzuela. 2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory construction to the effect that the literal meaning of the law must be applied when it is clear and unambiguous; and that we should not distinguish where the law does not distinguish. 3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948 already provides that the power and duties of the office devolve on the most senior Associate Justice in case of a vacancy in the office of the Chief Justice. IDCcEa Ubano 1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation.

2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement of its provisions. 3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent records of the Constitutional Commission are clear and unambiguous. 4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17, 2010 at the latest, because no specific law requires the JBC to submit the list of nominees even before the vacancy has occurred. Boiser 1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the temporary appointment to an executive position. The limitation is in keeping with the clear intent of the framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to make appointments. IcEACH 2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes the appointee beholden to the outgoing Chief Executive, and compromises the independence of the Chief Justice by having the outgoing President be continually influential. 3. The Court's reversal of Valenzuela without stating the sufficient reason violates the principle of stare decisis.

Bello, et al. 1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is prohibited from making within the prescribed period. Plain textual reading and the records of the Constitutional Commission support the view that the ban on midnight appointments extends to judicial appointments. 2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must first act not in accord with prescribed rules before the act can be redone to conform to the prescribed rules. 3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable controversy. HAEDCT Pimentel 1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the general intent of the Constitution as a limitation to the powers of Government and as a bastion for the protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the Constitution, the interpretation should always be one that protects the citizenry from an ever expanding grant of authority to its representatives. 2. The decision expands the constitutional powers of the President in a manner totally repugnant to republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution without proper authority. COMMENTS The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments, thus: OSG 1. cdphil 2. 3. The JBC may be compelled to submit to the President a short list of its nominees for the position of Chief Justice.

The incumbent President has the power to appoint the next Chief Justice. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on midnight appointments.

5. JBC

The Court has the duty to consider and resolve all issues raised by the parties as well as other related matters.

1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet decided at the time the petitions were filed whether the incumbent President has the power to appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not submitted a short list to the President. 2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis. The statement undermines the independence of the JBC. aTADcH 3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and its implementing rules and regulations. For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG and the JBC were the only ones the Court has required to do so. He states that the motions for reconsideration were directed at the administrative matter he initiated and which the Court resolved. His comment asserts: 1. The grounds of the motions for reconsideration were already resolved by the decision and the separate opinion.

2. The administrative matter he brought invoked the Court's power of supervision over the JBC as provided by Section 8 (1), Article VIII of the Constitution, as distinguished from the Court's adjudicatory power under Section 1, Article VIII. In the former, the requisites for judicial review are not required, which was why Valenzuela was docketed as an administrative matter. Considering that the JBC itself has yet to take a position on when to submit the short list to the proper appointing authority, it has effectively solicited the exercise by the Court of its power of supervision over the JBC. ISDHcT 3. To apply Section 15, Article VII to Section 4 (1) and Section 9, Article VIII is to amend the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section 15, Article VII or Section 4 (1), Article VIII, but to Section 13, Article VII (on nepotism). RULING We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued, not being new, have all been resolved by the decision of March 17, 2010. Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis. First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist that the Court has erred in disobeying or abandoning Valenzuela. 1 The contention has no basis. Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority. The decisions relied upon as precedents are commonly those of appellate courts, because the decisions of the trial courts may be appealed to higher courts and for that reason are probably not the best evidence of the rules of law laid down. 2 ADTEaI Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them. 3 In a hierarchical judicial system like ours, the decisions of the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest court does not bind itself, being invested with the innate authority to rule according to its best lights. 4

The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a rectification. 5 The adherence to precedents is strict and rigid in a common-law setting like the United Kingdom, where judges make law as binding as an Act of Parliament. 6 But ours is not a common-law system; hence, judicial precedents are not always strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a subsequent case only when its reasoning and justification are relevant, and the court in the latter case accepts such reasoning and justification to be applicable to the case. The application of the precedent is for the sake of convenience and stability. For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered en banc or in division. 7 AIaDcH Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional Commission extended to the Judiciary the ban on presidential appointments during the period stated in Section 15, Article VII. The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional Commission did not concern either Section 15, Article VII or Section 4 (1), Article VIII, but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to the President within the fourth civil degree of consanguinity or affinity among the persons whom the President might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any further complication," 8 such that the final version of the second paragraph of Section 13, Article VII even completely omits any reference to the Judiciary, to wit: Section 13. ...

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. ASTIED Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to appointments in the Judiciary. They aver that the Court either ignored or refused to apply many principles of statutory construction. The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance on the principles of statutory construction. For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba legis. That is selfcontradiction at its worst. Another instance is the movants' unhesitating willingness to read into Section 4 (1) and Section 9, both of Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for doing so would generally constitute an encroachment upon the field of the Constitutional Commission. Rather, Section 4 (1) and Section 9 should be left as they are, given that their meaning is clear and explicit, and no words can be interpolated in them. 9 Interpolation of words is unnecessary, because the law is more than likely to fail to express the legislative intent with the interpolation. In other words, the addition of new words may alter the thought intended to be conveyed. And, even where the meaning of the law is clear and sensible, either with or without the omitted word or words, interpolation is improper, because the primary source of the legislative intent is in the language of the law itself. 10 AIcECS Thus, the decision of March 17, 2010 has fittingly observed: Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable

to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court. We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the purposes of any quarter. cSDIHT FINAL WORD It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all the Members of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the successor of the retiring Chief Justice. The insinuation is misguided and utterly unfair. The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary proceeds from malice and condescension. Neither the outgoing President nor the present Members of the Court had arranged the current situation to happen and to evolve as it has. None of the Members of the Court could have prevented the Members composing the Court when she assumed the Presidency about a decade ago from retiring during her prolonged term and tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up the vacancies created by such inexorable retirements within 90 days from their occurrence. Her official duty she must comply with. So must we ours who are tasked by the Constitution to settle the controversy. ACCORDINGLY, the motions for reconsideration are denied with finality. DTAIaH SO ORDERED.

[G.R. No. 188302. June 27, 2012.] NANCY L. TY, petitioner, vs. BANCO FILIPINO SAVINGS and MORTGAGE BANK, respondent. DECISION BRION, J p: We resolve the petition for review on certiorari, 1 filed by Nancy L. Ty (petitioner), to challenge the March 31, 2009 decision 2 and the June 10, 2009 resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 107104. The CA decision dismissed the petitioner's petition for certiorari for lack of merit. The CA resolution denied the petitioner's subsequent motion for reconsideration. SEIcHa THE FACTUAL ANTECEDENTS Sometime in 1979, the Banco Filipino Savings and Mortgage Bank (respondent) wanted to purchase real properties as new branch sites for its expansion program. Since the General Banking Act 4 limits a bank's real estate holdings to no more than 50% of its capital assets, the respondent's Board of Directors decided to warehouse some of its existing properties and branch sites to allow more flexibility in the opening of branches, and to enable it to acquire new branch sites. 5 The petitioner, a major stockholder and a director of the respondent, persuaded two other major stockholders, Pedro Aguirre and his brother Tomas Aguirre, to organize and incorporate Tala Realty Services Corporation (Tala Realty) to hold and purchase real properties in trust for the respondent. 6 Subsequently, Remedios A. Dupasquier prodded her brother Tomas to endorse to her his shares in Tala Realty and she registered them in the name of her controlled corporation, Add International Services, Inc. 7 The petitioner, Remedios, and Pedro controlled Tala Realty through their respective nominees. 8 TDCaSE In implementing their trust agreement, the respondent sold to Tala Realty some of its properties. Tala Realty simultaneously leased to the respondent the properties for 20 years, renewable for another 20 years at the respondent's option with a right of first refusal in the event Tala Realty decides to sell them. 9 However, in August 1992, Tala Realty repudiated the trust, claimed the titles for itself, and demanded payment of rentals, deposits, and goodwill, with a threat to eject the respondent. 10 Thus, from 1995 to 1996, the respondent filed 17 complaints against Tala Realty, the petitioner, Pedro, Remedios, and their respective nominees for reconveyance of different properties with 17 Regional Trial Courts (RTCs) nationwide, including Civil Case No. 2506-MN before Branch 170 of the RTC of Malabon (Malabon case), subject of the present case. 11 The petitioner and her co-defendants moved to dismiss the Malabon case for forum shopping and litis pendentia, citing the 16 other civil cases filed in various courts 12 involving the same facts, issues, parties, and reliefs pleaded in the respondent's complaint. 13 DTEIaC The Malabon RTC denied the motion to dismiss, 14 finding no commonality in the 16 other civil cases since they involved different causes of action. The Malabon RTC also denied 15 the subsequent motions for reconsideration and for suspension of proceedings. 16 After the petitioner and her co-defendants filed their respective answers ad cautelam, 17 the petitioner filed a motion to hold proceedings in abeyance, 18 citing the pendency with this Court of G.R. No. 127611 19 that assailed the denial of their motion to dismiss Civil Case No. 4521 before the Batangas City RTC (Branch 84), and also prayed for a writ of prohibition to order the 17 RTC branches and the three CA divisions, where the same cases were pending, to desist from further proceeding with the trial of the cases. The Malabon RTC granted to hold proceedings in abeyance. 20 When the Malabon RTC denied 21 the respondent's motion for reconsideration, the respondent elevated its case to the CA via a Rule 65 petition for certiorari. 22 The CA initially dismissed the petition, 23 but on motion for reconsideration, it modified its ruling, setting aside the RTC's order to hold proceedings in abeyance for mootness, due to this Court's dismissal of G.R. No. 127611 for late filing. 24 aEAIDH

Subsequently, the respondent moved for pre-trial. 25 Tala Realty opposed the motion and filed again a motion to suspend proceedings, 26 citing the pendency with this Court of G.R. No. 132703, 27 a petition for certiorari that assailed the CA's affirmance 28 of the dismissal order of the Iloilo City RTC (Branch 28) in Civil Case No. 22493. 29 The petitioner filed her separate opposition to the respondent's motion for pre-trial and a motion to hold proceedings in abeyance, stating that after the dismissal of G.R. No. 127611, two other similar petitions have been elevated to this Court: (1) G.R. No. 130184, 30 involving the CA's reversal of the dismissal of Civil Case No. Q-95-24830 in the Quezon City RTC (Branch 91), and (2) G.R. No. 132703. 31 The Malabon RTC granted the motion, and again ordered to hold proceedings in abeyance. 32 Six years later, the Malabon RTC directed the parties' counsels to inform it of the status of the pending cases. 33 In her compliance, 34 the petitioner summarized this Court's rulings in the consolidated cases of G.R. Nos. 130184 and 139166, 35 and in G.R. No. 132703, 36 and reported on the other cases involving the same parties decided by this Court, such as G.R. Nos. 129887, 37 137980, 38 132051, 39 137533, 40 143263, 41 and 142672, 42 as well as the other related cases decided by this Court, i.e., G.R. Nos. 144700, 43 147997, 44 167255, 45 and 144705. 46 TSIaAc On the other hand, the respondent filed its compliance with motion to revive proceedings, 47 citing the Court's consolidated decision in G.R. Nos. 130184 and 139166, 48 and the decisions in G.R. Nos. 144700, 49 167255, 50 and 144705, 51 commonly holding that there existed no forum shopping, litis pendentia and res judicata among the respondent's reconveyance cases pending in the other courts of justice. In her comment to the respondent's motion to revive proceedings, 52 the petitioner argued that the proceedings should not be revived since all the reconveyance cases are grounded on the same theory of implied trust which this Court in G.R. No. 137533 53 found void for being illegal as it was a scheme to circumvent the 50% limitation on real estate holdings under the General Banking Act. Tala Realty, on the other hand, pointed out that it was the court's prerogative to suspend or not its proceedings pending the resolution of issues by another court, in order to avoid multiplicity of suits and prevent vexatious litigations. 54 TDcAaH THE RTC RULING In its May 6, 2008 order, the RTC granted the respondent's motion to revive proceedings, noting that res judicata is not applicable since there are independent causes of action for each of the properties sought to be recovered. 55 When the RTC denied 56 the petitioner's motion for reconsideration, 57 she elevated her case to the CA via a Rule 65 petition for certiorari, assailing the RTC orders. 58 THE CA RULING In its March 31, 2009 decision, the CA affirmed the RTC's orders. 59 It noted that res judicata does not apply since the issue of validity or enforceability of the trust agreement was raised in an ejectment case, not an action involving title or ownership, citing the Court's pronouncement in G.R. No. 144705 60 that G.R. No. 137533 61 does not put to rest all pending litigations involving the issues of ownership between the parties since it involved only an issue of de facto possession. HAICTD When the CA denied 62 her motion for reconsideration, 63 the petitioner filed the present petition. THE PETITION The petitioner argues that the CA erred in refusing to apply G.R. No. 137533 under the principle of res judicata by conclusiveness of judgment and stare decisis, and ignoring the November 26, 2007 minute resolution in G.R. No. 177865 64 and the April 7, 2009 consolidated decision in G.R. Nos. 130088, 131469, 155171, 155201, and 166608 65 that reiterated the Court's pronouncement in G.R. No. 137533. THE CASE FOR THE RESPONDENT

The respondent submits that the petitioner is estopped from amending the issues since she never raised the pendency of the consolidated cases of G.R. Nos. 130088, 131469, 155171, 155201 and 166608 in her CA petition, which was based only on the Court's rulings in G.R. No. 137533 and G.R. No. 177865. aIcDCH THE ISSUE The core issues boil down to whether the Court's ruling in G.R. No. 137533 applies as stare decisis to the present case. OUR RULING We grant the petition. The case at bar presents the same issue that the Court already resolved on April 7, 2009 in G.R. Nos. 130088, 131469, 155171, 155201 and 166608, wherein we applied the Court's November 22, 2002 decision in G.R. No. 137533, one of several ejectment cases filed by Tala Realty against the respondent arising from the same trust agreement in the reconveyance case subject of the present petition, that the trust agreement is void and cannot thus be enforced. We quoted therein the Court's ruling in G.R. No. 137533, thus: cTDECH The Bank alleges that the sale and twenty-year lease of the disputed property were part of a larger implied trust "warehousing agreement." Concomitant with this Court's factual finding that the 20-year contract governs the relations between the parties, we find the Bank's allegation of circumstances surrounding its execution worthy of credence; the Bank and Tala entered into contracts of sale and lease back of the disputed property and created an implied trust "warehousing agreement" for the reconveyance of the property. In the eyes of the law, however, this implied trust is inexistent and void for being contrary to law. 66 An implied trust could not have been formed between the Bank and Tala as this Court has held that "where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud." 67 . . . [T]he bank cannot use the defense of nor seek enforcement of its alleged implied trust with Tala since its purpose was contrary to law. As admitted by the Bank, it "warehoused" its branch site holdings to Tala to enable it to pursue its expansion program and purchase new branch sites including its main branch in Makati, and at the same time avoid the real property holdings limit under Sections 25(a) and 34 of the General Banking Act which it had already reached . . . . ESCacI Clearly, the Bank was well aware of the limitations on its real estate holdings under the General Banking Act and that its "warehousing agreement" with Tala was a scheme to circumvent the limitation. Thus, the Bank opted not to put the agreement in writing and call a spade a spade, but instead phrased its right to reconveyance of the subject property at any time as a "first preference to buy" at the "same transfer price". This agreement which the Bank claims to be an implied trust is contrary to law. Thus, while we find the sale and lease of the subject property genuine and binding upon the parties, we cannot enforce the implied trust even assuming the parties intended to create it. In the words of the Court in the Ramos case, "the courts will not assist the payor in achieving his improper purpose by enforcing a resultant trust for him in accordance with the 'clean hands' doctrine." The Bank cannot thus demand reconveyance of the property based on its alleged implied trust relationship with Tala. 68 (italics supplied.) TIaEDC The Bank and Tala are in pari delicto, thus, no affirmative relief should be given to one against the other. The Bank should not be allowed to dispute the sale of its lands to Tala nor should Tala be allowed to further collect rent from the Bank. The clean hands doctrine will not allow the creation or the use of a juridical relation such as a trust to subvert, directly or indirectly, the law. Neither the Bank nor Tala came to court with clean hands; neither will obtain relief from the court as the one who seeks equity and justice must come to court with clean hands. 69 (emphases ours; citation omitted) G.R. No. 137533, as reiterated in G.R. Nos. 130088, 131469, 155171, 155201 and 166608, is binding and applicable to the present case following the salutary doctrine of stare decisis et non quieta movere, which means "to adhere to precedents, and not to unsettle things which are established." 70 Under the doctrine, when this Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. 71 The doctrine of stare decisis is based

upon the legal principle or rule involved and not upon the judgment, which results therefrom. In this particular sense, stare decisis differs from res judicata, which is based upon the judgment. 72 HASTCa The doctrine of stare decisis is one of policy grounded on the necessity for securing certainty and stability of judicial decisions, thus: Time and again, the Court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same [issue]. 73 (italics supplied) aDIHCT It bears stressing that the basic facts of the present case and those of G.R. No. 137533 and G.R. Nos. 130088, 131469, 155171, 155201 and 166608 are the same. Clearly, in light of G.R. No. 137533 and G.R. Nos. 130088, 131469, 155171, 155201 and 166608, which the Court follows as precedents, the present action for reconveyance cannot prosper. It is the Court's duty to apply the previous rulings in G.R. No. 137533 and in G.R. Nos. 130088, 131469, 155171, 155201 and 166608 to the present case. Once a case has been decided one way, any other case involving exactly the same point at issue, as in the present case, should be decided in the same manner. 74 aSDCIE WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the Court of Appeals in CA-G.R. SP No. 107104 are hereby REVERSED and SET ASIDE. Civil Case No. 2506-MN before Branch 170 of the Regional Trial Court of Malabon, Metro Manila is hereby DISMISSED. SO ORDERED.

[G.R. No. 187451. August 29, 2012.] JESUS VIRTUCIO, represented by ABDON VIRTUCIO, petitioner, vs. JOSE ALEGARBES, respondent. DECISION MENDOZA, J p: This petition for review on certiorari under Rule 45 seeks to reverse and set aside the February 25, 2009 Decision 1 of the Court of Appeals (CA), in CA-G.R. CV No. 72613, reversing and setting aside the February 19, 2001 Decision 2 of the Regional Trial Court, Branch 1, Isabela, Basilan (RTC), in Civil Case No. 685-627, an action for "Recovery of Possession and Ownership with Preliminary Injunction." IcDESA The Facts Respondent Jose Alegarbes (Alegarbes) filed Homestead Application No. V-33203 (E-V-49150) for a 24-hectare tract of unsurveyed land situated in Baas, Lantawan, Basilan in 1949. His application was approved on January 23, 1952. 3 In 1955, however, the land was subdivided into three (3) lots Lot Nos. 138, 139 and 140, Pls-19 as a consequence of a public land subdivision. Lot 139 was allocated to Ulpiano Custodio (Custodio), who filed Homestead Application No. 18-4493 (E-182958). Lot 140 was allocated to petitioner Jesus Virtucio (Virtucio), who filed Homestead Application No. 18-4421 (E-182924). 4 Alegarbes opposed the homestead applications filed by Custodio and Virtucio, claiming that his approved application covered the whole area, including Lot Nos. 139 and 140. 5 On October 30, 1961, the Director of Lands rendered a decision denying Alegarbes' protest and amending the latter's application to exclude Lots 139 and 140. Only Lot 138 was given due course. The applications of Custodio and Virtucio for Lots 139 and 140, respectively, were likewise given due course. 6 Alegarbes then appealed to the Secretary of Agriculture and Natural Resources, who dismissed his appeal on July 28, 1967. He then sought relief from the Office of the President (OP), which, however, affirmed the dismissal order of the Secretary of Agriculture and Natural Resources in a decision, dated October 25, 1974. Alegarbes moved for a reconsideration, but the motion was subsequently denied. 7 On May 11, 1989, an order of execution 8 was issued by the Lands Management Bureau of the Department of Environment and Natural Resources to enforce the decision of the OP. It ordered Alegarbes and all those acting in his behalf to vacate the subject lot, but he refused. aASEcH On September 26, 1997, Virtucio then filed a complaint 9 for "Recovery of Possession and Ownership with Preliminary Injunction" before the RTC. In his Answer, 10 Alegarbes claimed that the decision of the Bureau of Lands was void ab initio considering that the Acting Director of Lands acted without jurisdiction and in violation of the provisions of the Public Land Act. Alegarbes argued that the said decision conferred no rights and imposed no duties and left the parties in the same position as they were before its issuance. He further alleged that the patent issued in favor of Virtucio was procured through fraud and deceit, thus, void ab initio. Alegarbes further argued, by way of special and/or affirmative defenses, that the approval of his homestead application on January 23, 1952 by the Bureau of Lands had already attained finality and could not be reversed, modified or set aside. His possession of Lot Nos. 138, 139 and 140 had been open, continuous, peaceful and uninterrupted in the concept of an owner for more than 30 years and had acquired such lots by acquisitive prescription. In his Amended and Supplemental Answer, 11 Alegarbes also averred that his now deceased brother, Alejandro Alegarbes, and the latter's family helped him develop Lot 140 in 1955. Alejandro and his family, as well as Alegarbes' wife and children, had been permanently occupying the said lot and, introducing permanent improvements thereon since 1960. The RTC Ruling

The RTC rendered its decision on February 19, 2001, favoring Virtucio. The decretal portion of which reads: CEHcSI WHEREFORE, upon the merit of this case, this court finds for the plaintiff and against the defendant by: 1. Ordering the defendant and all those acting in his behalf to vacate Lot No. 140, Pls-19, located at Lower Baas, Lantawan, Basilan and surrender the possession and ownership thereof to plaintiff; 2. Ordering the defendant to pay the plaintiff the amount of Fifteen Thousand Pesos (P15,000.00) as attorney's fees and another Ten Thousand Pesos (P10,000.00) as expenses for litigation; and 3. To pay the cost of the suit in the amount of Five Hundred Pesos (P500.00).

SO ORDERED. 12 Not in conformity, Alegarbes appealed his case before the CA. The CA Ruling On February 25, 2009, the CA promulgated its decision declaring Alegarbes as the owner of Lot No. 140, Pls-19, thereby reversing and setting aside the decision of the RTC. The CA ruled that Alegarbes became ipso jure owner of Lot 140 and, therefore, entitled to retain possession of it. Consequently, the awards of attorney's fees, litigation expenses and costs of suit were deleted. cAEDTa In so ruling, the CA explained that even if the decision to approve Virtucio's homestead application over Lot 140 had become final, Alegarbes could still acquire the said lot by acquisitive prescription. The decisions on the issues of the approval of Virtucio's homestead application and its validity were impertinent as Alegarbes had earlier put in issue the matter of ownership of Lot 140 which he claimed by virtue of adverse possession. The CA also found reversible error on the part of the RTC in disregarding the evidence before it and relying entirely upon the decisions of the administrative bodies, none of which touched upon the issue of Alegarbes' open, continuous and exclusive possession of over thirty (30) years of an alienable land. The CA held that the Director of Lands, the Secretary of Agriculture and Natural Resources and the OP did not determine whether Alegarbes' possession of the subject property had ipso jure segregated Lot 140 from the mass of public land and, thus, was beyond their jurisdiction. Aggrieved, Virtucio filed this petition. ISSUES Virtucio assigned the following errors in seeking the reversal of the assailed decision of the CA, to wit: 1. The Court of Appeals erred in setting aside the judgment of the trial court, which awarded the lot in question to the respondent by virtue of acquisitive prescription and ordered herein petitioner to surrender the ownership and possession of the same to them. 13 2. The Court of Appeals gravely erred in disregarding the decision in CA-G.R. CV-26286 for Recovery of Possession and Ownership, Custodio vs. Alegarbes which contains same factual circumstances as in this case and ruled against JOSE ALEGARBES. 14 3. The Court of Appeals erred in deleting the award of attorney's fees to the petitioner. 15

The lone issue in this case is whether or not Alegarbes acquired ownership over the subject property by acquisitive prescription. IcHEaA Ruling of the Court The petition must fail.

Indeed, it is fundamental that questions of fact are not reviewable in petitions for review on certiorari under Rule 45 of the Rules of Court. Only questions of law distinctly set forth shall be raised in the petition. 16 Here, the main issue is the alleged acquisition of ownership by Alegarbes through acquisitive prescription and the character and length of possession of a party over a parcel of land subject of controversy is a factual issue. 17 The Court, however, is not precluded from reviewing facts when the case falls within the recognized exceptions, to wit: (a) (b) (c) (d) (e) When the findings are grounded entirely on speculation, surmises, or conjectures; When the inference made is manifestly mistaken, absurd, or impossible; When there is grave abuse of discretion; SACEca When the judgment is based on a misapprehension of facts; When the findings of facts are conflicting;

(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (g) (h) When the CA's findings are contrary to those by the trial court; When the findings are conclusions without citation of specific evidence on which they are based;

(i) When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or (k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. 18 [Emphasis supplied] In the case at bench, the findings and conclusions of the CA are apparently contrary to those of the RTC, hence, the need to review the facts in order to arrive at the proper conclusion. TcDHSI On Acquisitive Prescription Virtucio insists that the period of acquisitive prescription was interrupted on October 30, 1961 (or in 1954 when Alegarbes filed the protest) when the Director of Lands rendered a decision giving due course to his homestead application and that of Ulpiano Custodio. Virtucio further claims that since 1954, several extrajudicial demands were also made upon Alegarbes demanding that he vacate said lot. Those demands constitute the "extrajudicial demand" contemplated in Article 1155, thus, tolling the period of acquisitive prescription. 19 Article 1106 of the New Civil Code, in relation to its Article 712, provides that prescription is a mode of acquiring ownership through the lapse of time in the manner and under the conditions laid down by law. Under the same law, it states that acquisitive prescription may either be ordinary or extraordinary. 20 Ordinary acquisitive prescription requires possession of things in good faith and with just title for a period of ten years, 21 while extraordinary acquisitive prescription requires uninterrupted adverse possession of thirty years, without need of title or of good faith. 22 There are two kinds of prescription provided in the Civil Code. One is acquisitive, that is, the acquisition of a right by the lapse of time as expounded in par. 1, Article 1106. Other names for acquisitive prescription are adverse possession and usucapcion. The other kind is extinctive prescription whereby rights and actions are lost by the lapse of time as defined in Article 1106 and par. 2, Article 1139. Another name for extinctive prescription is litigation of action. 23 These two kinds of prescription should not be interchanged. Article 1155 of the New Civil Code refers to the interruption of prescription of actions. Interruption of acquisitive prescription, on the other hand, is found in Articles 1120-1125 of the same Code. Thus, Virtucio's reliance on Article 1155 for purposes of

tolling the period of acquisitive prescription is misplaced. The only kinds of interruption that effectively toll the period of acquisitive prescription are natural and civil interruption. 24 Civil interruption takes place with the service of judicial summons to the possessor. 25 When no action is filed, then there is no occasion to issue a judicial summons against the respondents. The period of acquisitive prescription continues to run. acCTSE In this case, Virtucio claims that the protest filed by Alegarbes against his homestead application interrupted the thirty (30)year period of acquisitive prescription. The law, as well as jurisprudence, however, dictates that only a judicial summons can effectively toll the said period. In the case of Heirs of Marcelina Azardon-Crisologo v. Raon, 26 the Court ruled that a mere Notice of Adverse Claim did not constitute an effective interruption of possession. In the case of Heirs of Bienvenido and Araceli Tanyag v. Gabriel, 27 which also cited the Raon Case, the Court stated that the acts of declaring again the property for tax purposes and obtaining a Torrens certificate of title in one's name cannot defeat another's right of ownership acquired through acquisitive prescription. 28 In the same vein, a protest filed before an administrative agency and even the decision resulting from it cannot effectively toll the running of the period of acquisitive prescription. In such an instance, no civil interruption can take place. Only in cases filed before the courts may judicial summons be issued and, thus, interrupt possession. Records show that it was only in 1997 when Virtucio filed a case before the RTC. The CA was, therefore, correct in ruling that Alegarbes became ipso jure owner of Lot 140 entitling him to retain possession of it because he was in open, continuous and exclusive possession for over thirty (30) years of alienable public land. Virtucio emphasizes that the CA erred in disregarding the decisions of the administrative agencies which amended Alegarbes' homestead application excluding Lot 140 and gave due course to his own application for the said lot, which decisions were affirmed by the RTC. Well-settled is the rule that factual findings of the lower courts are entitled to great weight and respect on appeal and, in fact, are accorded finality when supported by substantial evidence on the record. 29 It appears, however, that the conclusion made by the RTC was not substantially supported. Even the RTC itself noted in its decision: The approval of a Homestead Application merely authorizes the applicant to take possession of the land so that he could comply with the requirements prescribed by law before a final patent could be issued in his favor what divests the government of title to the land is the issuance of a patent and its subsequent registration with the Register of Deeds. 30 A perusal of the records would reveal that there was no issuance of any patent in favor of either parties. This simply means that the land subject of the controversy remains to be in the name of the State. Hence, neither Virtucio nor Alegarbes can claim ownership. There was, therefore, no substantial and legal basis for the RTC to declare that Virtucio was entitled to possession and ownership of Lot 140. CDScaT It can be argued that the lower court had the decisions of the administrative agencies, which ultimately attained finality, as legal bases in ruling that Virtucio had the right of possession and ownership. In fact, the Department of Environment and Natural Resources (DENR) even issued the Order of Execution 31 on May 11, 1989 ordering Alegarbes to vacate Lot 140 and place Virtucio in peaceful possession of it. The CA, however, was correct in finding that: But appellant had earlier put in issue the matter of ownership of Lot 140 which he claims by virtue of adverse possession. On this issue, the cited decisions are impertinent. Even if the decision to approve appellee's homestead application over Lot 140 had become final, appellant could still acquire the said lot by acquisitive prescription. 32 In the case of Heirs of Gamos v. Heirs of Frando, 33 the Court ruled that the mere application for a patent, coupled with the fact of exclusive, open, continuous and notorious possession for the required period, is sufficient to vest in the applicant the grant applied for. 34 It likewise cited the cases of Susi v. Razon 35 and Pineda v. CA, 36 where the Court ruled that the possession of a parcel of agricultural land of the public domain for the prescribed period of 30 years ipso jure converts the lot into private property. 37

In this case, Alegarbes had applied for homestead patent as early as 1949. He had been in exclusive, open, continuous and notorious possession of Lot 140 for at least 30 years. By the time the DENR issued its order of execution in 1989, Alegarbes had Lot 140 in his possession for more than 30 years. Even more so when Virtucio filed the complaint before the RTC in 1997, Alegarbes was already in possession of the subject property for forty-eight (48) years. aHSTID The CA correctly observed that the RTC erred in disregarding the evidence before it and relying entirely upon the decisions of the Director of Lands, the Secretary of Agriculture and Natural Resources and the OP, which never touched the issue of whether Alegarbes' open, continuous and exclusive possession of over thirty (30) years of alienable land had ipso jure segregated Lot 140 from the mass of public land and beyond the jurisdiction of these agencies. 38 When the CA ruled that the RTC was correct in relying on the abovementioned decisions, it merely recognized the primary jurisdiction of these administrative agencies. It was of the view that the RTC was not correct in the other aspects of the case. Thus, it declared Alegarbes as owner ipso jure of Lot 140 and entitled to retain possession of it. There is no reason for the Court to disturb these findings of the CA as they were supported by substantial evidence, hence, are conclusive and binding upon this Court. 39 On the CA Decision involving a similar case Virtucio insists that the CA gravely erred in disregarding its decision in Custodio v. Alegarbes, CA-G.R. CV 26286, for Recovery of Possession and Ownership, which involved the same factual circumstances and ruled against Alegarbes. It must be noted that the subject property in the said case was Lot 139 allocated to Custodio and that Virtucio was not a party to that case. The latter cannot enjoy whatever benefits said favorable judgment may have had just because it involved similar factual circumstances. The Court also found from the records that the period of acquisitive prescription in that case was effectively interrupted by Custodio's filing of a complaint, which is wanting in this case. Moreover, it is settled that a decision of the CA does not establish judicial precedent. 40 "The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this Court in its final decisions. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument." 41 The Court agrees with the position of Alegarbes that by Virtucio's insistence that it was erroneous for the CA to disregard its earlier decision in CA-G.R. CV 26286, he, in effect, calls upon this Court to adhere to that decision by invoking the stare decisis principle, which is not legally possible because only final decisions of this Court are considered precedents. 42 In view of the foregoing, the Court need not dwell on the complaint of Virtucio with regard to the deletion of the award of attorney's fees in his favor. It is ludicrous for the CA to order Alegarbes to pay attorney's fees, as a measure of damages, and costs, after finding him to have acquired ownership over the property by acquisitive prescription. AHCTEa WHEREFORE, the petition is DENIED. SO ORDERED.

[G.R. No. 88582. March 5, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HEINRICH S. RITTER, accused-appellant. The Solicitor General for plaintiff-appellee. Esteban B. Bautista for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY OF ORAL EVIDENCE; REQUISITES. For oral evidence to be admissible under this Rule, the requisites are: "(1) That the declarant must be dead or outside of the Philippines or unable to testify; (2) That pedigree is in issue; (3) That the person whose pedigree is in question must be related to the declarant by birth or marriage; (4) That the declaration must be made before the controversy occurred or ante litem motam; and (5) That the relationship between the declarant and the person whose pedigree is in question must as a general rule be shown by evidence other than such act or declaration." 2. ID.; ID.; CREDIBILITY; HUMAN MEMORY ON DATES, FRAIL. Human memory on dates or days is frail and unless the day is an extraordinary or unusual one for the witness, there is no reasonable assurance of its correctness. (People v. Dasig, 93 Phil. 618, 632 [1953]). 3. ID.; ID.; BAPTISMAL CERTIFICATE; CONCLUSIVE PROOF ONLY OF BAPTISM. A baptismal certificate is conclusive proof only of the baptism administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained in the certificate that concern the relationship of the person baptized. Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law. (Macadangdang v. Court of Appeals, 100 SCRA 73 [1980]) 4. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; IN CASES OF STATUTORY RAPE, IT IS INCUMBENT UPON THE PROSECUTION TO PROVE VICTIM'S AGE WAS LESS THAN 12 YEARS. It is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on the prosecution to prove that Rosario was less than 12 years old at the time of the alleged incident in a charge of statutory rape. The prosecution failed in this respect. 5. CRIMINAL LAW; RAPE; WHERE CARNAL KNOWLEDGE DOES NOT FALL UNDER STATUTORY RAPE, PROSECUTION MUST ESTABLISH THAT FORCE OR INTIMIDATION ATTENDED THE CRIME; CIRCUMSTANCE NEGATED IN CASE AT BAR. Since Rosario was not established to have been under 12 years of age at the time of the alleged sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that there was force of intimidation or that she was deprived of reason or otherwise unconscious in accordance with Article 335 of the Revised Penal Code. We agree with the defense that there was no proof of such facts. On the contrary, the evidence shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to have consented to the act as she was paid P300.00 the next morning while her companion, Jessie Ramirez was paid P200.00 . The environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression that Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life may have forced her to submit to sex at such a young age but the circumstances do not come under the purview of force or intimidation needed to convict for rape. In view of these clear facts which the prosecution failed to refute, no rape was committed. 6. REMEDIAL LAW; EVIDENCE HEARSAY; PART OF THE RES GESTAE; STATEMENT MUST BE MADE IMMEDIATELY AFTER A STARTLING OCCURRENCE; PRINCIPLE DOES NOT APPLY IN CASE AT BAR. Jessie Ramirez was not all certain about the sexual vibrator because he did not actually see it in the possession of the appellant. What he merely remembers is the revelation made by Rosario the next morning that the foreigner inserted something inside her vagina. The trial court admitted such statement as part of the res gestae. In a strained effort to accept such statement as part of res gestae, the trial court focused the test of admissibility on the lapse of time between the event and the utterance. For the average 13 years old, the insertion of a mechanical device or anything for that matter into the vagina of a young girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show that the statement, given after a night's sleep had intervened, was given instinctively because the event was so startling. Res gestae does not apply. (Section 42, Rule 130, Rules of Court).

7. ID.; ID.; CREDIBILITY; EVIDENCE MUST NOT ONLY PROCEED FROM THE MOUTH OF A CREDIBLE WITNESS BUT MUST BE CREDIBLE IN ITSELF. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People vs. Patog, 144 SCRA 429 [1986]). 8. ID.; ID.; EXPERT OPINION; CONTROLLING AND BINDING ON THE SUPREME COURT; CASE AT BAR. The trial court, ruled that "there is no hard and fast rule as to the time frame wherein infection sets in upon insertion of a foreign body in the vagina canal. It should be clarified that the time frame depends upon the kind of foreign body lodged inside the body. The subject object is certainly not considered as inert and based on Dr. Solis' testimony, it is more likely that infection should set in much earlier. Considering also that the object was inserted inside the vagina which is part of the generative organ of a woman, an organ which is lined with a very thin layer of membrane with plenty of blood supply, this part of the body is more susceptible to infection. The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no reason why his opinions qualified by training and experience should not be controlling and binding upon the Court in the determination of guilt beyond reasonable doubt. (People v. Tolentino, 166 SCRA 469 [1988]). 9. CRIMINAL LAW; CRIMINAL LIABILITY; DEATH OF THE VICTIM MUST BE THE LOGICAL CONSEQUENCE OF THE WOUND INFLICTED BY THE ACCUSED. The death of the victim must be the direct, natural and logical consequence of the wounds inflicted upon him by the accused. And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. (Urbano v. Intermediate Appellate Court 157 SCRA 1 [1988]) 10. ID.; ID.; ID.; CASE AT BAR. The evidence for the accused may be numerically less as against the number of witnesses and preponderance of evidence presented by the prosecution but there is no direct and convincing proof that the accused was responsible for the vibrator left inside the victim's vagina which caused her death seven (7) months after its insertion. What the prosecution managed to establish were mere circumstances which were not sufficient to overcome the constitutional presumption of innocence. 11. REMEDIAL LAW; EVIDENCE, CIRCUMSTANTIAL EVIDENCE; REQUISITES TO SUPPORT A CONVICTION. While circumstantial evidence may suffice to support a conviction it is imperative, though, that the following requisites should concur: (a)There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court) 12. ID.; ID.; ID.; MUST EXCLUDE EVERY HYPOTHESIS OF INNOCENCE. Before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692 [1942] ). It must fairly exclude every reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). 13. ID.; ID.; GUILT BEYOND REASONABLE DOUBT; NOT PROVEN IN CASE AT BAR. It was improbable, according to expert medical testimony, for a foreign object with active properties to cause pain, discomfort, and serious infection only after seven months inside a young girl's vaginal canal. Infection would have set in much earlier. The long delay of seven (7) months after the incident in reporting the alleged crime renders the evidence for the prosecution insufficient to establish appellant's guilty connection with the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156 [1984]). 14 ID.; ID.; SUSPICIONS AND IMPROBABILITIES, NOT TAKEN AGAINST AN ACCUSED. Suspicions and possibilities are not evidence and therefore should not be taken against the accused. (People v. Tolentino, supra) 15. ID., CRIMINAL PROCEDURE; EVERY CIRCUMSTANCE FAVORABLE TO THE ACCUSED SHOULD BE DULY TAKEN INTO ACCOUNT. Every circumstance favorable to the accused should be duly taken into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates the mores of civilized society. The evidence against the accused must survive the test of reason. The strongest suspicion must not be allowed to sway judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). 16. ID.; EVIDENCE; PROOF BEYOND REASONABLE DOUBT, CONSTRUED. The requirement of proof beyond reasonable doubt calls for moral certainty of guilt. It has been defined as meaning such proof 'to the satisfaction of the court,

keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely to be true than the contrary. It must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and satisfies the reason and the conscience of those who are to act upon it." (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. v. Reyes, 3 Phil. 3; People v. Ng, 142 SCRA 615 [1986]) 17. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; PEDOPHILIA; AN INFRINGEMENT THEREOF. Pedophilia is clearly a behavior offensive to public morals and violative of the declared policy of the state to promote and protect the physical, moral, spiritual and social well-being of our youth. (Article II, Section 13, 1987 Constitution; Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]). 18. ID.; ID.; ID.; ID.; EXPULSION OF ALIEN FROM THE PHILIPPINES, WARRANTED. In this case, there is reasonable ground to believe that the appellant committed acts injurious not only to Rosario Baluyot but also to the public good and domestic tranquility of the people. The state has expressly committed itself to defend the right of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has abused Filipino children, enticing them with money. The appellant should be expelled from the country. 19 REMEDIAL LAW; ACTIONS; A PERSON WHILE NOT CRIMINALLY LIABLE MAY STILL BE CIVILLY LIABLE It does not necessarily follow that the appellant is also free from civil liability which is impliedly instituted with the criminal action. (Rule III, Section 1) The well-settled doctrine is that a person while not criminally liable, may still be civilly liable. The appellant is ordered to pay the amount of P30,000.00 by way of moral and exemplary damages to the heirs of Rosario Baluyot. DECISION GUTIERREZ, JR., J p: The appellant challenges his conviction of the crime involving a young girl of about 12 years old who had been allegedly raped and who later died because of a foreign object left inside her vaginal canal. LLpr Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which reads: "That on or about the tenth (10th) day of October, 1986 in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with lewd design and with intent to kill one Rosario Baluyot, a woman under twelve (12) years of age, did then and there wilfully, unlawfully and feloniously have carnal knowledge of said Rosario Baluyot and inserted a foreign object into the vaginal canal of said Rosario Baluyot which caused her death shortly thereafter, to the damage and prejudice of her relatives." (66) When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the merits. To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1) Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, (14) Patricia Prollamanta, (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) 1st Asst. City Fiscal Dorentino Z. Floresta, (22) Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel. On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1) Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong, (4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis. The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt are summarized in its decision, as follows: "The people's evidence show that on October 10, 1986 about midnight, accused Heinrich Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2) children were chosen from among a bunch of street children. Once inside the hotel room accused told them to take a

bath. Jessie Ramirez, alias 'Egan', was the first to take a bath and when he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot was inside the bathroom, accused Ritter took out some pictures depicting dressed up young boys, and put them on top of the table. Other things which were taken out and placed on top of a table were three (3) other objects which he described as like that of a vicks inhaler. One of these objects the accused played with his hands and placed it on his palms. The color of which is grayish blue which turned out later to be the foreign object which was inserted inside the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal inhalers against pollution purchased by the accused in Bangkok when he went there as a tourist. While Rosario was in the bathroom, accused told Ramirez to lay down on bed, and so did the accused. He then started masturbating the young boy and also guided the boy's hand for him to be masturbated, so that they masturbated each other, while they were both naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the bathroom, she was told to remove her clothes by accused and to join him in bed. The accused then placed himself between the two (2) children and accused started fingering Rosario. At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He looked, and he saw accused placing his penis against the vagina of Rosario and that he was trying to penetrate the vagina but it would not fit. After what he saw, Ramirez did not anymore bother to look because he was sleepy and fell asleep. The following morning, the accused, whom the juveniles described as an 'American, paid Ramirez alias 'Egan' P200.00 and Rosario P300.00. He then left them in the hotel. After the American left, they went downstairs, and Rosario told Egan that the American inserted something in her vagina. But they could not do anything anymore, because the American had already left, and neither did they report the matter to the police. Sometime the following day, Jessie saw Rosario and he asked her whether the object was already removed from her body and Rosario said 'Yes'. However, Jessie Ramirez claimed that on the evening of that same date, he saw Rosario and she was complaining of pain in her vagina and when Egan asked her, she said that the foreign object was not yet removed. Then there was another occasion wherein Jessie was summoned and when he came he saw Rosario writhing in pain and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter, he did not see Rosario anymore because he already went home to his aunt's house who resided at Barrio Barretto and resumed his studies in the primary grades. On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21, near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake Shop near Lot 21, being ogled by people because Rosario's skirt was bloodied and she was unconscious and foul smelling. Since nobody helped Rosario, he took pity on her condition and brought her to the Olongapo City General Hospital in an unconscious condition, via jeepney. He went to the Information desk and he was the one who gave the personal circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed as 'guardian' of Rosario, while Rosario was already in the emergency room. Although Gaspar Alcantara denied that he did not know the name of Rosario Baluyot when he brought her to the hospital, this is belied by the testimony of the Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara who supplied the personal circumstances of Rosario. The Court gives more credence to the testimony of Miss Limos as against Gaspar Alcantara who became a defense witness, for the reason that through his own testimony, Gaspar Alcantara claimed that even prior to May 14, 1987, he had already known Rosario Baluyot for more than one (1 ) year, because he has seen the said girl go to the house of his twin brother, Melchor Alcantara, who is his immediate neighbor. Rosario used to visit a girl by the name of 'Nora' who was then in the custody of his brother. His brother Melchor was also living with their mother, brother and sister-in-law and their two (2) children in his house. Rosario as per Gaspar's testimony even stays for one week or a few days at his brother's house when she visits Nora. So the Court can safely assume that of all the more than one (1) year that he had regularly seen Rosario at his brother's house, he must have already did come to know the name of Rosario Baluyot including her age. In his testimony in Court he stated that he even asked Rosario for movie and softdrinks money which can safely be concluded that he knows her very well. It is against normal behavior especially to a Filipino who have a characteristic of curiosity not to have found out the real name of the girl he claims to know only as 'Tomboy'. While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was attending to her since she is a street child, having stowed away from the custody of her grandmother. Three (3) good samaritans who belong to religious and civic organizations, in the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of their missions in the hospital chanced upon Rosario Baluyot who was all alone with no relatives attending to her and after finding out that she was only 12 years old decided to help her. After a short interview with Rosario, regarding her name and age only because she clamped up about her residence and her relatives, they decided to help her by providing her the medicine she needed during her confinement in readiness for an operation. It was Fe Israel who was able to get the name and age of Rosario Baluyot from Rosario Baluyot

herself when she saw her for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor because their program assisted only indigent patients from infants up to 13 years old. Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement and vomiting, which was first suspected as gastro-enteritis, but which came out later as symptoms of peritonitis due to a massive infection in the abdominal cavity. Subsequently, on May 17, 1987, after she was examined by the physicians at the hospital, it was found out that there was a foreign object lodged in her vaginal canal and she had vaginal discharge tinged with blood and foul smelling odor emanating from her body. One of the doctors who attended to her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object by means of a forceps, but several attempts proved futile because said object was deeply embedded in the vaginal canal and was covered by tissues. Her abdomen was enlarged, tender and distended, symptoms of peritonitis. The patient was feverish and incoherent when she was scheduled for operation on May 19, 1987, after the first attempt for an operation on May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the hospital director was not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified that Rosario had to be operated even in that condition in order to save her life. Her condition was guarded. This was corroborated by Dr. Leo Cruz, the anesthesiologist during Rosario's operation. It was in the evening of May 19 at about 7:00 p.m. when Dr. Rosete opened her abdomen by making a 5 inch incision on her stomach. He found out that the fallopian tubes were congested with pus, and so with the peritonium, and the pelvic cavity, and patches of pus in the liver, although the gallbladder and kidney appeared to have septicemia, poisoning of the blood. The peritonitis and septicemia were traced to have been caused through infection by the foreign object which has been lodged in the intra-vaginal canal of Rosario. The foreign object which was already agreed upon by both parties that it is a portion of a sexual vibrator was extracted from the vagina of Rosario while under anesthesia. Said object was coated with tissues, pus and blood. Dr. Rosete gave it to the assisting surgical nurse for safekeeping and gave instructions to release it to the authorized person. This object was shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the ward for about 30 minutes and thereafter he left. The following day, Rosario got serious and it was Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May 20, 1987. Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was indicated therein that the cause of death was cardio-respiratory arrest, secondary to septicemia caused by the foreign object lodged in the intra uteral vaginal canal of Rosario Baluyot. The foreign object was washed by nurse Obedina, then placed it in a transparent small jar and labelled "Rosario Baluyot". Jessica Herrera asked the nurse for the foreign object, and it was given to her under proper receipt. Herrera then showed the same to the persons who helped financially Rosario's case, and afterwards she gave it to Sister Eva Palencia. Sis. Palencia was in custody of the said object until Mr. Salonga came and asked her for the object. After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask him in locating the relatives of Rosario. They were able to trace Rosario's grandmother, Mrs. Maria Burgos Turla, and informed her that her granddaughter was already dead and lying in state at St. Martin Funeral Parlor. Mrs. Turla went there with her son, who shouldered all the burial expenses for Rosario. Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita and asked her if she was interested in filing a case against the person who caused the death of her granddaughter. Of course she agreed. Hence, she was brought to the Fiscal's (City) Office to file the same. After the case was filed against the herein accused, Atty. Edmundo Legaspi with his messenger came to her house and told her that the accused was willing to settle the case, but that accused Ritter had only P15,000.00. The old woman did not accept it because she knows that the accused is liable to pay damages anyway. After that, she received a letter from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who wanted to have the case settled once and for all giving the reason that she can no longer bear the situation, sent her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged and told her that she will be paid at the office of Atty. Legaspi. On a date not clear in the records, she went with her nephew Conrado Marcelo, and Roberto Sundiam, an assistant barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the law office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter left. After he left, Atty. Legaspi told Rosario's grandmother that they are willing to settle for P20,000.00, but that Ritter left only P15,000.00, so she received the money with the understanding that there was a balance of P5,000.00 yet. She was made to sign a statement, and she was asked to change the age of her granddaughter Rosario. With the document prepared, she and the lawyer's messenger went to

the Fiscal's office to have it subscribed, and was subscribed before an assistant city fiscal. But the balance of P5,000.00 was not paid, because later on Atty. Legaspi became the OIC of Olongapo City and he could no longer attend to it. Atty. Legaspi, during one of the hearings before the Court even apologized to her. As to the case, P/Cpl Marino Victoria, as criminal investigator of Station "A", was directed by Col. Daos, Station Commander of the Olongapo Police Department to make a follow up of the case of Rosario Baluyot. On the other hand, since the suspect who inserted the foreign object inside Rosario's vagina was said to be an American, the NISRA, Subic Naval Base also conducted its investigation headed by criminal investigator Agent Conrado Salonga. Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street child at Magsaysay Drive, they rounded up about 43 street children and from some of them they learned that Rosario Baluyot was with Jessie Ramirez with an American at the MGM Hotel when the foreign object was inserted in her vagina. After finding Jessie Ramirez, they asked him about Rosario Baluyot. They found out that indeed he was with Rosario Baluyot sometime before Christmas of 1986 with an American, who brought them to the said hotel. Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his statement. Then he was brought to Mr. Edward Lee Bungarner, a cartographer, and out of the description supplied by Ramirez, a composite drawing was photocopied and copies thereof were distributed to the local police and to the sentries at the gate of the U.S. Naval Base. Some American servicemen who had resemblance to the composite drawing were photographed and these were shown to Jessie Ramirez, but the result was negative. Aside from the physical description by Ramirez about the appearance of the suspect, he also described him as having the mannerisms of a homo-sexual. After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and thinking that the so-called American may be European or Australian national, the team composed of Agent Salonga, Mr. Heinsell, P/Cpl Marino Victoria and P/Cpl Andres Montaon, Jessie Ramirez and Michael Johnson, another juvenile, proceeded to Manila. They first went to the Manila NISRA Office, and thereafter checked in a hotel. That was on September 23, 1987. On the first night, they went to Luneta Park where foreign homo-sexuals were said to be frequenting, but the result was negative. Then on September 25, at about 11:00 p.m., while they were standing at the corner of A. Mabini and M.H. del Pilar Street, a male caucasian who looked like a homosexual stopped by admiringly infront of the two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga that this foreigner had a similarity with the American suspect, so the two minors were instructed to follow the foreigner and to strike a conversation. They did, and when they returned, Jessie Ramirez told them that indeed the said foreigner was the one who brought him and Rosario Baluyot to the MGM Hotel. Bobby Salonga told Ramirez that this foreigner had no beard while the one previously described by Ramirez had a beard. Jessie Ramirez told them that maybe he have just shaved it off. The said caucasian then entered a bar, and after several minutes he came out, and Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that the said foreigner is the suspect, arrested Ritter and brought him to the Manila Western Police District. It could be mentioned at this stage that in this operation they were accompanied by two (2) policemen from the Western Police District. The foreigner was hand cuffed and was told that he was a suspect for Rape with Homicide. After the arrest, they first went to the pension house of the suspect in Ermita, Manila to get his shoulder bag which contained his personal belongings, and from there they brought him to the Western Police Department. At the said police headquarters, they were allowed a permissive search by the foreigner of his clutch bag and his small shoulder bag and confiscated his passport, I.D., 3 inhalers, money in the form of dollars and travellers checks amounting about $1,500.00 and about P100.00, all duly receipted for. From the passport they learned that the suspect's name was Heinrich Stefan Ritter, an Austrian national. During the questioning of Ritter, Salonga and his team already left the headquarters and went to their hotel, because at this time Jessie Ramirez was already shaking with fear after he identified the accused. The following day, they brought the accused to Olongapo and was detained at the Olongapo City Jail. The case for Rape with Homicide was filed against him at the City Fiscal of Olongapo. At the preliminary investigation, accused was assisted by his own counsel. The private complainant was Maria Burgos Turla because it was she who had custody of Rosario Baluyot after her mother Anita Burgos died on January 12, 1982, and their father Policarpio Baluyot had left them under her custody. When this case was filed, the father's whereabouts was unknown, and he only appeared when the trial of this case before the Court was already in progress. And upon his (Policarpio Baluyot) own admission, he only learned about the death of his daughter Rosario Baluyot from the newspaper, long after Rosario was already gone. The defense tried to dislodge the case by claiming that there could be no crime of Rape with Homicide because the suspect was described as an American while Ritter is an Austrian. Also advanced by the defense is that, it is a case of mistaken identity. That Rosario Baluyot was at the time of the commission of the offense, already more than 13 years old, she having been born on December 26, 1973 as per baptismal certificate, wherein it appears that Rosario Baluyot was baptized on December 25,

1974 and was born on December 26, 1973 as testified to by Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal Certificate, having custody and possession of the book of baptism for the year 1975, but admitted that he had no personal knowledge about the matters or entries entered therein. 1ikewise, the defense's stand is that the accused cannot be liable for Homicide because a vibrator is not a weapon of death but it is a thing for the purpose of giving sexual pleasure, and that the death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the surgeon and Director of the Olongapo City General Hospital, who operated on her." (Rollo, pp. 109-116) On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads as follows: "WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution has established the GUILT of the accused beyond reasonable doubt for the crime of Rape with Homicide as defined and penalized in Art. 335 No. 3 of the Revised Penal Code, and hereby sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION PERPETUA, to indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS (P60,000.00) Philippine Currency, and TEN THOUSAND PESOS (P10,000.00) by way of attorney's fees to the private prosecutors and to pay the costs." (Rollo, p. 126) The accused now comes to this Court on the following assigned errors allegedly committed by the court: I THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE ALLEGED OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS ACCUSED-APPELLANT WHO COMMITTED IT. II THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT ROSARIO BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE WITH HOMICIDE. III THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING CREDENCE TO AND NOT REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED. Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of the accused has been proved beyond reasonable doubt, it behooves us to exert the most painstaking effort to examine the records in the light of the arguments of both parties if only to satisfy judicial conscience that the appellant indeed committed the criminal act (See People v. Villapana, 161 SCRA 73 [1988]). The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who died after the rape because of a foreign object, believed to be a sexual vibrator, left inside her vagina. As stated by the trial court one crucial issue in this case is the age of the victim whether or not Rosario Baluyot was less than twelve (12) years old at the time the alleged incident happened on October 10, 1986. The age is important in determining whether or not there was statutory rape. Article 335 of the Revised Penal Code defines the third type of rape as having carnal knowledge of a woman under 12 years of age, in which case force, intimidation, deprivation of reason or unconscious state do not have to be present. prLL The trial court found that Rosario was below 12 years old when she was sexually abused by the accused and, therefore, rape was committed inspite of the absence of force or intimidation. In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother and father who testified that she was born on December 22, 1975. These oral declarations were admitted pursuant to then Rule 130, Section 33 of the Rules of Court where, in the absence of a birth certificate, the act or declaration about pedigree may be received in evidence on any notable fact in the life of a member of the family. Since birth is a matter of pedigree within the rule which permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of birth (Decision, p. 54). llcd

The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because her brother died in Pampanga and her daughter, Anita (Rosario's mother) was the only one who failed to attend the funeral because the latter has just given birth allegedly to Rosario (T.S.N. p. 8, Jan. 13, 1988). The father likewise testified that as far as he could remember, Rosario was born on December 22, 1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was more than one (1) year old when she was baptized (T.S.N., p. 45, Jan. 27, 1988). The trial court further added that their testimony is supported by the clinical record and the death certificate indicating that she was 12 years old when she was admitted at the Olongapo City General Hospital for treatment. The age was supplied by Rosario's alleged guardian, Gaspar Alcantara to the hospital's clinical record clerk, Lorna Limos. Fe Israel, a social worker who interviewed Rosario Baluyot also testified that she was told by Rosario that she was 12 years old. The trial court accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in this case declared that he was born on September 5, 1973 and that he was older than Rosario Baluyot. Therefore, since he was 13 years old in 1986, Rosario must have been less than 12 years old in 1986. (Decision, p. 55) Cdpr The trial court concluded that the oral declarations of the grandmother and father supported by other independent evidence such as the clinical record, death certificate and the testimonies of Fe Israel and Jessie Ramirez, rendered the baptismal certificate presented by the defense without any probative or evidentiary value. (Decision, p. 55) The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of evidentiary rules. The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised Rules of Court). For oral evidence to be admissible under this Rule, the requisites are: (1) (2) (3) (4) That the declarant must be dead or outside of the Philippines or unable to testify; That pedigree is in issue; That the person whose pedigree is in question must be related to the declarant by birth or marriage; That the declaration must be made before the controversy occurred or ante litem motam; and

(5) That the relationship between the declarant and the person whose pedigree is in question must as a general rule be shown by evidence other than such act or declaration." These requirements were not satisfied by the evidence for the prosecution nor do the declarations fall within the purview of the rule. The victim's grandmother and father whose declarations regarding Rosario's age were admitted by the trial court are both alive, in the Philippines and able to testify as they both did testify in court. Their declarations were made at the trial which is certainly not before the controversy arose. The other witnesses who testified on Rosario's age are not members of the victim's family. The testimonies of Rosario's relatives must be weighed according to their own personal knowledge of what happened and not as hearsay evidence on matters of family history. cdphil At this point, we find the evidence regarding Rosario's age of doubtful value. The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the mother that her daughter was 14 years old and 4 months old. The mother stated that she knew the age because the child was born about the time of the cholera epidemic of 1889. This was not hearsay, but came from one who had direct knowledge of the child's birth. It is however, equally true that human memory on dates or days is frail and unless the day is an extraordinary or unusual one for the witness, there is no reasonable assurance of its correctness. (People v. Dasig, 93 Phil. 618, 632 [1953]). With respect to the grandmother's testimony, the date of the brother's death or funeral was never established, which indicates that the day was rather insignificant to be remembered. The father's declaration is likewise not entirely reliable. His testimony

in court does not at all show that he had direct knowledge of his daughter's birth. He was certain though that she was more than one (1) year old at the time she was baptized. The other witnesses are not at all competent to testify on the victim's age, nor was there any basis shown to establish their competence for the purpose. The clinical records were based on Gaspar Alcantara's incompetent information given when he brought the victim to the hospital. Alcantara came to know her only about a year before her death. He had absolutely no knowledge about the circumstances of Rosario's birth. The death certificate relied upon by the trial court was merely based on the clinical records. It is even less reliable as a record of birth. All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years old at the time of the alleged incident are not adequate to establish the exact date of birth, much less offset a documentary record showing a different date. The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being hearsay and of no value. As against the oral declarations made by interested witnesses establishing Rosario's age to be less than 12 years old, the evidence on record is more convincing and worthy of belief. (See Filinvest Land, Inc. v. Court of Appeals, 183 SCRA 664, 673 [1990]). By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St. James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and stated that he is the head of said parish. He brought with him Baptismal Register No. 9 entitled "Liber Baptisnorum", a latin term for baptismal book or record. On page 151, No. 3 of the said Registry Book, there appears the name of Rosario Baluyot who was baptized on December 25, 1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents of Subic, Zambales. Edita R. Milan appears as the only sponsor with Olongapo City as her address. LLjur In the case of Macadangdang v. Court of Appeals (100 SCRA 73 [1980]), we held that: xxx xxx xxx

"In our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified but not the veracity of the status or declarations made therein with respect to his kinsfolk and/or citizenship (Paa v. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal certificate is conclusive proof only of the baptism administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained in the certificate that concern the relationship of the person baptized. Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law." (At pp. 84-85) In the same light, the entries made in the Registry Book may be considered as entries made in the course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in a book of the church during the course of its business. (U.S. v. de Vera, 28 Phil. 105 [1914]) Hence, the certificate (Exhibit "22") presented by the defense that Rosario Baluyot was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio Baluyot, the victim's father testified that he had in his possession a baptismal certificate different from the one presented in court. However, no other baptismal record was ever presented to prove a date different from that brought by the official custodian. Since the baptismal certificate states that Rosario was baptized on December 25, 1974, it is therefore highly improbable that Rosario could have been born on December 22, 1975. She could not have been baptized before she was born. Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in 1975. With the father's assertion that Rosario was more than one (1) year old when she was baptized, we are then more inclined to agree that Rosario was born in 1973 as stated in the Baptismal Registry. Cdpr In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated: xxx xxx xxx

". . . Although no birth certificate was presented because her birth had allegedly not been registered, her baptismal certificate, coupled by her mother's testimony, was sufficient to establish that Mary Rose was below twelve years old when she was violated by Rebancos." (At. p. 426) Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document as to Rosario's birth which could serve as sufficient proof that she was born on December 26, 1973. Therefore, she was more than 12 years old at the time of the alleged incident on October 10, 1986. Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on the prosecution to prove that Rosario was less than 12 years old at the time of the alleged incident in a charge of statutory rape. The prosecution failed in this respect. Since Rosario was not established to have been under 12 years of age at the time of the alleged sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that there was force of intimidation or that she was deprived of reason or otherwise unconscious in accordance with Article 335 of the Revised Penal Code. We agree with the defense that there was no proof of such facts. On the contrary, the evidence shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to have consented to the act as she was paid P300.00 the next morning while her companion, Jessie Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988). The environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression that Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life may have forced her to submit to sex at such a young age but the circumstances do not come under the purview of force or intimidation needed to convict for rape. In view of these clear facts which the prosecution failed to refute, no rape was committed. But was Ritter guilty of homicide? The trial court justified its ruling by saying that the death of the victim was a consequence of the insertion of the foreign object into the victim's vagina by the appellant. We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which led to her death? The trial court convicted the accused based on circumstantial evidence. Unfortunately, the circumstances are capable of varying interpretations and are not enough to justify conviction. Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina. Neither could he identify the object (Exhibit "C-2") taken from Rosario as the same object which the appellant was holding at that time of the alleged incident. In his sworn statement given to the police investigator on September 4, 1987, he answered that: xxx xxx xxx

"T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng kano sa kanyang daladalahan kung mayroon man? S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may inilabas siya sa kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang nasa otel kami at pagkatapos niya ay inilapag niya sa lamiseta. T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?

S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada. Iyong takip ay bilog na patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang hugis ng dulo ng bagay na may takip dahil natatakpan ng kamay at ilong ng Amerikano. T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin mo nga sa akin kung makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman sa nakita mong kinuha ng Amerikano sa kanyang bag?

S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul gayong ng makita ko ito ay kulay puti? (Exhibit "A", p. 2; Emphasis Supplied). Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not deny having possessed at that time. He was certain that the object was white. (T.S.N. p. 91, January 6, 1988). Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue (Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency of the witness' testimony casts doubt as to the veracity of the statements made especially when he answered on additional cross-examination that the reason why he concluded that Exhibit "C-2" was the same object being held by Ritter was because it was the only one shown to him by the prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the sexual vibrator because he did not actually see it in the possession of the appellant. What he merely remembers is the revelation made by Rosario the next morning that the foreigner inserted something inside her vagina. The trial court admitted such statement as part of the res gestae. In a strained effort to accept such statement as part of res gestae, the trial court focused the test of admissibility on the lapse of time between the event and the utterance. For the average 13 years old, the insertion of a mechanical device or anything for that matter into the vagina of a young girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show that the statement, given after a night's sleep had intervened, was given instinctively because the event was so startling. Res gestae does not apply. (Section 42, Rule 130, Rules of Court). Even if it were established that the appellant did insert something inside Rosario's vagina, the evidence is still not adequate to impute the death of Rosario to the appellant's alleged act. Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We quote: "Q Now, you also stated on direct examination that later on Rosario even categorically admitted to you that she was already able to remove the object allegedly inserted inside her vagina, is that correct? A xxx Yes, sir. xxx xxx

ATTY. CARAAN: Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later on when you met her when you asked her and when she told you that she was already able to remove that object from her vagina? A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And she answered, 'Yes, it was removed.' But the same night, she again complained of pain of her stomach. She sent one of her friends to call for me. And as a matter of fact, Tomboy was uttering defamatory words against me as she was groaning in pain." (TSN, Jan. 6, 1988, pp. 72-73). This encounter happened on the night of the day following the day after both children were invited by the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so we can just imagine the distress she was undergoing at this point in time. If the device inserted by the appellant caused the pain, it is highly inconceivable how she was able to endure the pain and discomfort until May, 1987, seven (7) months after the alleged incident. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People vs. Patog, 144 SCRA 429 [1986]). At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for the defense is considered an expert witness. (A Doctor of Medicine and a graduate of the State University in 1940, a degree of Bachelor of Laws and member of the Bar 1949, and a graduate of the Institute of Criminology University. He was awarded Post Graduate Diploma in Criminology in 1963, and also a graduate of United Nations Asia and Far East Asia Institute on the Prevention of Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of Investigation in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the Deputy Director of the NBI up to 1984. He is at present a

Professorial Lecturer on Legal Medicine at the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal Consultant of the PGH Medical Center, Makati Medical Center, UERM Medical Center, MCU Medical Center. He has been with the NBI for 43 years. He has attended no less than 13 conferences abroad. He is the author of the textbooks entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and medical background, his testimony is too authoritative to ignore. We quote the pertinent portions of his testimony: Q Now Dr. Solis, would you kindly go over this object marked as Exh. 'C-2' which object was described as a part of a sexual vibrator battery operated. Now, given this kind of object, would you kindly tell us what would be the probable effect upon a 12 years old girl when it is inserted into her vagina? A Well, this vibrator must be considered a foreign body placed into a human being and as such be considered a foreign object. As a foreign object, the tendency of the body may be: No. 1 expel the foreign body No. 2. The tendency of the body is to react to that foreign body. One of the reactions that may be manifested by the person wherein such foreign body is concerned is to cover the foreign body with human tissue, in a way to avoid its further injury to the body. Now, the second reaction is irritation thereby producing certain manifest symptoms and changes in the area where the foreign body is located. In severe cases, the symptoms' manifestation might not only be localized but may be felt all over the body, we call it systemic reaction. Now, considering the fact that this foreign body as shown to me is already not complete, this shows exposure of its different parts for the body to react. If there is mechanism to cause the foreign body to vibrate, there must be some sort of power from within and that power must be a dry cell battery. [The] composition of the battery are, manganese dioxide ammonium, salts, water and any substance that will cause current flow. All of these substances are irritants including areas of the container and as such, the primary reaction of the body is to cause irritation on the tissues, thereby inflammatory changes develop and in all likelihood, aside from those inflammatory changes would be a supervening infection in a way that the whole generative organ of the woman will suffer from diseased process causing her the systemic reaction like fever, swelling of the area, and other systemic symptoms. . . . (TSN., pp. 13-15, October 19, 1988) xxx xxx xxx

Q Now, given this object, how long would it take, Doctor before any reaction such as an infection would set in, how many days after the insertion of this object in the vagina of a 12 year old girl? A In the example given to me, considering that one of the ends is exposed, in a way that vaginal secretion has more chance to get in, well, liberation of this irritant chemicals would be enhanced and therefore in a shorter period of time, there being this vaginal reaction. Q How many days or weeks would you say would that follow after the insertion?

A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal usually developed within a period of two (2) weeks . . .. xxx xxx xxx

Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in her vagina on October 10, 1986 and she was operated on, on May 19, 1987 the following year, so it took more than 7 months before this was extracted, would you say that it will take that long before any adverse infection could set-in inside the vagina? A xxx Q Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19, 1988, p. 18) xxx xxx

When you said shorter, how long would that be, Doctor?

A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women usually, there are only about two (2) weeks time that the patient suffer some abnormal symptoms.

Q A

Now, considering that this is a bigger object to the object that you mentioned, this object has a shorter time? Yes, Sir shorter time." (TSN., Oct. 19, 1988, p. 20)

The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein infection sets in upon insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is not more than 10 months, and this case is still within the said time frame." A more generous time interval may be allowed in non-criminal cases. But where an accused is facing a penalty of reclusion perpetua, the evidence against him cannot be based on probabilities which are less likely than those probabilities which favor him. It should be clarified that the time frame depends upon the kind of foreign body lodged inside the body. An examination of the object gave the following results: (1) Color: Blue

Size: (a) Circumference 3.031 inches (b) Length approximately 2.179 inches. Composition: Showed the general characteristics of a styrene- butadiene plastic. (2) The specimen can be electrically operated by means of a battery as per certification dated 01 June 1988, signed by Mr. Rodolfo D. Mercurio, Shipboard Electrical Systems Mechanics, Foreman II, SRF Shop 51, Subic (see attached certification). (3) No comparative examination was made on specimen #1 and vibrator depicted in the catalog because no actual physical dimensions and/or mechanical characteristics were shown in the catalog. (Exhibit "LL") The vibrator end was further subjected to a macro-photographic examination on the open end portion which revealed the following: "Result of Examination Macro-photographic examination on the open end portion of specimen #1 shows the following inscription: MABUCHI MOTOR JAPAN RE 14 PAT" (Exhibit "MM") From the above results, the subject object is certainly not considered as inert and based on Dr. Solis' testimony, it is more likely that infection should set in much earlier. Considering also that the object was inserted inside the vagina which is part of the generative organ of a woman, an organ which is lined with a very thin layer of membrane with plenty of blood supply, this part of the body is more susceptible to infection. (T.S.N. p. 34, October 19, 1988) The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no reason why his opinions qualified by training and experience should not be controlling and binding upon the Court in the determination of guilt beyond reasonable doubt. (People v. Tolentino, 166 SCRA 469 [1988]). Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May 17, 1986 as a referral patient from the Department of Surgery to give an OB-GYN clearance to the patient prior to operation. (T.S.N. p. 6, September 28, 1988) Q A And how many times did you examine this patient Rosario Baluyot on that day? I examined her twice on that day.

The first time that you examined her, what is the result of your findings, if any?

A My first examination, I examined the patient inside the delivery room. The patient was brought to the delivery room wheel-chaired then from the wheel chair, the patient was ambigatory (sic). She was able to walk from the door to the examining table. On examination, the patient is conscious, she was fairly nourished, fairly developed, she had fever, she was uncooperative at that time and examination deals more on the abdomen which shows slightly distended abdomen with muscle guarding with tenderness all over, with maximum tenderness over the hypogastric area. (T.S.N. p. 5, September 28, 1988) xxx Q xxx xxx

What about your second examination to the patient, what was your findings, if any?

A In my second examination, I repeated the internal examination wherein I placed my index finger and middle finger inside the vagina of the patient and was able to palpate a hard object. After which, I made a speculum examination wherein I was able to visualize the inner portion of the vaginal canal, there I saw purulent foul smelling, blood tints, discharge in the vaginal canal and a foreign body invaded on the posterior part of the vaginal canal. xxx xxx xxx

A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the said foreign object by the use of forceps which I tried to do so also but I failed to extract the same. Q All this time that you were examining the patient Rosario Baluyot both in the first and second instance, Rosario Baluyot was conscious and were you able to talk to her when you were examining her? A Q A Q A Q A Q A Q A Yes, sir. And did you ask her why there is a foreign object lodge inside her vagina? Yes, Sir I asked her. And what did she tell you, if any? She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY NITO." Did she also tell you when, this Negro who used her and who inserted and placed the foreign object on her vagina? Yes, Sir I asked her and she said he used me three (3) months ago from the time I examined her. Now, you said that you referred the patient to the ward, what happened next with your patient? To my knowledge, the patient is already scheduled on operation on that date. Meaning, May 17, 1987? Yes, Sir I was presuming that the patient would undergo surgery after that?"

(TSN, Sept. 28, 1988, pp. 8-9; Emphasis supplied) The trial court debunked Dr. Barcinal's testimony considering Rosario's condition at that time. It ruled that it is inconceivable that she would be striking a normal conversation with the doctors and would be sitting on the examination table since Gaspar Alcantara stated that when he brought Rosario Baluyot to the hospital, she was unconscious and writhing in pain. LexLib It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because there were several instances testified to by different witnesses that she was still able to talk prior to her operation:

(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic Renewal Movement testified that as a member of this group she visits indigent children in the hospital every Saturday and after office hours on working days. On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario Baluyot. In fact, one of her groupmates helped Rosario go to the comfort room to urinate. (T.S.N., pp. 16-19, May 25, 1988) (2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope John 23rd Community Center under Sister Eva Palencia. In one of her hospital visits, she encountered Rosario Baluyot in the month of May, 1987. She actually saw a child who happened to be Rosario Baluyot seated on the cement floor and when she asked why she was seated there, she was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days successively. (T.S.N. pp. 10-13, September 7, 1988) (3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was conscious (T.S.N. p. 36, September 14, 1988) but writhing in pain. He took pity on her so he brought her to the hospital (T.S.N. p. 12, September 14, 1988) From the above testimonies, it is clear that Rosario was still conscious and could still answer questions asked of her although she was complaining of stomach pains. Unfortunately, the medical attention given to her failed to halt the aggravation of her condition. The operation on May 19 was too late. Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis, which is massive infection, in the abdominal cavity caused by the foreign object or the cut sexual vibrator lodged in the vagina of the victim. This led to the infection from the uterus to the fallopian tubes and into the peritoneum and the abdominal cavity. cdrep The trial court convicted the accused citing the rationale of Article 4 of the RPC. "He who is the cause of the cause is the cause of the evil caused." But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs. Intermediate Appellate Court (157 SCRA 1 [1988]) to wit: "The rule is that the death of the victim must be the direct, natural and logical consequence of the wounds inflicted upon him by the accused. And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt." (Emphasis supplied) In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that: xxx xxx xxx

"The basic principle in every criminal prosecution is that accusation is not synonymous with guilt. The accused is presumed innocent until the contrary is proved by the prosecution. If the prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no defense at all. The defendant faces the full panoply of state authority with all "The People of the Philippines" arrayed against him. In a manner of speaking, he goes to that with all the bases loaded. The odds are heavily against him. It is important, therefore, to equalize the positions of the prosecution and the defense by presuming the innocence of the accused until the state is able to refute the presumption by proof of guilt beyond reasonable doubt." (At. p. 592) The evidence for the accused may be numerically less as against the number of witnesses and preponderance of evidence presented by the prosecution but there is no direct and convincing proof that the accused was responsible for the vibrator left inside the victim's vagina which caused her death seven (7) months after its insertion. What the prosecution managed to establish were mere circumstances which were not sufficient to overcome the constitutional presumption of innocence. While circumstantial evidence may suffice to support a conviction it is imperative, though, that the following requisites should concur: (a) There is more than one circumstance;

(b)

The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court) For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692 [1942]; Emphasis supplied). It must fairly exclude every reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In this case the circumstantial evidence presented by the prosecution does not conclusively point to the liability of the appellant for the crime charged. (People v. Tolentino, supra) We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death exemplified starkly the daily terrors that most street children encounter as they sell their bodies in order to survive. At an age when innocence and youthful joys should preponderate in their lives, they experience life in its most heartless and inhuman form. Instead of nothing more than gentle disappointments occupying their young minds, they daily cope with tragedies that even adults should never be made to carry. LLjur It is with distressing reluctance that we have to seemingly set back the efforts of Government to dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street children. It would have meant a lot to social workers and prosecutors alike if one pedophile-killer could be brought to justice so that his example would arouse public concern, sufficient for the formulation and implementation of meaningful remedies. However, we cannot convict on anything less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal justice system are as much, if not more so, for the perverts and outcasts of society as they are for normal, decent, and law-abiding people. The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that the accused did commit the offense has not been satisfied. By way of emphasis, we reiterate some of the factors arousing reasonable doubt: 1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being less than 12 years old when the carnal knowledge took place. If the evidence for the prosecution is to be believed, she was not yet born on the date she was baptized. 2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the prosecution has to prove force, intimidation, or deprivation of reason in order to convict for rape. There is no such proof. In fact, the evidence shows a willingness to submit to the sexual act for monetary considerations. 3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was Jessie Ramirez. This witness did not see Ritter insert the vibrator. The morning after the insertion, he was only told by Rosario about it. Two days later, he allegedly met Rosario who informed him that she was able to remove the object. And yet, Ramirez testified that on the night of that second encounter, he saw Rosario groaning because of pain in her stomach. She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also contradictory. 4. It was improbable, according to expert medical testimony, for a foreign object with active properties to cause pain, discomfort, and serious infection only after seven months inside a young girl's vaginal canal. Infection would have set in much earlier. Jessie Ramirez recalled that the incident happened in December of 1986. (TSN., January 6, 1988, pp. 15-17) The evidence, however shows that the appellant was not here in the Philippines that December. As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter arrived in the Philippines on October 7, 1986 and left on October 12, 1986. He never returned until September 23, 1987 (Exhibits "DD" and "EE"). The incident could have happened only in October, but then it would have been highly improbable for the sexual vibrator to stay inside the vagina for seven (7) months with the kind of serious complications it creates. 5. The gynecologist who attended to Rosario during her hospital confinement testified that she told him "Ginamit ako ng Negro at siya ang naglagay nito." The accused is not a black.

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident. Considering Dr. Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months prior to admission in the hospital and Rosario's unfortunate profession, there is always the possibility that she could have allowed herself to be violated by this perverse kind of sexual behavior where a vibrator or vibrators were inserted into her vagina between October, 1986 and May, 1987. llcd Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime renders the evidence for the prosecution insufficient to establish appellant's guilty connection with the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156 [1984]). The established facts do not entirely rule out the possibility that the appellant could have inserted a foreign object inside Rosario's vagina. This object may have caused her death. It is possible that the appellant could be the guilty person. However, the Court cannot base an affirmance of conviction upon mere possibilities. Suspicions and possibilities are not evidence and therefore should not be taken against the accused. (People v. Tolentino, supra) Well-established is the rule that every circumstance favorable to the accused should be duly taken into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates the mores of civilized society. The evidence against the accused must survive the test of reason. The strongest suspicion must not be allowed to sway judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). As stated in the case of People v. Ng, (142 SCRA 615 [1986]): ". . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt in criminal cases must be resolved in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral certainty of guilt. It has been defined as meaning such proof 'to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely to be true than the contrary. It must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and satisfies the reason and the conscience of those who are to act upon it.' (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . ." In the instant case, since there are circumstances which prevent our being morally certain of the guilt of the appellant, he is, therefore, entitled to an acquittal. This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are convinced that he comes to this country not to look at historical sights, enrich his intellect or indulge in legitimate pleasures but in order to satisfy the urgings of a sick mind. cdll With the positive identification and testimony by Jessie Ramirez that it was the appellant who picked him and Rosario from among the children and invited them to the hotel; and that in the hotel he was shown pictures of young boys like him and the two masturbated each other, such actuations clearly show that the appellant is a pedophile. When apprehended in Ermita, he was sizing up young children. Dr. Solis defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows: "Pedophilia A form of sexual perversion wherein a person has the compulsive desire to have sexual intercourse with a child of either sex. Children of various ages participate in sexual activities, like fellatio, cunnilingus, fondling with sex organs, or anal sexual intercourse. Usually committed by a homosexual between a man and a boy the latter being a passive partner." Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself. Pedophilia is clearly a behavior offensive to public morals and violative of the declared policy of the state to promote and protect the physical, moral, spiritual and social well-being of our youth. (Article II, Section 13, 1987 Constitution) (Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]). Pedophiles, especially thrill seeking aliens have no place in our country. LLpr In this case, there is reasonable ground to believe that the appellant committed acts injurious not only to Rosario Baluyot but also to the public good and domestic tranquility of the people. The state has expressly committed itself to defend the right of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has abused Filipino children, enticing them with money. The appellant should be expelled from the country.

Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is impliedly instituted with the criminal action. (Rule 111, Section 1) The well-settled doctrine is that a person while not criminally liable, may still be civilly liable. We reiterate what has been stated in Urbano v. IAC, supra. ". . . While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows: "'The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for the reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: 'There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished.' It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law It will close up an inexhaustible source of injusticea cause for disillusionment on the part of the innumerable persons injured or wronged.'" Rosario Baluyot is a street child who ran away from her grandmother's house. Circumstances forced her to succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs who have certainly suffered mental anguish, anxiety and moral shock by her sudden and incredulous death as reflected in the records of the case. Though we are acquitting the appellant for the crime of rape with homicide, we emphasize that we are not ruling that he is innocent or blameless. It is only the constitutional presumption of innocence and the failure of the prosecution to build an airtight case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's vaginal canal and that the vibrator may have caused her death. True, we cannot convict on probabilities or possibilities but civil liability does not require proof beyond reasonable doubt. The Court can order the payment of indemnity on the facts found in the records of this case. LLjur The appellant certainly committed acts contrary to morals, good customs, public order or public policy (see Article 21 Civil Code). As earlier mentioned, the appellant has abused Filipino children, enticing them with money. We can not overstress the responsibility for proper behavior of all adults in the Philippines, including the appellant towards young children. The sexual exploitation committed by the appellant should not and can not be condoned. Thus, considering the circumstances of the case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00. cdll And finally, the Court deplores the lack of criminal laws which will adequately protect street children from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from the sale of young bodies. The provisions on statutory rape and other related offenses were never intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles, media exposes, college dissertations, and other studies deal at length with this serious social problem but pedophiles like the appellant will continue

to enter the Philippines and foreign publications catering to them will continue to advertise the availability of Filipino street children unless the Government acts and acts soon. We have to acquit the appellant because the Bill of Rights commands us to do so. We, however, express the Court's concern about the problem of street children and the evils committed against them. Something must be done about it. prcd WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH STEFAN RITTER is ACQUITTED on grounds of reasonable doubt. The appellant is ordered to pay the amount of P30,000.00 by way of moral and exemplary damages to the heirs of Rosario Baluyot. The Commissioner of Immigration and Deportation is hereby directed to institute proper deportation proceedings against the appellant and to immediately expel him thereafter with prejudice to re-entry into the country. SO ORDERED.

[G.R. No. 198742. August 10, 2012.] TEODORA SOBEJANA-CONDON, petitioner, vs. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN, respondents. DECISION REYES, J p: Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5 (2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. IHCDAS The Case At bar is a special civil action for certiorari 1 under Rule 64 of the Rules of Court seeking to nullify Resolution 2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order 3 dated November 30, 2010 of COMELEC Second Division dismissing petitioner's appeal; and (b) affirmed the consolidated Decision 4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union. The Undisputed Facts The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon. On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003." 5 The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005. On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an Australian citizen. 6 SEIcAD The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010. Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan 7 and Luis M. Bautista, 8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioner's eligibility before the RTC. The petitions similarly sought the petitioner's disqualification from holding her elective post on the ground that she is a dual citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as imposed by Section 5 (2) of R.A. No. 9225. The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5 (2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship. SEDICa Ruling of the RTC In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner's failure to comply with Section 5 (2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTC's decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner): 1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba, La Union; 2) 3) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; [and] DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED. 9 AHaDSI Ruling of the COMELEC The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order 10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its Resolution 11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents. The decretal portion of the resolution reads: WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows: 1. 2. 3. To DISMISS the instant appeal for lack of merit; To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and To GRANT the Motion for Execution filed on November 12, 2010. SEcAIC

SO ORDERED. 12 (Emphasis supplied) Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc. The Petitioner's Arguments The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign citizenship" imposed by Section 5 (2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her. She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No. 9225. She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections. aAHDIc Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTC's judgment. The Issues Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of determining the petitioner's eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5 (2) of R.A. No. 9225 is a mere pro-forma requirement. CADHcI

The Court's Ruling I. An appeal may be simultaneously

reinstated and definitively resolved by the COMELEC en banc in a resolution disposing of a motion for reconsideration. The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of the Constitution, viz.: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. A complementary provision is present in Section 5 (c), Rule 3 of the COMELEC Rules of Procedure, to wit: SIacTE Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. Considering that the above cited provisos do not set any limits to the COMELEC en banc's prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of remanding the same to the division that initially dismissed it. We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide the substantive merits of the petitioner's appeal after ruling for its reinstatement. Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting documents 13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en banc's exercise of discretion on the substantial merits of her appeal when she herself invoked the same in the first place. The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a precedent to the disposition of the petitioner's appeal. A decision or resolution of any adjudicating body can be disposed in several ways. To sustain petitioner's argument would be virtually putting a straightjacket on the COMELEC en banc's adjudicatory powers. More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure. 14 prcd II. The COMELEC en banc has the

power to order discretionary execution of judgment. We cannot subscribe to petitioner's submission that the COMELEC en banc has no power to order the issuance of a writ of execution and that such function belongs only to the court of origin. There is no reason to dispute the COMELEC's authority to order discretionary execution of judgment in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure. 15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron, 16 we stressed the import of the provision vis--vis election cases when we held that judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC whether in the exercise of its original or appellate jurisdiction. III. Private respondents are not

estopped from questioning petitioner's eligibility to hold public office. The fact that the petitioner's qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo warranto before the RTC. SAHIDc Under the Batas Pambansa Bilang 881 (Omnibus Election Code), 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, to wit: (1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 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 due notice and hearing, not later than fifteen days before the election; and ASHaTc (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. (Emphasis ours) Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Omnibus Election Code. 17 The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253. IV. Petitioner is disqualified from

running for elective office for failure to renounce her Australian citizenship in accordance with Section 5 (2) of R.A. No. 9225. R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine citizenship 18 by taking an oath of allegiance to the Republic, thus: LLphil

Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I, ____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. The oath is an abbreviated repatriation process that restores one's Filipino citizenship and all civil and political rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz.: Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; DHCcST (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: aTIAES (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. (Emphasis ours) Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine. On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5 (2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath. EICDSA To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5 (2) to be a mere pro forma requirement in conformity with the intent of the Legislature. She anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225.

At the outset, it bears stressing that the Court's duty to interpret the law according to its true intent is exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application. 19 Section 5 (2) of R.A. No. 9225 is one such instance. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings. 20 SECHIA The language of Section 5 (2) is free from any ambiguity. In Lopez v. COMELEC, 21 we declared its categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship. The same meaning was emphasized in Jacot v. Dal, 22 when we held that Filipinos re-acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus: aSADIC The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. DEHaAS Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship; SDEITC xxx xxx xxx

[T]he intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship. 23 (Citation omitted and italics and underlining ours) Hence, in De Guzman v. COMELEC, 24 we declared petitioner therein to be disqualified from running for the position of vicemayor for his failure to make a personal and sworn renunciation of his American citizenship. We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read literally. 25 The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath. DcITHE It is conclusively presumed to be the meaning that the Legislature has intended to convey. 26 Even a resort to the Journal of the House of Representatives invoked by the petitioner leads to the same inference, viz.:

INTERPELLATION OF REP. JAVIER Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized Filipinos. Rep. Libanan replied in the affirmative. Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run for public office provided that they renounce their foreign citizenship. Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of foreign citizenship before any authorized public officer. Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision. SEcITC In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections. Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship. He pointed out further that this is a contradiction in the Bill. Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be considered qualified to run for the highest elective positions in the country. Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign citizenship and that they comply with the residency and registration requirements as provided for in the Constitution. HCSEcI Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without having to perform an act to complete or perfect his/her citizenship. Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of public officers. In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma requirement. TSacCH On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship. As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they should be considered as repatriated citizens. ASaTHc

In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter's comments on the matter. He however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to reacquire their Filipino citizenship. Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ). Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship. SHacCD On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat the purpose of the Bill. Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated citizens. Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not considered as natural-born citizens. In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens. In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of one's original nationality and only naturalized citizens are not considered as natural-born citizens. On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter. 27 The petitioner obviously espouses an isolated reading of Representative Javier's statement; she conveniently disregards the preceding and succeeding discussions in the records. IaHAcT The above-quoted excerpts of the legislative record show that Representative Javier's statement ought to be understood within the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions reserved only to natural-born Filipinos, i.e., President, Vice-President and Members of the Congress. It was Representative Javier's position that they should be considered as repatriated Filipinos and not as natural-born citizens since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as natural-born citizens. To reconcile the renunciation imposed by Section 5 (2) with the principle that natural-born citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as a mere pro forma requirement. EITcaD Petitioner's argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement only with respect to the re-acquisition of one's status as a natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an unsworn affidavit of renunciation.

It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public officers' primary accountability of allegiance and loyalty, which provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false. 28 aSATHE Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officer's abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines. To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise. Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled to judicial notice. We disagree. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. 29 To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: TCcIaA Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours) Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. DCTSEA The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law. 30 The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same. ESHAIC We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioner's motion for reconsideration.

We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v. Datumanong 31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship. This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic. 32 CcADHI The petitioner's act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a renunciation of foreign citizenship, 33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship. 34 The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. 35 In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. 36 The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office. DaTHAc Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines. WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the Commission on Elections en banc in EAC (AE) No. A-44-2010 is AFFIRMED in toto. SO ORDERED. cHaCAS

G.R. No. L-5691. December 27, 1910.] S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees, vs. WILLIAM VAN BUSKIRK, defendantappellant. Lionel D. Hargis for appellant. Sanz and Oppisso for appellee. SYLLABUS 1. MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE; NEGLIGENCE. A coachman or driver, who had driven the horses composing his team for a considerable time, during which the animals has shown no disposition to become unruly, left his team as usual and was assisting in unloading the wagon when the horses bolted and running into the plaintiffs' carriage caused personal injuries to the plaintiff and damage to the vehicle. It was further shown that, to leave teams under like circumstances and to assist in unloading the wagon, is the custom of drivers in the city and that the custom is sanctioned by employers. Held: That acts, the performance of which has not proven destructive or injurious and which have been generally acquiesced in by society for so long a time as to have ripened into a custom, can not be held to be unreasonable or imprudent and that, under the circumstances, the driver was not guilty of negligence in so leaving his team while assisting in unloading his wagon. DECISION MORELAND, J p: The facts found by the trial court are undisputed by either party in this case. They are "That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant, and to which was attached a pair of horses, came along the street in the opposite direction to that the in which said plaintiff was proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that instead of passing by the defendant's wagon and horses ran into the carromata occupied by said plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and the harness upon the horse which was drawing it. xxx xxx xxx

"These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who was driving his delivery wagon at the time the accident occurred, was a good servant and was considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant's employee tied the driving lines of the horses to the front end of the delivery wagon and then went back inside of the wagon for the purpose of unloading the forage to be delivered; that while unloading the forage and in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a whip and made some other noises, which frightened the horses attached to the delivery wagon and they ran away, and the driver was thrown from the inside of the wagon out through the rear upon the ground and was unable to stop the horses; that the horses then ran up and on which street they came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding." The defendant himself was not with the vehicle on the day in question. Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for the costs of the action. The case is before us on an appeal from that judgment. There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The provisions of that code pertinent to this case are

"Art. 1902. A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. "Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. "The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. "Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them. "Owners of directors of an establishment or enterprise are equally liable for the damages caused by the employees in the service of the branches in which the latter may be employed or on account of their duties. "The State is liable in this sense when it acts through a special agent, but not when the damages should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be applicable. "Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under their custody. "The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage." Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty and capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver in handling the team, we are of the opinion that the judgment must be reversed upon the ground that the evidence does not disclose that the cochero was negligent. While the law relating to negligence in this jurisdiction may possibly be some what different from that in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of negligence is determined are, nevertheless, generally the same. That is to say, while the law designating the person responsible for a negligent act may not be the same here as in many jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.) It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable; that the cochero was experienced and capable; that he had driven one of the horses several years and the other five or six months; that he had been in the habit, during all that time, of leaving them in the condition in which they were left on the day of the accident; that they had never run away up to that time and there had been, therefore, no accident due to such practice; that to leave the horses and assist in unloading the merchandise in the manner described on the day of the accident was the custom of all cochero who delivered merchandise of the character of that which was being delivered by the cochero of the defendant on the day in question, which custom was sanctioned by their employers. In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described by the evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said: "He was performing his duty while removing the goods into the house, and, if every person who suffered a cart to remain in the street while he took goods out of it was obliged to employ another to look after the horses, it would be impossible for the business of the metropolis to go on. In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

"The degree of care required of the plaintiff, or those in charge of his horse, at the time of the injury, is that which would be exercised by a person of ordinary care and prudence under like circumstances. It can not be said that the fact of leaving the horse unhitched is in itself negligence. Whether it is negligence to leave a horse unhitched must be depend upon the disposition of the horse; whether he was under the observation and control of some person all the time, and many other circumstances; and is a question to be determined by the jury from the facts of each case." In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhitched and otherwise unattended on the side of a public highways while the driver is upon the sidewalk loading goods on the wagon." The said court closed its opinion with these words: "There was evidence which could have fully justified the jury in finding that the horse was quite and gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged injury, and that the horse had been used for years in that way without accident. The refusal of the trial court to charge as requested left the jury free to find was verdict against the defendant, although the jury was convinced that these facts were proven. In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held: "That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having used it for three or four months without ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a want of due care on his part." The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.) The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent. Indeed the very reason why they have been permitted by society is that they beneficial rather than prejudicial. Accidents sometimes happen and injuries result from the most ordinary acts of life. But such are not their natural or customary results. To hold that, because such an act once resulted in accident or injury, the actor is necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully invoked in such a case, does not in any sense militate against the reasoning presented. That maxim at most only creates a prima facie case, and that only in the absence of proof of the circumstances under which the act complained of was performed. It is something invoked in favor of the plaintiff before defendant's case showing the conditions and circumstances under which the injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554): ". . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly built, as to tear up some of the planks of the flooring, this would be prima facie evidence of negligence on the part of the defendant's agent in making the landing, unless upon the whole evidence in the case this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat under control of her officers and carefully managed by them, evidence that such damage was done in this case was prima facie, and, if unexplained, sufficient evidence of negligence on their part, and the jury might properly be so instructed." There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the accident resulting therefrom, but also the conditions under which the runaway occurred. Those conditions showing of themselves that the defendant's cochero was not negligent in the management of the horse, the prima facie case in plaintiffs' favor, if any, was destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the public now, through the courts, without prior objection or notice, to be permitted to reverse the practice of decades and thereby make culpable and guilty one who had every reason and assurance to believe that he was acting under the sanction of the strongest of all civil forces, the custom of a people? We think not. The judgment is reversed, without special finding as to costs. So ordered. Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur. Separate Opinions TORRES, J., dissenting: I am of the opinion that the judgment should be affirmed.

[G.R. No. 162155. August 28, 2007.] COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity as Revenue District Officer of Revenue District No. 049 (Makati), petitioners, vs. PRIMETOWN PROPERTY GROUP, INC., respondent. DECISION CORONA, J p: This petition for review on certiorari 1 seeks to set aside the August 1, 2003 decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying reconsideration. 3 AEDcIH On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied for the refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal Revenue (BIR), 4 he explained that the increase in the cost of labor and materials and difficulty in obtaining financing for projects and collecting receivables caused the real estate industry to slowdown. 5 As a consequence, while business was good during the first quarter of 1997, respondent suffered losses amounting to P71,879,228 that year. 6 According to Yap, because respondent suffered losses, it was not liable for income taxes. 7 Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable withholding tax from real estate sales to the BIR in the total amount of P26,318,398.32. 8 Therefore, respondent was entitled to tax refund or tax credit. 9 On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional documents to support its claim. 10 Respondent complied but its claim was not acted upon. Thus, on April 14, 2000, it filed a petition for review 11 in the Court of Tax Appeals (CTA). CSIDTc On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year prescriptive period for filing a judicial claim for tax refund or tax credit. 12 It invoked Section 229 of the National Internal Revenue Code (NIRC): Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. ASIETa In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the Commissioner may, even without a claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid. (emphasis supplied) The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to claim a refund or credit commenced on that date. 13 The tax court applied Article 13 of the Civil Code which states: Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of three hundred sixtyfive days each; months, of thirty days; days, of twenty-four hours, and nights from sunset to sunrise. If the months are designated by their name, they shall be computed by the number of days which they respectively have. CSHcDT In computing a period, the first day shall be excluded, and the last included. (emphasis supplied) Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year, respondent's petition, which was filed 731 days 14 after respondent filed its final adjusted return, was filed beyond the reglementary period. 15

Respondent moved for reconsideration but it was denied. 16 Hence, it filed an appeal in the CA. 17 On August 1, 2003, the CA reversed and set aside the decision of the CTA. 18 It ruled that Article 13 of the Civil Code did not distinguish between a regular year and a leap year. According to the CA: The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap year. 19 SIaHTD In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April 14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of 730 days. A statute which is clear and explicit shall be neither interpreted nor construed. 20 Petitioners moved for reconsideration but it was denied. 21 Thus, this appeal. Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly construed against claimants. 22 Section 229 of the NIRC should be strictly applied against respondent inasmuch as it has been consistently held that the prescriptive period (for the filing of tax refunds and tax credits) begins to run on the day claimants file their final adjusted returns. 23 Hence, the claim should have been filed on or before April 13, 2000 or within 730 days, reckoned from the time respondent filed its final adjusted return. IECAaD The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not. The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted return. 24 But how should the two-year prescriptive period be computed? As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson, 25 we ruled that a year is equivalent to 365 days regardless of whether it is a regular year or a leap year. 26 However, in 1987, EO 27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter VIII, Book I thereof provides: Sec. 31. Legal Periods. "Year" shall be understood to be twelve calendar months; "month" of thirty days, unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains; "day", to a day of twenty-four hours and; "night" from sunrise to sunset. (emphasis supplied) CcAESI A calendar month is "a month designated in the calendar without regard to the number of days it may contain." 28 It is the "period of time running from the beginning of a certain numbered day up to, but not including, the corresponding numbered day of the next month, and if there is not a sufficient number of days in the next month, then up to and including the last day of that month." 29 To illustrate, one calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008. 30 A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated by another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled with the previous one). 31 Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 states: Sec. 27. Repealing clause. All laws, decrees, orders, rules and regulation, or portions thereof, inconsistent with this Code are hereby repealed or modified accordingly. DAaHET A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify or designate the laws to be abolished. 32 Thus, the provision above only impliedly repealed all laws inconsistent with the Administrative Code of 1987. Implied repeals, however, are not favored. An implied repeal must have been clearly and unmistakably intended by the legislature. The test is whether the subsequent law encompasses entirely the subject matter of the former law and they cannot be logically or reasonably reconciled. 33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of 1987 deal with the same subject matter the computation of legal periods. Under the Civil Code, a year is equivalent to 365 days whether it be a regular year or a leap year. Under the Administrative Code of 1987, however, a year is composed of 12 calendar months. Needless to state, under the Administrative Code of 1987, the number of days is irrelevant. There obviously exists a manifest incompatibility in the manner of computing legal periods under the Civil Code and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter VIII, Book I of the Administrative Code of 1987, being the more recent law, governs the computation of legal periods. Lex posteriori derogat priori. TIaCAc Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-year prescriptive period (reckoned from the time respondent filed its final adjusted return 34 on April 14, 1998) consisted of 24 calendar months, computed as follows: Year 1 1st calendar month 2nd calendar month 3rd calendar month 4th calendar month 5th calendar month 6th calendar month 7th calendar month 8th calendar month 9th calendar month 10th calendar month 11th calendar month 12th calendar month Year 2 13th calendar month 14th calendar month 15th calendar month 16th calendar month 17th calendar month 18th calendar month 19th calendar month 20th calendar month 21st calendar month 22nd calendar month 23rd calendar month April 15, 1998 May 15, 1998 June 15, 1998 July 15, 1998 to to to to May 14, 1998 June 14, 1998 July 14, 1998 August 14, 1998 September 14, 1998 to October 14, 1998

August 15, 1998 to September 15, 1998 October 15, 1998 to November 15, 1998 December 15, 1998 January 15, 1999 to February 15, 1999 March 15, 1999 to April 15, 1999 May 15, 1999 June 15, 1999 July 15, 1999 to to to to

November 14, 1998 to to December 14, 1998 January 14, 1999

February 14, 1999 to March 14, 1999

April 14, 1999 May 14, 1999 June 14, 1999 July 14, 1999 August 14, 1999 September 14, 1999 to October 14, 1999

August 15, 1999 to September 15, 1999 October 15, 1999 to November 15, 1999 December 15, 1999 January 15, 2000 to February 15, 2000

November 14, 1999 to to December 14, 1999 January 14, 2000

February 14, 2000 to March 14, 2000

24th

calendar month March 15, 2000 to

April 14, 2000

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

[G.R. No. 183449. March 12, 2012.] ALFREDO JACA MONTAJES, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION PERALTA, J p: Assailed in this petition for review on certiorari are the Resolutions dated September 21, 2007 1 and May 19, 2008 2 of the Court of Appeals (CA) issued in CA-G.R. CR No. 00410 which dismissed the petition for review filed by petitioner Alfredo Jaca Montajes for being filed out of time, and denied reconsideration thereof, respectively. TCAHES In an Information 3 dated June 5, 2003, petitioner was charged with the crime of Direct Assault before the Municipal Trial Court (MTC) of Buenavista, Agusan del Norte, the accusatory portion of which reads: That on or about the 8th day of December, 2002, at 1:00 early morning, more or less, in Purok 10, Barangay Abilan, Buenavista, Agusan del Norte, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously attack, assault, and hack one JOSE B. RELLON, an elected Punong Barangay, while in the performance of his duties, and accused fully know that Jose B. Rellon is a Barangay Official, to the damage and prejudice of said Jose B. Rellon. CONTRARY TO LAW: Article 148 of the revised Penal Code. 4 When arraigned, petitioner pleaded not guilty to the charge. 5 Thereafter, trial ensued. IDAEHT The evidence of the prosecution and the defense is summarized by the MTC as follows: To substantiate the alleged commission of the crime of direct assault by the accused, complaining witness Jose B. Rellon declared inter alia, that he has been the Barangay Captain of Barangay Abilan, Buenavista, Agusan del Norte since the year 2002. On December 8, 2002, at about 1:00 o'clock in the early morning, he was at the benefit dance sponsored by the Sangguniang Kabataan at Purok 4, Barangay Abilan, Buenavista, Agusan del Norte. He met accused Alfredo Montajes who uttered to him the words "YOU'RE A USELESS CAPTAIN." Other words of similar import were likewise uttered by the accused against him which he could no longer recall. After uttering the said words, the accused then drew his bolo locally known as "lagaraw" and approached him. He then moved backward, but the accused came near to him and struck him once with the "lagaraw." Luckily, complainant was not hit as he managed to move backward. Complainant's daughter named Vilma Dector and his wife, approached him and brought him home. Many people, including two (2) CVO (Rodelio Laureto and Victorio Trinquite), witnessed the incident. HEcaIC During the mediation in the barangay hall, an investigation was conducted. The accused, according to the complainant, asked for forgiveness from him which he declined, as he was of the impression that the law must be applied and the accused should instead ask for forgiveness in court. As proof that the accused asked for forgiveness, complainant presented a document (Exh. "B") to that effect. Complainant had the incident blottered at the police station as evidenced by an extract thereof. On cross-examination, complainant testified that he went to the benefit dance to stop it since it was already 1:00 o'clock in the early morning and the benefit dance was still going on when it was supposed to end at 12:00 o'clock midnight as the permit he gave was only up to 12:00 o'clock midnight. As a result of the stoppage of the benefit dance, many persons got angry, and he heard that the house of the accused was stoned which made the accused angry. In fact, he saw the accused murmuring as his house was stoned by unknown persons. When the accused came near to him, the former did not ask for assistance from him. aSIATD Prosecution witness Rodelio Laureto corroborated the declaration of the complainant that it was the accused who hacked the complainant with the use of a "lagaraw," but failed to hit him.

Accused Alfredo Montajes testified that in the evening of December 7, 2002, he was at home listening to the disco as there was a benefit dance near their house. The benefit dance started at 7 o'clock in the evening and ended at 1 o'clock in the early morning of December 8, 2002 when it was stopped by Barangay Captain Jose Rellon. It was then that trouble started because many of those who have paid but were not anymore allowed to dance complained to the Barangay Captain and requested that they be given one more music so that they could avail for what they have paid for on that benefit dance, as they were not refunded with their payments. When this protest went on, the CVO's reacted by clubbing them using their jackets. Then a stoning incident followed. One of those hit by stones was his house. This made him wild prompting him to get his "lagaraw" to look for the people responsible for stoning his house. While looking for these persons along the road, he saw Barangay Captain Jose Rellon who was then two (2) meters away from him, and he responded by telling him that he was looking for those persons responsible for the stoning of his house. The complainant wanted to get the "lagaraw" from him but he refused. DcITaC The accused explained, when confronted with a document (Exh. "B") wherein it was stated that he asked for apology from the Barangay Captain during the barangay level conciliation, that it was for the sole purpose of not elevating this case and that they would settle amicably. The accused also vehemently denied the accusation that he attacked the barangay captain. Defense witness Luis A. Cajeles, Jr., a Barangay Kagawad of Barangay Abilan, Buenavista, Agusan del Norte, testified that at about 1:00 o'clock in the early dawn of December 8, 2002, he heard of stoning and shouting, in fact the window grill of his house was hit and he heard the people in panic. As a barangay kagawad assigned to the Peace and Order Committee, he went out immediately from his house and went to the road across the basketball court where the stoning was. He then saw accused Alfredo Montajes holding a bolo. The accused was shouting that he was looking for the persons who stoned his house. He also witnessed that the barangay captain asked the accused why he was bringing a bolo and the accused replied that he was looking for the persons who stoned his house. He did not know what else happened because he tried to drive the teenagers to their homes, because it was already very late in the evening. ISaCTE On cross-examination, he declared that the accused asked for forgiveness during the confrontation at the Barangay because of the disturbance he made to the barangay captain and to the community because some people were in panic as he was bringing a bolo, and not for attacking the Barangay Captain. Anatolio Lozada Bangahon, another defense witness, testified that he saw the accused coming out from his house carrying a bolo, and when he asked him why he was bringing a bolo, the accused replied that he was going to look for the persons who stoned his house. The accused was roaming around to look for the persons who stoned his house, but he was not looking after the Barangay Captain. 6 On December 29, 2005, the MTC issued its Judgment 7 finding petitioner guilty of the crime of direct assault. The dispositive portion of the judgment reads: ESTCHa WHEREFORE, the Court finds accused ALFREDO MONTAJES y JACA guilty beyond reasonable doubt of the crime of Direct Assault as defined and penalized under Art. 148 of the Revised Penal Code and hereby sentences him to suffer an indefinite prison term of FOUR (4) MONTHS AND ONE DAY of arresto mayor in its maximum period, as minimum, to FOUR (4) YEARS, NINE MONTHS AND TEN DAYS of prision correccional in its medium period, as maximum, there being no mitigating or aggravating circumstance attending the commission of the offense charged. The accused is likewise ordered to pay a fine of ONE THOUSAND PESOS (P1,000.00) Philippine Currency, without subsidiary imprisonment in case of insolvency. 8 On appeal, the Regional Trial Court (RTC), Branch 3, Butuan City, rendered its Decision 9 dated January 23, 2007 affirming in toto the judgment of the MTC. Petitioner filed a motion for reconsideration which the RTC denied in an Order 10 dated May 4, 2007. TEHIaD Petitioner filed with the CA a petition (should be motion) for extension of time to file petition for review under Rule 42 of the Rules of Court praying for an extended period of 15 days from May 21, 2007, or until June 5, 2007, within which to file his petition. Petitioner subsequently filed his petition for review on June 5, 2007.

On September 21, 2007, the CA issued its assailed Resolution dismissing the petition outright for being filed out of time. In so ruling, the CA said: As borne by the records, the petitioner received the copy of the resolution denying his motion for reconsideration on May 4, 2007, Thus, the 15-day reglementary period within which to file a petition for review expired on May 21, 2007 (Monday) considering that the last day fell on a Saturday, May 19, 2007. It appears that petitioner reckoned the extension from May 21, 2007 (Monday) and not from May 19, 2007 (Saturday). Petitioner should have reckoned the 15-day extension from May 19, 2007 and not from May 21, 2007. It is well settled that when the day of the period falls on a Saturday, Sunday, or a legal holiday, and a party is granted an extension of time, the extension should be counted from the last day which is a Saturday, Sunday or legal holiday. 11 Petitioner's motion for reconsideration was denied in a Resolution dated May 19, 2008. caAICE Petitioner is now before us on the issue of whether the CA erred in denying due course to his petition for review for being filed out of time. Petitioner argues that he filed the motion for extension of time to file a petition for review with the CA pursuant to Section 1, Rule 22 of the Rules of Court; that based on such provision, if the last day to file a petition falls on a Saturday, the time shall not run until the next working day. Here, the last day of the reglementary period within which to file the said petition for review with the CA fell on a Saturday, thus, the last day to file the petition was moved to the next working day which was May 21, 2007, Monday. Hence, he was not wrong in asking the CA to give him 15 days from May 21, 2007 to file the petition and not from May 19, 2007, Saturday. Nonetheless, petitioner asks for liberality in the interest of justice taking into consideration the merit of his petition claiming that his conviction was not supported by the evidence on record. Moreover, he claims that his petition for review was filed with the CA on June 5, 2007, which was long before the CA dismissed the same on September 21, 2007 for being filed out of time. He prays that the CA resolutions be reversed and set aside and the CA be directed to give due course to his petition and to resolve the case on the merits. HICSaD We grant the petition. Section 1, Rule 22 of the Rules of Court relied upon by petitioner provides: Section 1. How to compute time. In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. We then clarified the above-quoted provision when we issued A.M. No. 00-2-14-SC dated February 29, 2000 (Re: Computation of Time When the Last Day Falls on a Saturday, Sunday or a Legal Holiday and a Motion for Extension on Next Working Day is Granted) which reads: EHTISC xxx xxx xxx

Whereas, the aforecited provision [Section 1, Rule 22 of the Rules of Court] applies in the matter of filing of pleadings in courts when the due date falls on a Saturday, Sunday or legal holiday, in which case, the filing of the said pleading on the next working day is deemed on time; Whereas, the question has been raised if the period is extended ipso jure to the next working day immediately following where the last day of the period is a Saturday, Sunday or a legal holiday, so that when a motion for extension of time is filed, the period of extension is to be reckoned from the next working day and not from the original expiration of the period. NOW THEREFORE, the Court Resolves, for the guidance of the Bench and the Bar, to declare that Section 1, Rule 22 speaks only of "the last day of the period" so that when a party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday or legal holiday. CSEHIa

In De la Cruz v. Maersk Filipinas Crewing, Inc., 12 we said: Section 1, Rule 22, as clarified by the circular, is clear. Should a party desire to file any pleading, even a motion for extension of time to file a pleading, and the last day falls on a Saturday, Sunday or a legal holiday, he may do so on the next working day. This is what petitioner did in the case at bar. However, according to the same circular, the petition for review on certiorari was indeed filed out of time. The provision states that in case a motion for extension is granted, the due date for the extended period shall be counted from the original due date, not from the next working day on which the motion for extension was filed. In Luz v. National Amnesty Commission, we had occasion to expound on the matter. In that case, we held that the extension granted by the court should be tacked to the original period and commences immediately after the expiration of such period. DTIaCS In the case at bar, although petitioner's filing of the motion for extension was within the period provided by law, the filing of the petition itself was not on time. Petitioner was granted an additional period of 30 days within which to file the petition. Reckoned from the original period, he should have filed it on May 8, 2006. Instead, he did so only on May 11, 2006, that is, 3 days late. 13 Based on Section 1, Rule 22 of the Rules of Court, where the last day of the period for doing any act required by law falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. In this case, the original period for filing the petition for review with the CA was on May 19, 2007, a Saturday. Petitioner's filing of his motion for extension of time to file a petition for review on May 21, 2007, the next working day which followed the last day for filing which fell on a Saturday, was therefore on time. However, petitioner prayed in his motion for extension that he be granted 15 days from May 21, 2007 or up to June 5, 2007 within which to file his petition. He then filed his petition for review on June 5, 2007. The CA did not act on the motion for extension, but instead issued a Resolution dated September 21, 2007 dismissing the petition for review for being filed out of time. aSIAHC We find that the CA correctly ruled that the petition for review was filed out of time based on our clarification in A.M. No. 002-14-SC that the 15-day extension period prayed for should be tacked to the original period and commences immediately after the expiration of such period. 14 Thus, counting 15 days from the expiration of the period which was on May 19, 2007, the petition filed on June 5, 2007 was already two days late. However, we find the circumstances obtaining in this case to merit the liberal application of the rule in the interest of justice and fair play. Notably, the petition for review was already filed on June 5, 2007, which was long before the CA issued its Resolution dated September 21, 2007 dismissing the petition for review for being filed out of time. There was no showing that respondent suffered any material injury or his cause was prejudiced by reason of such delay. Moreover, the RTC decision which was sought to be reversed in the petition for review filed in the CA had affirmed the MTC judgment convicting petitioner of direct assault, hence, the petition involved no less than petitioner's liberty. 15 We do not find anything on record that shows petitioner's deliberate intent to delay the final disposition of the case as he had filed the petition for review within the extended period sought, although erroneously computed. These circumstances should have been taken into consideration for the CA not to dismiss the petition outright. cCAIaD We have ruled that being a few days late in the filing of the petition for review does not automatically warrant the dismissal thereof. 16 And even assuming that a petition for review is filed a few days late, where strong considerations of substantial justice are manifest in the petition, we may relax the stringent application of technical rules in the exercise of our equity jurisdiction. 17 Courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. 18 After all, the higher objective of procedural rule is to insure that the substantive rights of the parties are protected. 19 Litigations should, as much as possible, be decided on the merits and not on technicalities. Every party-litigant must be afforded ample opportunity for the proper and just determination of his case, free from the unacceptable plea of technicalities. 20 WHEREFORE, the petition is granted. The assailed Resolutions of the Court of Appeals are SET ASIDE. The Court of Appeals is ORDERED to reinstate the Petition for Review filed by petitioner in CA-G.R. CR No. 00410. SO ORDERED.

LAZARO B. RAYRAY, plaintiff-appellant, vs. CHAE KYUNG LEE, defendant-appellee. Lazaro B. Rayray for plaintiff-appellee. Solicitor General for defendant-appellant. SYLLABUS 1. JURISDICTION; ANNULMENT OF MARRIAGE. An action for annulment of marriage is within the jurisdiction of our courts of first instance, and, in Manila, of its Court of Juvenile and Domestic Relations. The latter court, in the case at bar, acquired jurisdiction over plaintiff by his submission thereto in consequence of the filing of the complaint. Defendant whose whereabouts is unknown, was placed under the jurisdiction of said court, upon summons by publication. 2. ID.; ID.; NATURE OF ACTION; JURISDICTION, HOW ACQUIRED. Annulment of marriage is an action in rem, for it concerns the status of the Parties, and status affects or binds the whole world. The res is the relation between said parties, or their marriage tie. Jurisdiction over the same depends upon the nationality or domicile of the parties, not the place of celebration of marriage, or the locus celebrationis. 3. ID.; ID.; ID.; WHEN COURT HAS JURISDICTION OVER THE RES. Marriage is one of the cases of double status, in that the status therein involves and affects two persons. One is married, never in abstract or in a vacuum, but, always to somebody else. Hence, a judicial decree on the marriage status of a person necessarily reflects upon the status of another and the relation between them. The prevailing rule is, accordingly, that a court had jurisdiction over the res, in an action for annulment of marriage, provided, at least, one of the parties is domiciled in, or a national of, the forum. Since plaintiff is a Filipino, domiciled in the Philippines, it follows that the lower court had jurisdiction over the res, in addition to its jurisdiction over the subjectmatter and the parties. Hence, it could validly inquire into the legality of the marriage between the parties. 4. FOREIGN MARRIAGES; ANNULMENT ON THE GROUND OF PREVIOUS MARRIAGE; CASE AT BAR. Plaintiff seeks the annulment of his marriage to defendant. He testified that they were married in Pusan, Korea, on March 15, 1953; that before the wedding, she obtained the "police clearance" Exhibit A, written in Korean language, which was necessary in order that the could contract marriage; that according to the translation into English (Exhibit B) of said Exhibit A, defendant was already married on February 16, 1953; that when he confronted the defendant with the contents of this document, her reply was that it is not unusual for a Korean girl to marry twice in Korea; that when he inquired about her status on March 15, 1953, defendant confided to him that she had lived (before) with about two (2) Americans and a Korean, adding, however, that there was no impediment to her contracting marriage with him; and that, later on, they were separated and her whereabouts are now unknown to him. Held Plaintiff's evidence is insufficient to establish that defendant war married to another person prior to March 15, 1953. To begin with, Exhibit A is not signed. It merely purports to bear the seal of the Chief of Pusan National Police. Secondly, the latter had no personal knowledge of the truth of the entry therein concerning defendant's status on February 15, 1953. Defendant was a native not of Pusan, but of Seoul, Korea. Hence, Exhibit A could, at best, be no more than hearsay evidence. Again, when plaintiff allegedly confronted the defendant with the contents of Exhibit B, defendant did not say that she had been married before. Plaintiff declared that she admitted having previously lived with several other men, adding, however, that she had no impediment, thus, in effect, negating the alleged previous marriage. Thirdly, Exhibit A was obtained in order to establish defendant's qualification to contract marriage, and yet the wedding took place, despite the entry in said document to the effect that defendant was married already. There is no competent evidence to the effect that Korean laws permit bigamy or polygamy. The presumption is that the foreign law is identical to the lex fori, or, in the case at bar, the Philippine law. DECISION CONCEPCION, C.J p: Appeal from a decision of the Court of Juvenile and Domestic Relations. Plaintiff Lazaro Rayray seeks the annulment of his marriage to defendant Chae Kyung Lee. Inasmuch as, the latter's whereabouts is unknown, and she was formerly a resident of Pusan, Korea, summons was served by publication, as provided in the Rules of Court. Thereafter, plaintiff moved that defendant be declared in default, she not having filed an answer, and that a date be set for the reception of his evidence. Before acting on this motion, the lower court referred the case to the City

Fiscal of Manila, pursuant to Articles 88 and 101 of the Civil Code of the Philippines, for the purpose of determining whether or not a collusion between the parties exists. Said officer having found no such collusion, the case was heard on the merits. In due course, thereafter, decision was rendered dismissing plaintiff's complaint, without costs, upon the ground: (1) that the court could not nullify a marriage contracted abroad; and (2) that the facts proven do not warrant the relief prayed for. A reconsideration of this decision having been denied, plaintiff appealed to the Court of Appeals, which certified the case to the Supreme Court, the jurisdiction of the lower court being in issue in the appeal. In relation thereto, the court a quo found that it had no jurisdiction to pass upon the validity of plaintiff's marriage to the defendant, it having been solemnized in Seoul, Korea. Said conclusion is erroneous. In order that a given case could be validly decided by a court of justice, it must have jurisdiction over: (1) the subject matter of the litigation; (2) the person of the parties therein; and (3) in actions in rem or quasi-in-rem, the res. 1 The subject-matter of the present case is the annulment of plaintiff's marriage to the defendant, which is within the jurisdiction of our courts of first instance, 2 and, in Manila, of its Court of Juvenile and Domestic Relations. 3 The same acquired jurisdiction over plaintiff herein by his submission thereto in consequence of the filing of the complaint herein. 4 Defendant was placed under the jurisdiction of said court, upon the service of summons by publication. 5 This is an action in rem, for it concerns the status of the parties herein, and status affects or binds the whole world. The res in the present case is the relation between said parties, or their marriage tie. 6 Jurisdiction over the same depends upon the nationality or domicile of the parties, not the place of celebration of marriage, or the locus celebrationis. 7 Plaintiff herein is a citizen of the Philippines, domiciled therein. His status is, therefore, subject to our jurisdiction, on both counts. True that defendant was and under plaintiff's theory still is a non-resident alien. But, this fact does not deprive the lower court of its jurisdiction to pass upon the validity of her marriage to plaintiff herein. Indeed, marriage is one of the cases of double status, in that the status therein involves and affects two persons. One is married, never in abstract or in a vacuum, but, always to somebody else. Hence, a judicial decree on the marriage status of a person necessarily reflects upon the status of another and the relation between them. The prevailing rule is, accordingly, that a court has jurisdiction over the res, in an action for annulment of marriage, provided, at least, one of the parties is domiciled in, or a national of, the forum. 8 Since plaintiff is a Filipino, domiciled in the Philippines, it follows that the lower court had jurisdiction over the res, in addition to its jurisdiction over the subject-matter and the parties. In other words, it could validly inquire into the legality of the marriage between the parties herein. As regards the substantial, validity of said marriage, plaintiff testified that he met the defendant in Pusan, Korea, sometime in 1952, where she was operating a night club, that they lived together from November 1952 to April 1955; that they were married in Pusan, Korea, a March 15, 1953, as attested to by their marriage certificate Exhibit D; that before the wedding she obtained the "police clearance" Exhibit A, written in Korean language, and dated February 16, 1953, which was necessary in order that she could contract marriage; that on June 30, 1953, he proceeded to India and left the defendant, then in advanced stage of pregnancy, in Korea; that in October, 1953, he joined him in India, bringing with her said Exhibit A, and its translation into English, Exhibit B; that he then noticed that, on February 16, 1953, defendant was already married, according to said Exhibit B; that as he confronted the defendant with the contents of this document, her reply was that it is not unusual for a Korean girl to marry twice in Korea; that when he inquired about her status on March 15, 1953 defendant confided to him that she had lived with about two (2) Americans and a Korean, adding, however, that there was no impediment to her contracting marriage with him; and that, later on, they were separated and her whereabouts are now unknown to him. The lower court considered plaintiff's evidence insufficient to establish that defendant was married to another person prior to March 15, 1953, and we agree with this conclusion. To begin with, Exhibit A is not signed. It merely purports to bear the seal of the Chief of Pusan National Police. Secondly, the record does not show who prepared it, much less that he had personal knowledge of the truth of the entry therein concerning defendant's status on February 15, 1953. It should be noted, that defendant was a native, not of Pusan, but of Seoul, Korea. Hence, Exhibit A could, at best, be no more than hearsay evidence. Again, when plaintiff allegedly confronted the defendant with the contents of Exhibit B, defendant did not say that she had been married before. Plaintiff declared that she admitted having previously lived with several other men, adding, however, that she had no impediment, thus, in effect, negating the alleged previous marriage.

Thirdly, if Exhibit A was obtained on February 16, 1953, in order to establish defendant's qualification to contract marriage, why is it that the wedding took place, despite the entry in said document to the effect that defendant was married already? There is no competent evidence to the effect that Korean laws permit bigamy or polygamy. Moreover, the presumption is that the foreign law is identical to the lex fori, or, in the case at bar, the Philippine Law. 9 In fact, the statement, imputed by plaintiff to the defendant, to the effect that, although she had cohabited before with other men, there was no impediment to her marrying him, clearly suggests that a previous marriage on her part, would have been, in her opinion, a legal obstacle to her marriage with the plaintiff. Then too, the marriage certificate Exhibit D contains spaces for the entry of data on whether any of the contracting parties had been previously married; whether the prior marriage had been dissolved by a decree of divorce; and, if there had been such decree, the date thereof. Sure}y, these data would be absolutely irrelevant if polygamy were sanctioned in Korea. And, again, why is it that Exhibit D states that defendant had no previous marriage? Last, but not least, plaintiff cannot possibly secure the relief prayed for unless full faith and credence are given to his testimony, but we cannot believe him for the records show that he would not hesitate to lie when it suits his purpose. Thus, for instance, when plaintiff contracted marriage with the defendant, he said that he was single, although, he admitted, this was a lie, because, sometime in 1940, he married in Baguio, one Adelaida Melecio or Valdez. 10 But, then he would, also, have us believe that his marriage with the latter was illegal or fictitious, because Adelaida and he did no more than sign, on a small window in the City Hall of Baguio, certain documents the contents of which he did not read. WHEREFORE, the decision appealed from should be, as it is hereby, affirmed, with the costs of this instance against; plaintiffappellant. It is so ordered.

[G.R. No. 178551. October 11, 2010.] ATCI OVERSEAS CORPORATION, AMALIA G. IKDAL and MINISTRY OF PUBLIC HEALTH-KUWAIT, petitioners, vs. MA. JOSEFA ECHIN, respondent. DECISION CARPIO MORALES, J p: Josefina Echin (respondent) was hired by petitioner ATCI Overseas Corporation in behalf of its principal-co-petitioner, the Ministry of Public Health of Kuwait (the Ministry), for the position of medical technologist under a two-year contract, denominated as a Memorandum of Agreement (MOA), with a monthly salary of US$1,200.00. SDHacT Under the MOA, 1 all newly-hired employees undergo a probationary period of one (1) year and are covered by Kuwait's Civil Service Board Employment Contract No. 2. Respondent was deployed on February 17, 2000 but was terminated from employment on February 11, 2001, she not having allegedly passed the probationary period. As the Ministry denied respondent's request for reconsideration, she returned to the Philippines on March 17, 2001, shouldering her own air fare. On July 27, 2001, respondent filed with the National Labor Relations Commission (NLRC) a complaint 2 for illegal dismissal against petitioner ATCI as the local recruitment agency, represented by petitioner, Amalia Ikdal (Ikdal), and the Ministry, as the foreign principal. By Decision 3 of November 29, 2002, the Labor Arbiter, finding that petitioners neither showed that there was just cause to warrant respondent's dismissal nor that she failed to qualify as a regular employee, held that respondent was illegally dismissed and accordingly ordered petitioners to pay her US$3,600.00, representing her salary for the three months unexpired portion of her contract. On appeal of petitioners ATCI and Ikdal, the NLRC affirmed the Labor Arbiter's decision by Resolution 4 of January 26, 2004. Petitioners' motion for reconsideration having been denied by Resolution 5 of April 22, 2004, they appealed to the Court of Appeals, contending that their principal, the Ministry, being a foreign government agency, is immune from suit and, as such, the immunity extended to them; and that respondent was validly dismissed for her failure to meet the performance rating within the one-year period as required under Kuwait's Civil Service Laws. Petitioners further contended that Ikdal should not be liable as an officer of petitioner ATCI. By Decision 6 of March 30, 2007, the appellate court affirmed the NLRC Resolution. In brushing aside petitioners' contention that they only acted as agent of the Ministry and that they cannot be held jointly and solidarily liable with it, the appellate court noted that under the law, a private employment agency shall assume all responsibilities for the implementation of the contract of employment of an overseas worker, hence, it can be sued jointly and severally with the foreign principal for any violation of the recruitment agreement or contract of employment. ATcaHS As to Ikdal's liability, the appellate court held that under Sec. 10 of Republic Act No. 8042, the "Migrant and Overseas Filipinos' Act of 1995," corporate officers, directors and partners of a recruitment agency may themselves be jointly and solidarily liable with the recruitment agency for money claims and damages awarded to overseas workers. Petitioners' motion for reconsideration having been denied by the appellate court by Resolution 7 of June 27, 2007, the present petition for review on certiorari was filed. Petitioners maintain that they should not be held liable because respondent's employment contract specifically stipulates that her employment shall be governed by the Civil Service Law and Regulations of Kuwait. They thus conclude that it was patent error for the labor tribunals and the appellate court to apply the Labor Code provisions governing probationary employment in deciding the present case.

Further, petitioners argue that even the Philippine Overseas Employment Act (POEA) Rules relative to master employment contracts (Part III, Sec. 2 of the POEA Rules and Regulations) accord respect to the "customs, practices, company policies and labor laws and legislation of the host country." Finally, petitioners posit that assuming arguendo that Philippine labor laws are applicable, given that the foreign principal is a government agency which is immune from suit, as in fact it did not sign any document agreeing to be held jointly and solidarily liable, petitioner ATCI cannot likewise be held liable, more so since the Ministry's liability had not been judicially determined as jurisdiction was not acquired over it. The petition fails. Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of Overseas Filipino Workers (OFWs) which it deploys abroad by the mere expediency of claiming that its foreign principal is a government agency clothed with immunity from suit, or that such foreign principal's liability must first be established before it, as agent, can be held jointly and solidarily liable. In providing for the joint and solidary liability of private recruitment agencies with their foreign principals, Republic Act No. 8042 precisely affords the OFWs with a recourse and assures them of immediate and sufficient payment of what is due them. Skippers United Pacific v. Maguad 8 explains: DHEACI . . . [T]he obligations covenanted in the recruitment agreement entered into by and between the local agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted. (emphasis supplied) The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate the plight of the working class. 9 Verily, to allow petitioners to simply invoke the immunity from suit of its foreign principal or to wait for the judicial determination of the foreign principal's liability before petitioner can be held liable renders the law on joint and solidary liability inutile. As to petitioners' contentions that Philippine labor laws on probationary employment are not applicable since it was expressly provided in respondent's employment contract, which she voluntarily entered into, that the terms of her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and Regulations as in fact POEA Rules accord respect to such rules, customs and practices of the host country, the same was not substantiated. Indeed, a contract freely entered into is considered the law between the parties who can establish stipulations, clauses, terms and conditions as they may deem convenient, including the laws which they wish to govern their respective obligations, as long as they are not contrary to law, morals, good customs, public order or public policy. It is hornbook principle, however, that the party invoking the application of a foreign law has the burden of proving the law, under the doctrine of processual presumption which, in this case, petitioners failed to discharge. The Court's ruling in EDIStaffbuilders Int'l. v. NLRC 10 illuminates: In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern matters not provided for in the contract (e.g., specific causes for termination, termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of Gran. HcACTE In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law. Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the International Law doctrine of presumed-identity approach or processual presumption comes into play. Where a foreign law is not pleaded or, even if

pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, we apply Philippine labor laws in determining the issues presented before us. (emphasis and underscoring supplied) The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: SEC. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (emphasis supplied) SEC. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. TAaHIE To prove the Kuwaiti law, petitioners submitted the following: MOA between respondent and the Ministry, as represented by ATCI, which provides that the employee is subject to a probationary period of one (1) year and that the host country's Civil Service Laws and Regulations apply; a translated copy 11 (Arabic to English) of the termination letter to respondent stating that she did not pass the probation terms, without specifying the grounds therefor, and a translated copy of the certificate of termination, 12 both of which documents were certified by Mr. Mustapha Alawi, Head of the Department of Foreign AffairsOffice of Consular Affairs Inslamic Certification and Translation Unit; and respondent's letter 13 of reconsideration to the Ministry, wherein she noted that in her first eight (8) months of employment, she was given a rating of "Excellent" albeit it changed due to changes in her shift of work schedule. These documents, whether taken singly or as a whole, do not sufficiently prove that respondent was validly terminated as a probationary employee under Kuwaiti civil service laws. Instead of submitting a copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required under the Rules, what petitioners submitted were mere certifications attesting only to the correctness of the translations of the MOA and the termination letter which does not prove at all that Kuwaiti civil service laws differ from Philippine laws and that under such Kuwaiti laws, respondent was validly terminated. Thus the subject certifications read: xxx xxx xxx

This is to certify that the herein attached translation/s from Arabic to English/Tagalog and or vice versa was/were presented to this Office for review and certification and the same was/were found to be in order. This Office, however, assumes no responsibility as to the contents of the document/s. This certification is being issued upon request of the interested party for whatever legal purpose it may serve. (emphasis supplied) Respecting Ikdal's joint and solidary liability as a corporate officer, the same is in order too following the express provision of R.A. 8042 on money claims, viz.: SEC. 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual moral, exemplary and other forms of damages. cHDAIS The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition

precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. (emphasis and underscoring supplied) WHEREFORE, the petition is DENIED. SO ORDERED.

[G.R. No. 185582. February 29, 2012.] TUNA PROCESSING, INC., petitioner, vs. PHILIPPINE KINGFORD, INC., respondent. DECISION PEREZ, J p: Can a foreign corporation not licensed to do business in the Philippines, but which collects royalties from entities in the Philippines, sue here to enforce a foreign arbitral award? CHcETA In this Petition for Review on Certiorari under Rule 45, 1 petitioner Tuna Processing, Inc. (TPI), a foreign corporation not licensed to do business in the Philippines, prays that the Resolution 2 dated 21 November 2008 of the Regional Trial Court (RTC) of Makati City be declared void and the case be remanded to the RTC for further proceedings. In the assailed Resolution, the RTC dismissed petitioner's Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award 3 against respondent Philippine Kingford, Inc. (Kingford), a corporation duly organized and existing under the laws of the Philippines, 4 on the ground that petitioner lacked legal capacity to sue. 5 The Antecedents On 14 January 2003, Kanemitsu Yamaoka (hereinafter referred to as the "licensor"), co-patentee of U.S. Patent No. 5,484,619, Philippine Letters Patent No. 31138, and Indonesian Patent No. ID0003911 (collectively referred to as the "Yamaoka Patent"), 6 and five (5) Philippine tuna processors, namely, Angel Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources, Santa Cruz Seafoods, Inc., and respondent Kingford (collectively referred to as the "sponsors"/"licensees") 7 entered into a Memorandum of Agreement (MOA), 8 pertinent provisions of which read: 1. Background and objectives. The Licensor, co-owner of U.S. Patent No. 5,484,619, Philippine Patent No. 31138, and Indonesian Patent No. ID0003911 . . . wishes to form an alliance with Sponsors for purposes of enforcing his three aforementioned patents, granting licenses under those patents, and collecting royalties. TcIaHC The Sponsors wish to be licensed under the aforementioned patents in order to practice the processes claimed in those patents in the United States, the Philippines, and Indonesia, enforce those patents and collect royalties in conjunction with Licensor. xxx xxx xxx

4. Establishment of Tuna Processors, Inc. The parties hereto agree to the establishment of Tuna Processors, Inc. ("TPI"), a corporation established in the State of California, in order to implement the objectives of this Agreement. 5. Bank account. TPI shall open and maintain bank accounts in the United States, which will be used exclusively to deposit funds that it will collect and to disburse cash it will be obligated to spend in connection with the implementation of this Agreement. 6. Ownership of TPI. TPI shall be owned by the Sponsors and Licensor. Licensor shall be assigned one share of TPI for the purpose of being elected as member of the board of directors. The remaining shares of TPI shall be held by the Sponsors according to their respective equity shares. 9 xxx xxx xxx

The parties likewise executed a Supplemental Memorandum of Agreement 10 dated 15 January 2003 and an Agreement to Amend Memorandum of Agreement 11 dated 14 July 2003. Due to a series of events not mentioned in the petition, the licensees, including respondent Kingford, withdrew from petitioner TPI and correspondingly reneged on their obligations. 12 Petitioner submitted the dispute for arbitration before the International Centre for Dispute Resolution in the State of California, United States and won the case against respondent. 13 Pertinent portions of the award read: THEDcS

13.1 Within thirty (30) days from the date of transmittal of this Award to the Parties, pursuant to the terms of this award, the total sum to be paid by RESPONDENT KINGFORD to CLAIMANT TPI, is the sum of ONE MILLION SEVEN HUNDRED FIFTY THOUSAND EIGHT HUNDRED FORTY SIX DOLLARS AND TEN CENTS ($1,750,846.10). (A) For breach of the MOA by not paying past due assessments, RESPONDENT KINGFORD shall pay CLAIMANT the total sum of TWO HUNDRED TWENTY NINE THOUSAND THREE HUNDRED AND FIFTY FIVE DOLLARS AND NINETY CENTS ($229,355.90) which is 20% of MOA assessments since September 1, 2005[;] (B) For breach of the MOA in failing to cooperate with CLAIMANT TPI in fulfilling the objectives of the MOA, RESPONDENT KINGFORD shall pay CLAIMANT the total sum of TWO HUNDRED SEVENTY ONE THOUSAND FOUR HUNDRED NINETY DOLLARS AND TWENTY CENTS ($271,490.20)[;] 14 and (C) For violation of THE LANHAM ACT and infringement of the YAMAOKA 619 PATENT, RESPONDENT KINGFORD shall pay CLAIMANT the total sum of ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO CENTS ($1,250,000.00). . .. xxx xxx xxx 15

To enforce the award, petitioner TPI filed on 10 October 2007 a Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award before the RTC of Makati City. The petition was raffled to Branch 150 presided by Judge Elmo M. Alameda. At Branch 150, respondent Kingford filed a Motion to Dismiss. 16 After the court denied the motion for lack of merit, 17 respondent sought for the inhibition of Judge Alameda and moved for the reconsideration of the order denying the motion. 18 Judge Alameda inhibited himself notwithstanding "[t]he unfounded allegations and unsubstantiated assertions in the motion." 19 Judge Cedrick O. Ruiz of Branch 61, to which the case was re-raffled, in turn, granted respondent's Motion for Reconsideration and dismissed the petition on the ground that the petitioner lacked legal capacity to sue in the Philippines. 20 Petitioner TPI now seeks to nullify, in this instant Petition for Review on Certiorari under Rule 45, the order of the trial court dismissing its Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award. Issue The core issue in this case is whether or not the court a quo was correct in so dismissing the petition on the ground of petitioner's lack of legal capacity to sue. EAcHCI Our Ruling The petition is impressed with merit. The Corporation Code of the Philippines expressly provides: Sec. 133. Doing business without a license. No foreign corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws. It is pursuant to the aforequoted provision that the court a quo dismissed the petition. Thus: Herein plaintiff TPI's "Petition, etc." acknowledges that it "is a foreign corporation established in the State of California" and "was given the exclusive right to license or sublicense the Yamaoka Patent" and "was assigned the exclusive right to enforce the said patent and collect corresponding royalties" in the Philippines. TPI likewise admits that it does not have a license to do business in the Philippines. There is no doubt, therefore, in the mind of this Court that TPI has been doing business in the Philippines, but sans a license to do so issued by the concerned government agency of the Republic of the Philippines, when it collected royalties from "five (5) Philippine tuna processors[,] namely[,] Angel Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources,

Santa Cruz Seafoods, Inc. and respondent Philippine Kingford, Inc." This being the real situation, TPI cannot be permitted to maintain or intervene in any action, suit or proceedings in any court or administrative agency of the Philippines." A priori, the "Petition, etc." extant of the plaintiff TPI should be dismissed for it does not have the legal personality to sue in the Philippines. 21 The petitioner counters, however, that it is entitled to seek for the recognition and enforcement of the subject foreign arbitral award in accordance with Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004), 22 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards drafted during the United Nations Conference on International Commercial Arbitration in 1958 (New York Convention), and the UNCITRAL Model Law on International Commercial Arbitration (Model Law), 23 as none of these specifically requires that the party seeking for the enforcement should have legal capacity to sue. It anchors its argument on the following: cCSHET In the present case, enforcement has been effectively refused on a ground not found in the [Alternative Dispute Resolution Act of 2004], New York Convention, or Model Law. It is for this reason that TPI has brought this matter before this most Honorable Court, as it [i]s imperative to clarify whether the Philippines' international obligations and State policy to strengthen arbitration as a means of dispute resolution may be defeated by misplaced technical considerations not found in the relevant laws. 24 Simply put, how do we reconcile the provisions of the Corporation Code of the Philippines on one hand, and the Alternative Dispute Resolution Act of 2004, the New York Convention and the Model Law on the other? In several cases, this Court had the occasion to discuss the nature and applicability of the Corporation Code of the Philippines, a general law, viz--viz other special laws. Thus, in Koruga v. Arcenas, Jr., 25 this Court rejected the application of the Corporation Code and applied the New Central Bank Act. It ratiocinated: Koruga's invocation of the provisions of the Corporation Code is misplaced. In an earlier case with similar antecedents, we ruled that: "The Corporation Code, however, is a general law applying to all types of corporations, while the New Central Bank Act regulates specifically banks and other financial institutions, including the dissolution and liquidation thereof. As between a general and special law, the latter shall prevail generalia specialibus non derogant." (Emphasis supplied) 26 Further, in the recent case of Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, 27 this Court held: HETDAC Without doubt, the Corporation Code is the general law providing for the formation, organization and regulation of private corporations. On the other hand, RA 6657 is the special law on agrarian reform. As between a general and special law, the latter shall prevail generalia specialibus non derogant. 28 Following the same principle, the Alternative Dispute Resolution Act of 2004 shall apply in this case as the Act, as its title An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the Philippines and to Establish the Office for Alternative Dispute Resolution, and for Other Purposes would suggest, is a law especially enacted "to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes." 29 It specifically provides exclusive grounds available to the party opposing an application for recognition and enforcement of the arbitral award. 30 Inasmuch as the Alternative Dispute Resolution Act of 2004, a municipal law, applies in the instant petition, we do not see the need to discuss compliance with international obligations under the New York Convention and the Model Law. After all, both already form part of the law. DaIACS In particular, the Alternative Dispute Resolution Act of 2004 incorporated the New York Convention in the Act by specifically providing: SEC. 42. Application of the New York Convention. The New York Convention shall govern the recognition and enforcement of arbitral awards covered by the said Convention.

xxx

xxx

xxx

SEC. 45. Rejection of a Foreign Arbitral Award. A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the New York Convention. Any other ground raised shall be disregarded by the regional trial court. It also expressly adopted the Model Law, to wit: Sec. 19. Adoption of the Model Law on International Commercial Arbitration. International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration (the "Model Law") adopted by the United Nations Commission on International Trade Law on June 21, 1985 . . . ." Now, does a foreign corporation not licensed to do business in the Philippines have legal capacity to sue under the provisions of the Alternative Dispute Resolution Act of 2004? We answer in the affirmative. Sec. 45 of the Alternative Dispute Resolution Act of 2004 provides that the opposing party in an application for recognition and enforcement of the arbitral award may raise only those grounds that were enumerated under Article V of the New York Convention, to wit: Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: caTIDE (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) (b) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or The recognition or enforcement of the award would be contrary to the public policy of that country.

Clearly, not one of these exclusive grounds touched on the capacity to sue of the party seeking the recognition and enforcement of the award. Pertinent provisions of the Special Rules of Court on Alternative Dispute Resolution, 31 which was promulgated by the Supreme Court, likewise support this position. CAcEaS Rule 13.1 of the Special Rules provides that "[a]ny party to a foreign arbitration may petition the court to recognize and enforce a foreign arbitral award." The contents of such petition are enumerated in Rule 13.5. 32 Capacity to sue is not

included. Oppositely, in the Rule on local arbitral awards or arbitrations in instances where "the place of arbitration is in the Philippines," 33 it is specifically required that a petition "to determine any question concerning the existence, validity and enforceability of such arbitration agreement" 34 available to the parties before the commencement of arbitration and/or a petition for "judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining its jurisdiction" 35 after arbitration has already commenced should state "[t]he facts showing that the persons named as petitioner or respondent have legal capacity to sue or be sued." 36 Indeed, it is in the best interest of justice that in the enforcement of a foreign arbitral award, we deny availment by the losing party of the rule that bars foreign corporations not licensed to do business in the Philippines from maintaining a suit in our courts. When a party enters into a contract containing a foreign arbitration clause and, as in this case, in fact submits itself to arbitration, it becomes bound by the contract, by the arbitration and by the result of arbitration, conceding thereby the capacity of the other party to enter into the contract, participate in the arbitration and cause the implementation of the result. Although not on all fours with the instant case, also worthy to consider is the wisdom of then Associate Justice Flerida Ruth P. Romero in her Dissenting Opinion in Asset Privatization Trust v. Court of Appeals, 37 to wit: . . . Arbitration, as an alternative mode of settlement, is gaining adherents in legal and judicial circles here and abroad. If its tested mechanism can simply be ignored by an aggrieved party, one who, it must be stressed, voluntarily and actively participated in the arbitration proceedings from the very beginning, it will destroy the very essence of mutuality inherent in consensual contracts. 38 Clearly, on the matter of capacity to sue, a foreign arbitral award should be respected not because it is favored over domestic laws and procedures, but because Republic Act No. 9285 has certainly erased any conflict of law question. IAEcCT Finally, even assuming, only for the sake of argument, that the court a quo correctly observed that the Model Law, not the New York Convention, governs the subject arbitral award, 39 petitioner may still seek recognition and enforcement of the award in Philippine court, since the Model Law prescribes substantially identical exclusive grounds for refusing recognition or enforcement. 40 Premises considered, petitioner TPI, although not licensed to do business in the Philippines, may seek recognition and enforcement of the foreign arbitral award in accordance with the provisions of the Alternative Dispute Resolution Act of 2004. II The remaining arguments of respondent Kingford are likewise unmeritorious. First. There is no need to consider respondent's contention that petitioner TPI improperly raised a question of fact when it posited that its act of entering into a MOA should not be considered "doing business" in the Philippines for the purpose of determining capacity to sue. We reiterate that the foreign corporation's capacity to sue in the Philippines is not material insofar as the recognition and enforcement of a foreign arbitral award is concerned. Second. Respondent cannot fault petitioner for not filing a motion for reconsideration of the assailed Resolution dated 21 November 2008 dismissing the case. We have, time and again, ruled that the prior filing of a motion for reconsideration is not required in certiorari under Rule 45. 41 Third. While we agree that petitioner failed to observe the principle of hierarchy of courts, which, under ordinary circumstances, warrants the outright dismissal of the case, 42 we opt to relax the rules following the pronouncement in Chua v. Ang, 43 to wit: IEaATD [I]t must be remembered that [the principle of hierarchy of courts] generally applies to cases involving conflicting factual allegations. Cases which depend on disputed facts for decision cannot be brought immediately before us as we are not triers of facts. 44 A strict application of this rule may be excused when the reason behind the rule is not present in a case, as in the present case, where the issues are not factual but purely legal. In these types of questions, this Court has the ultimate say so that we merely abbreviate the review process if we, because of the unique circumstances of a case, choose to hear and decide the legal issues outright. 45

Moreover, the novelty and the paramount importance of the issue herein raised should be seriously considered. 46 Surely, there is a need to take cognizance of the case not only to guide the bench and the bar, but if only to strengthen arbitration as a means of dispute resolution, and uphold the policy of the State embodied in the Alternative Dispute Resolution Act of 2004, to wit: Sec. 2. Declaration of Policy. It is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. . . . Fourth. As regards the issue on the validity and enforceability of the foreign arbitral award, we leave its determination to the court a quo where its recognition and enforcement is being sought. CIHTac Fifth. Respondent claims that petitioner failed to furnish the court of origin a copy of the motion for time to file petition for review on certiorari before the petition was filed with this Court. 47 We, however, find petitioner's reply in order. Thus: 26. Admittedly, reference to "Branch 67" in petitioner TPI's "Motion for Time to File a Petition for Review on Certiorari under Rule 45" is a typographical error. As correctly pointed out by respondent Kingford, the order sought to be assailed originated from Regional Trial Court, Makati City, Branch 61. 27. . . . Upon confirmation with the Regional Trial Court, Makati City, Branch 61, a copy of petitioner TPI's motion was received by the Metropolitan Trial Court, Makati City, Branch 67. On 8 January 2009, the motion was forwarded to the Regional Trial Court, Makati City, Branch 61. 48 cHECAS All considered, petitioner TPI, although a foreign corporation not licensed to do business in the Philippines, is not, for that reason alone, precluded from filing the Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award before a Philippine court. WHEREFORE, the Resolution dated 21 November 2008 of the Regional Trial Court, Branch 61, Makati City in Special Proceedings No. M-6533 is hereby REVERSED and SET ASIDE. The case is REMANDED to Branch 61 for further proceedings. STEacI SO ORDERED.

[G.R. No. L-23678. June 6, 1967.] TESTATE ESTATE OF AMOS G. BELLIS, deceased, PEOPLE'S BANK & TRUST COMPANY, executor, MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors-appellant. Paredes, Poblador, Cruz & Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J .R. Balonkita for appellees People's Bank & Trust Company. Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman. SYLLABUS 1. PRIVATE INTERNATIONAL LAW; LAW APPLICABLE WITH REFERENCE TO THE INTESTATE AND TESTAMENTARY SUCCESSION OF AN ALIEN; SCOPE OF ARTS. 16 (2) AND 1039, CIVIL CODE. Article 16, par. 2, and Article 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. 2. ID.; LEGITIMATES; FOREIGN NATIONALS. It is evident that whatever public policy or good customs may be involved in our system of legitimates, Congress has not intended to extend the same to the succession of foreign nationals. For its has chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. 3. ID.; ID.; ID.; FOREIGNER'S WILL; CASE AT BAR. Appellants point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in the Miciano vs. Brimo (50 Phil., 867) case, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimates. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. DECISION BENGZON, J.P., J p: This is a direct appeal to us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein. The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria

Cristina Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120.000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar vs. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflict of law rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that "Art 16. Real property as well as personal property is subject to the law of the country where it is situated. "However", intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person

whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." "Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent."

Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating that "Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or judgments promulgated, or by determinations or conventions agreed upon in a foreign country." prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellant. So ordered.

[G.R. No. L-23145. November 29, 1968.] TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary administrator-appellee, vs. BENGUET CONSOLIDATED, INC., oppositor-appellant. Cirilo F. Asperillo, Jr., for ancillary administrator-appellee. Ross, Salcedo, Del Rosario, Bito & Misa for oppositor-appellant. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; WHEN ANCILLARY ADMINISTRATION IS PROPER. The ancillary administration is proper, whenever a person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of the deceased liable for his individual debts or to be distributed among his heirs (Johannes v. Harvey, 43 Phil. 175). Ancillary administration is necessary or the reason for such administration is because a grant of administration does not ex proprio vigore have any effect beyond the limits of the country in which it is granted. Hence, an administrator appointed in a foreign state has no authority in the Philippines. 2. ID.; ID.; ID.; SCOPE OF POWER AND AUTHORITY OF AN ANCILLARY ADMINISTRATOR. No one could dispute the power of an ancillary administrator to gain control and possession of all assets of the decedent within the jurisdiction of the Philippines. Such a power is inherent in his duty to settle her estate and satisfy the claims of local creditors (Rule 84, Sec. 3, Rules of Court. Cf Pavia v. De la Rosa, 8 Phil. 70; Liwanag v. Reyes, L-19159, Sept. 29, 1964; Ignacio v. Elchico, L-18937, May 16, 1967; etc.). It is a general rule universally recognized that administration, whether principal or ancillary, certainly extends to the assets of a decedent found within the state or country where it was granted, the corollary being "that an administrator appointed in one state or country has no power over property in another state or country" (Leon and Ghezzi v. Manufacturers Life Ins. Co., 90 Phil. 459). 3. ID.; ID.; ID.; ID.; CASE AT BAR. Since, in the case at bar, there is a refusal, persistently adhered to by the domiciliary administrator in New York, to deliver the shares of stocks of appellant corporation owned by the decedent to the ancillary administrator in the Philippines, there was nothing unreasonable or arbitrary in considering them as lost and requiring the appellant to issue new certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator could be discharged and his responsibility fulfilled. Any other view would result in the compliance to a valid judicial order being made to depend on the uncontrolled discretion of a party or entity. 4. CORPORATION LAW; CORPORATIONS; CONCEPT AND NATURE. A corporation is an artificial being created by operation of law (Sec. 2, Act No. 1459). A corporation as known to Philippine jurisprudence is a creature without any existence until it has received the imprimatur of the state acting according to law. It is logically inconceivable therefore that it will have rights and privileges of a higher priority than that of its creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs, certainly not excluding the judiciary, whenever called upon to do so. A corporation is not in fact and in reality a person, but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial person distinct and separate from its individual stockholders (1 Fletcher, Cyclopedia Corporations, pp. 19-20) DECISION FERNANDO, J p: Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust Company of New York, United States of America, of the estate of the deceased Idonah Slade Perkins, who died in New York City on March 27, 1960, to surrender to the ancillary administrator in the Philippines the stock certificates owned by her in a Philippine corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of local creditors, the lower court, then presided by the Honorable Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After considering the motion of the ancillary administrator, dated February 11, 1964, as well as the opposition filed by the Benguet Consolidated, Inc., the Court hereby (1) considers as lost for all purposes in connection with the administration and liquidation of the Philippine estate of Idonah Slade Perkins the stock certificates covering the 33,002 shares of stock standing in her name in the books of the Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs said corporation to issue new certificates in lieu

thereof, the same to be delivered by said corporation to either the incumbent ancillary administrator or to the Probate Division of this Court." 1 From such an order, an appeal was taken to this Court not by the domiciliary administrator, the County Trust Company of New York, but by the Philippine corporation, the Benguet Consolidated, Inc. The appeal cannot possibly prosper. The order challenged represents a response and expresses a policy, to paraphrase Frankfurter, arising out of a specific problem, addressed to the attainment of specific ends by the use of specific remedies, with full and ample support from legal doctrines of weight and significance. The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah Slade Perkins, who died on March 27, 1960 in New York City, left among others, two stock certificates covering 33,002 shares of appellant, the certificates being in the possession of the County Trust Company of New York, which as noted, is the domiciliary administrator of the estate of the deceased 2 Then came this portion of the appellant's brief: "On August 12, 1960, Prospero Sanidad instituted ancillary administration proceedings in the Court of First Instance of Manila; Lazaro A. Marquez was appointed ancillary administrator; and on January 22, 1963, he was substituted by the appellee Renato D. Tayag. A dispute arose between the domiciliary administrator in New York and the ancillary administrator in the Philippines as to which of them was entitled to the possession of the stock certificates in question. On January 27, 1964, the Court of First Instance of Manila ordered the domiciliary administrator, County Trust Company, to `produce and deposit' them with the ancillary administrator or with the Clerk of Court. The domiciliary administrator did not comply with the order, and on February 11, 1964, the ancillary administrator petitioned the court to "issue an order declaring the certificate or certificates of stocks covering the 33,002 shares issued in the name of Idonah Slade Perkins by Benguet Consolidated, Inc. be declared [or] considered as lost." 3 It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far as it is concerned as to "who is entitled to the possession of the stock certificates in question; appellant opposed the petition of the ancillary administrator because the said stock certificates are in existence, they are today in the possession of the domiciliary administrator, the County Trust Company, in New York, U.S.A.. . . ." 4 It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or considered as lost. Moreover, it would allege that there was a failure to observe certain requirements of its by-laws before new stock certificates could be issued. Hence, its appeal. As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order constitutes an emphatic affirmation of judicial authority sought to be emasculated by the willful conduct of the domiciliary administrator in refusing to accord obedience to a court decree. How, then, can this order be stigmatized as illegal? As is true of many problems confronting the judiciary, such a response was called for by the realities of the situation. What cannot be ignored is that conduct bordering on willful defiance, if it had not actually reached it, cannot without undue loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in flexibility and resourcefulness as to preclude such a solution, the more so as deeper reflection would make clear its being buttressed by indisputable principles and supported by the strongest policy considerations. It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no less than that of the country. Through this challenged order, there is thus dispelled the atmosphere of contingent frustration brought about by the persistence of the domiciliary administrator to hold on to the stock certificates after it had, as admitted, voluntarily submitted itself to the jurisdiction of the lower court by entering its appearance through counsel on June 27, 1963, and filing a petition for relief from a previous order of March 15, 1963. Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was decreed. For without it, what it had been decided would be set at naught and nullified. Unless such a blatant disregard by the domiciliary administrator, with residence abroad, of what was previously ordained by a court order could be thus remedied, it would have entailed, insofar as this matter was concerned, not a partial but a well-nigh complete paralysis of judicial authority. 1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary administrator to gain control and possession of all assets of the decedent within the jurisdiction of the Philippines. Nor could it. Such a power is inherent in his duty to settle her estate and satisfy the claims of local creditors. 5 As Justice Tuason speaking for this Court made clear, it is a "general rule universally recognized" that administration, whether principal or ancillary, certainly "extends to the assets of a

decedent found within the state or country where it was granted," the corollary being "that an administrator appointed in one state or country has no power over property in another state or country." 6 It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set forth by Justice Malcolm. Thus: "It is often necessary to have more than one administration of an estate. When a person dies intestate owning property in the country of his domicile as well as in a foreign country, administration is had in both countries. That which is granted in the jurisdiction of decedent's last domicile is termed the principal administration, while any other administration is termed the ancillary administration. The reason for the latter is because a grant of administration does not ex proprio vigore have any effect beyond the limits of the country in which it is granted. Hence, an administrator appointed in a foreign state has no authority in the [Philippines]. The ancillary administration is proper, whenever a person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of the deceased liable for his individual debts or to be distributed among his heirs." 7 It would follow then that the authority of the probate court to require that ancillary administrator's right to "the stock certificates covering the 33,002 shares .. standing in her name in the books of [appellant] Benguet Consolidated, Inc.." be respected is equally beyond question. For appellant is a Philippine corporation owing full allegiance and subject to the unrestricted jurisdiction of local courts. Its shares of stock cannot therefore be considered in any wise as immune from lawful court orders. Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue 8 finds application. "In the instant case, the actual situs of the shares of stock is in the Philippines, the corporation being domiciled [here]." To the force of the above undeniable proposition, not even appellant is insensible. It does not dispute it. Nor could it successfully do so even if it were so minded. 2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the legality of the challenged order, how does appellant Benguet Consolidated, Inc. propose to carry the extremely heavy burden of persuasion of precisely demonstrating the contrary? It would assign as the basic error allegedly committed by the lower court its "considering as lost the stock certificates covering 33,002 shares of Benguet belonging to the deceased Idonah Slade Perkins, . . ." 9 More specifically, appellant would stress that the "lower court could not `consider as lost' the stock certificates in question when, as a matter of fact, his Honor the trial Judge knew, and does know, and it is admitted by the appellee, that the said stock certificates are in existence and are today in the possession of the domiciliary administrator in New York." 10 There may be an element of fiction in the above view of the lower court. That certainly does not suffice to call for the reversal of the appealed order. Since there is a refusal, persistently adhered to by the domiciliary administrator in New York, to deliver the shares of stocks of appellant corporation owned by the decedent to the ancillary administrator in the Philippines, there was nothing unreasonable or arbitrary in considering them as lost and requiring the appellant to issue new certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator could be discharged and his responsibility fulfilled. Any other view would result in the compliance to a valid judicial order being made to depend on the uncontrolled discretion of the party or entity, in this case domiciled abroad, which thus far has shown the utmost persistence in refusing to yield obedience. Certainly, appellant would not be heard to contend in all seriousness that a judicial decree could be treated as a mere scrap of paper, the court issuing it being powerless to remedy its flagrant disregard. It may be admitted of course that such alleged loss as found by the lower court did not correspond exactly with the facts. To be more blunt, the quality of truth may be lacking in such a conclusion arrived at. It is to be remembered however, again to borrow from Frankfurter, "that fictions which the law may rely upon in the pursuit of legitimate ends have played an important part in its development." 11 Speaking of the common law in its earlier period, Cardozo could state that fictions "were devices to advance the ends of justice, [even if] clumsy and at times offensive." 12 Some of them have persisted even to the present, that eminent jurist, noting "the quasi contract, the adopted child, the constructive trust, all of flourishing vitality, to attest the empire of `as if' today." 13 He likewise noted "a class of fictions of another order, the fiction which is a working tool of thought, but which at times hides itself from view till reflection and analysis have brought it to the light." 14 What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in the law. There should be then on the part of the appellant a further refinement in the catholicity of its condemnation of such judicial technique. If ever

an occasion did call for the employment of a legal fiction to put an end to the anomalous situation of a valid judicial order being disregarded with apparent impunity, this is it. What is thus most obvious is that this particular alleged error does not carry persuasion. 3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking one of the provisions of its by-laws which would set forth the procedure to be followed in case of a lost, stolen or destroyed stock certificate; it would stress that in the event of a contest or the pendency of an action regarding ownership of such certificate or certificates of stock allegedly lost, stolen or destroyed, the issuance of a new certificate or certificates would await the "final decision by [a] court regarding the ownership [thereof]." 15 Such reliance is misplaced. In the first place, there is no such occasion to apply such a by-law. It is admitted that the foreign domiciliary administrator did not appeal from the order now in question. Moreover, there is likewise the express admission of appellant that as far as it is concerned, "it is immaterial . . . who is entitled to the possession of the stock certificates . . ." Even if such were not the case, it would be a legal absurdity to impart to such a provision conclusiveness and finality. Assuming that a contrariety exists between the above by-law and the command of a court decree, the latter is to be followed. It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which, however, the judiciary must yield deference, when appropriately invoked and deemed applicable. It would be most highly unorthodox, however, if a corporate by-law would be accorded such a high estate in the jural order that a court must not only take note of it but yield to its alleged controlling force. The fear of appellant of a contingent liability with which it could be saddled unless the appealed order be set aside for its inconsistency with one of its by-laws does not impress us. Its obedience to a lawful court order certainly constitutes a valid defense, assuming that such apprehension of a possible court action against it could possibly materialize. Thus far, nothing in the circumstances as they have developed gives substance to such a fear. Gossamer possibilities of a future prejudice to appellant do not suffice to nullify the lawful exercise of judicial authority. 4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with implications at war with the basic postulates of corporate theory. We start with the undeniable premise that, "a corporation is an artificial being created by operation of law . . ." 16 It owes its life to the state, its birth being purely dependent on its will. As Berle so aptly stated: "Classically, a corporation was conceived as an artificial person, owing its existence through creation by a sovereign power. 17 As a matter of fact, the statutory language employed owes much to Chief Justice Marshall, who in the Dartmouth College decision, defined a corporation precisely as "an artificial being invisible, intangible, and existing only in contemplation of law." 18 The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and in reality a person, but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial person distinct and separate from its individual stockholders.. It owes its existence to law. It is an artificial person created by law for certain specific purposes, the extent of whose existence, powers and liberties is fixed by its charter." 19 Dean Pound's terse summary, a juristic person, resulting from an association of human beings granted legal personality by the state, puts the matter neatly. 20 There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from Friedmann, "is the reality of the group as a social and legal entity, independent of state recognition and concession." 21 A corporation as known to Philippine jurisprudence is a creature without any existence until it has received the imprimatur of the state acting according to law. It is logically inconceivable therefore that it will have rights and privileges of a higher priority than that of its creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs, certainly not excluding the judiciary, whenever called upon to do so. As a matter of fact, a corporation once it comes into being, following American law still of persuasive authority in our jurisdiction, comes more often within the ken of the judiciary than the other two coordinate branches. It institutes the appropriate Court Action to enforce its rights. Correlatively, it is not immune from judicial control in those instances, where a duty under the law as ascertained in an appropriate legal proceeding is cast upon it. To assert that it can choose which court order to follow and which to disregard is to confer upon it not autonomy which may be conceded but license which cannot be tolerated. It is to argue that it may, when so minded, overrule the state, the source of

its very existence; it is to contend that what any of its governmental organs may lawfully require could be ignored at will. So extravagant a claim cannot possibly merit approval. 5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was shown that in a guardianship proceeding then pending in a lower court, the United States Veterans Administration filed a motion for the refund of a certain sum of money paid to the minor under guardianship, alleging that the lower court had previously granted its petition to consider the deceased father as not entitled to guerilla benefits according to a determination arrived at by its main office in the United States. The motion was denied. In seeking a reconsideration of such order, the Administrator relied on an American federal statute making his decisions "final and conclusive on all questions of law or fact" precluding any other American official to examine the matter anew, "except a judge or judges of the United States court." 23 Reconsideration was denied, and the Administrator appealed. In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion that the appeal should be rejected. The provisions of the U.S. Code, invoked by the appellant, make the decisions of U.S. Veteran Administrator final and conclusive when made on claims properly submitted to him for resolution; but they are not applicable to the present case, where the Administrator is not acting as a judge but as a litigant. There is a great difference between actions against the Administrator (which must be filed strictly in accordance with the conditions that are imposed by the Veterans' Act, including the exclusive review by United States courts), and those actions where the Veterans' Administrator seeks a remedy from our courts and submits to their jurisdiction by filing actions therein. Our attention has not been called to any law or treaty that would make the findings of the Veterans' Administrator, in actions where he is a party, conclusive on our courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere subordinate instrumentalities of the Veterans' Administrator." It is bad enough as the Viloria decision made patent for our judiciary to accept as final and conclusive, determinations made by foreign governmental agencies. It is infinitely worse if through the absence of any coercive power by our courts over juridical persons within our jurisdiction, the force and effectivity of their orders could be made to depend on the whim or caprice of alien entities. It is difficult to imagine of a situation more offensive to the dignity of the bench or the honor of the country.

Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet Consolidated seems to be firmly committed as shown by its failure to accept the validity of the order complained of; it seeks its reversal. Certainly we must at all pains see to it that it does not succeed. The deplorable consequences attendant on appellant prevailing attest to the necessity of a negative response from us. That is what appellant will get. That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always easy to conjure extreme and even oppressive possibilities. That is not decisive. It does not settle the issue. What carries weight and conviction is the result arrived at, the just solution obtained, grounded in the soundest of legal doctrines and distinguished by its correspondence with what a sense of realism requires. For through the appealed order, the imperative requirement of justice according to law is satisfied and national dignity and honor maintained. WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First Instance, dated May 18, 1964, is affirmed. With costs against oppositor-appellant Benguet Consolidated, Inc. Makalintal, Zaldivar, and Capistrano, JJ., concur.

[G.R. No. 149177. November 23, 2007.] KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO., LTD., petitioners, vs. MINORU KITAMURA, respondent. DECISION NACHURA, J p: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the April 18, 2001 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 60827, and the July 25, 2001 Resolution 2 denying the motion for reconsideration thereof. HcTEaA On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd. (Nippon), a Japanese consultancy firm providing technical and management support in the infrastructure projects of foreign governments, 3 entered into an Independent Contractor Agreement (ICA) with respondent Minoru Kitamura, a Japanese national permanently residing in the Philippines. 4 The agreement provides that respondent was to extend professional services to Nippon for a year starting on April 1, 1999. 5 Nippon then assigned respondent to work as the project manager of the Southern Tagalog Access Road (STAR) Project in the Philippines, following the company's consultancy contract with the Philippine Government. 6 When the STAR Project was near completion, the Department of Public Works and Highways (DPWH) engaged the consultancy services of Nippon, on January 28, 2000, this time for the detailed engineering and construction supervision of the Bongabon-Baler Road Improvement (BBRI) Project. 7 Respondent was named as the project manager in the contract's Appendix 3.1. 8 On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general manager for its International Division, informed respondent that the company had no more intention of automatically renewing his ICA. His services would be engaged by the company only up to the substantial completion of the STAR Project on March 31, 2000, just in time for the ICA's expiry. 9 cDSAEI Threatened with impending unemployment, respondent, through his lawyer, requested a negotiation conference and demanded that he be assigned to the BBRI project. Nippon insisted that respondent's contract was for a fixed term that had already expired, and refused to negotiate for the renewal of the ICA. 10 As he was not able to generate a positive response from the petitioners, respondent consequently initiated on June 1, 2000 Civil Case No. 00-0264 for specific performance and damages with the Regional Trial Court of Lipa City. 11 For their part, petitioners, contending that the ICA had been perfected in Japan and executed by and between Japanese nationals, moved to dismiss the complaint for lack of jurisdiction. They asserted that the claim for improper pre-termination of respondent's ICA could only be heard and ventilated in the proper courts of Japan following the principles of lex loci celebrationis and lex contractus. 12 In the meantime, on June 20, 2000, the DPWH approved Nippon's request for the replacement of Kitamura by a certain Y. Kotake as project manager of the BBRI Project. 13 cHCIDE On June 29, 2000, the RTC, invoking our ruling in Insular Government v. Frank 14 that matters connected with the performance of contracts are regulated by the law prevailing at the place of performance, 15 denied the motion to dismiss. 16 The trial court subsequently denied petitioners' motion for reconsideration, 17 prompting them to file with the appellate court, on August 14, 2000, their first Petition for Certiorari under Rule 65 [docketed as CA-G.R. SP No. 60205]. 18 On August 23, 2000, the CA resolved to dismiss the petition on procedural grounds for lack of statement of material dates and for insufficient verification and certification against forum shopping. 19 An Entry of Judgment was later issued by the appellate court on September 20, 2000. 20

Aggrieved by this development, petitioners filed with the CA, on September 19, 2000, still within the reglementary period, a second Petition for Certiorari under Rule 65 already stating therein the material dates and attaching thereto the proper

verification and certification. This second petition, which substantially raised the same issues as those in the first, was docketed as CA-G.R. SP No. 60827. 21 DTESIA Ruling on the merits of the second petition, the appellate court rendered the assailed April 18, 2001 Decision 22 finding no grave abuse of discretion in the trial court's denial of the motion to dismiss. The CA ruled, among others, that the principle of lex loci celebrationis was not applicable to the case, because nowhere in the pleadings was the validity of the written agreement put in issue. The CA thus declared that the trial court was correct in applying instead the principle of lex loci solutionis. 23 Petitioners' motion for reconsideration was subsequently denied by the CA in the assailed July 25, 2001 Resolution. 24 Remaining steadfast in their stance despite the series of denials, petitioners instituted the instant Petition for Review on Certiorari 25 imputing the following errors to the appellate court: A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE TRIAL COURT VALIDLY EXERCISED JURISDICTION OVER THE INSTANT CONTROVERSY, DESPITE THE FACT THAT THE CONTRACT SUBJECT MATTER OF THE PROCEEDINGS A QUO WAS ENTERED INTO BY AND BETWEEN TWO JAPANESE NATIONALS, WRITTEN WHOLLY IN THE JAPANESE LANGUAGE AND EXECUTED IN TOKYO, JAPAN. aDICET B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE NEED TO REVIEW OUR ADHERENCE TO THE PRINCIPLE OF LEX LOCI SOLUTIONIS IN THE LIGHT OF RECENT DEVELOPMENT[S] IN PRIVATE INTERNATIONAL LAWS. 26 The pivotal question that this Court is called upon to resolve is whether the subject matter jurisdiction of Philippine courts in civil cases for specific performance and damages involving contracts executed outside the country by foreign nationals may be assailed on the principles of lex loci celebrationis, lex contractus, the "state of the most significant relationship rule," or forum non conveniens. However, before ruling on this issue, we must first dispose of the procedural matters raised by the respondent. Kitamura contends that the finality of the appellate court's decision in CA-G.R. SP No. 60205 has already barred the filing of the second petition docketed as CA-G.R. SP No. 60827 (fundamentally raising the same issues as those in the first one) and the instant petition for review thereof. cDEICH We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on account of the petition's defective certification of nonforum shopping, it was a dismissal without prejudice. 27 The same holds true in the CA's dismissal of the said case due to defects in the formal requirement of verification 28 and in the other requirement in Rule 46 of the Rules of Court on the statement of the material dates. 29 The dismissal being without prejudice, petitioners can re-file the petition, or file a second petition attaching thereto the appropriate verification and certification as they, in fact did and stating therein the material dates, within the prescribed period 30 in Section 4, Rule 65 of the said Rules. 31 The dismissal of a case without prejudice signifies the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissed action had not been commenced. In other words, the termination of a case not on the merits does not bar another action involving the same parties, on the same subject matter and theory. 32 Necessarily, because the said dismissal is without prejudice and has no res judicata effect, and even if petitioners still indicated in the verification and certification of the second certiorari petition that the first had already been dismissed on procedural grounds, 33 petitioners are no longer required by the Rules to indicate in their certification of non-forum shopping in the instant petition for review of the second certiorari petition, the status of the aforesaid first petition before the CA. In any case, an omission in the certificate of non-forum shopping about any event that will not constitute res judicata and litis pendentia, as in the present case, is not a fatal defect. It will not warrant the dismissal and nullification of the entire proceedings, considering that the evils sought to be prevented by the said certificate are no longer present. 34 CDEaAI The Court also finds no merit in respondent's contention that petitioner Hasegawa is only authorized to verify and certify, on behalf of Nippon, the certiorari petition filed with the CA and not the instant petition. True, the Authorization 35 dated September 4, 2000, which is attached to the second certiorari petition and which is also attached to the instant petition for

review, is limited in scope its wordings indicate that Hasegawa is given the authority to sign for and act on behalf of the company only in the petition filed with the appellate court, and that authority cannot extend to the instant petition for review. 36 In a plethora of cases, however, this Court has liberally applied the Rules or even suspended its application whenever a satisfactory explanation and a subsequent fulfillment of the requirements have been made. 37 Given that petitioners herein sufficiently explained their misgivings on this point and appended to their Reply 38 an updated Authorization 39 for Hasegawa to act on behalf of the company in the instant petition, the Court finds the same as sufficient compliance with the Rules. However, the Court cannot extend the same liberal treatment to the defect in the verification and certification. As respondent pointed out, and to which we agree, Hasegawa is truly not authorized to act on behalf of Nippon in this case. The aforesaid September 4, 2000 Authorization and even the subsequent August 17, 2001 Authorization were issued only by Nippon's president and chief executive officer, not by the company's board of directors. In not a few cases, we have ruled that corporate powers are exercised by the board of directors; thus, no person, not even its officers, can bind the corporation, in the absence of authority from the board. 40 Considering that Hasegawa verified and certified the petition only on his behalf and not on behalf of the other petitioner, the petition has to be denied pursuant to Loquias v. Office of the Ombudsman. 41 Substantial compliance will not suffice in a matter that demands strict observance of the Rules. 42 While technical rules of procedure are designed not to frustrate the ends of justice, nonetheless, they are intended to effect the proper and orderly disposition of cases and effectively prevent the clogging of court dockets. 43 CSTDIE Further, the Court has observed that petitioners incorrectly filed a Rule 65 petition to question the trial court's denial of their motion to dismiss. It is a well-established rule that an order denying a motion to dismiss is interlocutory, and cannot be the subject of the extraordinary petition for certiorari or mandamus. The appropriate recourse is to file an answer and to interpose as defenses the objections raised in the motion, to proceed to trial, and, in case of an adverse decision, to elevate the entire case by appeal in due course. 44 While there are recognized exceptions to this rule, 45 petitioners' case does not fall among them. This brings us to the discussion of the substantive issue of the case. Asserting that the RTC of Lipa City is an inconvenient forum, petitioners question its jurisdiction to hear and resolve the civil case for specific performance and damages filed by the respondent. The ICA subject of the litigation was entered into and perfected in Tokyo, Japan, by Japanese nationals, and written wholly in the Japanese language. Thus, petitioners posit that local courts have no substantial relationship to the parties 46 following the [state of the] most significant relationship rule in Private International Law. 47 IScaAE The Court notes that petitioners adopted an additional but different theory when they elevated the case to the appellate court. In the Motion to Dismiss 48 filed with the trial court, petitioners never contended that the RTC is an inconvenient forum. They merely argued that the applicable law which will determine the validity or invalidity of respondent's claim is that of Japan, following the principles of lex loci celebrationis and lex contractus. 49 While not abandoning this stance in their petition before the appellate court, petitioners on certiorari significantly invoked the defense of forum non conveniens. 50 On petition for review before this Court, petitioners dropped their other arguments, maintained the forum non conveniens defense, and introduced their new argument that the applicable principle is the [state of the] most significant relationship rule. 51 Be that as it may, this Court is not inclined to deny this petition merely on the basis of the change in theory, as explained in Philippine Ports Authority v. City of Iloilo. 52 We only pointed out petitioners' inconstancy in their arguments to emphasize their incorrect assertion of conflict of laws principles. To elucidate, in the judicial resolution of conflicts problems, three consecutive phases are involved: jurisdiction, choice of law, and recognition and enforcement of judgments. Corresponding to these phases are the following questions: (1) Where can or should litigation be initiated? (2) Which law will the court apply? and (3) Where can the resulting judgment be enforced? 53 HDTISa Analytically, jurisdiction and choice of law are two distinct concepts. 54 Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is fair to both parties. The power to exercise jurisdiction does not automatically give a state constitutional authority to apply forum law. While jurisdiction and the choice of the lex fori will often coincide, the

"minimum contacts" for one do not always provide the necessary "significant contacts" for the other. 55 The question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of that state have jurisdiction to enter a judgment. 56 In this case, only the first phase is at issue jurisdiction. Jurisdiction, however, has various aspects. For a court to validly exercise its power to adjudicate a controversy, it must have jurisdiction over the plaintiff or the petitioner, over the defendant or the respondent, over the subject matter, over the issues of the case and, in cases involving property, over the res or the thing which is the subject of the litigation. 57 In assailing the trial court's jurisdiction herein, petitioners are actually referring to subject matter jurisdiction. ITHADC Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which establishes and organizes the court. It is given only by law and in the manner prescribed by law. 58 It is further determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. 59 To succeed in its motion for the dismissal of an action for lack of jurisdiction over the subject matter of the claim, 60 the movant must show that the court or tribunal cannot act on the matter submitted to it because no law grants it the power to adjudicate the claims. 61 In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court is not properly vested by law with jurisdiction to hear the subject controversy for, indeed, Civil Case No. 00-0264 for specific performance and damages is one not capable of pecuniary estimation and is properly cognizable by the RTC of Lipa City. 62 What they rather raise as grounds to question subject matter jurisdiction are the principles of lex loci celebrationis and lex contractus, and the "state of the most significant relationship rule." The Court finds the invocation of these grounds unsound. DCASIT Lex loci celebrationis relates to the "law of the place of the ceremony" 63 or the law of the place where a contract is made. 64 The doctrine of lex contractus or lex loci contractus means the "law of the place where a contract is executed or to be performed." 65 It controls the nature, construction, and validity of the contract 66 and it may pertain to the law voluntarily agreed upon by the parties or the law intended by them either expressly or implicitly. 67 Under the "state of the most significant relationship rule," to ascertain what state law to apply to a dispute, the court should determine which state has the most substantial connection to the occurrence and the parties. In a case involving a contract, the court should consider where the contract was made, was negotiated, was to be performed, and the domicile, place of business, or place of incorporation of the parties. 68 This rule takes into account several contacts and evaluates them according to their relative importance with respect to the particular issue to be resolved. 69 Since these three principles in conflict of laws make reference to the law applicable to a dispute, they are rules proper for the second phase, the choice of law. 70 They determine which state's law is to be applied in resolving the substantive issues of a conflicts problem. 71 Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law rules are not only inapplicable but also not yet called for. TaCDcE Further, petitioners' premature invocation of choice-of-law rules is exposed by the fact that they have not yet pointed out any conflict between the laws of Japan and ours. Before determining which law should apply, first there should exist a conflict of laws situation requiring the application of the conflict of laws rules. 72 Also, when the law of a foreign country is invoked to provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved. 73 It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative agency, there are three alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the internal law of the forum; or (3) assume jurisdiction over the case and take into account or apply the law of some other State or States. 74 The court's power to hear cases and controversies is derived from the Constitution and the laws. While it may choose to recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal agreements, even in matters regarding rights provided by foreign sovereigns. 75 EASIHa Neither can the other ground raised, forum non conveniens, 76 be used to deprive the trial court of its jurisdiction herein. First, it is not a proper basis for a motion to dismiss because Section 1, Rule 16 of the Rules of Court does not include it as a ground. 77 Second, whether a suit should be entertained or dismissed on the basis of the said doctrine depends largely upon

the facts of the particular case and is addressed to the sound discretion of the trial court. 78 In this case, the RTC decided to assume jurisdiction. Third, the propriety of dismissing a case based on this principle requires a factual determination; hence, this conflicts principle is more properly considered a matter of defense. 79 Accordingly, since the RTC is vested by law with the power to entertain and hear the civil case filed by respondent and the grounds raised by petitioners to assail that jurisdiction are inappropriate, the trial and appellate courts correctly denied the petitioners' motion to dismiss. WHEREFORE, premises considered, the petition for review on certiorari is DENIED. SO ORDERED.

[G.R. No. 162894. February 26, 2008.] RAYTHEON INTERNATIONAL, INC., petitioner, vs. STOCKTON W. ROUZIE, JR., respondent. DECISION TINGA, J p: Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure which seeks the reversal of the Decision 1 and Resolution 2 of the Court of Appeals in CA-G.R. SP No. 67001 and the dismissal of the civil case filed by respondent against petitioner with the trial court. TAHIED As culled from the records of the case, the following antecedents appear: Sometime in 1990, Brand Marine Services, Inc. (BMSI), a corporation duly organized and existing under the laws of the State of Connecticut, United States of America, and respondent Stockton W. Rouzie, Jr., an American citizen, entered into a contract whereby BMSI hired respondent as its representative to negotiate the sale of services in several government projects in the Philippines for an agreed remuneration of 10% of the gross receipts. On 11 March 1992, respondent secured a service contract with the Republic of the Philippines on behalf of BMSI for the dredging of rivers affected by the Mt. Pinatubo eruption and mudflows. 3 On 16 July 1994, respondent filed before the Arbitration Branch of the National Labor Relations Commission (NLRC) a suit against BMSI and Rust International, Inc. (RUST), Rodney C. Gilbert and Walter G. Browning for alleged nonpayment of commissions, illegal termination and breach of employment contract. 4 On 28 September 1995, Labor Arbiter Pablo C. Espiritu, Jr. rendered judgment ordering BMSI and RUST to pay respondent's money claims. 5 Upon appeal by BMSI, the NLRC reversed the decision of the Labor Arbiter and dismissed respondent's complaint on the ground of lack of jurisdiction. 6 Respondent elevated the case to this Court but was dismissed in a Resolution dated 26 November 1997. The Resolution became final and executory on 09 November 1998. cHaADC On 8 January 1999, respondent, then a resident of La Union, instituted an action for damages before the Regional Trial Court (RTC) of Bauang, La Union. The Complaint, 7 docketed as Civil Case No. 1192-BG, named as defendants herein petitioner Raytheon International, Inc. as well as BMSI and RUST, the two corporations impleaded in the earlier labor case. The complaint essentially reiterated the allegations in the labor case that BMSI verbally employed respondent to negotiate the sale of services in government projects and that respondent was not paid the commissions due him from the Pinatubo dredging project which he secured on behalf of BMSI. The complaint also averred that BMSI and RUST as well as petitioner itself had combined and functioned as one company. In its Answer, 8 petitioner alleged that contrary to respondent's claim, it was a foreign corporation duly licensed to do business in the Philippines and denied entering into any arrangement with respondent or paying the latter any sum of money. Petitioner also denied combining with BMSI and RUST for the purpose of assuming the alleged obligation of the said companies. 9 Petitioner also referred to the NLRC decision which disclosed that per the written agreement between respondent and BMSI and RUST, denominated as "Special Sales Representative Agreement," the rights and obligations of the parties shall be governed by the laws of the State of Connecticut. 10 Petitioner sought the dismissal of the complaint on grounds of failure to state a cause of action and forum non conveniens and prayed for damages by way of compulsory counterclaim. 11 IDcHCS On 18 May 1999, petitioner filed an Omnibus Motion for Preliminary Hearing Based on Affirmative Defenses and for Summary Judgment 12 seeking the dismissal of the complaint on grounds of forum non conveniens and failure to state a cause of action. Respondent opposed the same. Pending the resolution of the omnibus motion, the deposition of Walter Browning was taken before the Philippine Consulate General in Chicago. 13 In an Order 14 dated 13 September 2000, the RTC denied petitioner's omnibus motion. The trial court held that the factual allegations in the complaint, assuming the same to be admitted, were sufficient for the trial court to render a valid judgment thereon. It also ruled that the principle of forum non conveniens was inapplicable because the trial court could enforce judgment on petitioner, it being a foreign corporation licensed to do business in the Philippines. 15

Petitioner filed a Motion for Reconsideration 16 of the order, which motion was opposed by respondent. 17 In an Order dated 31 July 2001, 18 the trial court denied petitioner's motion. Thus, it filed a Rule 65 Petition 19 with the Court of Appeals praying for the issuance of a writ of certiorari and a writ of injunction to set aside the twin orders of the trial court dated 13 September 2000 and 31 July 2001 and to enjoin the trial court from conducting further proceedings. 20 On 28 August 2003, the Court of Appeals rendered the assailed Decision 21 denying the petition for certiorari for lack of merit. It also denied petitioner's motion for reconsideration in the assailed Resolution issued on 10 March 2004. 22 aSACED The appellate court held that although the trial court should not have confined itself to the allegations in the complaint and should have also considered evidence aliunde in resolving petitioner's omnibus motion, it found the evidence presented by petitioner, that is, the deposition of Walter Browning, insufficient for purposes of determining whether the complaint failed to state a cause of action. The appellate court also stated that it could not rule one way or the other on the issue of whether the corporations, including petitioner, named as defendants in the case had indeed merged together based solely on the evidence presented by respondent. Thus, it held that the issue should be threshed out during trial. 23 Moreover, the appellate court deferred to the discretion of the trial court when the latter decided not to desist from assuming jurisdiction on the ground of the inapplicability of the principle of forum non conveniens. Hence, this petition raising the following issues: WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION AGAINST RAYTHEON INTERNATIONAL, INC. WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO DISMISS THE COMPLAINT ON THE GROUND OF FORUM NON CONVENIENS. 24 EcHIDT Incidentally, respondent failed to file a comment despite repeated notices. The Ceferino Padua Law Office, counsel on record for respondent, manifested that the lawyer handling the case, Atty. Rogelio Karagdag, had severed relations with the law firm even before the filing of the instant petition and that it could no longer find the whereabouts of Atty. Karagdag or of respondent despite diligent efforts. In a Resolution 25 dated 20 November 2006, the Court resolved to dispense with the filing of a comment.

The instant petition lacks merit. Petitioner mainly asserts that the written contract between respondent and BMSI included a valid choice of law clause, that is, that the contract shall be governed by the laws of the State of Connecticut. It also mentions the presence of foreign elements in the dispute namely, the parties and witnesses involved are American corporations and citizens and the evidence to be presented is located outside the Philippines that renders our local courts inconvenient forums. Petitioner theorizes that the foreign elements of the dispute necessitate the immediate application of the doctrine of forum non conveniens. Recently in Hasegawa v. Kitamura, 26 the Court outlined three consecutive phases involved in judicial resolution of conflictsof-laws problems, namely: jurisdiction, choice of law, and recognition and enforcement of judgments. Thus, in the instances 27 where the Court held that the local judicial machinery was adequate to resolve controversies with a foreign element, the following requisites had to be proved: (1) that the Philippine Court is one to which the parties may conveniently resort; (2) that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine Court has or is likely to have the power to enforce its decision. 28 CDHSac On the matter of jurisdiction over a conflicts-of-laws problem where the case is filed in a Philippine court and where the court has jurisdiction over the subject matter, the parties and the res, it may or can proceed to try the case even if the rules of conflict-of-laws or the convenience of the parties point to a foreign forum. This is an exercise of sovereign prerogative of the country where the case is filed. 29 Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the law 30 and by the material allegations in the complaint, irrespective of whether or not the plaintiff is entitled to recover all or some of the claims or reliefs sought therein. 31 Civil Case No. 1192-BG is an action for damages arising from an alleged breach of contract. Undoubtedly, the nature of the action and the amount of damages prayed are within the jurisdiction of the RTC.

As regards jurisdiction over the parties, the trial court acquired jurisdiction over herein respondent (as party plaintiff) upon the filing of the complaint. On the other hand, jurisdiction over the person of petitioner (as party defendant) was acquired by its voluntary appearance in court. 32 That the subject contract included a stipulation that the same shall be governed by the laws of the State of Connecticut does not suggest that the Philippine courts, or any other foreign tribunal for that matter, are precluded from hearing the civil action. Jurisdiction and choice of law are two distinct concepts. Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is fair to both parties. 33 The choice of law stipulation will become relevant only when the substantive issues of the instant case develop, that is, after hearing on the merits proceeds before the trial court. EATcHD Under the doctrine of forum non conveniens, a court, in conflicts-of-laws cases, may refuse impositions on its jurisdiction where it is not the most "convenient" or available forum and the parties are not precluded from seeking remedies elsewhere. 34 Petitioner's averments of the foreign elements in the instant case are not sufficient to oust the trial court of its jurisdiction over Civil Case No. No. 1192-BG and the parties involved. Moreover, the propriety of dismissing a case based on the principle of forum non conveniens requires a factual determination; hence, it is more properly considered as a matter of defense. While it is within the discretion of the trial court to abstain from assuming jurisdiction on this ground, it should do so only after vital facts are established, to determine whether special circumstances require the court's desistance. 35 Finding no grave abuse of discretion on the trial court, the Court of Appeals respected its conclusion that it can assume jurisdiction over the dispute notwithstanding its foreign elements. In the same manner, the Court defers to the sound discretion of the lower courts because their findings are binding on this Court. Petitioner also contends that the complaint in Civil Case No. 1192-BG failed to state a cause of action against petitioner. Failure to state a cause of action refers to the insufficiency of allegation in the pleading. 36 As a general rule, the elementary test for failure to state a cause of action is whether the complaint alleges facts which if true would justify the relief demanded. 37 ETIHCa The complaint alleged that petitioner had combined with BMSI and RUST to function as one company. Petitioner contends that the deposition of Walter Browning rebutted this allegation. On this score, the resolution of the Court of Appeals is instructive, thus: . . . Our examination of the deposition of Mr. Walter Browning as well as other documents produced in the hearing shows that these evidence aliunde are not quite sufficient for us to mete a ruling that the complaint fails to state a cause of action. Annexes "A" to "E" by themselves are not substantial, convincing and conclusive proofs that Raytheon Engineers and Constructors, Inc. (REC) assumed the warranty obligations of defendant Rust International in the Makar Port Project in General Santos City, after Rust International ceased to exist after being absorbed by REC. Other documents already submitted in evidence are likewise meager to preponderantly conclude that Raytheon International, Inc., Rust International[,] Inc. and Brand Marine Service, Inc. have combined into one company, so much so that Raytheon International, Inc., the surviving company (if at all) may be held liable for the obligation of BMSI to respondent Rouzie for unpaid commissions. Neither these documents clearly speak otherwise. 38 As correctly pointed out by the Court of Appeals, the question of whether petitioner, BMSI and RUST merged together requires the presentation of further evidence, which only a full-blown trial on the merits can afford. ASIDTa WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 67001 are hereby AFFIRMED. Costs against petitioner. SO ORDERED.

[G.R. No. 126603. June 29, 1998.] ESTRELLITA J. TAMANO, petitioner, vs. HON. RODOLFO A. ORTIZ, Presiding Judge, RTC-Br. 89, Quezon City, HAJA PUTRI ZORAYDA A. TAMANO, ADIB A. TAMANO and the HON. COURT OF APPEALS, respondents. Emiliano S. Samson, R. Balderrama-Samson, Mary Anne B. Samson-Willis for petitioner. Aqsa Law Firm and Abbas & Associates for private respondents. SYNOPSIS Senator Mamintal Tamano married private respondent Zorayda in civil rites. Their marriage supposedly remained subsisting until his death. Prior to his death, Tamano also married petitioner Estrellita in civil rites. After the death of the Senator, Zorayda joined by her son filed a Complaint for Declaration of Nullity of Marriage of Tamano and Estrellita on the ground that it was bigamous. Petitioner filed a motion to dismiss the case alleging that the RTC of Quezon City was without jurisdiction over the subject and nature of the action. The lower court denied the motion to dismiss and ruled that the case was properly cognizable by the RTC of Quezon City since Estrellita and Tamano were married in accordance with the Civil Code and not exclusively in accordance with PD No. 1083 or the Code of Muslim Personal laws. The motion for reconsideration was likewise denied; hence, this petition before the Supreme Court. The case was, however, referred to the Court of Appeals. The Court of Appeals, likewise, denied the motion to dismiss. The petitioner now comes before the Supreme Court reiterating her earlier argument that it is the shari'a court and not the Regional Trial Court which has jurisdiction over the subject and nature of the action. As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil Code. Contrary to the position of petitioner, the Civil Code is applicable herein. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws, the same would still fall under the general original jurisdiction of the Regional Trial Courts. The petition herein was denied and the decision of the Court of Appeals sustaining the orders of the Regional Trial Court of Quezon City denying the motion to dismiss was affirmed. cAHIaE SYLLABUS 1. REMEDIAL LAW; JUDICIARY REORGANIZATION ACT OF 1980; JURISDICTION OF REGIONAL TRIAL COURTS. Under The Judiciary Reorganization Act of 1980, Regional Trial Courts have jurisdiction over all actions involving the contract of marriage and marital relations. Personal actions, such as the instant complaint for declaration of nullity of marriage, may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff. There should be no question by now that what determines the nature of an action and correspondingly the court which has jurisdiction over it are the allegations made by the plaintiff in this case. In the complaint for declaration of nullity of marriage filed by private respondents herein, it was alleged that Estrellita and Tamano were married in accordance with the provisions of the Civil Code. Never was it mentioned that Estrellita and Tamano were married under Muslim laws or PD No. 1083. Interestingly, Estrellita never stated in her Motion to Dismiss that she and Tamano were married under Muslim laws. That she was in fact married to Tamano under Muslim laws was first mentioned only in her Motion for Reconsideration. Nevertheless, the Regional Trial Court was not divested of jurisdiction to hear and try the instant case despite the allegation in the Motion for Reconsideration that Estrellita and Tamano were likewise married in Muslim rites. This is because a court's jurisdiction cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration, but only upon the allegations of the complaint. Jurisdiction over the subject matter of a case is determined from the allegations of the complaint as the latter comprises a concise statement of the ultimate facts constituting the plaintiff's causes of action. 2. CIVIL LAW; PD NO. 1083; DOES NOT DIVEST REGIONAL TRIAL COURTS OF GENERAL JURISDICTION UNDER SEC. 19, PAR. (6) OF BP BLG. 129. Article 13 of PD No. 1083 does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Consequently, the Regional Trial Courts are not divested of their general original jurisdiction under Sec. 19, par. (6) of BP Blg. 129 which provides Sec. 19. Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive jurisdiction: . . . (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions . . . . STcAIa

DECISION BELLOSILLO, J p: This Petition for Review on Certiorari seeks to reverse and set aside the decision of the Court of Appeals of 30 September 1996 in CA-G.R. SP. No. 39656 which affirmed the decision of the Regional Trial Court-Br. 89, Quezon City, denying the motion to dismiss as well as the motion for reconsideration filed by petitioner Estrellita J. Tamano. cda On 31 May 1958 Senator Mamintal Abdul Jabar Tamano (Tamano) married private respondent Haja Putri Zorayda A. Tamano (Zorayda) in civil rites. Their marriage supposedly remained valid and subsisting until his death on 18 May 1994. Prior to his death, particularly on 2 June 1993, Tamano also married petitioner Estrellita J. Tamano (Estrellita) in civil rites in Malabang, Lanao del Sur. On 23 November 1994 private respondent Zorayda joined by her son Adib A. Tamano (Adib) filed a Complaint for Declaration of Nullity of Marriage of Tamano and Estrellita on the ground that it was bigamous. They contended that Tamano and Estrellita misrepresented themselves as divorced and single, respectively, thus making the entries in the marriage contract false and fraudulent. Private respondents alleged that Tamano never divorced Zorayda and that Estrellita was not single when she married Tamano as the decision annulling her previous marriage with Romeo C. Llave never became final and executory for non-compliance with publication requirements. Estrellita filed a motion to dismiss alleging that the Regional Trial Court of Quezon City was without jurisdiction over the subject and nature of the action. She alleged that "only a party to the marriage" could file an action for annulment of marriage against the other spouse, 1 hence, it was only Tamano who could file an action for annulment of their marriage. Petitioner likewise contended that since Tamano and Zorayda were both Muslims and married in Muslim rites the jurisdiction to hear and try the instant case was vested in the shari'a courts pursuant to Art. 155 of the Code of Muslim Personal Laws. The lower court denied the motion to dismiss and ruled that the instant case was properly cognizable by the Regional Trial Court of Quezon City since Estrellita and Tamano were married in accordance with the Civil Code, and not exclusively in accordance with PD No. 1083 2 or the Code of Muslim Personal laws. The motion for reconsideration was likewise denied; hence, petitioner filed the instant petition with this Court seeking to set aside the 18 July 1995 order of respondent presiding judge of the RTC-Br. 89, Quezon City, denying petitioner's motion to dismiss and the 22 August 1995 order denying reconsideration thereof. In a Resolution dated 13 December 1995 we referred the case to the Court of Appeals for consolidation with G.R. No. 118371. Zorayda and Adib A. Tamano however filed a motion, which the Court of Appeals granted, to resolve the Complaint for Declaration of Nullity of Marriage ahead of the other consolidated cases. The Court of Appeals ruled that the instant case would fall under the exclusive jurisdiction of shari'a courts only when filed in places where there are shari'a courts. But in places where there are no shari'a courts, like Quezon City, the instant case could properly be filed before the Regional Trial Court. Petitioner is now before us reiterating her earlier argument that it is the shari'a court and not the Regional Trial Court which has jurisdiction over the subject and nature of the action. Under The Judiciary Reorganization Act of 1980, 3 Regional Trial Courts have jurisdiction over all actions involving the contract of marriage and marital relations. 4 Personal actions, such as the instant complaint for declaration of nullity of marriage, may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff . 5 There should be no question by now that what determines the nature of an action and correspondingly the court which has jurisdiction over it are the allegations made by the plaintiff in this case. 6 In the complaint for declaration of nullity of marriage filed by private respondents herein, it was alleged that Estrellita and Tamano were married in accordance with the provisions of the Civil Code. Never was it mentioned that Estrellita and Tamano were married under Muslim laws or PD No. 1083. Interestingly, Estrellita never stated in her Motion to Dismiss that she and Tamano were married under Muslim laws. That she was in fact married to Tamano under Muslim laws was first mentioned only in her Motion for Reconsideration. llcd

Nevertheless, the Regional Trial Court was not divested of jurisdiction to hear and try the instant case despite the allegation in the Motion for Reconsideration that Estrellita and Tamano were likewise married in Muslim rites. This is because a court's jurisdiction cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration, but only upon the allegations of the complaint. 7 Jurisdiction over the subject matter of a case is determined from the allegations of the complaint as the latter comprises a concise statement of the ultimate facts constituting the plaintiff's causes of action. 8 Petitioner argues that the shari'a courts have jurisdiction over the instant suit pursuant to Art. 13, Title, II, PD No. 1083, 9 which provides Art. 13. Application. (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. (3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and the property relations between husband and wife shall be governed by this Code and other applicable Muslim laws. As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil Code. Hence, contrary to the position of petitioner, the Civil Code is applicable in the instant case. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws, the same would still fall under the general original jurisdiction of the Regional Trial Courts. Article 13 of PD No. 1083 does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Consequently, the Regional Trial Courts are not divested of their general original jurisdiction under Sec. 19, par. (6) of BP Blg. 129 which provides Sec. 19. Jurisdiction in Civil Cases. Regional Trial Courts shall exercise exclusive original jurisdiction: . . . (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions . . . WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals sustaining the 18 July 1995 and 22 August 1995 orders of the Regional Trial Court Br. 89, Quezon City, denying the motion to dismiss and reconsideration thereof, is AFFIRMED. Let the records of this case be immediately remanded to the court of origin for further proceedings until terminated. SO ORDERED.

SECOND DIVISION [G.R. No. 193902. June 1, 2011.] ATTY. MARIETTA D. ZAMORANOS, petitioner, vs. PEOPLE OF THE PHILIPPINES and SAMSON R. PACASUM, SR., respondents. [G.R. No. 193908. June 1, 2011.] ATTY. MARIETTA D. ZAMORANOS, petitioner, vs. SAMSON R. PACASUM, SR., respondent. [G.R. No. 194075. June 1, 2011.] SAMSON R. PACASUM, SR., petitioner, vs. ATTY. MARIETTA D. ZAMORANOS, respondent. DECISION NACHURA, J p: These are three (3) consolidated petitions for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision 1 dated July 30, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 03525-MIN, dismissing the petition for certiorari filed by petitioner Atty. Marietta D. Zamoranos (Zamoranos) in G.R. No. 193902, thus, affirming the Order 2 of the Regional Trial Court (RTC), Branch 6, Lanao del Norte, in Criminal Case No. 06-12305 for Bigamy filed by petitioner Samson R. Pacasum, Sr. in G.R. No. 194075. SHECcD Before anything else, we disentangle the facts. On May 3, 1982, Zamoranos wed Jesus de Guzman, a Muslim convert, in Islamic rites. Prior thereto, Zamoranos was a Roman Catholic who had converted to Islam on April 28, 1982. Subsequently, on July 30, 1982, the two wed again, this time, in civil rites before Judge Perfecto Laguio (Laguio) of the RTC, Quezon City. A little after a year, on December 18, 1983, Zamoranos and De Guzman obtained a divorce by talaq. The dissolution of their marriage was confirmed by the Shari'a Circuit District Court, 1st Circuit, 3rd District, Isabela, Basilan, which issued a Decree of Divorce on June 18, 1992, as follows: DECREE OF DIVORCE This is a case for divorce filed by the herein complainant Marietta (Mariam) D. Zamoranos de Guzman against her husband, the herein respondent, on the ground that the wife, herein complainant, was previously given by her husband the authority to exercise Talaq, as provided for and, in accordance with Presidential Decree No. 1083. otherwise known as the Code of Muslim Personal Laws of the Philippines. SIDEaA When this case was called for hearing[,] both parties appeared and herein respondent, Jesus (Mohamad) de Guzman[,] interposes no objection to confirm their divorce, which they have freely entered into on December 18, 1983. This Court, after evaluating the testimonies of the herein parties is fully convinced that both the complainant and the respondent have been duly converted to the faith of Islam prior to their Muslim wedding and finding that there is no more possibility of reconciliation by and between them, hereby issues this decree of divorce. WHEREFORE, premises considered and pursuant to the provisions of the Code of Muslim Personal Laws of the Philippines, this petition is hereby granted. Consequently, the marriage between Marietta (Mariam) D. Zamoranos de Guzman and Jesus (Mohamad) de Guzman is hereby confirmed dissolved. Issued this 18th day of June, 1992, at Isabela, Basilan Province, Philippines. TAcSCH (signed) HON. KAUDRI L. JAINUL

Presiding Judge 3 Now it came to pass that Zamoranos married anew on December 20, 1989. As she had previously done in her first nuptial to De Guzman, Zamoranos wed Samson Pacasum, Sr. (Pacasum), her subordinate at the Bureau of Customs where she worked, under Islamic rites in Balo-i, Lanao del Norte. Thereafter, on December 28, 1992, in order to strengthen the ties of their marriage, Zamoranos and Pacasum renewed their marriage vows in a civil ceremony before Judge Valerio Salazar of the RTC, Iligan City. However, unlike in Zamoranos' first marriage to De Guzman, the union between her and Pacasum was blessed with progeny, namely: Samson, Sr., Sam Jean, and Sam Joon. Despite their three children, the relationship between Zamoranos and Pacasum turned sour and, in 1998, the two were de facto separated. The volatile relationship of Zamoranos and Pacasum escalated into a bitter battle for custody of their minor children. Eventually, on October 18, 1999, Zamoranos and Pacasum arrived at a compromise agreement which vested primary custody of the children in the former, with the latter retaining visitorial rights thereto. DcaSIH As it turned out, the agreement rankled on Pacasum. He filed a flurry of cases against Zamoranos, to wit: 1. Petition for Annulment of Marriage filed on March 31, 2003 before the RTC, Branch 2, Iligan City, docketed as Civil Case No. 6249. Subsequently, on May 31, 2004, Pacasum amended the petition into one for Declaration of a Void Marriage, alleging, among other things, that: (a) Zamoranos, at the time of her marriage to Pacasum, was already previously married to De Guzman on July 30, 1982; (b) Zamoranos' first marriage, solemnized before the RTC, Quezon City, presided over by Judge Laguio, subsisted at the time of the celebration of Zamoranos and Pacasum's marriage; (c) Zamoranos and Pacasum's marriage was bigamous and void ab initio; and (d) thus, Zamoranos, as the guilty spouse, should forfeit: (i) custody of her minor children to their father, who should have sole and exclusive custody; (ii) her share in the community property in favor of the children; and (iii) her inheritance from Pacasum by testate or intestate succession. 2. Criminal complaint for Bigamy under Article 349 of the Revised Penal Code (RPC), filed on October 25, 2004. CAacTH 3. Separate administrative cases for Zamoranos' dismissal from service and disbarment before the Civil Service Commission (CSC), the Integrated Bar of the Philippines, and the Bureau of Finance Revenue Integrity Protection Service, respectively. Parenthetically, the administrative cases were dismissed in due course. However, as of the date of the assailed CA Decision, Pacasum's appeal from the CSC's dismissal of the administrative case was still pending resolution. Quite ironically, soon after amending his petition in Civil Case No. 6249, Pacasum contracted a second marriage with Catherine Ang Dignos on July 18, 2004. 4 Meanwhile, on the criminal litigation front, the Office of the City Prosecutor, through Prosecutor Leonor Quiones, issued a resolution dated February 2, 2005, finding prima facie evidence to hold Zamoranos liable for Bigamy. 5 Consequently, on February 22, 2006, an Information for Bigamy was filed against Zamoranos before the RTC, Branch 6, Iligan City, docketed as Criminal Case No. 06-12305. 6 HACaSc Zamoranos filed a motion for reconsideration of the City Prosecutor's February 2, 2005 resolution. As a result, the proceedings before the RTC, Branch 6, Iligan City, were temporarily suspended. On April 29, 2005, the City Prosecutor of Ozamis City, the acting City Prosecutor of Iligan City at the time, issued a resolution granting Zamoranos' motion for reconsideration and dismissing the charge of Bigamy against Zamoranos. 7 Not unexpectedly, Pacasum moved for reconsideration of the April 29, 2005 resolution of the City Prosecutor, which was denied in a resolution dated August 15, 2005. 8 Posthaste, Pacasum filed a Petition for Review before the Office of the Secretary of Justice, assailing the dismissal of his criminal complaint for Bigamy against Zamoranos. 9 In yet another turn of events, the Secretary of Justice, on February 7, 2006, issued a resolution granting Pacasum's Petition for Review and reversed the February 2, 2005 and April 29, 2005 resolutions of the City Prosecutor. 10 Zamoranos immediately filed an Omnibus Motion and Supplement to the Urgent Omnibus Motion: (1) for Reconsideration; (2) to Hold in Abeyance Filing of the Instant Case; and (3) to Hold in Abeyance or Quash Warrant of Arrest, respectively dated February 20, 2006 and February 24, 2006, before the Secretary of Justice. 11 Unfortunately for Zamoranos, her twin motions were denied by the Secretary of Justice in a resolution dated May 17, 2006. 12 DCSTAH

Zamoranos' second motion for reconsideration, as with her previous motions, was likewise denied. On the other civil litigation front on the Declaration of a Void Marriage, docketed as Civil Case No. 6249, the RTC, Branch 2, Iligan City, rendered a decision in favor of Zamoranos, dismissing the petition of Pacasum for lack of jurisdiction. The RTC, Branch 2, Iligan City, found that Zamoranos and De Guzman are Muslims, and were such at the time of their marriage, whose marital relationship was governed by Presidential Decree (P.D.) No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines: From the foregoing uncontroverted facts, the Court finds that the allegation of [Pacasum] to the effect that his marriage with [Zamoranos] on December 28, 1992 is a bigamous marriage due to the alleged subsisting previous marriage between [Zamoranos] and Jesus de Guzman is misplaced. The previous marriage between Jesus de Guzman and [Zamoranos] has long been terminated [and] has gone with the wind. The fact that divorce by Talaq was entered into by [Zamoranos] and her first husband in accordance with PD 1083, . . . their marriage is dissolved and consequently thereof, [Zamoranos] and Jesus de Guzman can re-marry. Moreover, the second marriage entered into by [Zamoranos] and her first husband Jesus de Guzman under the Family Code on July 30, 1982 is merely ceremonial, being unnecessary, it does not modify/alter or change the validity of the first marriage entered into by them under PD 1083. IDaCcS Likewise, in the case of [Pacasum] and [Zamoranos], their second marriage on December 28, 1992 under the Family Code does not in any way modify, alter or change the validity of the first marriage on December 20, 1989 entered into by [Pacasum] and [Zamoranos] under PD 1083, as amended. In fact, according to Ghazali, one of the renowned Muslim author and jurist in Islamic Law and Jurisprudence and concurred in by retired Justice Ra[s]ul of the Court of Appeals and also a Professor on Islamic Law and Jurisprudence, in the case of combined marriage[s], the first marriage is to be considered valid and effective as between the parties while the second marriage is merely ceremonial, being a surplusage and unnecessary. Therefore, the divorce by Talaq dissolved the marriage between [Zamoranos] and her first husband[,de Guzman,] being governed by PD 1083, . . . . Article 13, Chapter I, Title II of the Code of Muslim Personal Laws, provides . . . : "Application The provisions of this title shall apply to marriage and divorce wherein both parties are Muslims[,] or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines." Accordingly, matters relating to the marriages and divorce of [Zamoranos] and her first husband, Jesus de Guzman[,] shall be governed by the Muslin Code and divorce proceedings shall be properly within the exclusive original jurisdiction of the Shari'a Circuit Court. Art. 155, Chapter 2, Title II, Book 4 of the Muslim code, provides . . . : aDHCcE "Jurisdiction The Shari'a Circuit Courts shall have exclusive original jurisdiction over: xxx xxx xxx

2. All civil actions and proceedings between parties who are Muslims or have been married in accordance with Article 13 involving disputes relating to: a) b) xxx Marriage; Divorce recognized under this Code; xxx xxx"

The above provision of law clearly shows no concurrent jurisdiction with any civil courts or other courts of law. And any divorce proceeding undertaken before the Shari'[a] Court is valid, recognized, binding and sufficient divorce proceedings.

Moreover, the instant case is one of the several cases filed by [Pacasum] against [Zamoranos] such as complaints for disbarment, for immorality, for bigamy and misconduct before the Integrated Bar of the Philippines (IBP) and in the Civil Service Commission which were all similar or [based on] the same set of facts. A pure and simple harassment. SAHITC In the light of the foregoing findings, the Court is of the considered view and so hold that this Court has no jurisdiction to hear and decide the above-entitled case for annulment of marriage entered into under PD 1083, . . . . It is the Shari'a Circuit Court that has the exclusive original jurisdiction. WHEREFORE, premises considered, the affirmative defenses which are in the nature of motion to dismiss is hereby granted. The above-entitled case is hereby dismissed for lack of jurisdiction. SO ORDERED. 13 On separate appeals, the CA and the Supreme Court affirmed the dismissal of Civil Case No. 6249 by the RTC, Branch 2, Iligan City. On April 3, 2009, the denial by the Supreme Court of Pacasum's appeal became final and executory and was recorded in the Book of Entries of Judgments. 14 In the meantime, on August 7, 2009, the RTC, Branch 6, Iligan City, upon motion of Pacasum, issued an Order reinstating Criminal Case No. 06-12305 for Bigamy against Zamoranos. 15 Not surprisingly, Zamoranos filed a Motion to Quash the Information, arguing that the RTC, Branch 6, Iligan City, had no jurisdiction over her person and over the offense charged. Zamoranos asseverated, in the main, that the decision of the RTC, Branch 2, Iligan City, in Civil Case No. 6249 categorically declared her and Pacasum as Muslims, resulting in the mootness of Criminal Case No. 06-12305 and the inapplicability of the RPC provision on Bigamy to her marriage to Pacasum. In all, Zamoranos claimed that Criminal Case No. 06-12305 ought to be dismissed. 16 cHATSI On December 21, 2009, the RTC, Branch 6, Iligan City, denied Zamoranos' Motion to Quash the Information. Zamoranos' motion for reconsideration thereof was likewise denied. 17 Undaunted, Zamoranos filed a petition for certiorari for the nullification and reversal of the December 21, 2009 Order of the RTC, Branch 6, Iligan City. As previously adverted to, the CA dismissed Zamoranos' petition. The CA dwelt on the propriety of a petition for certiorari to assail the denial of a Motion to Quash the Information: A petition for certiorari alleging grave abuse of discretion is an extraordinary remedy. As such, it is confined to extraordinary cases wherein the action of the interior court is wholly void. The aim of certiorari is to keep the inferior court within the parameters of its jurisdiction. Hence, no grave abuse of discretion may be imputed to a court on the basis alone of an alleged misappreciation of facts and evidence. To prosper, a petition for certiorari must clearly demonstrate that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. cSICHD Simply put, in a petition for certiorari, the jurisdiction of the appellate court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence, such as an error of judgment which is defined as one in which the court or quasi-judicial body may commit in the exercise of its jurisdiction; as opposed to an error of jurisdiction where the acts complained of were issued without or in excess of jurisdiction. xxx xxx xxx

In the present case, [w]e have circumspectly examined [Zamoranos'] Motion to Quash Information and the action taken by the [RTC, Branch 6, Iligan City] in respect thereto, and [w]e found nothing that may constitute as grave abuse of discretion on the part of the [RTC, Branch 6, Iligan City]. The Order dated December 21, 2009, which first denied [Zamoranos'] [M]otion to [Q]uash Information meticulously explained the factual and legal basis for the denial of the issues raised by [Zamoranos] in said motion. We find the [RTC, Branch 6, Iligan City's] stance in upholding the sufficiency of the Information for bigamy and taking cognizance of Criminal Case No. 06-12305 to be well within the bounds of its jurisdiction. Even assuming arguendo that the denial of petitioner's motion to quash is erroneous, such error was, at worst, an error of judgment and not of jurisdiction. 18

Interestingly, even Pacasum was not satisfied with the CA's dismissal of Zamoranos' petition for certiorari. Hence, these separate appeals by Zamoranos and Pacasum. HCEcAa We note that Zamoranos is petitioner in two separate cases, filed by her two counsels, docketed as G.R. Nos. 193902 and 193908, respectively, which assail the same CA Decision. However, upon motion of counsel for Zamoranos, to obviate confusion and superfluity, we have allowed Zamoranos to withdraw her petition in G.R. No. 193908 and for her earlier petition in G.R. No. 193902 to remain. Zamoranos posits that it was grievous error for the CA to ignore the conclusions made by the RTC, Branch 2, Iligan City, and affirmed by the CA and this Court, to wit: 1. Zamoranos is a Muslim and was validly married to another Muslim, De Guzman, under Islamic rites;

2. Zamoranos and De Guzman's marriage ceremony under civil rites before Judge Laguio did not remove their marriage from the ambit of P.D. No. 1083; 3. Corollary to paragraph 1, Zamoranos' divorce by talaq to De Guzman severed their marriage ties;

4. "Accordingly, matters relating to the marriages and divorce of [Zamoranos] and her first husband, Jesus de Guzman[, are] governed by the Muslim Code and [the] divorce proceedings properly within the exclusive original jurisdiction of the Shari'a Circuit Court." EaDATc 5. Zamoranos remarried Pacasum, another Muslim, under Islamic rites; and

6. On the whole, regular courts, in particular, RTC, Branch 6, Iligan City, have no jurisdiction to hear and decide the case for declaration of nullity of marriage entered into under P.D. No. 1083 because it is the Shari'a Circuit Court that has original jurisdiction over the subject matter. For his part, Pacasum, although he agrees with the dismissal of Zamoranos' petition, raises a quarrel with the aforementioned conclusions of the CA. Pacasum vehemently denies that Zamoranos is a Muslim, who was previously married and divorced under Islamic rites, and who entered into a second marriage with him, likewise under Islamic rites. We impale the foregoing issues into the following: 1. Whether the CA correctly dismissed Zamoranos' petition for certiorari; and

2. Whether the RTC's, Branch 2, Iligan City and the CA's separate factual findings that Zamoranos is a Muslim are correct. As a rule, certiorari lies when: (1) a tribunal, board, or officer exercises judicial or quasi-judicial functions; (2) the tribunal, board, or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. 19 SDHCac The writ of certiorari serves to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to excess or lack of jurisdiction, or to relieve parties from arbitrary acts of courts acts which courts have no power or authority in law to perform. 20 The denial of a motion to quash, as in the case at bar, is not appealable. It is an interlocutory order which cannot be the subject of an appeal. 21 Moreover, it is settled that a special civil action for certiorari and prohibition is not the proper remedy to assail the denial of a motion to quash an information. The established rule is that, when such an adverse interlocutory order is rendered, the remedy is not to resort forthwith to certiorari or prohibition, but to continue with the case in due course and, when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law. 22

However, on a number of occasions, we have recognized that in certain situations, certiorari is considered an appropriate remedy to assail an interlocutory order, specifically the denial of a motion to quash. We have recognized the propriety of the following exceptions (a) when the court issued the order without or in excess of jurisdiction or with grave abuse of discretion; (b) when the interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief; (c) in the interest of a "more enlightened and substantial justice"; 23 (d) to promote public welfare and public policy; 24 and (e) when the cases "have attracted nationwide attention, making it essential to proceed with dispatch in the consideration thereof." 25 The first four of the foregoing exceptions occur in this instance. DTIaHE Contrary to the asseverations of the CA, the RTC, Branch 6, Iligan City, committed an error of jurisdiction, not simply an error of judgment, in denying Zamoranos' motion to quash. First, we dispose of the peripheral issue raised by Zamoranos on the conclusiveness of judgment made by the RTC, Branch 2, Iligan City, which heard the petition for declaration of nullity of marriage filed by Pacasum on the ground that his marriage to Zamoranos was a bigamous marriage. In that case, the decision of which is already final and executory, the RTC, Branch 2, Iligan City; dismissed the petition for declaration of nullity of marriage for lack of jurisdiction over the subject matter by the regular civil courts. The RTC, Branch 2, Iligan City, declared that it was the Shari'a Circuit Court which had jurisdiction over the subject matter thereof. Section 47, Rule 39 of the Rules of Court provides for the principle of res judicata. The provision reads: SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate. (Emphasis supplied.) cDTHIE The requisites for res judicata or bar by prior judgment are: (1) (2) (3) (4) The former judgment or order must be final; It must be a judgment on the merits; It must have been rendered by a court having jurisdiction over the subject matter and the parties; and There must be between the first and second actions, identity of parties, subject matter, and cause of action. 26

The second and fourth elements of res judicata are not present in this case. Suffice it to state that the judgment rendered by RTC, Branch 2, Iligan City, was not a judgment on the merits. The lower court simply dismissed the petition for declaration of nullity of marriage since it found that the Shari'a Circuit Court had jurisdiction to hear the dissolution of the marriage of Muslims who wed under Islamic rites. Nonetheless, the RTC, Branch 6, Iligan City, which heard the case for Bigamy, should have taken cognizance of the categorical declaration of the RTC, Branch 2, Iligan City, that Zamoranos is a Muslim, whose first marriage to another Muslim, De Guzman, was valid and recognized under Islamic law. In fact, the same court further declared that Zamoranos' divorce from De Guzman validly severed their marriage ties. Apart from that, Zamoranos presented the following evidence: 1. Affidavit of Confirmation 27 executed by the Ustadz, Abdullah Ha-Ja-Utto, who solemnized the marriage of Zamoranos and De Guzman under Islamic rites, declaring under oath that: SEHACI 1. I am an Ustadz, in accordance with the Muslim laws and as such, authorized to solemnize the marriages among Muslims;

2. On May 3, 1982, after I was shown the documents attesting that both parties are believers of Islam, I solemnized the marriage of Jesus (Mohamad) de Guzman and Marietta (Mariam) Zamoranos in accordance with Muslim Personal Laws in Isabela, Basilan; 3. Sometime in 1992[,] Mr. Mohamad de Guzman and his former wife, Mariam Zamoranos came to see me and asked my assistance to have their marriage and the subsequent Talaq by the wife, which divorce became irrevocable pursuant to the provisions of Presidential Decree No. 1093; registered [by] the Shari'a Circuit Court in the province of Basilan; and, after I was convinced that their divorce was in order, I accompanied them to the [C]lerk of [C]ourt of the Shari'a Circuit Court; 4. Satisfied that their marriage and the subsequent divorce were in accordance with Muslim personal laws, the Clerk of Court registered their documents; 5. In June of 1993 the old Capitol building, where the Shari'a Circuit Court was housed, was razed to the ground; and, I found out later that all the records, effects and office equipments of the Shari'a Circuit Court were totally lost [in] the fire; HCETDS 6. 7. This is executed freely and voluntarily in order to establish the above statements of fact; and This is issued upon the request of Mr. De Guzman for whatever legal purposes it may serve.

2. Certification 28 issued by Judge Kaudri L. Jainul (Judge Jainul), which confirmed the divorce agreement between Zamoranos and De Guzman. 3. Affidavit 29 executed by Judge Uyag P. Usman (Judge Usman), former Clerk of Court of Judge Jainul at the time of the confirmation of Zamoranos and De Guzman's divorce agreement by the latter. Judge Usman's affidavit reads, in pertinent part: 1. I am the presiding Judge of the Sharia's Circuit Court in the City of Pagadian;

2. The first time that a Sharia's Circuit court was established in the Island Province of Basilan was in 1985, with the Honorable Kaudri L. Jainul, as the Presiding Judge, while I was then the First Clerk of Court of the Basilan Sharia's Circuit Court; 3. The Sharia's Circuit Council in the Island Province of Basilan was housed at the old Capitol Building, in the City of Isabela, Basilan, Philippines; cAISTC 4. As the Clerk of Court of the Sharia's Circuit Court since 1985, I can recall that in 1992, Mr. Jesus (Mohamad) de Guzman, who is a province mate of mine in Basilan, and his former wife, Marietta (Mariam) Zamoranos, jointly asked for the confirmation of their Talaq, by the wife; which divorce became irrevocable pursuant to the provisions of Presidential Decree No. 1083; 5. In June of 1993, all the records of the Sharia's Circuit Court were lost by reason of the fire that gutted down the old Capitol Building in the City of Isabela; 6. This is executed freely and voluntarily in order to establish the above statements of fact.

From the foregoing declarations of all three persons in authority, two of whom are officers of the court, it is evident that Zamoranos is a Muslim who married another Muslim, De Guzman, under Islamic rites. Accordingly, the nature, consequences, and incidents of such marriage are governed by P.D. No. 1083. HaTSDA True, the Shari'a Circuit Court is not vested with jurisdiction over offenses penalized under the RPC. Certainly, the RTC, Branch 6, Iligan City, is correct when it declared that: The Regional Trial Courts are vested the exclusive and original jurisdiction in all criminal cases not within the exclusive original jurisdiction of any court, tribunal, or body. [Sec. 20 (b), BP Blg. 129] The Code of Muslim Personal Laws (PD 1083) created the Sharia District Courts and Sharia Circuit Courts with limited jurisdiction. Neither court was vested jurisdiction over criminal prosecution of violations of the Revised Penal Code. There is nothing in PD 1083 that divested the Regional Trial Courts of its jurisdiction to try and decide cases of bigamy. Hence, this Court has jurisdiction over this case. 30

Nonetheless, it must be pointed out that even in criminal cases, the trial court must have jurisdiction over the subject matter of the offense. In this case, the charge of Bigamy hinges on Pacasum's claim that Zamoranos is not a Muslim, and her marriage to De Guzman was governed by civil law. This is obviously far from the truth, and the fact of Zamoranos' Muslim status should have been apparent to both lower courts, the RTC, Branch 6, Iligan City, and the CA. aCASEH The subject matter of the offense of Bigamy dwells on the accused contracting a second marriage while a prior valid one still subsists and has yet to be dissolved. At the very least, the RTC, Branch 6, Iligan City, should have suspended the proceedings until Pacasum had litigated the validity of Zamoranos and De Guzman's marriage before the Shari'a Circuit Court and had successfully shown that it had not been dissolved despite the divorce by talaq entered into by Zamoranos and De Guzman. Zamoranos was correct in filing the petition for certiorari before the CA when her liberty was already in jeopardy with the continuation of the criminal proceedings against her. In a pluralist society such as that which exists in the Philippines, P.D. No. 1083, or the Code of Muslim Personal Laws, was enacted to "promote the advancement and effective participation of the National Cultural Communities . . ., [and] the State shall consider their customs, traditions, beliefs and interests in the formulation and implementation of its policies." Trying Zamoranos for Bigamy simply because the regular criminal courts have jurisdiction over the offense defeats the purpose for the enactment of the Code of Muslim Personal Laws and the equal recognition bestowed by the State on Muslim Filipinos. cHCSDa Article 3, Title II, Book One of P.D. No. 1083 provides: TITLE II CONSTRUCTION OF CODE AND DEFINITION OF TERMS Article 3. (1) Conflict of provisions.

In case of conflict between any provision of this Code and laws of general application, the former shall prevail.

(2) Should the conflict be between any provision of this Code and special laws or laws of local application, the latter shall be liberally construed in order to carry out the former. (3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non-Muslim. In Justice Jainal Rasul and Dr. Ibrahim Ghazali's Commentaries and Jurisprudence on the Muslim Code of the Philippines, the two experts on the subject matter of Muslim personal laws expound thereon: AaDSTH The first provision refers to a situation where in case of conflict between any provision of this Code and laws of general application, this Code shall prevail. For example, there is conflict between the provision on bigamy under the Revised Penal Code which is a law of general application and Article 27 of this Code, on subsequent marriage, the latter shall prevail, in the sense that as long as the subsequent marriage is solemnized "in accordance with" the Muslim Code, the provision of the Revised Penal Code on bigamy will not apply. The second provision refers to a conflict between the provision of this Code which is a special law and another special law or laws of local application. The latter should be liberally construed to carry out the provision of the Muslim Code. 31 On Marriage, Divorce, and Subsequent Marriages, P.D. No. 1083 provides: TITLE II MARRIAGE AND DIVORCE Chapter One APPLICABILITY CLAUSE

Article 13.

Application.

(1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. EcIaTA xxx Chapter Two MARRIAGE (NIKAH) Section 1. xxx Section 3. xxx Article 29. xxx xxx Requisites of Marriage. xxx Subsequent Marriages. xxx By divorcee. xxx xxx

(1) No woman shall contract a subsequent marriage unless she has observed an 'idda of three monthly courses counted from the date of divorce. However, if she is pregnant at the time of the divorce, she may remarry only after delivery. xxx xxx xxx

Chapter Three DIVORCE (TALAQ) Section 1. Nature and Form.

Article 45. Definition and forms. Divorce is the formal dissolution of the marriage bond in accordance with this Code to be granted only after the exhaustion of all possible means of reconciliation between the spouses. It may be effected by: DEAaIS (a) xxx Article 46. Repudiation of the wife by the husband (talaq); xxx xxx Divorce by talaq.

(1) A divorce by talaq may be effected by the husband in a single repudiation of his wife during her non-menstrual period (tuhr) within which he has totally abstained from carnal relation with her. Any number of repudiations made during one tular shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed idda. (2) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back (ruju) within the prescribed 'idda by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable (talaq bain sugra). THacES xxx xxx xxx

Article 54. Effects of irrevocable talaq; or faskh. A talaq or faskh, as soon as it becomes irrevocable, shall have the following effects:

(a) (b) (c)

The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code; The spouses shall lose their mutual rights of inheritance; The custody of children shall be determined in accordance with Article 78 of this Code;

(d) The wife shall be entitled to recover from the husband her whole dower in case the talaq has been effected after the consummation of the marriage, or one-half thereof if effected before its consummation; (e) (f) The husband shall not be discharged from his obligation to give support in accordance with Article 67; and The conjugal partnership if stipulated in the marriage settlements, shall be dissolved and liquidated. HDTcEI

For our edification, we refer once again to Justice Rasul and Dr. Ghazali's Commentaries and Jurisprudence on the Muslim Code of the Philippines: If both parties are Muslims, there is a presumption that the Muslim Code or Muslim law is complied with. If together with it or in addition to it, the marriage is likewise solemnized in accordance with the Civil Code of the Philippines, in a so-called combined Muslim-Civil marriage rites whichever comes first is the validating rite and the second rite is merely ceremonial one. But, in this case, as long as both parties are Muslims, this Muslin Code will apply. In effect, two situations will arise, in the application of this Muslim Code or Muslim law, that is, when both parties are Muslims and when the male party is a Muslim and the marriage is solemnized in accordance with Muslim Code or Muslim law. A third situation occur[s] when the Civil Code of the Philippines will govern the marriage and divorce of the parties, if the male party is a Muslim and the marriage is solemnized in accordance with the Civil Code. 32 Moreover, the two experts, in the same book, unequivocally state that one of the effects of irrevocable talaq, as well as other kinds of divorce, refers to severance of matrimonial bond, entitling one to remarry. 33 It stands to reason therefore that Zamoranos' divorce from De Guzman, as confirmed by an Ustadz and Judge Jainul of the Shari'a Circuit Court, and attested to by Judge Usman, was valid, and, thus, entitled her to remarry Pacasum in 1989. Consequently, the RTC, Branch 6, Iligan City, is without jurisdiction to try Zamoranos for the crime of Bigamy. WHEREFORE, the petition in G.R. No. 193902 is GRANTED. The petition in G.R. No. 194075 is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 03525-MIN is REVERSED and SET ASIDE. Accordingly, the Motion to Quash the Information in Criminal Case No. 06-12305 for Bigamy is GRANTED. SO ORDERED.

[G.R. No. L-20089. February 26, 1965.] BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. RESOLUTION BENGZON, J.P., J p: Defendant-appellant has filed a motion for reconsideration of this Court's decision promulgated December 26, 1964. The only point movant raises is the alleged validity of his affidavit of merits attached to his petition for relief in the lower court. The affidavit of merits in question states "that he (defendant) has a good and valid defense, his failure to marry plaintiff as scheduled having been due to a fortuitous event and/or circumstances beyond his control." The movant contends that this is not a mere opinion or conclusion but positive and categorical statement of a valid defense; that it stated there are fortuitous events, i.e., fortuitous facts, which defendant puts forward as valid defense. The previous rulings of this Court, movant further contends, held invalid only affidavits of merits that disclosed no defense. The rulings of this court require affidavits of merits to state not mere conclusions or opinions but facts (Vaswani vs. Tarachand Bros., L-15800, Dec. 29, 1960). An affidavit is a statement under oath of facts. Defendant's affidavit of merits stated no facts, but merely an inference that defendant's failure was due to fortuitous events under circumstances beyond his control. This is a conclusion of fact, no a fact. An affidavit of merits is required to avoid waste of the court's time if the defense turns out to be ineffective (Vda. de Yulo vs. Chua Chuco, 48 O.G. 554, 555). Statements too vague or merely general do not as movant admits serve the afore-stated purpose. Defendant's affidavit of merits provides no means for the court to see the merits of his defense and determine whether reopening the case would be worth its time. Said affidavit revealed nothing of the "event" or "circumstances" constituting the defense. It stated, in substance, only defendant's opinion that the event was "fortuitous" and that the circumstances were "beyond his control"; and his conclusion that his failure to marry plaintiff on schedule was "due to" them. The court, not the defendant, should form such opinions and draw such conclusions on the basis of facts provided in the affidavit. As it is, defendant's affidavit leaves the court guessing as to the facts. Conformably to previous rulings of this Court, therefore, the affidavit of merits aforementioned is not valid. To repeat, it states a conclusion of facts, not facts themselves; it leaves the court guessing as to the facts; it provides no basis for determining the probable merits of the defense as a jurisdiction for reopening the case. WHEREFORE, the motion for reconsideration is hereby denied. So ordered.

[G.R. No. L-18630. December 17, 1966.] APOLONIO TANJANCO, petitioner, vs. HON. COURT OF APPEALS and ARACELI SANTOS, respondents. P. Carreon and G. O. Veneracion, Jr. for petitioner. Antonio V. Bonoan for respondent. SYLLABUS 1. CIVIL LAW; DAMAGES; REQUISITES FOR RECOVERY OF MORAL DAMAGES UNDER ARTICLE 21, CIVIL CODE. The essential feature under Article 21 of the Civil Code is seduction, that in law is more than mere sexual intercourse, or a breach of promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595). 2. ID.; ID.; NO RECOVERY OF MORAL DAMAGES UNDER ARTICLE 21, IF SEDUCTION IS ABSENT; CASE AT BAR. In the case at bar the facts show that for one whole year, from 1958 to 1959, plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly, there is here voluntariness and mutual passion, for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut short all sexual relation upon finding that defendant did not intend to fulfill his promises. Hence, no case is made under Article 21 of the Civil Code and, no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. Of course, the dismissal must be understood as without prejudice to whatever actions may correspond to the child of the plaintiff against defendant-appellant, if any. DECISION REYES, J.B.L., J p: Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support and damages. The essential allegations of the complaint are to the effect that, from December, 1957, the defendant (appellee herein), Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age; that "defendant expressed and professed his undying love and affection for plaintiff who also in due time, reciprocated the tender feelings"; that in consideration of defendant's promises of marriage plaintiff consented and acceded to defendant's pleas for carnal knowledge; that regularly until December 1959, through his protestations of love and promises of marriage, defendant succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as secretary in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff became unable to support herself and her baby; that due to defendant's refusal to marry plaintiff, as promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock, and social humiliation. The prayer was for a decree compelling the defendant to recognize the unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her support and that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's fees. Upon defendant's motion to dismiss, the Court of First Instance dismissed the complaint for failure to state a cause of action. Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case, holding with the lower court that no cause of action was shown to compel recognition of a child as yet unborn, nor for its support, but decreed that the complaint did state a cause of action for damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows: "ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court of origin to proceed with the case. Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are not permissible in this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, 109 Phil. 640; Hermosisima vs. Court of Appeals, L14628, January 29, 1962; and De Jesus vs. SyQuia, 58 Phil. 886. We find this appeal meritorious. In holding that the complaint stated a cause of action for damages, under Article 21 above mentioned, the Court of Appeals relied upon and quoted from the memorandum submitted by the Code Commission to the Legislature in 1949 to support the original draft of the Civil Code. Referring to Article 23 of the draft (now Article 21 of the Code), the Commission stated: "But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: 'ART. 23. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damage.' "An example will illustrate the purview of the foregoing norm: 'A' seduces the nineteen-year old daughter of 'X'. A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action." The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort upon a minor who has been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part or the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595). It has been ruled in the Buenaventura case (supra) that "To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent Dig. tit. Seduction, par. 56). She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her person to the sexual embraces of her seducer" (27 Phil. 123). And in American Jurisprudence we find: "On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery. Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and the defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward for unchastity by which a class of adventuresses would be swift to profit." (47 Am. Jur. 662) Bearing these principles in mind, let us examine the complaint. The material allegations there are as follows: "I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City, while defendant is also of legal age, single, and residing at 525 Padre Faura, Manila, where he may be served with summons;

II. That the plaintiff and the defendant became acquainted with each other sometime in December, 1957 and soon thereafter, the defendant started visiting and courting the plaintiff; III. That the defendant's visits were regular and frequent and in due time the defendant expressed and professed his undying love and affection for the plaintiff who also in due time reciprocated the tender feelings; IV. That in the course of their engagement, the plaintiff and the defendant as are wont of young people in love had frequent outings and dates, became very close and intimate to each other and sometime in July, 1958, in consideration of the defendant's promises of marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to have carnal knowledge with him; V. That subsequent thereto and regularly until about July, 1959 except for a short period in December, 1958 when the defendant was out of the country, the defendant though his protestations, of love and promises of marriage succeeded in having carnal knowledge with plaintiff; VI. That as a result of their intimate relationship, the plaintiff started conceiving which was confirmed by a doctor sometime in July, 1959; VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant and pleaded with him to make good his promises of marriage, but instead of honoring his promises and righting his wrong, the defendant stopped and refrained from seeing the plaintiff, since about July, 1959 has not visited the plaintiff and to all intents and purposes has broken their engagement and his promises." Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. Of course, the dismissal must be understood as without prejudice to whatever actions may correspond to the child of the plaintiff against the defendant-appellant, if any. On that point, this Court makes no pronouncement, since the child's own rights are not here involved. FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the Court of First Instance is affirmed. No costs.

[G.R. No. 97336. February 19, 1993.] GASHEM SHOOKAT BAKSH, petitioner, vs. HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents. Public Attorney's Office for petitioner. Corleto R. Castro for private respondent. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL COURT; RULE AND EXCEPTIONS. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely their deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect the result of the case. (People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465 [1979]; People vs. Abejuela, 92 SCRA 503 [1979]; People vs. Arciaga, 98 SCRA 1 [1980]; People vs. Marzan, 128 SCRA 203 [1984]; People vs., Alcid, 135 SCRA 280 [1985]; People vs. Sanchez, 199 SCRA 414 [1991]; People vs. Atilano, 204 SCRA 278 [1991]). Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by the parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr., this Court took the time, again, to enumerate these exceptions: "(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970])." Petitioner has not endeavored to point out to Us the existence of any of the above quoted exceptions in this case. Consequently, the factual findings of the trial and appellate courts must be respected. 2. CIVIL LAW; QUASI-DELICT; TORTS; ART. 21 OF THE CIVIL CODE; CONSTRUED. Article 2176 of the Civil Code, which defines a quasi-delict is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasidelict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well such as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts. with certain exceptions, are to. be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the Anglo-American law on torts. (TOLENTINO, A.M. Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 72). 3. ID.; ID.; ID.; ID.; BREACH OF PROMISE TO MARRY; RULE; RATIONALE. The existing rule is that a breach of promise to marry per se is not an actionable wrong (Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; Estopa vs. Piansay, 109 Phil. 640 [1960]) Congress deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committee on the Proposed Civil Code, from which We quote: "The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided in the case of De Jesus vs. Syquia (58 Phil. 866 [1933]). The history of breach of promise suits in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this

experience which has led to the abolition of rights of action in the so-called Heart Balm suits in many of the American states . . ." This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books (Philippine National Bank vs. Court of Appeals, 83 SCRA 237 [1978]). 4. ID.; ID.; ID.; ID.; ID.; AWARD OF DAMAGES, JUSTIFIED BECAUSE OF FRAUD AND DECEIT BEHIND IT; CASE AT BAR. In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage." In short, the private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of lust but because of moral seduction the kind illustrated by the Code Commission in its example earlier adverted to. The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied-in a breach of promise to marry where the woman is a victim of moral seduction. 5. ID.; PARI DELICTO RULE; DEFINED; NOT APPRECIATED IN CASE AT BAR. The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." (Black's Law Dictionary, Fifth ed., 1004). At most, it could be conceded that she is merely in delicto. "Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the imposition or undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the transaction was itself procured by fraud." (37 AM Jur 2d. 401). In Mangayao vs. Lasud, (11 SCRA 158 [1964]) We declared: "Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does not apply where one party is literate or intelligent and the other one is not (c.f. Bough vs. Cantiveros, 40 Phil. 209)." DECISION DAVIDE, JR., J p: This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1989 Decision or Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the Philippines. cdphil The antecedents of this case are not complicated: On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a complaint 2 for damages against the petitioner for the alleged violation of their agreement to get married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City,

and is an exchange student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987; the latter courted and proposed to marry her; she accepted his love on the condition that they would get married; they therefore agreed to get married after the end of the school semester, which was in October of that year; petitioner then visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing of the complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a result of such maltreatment, she sustained injuries, during a confrontation with a representative of the barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with him anymore and; the petitioner is already married to someone living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as may be just and equitable. The complaint was docketed as Civil Case No 16503. In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the parties as averred in the complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to form a belief as to the truth thereof or because the true facts are those alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married with the private respondent; he neither sought the consent and approval of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop coming to his place because he discovered that she had deceived him by stealing his money and passport; and finally, no confrontation took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages. After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4 embodying the stipulated facts which the parties had agreed upon, to wit: "1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while the defendant is single, Iranian, citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987 up to the present; 2. That the defendant is presently studying at Lyceum-Northwestern, Dagupan City, College of Medicine, second year medicine proper. 3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette, Fernandez Avenue, Dagupan City since July, 1986 up to the present and a (sic) high school graduate; 4. That the parties happened to know each other when the Manager of the Mabuhay Luncheonette, Johnny Rabino introduced the defendant to the plaintiff on August 3, 1986." cdll After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a decision 5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and attorney's fees; the dispositive portion of the decision reads: "IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and against the defendant. 1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos as moral damages. 2. Condemning further the defendant to pay the plaintiff the sum of three thousand (P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs. 3. All other claims are denied." 6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, (d) because of his

persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her parents in accordance with Filipino customs and traditions made some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The trial court gave full credit to the private respondent's testimony because, inter alia, she would not have had the temerity and courage to come to court and expose her honor and reputation to public scrutiny and ridicule if her claim was false. 7 The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent in the foregoing decision, digested by the respondent Court as follows: "According to plaintiff, who claimed that she was a virgin at the time and that she never had a boyfriend before, defendant started courting her just a few days after they first met. He later proposed marriage to her several times and she accepted his love as well as his proposal of marriage on August 20, 1987, on which same day he went with her to her hometown of Banaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their relationship and their intention to get married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with plaintiff, were taken that day. Also on that occasion, defendant told plaintiff's parents and brothers and sisters that he intended to marry her during the semestral break in October, 1987, and because plaintiff's parents thought he was good and trusted him, they agreed to his proposal for him to marry their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff during the few days that they were in Bugallon. When plaintiff and defendant later returned to Dagupan City, they continued to live together in defendant's apartment. However, in the early days of October, 1987, defendant would tie plaintiff's hands and feet while he went to school, and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day and night until the following day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave her some medicine to abort the foetus. Still plaintiff continued to live with defendant and kept reminding him of his promise to marry her until he told her that he could not do so because he was already married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to her parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod send by the barangay captain went to talk to defendant to still convince him to marry plaintiff, but defendant insisted that he could not do so because he was already married to a girl in Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that defendant is still single. Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to marry Marilou, he already looked for sponsors for the wedding, started preparing for the reception by looking for pigs and chickens, and even already invited many relatives and friends to the forthcoming wedding." 8 Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G R. CV No. 24256. In his Brief, 9 he contended that the trial court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral damages, attorney's fees, litigation expenses and costs. Cdpr On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the following analysis: "First of all, plaintiff, then only 21 years old when she met defendant who was already 23 years old at the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a virgin prior to her unfortunate experience with defendant and never had a boyfriend. She is, as described by the lower court, a barrio lass 'not used and accustomed to the trend of modern urban life', and certainly would (sic) not have allowed 'herself to be deflowered by the defendant if there was no persuasive promise made by the defendant to marry her.' In fact, we agree with the lower court that plaintiff and defendant must have been sweethearts or so the plaintiff must have thought because of the deception of defendant, for otherwise, she would not have allowed herself to be photographed with defendant in public in so (sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's pretense that plaintiff was a nobody to him except a waitress at the restaurant where he usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Banaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn id.). Would

defendant have left Dagupan City where he was involved in the serious study of medicine to go to plaintiff's hometown in Banaga, Bugallon, unless there was (sic) some kind of special relationship between them? And this special relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was working and where defendant first proposed marriage to her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which she declared was the reason why plaintiff resigned from her job at the restaurant after she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988). Upon the other hand, appellant does not appear to be a man of good moral character and must think so low and have so little respect and regard for Filipino women that he openly admitted that when he studied in Bacolod City for several years where he finished his B.S. Biology before he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In other words, he also lived with another woman in Bacolod City but did not marry that woman, just like what he did to plaintiff. It is not surprising, then, that he felt so little compunction or remorse in pretending to love and promising to marry plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her." 11 and then concluded: "In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage. And as these acts of appellant are palpably and undoubtedly against morals, good customs, and public policy, and are even gravely and deeply derogatory and insulting to our women, coming as they do from a foreigner who has been enjoying the hospitality of our people and taking advantage of the opportunity to study in one of our institutions of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the moral damages and injury that he had caused plaintiff, as the lower court ordered him to do in its decision in this case." 12 Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13 It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or violated any good custom or public policy; he has not professed love or proposed marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he does not possess good moral character. Moreover, his controversial "common law wife" is now his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private respondent and had also promised to marry her, such acts would not be actionable in view of the special circumstances of the case. The mere breach of promise is not actionable. 14 On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his Reply thereto, this Court gave due course to the petition and required the parties to submit their respective Memoranda, which they subsequently complied with. prLL As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely their deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect the result of the case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of substance or value which could alter the result of the case. Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by the parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions: xxx xxx xxx

"(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970])." Petitioner has not endeavored to point out to Us the existence of any of the above quoted exceptions in this case. Consequently, the factual findings of the trial and appellate courts must be respected. And now to the legal issue. The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committee on the Proposed Civil Code, from which We quote: "The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The history of breach of promise suits in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of rights of action in the so-called Heart Balm suits in many of the American states .." 19 This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasidelict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. 20 As the Code Commission itself stated in its Report: "'But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: LLpr 'ARTICLE 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.' 'An example will illustrate the purview of the foregoing norm: 'A' seduces the nineteen-year old daughter of 'X.' A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and though the girl and her family have suffered

incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action. Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes." 21 Article 2176, of the Civil Code, which defines a quasi-delict thus: "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter." is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well such as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts. with certain exceptions, are to. be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the Anglo-American law on torts. 23 In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage." 24 In short, the private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of lust but because of moral seduction the kind illustrated by the Code Commission in its example earlier adverted to. The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied-in a breach of promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the woman because: LibLex " . . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who was around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because the court of first instance found that, complainant 'surrendered herself' to petitioner because, 'overwhelmed by her love' for him, she 'wanted to bind' him 'by having a fruit of their engagement even before they had the benefit of clergy.'" In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been moral seduction, recovery was eventually denied because We were not convinced that such seduction existed. The following enlightening disquisition and conclusion were made in the said case:

"The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595). It has been ruled in the Buenaventura case (supra) that 'To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent Dig. tit. Seduction, par. 56). She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her person to the sexual embraces of her seducer' (27 Phil. 123). And in American Jurisprudence we find: 'On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery. Accordingly it is not seduction where the willingness arises out sexual desire or curiosity of the female, and the defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward for unchastity by; which a class of adventuresses would be swift to profit.' (47 Am. Jur. 662). xxx xxx xxx

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his promise. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint." 27 In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this Court, opined that in a breach of promise to marry where there had been carnal knowledge, moral damages may be recovered: " . . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of Appeals, L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there was criminal or moral seduction, hence recovery of moral damages will prosper. If it be the other way around, there can be no recovery of moral damages, because here mutual lust has intervened). . . . ." together with "ACTUAL damages, should there be any, such as the expenses for the wedding preparations (See Domalagon v. Bolifer, 33 Phil. 471)." LLpr Senator Arturo M. Tolentino 29 is also of the same persuasion: "It is submitted that the rule in Batarra vs. Marcos 30 still subsists, notwithstanding the incorporation of the present article 31 in the Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in the legal sense, but in the vulgar sense of deception. But when the sexual act is accomplished without any deceit or qualifying circumstance of abuse of authority or influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said that there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by wilfullness (sic), the action lies. The court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive a girl sixteen years of age may not constitute deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable under the criminal law and there should have been an acquittal or dismissal of the criminal case for that reason." We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter even goes as far as stating that if the private respondent had "sustained any injury or damage in their relationship, it is primarily because of her own doing," 33 for: " . . . She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a plain high school graduate and a mere employee . . (Annex C ) or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a man who can give her economic security. Her family is in dire need of financial assistance (TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may have been offered by the petitioner." 34 These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble birth, inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a woman so circumstanced could not have even remotely occurred to him. Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe, entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his life partner. His was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his proffer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of morality and so brazenly defied the traditional respect Filipinos have for their women. It can even be said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every person to act with justice, give everyone his due and observe honesty and good faith in the exercise of his rights and in the performance of his obligations. No foreigner must be allowed to make a mockery of our laws, customs and traditions. The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35 At most, it could be conceded that she is merely in delicto. cdphil "Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the imposition or undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the transaction was itself procured by fraud." 36 In Mangayao vs. Lasud, 37 We declared: "Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does not apply where one party is literate or intelligent and the other one is not (c.f. Bough vs. Cantiveros, 40 Phil. 209)." We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the honor of their daughters and infuse upon them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs against the petitioner. cdll SO ORDERED.

THIRD DIVISION [A.M. No. P-11-2922. April 4, 2011.] (formerly A.M. OCA IPI No. 03-1778-P) MARY JANE ABANAG, complainant, vs. NICOLAS B. MABUTE, Court Stenographer I, Municipal Circuit Trial Court (MCTC), Paranas, Samar, respondent. DECISION BRION, J p: We resolve the administrative case against Nicolas B. Mabute (respondent), Court Stenographer I in the Municipal Circuit Trial Court (MCTC) of Paranas, Samar, filed by Mary Jane Abanag (complainant) for Disgraceful and Immoral Conduct. SDHAEC In her verified letter-complaint dated September 19, 2003, the complainant, a 23-year old unmarried woman, alleged that respondent courted her and professed his undying love for her. Relying on respondent's promise that he would marry her, she agreed to live with him. She became pregnant, but after several months into her pregnancy, respondent brought her to a "manghihilot" and tried to force her to take drugs to abort her baby. When she did not agree, the respondent turned cold and eventually abandoned her. She became depressed resulting in the loss of her baby. She also stopped schooling because of the humiliation that she suffered. In his comment on the complaint submitted to the Office of the Court Administrator, the respondent vehemently denied the complainant's allegations and claimed that the charges against him were baseless, false and fabricated, and were intended to harass him and destroy his reputation. He further averred that Norma Tordesillas, the complainant's co-employee, was using the complaint to harass him. Tordesillas resented him because he had chastised her for her arrogant behavior and undesirable work attitude. He believes that the complainant's letter-complaint, which was written in the vernacular, was prepared by Tordesillas who is from Manila and fluent in Tagalog; the respondent would have used the "waray" or English language if she had written the letter-complaint. The complainant filed a Reply, insisting that she herself wrote the letter-complaint. She belied the respondent's claim that she was being used by Tordesillas who wanted to get even with him. TDESCa In a Resolution dated July 29, 2005, the Court referred the letter-complaint to then Acting Executive Judge Carmelita T. Cuares of the Regional Trial Court (RTC) of Catbalogan City, Samar for investigation, report and recommendation. The respondent sought Judge Cuares' inhibition from the case, alleging that the Judge was partial and had bias in favor of the complainant; the complainant herself had bragged that she personally knew Judge Cuares. The Court designated Judge Esteban V. dela Pea, who succeeded Judge Cuares as Acting Executive Judge, to continue with the investigation of the case. 1 Eventually, Judge Agerico A. Avila took over the investigation when he was designated the Executive Judge of the RTC of Catbalogan City, Samar.

In his Report/Recommendation dated June 7, 2010, 2 Executive Judge Avila reported on the developments in the hearing of the case. The complainant testified that she met the respondent while she was a member of the Singles for Christ. They became acquainted and they started dating. The relationship blossomed until they lived together in a rented room near the respondent's office. The respondent, for his part, confirmed that he met the complainant when he joined the Singles for Christ. He described their liaison as a dating relationship. He admitted that the complainant would join him at his rented room three to four times a week; when the complainant became pregnant, he asked her to stay and live with him. He vehemently denied having brought the complainant to a local "manghihilot" and that he had tried to force her to abort her baby. He surmised that the complainant's miscarriage could be related to her epileptic attacks during her pregnancy. The respondent further testified that the complainant's mother did not approve of him, but the complainant defied her mother and lived with him. He proposed marriage to the complainant, but her mother did not like him as a son-in-law and ordered the complainant to return

home. The complainant obeyed her mother. They have separated ways since then, but he pledged his undying love for the complainant. AHDacC The Investigating Judge recommends the dismissal of the complaint against the respondent, reporting that: Normally the personal affair of a court employee who is a bachelor and has maintained an amorous relation with a woman equally unmarried has nothing to do with his public employment. The sexual liaison is between two consenting adults and the consequent pregnancy is but a natural effect of the physical intimacy. Mary Jane was not forced to live with Nicolas nor was she impelled by some devious means or machination. The fact was, she freely acceded to cohabit with him. The situation maynot-be-so-ideal but it does not give cause for administrative sanction. There appears no law which penalizes or prescribes the sexual activity of two unmarried persons. So, the accusation of Mary Jane that Nicolas initiated the abortion was calculated to bring the act within the ambit of an immoral, disgraceful and gross misconduct. Except however as to the self-serving assertion that Mary Jane was brought to a local midwife and forced to take the abortifacient, there was no other evidence to support that it was in fact so. All pointed to a harmonious relation that turned sour. In no small way Mary Jane was also responsible of what befell upon her. 3 The Court defined immoral conduct as conduct that is willful, flagrant or shameless, and that shows a moral indifference to the opinion of the good and respectable members of the community. 4 To justify suspension or disbarment, the act complained of must not only be immoral, but grossly immoral. 5 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or an act so unprincipled or disgraceful as to be reprehensible to a high degree. 6 HTacDS Based on the allegations of the complaint, the respondent's comment, and the findings of the Investigating Judge, we find that the acts complained of cannot be considered as disgraceful or grossly immoral conduct. We find it evident that the sexual relations between the complainant and the respondent were consensual. They met at the Singles for Christ, started dating and subsequently became sweethearts. The respondent frequently visited the complainant at her boarding house and also at her parents' residence. The complainant voluntarily yielded to the respondent and they eventually lived together as husband and wife in a rented room near the respondent's office. They continued their relationship even after the complainant had suffered a miscarriage. Mere sexual relations between two unmarried and consenting adults are not enough to warrant administrative sanction for illicit behavior. 7 The Court has repeatedly held that voluntary intimacy between a man and a woman who are not married, where both are not under any impediment to marry and where no deceit exists, is neither a criminal nor an unprincipled act that would warrant disbarment or disciplinary action. 8 While the Court has the power to regulate official conduct and, to a certain extent, private conduct, it is not within our authority to decide on matters touching on employees' personal lives, especially those that will affect their and their family's future. We cannot intrude into the question of whether they should or should not marry. 9 However, we take this occasion to remind judiciary employees to be more circumspect in their adherence to their obligations under the Code of Professional Responsibility. The conduct of court personnel must be free from any taint of impropriety or scandal, not only with respect to their official duties but also in their behavior outside the Court as private individuals. This is the best way to preserve and protect the integrity and the good name of our courts. 10 SAHIDc WHEREFORE, the Court resolves to DISMISS the present administrative complaint against Nicolas B. Mabute, Stenographer 1 of the Municipal Circuit Trial Court, Paranas, Samar, for lack of merit. No costs. SO ORDERED.

[G.R. No. 159567. July 31, 2007.] CORAZON CATALAN, LIBRADA CATALAN-LIM, EULOGIO CATALAN, MILA CATALAN-MILAN, ZENAIDA CATALAN, ALEX CATALAN, DAISY CATALAN, FLORIDA CATALAN and GEMMA CATALAN, Heirs of the late FELICIANO CATALAN, petitioners, vs. JOSE BASA, MANUEL BASA, LAURETA BASA, DELIA BASA, JESUS BASA and ROSALINDA BASA, Heirs of the late MERCEDES CATALAN, respondents. DECISION PUNO, C.J p: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the Court of Appeals decision in CAG.R. CV No. 66073, which affirmed the judgment of the Regional Trial Court, Branch 69, Lingayen, Pangasinan, in Civil Case No. 17666, dismissing the Complaint for Declaration of Nullity of Documents, Recovery of Possession and Ownership, and damages. ATcEDS The facts, which are undisputed by the parties, follow: On October 20, 1948, FELICIANO CATALAN (Feliciano) was discharged from active military service. The Board of Medical Officers of the Department of Veteran Affairs found that he was unfit to render military service due to his "schizophrenic reaction, catatonic type, which incapacitates him because of flattening of mood and affect, preoccupation with worries, withdrawal, and sparce (sic) and pointless speech." 1 On September 28, 1949, Feliciano married Corazon Cerezo. 2 On June 16, 1951, a document was executed, titled "Absolute Deed of Donation", 3 wherein Feliciano allegedly donated to his sister MERCEDES CATALAN (Mercedes) one-half of the real property described, viz: A parcel of land located at Barangay Basing, Binmaley, Pangasinan. Bounded on the North by heirs of Felipe Basa; on the South by Barrio Road; On the East by heirs of Segundo Catalan; and on the West by Roman Basa. Containing an area of Eight Hundred One (801) square meters, more or less. The donation was registered with the Register of Deeds. The Bureau of Internal Revenue then cancelled Tax Declaration No. 2876, and, in lieu thereof, issued Tax Declaration No. 18080 4 to Mercedes for the 400.50 square meters donated to her. The remaining half of the property remained in Feliciano's name under Tax Declaration No. 18081. 5 HISAET On December 11, 1953, People's Bank and Trust Company filed Special Proceedings No. 4563 6 before the Court of First Instance of Pangasinan to declare Feliciano incompetent. On December 22, 1953, the trial court issued its Order for Adjudication of Incompetency for Appointing Guardian for the Estate and Fixing Allowance 7 of Feliciano. The following day, the trial court appointed People's Bank and Trust Company as Feliciano's guardian. 8 People's Bank and Trust Company has been subsequently renamed, and is presently known as the Bank of the Philippine Islands (BPI). On November 22, 1978, Feliciano and Corazon Cerezo donated Lots 1 and 3 of their property, registered under Original Certificate of Title (OCT) No. 18920, to their son Eulogio Catalan. 9 On March 26, 1979, Mercedes sold the property in issue in favor of her children Delia and Jesus Basa. 10 The Deed of Absolute Sale was registered with the Register of Deeds of Pangasinan on February 20, 1992, and Tax Declaration No. 12911 was issued in the name of respondents. 11 ACcHIa On June 24, 1983, Feliciano and Corazon Cerezo donated Lot 2 of the aforementioned property registered under OCT No. 18920 to their children Alex Catalan, Librada Catalan and Zenaida Catalan. On February 14, 1983, Feliciano and Corazon Cerezo donated Lot 4 (Plan Psu-215956) of the same OCT No. 18920 to Eulogio and Florida Catalan. 12 On April 1, 1997, BPI, acting as Feliciano's guardian, filed a case for Declaration of Nullity of Documents, Recovery of Possession and Ownership, 13 as well as damages against the herein respondents. BPI alleged that the Deed of Absolute Donation to Mercedes was void ab initio, as Feliciano never donated the property to Mercedes. In addition, BPI averred that even if Feliciano had truly intended to give the property to her, the donation would still be void, as he was not of sound mind

and was therefore incapable of giving valid consent. Thus, it claimed that if the Deed of Absolute Donation was void ab initio, the subsequent Deed of Absolute Sale to Delia and Jesus Basa should likewise be nullified, for Mercedes Catalan had no right to sell the property to anyone. BPI raised doubts about the authenticity of the deed of sale, saying that its registration long after the death of Mercedes Catalan indicated fraud. Thus, BPI sought remuneration for incurred damages and litigation expenses. aSIATD On August 14, 1997, Feliciano passed away. The original complaint was amended to substitute his heirs in lieu of BPI as complainants in Civil Case No. 17666. On December 7, 1999, the trial court found that the evidence presented by the complainants was insufficient to overcome the presumption that Feliciano was sane and competent at the time he executed the deed of donation in favor of Mercedes Catalan. Thus, the court declared, the presumption of sanity or competency not having been duly impugned, the presumption of due execution of the donation in question must be upheld. 14 It rendered judgment, viz: WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered: 1. Dismissing plaintiff's complaint;

2. Declaring the defendants Jesus Basa and Delia Basa the lawful owners of the land in question which is now declared in their names under Tax Declaration No. 12911 (Exhibit 4); 3. Ordering the plaintiff to pay the defendants Attorney's fees of P10,000.00, and to pay the Costs. (sic)

SO ORDERED. 15 IHaECA Petitioners challenged the trial court's decision before the Court of Appeals via a Notice of Appeal pursuant to Rule 41 of the Revised Rules of Court. 16 The appellate court affirmed the decision of the trial court and held, viz: In sum, the Regional Trial Court did not commit a reversible error in disposing that plaintiff-appellants failed to prove the insanity or mental incapacity of late (sic) Feliciano Catalan at the precise moment when the property in dispute was donated. Thus, all the elements for validity of contracts having been present in the 1951 donation coupled with compliance with certain solemnities required by the Civil Code in donation inter vivos of real property under Article 749, which provides: xxx xxx xxx

Mercedes Catalan acquired valid title of ownership over the property in dispute. By virtue of her ownership, the property is completely subjected to her will in everything not prohibited by law of the concurrence with the rights of others (Art. 428, NCC). ISaTCD The validity of the subsequent sale dated 26 March 1979 (Exhibit 3, appellees' Folder of Exhibits) of the property by Mercedes Catalan to defendant-appellees Jesus Basa and Delia Basa must be upheld. Nothing of the infirmities which allegedly flawed its authenticity is evident much less apparent in the deed itself or from the evidence adduced. As correctly stated by the RTC, the fact that the Deed of Absolute Sale was registered only in 1992, after the death of Mercedes Catalan does not make the sale void ab initio. Moreover, as a notarized document, the deed of absolute sale carries the evidentiary weight conferred upon such public document with respect to its due execution (Garrido vs. CA 236 SCRA 450). In a similar vein, jurisprudence has it that documents acknowledged before a notary public have in their favor the presumption of regularity, and to contradict the same, there must be evidence that is clear, convincing and more than preponderant (Salame vs. CA, 239 SCRA 256). WHEREFORE, foregoing premises considered, the Decision dated December 7, 1999 of the Regional Trial Court, Branch 69, is hereby affirmed. DEICTS SO ORDERED. 17 Thus, petitioners filed the present appeal and raised the following issues:

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS DECIDED CA-G.R. CV NO. 66073 IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT IN HOLDING THAT "THE REGIONAL TRIAL COURT DID NOT COMMIT A REVERSIBLE ERROR IN DISPOSING THAT PLAINTIFFAPPELLANTS (PETITIONERS) FAILED TO PROVE THE INSANITY OR MENTAL INCAPACITY OF THE LATE FELICIANO CATALAN AT THE PRECISE MOMENT WHEN THE PROPERTY IN DISPUTE WAS DONATED"; 2. WHETHER OR NOT THE CERTIFICATE OF DISABILITY FOR DISCHARGE (EXHIBIT "S") AND THE REPORT OF A BOARD OF OFFICERS CONVENED UNDER THE PROVISIONS OF ARMY REGULATIONS (EXHIBITS "S-1" AND "S-2") ARE ADMISSIBLE IN EVIDENCE; TcHCIS 3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS DECIDED CA-G.R. CV NO. 66073 IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT IN UPHOLDING THE SUBSEQUENT SALE OF THE PROPERTY IN DISPUTE BY THE DONEE MERCEDES CATALAN TO HER CHILDREN RESPONDENTS JESUS AND DELIA BASA; AND 4. WHETHER OR NOT CIVIL CASE NO. 17666 IS BARRED BY PRESCRIPTION AND LACHES. 18

Petitioners aver that the presumption of Feliciano's competence to donate property to Mercedes had been rebutted because they presented more than the requisite preponderance of evidence. First, they presented the Certificate of Disability for the Discharge of Feliciano Catalan issued on October 20, 1948 by the Board of Medical Officers of the Department of Veteran Affairs. Second, they proved that on December 22, 1953, Feliciano was judged an incompetent by the Court of First Instance of Pangasinan, and put under the guardianship of BPI. Based on these two pieces of evidence, petitioners conclude that Feliciano had been suffering from a mental condition since 1948 which incapacitated him from entering into any contract thereafter, until his death on August 14, 1997. Petitioners contend that Feliciano's marriage to Corazon Cerezo on September 28, 1948 does not prove that he was not insane at the time he made the questioned donation. They further argue that the donations Feliciano executed in favor of his successors (Decision, CA-G.R. CV No. 66073) also cannot prove his competency because these donations were approved and confirmed in the guardianship proceedings. 19 In addition, petitioners claim that the Deed of Absolute Sale executed on March 26, 1979 by Mercedes Catalan and her children Jesus and Delia Basa is simulated and fictitious. This is allegedly borne out by the fact that the document was registered only on February 20, 1992, more than 10 years after Mercedes Catalan had already died. Since Delia Basa and Jesus Basa both knew that Feliciano was incompetent to enter into any contract, they cannot claim to be innocent purchasers of the property in question. 20 Lastly, petitioners assert that their case is not barred by prescription or laches under Article 1391 of the New Civil Code because they had filed their case on April 1, 1997, even before the four year period after Feliciano's death on August 14, 1997 had begun. 21 DAEICc The petition is bereft of merit, and we affirm the findings of the Court of Appeals and the trial court. A donation is an act of liberality whereby a person disposes gratuitously a thing or right in favor of another, who accepts it. 22 Like any other contract, an agreement of the parties is essential. Consent in contracts presupposes the following requisites: (1) it should be intelligent or with an exact notion of the matter to which it refers; (2) it should be free; and (3) it should be spontaneous. 23 The parties' intention must be clear and the attendance of a vice of consent, like any contract, renders the donation voidable. 24 In order for donation of property to be valid, what is crucial is the donor's capacity to give consent at the time of the donation. Certainly, there lies no doubt in the fact that insanity impinges on consent freely given. 25 However, the burden of proving such incapacity rests upon the person who alleges it; if no sufficient proof to this effect is presented, capacity will be presumed. 26 A thorough perusal of the records of the case at bar indubitably shows that the evidence presented by the petitioners was insufficient to overcome the presumption that Feliciano was competent when he donated the property in question to Mercedes. Petitioners make much ado of the fact that, as early as 1948, Feliciano had been found to be suffering from schizophrenia by the Board of Medical Officers of the Department of Veteran Affairs. By itself, however, the allegation cannot prove the incompetence of Feliciano. STIcaE A study of the nature of schizophrenia will show that Feliciano could still be presumed capable of attending to his property rights. Schizophrenia was brought to the attention of the public when, in the late 1800s, Emil Kraepelin, a German psychiatrist, combined "hebrephrenia" and "catatonia" with certain paranoid states and called the condition "dementia praecox". Eugene

Bleuler, a Swiss psychiatrist, modified Kraepelin's conception in the early 1900s to include cases with a better outlook and in 1911 renamed the condition "schizophrenia". According to medical references, in persons with schizophrenia, there is a gradual onset of symptoms, with symptoms becoming increasingly bizarre as the disease progresses. The condition improves (remission or residual stage) and worsens (relapses) in cycles. Sometimes, sufferers may appear relatively normal, while other patients in remission may appear strange because they speak in a monotone, have odd speech habits, appear to have no emotional feelings and are prone to have "ideas of reference". The latter refers to the idea that random social behaviors are directed against the sufferers. 27 It has been proven that the administration of the correct medicine helps the patient. Antipsychotic medications help bring biochemical imbalances closer to normal in a schizophrenic. Medications reduce delusions, hallucinations and incoherent thoughts and reduce or eliminate chances of relapse. 28 Schizophrenia can result in a dementing illness similar in many aspects to Alzheimer's disease. However, the illness will wax and wane over many years, with only very slow deterioration of intellect. 29 IDCHTE From these scientific studies it can be deduced that a person suffering from schizophrenia does not necessarily lose his competence to intelligently dispose his property. By merely alleging the existence of schizophrenia, petitioners failed to show substantial proof that at the date of the donation, June 16, 1951, Feliciano Catalan had lost total control of his mental faculties. Thus, the lower courts correctly held that Feliciano was of sound mind at that time and that this condition continued to exist until proof to the contrary was adduced. 30 Sufficient proof of his infirmity to give consent to contracts was only established when the Court of First Instance of Pangasinan declared him an incompetent on December 22, 1953. 31 It is interesting to note that the petitioners questioned Feliciano's capacity at the time he donated the property, yet did not see fit to question his mental competence when he entered into a contract of marriage with Corazon Cerezo or when he executed deeds of donation of his other properties in their favor. The presumption that Feliciano remained competent to execute contracts, despite his illness, is bolstered by the existence of these other contracts. Competency and freedom from undue influence, shown to have existed in the other acts done or contracts executed, are presumed to continue until the contrary is shown. 32 CaHcET Needless to state, since the donation was valid, Mercedes had the right to sell the property to whomever she chose. 33 Not a shred of evidence has been presented to prove the claim that Mercedes' sale of the property to her children was tainted with fraud or falsehood. It is of little bearing that the Deed of Sale was registered only after the death of Mercedes. What is material is that the sale of the property to Delia and Jesus Basa was legal and binding at the time of its execution. Thus, the property in question belongs to Delia and Jesus Basa. Finally, we note that the petitioners raised the issue of prescription and laches for the first time on appeal before this Court. It is sufficient for this Court to note that even if the present appeal had prospered, the Deed of Donation was still a voidable, not a void, contract. As such, it remained binding as it was not annulled in a proper action in court within four years. 34 IN VIEW WHEREOF, there being no merit in the arguments of the petitioners, the petition is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 66073 is affirmed in toto. SO ORDERED.

[G.R. No. L-11872. December 1, 1917.] DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants, vs. JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendant-appellee. Perfecto Salas Rodriguez for appellants. Vicente Foz for appellee. SYLLABUS 1. VENDOR AND PURCHASER; MINORS. The annulment of a deed of sale of a piece of land was sought on the ground that two of the four parties thereto were minors, 18 and 19 years old, respectively, on the date when the instrument was executed, but no direct proof of this alleged circumstance was adduced by means of certified copies of the baptismal certificates of the two minors, nor any supplemental proof such as might establish that in fact they were minors on that date. Held: That the statement made by one of the adult parties of said deed, in reference to certain notes made in a book or copybook of a private nature, which she said their father kept during his lifetime and until his death, is not sufficient to prove the plaintiffs' minority on the date of the execution of the deed. 2. ID.; ID. The courts have laid down the rule that the sale of real estate, effected by minors who have already passed the ages of puberty and adolescence and are near the adult age when they pretend to have already reached their majority, while in fact they have not, is valid, and they cannot be permitted after wards to excuse themselves from compliance with the obligation assumed by them or to seek their annulment. (Law 6, title 19, 6th partida.) The judgment that holds such a sale to be valid and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale of minors property nor the rules laid down in consonance therewith. (Decisions of the Supreme Court of Spain, of April 27, 1860, July 11, 1868, and March 1, 1875.) This doctrine is entirely in accord with the provisions of section 333 of the Code of Civil Procedure, which determines cases of estoppel. DECISION TORRES, J p: This is an appeal by bill of exceptions, filed by counsel for the plaintiffs from the judgment of September 22, 1914, in which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered them to keep perpetual silence in regard to the litigated land, and to pay the costs of the suit. By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First Instance of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the complaint was amended by being directed against Jose Espiritu in his capacity of administrator of the estate of the deceased Luis Espiritu. The plaintiffs alleged that they and their sisters Concepcion and Paz, all surnamed Mercado, were the children and sole heirs of Margarita Espiritu, a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving as her paraphernal property a tract of land of 48 hectares in area situated in the barrio of Panducot, municipality of Calumpit, Bulacan, and bounded as described in paragraph 4 of the amended complaint, which hereditary portion had since then been held by the plaintiffs and their sisters, through their father Wenceslao Mercado, husband of Margarita Espiritu; that, about the year 1910, said Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded in getting the plaintiffs Domingo and Josefa Mercado to sign a deed of sale of the land left by their mother, for the sum of P400, which amount was divided among the two plaintiffs and their sisters Concepcion and Paz, notwithstanding the fact that said land, according to its assessment, was valued at P3,795; that one-half of the land in question belonged to Margarita Espiritu, and one-half of this share, that is, one-fourth of said land, to the plaintiffs, and the other one-fourth, to their two sisters Concepcion and Paz; that the part of the land belonging to the two plaintiffs could produce 180 cavanes of rice per annum, which, at P2.50 per cavanes was equivalent to P450 per annum; and that Luis Espiritu had received said products from 1901 until the time of his death. Said counsel therefore asked that judgment be rendered in plaintiffs' favor by holding to be null and void the sale they made of their respective shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and restore to the plaintiffs the shares of the land that fell to the latter in the partition of the estate of their deceased mother Margarita Espiritu, together with the products thereof, uncollected since 1901, or their equivalent, to wit, P450 per annum, and to pay the costs of the suit.

In due season the defendant administrator answered the aforementioned complaint, denying each and all of the allegations therein contained, and in special defense alleged that the land, the subject-matter of the complaint, had an area of only 21 cavanes of seed rice; that, on May 25, 1894, its owner, the deceased Margarita Espiritu y Yutoc, the plaintiffs' mother, with the due authorization of her husband Wenceslao Mercado y Arnedo Cruz sold to Luis Espiritu for the sum of P2,000 a portion of said land, to wit, an area such as is usually required for fifteen cavanes of seed; that subsequently, on May 14, 1901, Wenceslao Mercado y Aredo Cruz, the plaintiffs' father, in his capacity as administrator of the property of his children sold under pacto de retro to the same Luis Espiritu at the price of P375 the remainder of said land, to wit, an area covered by six cavanes of seed to meet the expenses of the maintenance of his (Wenceslao's) children, and this amount being still insufficient he successively borrowed from said Luis Espiritu other sums of money aggregating a total of P600; but that later, on May 17, 1910, the plaintiffs, alleging themselves to be of legal age, executed, with their sisters Maria del Consejo and Maria de la Paz, the notarial instrument inserted integrally in the 5th paragraph of the answer, by which instrument, ratifying said sale under pacto de retro of the land that had belonged to their mother Margarita Espiritu, effected by their father Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600, they sold absolutely and perpetually to said Luis Espiritu, in consideration of P400, the property that had belonged to their deceased mother and which they acknowledged having received from the aforementioned purchaser. In his cross complaint the defendant alleged that the complaint filed by the plaintiffs was unfounded and malicious, and that thereby losses and damages in the sum of P1,000 had been caused to the intestate estate of the said Luis Espiritu. He therefore asked that judgment be rendered by ordering the plaintiffs to keep perpetual silence with respect to the land in litigation and, besides, to pay said intestate estate P1,000 for losses and damages, and that the costs of the trial be charged against them. In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in special defense alleged that at the time of the execution of the deed of sale inserted in the cross-complaint the plaintiffs were still minors, and that since they reached their majority the four years fixed by law for the annulment of said contract had not yet elapsed. They therefore asked that they be absolved from the defendant's cross-complaint. After trial and the introduction of evidence by both parties, the court rendered the judgment aforementioned, to which the plaintiffs excepted and in writing moved for a reopening of the case and a new trial. This motion was overruled, exception was taken by the petitioners, and, the proper bill of exceptions having been presented, the same was approved and transmitted to the clerk of this court. As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17, 1910, on the ground that they were minors when they executed it, the questions submitted to the decision of this court consist in determining whether it is true that the plaintiffs were then minors and therefore incapable of selling their property on the date borne by the instrument Exhibit 3; and in case they then were such, whether a person who is really and truly a minor and, notwithstanding, attests that he is of legal age, can, after the execution of the deed and within the legal period, ask for the annulment of the instrument executed by him, because of some defect that invalidates the contract, in accordance with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of the land sold. The record shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by composition with the State, to three parcels of land, adjoining each other, in the sitio of Panducot of the pueblo of Calumpit, Bulacan, containing altogether an area of 75 hectares, 25 ares and 69 centares, which facts appear in the title Exhibit D; that, upon Luis Espiritu's death, his said lands passed by inheritance to his four children named Victoria, Ines, Margarita, and Luis; and that, in the partition of said decedent's estate, the parcel of land described in the complaint as containing forty-seven and odd hectares was allotted to the brother and sister Luis and Margarita in equal shares. Margarita Espiritu, married to Wenceslao Mercado y Arnedo Cruz, had by this husband five children, Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, all surnamed Mercado y Espiritu, who, at the death of their mother in 1896 inherited, by operation of law, one-half of the land described in the complaint. The plaintiffs' petition for the annulment of the sale and the consequent restitution to them of two-fourths of the land left by their mother, that is, of one-fourth of all the land described in the complaint, and which, they stated amounts to 11 hectares, 86 ares and 37 centares. To this claim the defendant excepted, alleging that the land in question comprised only an area such as is customarily covered by 21 cavanes of seed. It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed by actual and absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land now in litigation, or an area such as is usually covered by about 15 cavanes of seed; and that, on account of the loss of the original of said instrument, which was in the

possession of the purchaser Luis Espiritu, and furthermore because, during the revolution, the protocols or registers of public documents of the Province of Bulacan were burned, Wenceslao Mercado y Arnedo Cruz, the widower of the vendor and father of the plaintiffs, executed, at the instance of the interested party Luis Espiritu, the notarial instrument Exhibit 1, of the date of May 20, 1901, in his own name and in those of his minor children Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, and therein set forth that it was true that the sale of said portion of land had been made by his aforementioned wife, then deceased, to Luis Espiritu in 1894. However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower Wenceslao Mercado, according to the private document Exhibit 2, pledged or mortgaged to the same man, Luis Espiritu, for P375, a part, or an area covered by six cavanes of seed, of the land that had belonged to this vendor's deceased wife, Margarita Espiritu, adjoining the parcel previously sold to the said Luis Espiritu and which now forms a part of the land in question a transaction which Mercado was obliged to ,make in order to obtain funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father, having died, about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters Consejo and Paz, declaring themselves to be of legal age and in possession of the required legal status to contract, executed and subscribed before a notary- the document Exhibit 3, on May 17, 1910, in which referring to the previous sale of the land, effected by their deceased mother for the sum of P2,600 and with her husband's permission and authorization, they sold absolutely and in perpetuity to Luis Espiritu, for the sum of P400 "as an increase" of the previous purchase price, the land described in said instrument and situated in Panducot, pueblo of Calumpit, Bulacan, of an area equal to that usually sown with 21 cavanes of seed, bounded on the north by the lands of Flaviano Abreu and the heirs of Pedro Espiritu, on the east by those of Victoria Espiritu and Ines Espiritu, on the south by those of Luis Espiritu, and on the west by those of Hermogenes Tan-Toco and by the Sapang-Maitu stream. In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that on the date of its execution they were minors without legal capacity to contract, and for the further reason that the deceased purchaser Luis Espiritu availed himself of deceit and fraud in obtaining their consent for the execution of said deed. As it was proven by the testimony of the clerk of the parochial church of Apalit (the plaintiffs were born in Apalit) that the baptismal register books of that parish pertaining to the years 1890-1891, were lost or burned, the witness Maria Consejo Mercado recognized and identified the book Exhibit A, which she testified had been kept and taken care of by her deceased father Wenceslao Mercado, pages 396 and 397 of which bear the attestation that the plaintiff Domingo Mercado was born on August 4, 1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness corroborated the averment of the plaintiffs' minority, by the personal registration certificate of said Domingo Mercado, of the year 1914, Exhibit C, by which it appears that in he was only 23 years old, whereby it would also appear that Josefa Mercado was 22 years of age in 1910, and therefore, on May 17, 1910, when the instrument of purchase and sale, Exhibit 3, was executed the plaintiffs must have been, respectively, 19 and 18 years of age. The witness Maria Consejo Mercado also testified that after her father's death her brother and sisters removed to Manila to live there, although her brother Domingo used to reside with his uncle Luis Espiritu, who took charge of the administration of the property left by his predecessors in interest; that it was her uncle Luis who got for her brother Domingo the other cedula, Exhibit B, pertaining to the year 1910, wherein it appears that the latter was then already 23 years of age; that she did not know why her uncle did so; that she and her brother and sisters merely signed the deed of May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land to her uncle Luis Espiritu. The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who directed the cultivation of the land in litigation. This testimony was corroborated by her sister Victoria Espiritu, who added that her nephew, the plaintiff Domingo, had lived for some time, she did not know just how long, under the control of Luis Espiritu. Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his sister-in-law Victoria, and which had an area of about 8 hectares less than that of the land allotted to the aforementioned Luis and Margarita produced for his wife and his sister-in-law Victoria a net and minimum yield of 507 cavanes in 1907, in spite of its being high land and of inferior quality, as compared with the land in dispute, and that its yield was still larger in 1914, when the said two sisters' share was 764 cavanes. Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the defendant. He testified that the was drawn up by him at the request of the plaintiff Josefa Mercado; that the grantors of the instrument assured him that

they were all of legal age; that said document was signed by the plaintiffs and the other contracting parties, after it had been read to them and had been translated into the Pampangan dialect for those of them who did not understand Spanish. On cross-examination, witness added that ever since he was 18 years of age and began to court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she had not yet commenced to attend social gatherings, and that all this took place about the year 1898, for witness said that he was then [at the time of his testimony, 1914,] 34 years of age. Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter, testified that Espiritu's land contained an area of only 84 cavanes, and, after its owner's death, was under witness' administration during two harvest seasons; that the products yielded by a portion of this land, to wit, an area such as is sown by about 15 cavanes of seed, had been, since 1894, utilized by Luis- Espiritu, by reason of his having acquired the land; and that, after Margarita Espiritu's death, her husband Wenceslao Mercado took possession of another portion of the land, containing an area of six cavanes of seed and which had been left by this deceased, and that he held the same until 1901, when he conveyed it to Luis Espiritu. The defendant-administrator, Jose Espiritu, a son of the deceased Luis Espiritu, testified that the plaintiff Domingo Mercado used to live off and on in the house of his deceased father, about the year 1909 or 1910, and used to go back and forth between his father's house and those of his other relatives. He denied that his father had at any time administered the property belonging to the Mercado brother and sisters. In rebuttal, Antonino Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediated in several transactions in connection with a piece of land belonging to Margarita Espiritu. When shown the deed of purchase and sale Exhibit 1, he stated that he was not acquainted with its contents. This same witness also testified that he mediated in a transaction had between Wenceslao Mercado and Luis Espiritu (he did not remember the year), in which the former sold to the latter a parcel of land situated in Panducot. He stated that as he was a witness of the deed of sale he could identify this instrument were it exhibited to him; but he did not do so, for no instrument whatever was presented to him for identification. The transaction mentioned must have concerned either the ratification of the sale of the land of 15 cavanes, in 1901, attested in Exhibit 1, or the mortgage or pledge of the other parcel of 6 cavanes, given on May 14, 1901, by Wenceslao Mercado to Luis Espiritu, as may be seen by the private document Exhibit 2. In rebuttal, the plaintiff Josefa Mercado denied having gone to the house of the notary Tanjutco for the purpose of requesting him to draw up any document whatever. She stated that she saw the document Exhibit 3 for the first time in the house of her uncle Luis Espiritu on the day she signed it, on which occasion and while said document was being signed said notary was not present, nor were the witnesses thereto whose names appear therein; and that she went to her said uncle's house, because he had sent for her, as well as her brother and sisters, sending a carromata to fetch them. Victoria Espiritu denied ever having been in the house of her brother Luis Espiritu in company with the plaintiffs, for the purpose of giving her consent to the execution of any deed in behalf of her brother. The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis Espiritu employed fraud, deceit, violence or intimidation, in order to effect the sale mentioned in the document Exhibit 3, executed on May 17, 1910. In this document the vendors, the brother and sisters Domingo, Maria del Consejo, Paz, and Josefa, surnamed Mercado y Espiritu, attested the certainty of the previous sale which their mother, during her lifetime, had made in behalf of said purchaser Luis Espiritu, her brother, with the consent of her husband Wenceslao Mercado, father of the vendors of the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan; and in consideration of the fact that the said vendor Luis Espiritu paid them, as an increase, the sum of P400, by virtue of the contract made with him, they declare having sold to him absolutely and in perpetuity said parcel of land, and waive thenceforth any and all rights they may have, inasmuch as said sum constitutes the just price of the property. So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel or portion of land that would contain 15 cavanes of seed rice made by the vendors' mother in favor of the purchaser Luis Espiritu, their uncle, and likewise an acknowledgment of the contract of pledge or mortgage of the remainder of said land, an area of six cavanes, made with the same purchaser, at an increase of P400 over the price of P2,600, making an aggregate sum of P3,000, decomposed as follows: P2,000, collected during her lifetime, by the vendors' deceased mother; P600 collected by the vendors' father; and the said increase of P400, collected by the plaintiffs. In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to her brother Luis the parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs' widowed father mortgaged or pledged the remaining portion or parcel of 6 cavanes of seed to her brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So it is that the notarial instrument Exhibit 3, which was assailed by the plaintiffs, recognized the validity of the previous contracts, and the totality of

the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely and in perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the record that this last document was false and simulated on account of the employment of any violence, intimidation, fraud, or deceit, in the procuring of the consent of the vendors who executed it. Considering the relation that exists between the document Exhibit 3 and those of previous dates, Exhibits 1 and 2, and taking into account the relationship between the contracting parties, and also the general custom that prevails in many provinces of these Islands for the vendor or debtor to obtain an increase in the price of the sale or of the pledge, or an increase in the amount loaned, without proof to the contrary, it would be improper and illegal to hold, in view of the facts hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to forge or simulate the document Exhibit 3 inasmuch as, since May 1894, he has held in the capacity of owner by virtue of a prior acquisition, the parcel of land of 15 cavanes of seed, and likewise, since May, 1901, according to the contract of mortgage or pledge, the parcel of 6 cavanes, or the remainder of the total area of 21 cavanes. So that Luis Espiritu was, during his lifetime, and now after his death, his testate or intestate estate is in lawful possession of the parcel of land situated in Panducot that contains 21 cavanes of seed, by virtue of the title of conveyance of ownership of the land measuring 15 cavanes and, in consequence of the contract of pledge or mortgage in security for the sum of P600, is likewise in lawful possession of the remainder of the land, or an area containing 6 cavanes of seed. The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership was conveyed to the purchaser by means of a singular title of purchase and sale; and as to the other portion of 6 cavanes of seed, they could have redeemed it before May 17, 1910, upon the payment or the return of the sum which their deceased father Wenceslao Mercado had, during his lifetime, received as a loan under security of the pledged property; but, after the execution of the document Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said parcel of 6 cavanes. It is therefore a rash venture to attempt to recover this latter parcel by means of the contract of final and absolute sale, set forth in the deed Exhibit 3. Moreover, the notarial document Exhibit 1, as regards the statements made therein, is of the nature of a public document and is evidence of the fact which gave rise to its execution and of the date of the latter, even against a third person and his predecessors in interest such as are the plaintiffs. (Civ. Code, art. 1218.) The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita Espiritu sold said parcel of land which she inherited from her father, of an area of about "15 cavanes of seed," to her brother Luis Espiritu, by means of an instrument executed by her on May 25, 1894 an instrument that disappeared or was burned and likewise recognizing that the protocols and register books belonging to the Province of Bulacan were destroyed as a result of the past revolution, at the request of his brother-in-law Luis Espiritu he had no objection to give the testimony recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so doing he acted as the plaintiffs' legitimate father in the exercise of his parental authority, inasmuch as he had personal knowledge of said sale, he himself being the husband who authorized said conveyance, notwithstanding that his testimony affected his children's interests and prejudiced his own, as the owner of any fruits that might be produced by said real property. The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the plaintiffs, Consejo Mercado, and as the record shows no evidence whatever that this document is false, and it does not appear to have been assailed as such, and as it was signed by the plaintiffs father, there is no legal ground or well-founded reason why it should be rejected. It was therefore properly admitted as evidence of the certainty of the facts therein set forth. The principal defect attributed by the plaintiffs to the document Exhibit 3 consista in that, on the date of May 17, 1910, when it was executed and they signed it, they were minors, that is, they had not yet attained the age of 21 years fixed by Act No. 1891, though no evidence appears in the record that the plaintiffs Josefa and Domingo Mercado were in fact minors, for no certified copies were presented of their respective baptismal certificates, nor did the plaintiffs adduce any supplemental evidence whatever to prove that Domingo was actually 19 and Josefa 18 years of age when they signed the document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A, notwithstanding the testimony of the plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of the births of the said Domingo and Josefa. However, even in the doubt whether they certainly were of legal age on the date referred to, it cannot be gainsaid that in the document Exhibit 3 they stated that they were of legal age at the time they executed and signed it, and on that account the sale

mentioned in said notarial deed Exhibit 3 is perfectly valid a sale that is considered as limited solely to the parcel of land of 6 cavanes of seed, pledged by the deceased father of the plaintiffs in security for P600 received by him as a loan from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes had been lawfully sold by its original owner, the plaintiffs' mother. The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who pretend to be of legal age, when in fact they are not, is valid, and they will not be permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to have them annulled in pursuance of the provisions of Law 6, title 19, of the 6th Partida; and the judgment that holds such a sale to be valid and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860, July 11, 1868, and March 1, 1875.) With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis Espiritu who took out Domingo Mercado's personal registration certificate on April 13, 1910, causing the age of 23 years to be entered therein in order to corroborate the date of the notarial instrument of May 17th of the same year; and the supposition that he did, would also allow it to be supposed, in order to show the propriety of the claim, that the cedula Exhibit C was taken out on February 14, 1914, wherein it is recorded that Domingo Mercado was on that date 23 years of age, for both these facts are not proved; neither was any proof adduced against the statement made by the plaintiffs Domingo and Josefa in the notarial instrument Exhibit 3, that, on the date when they executed it, they were already of legal age, and, besides the annotation contained in the copybook Exhibit A, no supplemental proof of their true ages was introduced. Aside from the foregoing, from a careful examination of the record in this case, it cannot be concluded that the plaintiffs, who claim to have been minors when they executed the notarial instrument Exhibit 3, have suffered positive and actual losses and damages in their rights and interests as a result of the execution of said document, inasmuch as the sale effected by the plaintiffs' mother, Margarita Espiritu, in May, 1894, of the greater part of the land of 21 cavanes of seed, did not occasion the plaintiffs any damage or prejudice whatever, for the reason that the portion of the land sold to Luis Espiritu was disposed of by its lawful owner, and, with respect to the area of 6 cavanes that was a part of the same property and was pledged or mortgaged by the plaintiffs' father, neither did this transaction occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the document Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to secure the loan of the P375 furnished by Luis Espiritu and which was subsequently increased to P600 so as to provide for certain engagements or perhaps to meet the needs of his children, the plaintiff; and therefore, to judge from the statements made by their father himself, they received through him, in exchange for the land of 6 cavanes of seed, which passed into the possession of the creditor Luis Espiritu, the benefit which must have accrued to them from the sums of money received as loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs received and divided between themselves the sum of P400, which sum, added to that of the P2,000 received by Margarita Espiritu, and to that of the P600 collected by Wenceslao Mercado, widower of the latter and father of the plaintiffs, makes all together the sum of P3,000, the amount paid by the purchaser as the price of all the land containing 21 cavanes of seed, and is the just price of the property, was not impugned, and, consequently, should be considered as equivalent to, and compensatory for, the true value of said land. For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been refuted, and deeming said judgment to be in accordance with law and the evidence of record, we should, and do hereby, affirm the same, with the costs against the appellants. So ordered. Arellano, C.J., Johnson, Araullo, Street and Malcolm, JJ., concur. Separate Opinions CARSON, J., concurring: I concur. But in order to avoid misunderstanding, I think it well to indicate that the general statement in the prevailing opinion to the effect that the making of false representations as to his age by an infant executing a contract will preclude him from disaffirming the contract or setting up the defense of infancy, must be understood as limited to cases wherein, on account of

the minor's representations as to his majority. and because of his near approach thereto, the other party had good reason to believe, and did in fact believe the minor capable of contracting. The doctrine set forth in the Partidas, relied upon by the supreme court of Spain in the cases cited in the prevailing opinion, is substantially similar to the doctrine of estoppel as applied in like instances by many of the courts in the United States. For purposes of convenient comparison, I here insert some citations of authority, Spanish and American, recognizing the limitations upon the general doctrine to which I am inviting attention at this time; and in this connection it is worthy of note that the courts of the United States look with rather less favor than the supreme court of Spain upon the application of the doctrine, doubtless because the cases wherein it may properly be applied, are much less likely to occur in a jurisdiction where majority is reached at the age of 21 than a jurisdiction wherein majority is not ordinarily attained until the infant reaches the age of 25. Ley 6, tit. 19, Partida 6.a is, in part, as follows: "If he who is a minor (1) deceitfully says or sets forth in an instrument that he is over twenty-five years of age, and this assertion is believed by another person who takes him to be of about that age, (2) in an action at law he should be deemed to be of the age he asserted, and should not (3) afterwards be released from liability on the plea that he was not of said age when he assumed the obligation. The reason for this is that the law helps the deceived and not the deceivers." In the glossary to these provisions of the Partidas by Gregorio Lopez, I find the following: "(1) De tal tiempo. Nota bene hoc verbum, nam si appareret ex aspectu eum esse minorem, tunc adversarios non potest dicere se deceptum; imo tam ipse, quam minor videntur esse in dolo, quo casu competit minori restitutio, quia facta doli compensatione, periode est ac si nullus fuisset in dolo, et ideo datur restitutio; et quia scienti dolus non infertur, l. 1. D. de act. empt. secundum Cyn. Alberic et Salic. in l. 3. C. si minor se major. dixer. adde Albericum tenentem, quando per aspectum aliter constaret, in authent. sacramenta puberum, col. 3. C. si advers vendit. "(2) Enganosamente. Adde 1. 2. et 3. C. si minor se major. dixer. Et adverte nam per istam legem Partitarum quare non distinguit, an adultus, vel pupillus talerrl assertionem faciat, videtur comprobari dictum Guillielm. de Cun de quo per Paul. de Castr. in 1. qui jurasse. in princ. D de jurejur. quod si pupillus proximus pubertati juret, cum contrahit, se esse puberem, et postea etiam juret, quod non veniet contra contractum quod habebit locum dispositio authenticae sacramenta puberum, sicut si esset pubes: et cum isto dicto transit ibi Paul. de Cast. multum commedans, dicens, se alibi non legisse; si tamen teneamus illam opinionem, quod etiam pupillus doli capax obligatur ex Juramento, non esset ita miranda dicta, decision; vide per Alexand. in dict. 1. qui jurasse, in princ. Item lex ista Partitarum expresse sentit de adulto, non de pupillo, cum superius dixit, que paresciere de tal tiempo: Doctores etiam intelligunt de adulto 11. dict. tit. C. si minor. se major dixer. et patet ex 11. illius tituli. Quid autem dicemus in dubio, cum non constat de dolo minoris? Azon. in summa illius tit. in fin. dicit, quod praesumitur dolug in minore, qui se majorem dixit; et idem tenet Glossa in dict. 1. 3. et ibi Odofred. in fin. Cynus tamen, et alli, tenent oppositum, quia dolus non praesumitur, nisi probetur, 1. quotiens, s., qui dolo, D. de probat. Et hoc etiam vult ista lex Partitarum, cum dicit, si lo faze enganosamente: et ita tenent Alberic et Salicet. in dict. 1. 3. ubi etiam Bart. in fin. Si autem minor sui facilitate asserat se majorem, et ita juret, tunc distingue, ut habetur dict. 1. 3 quia aut juravit verbo tenus, et tunc non restituitur, nisi per instrumentum seu scripturam probet se minorem; et si juravit corporaliter, nullo modo restituitur, ut ibi; et per que instrumenta probentur, cum verbo tenus juravit, vide per Specul. tit. de restit, in integr. s. quis autem, col. 4. vers. sed cujusmodi erit scriptura, ubi etiam vide per Speculatorem aliquas notabiles quaestiones in ista materia, in col. 5. videlicet, an praejudicet sibi minor ex tali juramento in aliis contractibus, et tenet, quod non; et tenet glossa finalis in 1. de aetate, D. de minor. in fin. gloss. vide ibi per Speculat. ubi etiam de aliis in ista materia." In the decision of the supreme court of Spain dated the 27th of April, 1860, I find an excellent illustration of the conditions under which that court applied the doctrine, as appears from the following resolution therein set forth. "Sales of real estate made by minors are valid when the latter pretend to be twenty-five years of age and, due to the circumstances that they are nearly of that age, are married, or have the administration of their property, or on account of other special circumstances affecting them, the other parties to the contract believe them to be of legal age." With these citations compare the general doctrine in the United States as set forth in 22 Cyc. (p. 610), supported by numerous citations of authority.

"Estoppel to dissaffirm (I) In General. The doctrine of estoppel not being as a general rule applicable to infants, the court will not readily hold that his acts during infancy have created an estoppel against him to disaffirm his contracts. Certainly the infant cannot be estopped by the acts or admissions of other persons. "(II) False representations as to age. According to some authorities the fact that an infant at the time of entering into a contract falsely represented to the person with whom he dealt that he had attained the age of majority does not give any validity to the contract or estop the infant from disaffirming the same or setting up the defense of infancy against the enforcement of any rights thereunder; but there is also authority for the view that such false representations will create an estoppel against the infant, and under the statutes of some states no contract can be disaffirmed where, on account of the minor's representations as to his majority, the other party had good reason to believe the minor capable of contracting. Where the infant has made no representations whatever as to his age the mere fact that the person with whom he dealt believed him to be of age, even though his belief was warranted by the infant's appearance and the surrounding, circumstances, and the infant knew of such belief, will not render the contract valid or estop the infant to disaffirm." [G.R. No. 173822. October 13, 2010.] SALVADOR ATIZADO and SALVADOR MONREAL, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION BERSAMIN, J p: On May 4, 2000, the Regional Trial Court (RTC), Branch 52, Sorsogon, convicted the petitioners of murder. 1 On December 13, 2005, the Court of Appeals (CA) affirmed their conviction in C.A.-G.R. CR-HC No. 01450, but modified the awarded damages. 2 CDESIA The petitioners contest the CA's affirmance of their conviction in this appeal via petition for review on certiorari. We affirm their conviction, but we reduce the penalty imposed on Salvador Monreal because the RTC and the CA did not duly appreciate his minority at the time of the commission of the crime. We order his immediate release from prison because he already served his sentence, as hereby modified. Also, we add to the damages to which the heirs of the victim were entitled in order to accord with the prevailing law and jurisprudence. Antecedents On June 20, 1994, the Office of the Sorsogon Provincial Prosecutor formally charged the petitioners and a certain Danilo Atizado (Danilo) with murder through the following information, to wit: aTcESI That on or about the 18th day of April 1994, at Barangay Boga, Municipality of Castilla, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully and feloniously, with treachery and evident premeditation, and without any justifiable cause or motive, with intent to kill, armed with handguns, attack, assault and shot one Rogelio Llona y Llave, a Sangguniang Bayan member of Castilla, Sorsogon, thereby inflicting upon him mortal and serious wounds which directly caused his instantaneous death, to the damage and prejudice of his legal heirs. CONTRARY TO LAW. 3 After the petitioners and Danilo pleaded not guilty to the information on November 7, 1994, 4 the trial ensued. The witnesses for the State were Simeona Mirandilla (Mirandilla), Major Saadra Gani (Major Gani), Dr. Wilhelmo Abrantes (Dr. Abrantes), Lawrence Llona (Lawrence), and Herminia Llona (Herminia). THaCAI Mirandilla narrated that on April 18, 1994 she and the late Rogelio Llona (Llona), her common-law husband, had attended the fiesta of Barangay Bonga in Castilla, Sorsogon; that at about 8 pm of that date, they had gone to the house of Manuel Desder (Desder) in the same barangay; that as they and Jose Jesalva (Jesalva), a barangay kagawad of the place, were seated in the sala of Desder's house, she heard "thundering steps" as if people were running and then two successive gunshots; that she then saw Atizado pointing a gun at the prostrate body of Llona; that seeing Atizado about to shoot Llona again, she shouted:

Stop, that's enough!; that while aiding Llona, she heard three clicking sounds, and, turning towards the direction of the clicking sounds, saw Monreal point his gun at her while he was moving backwards and simultaneously adjusting the cylinder of his gun; that the petitioners then fled the scene of the shooting; that she rushed to the house of barangay captain Juanito Lagonsing (Lagonsing) to report the shooting; and that she and Lagonsing brought Llona to a hospital where Llona was pronounced dead. 5 Major Gani testified that the petitioners and Danilo were arrested on May 18, 1994, 6 based on the warrant of arrest issued by Judge Teodisio R. Dino, Jr. of the Municipal Trial Court in Castilla, Sorsogon. Dr. Abrantes confirmed that Llona died due to two gunshot wounds in the back that penetrated his spinal column, liver, and abdomen. 7 Lawrence and Herminia stated that the Llona family spent P30,000.00 for the funeral expenses of Llona. 8 DEIHSa Denying the accusation, the petitioners interposed alibi. The witnesses for the Defense were Monreal, Roger Villafe (Villafe), Merlinda Lolos, Joseph Lorenzana (Lorenzana), Jesalva, and Lagonsing. The Defense showed that at the time of the commission of the crime, Atizado had been in his family residence in Barangay Tomalaytay, Castilla, Sorsogon, because he had been sick of influenza, while Monreal and Danilo had been in the house of a certain Ariel also in Barangay Tomalaytay, Castilla, Sorsogon drinking gin; that the petitioners and Danilo had not been recognized to be at the crime scene during the shooting of Llona; and that the petitioners had been implicated only because of their being employed by their uncle Lorenzana, the alleged mastermind in the killing of Llona. As stated, on May 4, 2000, the RTC convicted the petitioners but acquitted Danilo, viz.: WHEREFORE, premises considered, the Court finds accused Salvador Atizado and Salvador Monreal guilty beyond reasonable doubt of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, with the qualifying circumstance of treachery, the Court hereby sentences each of the accused to an imprisonment of Reclusion Perpetua and to pay the heirs of Rogelio Llona the sum of Fifty Thousand (P50,000.00) Pesos, Philippines currency, in solidum, as civil indemnity, without subsidiary imprisonment in case of insolvency; to reimburse the heirs of the victim the amount of P30,000.00 as actual expenses and to pay the cost. Accused Danilo Atizado on reasonable doubt is hereby acquitted of the crime charged and he being a detention prisoner, his immediate release from the provincial jail is hereby ordered, unless he is charged of other lawful cause or causes. cdasia2005 Accused Salvador Atizado and Salvador Monreal being detained, shall be credited in full in the service of their sentence. SO ORDERED. 9 The Court referred the petitioners' direct appeal to the CA pursuant to People v. Mateo. 10 On December 13, 2005, the CA affirmed the conviction, disposing: WHEREFORE, the judgment of conviction is AFFIRMED. Accused-appellants Salvador Atizado and Salvador Monreal are hereby ordered to suffer the imprisonment of Reclusion Perpetua. Likewise, they are ordered to pay the heirs of Rogelio Llona the amount of: (a) P50,000.00 as civil indemnity; (b) P30,000.00 as actual damages; and (c) P50,000.00 as moral damages. SO ORDERED. 11 CAaDTH After the CA denied their motion for reconsideration, 12 the petitioners now appeal. Issue The petitioners submit that the RTC and the CA erred in finding them guilty of murder beyond reasonable doubt based on the eyewitness testimony of Mirandilla despite her not being a credible witness; that some circumstances rendered Mirandilla's testimony unreliable, namely: (a) she had failed to identify them as the assailants of Llona, because she had not actually witnessed them shooting at Llona; (b) she had merely assumed that they had been the assailants from the fact that they had

worked for Lorenzana, the supposed mastermind; (c) the autopsy report stated that Llona had been shot from a distance, not at close range, contrary to Mirandilla's claim; (d) Mirandilla's testimony was contrary to human experience; and (e) Mirandilla's account was inconsistent with that of Jesalva's. HCEISc Ruling The conviction of the petitioners is affirmed, subject to modifications in the penalty imposed on Monreal and in the amounts and kinds of damages as civil liability. I. Factual findings of the RTC and CA are accorded respect The RTC and CA's conclusions were based on Mirandilla's positive identification of the petitioners as the malefactors and on her description of the acts of each of them made during her court testimony on March 6, 1995, 13 viz.: q a q a Who were you saying 'we sat together'? Kgd. Llona, Mr. Jose Jesalva and I was letting my 5 years old child to sleep. Can you demonstrate or described before this Honorable Court the size of the sala and the house you wherein (sic)? The size of the sale (sic) is about 3 x 3 meters.

q Now, please show to this Honorable Court the relative position, the sitting arrangement of yours, Kgd. Llona and Kgd. Jesalva. a I was sitting on a long bench then my child was on my lap, then Kgd. Llona was infront of me, I was at the right side of Kgd. Llona. q a q a q a q a How about Kgd. Jesalva? aITDAE This Kgd. Jesalva was facing Kgd. Llona and Kgd. Llona was facing the door in otherwords, the door was at his back. Was the door open? Yes, sir. Was the door immediately found. . . Rather was this the main door of the house? That was the main door leading to the porch of the house. And from the porch is the main stairs already? Yes, sir.

q Now, what were you doing there after dinner as you said you have finished assisting the persons in Bongga about the program, . . . after that, what were you doing then? a q a q I was letting my child to sleep and Kgd. Llona was fanning my child. How about Kgd. Jesalva? His head was stopping (sic) because of his drunkenness. HCTDIS Can you tell this Honorable Court, while you were on that situation, if there was any incident that happened?

a q a q a q a q a q a q a q a q a q a q a q a q a q

There was a sudden thundering steps as if they were running and there were successive shots. Simultaneously with these two (2) successive shots can you see the origin or who was responsible for the shots? Upon hearing the shots, I turned my head and saw Salvador Atizado. Who is this Salvador Atizado? He was the one who shot Kgd. Llona. Can you be able to identify him? (Witness identifying the person, and when asked of his name answered Salvador Atizado.) So when you heard the shots, who was actually shot? Kgd. Llona, because after looking at the (3) persons I saw Kgd. Llona sliding downward. Then after that what happened? Then I stood immediately and I told the persons responsible 'stop that's enough', and I gave assistance to Kgd. Llona. Then after that what happened? My intention was to let Kgd. Llona push-up but I heard three (3) clicks of the trigger of the gun. HEAcDC Then what did you do when you heard that? After which I turned my head suddenly then I saw this Salvador Monreal but at that time I do not know his name. Then what did you see of him? I saw this Salvador Monreal stepping backward and he was adjusting the cylinder of the gun. Now, when you saw and heard Atizado three (3) clicks of the gun, can you see where the gun was pointed at? It was pointed towards me. So, there were three (3) shots that did not actually fired towards you? Yes, sir. So when you said that you saw this man Monreal, can you still recognize this man? Yes, sir. Could you be able to point at him, if he is in Court? Yes, sir. Kindly please go down and tap his shoulder?

a (witness going down and proceeded to the first bench and tap the shoulder of the person, the person tapped by the witness answered to the name Salvador Monreal.) q You said, when you stood up and face with him while he was adjusting his revolver and he was moving backward, did you see other persons as his companion, if any? a At the first time when I turned my head back, I saw this Atizado he was already on the process of leaving the place.

q a q a

Who is the first name of this Atizado? Danilo Atizado And did they actually leave the place at that moment? Salvador Monreal was the one left.

Our own review persuades us to concur with the RTC and the CA. Indeed, Mirandilla's positive identification of the petitioners as the killers, and her declarations on what each of the petitioners did when they mounted their sudden deadly assault against Llona left no doubt whatsoever that they had conspired to kill and had done so with treachery. EATcHD It is a basic rule of appellate adjudication in this jurisdiction that the trial judge's evaluation of the credibility of a witness and of the witness' testimony is accorded the highest respect because the trial judge's unique opportunity to observe directly the demeanor of the witness enables him to determine whether the witness is telling the truth or not. 14 Such evaluation, when affirmed by the CA, is binding on the Court unless facts or circumstances of weight have been overlooked, misapprehended, or misinterpreted that, if considered, would materially affect the disposition of the case. 15 We thus apply the rule, considering that the petitioners have not called attention to and proved any overlooked, misapprehended, or misinterpreted circumstance. Fortifying the application of the rule is that Mirandilla's positive declarations on the identities of the assailants prevailed over the petitioners' denials and alibi. 16 Under the law, a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 17 Yet, the State did not have to prove the petitioners' previous agreement to commit the murder, 18 because their conspiracy was deduced from the mode and manner in which they had perpetrated their criminal act. 19 They had acted in concert in assaulting Llona, with their individual acts manifesting a community of purpose and design to achieve their evil end. As it is, all the conspirators in a crime are liable as co-principals. 20 Thus, they cannot now successfully assail their conviction as co-principals in murder. Murder is defined and punished by Article 248 of the Revised Penal Code (RPC), as amended by Republic Act No. 7659, which provides: Article 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. HCTDIS

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. There is treachery 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 the defense which offended party might make. 21 For treachery to be attendant, the means, method, or form of execution must be deliberated upon or consciously adopted by the offenders. 22 Moreover, treachery must be present and seen by the witness right at the inception of the attack. 23

The CA held that Mirandilla's testimonial narrative "sufficiently established that treachery attended the attack o[n] the victim" because Atizado's shooting the victim at the latter's back had been intended to ensure the execution of the crime; and that Atizado and Monreal's conspiracy to kill the victim was proved by their presence at the scene of the crime each armed with a handgun that they had fired except that Monreal's handgun did not fire. 24 We concur with the CA on the attendance of treachery. The petitioners mounted their deadly assault with suddenness and without the victim being aware of its imminence. Neither an altercation between the victim and the assailants had preceded the assault, nor had the victim provoked the assault in the slightest. The assailants had designed their assault to be swift and unexpected, in order to deprive their victim of the opportunity to defend himself. 25 Such manner constituted a deliberate adoption of a method of attack that ensured their unhampered execution of the crime. II. Modification of the Penalty on Monreal and of the Civil Damages Under Article 248 of the RPC, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. There being no modifying circumstances, the CA correctly imposed the lesser penalty of reclusion perpetua on Atizado, which was conformable with Article 63 (2) of the RPC. 26 But reclusion perpetua was not the correct penalty for Monreal due to his being a minor over 15 but under 18 years of age. The RTC and the CA did not appreciate Monreal's minority at the time of the commission of the murder probably because his birth certificate was not presented at the trial. ITScAE Yet, it cannot be doubted that Monreal was a minor below 18 years of age when the crime was committed on April 18, 1994. Firstly, his counter-affidavit executed on June 30, 1994 stated that he was 17 years of age. 27 Secondly, the police blotter recording his arrest mentioned that he was 17 years old at the time of his arrest on May 18, 1994. 28 Thirdly, Villafe's affidavit dated June 29, 1994 averred that Monreal was a minor on the date of the incident. 29 Fourthly, as RTC's minutes of hearing dated March 9, 1999 showed, 30 Monreal was 22 years old when he testified on direct examination on March 9, 1999, 31 which meant that he was not over 18 years of age when he committed the crime. And, fifthly, Mirandilla described Monreal as a teenager and young looking at the time of the incident. 32 The foregoing showing of Monreal's minority was legally sufficient, for it conformed with the norms subsequently set under Section 7 of Republic Act No. 9344, also known as the Juvenile Justice and Welfare Act of 2006, 33 viz.: Section 7. Determination of Age. The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. Pursuant to Article 68 (2) of the RPC, 34 when the offender is over 15 and under 18 years of age, the penalty next lower than that prescribed by law is imposed. Based on Article 61 (2) of the RPC, reclusion temporal is the penalty next lower than reclusion perpetua to death. Applying the Indeterminate Sentence Law and Article 64 of the RPC, therefore, the range of the penalty of imprisonment imposable on Monreal was prision mayor in any of its periods, as the minimum period, to reclusion

temporal in its medium period, as the maximum period. Accordingly, his proper indeterminate penalty is from six years and one day of prision mayor, as the minimum period, to 14 years, eight months, and one day of reclusion temporal, as the maximum period. DaScHC Monreal has been detained for over 16 years, that is, from the time of his arrest on May 18, 1994 until the present. Given that the entire period of Monreal's detention should be credited in the service of his sentence, pursuant to Section 41 of Republic Act No. 9344, 35 the revision of the penalty now warrants his immediate release from the penitentiary. In this regard, the benefits in favor of children in conflict with the law as granted under Republic Act No. 9344, which aims to promote the welfare of minor offenders through programs and services, such as delinquency prevention, intervention, diversion, rehabilitation and re-integration, geared towards their development, are retroactively applied to Monreal as a convict serving his sentence. Its Section 68 expressly so provides: Section 68. Children Who Have Been Convicted and are Serving Sentences. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable laws. EaHIDC Both petitioners were adjudged solidarily liable to pay damages to the surviving heirs of Llona. Their solidary civil liability arising from the commission of the crime stands, 36 despite the reduction of Monreal's penalty. But we must reform the awards of damages in order to conform to prevailing jurisprudence. The CA granted only P50,000.00 as civil indemnity, P30,000.00 as actual damages, and P50,000.00 as moral damages. We hold that the amounts for death indemnity and moral damages should each be raised to P75,000.00 to accord with prevailing case law; 37 and that exemplary damages of P30,000.00 due to the attendance of treachery should be further awarded, 38 to accord with the pronouncement in People v. Catubig, 39 to wit: The commission of an offense has two-pronged effect, one on the public as it breaches the social order and other upon the private victim as it causes personal sufferings, each of which, is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. The award of actual damages of P30,000.00 is upheld for being supported by the record. WHEREFORE, the Court affirms the decision dated December 13, 2005 promulgated in CA-G.R. CR-HC No. 01450, subject to the following modifications: (a) Salvador Monreal is sentenced to suffer the indeterminate penalty from six years and one day of prision mayor, as the minimum period, to 14 years, eight months, and one day of reclusion temporal, as the maximum period; AaHDSI (b) The Court orders the Bureau of Corrections in Muntinlupa City to immediately release Salvador Monreal due to his having fully served the penalty imposed on him, unless he is being held for other lawful causes; and (c) The Court directs the petitioners to pay jointly and solidarily to the heirs of Roger L. Llona P75,000.00 as death indemnity, P75,000.00 as moral damages, P30,000.00 as exemplary damages, and P30,000.00 as actual damages.

Let a copy of this decision be furnished for immediate implementation to the Director of the Bureau of Corrections in Muntinlupa City by personal service. The Director of Bureau of Corrections shall report to this Court the action he has taken on this decision within five days from service. SO ORDERED. ASCTac [G.R. No. 166470. August 7, 2009.] CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-SAGUN, TERESA C. HERNANDEZ-VILLA ABRILLE 1 and NATIVIDAD CRUZ-HERNANDEZ, petitioners, vs. JOVITA SAN JUAN-SANTOS, respondent. [G.R. No. 169217. August 7, 2009.] CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-SAGUN and TERESA C. HERNANDEZ-VILLA ABRILLE, petitioners, vs. JOVITA SAN JUAN-SANTOS, 2 respondent. DECISION CORONA, J p: Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the spouses Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter died due to complications during childbirth. After Maria's death, Felix left Lulu in the care of her maternal uncle, Sotero C. San Juan. EDACSa On December 16, 1951, Felix married Natividad Cruz. The union produced three children, petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and Teresa C. Hernandez-Villa Abrille. Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited valuable real properties from the San Juan family (conservatively estimated at P50 million in 1997). Sometime in 1957, Lulu went to live with her father and his new family. She was then 10 years old and studying at La Consolacion College. However, due to her "violent personality", Lulu stopped schooling when she reached Grade 5. In 1968, upon reaching the age of majority, Lulu was given full control of her estate. 3 Nevertheless, because Lulu did not even finish her elementary education, Felix continued to exercise actual administration of Lulu's properties. Upon Felix's death in 1993, petitioners took over the task of administering Lulu's properties. During the period of their informal administration (from 1968 until 1993), Felix and petitioners undertook various "projects" involving Lulu's real properties. In 1974, Felix allegedly purchased one of Lulu's properties for an undisclosed amount to develop the Marilou Subdivision. 4 In 1995, Ma. Victoria informed Lulu that her 11-hectare Montalban, Rizal property 5 was under litigation. Thus, Lulu signed a special power of attorney 6 (SPA) believing that she was authorizing Ma. Victoria to appear in court on her behalf when she was in fact unknowingly authorizing her half-sister to sell the said property to the Manila Electric Company for P18,206,400. 7 Thereafter, Cecilio asked Lulu to authorize him to lease her 45-hectare property in Montalban, Rizal to Oxford Concrete Aggregates for P58,500 per month so that she could have a car and driver at her disposal. HcDATC In September 1998, Lulu sought the assistance of her maternal first cousin, respondent Jovita San Juan-Santos, after learning that petitioners had been dissipating her estate. She confided to Jovita that she was made to live in the basement of petitioners' Montalban, Rizal home and was receiving a measly daily allowance of P400 for her food and medication. Respondent was appalled as Lulu was severely overweight, unkempt and smelled of urine. She later found out that Lulu was occupying a cramped room lit by a single fluorescent lamp without running water. Since she had not been given a proper toilet, Lulu urinated and defecated in the garden. Due to Lulu's poor hygiene, respondent brought her to several physicians for medical examination. Lulu was found to be afflicted with tuberculosis, rheumatism and diabetes from which she was suffering several complications. 8

Thereafter, the San Juan family demanded an inventory and accounting of Lulu's estate from petitioners. 9 However, the demand was ignored. On October 2, 1998, respondent filed a petition for guardianship 10 in the Regional Trial Court (RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was incapable of taking care of herself and managing her estate because she was of weak mind. aSAHCE Subsequently, petitioners moved to intervene in the proceedings to oppose the same. Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late husband were the registered owners of the said property, it was allegedly part of their conjugal partnership. Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulu's competency had been settled in 1968 (upon her emancipation) when the court ordered her legal guardian and maternal uncle, Ciriaco San Juan, to deliver the properties for her to manage. They likewise asserted that Lulu was literate and, for that reason, aware of the consequences of executing an SPA. Furthermore, whether or not Cecilio and Ma. Victoria acted within the scope of their respective authorities could not be determined in a guardianship proceeding, such matter being the proper subject of an ordinary civil action. Petitioners also admitted that the property developed into the Marilou Subdivision was among those parcels of land Lulu inherited from the San Juan family. However, because the "sale" between Felix and Lulu had taken place in 1974, questions regarding its legality were already barred by the statute of limitations. Thus, its validity could no longer be impugned, or so they claimed. aCcEHS During the hearing, Lulu was presented and asked to testify on her genealogy and experiences with the San Juan and Hernandez families. Lulu identified and described her parents, stepmother, half-siblings and maternal relatives. She claimed inheriting tracts of land from the San Juan family. However, these properties were dissipated by the Hernandez family as they lived a "luxurious" lifestyle. When asked to explain this allegation, Lulu said that her stepmother and half-siblings rode in cars while she was made to ride a tricycle. Medical specialists testified to explain the results of Lulu's examinations which revealed the alarming state of her health. 11 Not only was Lulu severely afflicted with diabetes mellitus and suffering from its complications, 12 she also had an existing artheroselorotic * cardiovascular disease (which was aggravated by her obesity). Furthermore, they unanimously opined that in view of Lulu's intelligence level (which was below average) and fragile mental state, she would not be able to care for herself and self-administer her medications. In a decision dated September 25, 2001, 13 the RTC concluded that, due to her weak physical and mental condition, there was a need to appoint a legal guardian over the person and property of Lulu. Thus, it declared Lulu an incompetent and appointed respondent as guardian over the person and property of Lulu on a P1 million bond. aATEDS Petitioners moved for reconsideration asserting that the P1 million bond was grossly insufficient to secure Lulu's P50-million estate against fraudulent loss or dissipation. 14 The motion, however, was denied. 15 On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to the Court of Appeals (CA). 16 The appeal was docketed as CA-G.R. CV No. 75760. On December 29, 2004, the CA issued a decision affirming the September 25, 2001 decision of the RTC (in the petition for guardianship) in toto. 17 It held that respondent presented sufficient evidence to prove that Lulu, because of her illnesses and low educational attainment, needed assistance in taking care of herself and managing her affairs considering the extent of her estate. With regard to the respondent's appointment as the legal guardian, the CA found that, since Lulu did not trust petitioners, none of them was qualified to be her legal guardian. Because guardianship was a trust relationship, the RTC was bound to appoint someone Lulu clearly trusted. Petitioners now assail the December 29, 2004 decision of the CA in this Court in a petition for review on certiorari docketed as G.R. No. 166470.

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and was provided with two housemaids tasked to care for her. Sometime in November 2003, Lulu was abducted from her Marikina apartment. Jovita immediately sought the assistance of the Police Anti-Crime Emergency Response (PACER) division of the Philippine National Police. The PACER subsequently discovered that petitioners were keeping Lulu somewhere in Rodriguez, Rizal. Despite their initial hostility to the investigation, Ma. Victoria and Cecilio subsequently contacted the PACER to inform them that Lulu voluntarily left with Natividad because her guardian had allegedly been maltreating her. 19 On December 15, 2003, respondent filed a petition for habeas corpus 20 in the CA alleging that petitioners abducted Lulu and were holding her captive in an undisclosed location in Rodriguez, Rizal. On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita, as her legal guardian, was entitled to her custody. 21 Petitioners moved for the reconsideration of the said decision but it was denied in a resolution dated July 12, 2005. 22 Aggrieved, they filed this petition for review on certiorari docketed as G.R. No. 169217. This was consolidated with G.R. No. 166470. cIEHAC The basic issue in petitions of this nature is whether the person is an incompetent who requires the appointment of a judicial guardian over her person and property. Petitioners claim that the opinions of Lulu's attending physicians 23 regarding her mental state were inadmissible in evidence as they were not experts in psychiatry. Respondent therefore failed to prove that Lulu's illnesses rendered her an incompetent. She should have been presumed to be of sound mind and/or in full possession of her mental capacity. For this reason, Lulu should be allowed to live with them since under Articles 194 to 196 of the Family Code, 24 legitimate brothers and sisters, whether half-blood or full-blood are required to support each other fully. Respondent, on the other hand, reiterated her arguments before the courts a quo. She disclosed that Lulu had been confined in Recovery.com, a psychosocial rehabilitation center and convalescent home care facility in Quezon City, since 2004 due to violent and destructive behavior. She also had delusions of being physically and sexually abused by "Boy Negro" and imaginary pets she called "Michael" and "Madonna". 25 The November 21, 2005 medical report 26 stated Lulu had unspecified mental retardation with psychosis but claimed significant improvements in her behavior. AECcTS We find the petition to be without merit. Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his opinion on the mental sanity of a person with whom he is sufficiently acquainted. 27 Lulu's attending physicians spoke and interacted with her. Such occasions allowed them to thoroughly observe her behavior and conclude that her intelligence level was below average and her mental stage below normal. Their opinions were admissible in evidence. Furthermore, where the sanity of a person is at issue, expert opinion is not necessary. 28 The observations of the trial judge coupled with evidence 29 establishing the person's state of mental sanity will suffice. 30 Here, the trial judge was given ample opportunity to observe Lulu personally when she testified before the RTC. Under Section 2, Rule 92 of the Rules of Court, 31 persons who, though of sound mind but by reason of age, disease, weak mind or other similar causes are incapable of taking care of themselves and their property without outside aid, are considered as incompetents who may properly be placed under guardianship. The RTC and the CA both found that Lulu was incapable of taking care of herself and her properties without outside aid due to her ailments and weak mind. Thus, since determining whether or not Lulu is in fact an incompetent would require a reexamination of the evidence presented in the courts a quo, it undoubtedly involves questions of fact. SCDaET As a general rule, this Court only resolves questions of law in a petition for review. We only take cognizance of questions of fact in exceptional circumstances, none of which is present in this case. 32 We thus adopt the factual findings of the RTC as affirmed by the CA.

Similarly, we see no compelling reason to reverse the trial and appellate courts' finding as to the propriety of respondent's appointment as the judicial guardian of Lulu. 33 We therefore affirm her appointment as such. Consequently, respondent is tasked to care for and take full custody of Lulu, and manage her estate as well. 34 Inasmuch as respondent's appointment as the judicial guardian of Lulu was proper, the issuance of a writ of habeas corpus in her favor was also in order. A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. 35 Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. 36 AEIHaS WHEREFORE, the petitions are hereby DENIED. Petitioners are furthermore ordered to render to respondent, Lulu's legal guardian, an accurate and faithful accounting of all the properties and funds they unlawfully appropriated for themselves from the estate of Maria Lourdes San Juan Hernandez, within thirty (30) days from receipt of this decision. If warranted, the proper complaints should also be filed against them for any criminal liability in connection with the dissipation of Maria Lourdes San Juan Hernandez's estate and her unlawful abduction from the custody of her legal guardian. Treble costs against petitioners. SO ORDERED. [G.R. No. 184757. October 5, 2011.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANICETO BULAGAO, accused-appellant. DECISION LEONARDO-DE CASTRO, J p: This is an appeal from the Decision 1 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01955 dated April 14, 2008 which affirmed the Decision 2 of the Regional Trial Court (RTC) of Malolos, Bulacan in Crim. Case No. 197-M-2001 and Crim. Case No. 198-M-2001 dated January 23, 2006. ETHCDS Accused-appellant Aniceto Bulagao was charged with two counts of rape in separate Informations both dated December 21, 2000. The Informations read as follows: CRIMINAL CASE NO. 197-M-2001 That on or about the 29th day of June, 2000, in the municipality of Bocaue, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife, with force and intimidation, did then and there willfully, unlawfully and feloniously, with lewd designs, have carnal knowledge of [AAA], 3 14 years old, against the latter's will and consent. 4 CRIMINAL CASE NO. 198-M-2001 That on or about the 17th day of June, 2000, in the municipality of Bocaue, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife, with force and intimidation, did then and there willfully, unlawfully and feloniously, with lewd designs, have carnal knowledge of [AAA], 14 years old, against the latter's will and consent. 5 Upon arraignment on February 26, 2001, accused-appellant pleaded not guilty on both counts. Thereafter, trial on the merits ensued.

Only private complainant AAA took the witness stand for the prosecution. AAA was born on April 13, 1986. According to her late-registered birth certificate, her parents are BBB (mother) and CCC (father). AAA, however, testified that BBB and CCC are not her biological parents, as she was only adopted when she was very young. 6 CCC died in December 1999. 7 ADECcI In April 2000, AAA arrived from the province and settled in the house of her brother DDD (son of BBB and CCC) and his wife in Lolomboy, Bocaue, Bulacan. With AAA in the house were two other brothers, EEE and accused-appellant Aniceto Bulagao, and her younger sister, then six-year-old FFF (who were also the children of BBB and CCC). 8 On June 17, 2000, at around 8:00 p.m., AAA and FFF were sleeping in a room which had no door. AAA was suddenly awakened when she felt somebody enter the room. She recognized the accused-appellant as the intruder, and saw that he was holding a knife. Accused-appellant poked the knife at AAA's neck, causing her to freeze in fear. Accused-appellant removed AAA's clothes, and then his own. Both AAA and accused-appellant were wearing t-shirt and shorts before the undressing. Accusedappellant kissed her neck and inserted his penis into her vagina. FFF woke up at this moment, but accused-appellant did not stop and continued raping AAA for one hour. 9 On June 29, 2000, AAA was residing in the house of her sister, also located in Lolomboy. Bocaue, Bulacan. At around 11:00 p.m. on that day, AAA was sleeping in the second floor of the house, where there are no rooms. AAA was roused from her sleep when accused-appellant was already undressing her. Accused-appellant removed his shorts and inserted his penis into her vagina. AAA tried to resist, but accused-appellant held her hands. Accused-appellant then touched her breasts and kissed her. Accused-appellant remained on top of her for half an hour. 10 AAA told her mother, BBB, and her brother, EEE, about the rape incidents. Upon learning of the same, BBB did not believe AAA and whipped her. 11 During cross-examination, the defense, in trying to establish the character and chastity of AAA, asked AAA about an alleged sexual intercourse between her and the now deceased CCC. AAA affirmed her statement in her affidavit that CCC took advantage (pinagsamantalahan) of her when he was still alive. This allegedly happened five times, the first of which was when she was only seven years old. 12 Answering a query from the court, AAA testified that she was currently in the custody of the Department of Social Welfare and Development (DSWD). 13 cdtai The prosecution was supposed to present medico-legal officer Dr. Ivan Richard Viray as its second witness. However, the latter's testimony was dispensed with upon the stipulation of the parties on the fact of examination of AAA by Dr. Viray on September 5, 2000, and the contents of the examination report, 14 which includes the finding that AAA was in a "non-virgin state." When it was time for the defense to present their evidence more than a year later, it also presented as its witness AAA, who recanted her testimony for the prosecution. This time, she testified that the sexual encounters between her and the accusedappellant were consensual. She fabricated the charge of rape against the accused-appellant because she was supposedly angry with him. She also claimed that she was instructed by the police officer who investigated the incident to say that the accusedappellant used a knife. She also testified that she was raped by her father CCC when she was seven years old. She was recanting her previous testimony because she purportedly was no longer angry with accused-appellant. 15 On cross-examination, AAA clarified that she fabricated the charge of rape because she was angry with the accused-appellant for making her do laundry work for him. However, when asked if she "consented and voluntarily submitted" herself to the accused-appellant when she had sexual intercourse with him, she answered in the negative. She had been released from the custody of the DSWD and was alone by herself for some time, but she now lives with the family of accused-appellant. 16 On redirect examination, AAA testified that accused-appellant did not force himself upon her. She affirmed that accusedappellant had a little defect in his mind. On re-cross examination, AAA testified that accused-appellant was not her sweetheart. 17 Another witness for the defense was Yolanda Palma, a clinical psychologist. She conducted a mental examination on accusedappellant on September 12, 2002, and found that accused-appellant was suffering from mental retardation as he had an IQ of below 50. 18 cDEHIC

Accused-appellant, who was 40 years old when he testified on June 15, 2005, claimed that AAA seduced him by removing her clothes. He asserted that they ended up merely kissing each other and did not have sexual intercourse. He denied pointing a knife at AAA. AAA accused him of rape because she was asking for P300 from him after they kissed. Accused-appellant also testified that there was no legal proceeding for the adoption of AAA ("ampun-ampunan lang"). 19 On January 23, 2006, the RTC rendered its joint Decision in Crim. Case Nos. 197-M-2001 and 198-M-2001, decreeing as follows: WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonable doubt of the crime as charged, and hereby sentences him to suffer: (a) In Crim. Case No. 197-M-01, the penalty of DEATH. The accused is likewise directed to indemnify the private complainant in the amount of P50,000.00; (b) In Crim. Case No. 198-M-01, the penalty of DEATH. The accused is likewise directed to indemnify the private complainant in the amount of P50,000.00. 20 The RTC observed that AAA was in the custody of the DSWD when she testified for the prosecution, and was returned to the family of the accused-appellant after her original testimony. It was during the time when she was back in the custody of the accused-appellant's family that she recanted her testimony for the prosecution. According to the RTC, it is clear that she had no other place to go to as she was completely orphaned and was dependent on the family of the accused, and it was understandable that she may have recanted in order to remain in the good graces of the accused-appellant's family. 21 aIHCSA As regards the defense of accused-appellant that he was suffering from mental retardation, the RTC noted that the psychological examination of accused-appellant was conducted more than a couple of years after the dates of the complained of incidents. There was no showing from the findings of the psychologist that accused-appellant had the same mental or psychological condition at the time of the said incidents. Even assuming that accused-appellant was of such mental state at the time of the incidents, the psychologist testified that accused-appellant had the capacity to discern right from wrong. 22 On April 14, 2008, the Court of Appeals rendered its Decision affirming that of the RTC, except with a modification on the penalty in view of the enactment of Republic Act No. 9346 prohibiting the imposition of death penalty. The dispositive portion of the Decision reads: WHEREFORE, the instant appeal is DISMISSED. The decision of the Regional Trial Court of Malolos, Bulacan, Branch 13, dated 23 January 2006, is AFFIRMED with MODIFICATION on the penalty imposed and damages awarded. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole, in each of the two (2) counts of rape. He is further directed to pay private complainant the sum of P50,000.00 as moral damages, for each count of rape, in addition to the civil indemnity awarded by the court a quo. 23 Hence, accused-appellant interposed the present appeal. Both parties manifested that they are waiving their rights to file a supplemental brief, as the same would only contain a reiteration of the arguments presented in their appellant's and appellee's briefs. 24 In seeking to overturn his conviction, accused-appellant asserted that the prosecution evidence was insufficient, particularly in view of AAA's withdrawal of her original testimony. IDCScA We have recently held that "[c]ourts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary considerations. Hence, a retraction does not necessarily negate an earlier declaration. They are generally unreliable and looked upon with considerable disfavor by the courts. Moreover, it would be a dangerous rule to reject the testimony taken before a court of justice, simply because the witness who has given it later on changes his mind for one reason or another." 25 We have, in the past, also declared that the recantation, even of a lone eyewitness, does not necessarily render the prosecution's evidence inconclusive. 26 In the often-cited Molina v. People, 27 we specified how a recanted testimony should be examined: Mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible. The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same

witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. A testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed, the circumstances under which each was made, carefully and keenly scrutinized, and the reasons or motives for the change, discriminatingly analyzed. . . . . 28 (Emphases supplied.) These rules find applicability even in rape cases, where the complainant is usually the lone eyewitness. Thus, in People v. Sumingwa, 29 where the rape victim later disavowed her testimony that she was raped by her father, this Court held: In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the complainant's testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for herself. When a rape victim's testimony is straightforward and marked with consistency despite grueling examination, it deserves full faith and confidence and cannot be discarded. If such testimony is clear, consistent and credible to establish the crime beyond reasonable doubt, a conviction may be based on it, notwithstanding its subsequent retraction. Mere retraction by a prosecution witness does not necessarily vitiate her original testimony. DSAEIT A retraction is looked upon with considerable disfavor by the courts. It is exceedingly unreliable for there is always the probability that such recantation may later on be repudiated. It can easily be obtained from witnesses through intimidation or monetary consideration. Like any other testimony, it is subject to the test of credibility based on the relevant circumstances and, especially, on the demeanor of the witness on the stand. 30 In the case at bar, the determination by the trial court of the credibility of AAA's accusation and recantation is facilitated by the fact that her recantation was made in open court, by testifying for the defense. Unlike in cases where recantations were made in affidavits, the trial court in this case had the opportunity to see the demeanor of AAA not only when she narrated the sordid details of the alleged rape by her "adoptive" brother, but also when she claimed that she made up her previous rape charges out of anger. As such, it is difficult to overlook the fact that the trial court convicted accused-appellant even after examining the young witness as she made a complete turnaround and admitted to perjury. The legal adage that the trial court is in the best position to assess the credibility of witnesses thus finds an entirely new significance in this case where AAA was subjected to grueling cross examinations, redirect examinations, and re-cross examinations both as a prosecution and defense witness. Still, the trial court found that the private complainant's testimony for the prosecution was the one that was worthy of belief. aIcSED However, even if we disregard the elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, it is clear to this Court which of the narrations of AAA was sincere and which was concocted. AAA's testimony for the prosecution, which was taken when she was in the custody of the DSWD, was clear, candid, and bereft of material discrepancies. All accused-appellant can harp on in his appellant's brief was AAA's failure to recall the length of the knife used in the assaults, a minor and insignificant detail not material to the elements of the crime of rape. She remained steadfast on cross-examination even as defense counsel tried to discredit her by bringing up her dark past of being sexually molested by the accused-appellant's father when she was seven years old. This is in stark contrast to her testimony for the defense, where AAA, now living with accused-appellant's family, claimed that she fabricated a revolting tale of rape simply because accusedappellant made her do laundry. AAA's recantation even contradicts the testimony of accused-appellant himself. While AAA claims in her retraction that she had consensual sex with her brother, accused-appellant testified that they merely kissed and that AAA's purported motive for the rape charges was monetary. As furthermore observed by both the trial court and the Court of Appeals, the cross-examination of AAA as a defense witness revealed that it was taken at a time when AAA had nowhere to go and was forced to stay with the family of accused-appellant and upon a reliance on the family's implied commitment to send accused-appellant to Mindanao: PROS. JOSON: Q: A: Q: Where are you staying at present? In our house, sir. And your house where you were staying is the house of the parents of the accused?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Yes, sir. And you don't have any relatives where you can go and stay except from that house? None, sir. Where [are] your parents? I do not know, sir. Are they all dead or still alive? They are deceased, sir. All? DAHEaT Both are deceased, sir. Do you mean to say that do you have full blood brother and sister? They all separated, sir. Do you know where they were living? No, sir. From the time you were released from the DSWD you are alone by yourself? Yes, sir.

Q: And the person[s] who are now taking care of you are giving you shelter and everyday foods [sic] from the family of the accused, is that correct? A: xxx Yes, sir. xxx xxx

Q: Ms. Witness, if ever the case of Aniceto will be dismissed because you testify today[, would] you admit for a fact that he [was] also staying in the house where you are staying now? A: Q: A: Q: A: Q: A: Q: it not? A: Q: No, sir. Where will he stay? In Mindanao, sir. Because that was one of the promise or commitment of the family of the accused, is it not? No, sir. And how did you know he will stay in Mindanao? Because my other Kuya will not allow him to stay in the house, sir. Because your other Kuya does not like Aniceto Bulagao to do the things that you have complaint [sic] against him, is

Yes, sir. And what you are "isinusumbong" is the case today against him, is it not?

A:

Yes, sir. 31 SCDaHc

Accused-appellant, in his appeal, did not insist on the allegation in the trial court that he was suffering from mental retardation. Nevertheless, we agree with the finding of the trial court that there was no proof that the mental condition accused-appellant allegedly exhibited when he was examined by Yolanda Palma was already present at the time of the rape incidents. Anyone who pleads the exempting circumstance of insanity bears the burden of proving it with clear and convincing evidence. 32 Besides, this Court observes that neither the acts of the accused-appellant proven before the court, nor his answers in his testimony, show a complete deprivation of intelligence or free will. Insanity presupposes that the accused was completely deprived of reason or discernment and freedom of will at the time of the commission of the crime. 33 Only when there is a complete deprivation of intelligence at the time of the commission of the crime should the exempting circumstance of insanity be considered. 34 As previously stated, the RTC imposed upon accused-appellant the penalty of death for each count of rape. The Court of Appeals modified the penalty to reclusion perpetua in view of the enactment of Republic Act No. 9346. It should be noted at this point that while Republic Act No. 9346 prohibits the imposition of death penalty, the presence of a qualifying circumstance which would have warranted the imposition of the death penalty would still cause the award of moral damages and civil indemnity to be increased each from Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00) under prevailing jurisprudence. 35 In the case at bar, both Informations charge a crime of rape qualified by the use of a deadly weapon. Under Article 266-B of the Revised Penal Code, the crime of rape under paragraph 1 of Article 266-A when committed with the use of a deadly weapon is punishable by reclusion perpetua to death. This crime was proven as charged in Crim. Case No. 198-M-2001, which was alleged to have occurred on June 17, 2000. Since no other qualifying or aggravating circumstance was alleged in the Information, the proper penalty is reclusion perpetua. aEcTDI On the other hand, while AAA had testified that the accused-appellant used a knife on June 17, 2000, she said that she hid said knife before June 29, 2000, the date of Crim. Case No. 197-M-2001. 36 As such, the crime that was proven in Crim. Case No. 197-M-2001 is simple rape not qualified by any circumstance affecting criminal liability. However, simple rape is also punishable by reclusion perpetua under Article 266-B. In both cases, since the death penalty would not have been imposed even without the enactment of Republic Act No. 9346, this Court affirms the award of civil indemnity in the amount of P50,000.00, as well as moral damages in the amount of P50,000.00, both for each count of rape. 37 In addition, we have held that since exemplary damages are corrective in nature, the same can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. 38 This Court believes that the conduct of accusedappellant herein, who raped her minor adoptive sister twice, falls under this category and is therefore liable for exemplary damages in the amount of P30,000.00 for each count of rape, in line with existing jurisprudence. 39 WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 01955 dated April 14, 2008 finding accused-appellant Aniceto Bulagao guilty beyond reasonable doubt of two (2) counts of rape and sentencing him to suffer the penalty of reclusion perpetua, without eligibility for parole, for each count of rape is hereby AFFIRMED with the following MODIFICATIONS: 1) Accused-appellant Aniceto Bulagao is hereby ordered to pay AAA the amount of P30,000.00 as exemplary damages for each count of rape, in addition to the amounts awarded by the Court of Appeals, namely: civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00, both for each count of rape; and 2) All damages awarded in this case should be imposed with interest at the rate of six percent (6%) per annum from the finality of this judgment until fully paid. ICTHDE SO ORDERED. [G.R. No. 184528. April 25, 2012.] NILO OROPESA, petitioner, vs. CIRILO OROPESA, respondent. DECISION

LEONARDO-DE CASTRO, J p: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure of the Decision 1 dated February 29, 2008, as well as the Resolution 2 dated September 16, 2008, both rendered by the Court of Appeals in CA-G.R. CV No. 88449, entitled "NILO OROPESA vs. CIRILO OROPESA." The Court of Appeals' issuances affirmed the Order 3 dated September 27, 2006 and the Order 4 dated November 14, 2006 issued by the Regional Trial Court (RTC) of Paraaque City, Branch 260 in SP. Proc. Case No. 04-0016, which dismissed petitioner Nilo Oropesa's petition for guardianship over the properties of his father, respondent Cirilo Oropesa (a widower), and denied petitioner's motion for reconsideration thereof, respectively. EDCTIa The facts of this case, as summed in the assailed Decision, follow: On January 23, 2004, the (petitioner) filed with the Regional Trial Court of Paraaque City, a petition for him and a certain Ms. Louie Ginez to be appointed as guardians over the property of his father, the (respondent) Cirilo Oropesa. The case was docketed as SP Proc. No. 04-0016 and raffled off to Branch 260. In the said petition, it is alleged among others that the (respondent) has been afflicted with several maladies and has been sickly for over ten (10) years already having suffered a stroke on April 1, 2003 and June 1, 2003, that his judgment and memory [were] impaired and such has been evident after his hospitalization; that even before his stroke, the (respondent) was observed to have had lapses in memory and judgment, showing signs of failure to manage his property properly; that due to his age and medical condition, he cannot, without outside aid, manage his property wisely, and has become an easy prey for deceit and exploitation by people around him, particularly Ms. Ma. Luisa Agamata, his girlfriend. In an Order dated January 29, 2004, the presiding judge of the court a quo set the case for hearing, and directed the court social worker to conduct a social case study and submit a report thereon. Pursuant to the abovementioned order, the Court Social Worker conducted her social case study, interviewing the (petitioner) and his witnesses. The Court Social Worker subsequently submitted her report but without any finding on the (respondent) who refused to see and talk to the social worker. DaACIH On July 6, 2004, the (respondent) filed his Opposition to the petition for guardianship. On August 3, 2004, the (respondent) filed his Supplemental Opposition. Thereafter, the (petitioner) presented his evidence which consists of his testimony, and that of his sister Gianina Oropesa Bennett, and the (respondent's) former nurse, Ms. Alma Altaya. After presenting evidence, the (petitioner) filed a manifestation dated May 29, 2006 resting his case. The (petitioner) failed to file his written formal offer of evidence. Thus, the (respondent) filed his "Omnibus Motion (1) to Declare the petitioner to have waived the presentation of his Offer of Exhibits and the presentation of his Evidence Closed since they were not formally offered; (2) To Expunge the Documents of the Petitioner from the Record; and (3) To Grant leave to the Oppositor to File Demurrer to Evidence. In an Order dated July 14, 2006, the court a quo granted the (respondent's) Omnibus Motion. Thereafter, the (respondent) then filed his Demurrer to Evidence dated July 23, 2006. 5 (Citations omitted.) The trial court granted respondent's demurrer to evidence in an Order dated September 27, 2006. The dispositive portion of which reads: WHEREFORE, considering that the petitioner has failed to provide sufficient evidence to establish that Gen. Cirilo O. Oropesa is incompetent to run his personal affairs and to administer his properties, Oppositor's Demurrer to Evidence is GRANTED, and the case is DISMISSED. 6 EcIDaA Petitioner moved for reconsideration but this was denied by the trial court in an Order dated November 14, 2006, the dispositive portion of which states:

WHEREFORE, considering that the Court record shows that petitioner-movant has failed to provide sufficient documentary and testimonial evidence to establish that Gen. Cirilo Oropesa is incompetent to run his personal affairs and to administer his properties, the Court hereby affirms its earlier Order dated 27 September 2006. Accordingly, petitioner's Motion for Reconsideration is DENIED for lack of merit. 7 Unperturbed, petitioner elevated the case to the Court of Appeals but his appeal was dismissed through the now assailed Decision dated February 29, 2008, the dispositive portion of which reads: WHEREFORE, premises considered the instant appeal is DISMISSED. The assailed orders of the court a quo dated September 27, 2006 and November 14, 2006 are AFFIRMED. 8 A motion for reconsideration was filed by petitioner but this was denied by the Court of Appeals in the similarly assailed Resolution dated September 16, 2008. Hence, the instant petition was filed. ISTDAH Petitioner submits the following question for consideration by this Court: WHETHER RESPONDENT IS CONSIDERED AN "INCOMPETENT" PERSON AS DEFINED UNDER SECTION 2, RULE 92 OF THE RULES OF COURT WHO SHOULD BE PLACED UNDER GUARDIANSHIP. 9 After considering the evidence and pleadings on record, we find the petition to be without merit. Petitioner comes before the Court arguing that the assailed rulings of the Court of Appeals should be set aside as it allegedly committed grave and reversible error when it affirmed the erroneous decision of the trial court which purportedly disregarded the overwhelming evidence presented by him showing respondent's incompetence. In Francisco v. Court of Appeals, 10 we laid out the nature and purpose of guardianship in the following wise: A guardianship is a trust relation of the most sacred character, in which one person, called a "guardian" acts for another called the "ward" whom the law regards as incapable of managing his own affairs. A guardianship is designed to further the ward's well-being, not that of the guardian. It is intended to preserve the ward's property, as well as to render any assistance that the ward may personally require. It has been stated that while custody involves immediate care and control, guardianship indicates not only those responsibilities, but those of one in loco parentis as well. 11 TaDSCA In a guardianship proceeding, a court may appoint a qualified guardian if the prospective ward is proven to be a minor or an incompetent. A reading of Section 2, Rule 92 of the Rules of Court tells us that persons who, though of sound mind but by reason of age, disease, weak mind or other similar causes, are incapable of taking care of themselves and their property without outside aid are considered as incompetents who may properly be placed under guardianship. The full text of the said provision reads: Sec. 2. Meaning of the word "incompetent." Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. We have held in the past that a "finding that a person is incompetent should be anchored on clear, positive and definite evidence." 12 We consider that evidentiary standard unchanged and, thus, must be applied in the case at bar. In support of his contention that respondent is incompetent and, therefore, should be placed in guardianship, petitioner raises in his Memorandum 13 the following factual matters: AIaSTE a. Respondent has been afflicted with several maladies and has been sickly for over ten (10) years already;

b. During the time that respondent was hospitalized at the St. Luke's Medical Center after his stroke, he purportedly requested one of his former colleagues who was visiting him to file a loan application with the Armed Forces of the

Philippines Savings and Loan Association, Inc. (AFPSLAI) for payment of his hospital bills, when, as far as his children knew, he had substantial amounts of money in various banks sufficient to cover his medical expenses; c. Respondent's residence allegedly has been left dilapidated due to lack of care and management;

d. The realty taxes for respondent's various properties remain unpaid and therefore petitioner and his sister were supposedly compelled to pay the necessary taxes; e. Respondent allegedly instructed petitioner to sell his Nissan Exalta car for the reason that the former would be purchasing another vehicle, but when the car had been sold, respondent did not procure another vehicle and refused to account for the money earned from the sale of the old car; IDaEHS f. Respondent withdrew at least $75,000.00 from a joint account under his name and his daughter's without the latter's knowledge or consent; g. There was purportedly one occasion where respondent took a kitchen knife to stab himself upon the "orders" of his girlfriend during one of their fights; h. Respondent continuously allows his girlfriend to ransack his house of groceries and furniture, despite protests from his children. 14 Respondent denied the allegations made by petitioner and cited petitioner's lack of material evidence to support his claims. According to respondent, petitioner did not present any relevant documentary or testimonial evidence that would attest to the veracity of his assertion that respondent is incompetent largely due to his alleged deteriorating medical and mental condition. In fact, respondent points out that the only medical document presented by petitioner proves that he is indeed competent to run his personal affairs and administer his properties. Portions of the said document, entitled "Report of Neuropsychological Screening," 15 were quoted by respondent in his Memorandum 16 to illustrate that said report in fact favored respondent's claim of competence, to wit: TCacIE General Oropesa spoke fluently in English and Filipino, he enjoyed and participated meaningfully in conversations and could be quite elaborate in his responses on many of the test items. He spoke in a clear voice and his articulation was generally comprehensible. . . . . xxx xxx xxx

General Oropesa performed in the average range on most of the domains that were tested. He was able to correctly perform mental calculations and keep track of number sequences on a task of attention. He did BEST in visuo-constructional tasks where he had to copy geometrical designs using tiles. Likewise, he was able to render and read the correct time on the Clock Drawing Test. . . . . xxx xxx xxx

. . . Reasoning abilities were generally intact as he was able to suggest effective solutions to problem situations. . . . . 17 With the failure of petitioner to formally offer his documentary evidence, his proof of his father's incompetence consisted purely of testimonies given by himself and his sister (who were claiming interest in their father's real and personal properties) and their father's former caregiver (who admitted to be acting under their direction). These testimonies, which did not include any expert medical testimony, were insufficient to convince the trial court of petitioner's cause of action and instead lead it to grant the demurrer to evidence that was filed by respondent. cDCEIA Even if we were to overlook petitioner's procedural lapse in failing to make a formal offer of evidence, his documentary proof were comprised mainly of certificates of title over real properties registered in his, his father's and his sister's names as coowners, tax declarations, and receipts showing payment of real estate taxes on their co-owned properties, which do not in any way relate to his father's alleged incapacity to make decisions for himself. The only medical document on record is the aforementioned "Report of Neuropsychological Screening" which was attached to the petition for guardianship but was never identified by any witness nor offered as evidence. In any event, the said report, as mentioned earlier, was ambivalent at best,

for although the report had negative findings regarding memory lapses on the part of respondent, it also contained findings that supported the view that respondent on the average was indeed competent. In an analogous guardianship case wherein the soundness of mind of the proposed ward was at issue, we had the occasion to rule that "where the sanity of a person is at issue, expert opinion is not necessary [and that] the observations of the trial judge coupled with evidence establishing the person's state of mental sanity will suffice." 18 Thus, it is significant that in its Order dated November 14, 2006 which denied petitioner's motion for reconsideration on the trial court's unfavorable September 27, 2006 ruling, the trial court highlighted the fatal role that petitioner's own documentary evidence played in disproving its case and, likewise, the trial court made known its own observation of respondent's physical and mental state, to wit: IcAaSD The Court noted the absence of any testimony of a medical expert which states that Gen. Cirilo O. Oropesa does not have the mental, emotional, and physical capacity to manage his own affairs. On the contrary, Oppositor's evidence includes a Neuropsychological Screening Report which states that Gen. Oropesa, (1) performs on the average range in most of the domains that were tested; (2) is capable of mental calculations; and (3) can provide solutions to problem situations. The Report concludes that Gen. Oropesa possesses intact cognitive functioning, except for mildly impaired abilities in memory, reasoning and orientation. It is the observation of the Court that oppositor is still sharp, alert and able. 19 (Citation omitted; emphasis supplied.) It is axiomatic that, as a general rule, "only questions of law may be raised in a petition for review on certiorari because the Court is not a trier of facts." 20 We only take cognizance of questions of fact in certain exceptional circumstances; 21 however, we find them to be absent in the instant case. It is also long settled that "factual findings of the trial court, when affirmed by the Court of Appeals, will not be disturbed by this Court. As a rule, such findings by the lower courts are entitled to great weight and respect, and are deemed final and conclusive on this Court when supported by the evidence on record." 22 We therefore adopt the factual findings of the lower court and the Court of Appeals and rule that the grant of respondent's demurrer to evidence was proper under the circumstances obtaining in the case at bar. Section 1, Rule 33 of the Rules of Court provides: Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. HASDcC A demurrer to evidence is defined as "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue." 23 We have also held that a demurrer to evidence "authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part, as he would ordinarily have to do, if plaintiff's evidence shows that he is not entitled to the relief sought." 24 There was no error on the part of the trial court when it dismissed the petition for guardianship without first requiring respondent to present his evidence precisely because the effect of granting a demurrer to evidence other than dismissing a cause of action is, evidently, to preclude a defendant from presenting his evidence since, upon the facts and the law, the plaintiff has shown no right to relief. WHEREFORE, premises considered, the petition is hereby DENIED. The assailed Decision dated February 29, 2008 as well as the Resolution dated September 16, 2008 of the Court of Appeals in CA-G.R. CV No. 88449 are AFFIRMED. SO ORDERED. DTIaHE [G.R. No. 166803. October 11, 2012.] CREWLINK, INC. and/or GULF MARINE SERVICES, petitioners, vs. EDITHA TERINGTERING, for her behalf and in behalf of minor EIMAEREACH ROSE DE GARCIA TERINGTERING, respondents. DECISION

PERALTA, J p: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision 1 dated July 8, 2004 and Resolution 2 dated January 17, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 79966, setting aside the Resolutions dated February 20, 2003 3 and July 31, 2003 4 of the National Labor Relations Commission (NLRC), which affirmed in toto the Decision 5 dated February 12, 2002 of the Labor Arbiter. The facts, as culled from the records, are as follows: DHaECI Respondent Editha Teringtering (Teringtering), spouse of deceased Jacinto Teringtering (Jacinto), and in behalf of her minor child, filed a complaint against petitioner Crewlink, Inc. (Crewlink), and its foreign principal Gulf Marine Services for the payment of death benefits, benefit for minor child, burial assistance, damages and attorney's fees. Respondent alleged that her husband Jacinto entered into an overseas employment contract with Crewlink, Inc. for and in behalf of its foreign principal Gulf Marine Services, the details of which are as follows: Duration of Contract Position : Oiler : US$385.00 : 12 months

Basic Monthly Salary Hours of Work Overtime : :

48 hrs./wk. US$115.50 1 mo. leave after 12 months

Vacation Leave with pay : Point of Hire xxx xxx :

Manila, Philippines xxx

Teringtering claimed that before her husband was employed, he was subjected to a pre-employment medical examination wherein he was pronounced as "fit to work." Thus, her husband joined his vessel of assignment and performed his duties as Oiler. On or about April 18, 2001, a death certificate was issued by the Ministry of Health of the United Arab Emirates wherein it was stated that Jacinto died on April 9, 2001 due to asphyxia of drowning. Later on, an embalming and sealing certificate was issued after which the remains of Jacinto was brought back to the Philippines. IECAaD After learning of the death of Jacinto, respondent claimed from petitioners the payment of death compensation in the amount of US$50,000.00 and burial expenses in the amount of US$1,000.00, as well as additional death compensation in the amount of US$7,000.00, for the minor Eimaereach Rose de Gracia Teringtering but was refused without any valid cause. Hence, a complaint was filed against the petitioners. Respondent claimed that in order for her husband's death to be compensable it is enough that he died during the term of his contract and while still on board. Respondent asserted that Jacinto was suffering from a psychotic disorder, or Mood Disorder Bipolar Type, which resulted to his jumping into the sea and his eventual death. Respondent further asserted that her husband's death was not deliberate and not of his own will, but was a result of a mental disorder, thus, compensable. For its part, petitioner Crewlink alleged that sometime on April 9, 2001, around 8:20 p.m. while at Nasr Oilfield, the late Jacinto Teringtering suddenly jumped into the sea, but the second engineer was able to recover him. Because of said incident, one personnel was directed to watch Jacinto. However, around 10:30 p.m., while the boat dropped anchor south of Nasr Oilfield and went on standby, Jacinto jumped off the boat again. Around 11:00 p.m., the A/B watchman reported that Jacinto was recovered but despite efforts to revive him, he was already dead from drowning. HISAET Petitioner asserted that Teringtering was not entitled to the benefits being claimed, because Jacinto committed suicide. Despite the non-entitlement, however, Teringtering was even given burial assistance in the amount of P35,800.00 and

P13,273.00 on May 21, 2001. She likewise received the amount of US$792.51 representing donations from the GMS staff and crew. Petitioner likewise argued that Teringtering is not entitled to moral and exemplary damages, because petitioner had nothing to do with her late husband's untimely demise as the same was due to his own doing. As part of the record, respondent submitted Ship Captain Oscar C. Morado's report on the incident, which we quote: At around 2000 hrs. M/V Raja 3404 still underway to Nasr Complex w/ 1 passenger. 2018 hrs. A/side Nasr Complex boatlanding to drop 1 passenger At 2020 hrs. Mr. Jacinto Tering Tering suddenly jump to the sea, while the boat cast off from Nasr Complex boatlanding. And the second Engr. Mr. Sudarto jump and recover Mr. Jacinto Tering Tering the oiler. 2040 hrs. Dropped anchor south of Nasr oilfield and standby. And that time informed to GMS personnel about the accident, And we informed to A/B on duty to watch Mr. Jacinto Tering Tering. 2230 hrs. The A/B watch man informed that Mr. Jacinto Tering Tering jump again to the sea. And that time the wind NW 10-14 kts. and strong current. And the second Engr. jump to the sea with life ring to recover Mr. Jacinto Tering Tering. 2300 hrs. We recovered Mr. Jacinto Tering Tering onboard the vessel and apply Respiration Kiss of life Mouth to Mouth, And proceed to Nasr Complex to take doctor. 2320 hrs. A/side Nasr Complex boatlanding and the doctor on-board to check the patient. 2330 hrs. As per Nasr Complex Doctor the patient was already dead. Then informed to GMS personnel about the accident. HTCIcE I Captain Oscar C. Morado certify this report true and correct with the best of my knowledge and reserve the right, modify, ratify and/or enlarge this statement at any time and place, According to the law. 6 * In a Decision dated February 12, 2002, the Labor Arbiter, after hearing, dismissed the case for lack of merit. The Labor Arbiter held that, while it is true that Jacinto Teringtering died during the effectivity of his contract of employment and that he died of asphyxiation, nevertheless, his death was the result of his deliberate or intentional jumping into the sea. Thus, his death was directly attributable to him. Teringtering then appealed before the NLRC which affirmed in toto the ruling of the Labor Arbiter. Unsatisfied, Teringtering filed a petition for certiorari under Rule 65 before the Court of Appeals and sought the nullification of the NLRC Resolution, dated February 20, 2003, which affirmed the Labor Arbiter's Decision dated February 12, 2002. On July 8, 2004, the CA reversed and set aside the assailed Resolution of the NLRC, the dispositive portion of which reads: WHEREFORE, premises considered, the Resolution dated February 20, 2003 is hereby REVERSED and SET ASIDE. Respondents Crewlink, Inc. and Gulf Marine Services are hereby DECLARED jointly and severally liable and, accordingly, are directed to pay deceased Jacinto Teringtering's beneficiaries, namely respondent Editha Teringtering and her daughter Eimaereach Rose de Gracia, the Philippine Currency equivalent to US$50,000.00, and an additional amount of US$7,000, both at the exchange rate prevailing at the time of payment. CSTDIE SO ORDERED. 7 Thus, before this Court, Crewlink, Inc. and/or Gulf Marine Services, as petitioner, raised the following issues: I WHETHER A SPECIAL CIVIL ACTION OF CERTIORARI INCLUDES CORRECTION OF THE NLRC'S EVALUATION OF THE EVIDENCE AND FACTUAL FINDINGS BASED THEREON OR CORRECTION OF ERRORS OF FACTS IN THE JUDGMENT OF THE NLRC; II WHETHER THE NEGLIGENT ACTS OF SUPPOSEDLY FAILING TO TAKE SUCH MEASURES FOR THE COMFORT AND SAFETY OF THE DECEASED SEAFARER, AMONG OTHERS, WHICH WERE ESPECIALLY EMPHASIZED IN THE ASSAILED CA DECISION AND WHICH ACTUALLY REFERRED TO ACTS COMMITTED BY THE SHIPMATES OF THE DECEASED, BUT POSITIVELY ATTRIBUTED TO PETITIONERS AND FOR WHICH THE LATTER ARE NOW BEING HELD LIABLE ARE IN THE NATURE OF

AN ENTIRELY DIFFERENT SOURCE OF OBLIGATION THAT IS PREDICATED ON QUASI-DELICT OR TORT AS PROVIDED UNDER OUR CIVIL LAWS AND, THUS, HAS NO REFERENCE TO OUR LABOR CODE; ITAaHc III WHETHER THE DEATH OF SEAFARER IN THIS CASE WAS A RESULT OF A DELIBERATE/WILLFUL ACT ON HIS OWN LIFE, AN ACT DIRECTLY ATTRIBUTABLE TO THE DECEASED, AND NO OTHER, AS FOUND AND SO RULED BY THE LABOR ARBITER AND NLRC, AS TO RENDER HIS DEATH NOT COMPENSABLE. Petitioner claimed that Jacinto's death is not compensable, considering that the latter's death resulted from his willful act. It argued that the rule that the employer becomes liable once it is established that the seaman died during the effectivity of his employment contract is not absolute. The employer may be exempt from liability if he can successfully prove that the seaman's death was caused by an injury directly attributable to his deliberate or willful act, as in this case. We find merit in the petition. In a petition for review on certiorari, our jurisdiction is limited to reviewing errors of law in the absence of any showing that the factual findings complained of are devoid of support in the records or are glaringly erroneous. We are not a trier of facts, and this applies with greater force in labor cases. Findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality. They are binding upon this Court unless there is a showing of grave abuse of discretion or where it is clearly shown that they were arrived at arbitrarily or in utter disregard of the evidence on record. This case is no different. cTSHaE As found by the Labor Arbiter, Jacinto's jumping into the sea was not an accident but was deliberately done. Indeed, Jacinto jumped off twice into the sea and it was on his second attempt that caused his death. The accident report of Captain Oscar Morado narrated in detail the circumstances that led to Jacinto's death. The circumstances of Jacinto's actions before and at the time of his death were likewise entered in the Chief Officer's Log Book and were attested to by Captain Morado before the Philippine Embassy. Even the A/B personnel, Ronald Arroga, who was tasked to watch over Jacinto after his first attempt of committing suicide, testified that despite his efforts to prevent Jacinto from jumping again overboard, Jacinto was determined and even shoved him and jumped anew which eventually caused his death. Considering the foregoing, we do not find any reason to discredit the evidence presented as well as the findings of the Labor Arbiter. Settled is the rule that factual findings of labor officials, who are deemed to have acquired expertise in matters within their jurisdiction, are generally accorded not only respect but even finality by the courts when supported by substantial evidence, i.e., the amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. More so, when there is no showing that said findings were arrived at arbitrarily or in disregard of the evidence on record. Likewise, the provisions of the Code of Commerce are certainly inapplicable in this case. For precisely, the issue for resolution here is the obligation of the employer to its employee should the latter die during the term of his employment. The relationship between the petitioner and Jacinto is one based on contract of employment and not one of contract of carriage. HTIEaS Under No. 6, Section C, Part II of the POEA "Standard Employment Contract Governing the Employment of All Filipino Seamen On-Board Ocean-Going Vessels" (POEA-SEC), it is provided that: xxx xxx xxx

6. No compensation shall be payable in respect of any injury, incapacity, disability or death resulting from a willful act on his own life by the seaman, provided, however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to him. (Emphasis ours) Indeed, in order to avail of death benefits, the death of the employee should occur during the effectivity of the employment contract. The death of a seaman during the term of employment makes the employer liable to his heirs for death compensation benefits. This rule, however, is not absolute. The employer may be exempt from liability if it can successfully prove that the seaman's death was caused by an injury directly attributable to his deliberate or willful act. TSIDaH

In the instant case, petitioner was able to substantially prove that Jacinto's death was attributable to his deliberate act of killing himself by jumping into the sea. Meanwhile, respondent, other than her bare allegation that her husband was suffering from a mental disorder, no evidence, witness, or any medical report was given to support her claim of Jacinto's insanity. The record does not even show when the alleged insanity of Jacinto did start. Homesickness and/or family problems may result to depression, but the same does not necessarily equate to mental disorder. The issue of insanity is a question of fact; for insanity is a condition of the mind not susceptible of the usual means of proof. As no man would know what goes on in the mind of another, the state or condition of a person's mind can only be measured and judged by his behavior. Establishing the insanity of an accused requires opinion testimony which may be given by a witness who is intimately acquainted with the person claimed to be insane, or who has rational basis to conclude that a person was insane based on the witness' own perception of the person, or who is qualified as an expert, such as a psychiatrist. 8 No such evidence was presented to support respondent's claim. The Court commiserates with the respondent, but absent substantial evidence from which reasonable basis for the grant of benefits prayed for can be drawn, the Court is left with no choice but to deny her petition, lest an injustice be caused to the employer. Otherwise stated, while it is true that labor contracts are impressed with public interest and the provisions of the POEA-SEC must be construed logically and liberally in favor of Filipino seamen in the pursuit of their employment on board ocean-going vessels, still the rule is that justice is in every case for the deserving, to be dispensed with in the light of established facts, the applicable law, and existing jurisprudence. 9 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 79966, dated July 8, 2004, and its January 17, 2005 Resolution denying the motion for reconsideration are REVERSED and SET ASIDE. The February 20, 2003 and July 31, 2003 Resolutions of the National Labor Relations Commission in NLRC NCR OFW Case No. (M) 01-06-1144-00, affirming the February 12, 2002 Decision of the Labor Arbiter, are hereby REINSTATED and AFFIRMED. SO ORDERED. ICaDHT [G.R. No. 188978. June 13, 2012.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCIAL BAYRANTE Y BOAQUINA, accused-appellant. DECISION LEONARDO-DE CASTRO, * J p: This is an appeal from the Court of Appeals' Decision 1 dated November 11, 2008 in CA-G.R. CR.-H.C. No. 02778, entitled People of the Philippines v. Marcial Bayrante y Boaquina, which affirmed with modification the Joint Judgment 2 dated February 7, 2007 of the Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 31 in Criminal Case Nos. P-3286 & P-3287. The trial court found appellant Marcial Bayrante y Boaquina guilty beyond reasonable doubt of two (2) counts of the crime of Rape as defined and penalized under Articles 266-A and 266-B of the Revised Penal Code. ITDSAE The facts of this case, as narrated in the assailed November 11, 2008 Decision of the Court of Appeals, are as follows: On April 3, 2000, AAA 3 filed before the Municipal Trial Court (MTC) of Pili, Camarines, two (2) separate complaints against Accused-Appellant Marcial Bayrante y Boaquina for the crime of Rape. Finding probable cause that the Accused-Appellant may have committed the crimes charged, the Presiding Judge of the MTC ordered the filing of the appropriate Information(s), to which the Office of the Provincial Prosecutor concurred. Consequently, on September 4, 2002, two (2) separate Informations were filed before the RTC charging the Accused-Appellant of two (2) counts of Rape under Art. 266-A of the Revised Penal Code, as amended by Republic Act No. 8353. The Information in Crim. Case No. P-3286, which was raffled off to Br. 31, reads: That on or about 8:00 o'clock in the evening of February 19, 2002 at Brgy. Old San Roque, Pili, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design using force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with his niece [AAA], a 20[]year[-]old mental retardate whose mental age is 9 to 10 years of age, against her will, to her damage and prejudice.

ACTS CONTRARY TO LAW. DTIaHE The other Information, which was raffled off to Br. 32 of the RTC and docketed as Crim. Case No. P-3287, is similarly worded as to date, place, the elements of the crime charged, and the persons involved, except for the time of the commission of the crime, which is at about 10:00 o'clock in the evening of February 19, 2002. As the cases involved the same parties, cause of action, and reliefs sought, a consolidation thereof was decreed. Thereafter, the Accused-Appellant, duly assisted by counsel during the arraignment, pleaded not guilty to both charges. After the pre-trial, proceedings on the merits ensued. IAEcaH The Version of the Prosecution: AAA testified that at about 8:00 o'clock in the evening of February 19, 2002, the Accused-Appellant brought her to Poblacion, Pili, Camarines Sur, particularly to a house, which she described to have many rooms. Thereat, the Accused-Appellant undressed her and himself, laid on top of her, and inserted his penis inside her vagina, during which she felt pain in her organ. She resisted the Accused-Appellant's ravage acts by kicking him several times, but was overcome with fear because he had a knife about five (5) inches long. After an hour or so, or at about 9:00 or 10:00 o'clock in the same evening, the AccusedAppellant again raped her by undressing her and inserting his penis into her vagina. Again, she felt pain in her vagina. Thereafter, the Accused-Appellant threatened to kill her if she told anyone about the incident. AAA also testified, among others, that the Accused-Appellant took her away from their house in one (1) evening of February 2002 when her parents were then already asleep. They walked the streets and later rode a Palces bus in which no other passengers were on board as it was already nighttime. TEDaAc BBB, mother of AAA, stated in open court that the Accused-Appellant, who had been staying in their house, is AAA's uncle because the Accused-Appellant and her husband, CCC, are first cousins. Preliminarily, BBB testified that AAA, who was born on April 16, 1982, attained an educational level of Grade 6 only because of her low comprehension and that she cannot even be relied upon to run errands as she can only follow simple instructions or tasks if well-explained to her. AAA is unlike any normal child because she cries and scampers away when there are visitors around; she has never attended any party, dance events, or any social gathering; and had poor grades in school. BBB also testified that the Accused-Appellant disappeared in the evening of February 14, 2002, together with her daughter, AAA. She and CCC looked for their whereabouts, but located them only on February 20, 2002, in Poblacion, Pili, Camarines Sur. When they saw AAA and the Accused-Appellant standing near a market, waiting for a ride going to Manapao, Minalabac, Camarines Sur, they immediately approached and embraced AAA and took her away from the latter. Forthwith, they reported the matter to the Barangay Tanod of the place whereupon the Accused-Appellant was brought to the police station for questioning. TCHcAE At home, BBB interviewed her daughter as to where the Accused-Appellant brought her, to which AAA replied that she was brought to a certain place in Pili, Camarines Sur, where the Accused-Appellant raped her twice and threatened to kill her if she told anyone about the incident. Upon learning the same, she brought AAA to Dr. Pablo B. Filio, Jr. (Dr. Filio) on the following day for a physical examination and, thereafter, to Dr. Imelda Escuadra (Dr. Escuadra) for further check-up. Dr. Escuadra, a Medical Specialist II at the Bicol Medical Center and in charge of the Women and Children Protection Unit, particularly in the psychiatric evaluation and management of patients, is the one who conducted psychiatric and psychological tests on AAA. Dr. Escuadra testified that AAA suffers from post-traumatic stress disorder (PTSD). She also diagnosed AAA with mild mental retardation because of her intellectual quotient (IQ) of only 55, which meant that her mental age is equivalent to that of nine (9) to ten (10)-year old child. Dr. Escuadra elaborated that the psychiatric tests and psychological tests performed on AAA are different from each other because the former refers to the examination of the patient's mental capacity while the latter refers to the evaluation of the patient's intelligence quotient. She also averred that AAA was poor in arithmetic and economics; that it took her some time to answer even simple questions; that her answers were short and monosyllabic; and that AAA cooperated during the sessions only when BBB is present. Finally, Dr. Escuadra testified that AAA disclosed to her the events that transpired during the rape incident in February 2002. CHDAaS Dr. Filio, an Assistant City Health Officer in Iriga City who conducted a physical examination on AAA, testified in fine that he did not find any laceration on the victim's vagina or seminal fluid inside it.

Finally, Carlos Bayrante, an uncle of the Accused-Appellant, corroborated BBB's testimony that at about 7:00 o'clock in the morning of February 20, 2002, they saw AAA and the Accused-Appellant together. He wondered why the two (2) were together, but he did not bother to ask anyway. The Version of the Defense: The Accused-Appellant testified that he and CCC are cousins and that he stayed in the house of the latter and his [CCC's] family since October 2001 to help in lumber-cutting. He denied forcing AAA into a relationship with him and added that during his stay with CCC's family, he courted a female neighbor with whom AAA later quarreled because [AAA] had feelings for him. He dissuaded her at first, but AAA threatened to commit suicide if they do not become sweethearts. He even consulted a friend for he entertained the idea that AAA might actually carry out her threat to commit suicide. Also, on one occasion, AAA went inside his bedroom and suggested that they should leave the place since her parents will not approve of their relationship. CScTDE The Accused-Appellant further testified that on or about February 9, 2002, he and AAA left the house, stopped by at Baao and proceeded to Pili, Camarines Sur at about 5:00 or 6:00 o'clock the following morning. They first went to his friend's house where AAA changed her clothes and, later, to his uncle's house in Minalabac, Camarines Sur, where he left AAA because he had to go back to Baao to get his own clothes. He returned to his uncle's house in the afternoon of the same day and stayed there with AAA for five (5) more days. While in Manapao, AAA suggested that they go to the office of the Barangay Captain to execute an affidavit to the effect that AAA's act of going with him was voluntary. The Accused-Appellant further testified that he and AAA went to Old San Roque when they learned that the latter's parents were looking for them. They checked in at El Alma Hotel in Pili, Camarines Sur, where they spent the night and checked out of the following morning on February 20, 2002. In the said morning, however, when they went to the house of his cousin, William Raon (Raon), to pick up their personal belongings, AAA's parents were there. cSATEH Marilyn Mendoza (Mendoza) testified that she personally knows AAA as she (Mendoza) was previously introduced to her by the Accused-Appellant. The next time that she met AAA was sometime on February 12 or 13, 2002 when the AccusedAppellant requested if they could stay at her (Mendoza) parent's house. She, however, refused to entertain them because her parents will not approve of it. Thus, AAA and the Accused-Appellant stayed there only for a while. Raon, a Barangay Tanod in Old San Roque, Pili, Camarines Sur, testified that at about 6:30 in the morning of February 19, 2002, he was in front of the store of his relative in Old San Roque, Pili, Camarines Sur, when the Accused-Appellant arrived together with a woman (referring to AAA). He noticed that when the Accused-Appellant left some things in the store, the latter's right arm was placed on AAA's shoulder. When he saw them again at about 5:00 o'clock in the morning of the following day, in front of the public market, the Accused-Appellant's right arm was lazing on the woman's shoulder while the latter were leaning on the Accused-Appellant's shoulder. At around 7:00 o'clock in the morning of even date, BBB and her husband CCC approached him and sought his help in apprehending the Accused-Appellant on the allegation that the latter raped their daughter. As the Accused-Appellant was only about ten (10) to fifteen (15) meters away from him, he called the former and told him to place his hands on his head. He then conducted a body search, and thereafter, brought him to the police station in Pili, Camarines Sur, for an investigation. The woman, who was with the Accused-Appellant at the time, said that she will go with him at the police station because they love each other. IcTEAD Barangay Captain Zenaida Regis (Brgy. Capt. Regis) of Barangay Manapao, Minalabac, Camarines Sur, testified that on February 19, 2002, the Accused-Appellant, together with AAA, came to her office requesting the preparation of an affidavit to the effect that AAA voluntarily went with the Accused-Appellant. While interviewing AAA, Brgy. Capt. Regis noticed that it took some time for AAA to answer the question of whether or not she was forced to go with the Accused-Appellant. She qualified, however, that AAA finally answered in the negative. 4 (Citations omitted.) After due proceedings in Criminal Case Nos. P-3286 and P-3287, the trial court found the accused-appellant guilty beyond reasonable doubt of two (2) counts of Rape that were charged against him. We quote the dispositive portion of the trial court's Joint Judgment dated February 7, 2007 here: WHEREFORE, premises considered, Judgment is hereby rendered convicting the accused for TWO (2) Counts of RAPE and is sentenced to suffer the penalty of RECLUSION PERPETUA for each count. To pay [AAA] the amount of P50,000.00 as moral damages, the amount of P50,000.00 as civil indemnity and P25,000.00 as exemplary damages for each count, or in the total amount of P250,000.00. aDSTIC

With cost de oficio. 5 Unperturbed, appellant elevated his case to the Court of Appeals but the trial court's ruling was merely affirmed with modification by the appellate court in its Decision dated November 11, 2008. The appellate court disallowed the award of exemplary damages for the reason that the same may be awarded only when one or more aggravating circumstances exist and that no such circumstance is present in the case at bar. The dispositive portion of the appellate court's Decision reads: WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The amount of Twenty[-]Five Thousand Pesos (Php25,000.00) as exemplary damages is DELETED. No costs. 6 Thus, appellant interposed this appeal before this Court. He merely adopted his Appellant's Brief with the Court of Appeals and no longer filed a supplemental brief on the belief that the Appellant's Brief had adequately discussed all matters that are pertinent to his defense. In the present appeal, he put forth a single assignment of error: TAacCE THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT WHOSE GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. 7 In his Brief, appellant maintains that AAA was his lover and that she voluntarily eloped with him as evidenced by the affidavit she signed before Brgy. Capt. Regis. Furthermore, appellant argues that the prosecution failed to establish the mental state of AAA which is crucial to the charge that he raped a woman who is of the legal age but otherwise deprived of reason. In other words, he asserts that the prosecution was not able to prove that AAA suffers from mental retardation. For these reasons, appellant urges this Court to exculpate him from guilt. We are not persuaded. The provision of law pertinent in this case is Article 266-A of the Revised Penal Code, which states that: DTIcSH Art. 266-A. 1. a. b. c. Rape, When and How Committed. Rape is committed

By a man who shall have carnal knowledge of a woman under any of the following circumstances: Through force, threat or intimidation; When the offended party is deprived of reason or is otherwise unconscious; By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present; 2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.) cAaETS It is settled in jurisprudence that, under the foregoing provision of law, carnal knowledge of a woman with a mental deficiency is considered rape because such a person is not capable of giving consent to a sexual act. 8 In a recent case, we had declared that in cases of rape involving a victim suffering from mental retardation, proof of force or intimidation is not necessary, it being sufficient for the State to establish (1) the sexual congress between the accused and the victim, and (2) the mental retardation of the victim. 9 Previously in People v. Dalandas, 10 we described in detail the nature of mental retardation as well as its different degrees as defined in the modern and the old intelligence quotient (IQ) scales: Mental retardation is a chronic condition present from birth or early childhood and characterized by impaired intellectual functioning measured by standardized tests. It manifests itself in impaired adaptation to the daily demands of the individual's own social environment. Commonly, a mental retardate exhibits a slow rate of maturation, physical and/or psychological, as well as impaired learning capacity. DHCSTa

Although "mental retardation" is often used interchangeably with "mental deficiency," the latter term is usually reserved for those without recognizable brain pathology. The degrees of mental retardation according to their level of intellectual function are illustrated, thus: Mental Retardation LEVEL DESCRIPTION TERM (IQ RANGE) I II III IV Profound Severe 20-35 Moderate Mild 53-68 36-52 Below 20 INTELLIGENCE QUOTIENT

A normal mind is one which in strength and capacity ranks reasonably well with the average of the great body of men and women who make up organized human society in general, and are by common consent recognized as sane and competent to perform the ordinary duties and assume the ordinary responsibilities of life. SACEca The traditional but now obsolescent terms applied to those degrees of mental retardation were (a) idiot, having an IQ of 0-19, and a maximum intellectual factor in adult life equivalent to that of the average two-year old child; (b) imbecile by an IQ of 20 to 49 and a maximum intellectual function in adult life equivalent to that of the average seven-year old child; (c) moron or feebleminded, having an IQ of 50 to 69 and a maximum intellectual function in adult life equivalent to that of the average twelve-year old child. Psychiatrists and psychologists apply the term "borderline" intelligence to those with IQ between 70 to 89. In People v. Palma, we ruled that a person is guilty of rape when he had sexual intercourse with a female who was suffering from a "borderline mental deficiency." 11 In the case at bar, the undisputed expert testimony of Dr. Imelda Escuadra, a Medical Specialist II and officer-in-charge of the Women and Children Protection Unit at the Bicol Medical Center who personally conducted the psychiatric tests on AAA, clearly established that the victim is afflicted with mild mental retardation. She further testified that AAA was also suffering from post traumatic stress disorder (PTSD) and that AAA possesses an IQ of 55 with a mental age equivalent to that of a normal 9 to 10-year-old person. 12 IHcSCA In an attempt to discredit Dr. Escuadra's testimony, appellant argued that Dr. Escuadra admitted that the psychological test result was only furnished to her by the psychologist who conducted AAA's psychological exam and that the said psychologist was not presented in court. 13 We find this argument unmeritorious. What was clear from Dr. Escuadra's testimony was that her psychiatric evaluation yielded the same diagnosis as the psychological examination with respect to the victim's mental retardation. 14 The presentation of the psychologist who conducted the psychological examination could be dispensed with as the same would have merely been corroborative. In any event, notwithstanding the fact that the determination of mental retardation is deeply rooted in medical psychology, we had previously ruled that evidence other than a psychometric evaluation can prove mental retardation or abnormality. 15 Furthermore, we held that mental retardation can be proved by evidence other than medical or clinical evidence, such as the testimony of witnesses and even the observation of the trial court. 16 We find no error on the part of the Court of Appeals when it likewise gave weight to the testimony of BBB (AAA's mother) regarding AAA's difficulties in school due to low comprehension and failure to complete even simple chores. 17 Even assuming purely for the sake of argument that the mental retardation of the victim was not proven, we likewise uphold the appellate court in finding that AAA's testimony adequately showed how appellant utilized force and intimidation to succeed in having carnal knowledge with her. AAA testified that she initially resisted appellant's carnal desire but was eventually overcome by the latter because he used a knife to threaten her. At one point in her testimony, AAA could not continue with her narration of the events that transpired during the alleged rape incidents as she was overwhelmed by

emotion, even weeping on the witness stand. Consequently, it was necessary for the trial court to call a recess in order to give AAA the chance to collect herself. These were evident in the following excerpts from the court transcript: ACTESI Pros. Solano: Q A Q A Q A Q A Q A Q Miss Witness, sometime on February 19, 2002 at about 8:00 o'clock in the evening do you recall where were you? I was at Centro Pili, sir. You are referring to Pili, Camarines Sur? Yes, sir. Particularly where in Pili, Camarines Sur were you at that time? In the house. Why were you in that house located at Pili, Camarines Sur on that particular date and time? I was brought there by Marcial. When you said Marcial you are referring to Marcial the accused in these two (2) cases? DASEac Yes, sir. By the way, have you gone to El Alma Hotel?

Atty. Obias: No basis, your honor. Pros. Solano: Preliminary, your honor. Court: Reform. Pros. Solano: Q A Q A Q A Q As you were there as you said tell us what happened? I was undressed. TDSICH By whom? By Marcial, sir. After you were undressed by Marcial, tell us what happened? He got on top of me, sir. After Marcial Bayrante got on top of you as you said tell us what happened next?

Pros. Solano: I will withdraw that question. Pros. Solano:

Q A Q A Court: Q A Q A Court:

What happened to Marcial Bayrante when you were already undressed, what did he do, if any? He also undressed himself, sir. cHECAS After Marcial Bayrante undressed himself as you said, what next happened? (At this juncture, the witness is crying.)

Why are you crying? Because I remembered what he did to me, your honor. And so tell us what did he do to you, the accused in this case? (No answer.)

Continue. Pros. Solano: ECcDAH Q You testified earlier that you were undressed by the accused and he himself undressed also and so what happened to his penis and your vagina, if any? A (No answer.)

Atty. Obias: Maybe, your honor we can suspend the proceedings. Court: To give the private complainant witness to regain composure as she is crying and cannot answer to the question of the public prosecutor, the hearing is suspended for ten (10) minutes after which we will resume the hearing of the same. Hearing resumed at 10:00 in the morning. Pros. Solano: aITDAE Q Miss witness, you testified that accused undressed you and after he undressed you he also undressed himself, what happened next, if any? A Q A Q A Q A Q He inserted his penis to my vagina. So what did you feel, if any? I felt painful. Now, at about 10:00 o'clock of the same night, February 19, 2002, where were you at that time? I was still at the house, sir. Tell us what happened, if any? Again, I was undressed by accused. After you were undressed again by the accused as you said, what else happened, if any? IaHDcT

A Q A

Again he inserted his penis to my vagina. Again, what did you feel? It was painful, sir.

Q If you can estimate the penis of the accused inserted to your vagina on February 19, 2002 at Pili, Camarines Sur as you can estimate these two (2) insertion was made by the accused? A (No answer.)

Q Now, after the accused inserted his penis to your vagina at 8:00 o'clock on February 19, 2002 in that house, what happened as you said was painful? A Q A Q A Court: Q A Q A Court: Continue. Pros. Solano: Q A Do you have any death certificate? aDACcH Yes sir, I have. (At this juncture, the witness is producing her birth certificate.) Where is now the child? He died. When did your child died? Right after my delivery, your honor. I got pregnant, sir. And what happened to your pregnancy? And so I gave birth to a baby girl. DcCASI Do you know the name? Yes sir, Jose.

Q And so, as far as you can recall miss witness during these two (2) incidents that the penis of the accused inserted to your vagina, did you not resist? A Q A Q A Q Yes, sir. And what happened to your resistance? I was afraid. Why were you afraid? Because he had with him a knife. What kind of knife, how long was it?

A (At this juncture, the witness is demonstrating the length of the knife which is about five (5) inches long including the handle.) ISTECA Court: Q A Q A Q A Q A xxx Court: Q A Q A Q A Q A Q A You said that you were raped, do you recall where was that house where. . . you were brought by the accused located? There at Pili, Camarines Sur. Do you know who owns that house? No, your honor. Can you describe that house? Plenty of rooms, your honor. Does it has name? SaHTCE I was not able to see, your honor. And you said you bore a child that died right after you gave birth tell us the father of your child? (At this juncture, the witness is pointing to a man who when asked his name responded as Marcial Bayrante.) 18 You said that you resisted how did you resist? (No answer.) You said that when the accused inserted his penis to your vagina, how were you resisted? I was kicking at him, your honor. Was he hit when you kicked him? Yes, your honor. How many times did you kick him? ECTIcS Many times, your honor. xxx xxx

In People v. Manjares, 19 we reiterated the basic principles that: In a prosecution for rape, the accused may be convicted solely on the basis of the testimony of the victim that is credible, convincing, and consistent with human nature and the normal course of things, as in this case. There is a plethora of cases which tend to disfavor the accused in a rape case by holding that when a woman declares that she has been raped, she says in effect all that is necessary to show that rape has been committed and, where her testimony passes the test of credibility, the accused can be convicted on the basis thereof. . . . . That the victim suffers from a mental abnormality or deficiency would not detract from the reliability of her testimony. We observed in a similar case that: ESTDcC While it is true that the credibility of one who is a mental retardate may be difficult to determine, still, it can be ascertained by deducing from the manner she testifies in court as to the surrounding facts of the crime committed. For as long as her testimony is straightforward, candid and unflawed by inconsistencies or contradictions in its material points, and her

demeanor is consistent with one who has been a victim of rape, bolsters her credibility with the verity born[e] out of human nature and experience, thus, must be given full faith and credit. Moreover, mental retardation per se does not affect credibility. A mentally retarded [person] may be a credible witness. The acceptance of her testimony depends on the quality of her perceptions and the manner she can make them known to the court. 20 In People v. Arpon, 21 we discussed the jurisprudential principle of affording great respect and even finality to the trial court's assessment of the credibility of witnesses: ACcaET Time and again, the Court has held that when the decision hinges on the credibility of witnesses and their respective testimonies, the trial court's observations and conclusions deserve great respect and are often accorded finality. The trial judge has the advantage of observing the witness' deportment and manner of testifying. Her "furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath" are all useful aids for an accurate determination of a witness' honesty and sincerity. The trial judge, therefore, can better determine if witnesses are telling the truth, being in the ideal position to weigh conflicting testimonies. Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they were lying. The rule finds an even more stringent application where said findings are sustained by the [Court of Appeals]. 22 We further agree with the Court of Appeals that AAA's emotional outburst on the witness stand strengthens the trustworthiness of her testimony. According to jurisprudence, the crying of a victim during her testimony is evidence of the credibility of the rape charge with the verity borne out of human nature and experience. 23 cETCID In a seemingly desperate effort to secure an acquittal, appellant maintains that the alleged rape could not have occurred because both he and AAA were lovers. In other words, he proffers the "sweetheart theory" as a defense but his assertion is bereft of substantial proof. The appellate court did not err in finding that the testimony of the witnesses presented by appellant utterly failed to satisfactorily prove the alleged romantic relationship. Witness Marilyn Mendoza's testimony revealed that it was only appellant who claimed that AAA was his sweetheart and that AAA never spoke to her much less told her that both she and appellant were romantically involved with each other. 24 Likewise, witness William Raon's testimony is afflicted with the same infirmity. He merely averred that he saw appellant's arm on AAA's shoulder and from that fact assumed that they had a relationship. Still he admitted in open court that he had no personal knowledge of the purported love affair between appellant and AAA. 25 DTcACa Neither could the purported affidavit signed by AAA before Brgy. Captain Regis be relied upon by appellant. All that the affidavit stated was that AAA "voluntarily went with [appellant]" 26 but such statement does not preclude that any sexual relation between them was not consensual. Moreover, given AAA's mental state, it was highly doubtful that she understood the significance of the affidavit that she signed or that she signed it voluntarily. We note, too, Brgy. Captain Regis's testimony that (a) it was appellant who insisted on the execution of the affidavit 27 and (b) the reason AAA was asked to sign the affidavit was so that appellant would have no responsibility or liability as regards AAA. 28 We have previously held that: For the ["sweetheart"] theory to prosper, the existence of the supposed relationship must be proven by convincing substantial evidence. Failure to adduce such evidence renders his claim to be self-serving and of no probative value. For the satisfaction of the Court, there should be a corroboration by their common friends or, if none, a substantiation by tokens of such a relationship such as love letters, gifts, pictures and the like. 29 SIacTE Significantly, this Court has decreed that even if the alleged romantic relationship were true, this fact does not necessarily negate rape for a man cannot demand sexual gratification from a fiance and worse, employ violence upon her on the pretext of love because love is not a license for lust. 30 As to the civil liability, we affirm the trial court's award of Fifty Thousand Pesos (P50,000.00) as civil indemnity and another Fifty Thousand Pesos (P50,000.00) as moral damages for each count of simple rape that appellant had been proven to have

committed. However, we disagree with the Court of Appeals' decision to delete the trial court's award of exemplary damages in the amount of Twenty-Five Thousand Pesos (P25,000.00). In consonance with prevailing jurisprudence on simple rape wherein exemplary damages are awarded in order to set a public example and to protect hapless individuals from sexual molestation, we agree with the trial court regarding the propriety of the award of exemplary damages but increased the same from Twenty-Five Thousand Pesos (P25,000.00) to Thirty Thousand Pesos (P30,000.00). 31 STCDaI WHEREFORE, premises considered, the Decision dated November 11, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02778 is hereby AFFIRMED with MODIFICATIONS, to wit: (1) Appellant Marcial Bayrante is ordered to pay Thirty Thousand Pesos (P30,000.00) as exemplary damages for each count of SIMPLE RAPE, and (2) Appellant Marcial Bayrante is further ordered to pay the private offended party interest on all damages awarded at the legal rate of six percent (6%) per annum from the date of finality of this judgment. No pronouncement as to costs. SO ORDERED. [G.R. No. 193237. October 9, 2012.] DOMINADOR G. JALOSJOS, JR., petitioner, vs. COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, respondents. [G.R. No. 193536. October 9, 2012.] AGAPITO J. CARDINO, petitioner, vs. DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, respondents. DECISION CARPIO, J p: These are two special civil actions for certiorari 1 questioning the resolutions of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution 2 of the COMELEC First Division and the 11 August 2010 Resolution 3 of the COMELEC En Banc, which both ordered the cancellation of his certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied the rule on succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos' certificate of candidacy. aTEHCc The Facts Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor. aEACcS Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final judgment for robbery and sentenced to prisin mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos' probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds. 4 The COMELEC En Banc narrated the circumstances of Jalosjos' criminal record as follows:

As backgrounder, [Jalosjos] and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to prision mayor maximum. [Jalosjos] appealed this decision to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or more specifically on June 17, 1985 that [Jalosjos] filed a Petition for Probation before the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, [Jalosjos'] probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235. ETDHSa This prompted [Cardino] to call the attention of the Commission on the decision of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder: DTaAHS The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, [Jr.,] unwarranted benefits and advantage because the subject certification, which was issued by the accused without adequate or official support, was subsequently utilized by the said probationer as basis of the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification was also used by the said probationer and became the basis for the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification of the probationer from running for re-election as Mayor of Dapitan City in the National and Local Elections of 2004. 5 The COMELEC's Rulings On 10 May 2010, the COMELEC First Division granted Cardino's petition and cancelled Jalosjos' certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed material misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal case, the sentence of which he has not yet served." 6 The COMELEC First Division found that Jalosjos' certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and twenty days of prisin correccional as minimum, to four years, two months and one day of prisin mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40 (a) of Republic Act No. 7160." 7 On 11 August 2010, the COMELEC En Banc denied Jalosjos' motion for reconsideration. The pertinent portions of the 11 August 2010 Resolution read: aEcDTC With the proper revocation of [Jalosjos'] earlier probation and a clear showing that he has not yet served the terms of his sentence, there is simply no basis for [Jalosjos] to claim that his civil as well as political rights have been violated. Having been convicted by final judgment, [Jalosjos] is disqualified to run for an elective position or to hold public office. His proclamation as the elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve the present petition to its finality, and to oust him from the office he now wrongfully holds. cIEHAC WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit. [Jalosjos] is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on succession apply. SO ORDERED. 8 Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536.

On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237. HaTAEc WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED. 9 Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration 10 on 22 March 2011. On 29 March 2011, this Court resolved 11 to consolidate G.R. No. 193536 with G.R. No. 193237. Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes." 12 Jalosjos' resignation was made "[i]n deference with the provision of the Omnibus Election Code in relation to [his] candidacy as Provincial Governor of Zamboanga del Sur in May 2013." 13 These cases are not rendered moot by Jalosjos' resignation. In resolving Jalosjos' Motion for Reconsideration in G.R. No. 193237 and Cardino's Petition in G.R. No. 193536, we address not only Jalosjos' eligibility to run for public office and the consequences of the cancellation of his certificate of candidacy, but also COMELEC's constitutional duty to enforce and administer all laws relating to the conduct of elections. CcHDSA The Issues In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos' probation was revoked; (2) ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos' certificate of candidacy without making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of Procedure. EACIaT In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that the provisions of the Local Government Code on succession should apply. This Court's Ruling The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos' certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos' certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the position of Mayor. HIACEa The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus Election Code and apply the rule on succession under the Local Government Code. A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section 78 of the same Code. Sections 74 and 78 read: CSaHDT Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that

he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. ESTCHa Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the 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 due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office. 14 If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78. EAICTS A sentence of prisin mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read: Section 40, Local Government Code: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) (c) (d) (e) Those removed from office as a result of an administrative case; DAHCaI Those convicted by final judgment for violating the oath of allegiance to the Republic; Those with dual citizenship; Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

Section 12, Omnibus Election Code: TcIAHS Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. cAEDTa Section 68, Omnibus Election Code: Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to

enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. HcSaTI Revised Penal Code: Art. 27. Reclusion perpetua. . . . Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty. xxx xxx xxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: DHITCc 1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2. 3. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. HcSaTI

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification. Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. HCacDE Art. 42. Prisin mayor its accessory penalties. The penalty of prisin mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied) The penalty of prisin mayor automatically carries with it, by operation of law, 15 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office." The duration of the temporary absolute disqualification is the same as that of the principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification," which is perpetually. Both

temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run. EACIcH In Lacuna v. Abes, 16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification: On the first defense of respondent-appellee Abes, it must be remembered that appellee's conviction of a crime penalized with prisin mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment. The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961. cEaCAH But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides: Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification. IDTSEH The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied) DaEATc Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually." The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the time his judgment of conviction became final. aIcDCA Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath. As used in Section 74, the word "eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v. Commission on Elections, 17 the false material representation may refer to "qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin: IESTcD

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. 18 (Emphasis supplied) DSAICa Conviction for robbery by final judgment with the penalty of prisin mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code: Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied) DICSaH There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos' conviction for the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia, 19 the Court declared: [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in nature. (Emphasis supplied) DAHSaT A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and (4) a statement of the candidate's allegiance to the Constitution of the Republic of the Philippines. 20 We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his certificate of candidacy. ECDHIc What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prisin mayor, a petition under Section 12

of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to the petitioner. The COMELEC properly cancelled Jalosjos' certificate of candidacy. A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes. 21 Jalosjos' certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos' ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections Cardino who received the highest number of votes. ETIDaH Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible 22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. 23 If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position. Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. AETcSa Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "[e]nforce and administer all laws and regulations relative to the conduct of an election." 24 The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all laws" relating to the conduct of elections. To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment. TEaADS WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Banc, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Banc is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte.

Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU. HAEIac SO ORDERED. Sereno, C.J., Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Perlas-Bernabe, JJ., concur. Velasco, Jr., J., I join the dissent of J.B. Reyes. Leonardo-de Castro and Peralta, JJ., took no part due to prior participation in a related case. Brion, J., see my dissenting opinion. Bersamin, J., please see concurring opinion. Reyes, J., with my dissenting opinion. Separate Opinions BRION, J., dissenting: Dominador G. Jalosjos, Jr. and Agapito Cardino were rivals in the mayoralty race in Dapitan City, Zamboanga del Norte in the May 2010 elections. Before election day, Cardino filed with the Commission on Elections (COMELEC) a Petition to Deny Due Course and/or Cancel the Certificate of Candidacy against Jalosjos, alleging that the latter made a material misrepresentation in his Certificate of Candidacy (CoC) when he declared that he was eligible for the position of mayor when, in fact, he was disqualified under Section 40 of the Local Government Code for having been previously convicted by a final judgment for a crime (robbery) involving moral turpitude. DCSTAH In his defense, Jalosjos admitted his previous conviction but argued that he had been admitted to probation, which allegedly restored him to all his political rights. Cardino rebutted Jalosjos' defense, citing a court order revoking the grant of probation for Jalosjos' failure to comply with the terms and conditions of the grant of probation. On the very day of the election, the COMELEC resolved to grant Cardino's petition and ordered the cancellation of Jalosjos' CoC. The COMELEC ruled that the rules on succession would then apply. Both Cardino and Jalosjos came to the Court for redress. On February 22, 2011, the Court denied Jalosjos' petition, prompting Jalosjos to move for reconsideration. During the pendency of his motion, Jalosjos manifested that he had already tendered his resignation from his office and that the same was duly accepted by the governor of the province of Zamboanga del Norte. I dissent from the majority's (i) position that the present case involves a cancellation of a certificate of candidacy (CoC) rather than a case of disqualification and (ii) conclusion that Cardino, the "second placer" in the 2010 elections for the mayoralty post of Dapitan City, Zamboanga del Norte, should be the rightful Mayor. I submit that while Cardino intended to cancel Jalosjos' CoC, his petition alleged acts constituting disqualification as its ground. Thus, the case should be resolved under the rules of disqualification, not from the point of a cancellation of a CoC. EHTISC I point out in this Dissenting Opinion, as I did in the cases of Mayor Barbara Ruby C. Talaga v. Commission on Elections, et al. 1 and Efren Racel Aratea v. Commission on Elections, et al., 2 that this case is best resolved through an analytical approach that starts from a consideration of the nature of a CoC; the distinctions between eligibility or lack of it and disqualification; the effects of cancellation and disqualification; and the applicable remedies. IDEScC The CoC and the Qualifications for its Filing.

As I discussed in Talaga and Aratea, a basic rule and one that cannot be repeated often enough is that the CoC is the document that creates the status of a candidate. In Sinaca v. Mula, 3 the Court described the nature of a CoC as follows A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. ICHcaD Both the 1973 and 1987 Constitutions left to Congress the task of providing the qualifications of local elective officials. Congress undertook this task by enacting Batas Pambansa Bilang (B.P. Blg.) 337 (Local Government Code or LGC), B.P. Blg. 881 (Omnibus Election Code or OEC) and, later, Republic Act (R.A.) No. 7160 (Local Government Code of 1991 or LGC 1991). 4 Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the due filing of his sworn CoC. 5 In fact, Section 73 of the OEC makes the filing of the CoC a condition sine qua non for a person to "be eligible for any elective public office" 6 i.e., to be validly voted for in the elections. Section 76 of the OEC makes it a "ministerial duty" for a COMELEC official "to receive and acknowledge receipt of the certificate of candidacy" 7 filed. COMELEC Resolution No. 8678 provides what a CoC must contain or state: 8 Section 2. Contents of certificate of candidacy. The certificate of candidacy shall be under oath and shall state that the person filing it is announcing his candidacy for the office and constituency stated therein; that he is eligible for said office, his age, sex, civil status, place and date of birth, his citizenship, whether natural-born or naturalized; the registered political party to which he belongs; if married, the full name of the spouse; his legal residence, giving the exact address, the precinct number, barangay, city or municipality and province where he is registered voter; his post office address for election purposes; his profession or occupation or employment; that he is not a permanent resident or an immigrant to a foreign country; that he will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, decrees, resolution, rules and regulations promulgated and issued by the duly-constituted authorities; that he assumes the foregoing obligations voluntarily without mental reservation or purpose of evasion; and that the facts stated in the certificate are true and correct to the best of his own knowledge. [italics supplied] cHCIDE From the point of view of the common citizen who wants to run for a local elective office, the above recital contains all the requirements that he must satisfy; it contains the basic and essential requirements applicable to all citizens to qualify for candidacy for a local elective office. These are their formal terms of entry to local politics. A citizen must not only possess all these requirements; he must positively represent in his CoC application that he possesses them. Any falsity on these requirements constitutes a material misrepresentation that can lead to the cancellation of the CoC. On this point, Section 78 of the OEC provides: DHATcE Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by [any] person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. [italics, emphases and underscores ours] A necessarily related provision is Section 39 of LGC 1991 which states: Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. DaTICE xxx xxx xxx

(c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. [italics ours]

Notably, Section 74 of the OEC does not require any negative qualification except only as expressly required therein. A specific negative requirement refers to the representation that the would-be candidate is not a permanent resident nor an immigrant in another country. This requirement, however, is in fact simply part of the positive requirement of residency in the locality for which the CoC is filed and, in this sense, is not strictly a negative requirement. Neither does Section 74 require any statement that the would-be candidate does not possess any ground for disqualification specifically enumerated by law, as disqualification is a matter that the OEC and LGC 1991 separately deal with, as discussed below. cDCEHa With the accomplishment of the CoC and its filing, a political aspirant officially acquires the status of a candidate and, at the very least, the prospect of holding public office; he, too, formally opens himself up to the complex political environment and processes. The Court cannot be more emphatic in holding "that the importance of a valid certificate of candidacy rests at the very core of the electoral process." 9 Pertinent laws 10 provide the specific periods when a CoC may be filed; when a petition for its cancellation may be brought; and the effect of its filing. These measures, among others, are in line with the State policy or objective of ensuring "equal access to opportunities for public service," 11 bearing in mind that the limitations on the privilege to seek public office are within the plenary power of Congress to provide. 12 The Concept of Disqualification vis-a-vis Remedy of Cancellation; and Effects of Disqualification. To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further competition because of violation of the rules. 13 It is in these senses that the term is understood in our election laws. cDCSTA Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens (Section 74 of the OEC) may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office. In a disqualification situation, the grounds are the individual traits or conditions of, or the individual acts of disqualification committed by, a candidate as provided under Sections 68 and 12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the eligibility requirements for the filing of a CoC. 14 Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude. ScaEIT Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications: a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; b. c. d. Those removed from office as a result of an administrative case; Those convicted by final judgment for violating the oath of allegiance to the Republic; Those with dual citizenship;

e.

Fugitives from justice in criminal or non-political cases here or abroad;

f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and EIcSDC g. The insane or feeble-minded.

Together, these provisions embody the disqualifications that, by statute, can be imputed against a candidate or a local elected official to deny him of the chance to run for office or of the chance to serve if he has been elected. A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a "candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why no representation is required in the CoC that the would-be candidate does not possess any ground for disqualification. The time to hold a person accountable for the grounds for disqualification is after attaining the status of a candidate, with the filing of the CoC. To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC. The latter refer to individual traits, conditions or acts applicable to specific individuals that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidate's CoC. IaAScD When the law allows the cancellation of a candidate's CoC, the law considers the cancellation from the point of view of those positive requirements that every citizen who wishes to run for office must commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified. cHAaEC Distinctions among (i) denying due course to or cancellation of a CoC, (ii) disqualification, and (iii) quo warranto The nature of the eligibility requirements for a local elective office and the disqualifications that may apply to candidates necessarily create distinctions on the remedies available, on the effects of lack of eligibility and on the application of disqualification. The remedies available are essentially: the cancellation of a CoC, disqualification from candidacy or from holding office, and quo warranto, which are distinct remedies with varying applicability and effects. For ease of presentation and understanding, their availability, grounds and effects are topically discussed below. As to the grounds: In the denial of due course to or cancellation of a CoC, the ground is essentially lack of eligibility under the pertinent constitutional and statutory provisions on qualifications or eligibility for public office; 15 the governing provisions are Sections 78 and 69 of the OEC. 16 In a disqualification case, as mentioned above, the grounds are traits, conditions, characteristics or acts of disqualification, 17 individually applicable to a candidate, as provided under Sections 68 and 12 of the OEC; Section 40 of LGC 1991; and Section 8, Article X of the Constitution. As previously discussed, the grounds for disqualification are different from, and have nothing to do with, a candidate's CoC although they may result in disqualification from candidacy whose immediate effect upon finality before the elections is the same as a cancellation. If they are cited in a petition filed before the elections, they remain as disqualification grounds and carry effects that are distinctly peculiar to disqualification. cIETHa

In a quo warranto petition, the grounds to oust an elected official from his office are ineligibility and disloyalty to the Republic of the Philippines. This is provided under Section 253 of the OEC and governed by the Rules of Court as to procedures. While quo warranto and cancellation share the same ineligibility grounds, they differ as to the time these grounds are cited. A cancellation case is brought before the elections, while a quo warranto is filed after and may still be filed even if a CoC cancellation case was not filed before elections. TADCSE The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. 18 Note that the question of what would constitute acts of disqualification under Sections 68 and 12 of the OEC and Section 40 of LGC 1991 is best resolved by directly referring to the provisions involved. The approach is not as straight forward in a petition to deny due course to or cancel a CoC and also to a quo warranto petition, which similarly covers the ineligibility of a candidate/elected official. In Salcedo II v. COMELEC, 19 we ruled that [I]n order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying Section 78 of the Code. caIDSH xxx xxx xxx

Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. [emphases ours, citation omitted] Thus, in addition to the failure to satisfy or comply with the eligibility requirements, a material misrepresentation must be present in a cancellation of CoC situation. The law apparently does not allow material divergence from the listed requirements to qualify for candidacy and enforces its edict by requiring positive representation of compliance under oath. Significantly, where disqualification is involved, the mere existence of a ground appears sufficient and a material representation assumes no relevance. AcSEHT As to the period for filing: The period to file a petition to deny due course to or cancel a CoC depends on the provision of law invoked. If the petition is filed under Section 78 of the OEC, the petition must be filed within twenty-five (25) days from the filing of the CoC. 20 However, if the petition is brought under Section 69 of the same law, the petition must be filed within five (5) days from the last day of filing the CoC. 21 On the other hand, the period to file a disqualification case is at any time before the proclamation of a winning candidate, as provided in COMELEC Resolution No. 8696, 22 while a quo warranto petition must be filed within ten (10) days from proclamation. 23 As to the effects of a successful suit: A candidate whose CoC was denied due course or cancelled is not considered a candidate at all. Note that the law fixes the period within which a CoC may be filed. 24 After this period, generally no other person may join the election contest. A notable exception to this general rule is the rule on substitution. The application of the exception, however, presupposes a valid CoC. Unavoidably, a "candidate" whose CoC has been cancelled or denied due course cannot be substituted for lack of a CoC, to all

intents and purposes. 25 Similarly, a successful quo warranto suit results in the ouster of an already elected official from office; substitution, for obvious reasons, can no longer apply. TCaEIc On the other hand, a candidate who was simply disqualified is merely prohibited from continuing as a candidate or from assuming or continuing to assume the functions of the office; substitution can thus take place under the terms of Section 77 of the OEC. 26 As to the effects of a successful suit on the right of the second placer in the elections: In any of these three remedies, the doctrine of rejection of the second placer applies for the simple reason that To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. 27 With the disqualification of the winning candidate and the application of the doctrine of rejection of the second placer, the rules on succession under the law accordingly apply, as provided under Section 44 of LGC 1991. IcHDCS As an exceptional situation, however, the candidate with the second highest number of votes (second placer) may be validly proclaimed as the winner in the elections should the winning candidate be disqualified by final judgment before the elections, as clearly provided in Section 6 of R.A. No. 6646. 28 The same effect obtains when the electorate is fully aware, in fact and in law and within the realm of notoriety, of the disqualification, yet they still voted for the disqualified candidate. In this situation, the electorate that cast the plurality of votes in favor of the notoriously disqualified candidate is simply deemed to have waived their right to vote. 29 In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling the CoC and does not also provide any temporal distinction. Given, however, the formal initiatory role a CoC plays and the standing it gives to a political aspirant, the cancellation of the CoC based on a finding of its invalidity effectively results in a vote for an inexistent "candidate" or for one who is deemed not to be in the ballot. Although legally a misnomer, the "second placer" should be proclaimed the winner as the candidate with the highest number of votes for the contested position. This same consequence should result if the cancellation case becomes final after elections, as the cancellation signifies non-candidacy from the very start, i.e., from before the elections. aEcSIH Application of Above Rulings and Principles to the Case. While it is apparent from the undisputed facts that Cardino did indeed file a petition for denial and/or the cancellation of Jalosjos' CoC, it is obvious as well, based on the above discussions, that the ground he cited was not appropriate for the cancellation of Jalosjos' CoC but for his disqualification. Conviction for a crime involving moral turpitude is expressly a ground for disqualification under Section 12 of the OEC. As a ground, it applies only to Jalosjos; it is not a standard of eligibility that applies to all citizens who may be minded to run for a local political position; its non-possession is not a negative qualification that must be asserted in the CoC. Hence, there can be no doubt that what Cardino filed was effectively a petition for disqualification. This conclusion, of course, follows the rule that the nature of a petition is determined not by its title or by its prayers, but by the acts alleged as basis for the petition. cCaSHA Unfortunately for Cardino, the position of a second placer is not given preference, both in law and in jurisprudence with respect to the consequences of election disputes (except with well-defined exceptional circumstances discussed above), after election has taken place. 30 This approach and its consequential results are premised on the general principle that the electorate is supreme; it registers its choice during the election and, after voting, effectively rejects the candidate who comes in as the second placer. Under the rule that a disqualified candidate can still stand as a candidate unless his disqualification has been ruled upon with finality before the elections, 31 Jalosjos validly stood as a candidate in the elections of May 2010 and

won, although he was subsequently disqualified. With his disqualification while already sitting as Mayor, the winning vicemayor, not Cardino as a mere defeated second placer, should rightfully be seated as mayor under Section 44 of LGC 1991 on the law on succession. ESTCDA REYES, J., dissenting: With all due respect, I dissent from the majority opinion. Subject of this case are two (2) consolidated Petitions for Certiorari under Rule 65 of the Rules of Court. In G.R. No. 193237, petitioner Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul and set aside the Resolutions dated May 10, 2010 1 and August 11, 2010 2 issued by the Commission on Elections (COMELEC), which respectively ordered for the cancellation of his Certificate of Candidacy (COC) and denied his Motion for Reconsideration. In G.R. No. 193536, petitioner Agapito J. Cardino (Cardino) likewise assails the Resolution dated August 11, 2010, particularly the dispositive portion thereof which contained the directive to apply the provision of the Local Government Code (LGC) on succession in filling the vacated office of the mayor. CASaEc Jalosjos attributes grave abuse of discretion on the COMELEC en banc in (1) ruling that the grant of his probation was revoked, hence, he is disqualified to run as Mayor of Dapitan City, Zamboanga Del Norte, (2) cancelling his COC without a finding that he committed a deliberate misrepresentation as to his qualifications, considering that he merely relied in good faith upon a previous decision of the COMELEC wherein he was declared eligible to run for public office, and (3) issuing the Resolutions dated May 10, 2010 and August 11, 2010 in violation of the COMELEC Rules of Procedure. On February 22, 2011, this Court issued a Resolution 3 dismissing G.R. No. 193237, the dispositive portion of which reads: IcADSE WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission in (sic) Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED. 4 This Court ruled that Jalosjos could not have qualified to run for any public office as the grant of his probation was revoked by the RTC, as early as March 19, 1987 and that he could not rely on the Certification dated December 19, 2003 issued by former Parole and Probation Administrator Gregorio F. Bacolod to assert his eligibility. We ratiocinated: It must be remembered that by the time Bacolod submitted his Termination Report on January 23, 2004, there was no longer a probation to speak of, the same having been revoked more than 16 years earlier. Under the Probation Law of 1976, the order of revocation is not appealable. There is no showing that the RTC ever issued a subsequent order suspending the execution of petitioner's sentence and granting him probation again. In fact, the RTC issued an alias warrant of arrest on January 17, 2004 pursuant to the March 19, 1987 Order of revocation. Thus, the same order revoking the grant of probation was valid and subsisting at the time that petitioner supposedly completed his probation. Petitioner could not have validly complied with the conditions of his probation and there would have been no basis for any probation officer to accept petitioner's compliance with a non-existent probation order. THEcAS This, plus the cloud of doubt created by Bacolod's conviction for falsification of the certification relied upon by petitioner, the Court cannot now rely on the presumption of regularity in the issuance of said certification in order for us to conclude that petitioner has in fact completed his probation. Considering that petitioner likewise has not served the sentence of his conviction for the crime of robbery, he is disqualified to run for and hold his current position as Mayor of Dapitan City. 5 (Citation omitted) Undeterred, Jalosjos filed a Motion for Reconsideration 6 on March 22, 2011, raising the same issues stated in his petition. Subsequently, he filed a Manifestation dated May 30, 2012, informing this Court that he had already tendered his resignation from his position as Mayor of Dapitan City, Zamboanga del Norte and that the same was accepted by the Governor of the province, Atty. Rolando E. Yebes.

I will deliberate on the Motion for Reconsideration filed by Jalosjos in G.R. No. 193237 despite his resignation from office, in conjunction with the merits of G.R. No. 193536, with which it shares identical factual background. The allegations in the petition filed by Cardino in SPA No. 09-076 (DC) bespeak of its characterization as one for disqualification. It is well to remember that G.R. Nos. 193237 and 193536 stemmed from the Petition to Deny Due Course and to Cancel Certificate of Candidacy of Respondent filed by Cardino against Jalosjos, docketed as SPA No. 09-076 (DC). In the said petition, Cardino alleged: 3. Respondent [Jalosjos] is also of legal age, a resident of Dapitan City, a registered voter of Precinct No. 0187B, likewise filed his certificate of candidacy for the same position with the Office of the Comelec, Dapitan City, as that for which petitioner duly filed a certificate of candidacy, for the May 10, 2010 national and local elections on December 1, 2009, a certified true copy of said COC is hereto attached as Annex B; cSEAHa 4. Respondent's [Jalosjos] certificate of candidacy under oath contains material misrepresentation, when he declared under oath, that respondent [Jalosjos] is eligible for the office he seeks to be elected, [par. 16, COC for Mayor], considering that he is not eligible for the position for which he filed a certificate of candidacy because respondent was convicted by final judgment by the Regional Trial Court of Cebu City in Crim. Case No. CCC-XIV-140-Cebu for Robbery, an offense involving moral turpitude and he was sentenced to suffer the penalty of "one [1] year, eight [8] Months and Twenty [20] days of prision correctional, as minimum, to Four [4] years, Two [2] months and One [1] day of prision mayor as maximum,["] a certified true (sic) of which decision is hereto attached as Annex C. 5. Respondent [Jalosjos] failed to serve even a single day of his sentence. The position requires that a candidate be eligible and/or qualified to aspire for the position as required under Section 74 of the Omnibus Election Code[.] 7 On the basis of the foregoing allegations, Cardino prayed (1) that Jalosjos be declared ineligible for the position for which he filed a COC or that his COC be cancelled or denied due course, (2) that the Board of Election Inspectors of Dapitan City be directed to exclude all the votes cast in Jalosjos' name, (3) that the City Board of Canvassers be ordered to suspend or hold in abeyance Jalosjos' proclamation as the winning candidate, and (4) that Jalosjos be held liable for damages. 8 Subsequently, the COMELEC First Division issued its Resolution dated May 10, 2010, granting Cardino's petition and cancelling Jalosjos' COC. The COMELEC First Division ratiocinated that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40 (a) of Republic Act (R.A.) No. 7160." 9 Jalosjos promptly filed his Motion for Reconsideration but the COMELEC en banc denied the same in its Resolution dated August 11, 2010. Introductory to the ratio decidendi of its ruling, the COMELEC en banc stated: SEcTHA It is long settled that for [a] material representation to serve as ground for the cancellation of a candidate's certificate of candidacy, it must refer to his qualifications for elective office. Sections 39 and 40 of the Local Government Code or Republic Act No. 7160 prescribes the qualifications and disqualifications for elective municipal officials, . . . [.] 10 Thereafter, the COMELEC en banc correlated Sections 39 and 40 of the LGC and proceeded to conclude that since Jalosjos was convicted by final judgment for the crime of robbery, he is disqualified to run for any elective position or to hold office. HICSaD

I fully agree with the COMELEC's ruling that Jalosjos cannot run for any public office by reason of possession of a ground for disqualification. However, the COMELEC laid the predicate of said conclusion on a muddled discussion of the nature of the petition filed by Cardino and the effects of a judgment on the same on the status of candidacy.

Verily, a candidate may be prevented from participating in the electoral race either because he is ineligible or he suffers from any of the grounds for disqualification. Ineligibility refers to the lack of the qualifications prescribed in Sections 3 11 and 6 12 of Article VI, and Sections 2 13 and 3 14 of Article VII of the 1987 Constitution for senatorial, congressional, presidential and vice-presidential candidates, or under Section 39 15 of the LGC for local elective candidates. On the other hand, disqualification pertains to the commission of acts which the law perceives as unbecoming of a local servant, or to a circumstance, status or condition rendering said candidate unfit for public service. To question the eligibility of a candidate before the elections, the remedy is to file a petition to deny due course or cancel the COC under Section 78 of the Omnibus Election Code (OEC). If, on the other hand, any ground for disqualification exists, resort can be made to the filing of a petition for disqualification against the candidate thought to be unqualified for public service under Section 68 of the same Code. CTIDcA Pertinently, Section 78 of OEC states: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. To be clear, it is not the mere ineligibility or lack of qualification which warrants the filing of a petition to deny due course or cancel the COC but the material representation of his qualifications. Material misrepresentation as a ground to deny due course or cancel a COC refers to the falsity of a statement required to be entered therein, as enumerated in Section 74 of the OEC, 16 which reads: CaAIES Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. cTECIA Succinctly, the material misrepresentation contemplated by Section 78 of the OEC refers to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his COC are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. 17 Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. In other words, it must be with an intention to deceive the electorate as to one's qualification for public office. 18 On the other hand, a petition for disqualification may be filed if the candidate committed any of the acts considered as an election offense stated in Section 68 of the OEC which reads: Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having[:] (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall

not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. HcDaAI The same petition may be filed on the ground of possession of a status or condition which makes the candidate incapable of assuming the stern demands of public service or which places him in serious contradiction with his oath of office, as enumerated in Section 12 of the OEC and Section 40 of the LGC: Section 12 of the OEC Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. ECcDAH Section 40 of the LGC Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) (c) (d) (e) Those removed from office as a result of an administrative case; aDSHIC Those convicted by final judgment for violating the oath of allegiance to the Republic; Those with dual citizenship; Fugitives from justice in criminal or non[-]political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

The petition filed by Cardino in SPA No. 09-076 (DC) is a confusion of the remedies of petition to deny due course or cancel a COC and petition for disqualification. It must be remembered that while both remedies aim to prevent a candidate from participating in the elections, they are separate and distinct from one another. They are embraced by distinct provisions of law, which provide for their respective prescriptive periods and particular sets of grounds. Further, each remedy entails diverging effects on the status of candidacy of the concerned candidate thus subsuming one remedy within the coverage of the other is a dangerous feat. In Fermin v. Commission on Elections, 19 we had the occasion to ponder on the substantial differences between the two remedies, thus: cdasia Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the wining candidate.

At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused with a "Section 68" petition. They are different remedies, based on different grounds, and resulting in different eventualities. Private respondent's insistence, therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court. cDCEIA xxx xxx xxx

To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate. 20 (Citations omitted) caIDSH It is beyond dispute that Jalosjos cannot run for public office because of a prior conviction for a crime involving moral turpitude. While he was granted probation, his failure to comply with the terms and conditions of this privilege resulted to the revocation of the same on March 19, 1987. It bears reiterating that probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which may be granted to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense for which he was convicted. 21 As a mere discretionary grant, he must pay full obedience to the terms and conditions appertaining thereto or run the risk of the State revoking this privilege. In Soriano v. Court of Appeals, 22 this Court underscored the import of the terms and conditions of probation, to wit: ATHCac [T]hese conditions are not whims of the trial court but are requirements laid down by statute. They are among the conditions that the trial court is empowered to impose and the petitioner, as probationer, is required to follow. Only by satisfying these conditions may the purposes of probation be fulfilled. These include promoting the correction and rehabilitation of an offender by providing him with individualized treatment, and providing an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence. Failure to comply will result in the revocation of the order granting probation, pursuant to the Probation Law: Sec. 11. Effectivity of Probation Order. A probation order shall take effect upon its issuance, at which time the court shall inform the offender of the consequences thereof and explain that upon his failure to comply with any of the conditions prescribed in the said order or his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on probation. Probation is not an absolute right. It is a mere privilege whose grant rests upon the discretion of the trial court. Its grant is subject to certain terms and conditions that may be imposed by the trial court. Having the power to grant probation, it follows that the trial court also has the power to order its revocation in a proper case and under appropriate circumstances. 23 (Citations omitted) On the ground of Jalosjos' failure to comply with the terms and conditions of his probation, the RTC revoked said grant and ordered for the issuance of an alias warrant of arrest against him. Stripped of the privilege, he becomes an ordinary convict who is imposed with restraints in the exercise of his civil and political rights. Specifically, under Section 40 (a) of the LGC, he is disqualified to run for any local elective office. His disqualification cannot be defeated by bare allegation that he was earlier granted probation as this does not perfunctorily obliterate the fact of conviction and the corresponding accessory penalties. ECDaTI Further, in Baclayon v. Hon. Mutia, 24 we emphasized that an order placing defendant on "probation" is not a "sentence" but is rather a suspension of the imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated. 25 With the revocation of the grant of Jalosjos' probation, the temporary suspension of his sentence is lifted and all the ensuing disqualifications regain full effect. EcATDH

Remarkably, Cardino's challenge to Jalosjos' candidacy was not based squarely on the fact that there is a final judgment of conviction for robbery against him but on the ground that he made a material misrepresentation in his COC by declaring that he is eligible to run for public office when there is an existing circumstance which renders his candidacy unacceptable. Based on the designation of his petition in SPA No. 09-076 (DC), Cardino intends to file a petition to cancel the COC of Jalosjos, an action which is governed by Section 74, in relation with Section 78 of the OEC. The combined application of these sections requires that the facts stated in the COC by the would-be candidate be true, as any false representation of a material fact is a ground for the COC's cancellation or the withholding of due course. 26 Essentially, the details required to be stated in the COC are the personal circumstances of the candidate, i.e., name/stage name, age, civil status, citizenship and residency, which serve as basis of his eligibility to become a candidate taking into consideration the standards set under the law. The manifest intent of the law in imposing these qualifications is to confine the right to participate in the elections to local residents who have reached the age when they can seriously reckon the gravity of the responsibility they wish to take on and who, at the same time, are heavily acquainted with the actual state and urgent demands of the community. A painstaking examination of the petition filed by Cardino with the COMELEC would reveal that while it is designated as a petition to deny due course to or cancel a COC, the ground used to support the same actually partake of a circumstance which is more fittingly used in a petition for disqualification. Section 40 (a) of the LGC clearly enumerates a final judgment of conviction for a crime involving moral turpitude as a ground for disqualification. That Cardino employed the term "material misrepresentation" in his disputations cannot give his petition a semblance of what is properly a petition to cancel a COC. It bears reiterating that a petition to deny due course to or cancel a COC and a petition for disqualification are two separate and distinct actions which may be filed based on grounds pertaining to it. Thus, a petition for cancellation of COC cannot be predicated on a ground which is proper only in a petition for disqualification. The legislature would not have found it wise to provide for two different remedies to challenge the candidacy of an aspiring local servant and even provide for an enumeration of the grounds on which they may be based if they were intended to address the same predicament. The fact that the mentioned remedies were covered by separate provisions of law which relate to distinct set of grounds is a manifestation of the intention to treat them severally. TSIEAD Considering that the core of Cardino's petition in SPA No. 09-076 (DC) is the existence of a final judgment of conviction against Jalosjos, this material allegation is controlling of the characterization of the nature of the petition regardless of the caption used to introduce the same. Cardino's petition must therefore be treated and evaluated as a petition for disqualification and not for cancellation of COC. Well-settled rule is that the caption is not determinative of the nature of the petition. What characterizes the nature of the action or petition are the material allegations therein contained, irrespective of whether the petitioner is entitled to the reliefs prayed for therein. 27 In order to conform with existing laws and established jurisprudence, the Resolution dated February 22, 2011 of this Court in G.R. No. 193237 must accordingly be modified to reflect the foregoing clarification on the nature of Cardino's petition in SPA No. 09-076 (DC) and the ensuing consequences of the judgment on the same. STaCIA Turning to G.R. No. 193536, it is Cardino's contention that with the cancellation of Jalosjos' COC, he should succeed to the office of the mayor of Dapitan City, Zamboanga del Norte as he was the only remaining qualified candidate for said position. He posits that the cancellation of Jalosjos' COC retroacted to the date of its filing and rendered the latter a non-candidate as if he never filed one at all. Consequently, all the votes cast in his favor are considered stray and his proclamation as winning candidate did not produce any legal effect. Further, Cardino imputes grave abuse of discretion on the part of the COMELEC for stating in the dispositive portion of its Resolution dated August 11, 2010 that the provisions on succession in the LGC will apply in filling the post vacated by Jalosjos. To begin with, he argues that Section 44 of the LGC applies only when a permanent vacancy occurs in the office of the mayor. A permanent vacancy contemplates a situation whereby the disqualified mayor was duly elected to the position and lawfully assumed the office before he vacated the same for any legal cause. It does not embrace cancellation of COC since this eventuality has the effect of rendering the individual a non-candidate, who cannot be voted for and much less, be proclaimed winner in the elections. 28 Cardino's disputations fail to persuade. Cardino as a mere second placer

cannot be proclaimed mayor of Dapitan City, Zamboanga del Norte. Truly, a judgment on a petition to cancel a COC impinges on the very eligibility of an individual to qualify as a candidate and that its ultimate effect is to render the person a non-candidate as if he never filed a COC at all. The votes in favor of the candidate whose COC was cancelled are considered stray even if he happens to be the one who gathered the majority of the votes. In such case, the candidate receiving the second highest number of votes may be proclaimed the winner as he is technically considered the one who received the highest number of votes. Further, the judgment on a petition to cancel a COC does not distinguish whether the same attained finality before or after the elections since the consequences retroact to the date of filing of the COC. Regardless of the point in time when the cancellation of the COC was adjudged, the effect is nevertheless the same: the person is stripped of his status as an official candidate. HDICSa Cardino's disputations could have been tenable if the petition he filed in SPA No. 09-076 (DC) is a petition to cancel a COC. However, the pertinent allegations of his petition bespeak of the fact that the same is actually a petition for disqualification, the effect of which is covered by Section 6 of R.A. No. 6646, which repealed Section 72 of the OEC, to wit: EDaHAT Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Italics ours) Unlike a judgment on a petition to cancel a COC, the effects of a judgment on a petition for disqualification distinguish whether the same attained finality before or after the elections. If the judgment became final before the elections, the effect is identical to that of cancellation of a COC. If, however, the judgment attained finality after the elections, the individual is still considered an official candidate and may even be proclaimed winner should he muster the majority votes of the constituency. TDESCa In Cayat v. Commission on Elections, 29 we cogitated on the import of Section 6 of R.A. No. 6646, to wit: Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayat's favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng's proclamation is proper because he was the sole and only candidate, second to none. 30 (Emphasis supplied) The instant case falls under the second situation contemplated in Section 6 of R.A. No. 6646. The petition to disqualify Jalosjos was filed on December 6, 2009 and was resolved by the COMELEC on the very day of elections of May 10, 2010. Thus, on the election day, Jalosjos is still considered an official candidate notwithstanding the issuance of the COMELEC Resolution disqualifying him from holding public office. The pendency of a disqualification case against him or even the issuance of judgment of disqualification against him does not forthwith divest him of the right to participate in the elections as a candidate because the law requires no less than a final judgment. Thus, the votes cast in his name were rightfully counted in his favor and, there being no order suspending his proclamation, the City Board of Canvassers lawfully proclaimed him as the winning candidate. However, upon the finality of the judgment of disqualification against him on August 11, 2010, a permanent vacancy was created in the office of the mayor which must be filled in accordance with Section 44 of the LGC, which states: CSHEca

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. . . . . xxx xxx xxx

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely application. 31 Accordingly, when Jalosjos was adjudged to be disqualified, a permanent vacancy was created in the office of the mayor for failure of the elected mayor to qualify for the position. As provided by law, it is the duly-elected vice-mayor of the locality who should succeed to the vacated office. EASIHa Following the foregoing ratiocination, Cardino's contention that he should be proclaimed mayor of Dapitan City, Zamboanga del Norte lacks legal basis. That he was the one who received the second highest number of votes does not entitle him to any right or preference to succeeding the vacated post. Unmistakably, he did not have the mandate of the voting populace and this must not be defeated by substituting him, a losing candidate, in place of the disqualified candidate who received the majority votes. In Benito v. Commission on Elections, 32 we held: In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for that office, no one can be declared elected in his place. The fact that the candidate who obtained the highest number of votes dies, or is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 33 (Citations omitted) Further, in Kare v. Commission on Elections, 34 we further deliberated on the reason behind the doctrine of rejection of the second placer. We enunciated: cda Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally repudiated candidate as the voters' choice. Moreover, there are instances in which the votes received by the second placer may not be considered numerically insignificant. In such situations, if the equation changes because of the disqualification of an ineligible candidate, voters' preferences would nonetheless be so volatile and unpredictable that the results for qualified candidates would not be self-evident. The absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer. Where an "ineligible" candidate has garnered either a majority or a plurality of the votes, by no mathematical formulation can the runner-up in the election be construed to have obtained the majority or the plurality of votes cast. 35 (Citations omitted) In other words, a second placer cannot bank on a mere supposition that he could have won the elections had the winning candidate, who was eventually adjudged disqualified, been excluded in the roster of official candidates. It is erroneous to assume that the sovereign will could have opted for the candidate who received the second highest number of votes had they known of the disqualification of the winning candidate early on. For in such event, they could have cast their votes in favor of another candidate, not necessarily the one who received the second highest number of votes. DacTEH Finally, Cardino impugns the wisdom of the doctrine of rejection of second placer which was first enunciated in Topacio v. Paredes 36 on the ground that the doctrine effectively discourages qualified candidates for the same position for which the disqualified candidate was elected, in initiating a disqualification case because the prospect of being proclaimed to the position is nil. 37

The doctrine of rejection of the second placer was not conceived to suit the selfish interests of losing candidates or arm them with a weapon to retaliate against the prevailing candidates. The primordial consideration in adhering to this doctrine is not simply to protect the interest of the other qualified candidates joining the electoral race but more than that, to safeguard the will of the people in whom the sovereignty resides. The doctrine ensures that only the candidate who has the people's faith and confidence will be allowed to run the machinery of the government. It is a guarantee that the popular choice will not be compromised, even in the occasion that the prevailing candidate is eventually disqualified, by replacing him with the next-inrank official who was also elected to office by the authority of the electorate. It is of no moment that, as Cardino surmised, the doctrine of rejection of the second placer dissuades other qualified candidates in filing a disqualification case against the prevailing candidate for lack of expectation of gain. To justify the abandonment of the doctrine following Cardino's asseveration is to reduce its significance and put premium on the interest of the candidate rather than of the electorate for whose interest the election is being conducted. The doctrine was for the protection of the public and not for any private individual's advantage. Thus, the right to file a petition for disqualification is not exclusive to the opposing candidate but may also be pursued by any citizen of voting age, or duly registered political party, organization or coalition of political parties, 38 who are minded to do so. DCcAIS In ruling therefore that the provisions of the LGC shall apply in determining the rightful successor to the office of the mayor of Dapitan City, Zamboanga del Norte, the COMELEC did not commit any grave abuse of discretion. The application of the provisions of the LGC is the necessary consequence of Jalosjos' disqualification. In view of the foregoing disquisitions, I respectfully vote to: (1) DISMISS G.R. No. 193536 for lack of merit.

(2) MODIFY the Resolution dated February 22, 2011 of this Court in G.R. No. 193237. The Resolutions dated May 10, 2010 and August 11, 2010 of the COMELEC in SPA No. 09-076 (DC) should be AFFIRMED with MODIFICATION in that Dominador G. Jalosjos, Jr. should be declared disqualified to run as Mayor of Dapitan City, Zamboanga del Norte and the provisions of the Local Government Code on succession be applied in filling the vacated office. AacSTE BERSAMIN, J., concurring: The all-important concern here is the effect of the conviction for robbery by final judgment of and the probation allegedly granted to Dominador G. Jalosjos, petitioner in G.R. No. 193237, on his candidacy for the position of Mayor of Dapitan City; and the determination of the rightful person to assume the contested elective position upon the ineligibility of Jalosjos. I easily CONCUR with the insightful opinion delivered for the Majority by our esteemed colleague, Senior Associate Justice Carpio. As I see it, these consolidated cases furnish to the Court the appropriate occasion to look again into the candidacy of a clearly ineligible candidate garnering the majority of the votes cast in an election and being proclaimed as the winning candidate to the detriment of the valid candidacy of his rival who has all the qualifications and suffers none of the disqualifications. The ineligible candidate thereby mocks the sanctity of the ballot and reduces the electoral exercise into an expensive joke. TcCSIa G.R. No. 193237 is a special civil action for certiorari brought by Jalosjos to assail the Resolution dated August 11, 2010, 1 whereby the Commission on Elections (COMELEC) En Banc affirmed the Resolution dated May 10, 2010 2 issued by the COMELEC First Division in SPC No. 09-076 (DC). Both Resolutions declared Jalosjos ineligible to run as Mayor of Dapitan City, Zamboanga Del Norte in the May 10, 2010 national and local elections pursuant to Section 40 (a) of The Local Government Code (LGC), viz.: Section 40. Disqualifications. The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; xxx xxx xxx

Additionally, the COMELEC cancelled Jalosjos' certificate of candidacy (CoC) on the ground of material misrepresentation made therein. HTcDEa Jalosjos charges the COMELEC En Banc with committing grave abuse of discretion when it ruled that he was disqualified to run as Mayor of Dapitan City in view of the revocation of his probation; and when it cancelled his CoC without finding that he had deliberately misrepresented his qualifications to run as Mayor. G.R. No. 193536 is a special civil action for certiorari commenced by Agapito J. Cardino, the only other candidate against Jalosjos, in order to set aside the COMELEC En Banc's Resolution dated August 11, 2010, 3 to the extent that the Resolution directed the application of the rule of succession as provided in the LGC. Cardino challenges the COMELEC En Banc's application of the rule of succession under the LGC, contending that he should be considered elected as Mayor upon the cancellation of Jalosjos' CoC because he had been the only bona fide candidate for the position of Mayor of Dapitan City. 4 Cardino insists that the cancellation of Jalosjos' CoC retroacted to the date of its filing, thereby reducing him into a noncandidate. 5 The special civil actions were consolidated on March 29, 2011. 6 Antecedents The antecedents are narrated in the Resolution the Court has promulgated on February 22, 2011 in G.R. No. 193237, to wit: aIHSEc On December 6, 2009, private respondent Agapito J. Cardino filed a Petition to Deny Due Course to and Cancel Certificate of Candidacy of petitioner before respondent Comelec. Petitioner and private respondent were both candidates for Mayor of Dapitan City, Zamboanga del Norte during the 2010 Elections. Private respondent alleged that petitioner misrepresented in his CoC that he was eligible to run for Mayor, when, in fact, he was not, since he had been convicted by final judgment of robbery, a crime involving moral turpitude, and he has failed to serve a single day of his sentence. The final judgment for robbery stems from the following factual antecedents: On April 30, 1970, the then Circuit Criminal Court (now Regional Trial Court [RTC]) of Cebu City convicted petitioner of the crime of robbery and sentenced him to suffer the penalty of one (1) year, eight (8) months, and twenty (20) days of prision correccional, as minimum, to four (4) years, two (2) months, and one (1) day of prision mayor, as maximum. Petitioner appealed his conviction to the Court of Appeals (CA). He later abandoned the appeal, which was thus dismissed on August 9, 1973. Sometime in June 1985, petitioner filed a petition for probation. cCAIES On July 9, 1985, Gregorio F. Bacolod (Bacolod), who was then the Supervising Probation Officer of the Parole and Probation Office, recommended to the RTC the grant of petitioner's application for probation. On the same day, the RTC issued an Order granting the probation for a period of one year subject to the terms and conditions stated therein. However, on August 8, 1986, Bacolod filed a Motion for Revocation of the probation on the ground that petitioner failed to report to him, in violation of the condition of the probation. Accordingly, the RTC issued an Order dated March 19, 1987, revoking the probation and ordering the issuance of a warrant of arrest. A warrant of arrest was issued but remained unserved. More than 16 years later, or on December 19, 2003, petitioner secured a Certification from the Central Office of the Parole and Probation Administration (PPA), which was signed by Bacolod, now Administrator of the PPA, attesting that petitioner had fulfilled the terms and conditions of his probation. At this time, the prosecution also decided to stir the case. It filed a motion for the issuance of an alias warrant of arrest. The RTC granted the motion on January 16, 2004 and issued an Order for the Issuance of an Alias Warrant of Arrest against petitioner. aAHDIc On January 23, 2004, Bacolod submitted to the RTC a Termination Report stating that petitioner had fulfilled the terms and conditions of his probation and, hence, his case should be deemed terminated. On the same day, petitioner filed an Urgent Motion to Reconsider its January 16, 2004 Order and to Lift the Warrant of Arrest.

On January 29, 2004, James A. Adasa (Adasa), petitioner's opponent for the mayoralty position during the 2004 Elections, filed a Petition for Disqualification against petitioner, based on Section 40(a) of Republic Act (R.A.) No. 7160, the Local Government Code of 1991, on the ground that the latter has been convicted of robbery and failed to serve his sentence. Adasa later amended his petition to include Section 40(e) of the same law, claiming that petitioner is also a "fugitive from justice." Meanwhile, acting on petitioner's urgent motion, the RTC issued an Order dated February 5, 2004, declaring that petitioner had duly complied with the order of probation, setting aside its January 16, 2004 Order, and recalling the warrant of arrest. Thus, in resolving Adasa's petition, the Comelec Investigating Officer cited the February 5, 2004 RTC Order and recommended that petitioner be declared qualified to run for Mayor. In the Resolution dated August 2, 2004, the Comelec-Second Division adopted the recommendation of the Investigating Officer and denied the petition for disqualification. It held that petitioner has amply proven that he had complied with the requirements of his probation as shown by the Certification from the PPA dated December 19, 2003, which was the basis of the February 5, 2004 RTC Order. IEDaAc Adasa filed a motion for reconsideration, which the Comelec En Banc denied on December 13, 2006. Adasa then filed a petition for certiorari with the Supreme Court (G.R. No. 176285). In a Resolution dated June 3, 2008, the Court dismissed the petition for being moot and academic, the three-year term of office having expired. In a related incident, Bacolod, who issued the Certification dated December 19, 2003 to petitioner, was charged with violation of Section 3(e) of R.A. No. 3019 and falsification of public document under the Revised Penal Code for issuing said Certification. On September 29, 2008, the Sandiganbayan rendered a decision finding Bacolod guilty as charged. It held that the Certification he issued was definitely false because petitioner did not actually fulfill the conditions of his probation as shown in the RTC Order dated March 19, 1987, which states that the probation was being revoked. Hence, at the time the Certification was issued, there was no longer a probation order to be fulfilled by petitioner. On May 10, 2010, the elections were held, and petitioner won as Mayor of Dapitan City. On the same day, the Comelec-First Division issued a resolution granting the Petition to Deny Due Course and cancelling petitioner's CoC. The Comelec noted that the dismissal of Adasa's petition for disqualification hinged on the presumption of regularity in the issuance of the PPA Certification dated December 19, 2003, declaring that petitioner had complied with the requirements of his probation. It opined that, with the decision of the Sandiganbayan convicting Bacolod, it would now appear that the December 19, 2003 Certification was fraudulently issued and that petitioner had not actually served his sentence; thus, the ruling on Adasa's petition is "left with no leg to stand on." aDIHCT Petitioner moved for reconsideration. The Comelec En Banc denied the motion in a resolution dated August 11, 2010. The Comelec ordered him to cease and desist from occupying and discharging the functions of the Office of the Mayor of Dapitan City. 7 Through the Resolution promulgated on February 22, 2011, 8 the Court dismissed G.R. No. 193237, disposing: WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED. On March 22, 2011, Jalosjos moved for the reconsideration of the February 22, 2011 Resolution, 9 raising the same issues he had averred in his petition. aDHCcE On June 1, 2012, however, Jalosjos filed a manifestation dated May 30, 2012, informing the Court that he had meanwhile tendered his resignation as Mayor of Dapitan City effective April 30, 2012; that his resignation had been accepted by Governor Rolando E. Yebes of Zamboanga del Norte; and that Vice Mayor Patri Bajamunde-Chan had taken her oath of office as the new Mayor of Dapitan City. Disposition I vote to affirm the disqualification of Jalosjos as a candidate for Mayor of Dapitan City; and to sustain the Resolution of the COMELEC En Banc cancelling his CoC.

I agree with the Majority that the rule of succession provided by the LGC does not apply to determine who should now sit as Mayor of Dapitan City. Thus, I hold that Cardino, the only other candidate with a valid CoC for Mayor of Dapitan City in the May 10, 2010 elections, had the legal right to assume the position of City Mayor. IADCES Let me specify the reasons for this humble concurrence. 1. Cardino's petition in SPA Case No. 09-076 (DC) was a petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code The COMELEC En Banc correctly held that the petition of Cardino in SPA Case No. 09-076 (DC) was in the nature of a petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code. In Salcedo II v. Commission on Elections, 10 the Court pointed out that there are two remedies available to challenge the qualifications of a candidate, namely: DcAEIS (1) Before the election, pursuant to Section 78 of the Omnibus Election Code, to wit:

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 misrepresentation 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 due notice and hearing, not later than fifteen days before the election. and (2) After the election, pursuant to Section 253 of the Omnibus Election Code, viz.:

Section 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. TaCIDS The Court has explained that the only difference between the two remedies is that, under Section 78, the qualifications for elective office are misrepresented in the CoC, and the proceedings must be initiated prior to the elections, while under Section 253, a petition for quo warranto may be brought within ten days after the proclamation of the election results on either of two grounds, to wit: (a) ineligibility; or (b) disloyalty to the Republic of the Philippines. A candidate is ineligible under Section 253 if he is disqualified to be elected to office; and he is disqualified if he lacks any of the qualifications for elective office. 11 In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on Elections: 12 Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. 13

Clearly, the only instance where a petition assailing the qualifications of a candidate for elective office can be filed prior to the elections is when the petition is filed under Section 78. 14 A Section 78 petition is not to be confused with a Section 12 or Section 68 petition. The two are different remedies, are based on different grounds, and can result in different eventualities. 15 A person who is disqualified under either Section 12 16 or Section 68 17 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied due course under Section 78 is not considered a candidate at all because his status is that of a person who has not filed a CoC. 18 To ascertain whether Cardino's petition against Jalosjos was a petition under Section 78, on one hand, or under Section 12 or Section 68, on the other hand, it is necessary to look at its averments and relief prayed for, viz.: HcSETI 1. Petitioner is of legal age, Filipino citizen, married, able to read and write, a registered voter of Precinct No. 0019A, and is and has been a resident of Dapitan City, continuously since birth up to the present; 2. Petitioner duly filed his certificate of candidacy for the position of City Mayor of Dapitan for the election on May 10, 2010, with the Office of the Commission on Election, Dapitan City, on December 1, 2009, which accepted and acknowledged the same, a copy of which is hereto attached as Annex A; 3. Respondent is also of legal age, a resident of Dapitan City, a registered voter of Precinct No. 0187B, likewise filed his certificate of candidacy for the same position with the Office of the Comelec, Dapitan City, as that for which petitioner duly filed a certificate of candidacy, for the May 10, 2010 national and local elections on December 1, 2009, a certified true copy of said COC is hereto attached as Annex B; DHSCTI 4. Respondent's certificate of candidacy under oath contains material misrepresentation, when he declared under oath, that respondent is eligible for the office he seeks to be elected, [par. 16, COC for Mayor], considering that he is not eligible for the position for which he filed a certificate of candidacy because respondent was convicted by final judgment by the Regional Trial Court of Cebu City in Crim. Case No. CCC-XIV-140-Cebu for Robbery, an offense involving moral turpitude and he was sentenced to suffer the penalty of "one [1] year, eight [8] Months and Twenty [20] Days of prision correctional, as minimum, to Four [4] years, Two [2] months and One [1] day of prision mayor as maximum, a certified true [copy] of which decision is hereto attached as Annex C; 5. Respondent failed to serve even a single day of his sentence. The position requires that a candidate be eligible and/or qualified to aspire for the position as required under Section 74 of the Omnibus Election Code; 6. This petition is being filed within the reglementary period of within five days following the last day for the filing of certificate of candidacy. AHDaET WHEREFORE, it is most respectfully prayed of this Honorable Commission: 1. Declaring respondent, Dominador G. Jalosjos, Jr. ineligible for the position for which he filed certificate of candidacy and to deny due course to such filing and to cancel the certificate of candidacy [Annex B]; . . . 19 (Emphasis supplied) The foregoing make it evident that Cardino's petition contained the essential allegations pertaining to a Section 78 petition, namely: (a) Jalosjos made a false representation in his CoC; (b) the false representation referred to a material matter that would affect the substantive right of Jalosjos to run in the elections for which he filed his CoC; and (c) Jalosjos made the false representation with the intention to deceive the electorate as to his qualification for public office or to deliberately attempt to mislead, misinform, or hide a fact that would otherwise render him ineligible. 20 Worthy of noting is that the specific reliefs prayed for by the petition, supra, were not only for the declaration that Jalosjos was "ineligible for the position for which he filed certificate of candidacy" but also for denying "due course to such filing and to cancel the certificate of candidacy." Thereby, Cardino's petition attacked both Jalosjos' qualifications to run as Mayor of Dapitan City and the validity of Jalosjos' CoC based on the latter's assertion of his eligibility despite knowledge of his conviction and despite his failure to serve his sentence. The petition was properly considered to be in all respects as a petition to deny due course to or cancel Jalosjos' CoC under Section 78 of the Omnibus Election Code. 2.

Jalosjos materially misrepresented his eligibility as a candidate for Mayor of Dapitan City; hence, the COMELEC properly cancelled his CoC The denial of due course to or the cancellation of the CoC under Section 78 of the Omnibus Election Code involves a finding not only that a person lacked the qualifications but also that he made a material representation that was false. 21 In Mitra v. Commission on Elections, 22 the Court added that there must also be a deliberate attempt to mislead, thus: DIEACH The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be made with the intention to deceive the electorate as to the would-be candidate's qualifications for public office. Thus, the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws. 23 A petition for the denial of due course to or cancellation of a CoC that is short of the requirements should not be granted. Based on the antecedents narrated herein, I consider to be warranted the COMELEC En Banc's conclusion to the effect that, firstly, his conviction for robbery absolutely disqualified Jalosjos from running as Mayor of Dapitan City, and, secondly, Jalosjos deliberately misrepresented his eligibility when he filed his CoC. First of all, the records show that the erstwhile Circuit Criminal Court in Cebu City had convicted Jalosjos of the felony of robbery on April 30, 1970 and had sentenced him to suffer the indeterminate penalty of one year, eight months and 20 days of prision correccional, as minimum, to four years, two months and one day of prision mayor, as maximum. Although he had appealed, his appeal was turned down on August 9, 1973. In June 1985, or more than 15 years after his conviction by the Circuit Criminal Court, he filed a petition for probation. AIcECS Pursuant to Section 40 (a) of the LGC, 24 his having been sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment rendered Jalosjos ineligible to run for Mayor of Dapitan City. There is no quibbling about the felony of robbery being an offense involving moral turpitude. As the Court has already settled, "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude." 25 Anent moral turpitude for purposes of the election laws, the Court has stated in Teves v. Commission on Elections: 26 Moral turpitude has been defined as everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general. xxx xxx xxx

Thus, in Dela Torre v. Commission on Elections, the Court clarified that: Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine." In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in "Zari v. Flores," to wit: cEASTa "It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited." 27 It is relevant to mention at this juncture that the ineligibility of a candidate based on his conviction by final judgment for a crime involving moral turpitude is also dealt with in Section 12 of the Omnibus Election Code, which specifically states:

Section 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis supplied.) Pursuant to Section 12, Jalosjos remained ineligible to run for a public office considering that he had not been granted plenary pardon for his criminal offense. The expiration of the five-year period defined in Section 12 counted from his service of sentence did not affect the ineligibility, it being indubitable that he had not even served his sentence at all. IEAacT It is relevant to clarify, moreover, that the five-year period defined in Section 12 is deemed superseded by the LGC, whose Section 40 (a) expressly sets two years after serving sentence as the period of disqualification in relation to local elective positions. To reconcile the incompatibility between Section 12 and Section 40 (a), the Court has discoursed in Magno v. Commission on Elections: 28 It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. In David vs. COMELEC, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. The reduction of the disqualification period from five to two years is the manifest intent. (Bold emphases supplied) 29 Regardless of whether the period applicable was five years or two years, Jalosjos was still ineligible to run for any public office in any election by virtue of his having been sentenced to suffer prision mayor. That sentence perpetually disqualified him from running for any elective office considering that he had not been meanwhile granted any plenary pardon by the Chief Executive. HAEIac Indeed, in accordance with the express provisions of the Revised Penal Code, the penalty of prision mayor imposed on Jalosjos for the robbery conviction carried the accessory penalties of temporary absolute disqualification and of perpetual special disqualification from the right of suffrage. The effects of the accessory penalty of temporary absolute disqualification included the deprivation during the term of the sentence of the right to vote in any election for any popular elective office or to be elected to such office. 30 The effects of the accessory penalty of perpetual special disqualification from the right of suffrage was to deprive the convict perpetually of the right to vote in any popular election for any public office or to be elected to such office; he was further prohibited from holding any public office perpetually. 31 These accessory penalties would remain even though the convict would be pardoned as to the principal penalty, unless the pardon expressly remitted the accessory penalties. 32

Secondly, Jalosjos had no legal and factual bases to insist that he became eligible to run as Mayor of Dapitan City because he had been declared under the RTC order dated February 5, 2004 to have duly complied with the order of his probation. His insistence has no merit whatsoever. HIAEcT Probation, by its legal definition, is only "a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer." 33 The grant of probation cannot by itself remove a person's disqualification to be a candidate or to hold any office due to its not being included among the grounds for the removal of the disqualification under Section 12 of the Omnibus Election Code, supra. Although the original text of Section 4 of Presidential Decree No. 968 (Probation Law of 1976) stated that: . . . [a]n application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. the amendment of Presidential Decree No. 968 by Presidential Decree No. 1990 34 has made more explicit that probation only suspends the execution of the sentence under certain conditions set by the trial court, viz.: Section 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. EcSCAD An order granting or denying probation shall not be appealable. For sure, probation or its grant has not been intended to relieve the convict of all the consequences of the sentence imposed on his crime involving moral turpitude. Upon his final discharge as a probationer, the convict is restored only to "all civil rights lost or suspended as a result of his conviction." This consequence is according to the second paragraph of Section 16 of the Probation Law of 1976, which states: "The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted." There is no question that civil rights are distinct and different from political rights, like the right of suffrage or the right to run for a public office. Even assuming that Jalosjos had been validly granted probation despite his having appealed his conviction (considering that the amendment stating that an appeal barred the application for probation took effect only on October 5, 1985 but his application for probation was earlier made in June 1985), his disqualification pursuant to Section 40 (a) of the LGC would have still attached simply because the legal effect of a validly-granted probation was only to suspend the execution of sentence, 35 not to obliterate the consequences of the sentence on his political rights. In reality, Jalosjos could not even legitimately and sincerely rely on his supposed final discharge from probation. He was fully aware that he did not at all satisfy the conditions of his probation, 36 contrary to what Section 10 and Section 16 of the Probation Law definitely required, to wit: Section 10. Conditions of Probation. Every probation order issued by the court shall contain conditions requiring that the probationer shall: EHACcT (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; (b) report to the probation officer at least once a month at such time and place as specified by said officer. . . .

Section 16. Termination of Probation. After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated. The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. The probationer and the probation officer shall each be furnished with a copy of such order. The records indicate that the RTC revoked the order of probation on March 19, 1987 upon a motion filed by one Gregorio Bacolod, the Supervising Probation Officer who had recommended the approval of the application for probation. The revocation was premised on Jalosjos' failure to report to Bacolod in violation of the conditions of his probation. Following the revocation, the RTC issued a warrant for the arrest of Jalosjos, but the warrant has remained unserved until this date. With the revocation of his probation and in the absence of an order of final discharge, Jalosjos was still legally bound to serve the sentence for robbery. cTESIa I point out for emphasis that the February 5, 2004 order of the RTC declaring that Jalosjos had duly complied with the order of probation deserved no consideration for the following reasons, namely: (a) the certification attesting that Jalosjos had fulfilled the terms and conditions of his probation was secured by and issued to him only on December 19, 2003, more than 16 years from the issuance of the RTC order revoking his probation; (b) the certification was issued by Bacolod, the same Supervising Probation Officer who had moved for the revocation of the probation; and (c) the Sandiganbayan later on found the certification to have been falsified by Bacolod considering that at the time of its issuance there was no longer a probation order to be fulfilled by Jalosjos. 37 And, thirdly, Jalosjos argues that he acted in good faith in representing in his CoC that he was qualified to run as Mayor of Dapitan City, 38 having relied on the previous ruling of the COMELEC adjudging him eligible to run and to be elected as Mayor of Dapitan City; 39 and that it cannot then be said that he deliberately attempted to mislead or to deceive the electorate as to his eligibility. The argument is devoid of merit. The COMELEC Resolution dated August 2, 2004, on which Jalosjos has anchored his claim of good faith, was rendered on the basis of the RTC order dated February 5, 2004 that had declared Jalosjos to have sufficiently complied with the conditions of his probation based on the certification dated December 19, 2003. As earlier emphasized, however, the issuance of the certification dated December 19, 2003 that became the basis for the RTC order dated February 5, 2004 proved to be highly irregular, and culminated in the Sandiganbayan convicting Bacolod of falsification in relation to his issuance of the certification. Clearly, Jalosjos' reliance on the COMELEC Resolution dated August 2, 2004 was definitely not in good faith, but was contrary to every juridical conception of good faith, which, according to Heirs of the Late Joaquin Limense v. Vda. De Ramos, 40 is . . . an intangible and abstract quality with no technical meaning or statutory definition; and it encompasses, among other things, an honest belief, the absence of malice and the absence of a design to defraud or to seek an unconscionable advantage. An individual's personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one's right, ignorance of a superior claim, and absence of intention to overreach another. 41 In contrast, Jalosjos had knowledge of the circumstances surrounding the finality of his conviction and the revocation of his probation. He never denied and cannot now dispute his failure to comply with the conditions of his probation, for he fully knew that he had never duly reported to Bacolod during the period of his probation. The following findings rendered by the Sandiganbayan in its Decision dated September 29, 2008 convicting Bacolod of falsification of a public document and violation of Republic Act No. 3019 sustained the fact that Jalosjos had been unable to fulfil the terms of his probation: . . . [T]he subject Certification of the accused [Bacolod] attesting that "as per records" Mr. Jalosjos "has fulfilled the terms and conditions of his probation and his case is deemed terminated," is nevertheless false because the PPA Central Office had no

records of an order of final discharge issued by the court to support the facts narrated in the subject certification that Mr. Jalosjos has fulfilled the terms and conditions of his probation and that his case is deemed terminated. cETDIA Besides, the accused failed to submit any oral or documentary evidence to establish that at the time he issued the subject Certification on December 19, 2003, Mr. Jalosjos has already fulfilled the terms and conditions of his probation. His belated submission on January 23, 2004 of a termination report dated January 12, 2004 does not cure or remedy the falsity of the facts narrated in the subject certification. Rather, it strengthens the theory of the prosecution that at the time the accused issued the subject Certification on December 19, 2003, probationer Jalosjos had not yet fulfilled the terms and conditions of his probation because, if it were so, his submission of the said termination report would no longer be necessary. Since the PPA Central Office had no record of a court order of final discharge of the probationer from probation, then he should have been truthful and certified to that effect. 42 Nor could Jalosjos even feign a lack of awareness of the issuance of the warrant for his arrest following the revocation of his probation by the RTC on March 19, 1987. This is because he filed an Urgent Motion for Reconsideration and to Lift Warrant of Arrest in the RTC upon obtaining the falsified certification issued by Bacolod. 43 The absurdity of his claim of good faith was well-known even to him because of his possession at the time he filed his CoC of all the information material to his conviction and invalid probation. Being presumed to know the law, he knew that his conviction for robbery and his failure to serve his sentence rendered him ineligible to run as Mayor of Dapitan City. As a result, his affirmation of his eligibility in his CoC was truly nothing but an act tainted with bad faith. aEDCSI 3. Jalosjos did not file a valid CoC for the May 10, 2010 elections; not being an official candidate, votes cast in his favor are considered stray The filing of a CoC within the period provided by law is a mandatory requirement for any person to be considered a candidate in a national or local election. This is clear from Section 73 of the Omnibus Election Code, to wit: SEIcAD Section 73. Certificate of candidacy. No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. In turn, Section 74 of the Omnibus Election Code specifies the contents of a CoC, viz.: Section 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. . . . (Emphasis supplied) ACETSa A CoC, according to Sinaca v. Mula, 44 "is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated." Accordingly, a person's declaration of his intention to run for public office and his declaration that he possesses the eligibility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the declarant an official candidate.

In Bautista v. Commission on Elections, 45 the Court stated that a cancelled CoC does not give rise to a valid candidacy. A person without a valid CoC cannot be considered a candidate in much the same way as any person who has not filed any CoC cannot at all be a candidate. 46 Hence, the cancellation of Jalosjos' CoC rendered him a non-candidate in the May 10, 2010 elections. IHEaAc But, even without the cancellation of his CoC, Jalosjos undeniably possessed a disqualification to run as Mayor of Dapitan City. The fact of his ineligibility was by itself adequate to invalidate his CoC without the necessity of its express cancellation or denial of due course by the COMELEC. Under no circumstance could he have filed a valid CoC. The accessory penalties that inhered to his penalty of prision mayor perpetually disqualified him from the right of suffrage as well as the right to be voted for in any election for public office. The disqualification was by operation of a mandatory penal law. For him to be allowed to ignore the perpetual disqualification would be to sanction his lawlessness, and would permit him to make a mockery of the electoral process that has been so vital to our democracy. He was not entitled to be voted for, leaving all the votes cast for him stray and legally non-existent. In contrast, Cardino, the only remaining candidate, was duly elected and should legally assume the position of Mayor of Dapitan City. According to the Court in Santos v. Commission on Elections: 47 Anent petitioner's contention that his disqualification does not ipso facto warrant the proclamation of private respondent, We find the same untenable and without legal basis since votes cast for a disqualified candidate fall within the category of invalid non-existent votes because a disqualified candidate is no candidate at all in the eyes of the law. Section 155 of the Election Code provides "Any vote cast in favor of a candidate who has been disqualified shall be considered as stray and shall not be counted but it shall not invalidate the ballot." (Italics supplied) cDCaHA Considering that all the votes garnered by the petitioner are stray votes and therefore should not be counted, We find no error, much less any grave abuse of discretion on the part of the Comelec, in proclaiming private respondent Ricardo J. Rufino the duly elected Mayor of Taytay, Rizal, he having obtained the highest number of votes as appearing and certified in the canvass of votes submitted by the Municipal Board of Canvassers petitioner having been legally disqualified. Such a proclamation finds legal support from the case of Ticzon vs. Comelec 103 SCRA 671, wherein disqualified candidate Ticzon likewise questioned the legality of the Resolution of the Comelec which not only disqualified him but further proclaimed Dizon, the only candidate left for the disputed position, and this Court upheld the proclamation of Cesar Dizon as Mayor of San Pablo City. 48 Although the doctrine of the sovereign will has prevailed several times in the past to prevent the nullification of an election victory of a disqualified candidate, or of one whose CoC was cancelled, the Court should not now be thwarted from enforcing the law in its letter and spirit by any desire to respect the will of the people expressed in an election. The objective of prescribing disqualifications in the election laws as well as in the penal laws is obviously to prevent the convicted criminals and the undeserving from running and being voted for. Unless the Court leads the way to see to the implementation of the unquestionable national policy behind the prescription of disqualifications, there would inevitably come the time when many communities of the country would be electing convicts and misfits. When that time should come, the public trust would be trivialized and the public office degraded. This is now the appropriate occasion, therefore, to apply the law in all its majesty in order to enforce its clear letter and underlying spirit. Thereby, we will prevent the electoral exercise from being subjected to mockery and from being rendered a travesty. EcIaTA In closing, I consider to be appropriate and fitting the Court's following pronouncement in Velasco v. Commission on Elections: 49 . . . [W]e have ruled in the past that a candidate's victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidate's certificate of candidacy. We said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC. The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for

the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate's eligibility and fitness for office. SDaHEc The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements. In the process, the rule of law suffers; the clear and unequivocal legal command, framed by a Congress representing the national will, is rendered inutile because the people of a given locality has decided to vote a candidate into office despite his or her lack of the qualifications Congress has determined to be necessary. TIEHDC In the present case, Velasco is not only going around the law by his claim that he is registered voter when he is not, as has been determined by a court in a final judgment. Equally important is that he has made a material misrepresentation under oath in his COC regarding his qualification. For these violations, he must pay the ultimate price the nullification of his election victory. He may also have to account in a criminal court for making a false statement under oath, but this is a matter for the proper authorities to decide upon. We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will. The balance must always tilt in favor of upholding and enforcing the law. To rule otherwise is to slowly gnaw at the rule of law. 50 ACCORDINGLY, I JOIN the Majority in granting the petition in G.R. No. 193536; in dismissing the petition in G.R. No. 193237 for lack of merit; and in affirming the COMELEC En Banc Resolution dated February 22, 2011 subject to the modification that Agapito J. Cardino be proclaimed as the duly elected Mayor of Dapitan City, Zamboanga during the May 10, 2010 national and local elections, and thus entitled to assume the office of Mayor of Dapitan City. HIETAc [G.R. No. 158907. February 12, 2007.] EDUARDO B. OLAGUER, petitioner, vs. EMILIO PURUGGANAN, JR. AND RAUL LOCSIN, respondents. DECISION CHICO-NAZARIO, J p: This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision, 1 dated 30 June 2003, promulgated by the Court of Appeals, affirming the Decision of the Regional Trial Court, dated 26 July 1995, dismissing the petitioner's suit. EAISDH The parties presented conflicting accounts of the facts. EDUARDO B. OLAGUER'S VERSION Petitioner Eduardo B. Olaguer alleges that he was the owner of 60,000 shares of stock of Businessday Corporation (Businessday) with a total par value of P600,000.00, with Certificates of Stock No. 005, No. 028, No. 034, No. 070, and No. 100. 2 At the time he was employed with the corporation as Executive Vice-President of Businessday, and President of Businessday Information Systems and Services and of Businessday Marketing Corporation, petitioner, together with respondent Raul

Locsin (Locsin) and Enrique Joaquin (Joaquin), was active in the political opposition against the Marcos dictatorship. 3 Anticipating the possibility that petitioner would be arrested and detained by the Marcos military, Locsin, Joaquin, and Hector Hofilea had an unwritten agreement that, in the event that petitioner was arrested, they would support the petitioner's family by the continued payment of his salary. 4 Petitioner also executed a Special Power of Attorney (SPA), on 26 May 1979, appointing as his attorneys-in-fact Locsin, Joaquin and Hofilea for the purpose of selling or transferring petitioner's shares of stock with Businessday. During the trial, petitioner testified that he agreed to execute the SPA in order to cancel his shares of stock, even before they are sold, for the purpose of concealing that he was a stockholder of Businessday, in the event of a military crackdown against the opposition. 5 The parties acknowledged the SPA before respondent Emilio Purugganan, Jr., who was then the Corporate Secretary of Businessday, and at the same time, a notary public for Quezon City. 6 On 24 December 1979, petitioner was arrested by the Marcos military by virtue of an Arrest, Search and Seizure Order and detained for allegedly committing arson. During the petitioner's detention, respondent Locsin ordered fellow respondent Purugganan to cancel the petitioner's shares in the books of the corporation and to transfer them to respondent Locsin's name. 7 As part of his scheme to defraud the petitioner, respondent Locsin sent Rebecca Fernando, an employee of Businessday, to Camp Crame where the petitioner was detained, to pretend to borrow Certificate of Stock No. 100 for the purpose of using it as additional collateral for Businessday's then outstanding loan with the National Investment and Development Corporation. When Fernando returned the borrowed stock certificate, the word "cancelled" was already written therein. When the petitioner became upset, Fernando explained that this was merely a mistake committed by respondent Locsin's secretary. 8 During the trial, petitioner also agreed to stipulate that from 1980 to 1982, Businessday made regular deposits, each amounting to P10,000.00, to the Metropolitan Bank and Trust Company accounts of Manuel and Genaro Pantig, petitioner's inlaws. The deposits were made on every 15th and 30th of the month. 9 Petitioner alleged that these funds consisted of his monthly salary, which Businessday agreed to continue paying after his arrest for the financial support of his family. 10 After receiving a total of P600,000.00, the payments stopped. Thereafter, respondent Locsin and Fernando went to ask petitioner to endorse and deliver the rest of his stock certificates to respondent Locsin, but petitioner refused. 11 On 16 January 1986, petitioner was finally released from detention. He then discovered that he was no longer registered as stockholder of Businessday in its corporate books. He also learned that Purugganan, as the Corporate Secretary of Businessday, had already recorded the transfer of shares in favor of respondent Locsin, while petitioner was detained. When petitioner demanded that respondents restore to him full ownership of his shares of stock, they refused to do so. On 29 July 1986, petitioner filed a Complaint before the trial court against respondents Purugganan and Locsin to declare as illegal the sale of the shares of stock, to restore to the petitioner full ownership of the shares, and payment of damages. 12 RESPONDENT RAUL LOCSIN'S VERSION In his version of the facts, respondent Locsin contended that petitioner approached him and requested him to sell, and, if necessary, buy petitioner's shares of stock in Businessday, to assure support for petitioner's family in the event that something should happen to him, particularly if he was jailed, exiled or forced to go underground. 13 At the time petitioner was employed with Businessday, respondent Locsin was unaware that petitioner was part of a group, Light-a-Fire Movement, which actively sought the overthrow of the Marcos government through an armed struggle. 14 He denied that he made any arrangements to continue paying the petitioner's salary in the event of the latter's imprisonment. 15 When petitioner was detained, respondent Locsin tried to sell petitioner's shares, but nobody wanted to buy them. Petitioner's reputation as an oppositionist resulted in the poor financial condition of Businessday and discouraged any buyers for the shares of stock. 16 In view of petitioner's previous instructions, respondent Locsin decided to buy the shares himself. Although the capital deficiency suffered by Businessday caused the book value of the shares to plummet below par value, respondent Locsin, nevertheless, bought the shares at par value. 17 However, he had to borrow from Businessday the funds he used in purchasing the shares from petitioner, and had to pay the petitioner in installments of P10,000.00 every 15th and 30th of each month. 18 The trial court in its Decision, dated 26 July 1995, dismissed the Complaint filed by the petitioner. It ruled that the sale of shares between petitioner and respondent Locsin was valid. The trial court concluded that petitioner had intended to sell the shares of stock to anyone, including respondent Locsin, in order to provide for the needs of his family should he be jailed or

forced to go underground; and that the SPA drafted by the petitioner empowered respondent Locsin, and two other agents, to sell the shares for such price and under such terms and conditions that the agents may deem proper. It further found that petitioner consented to have respondent Locsin buy the shares himself. It also ruled that petitioner, through his wife, received from respondent Locsin the amount of P600,000.00 as payment for the shares of stock. 19 The dispositive part of the trial court's Decision reads: WHEREFORE, for failure of the [herein petitioner] to prove by preponderance of evidence, his causes of action and of the facts alleged in his complaint, the instant suit is hereby ordered DISMISSED, without pronouncement as to costs. ETIDaH [Herein respondents'] counterclaims, however, are hereby DISMISSED, likewise, for dearth of substantial evidentiary support. 20 On appeal, the Court of Appeals affirmed the Decision of the trial court that there was a perfected contract of sale. 21 It further ruled that granting that there was no perfected contract of sale, petitioner, nevertheless, ratified the sale to respondent Locsin by his receipt of the purchase price, and his failure to raise any protest over the said sale. 22 The Court of Appeals refused to credit the petitioner's allegation that the money his wife received constituted his salary from Businessday since the amount he received as his salary, P24,000.00 per month, did not correspond to the amount he received during his detention, P20,000.00 per month (deposits of P10,000.00 on every 15th and 30th of each month in the accounts of the petitioner's in-laws). On the other hand, the total amount received, P600,000.00, corresponds to the aggregate par value of petitioner's shares in Businessday. Moreover, the financial condition of Businessday prevented it from granting any form of financial assistance in favor of the petitioner, who was placed in an indefinite leave of absence, and, therefore, not entitled to any salary. 23 The Court of Appeals also ruled that although the manner of the cancellation of the petitioner's certificates of stock and the subsequent issuance of the new certificate of stock in favor of respondent Locsin was irregular, this irregularity will not relieve petitioner of the consequences of a consummated sale. 24 Finally, the Court of Appeals affirmed the Decision of the trial court disallowing respondent Locsin's claims for moral and exemplary damages due to lack of supporting evidence. 25 Hence, the present petition, where the following issues were raised: I. THE APPELLATE COURT ERRED IN RULING THAT THERE WAS A PERFECTED CONTRACT OF SALE BETWEEN PETITIONER AND MR. LOCSIN OVER THE SHARES; II. THE APPELLATE COURT ERRED IN RULING THAT PETITIONER CONSENTED TO THE ALLEGED SALE OF THE SHARES TO MR. LOCSIN; III. THE APPELLATE COURT ERRED IN RULING THAT THE AMOUNTS RECEIVED BY PETITIONER'S IN LAWS WERE NOT PETITIONER'S SALARY FROM THE CORPORATION BUT INSTALLMENT PAYMENTS FOR THE SHARES; IV. THE APPELLATE COURT ERRED IN RULING THAT MR. LOCSIN WAS THE PARTY TO THE ALLEGED SALE OF THE SHARES AND NOT THE CORPORATION; AND TcEaAS V. THE APPELLATE COURT ERRED IN RULING THAT THE ALLEGED SALE OF THE SHARES WAS VALID ALTHOUGH THE CANCELLATION OF THE SHARES WAS IRREGULAR. 26 The petition is without merit.

The first issue that the petitioner raised is that there was no valid sale since respondent Locsin exceeded his authority under the SPA 27 issued in his, Joaquin and Hofilea's favor. He alleged that the authority of the afore-named agents to sell the shares of stock was limited to the following conditions: (1) in the event of the petitioner's absence and incapacity; and (2) for the limited purpose of applying the proceeds of the sale to the satisfaction of petitioner's subsisting obligations with the companies adverted to in the SPA. 28 Petitioner sought to impose a strict construction of the SPA by limiting the definition of the word "absence" to a condition wherein "a person disappears from his domicile, his whereabouts being unknown, without leaving an agent to administer his property," 29 citing Article 381 of the Civil Code, the entire provision hereunder quoted: ART 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. DEcITS This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. Petitioner also puts forward that the word "incapacity" would be limited to mean "minority, insanity, imbecility, the state of being deaf-mute, prodigality and civil interdiction." 30 He cites Article 38 of the Civil Code, in support of this definition, which is hereunder quoted: ART. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person, from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Petitioner, thus, claims that his arrest and subsequent detention are not among the instances covered by the terms "absence or incapacity," as provided under the SPA he executed in favor of respondent Locsin. Petitioner's arguments are unpersuasive. It is a general rule that a power of attorney must be strictly construed; the instrument will be held to grant only those powers that are specified, and the agent may neither go beyond nor deviate from the power of attorney. However, the rule is not absolute and should not be applied to the extent of destroying the very purpose of the power. If the language will permit, the construction that should be adopted is that which will carry out instead of defeat the purpose of the appointment. Clauses in a power of attorney that are repugnant to each other should be reconciled so as to give effect to the instrument in accordance with its general intent or predominant purpose. Furthermore, the instrument should always be deemed to give such powers as essential or usual in effectuating the express powers. 31 In the present case, limiting the definitions of "absence" to that provided under Article 381 of the Civil Code and of "incapacity" under Article 38 of the same Code negates the effect of the power of attorney by creating absurd, if not impossible, legal situations. Article 381 provides the necessarily stringent standards that would justify the appointment of a representative by a judge. Among the standards the said article enumerates is that no agent has been appointed to administer the property. In the present case, petitioner himself had already authorized agents to do specific acts of administration and thus, no longer necessitated the appointment of one by the court. Likewise, limiting the construction of "incapacity" to "minority, insanity, imbecility, the state of being a deaf-mute, prodigality and civil interdiction," as provided under Article 38, would render the SPA ineffective. Article 1919(3) of the Civil Code provides that the death, civil interdiction, insanity or insolvency of the principal or of the agent extinguishes the agency. It would be equally incongruous, if not outright impossible, for the petitioner to require himself to qualify as a minor, an imbecile, a deaf-mute, or a prodigal before the SPA becomes operative. In such cases, not only would he be prevented from appointing an agent, he himself would be unable to administer his property. HTaIAC On the other hand, defining the terms "absence" and "incapacity" by their everyday usage makes for a reasonable construction, that is, "the state of not being present" and the "inability to act," given the context that the SPA authorizes the agents to attend stockholders' meetings and vote in behalf of petitioner, to sell the shares of stock, and other related acts. This construction covers the situation wherein petitioner was arrested and detained. This much is admitted by petitioner in his testimony. 32

Petitioner's contention that the shares may only be sold for the sole purpose of applying the proceeds of the sale to the satisfaction of petitioner's subsisting obligations to the company is far-fetched. The construction, which will carry out the purpose, is that which should be applied. Petitioner had not submitted evidence that he was in debt with Businessday at the time he had executed the SPA. Nor could he have considered incurring any debts since he admitted that, at the time of its execution, he was concerned about his possible arrest, death and disappearance. The language of the SPA clearly enumerates, as among those acts that the agents were authorized to do, the act of applying the proceeds of the sale of the shares to any obligations petitioner might have against the Businessday group of companies. This interpretation is supported by the use of the word "and" in enumerating the authorized acts, instead of phrases such as "only for," "for the purpose of," "in order to" or any similar terms to indicate that the petitioner intended that the SPA be used only for a limited purpose, that of paying any liabilities with the Businessday group of companies. TIcAaH Secondly, petitioner argued that the records failed to show that he gave his consent to the sale of the shares to respondent Locsin for the price of P600,000.00. This argument is unsustainable. Petitioner received from respondent Locsin, through his wife and in-laws, the installment payments for a total of P600,000.00 from 1980 to 1982, without any protest or complaint. It was only four years after 1982 when petitioner demanded the return of the shares. The petitioner's claim that he did not instruct respondent Locsin to deposit the money to the bank accounts of his in-laws fails to prove that petitioner did not give his consent to the sale since respondent Locsin was authorized, under the SPA, to negotiate the terms and conditions of the sale including the manner of payment. Moreover, had respondent Locsin given the proceeds directly to the petitioner, as the latter suggested in this petition, the proceeds were likely to have been included among petitioner's properties which were confiscated by the military. Instead, respondent Locsin deposited the money in the bank accounts of petitioner's in-laws, and consequently, assured that the petitioner's wife received these amounts. Article 1882 of the Civil Code provides that the limits of an agent's authority shall not be considered exceeded should it have been performed in a manner more advantageous to the principal than that specified by him. In addition, petitioner made two inconsistent statements when he alleged that (1) respondent Locsin had not asked the petitioner to endorse and deliver the shares of stock, and (2) when Rebecca Fernando asked the petitioner to endorse and deliver the certificates of stock, but petitioner refused and even became upset. 33 In either case, both statements only prove that petitioner refused to honor his part as seller of the shares, even after receiving payments from the buyer. Had the petitioner not known of or given his consent to the sale, he would have given back the payments as soon as Fernando asked him to endorse and deliver the certificates of stock, an incident which unequivocally confirmed that the funds he received, through his wife and his in-laws, were intended as payment for his shares of stocks. Instead, petitioner held on to the proceeds of the sale after it had been made clear to him that respondent Locsin had considered the P600,000.00 as payment for the shares, and asked petitioner, through Fernando, to endorse and deliver the stock certificates for cancellation. TCaSAH As regards the third issue, petitioner's allegation that the installment payments he was adjudged to have received for the shares were actually salaries which Businessday promised to pay him during his detention is unsupported and implausible. Petitioner received P20,000.00 per month through his in-laws; this amount does not correspond to his monthly salary at P24,000.00. 34 Nor does the amount received correspond to the amount which Businessday was supposed to be obliged to pay petitioner, which was only P45,000.00 to P60,000.00 per annum. 35 Secondly, the petitioner's wife did not receive funds from respondent Locsin or Businessday for the entire duration of petitioner's detention. Instead, when the total amount received by the petitioner reached the aggregate amount of his shares at par value P600,000.00 the payments stopped. Petitioner even testified that when respondent Locsin denied knowing the petitioner soon after his arrest, he believed respondent Locsin's commitment to pay his salaries during his detention to be nothing more than lip-service. 36 Granting that petitioner was able to prove his allegations, such an act of gratuity, on the part of Businessday in favor of petitioner, would be void. An arrangement whereby petitioner will receive "salaries" for work he will not perform, which is not a demandable debt since petitioner was on an extended leave of absence, constitutes a donation under Article 726 37 of the Civil Code. Under Article 748 of the Civil Code, if the value of the personal property donated exceeds P5,000.00, the donation and the acceptance shall have to be made in writing. Otherwise, the donation will be void. In the present case, petitioner admitted in his testimony 38 that such arrangement was not made in writing and, hence, is void. The fact that some of the deposit slips and communications made to petitioner's wife contain the phrase "household expenses" does not disprove the sale of the shares. The money was being deposited to the bank accounts of the petitioner's inlaws, and not to the account of the petitioner or his wife, precisely because some of his property had already been confiscated

by the military. Had they used the phrase "sale of shares," it would have defeated the purpose of not using their own bank accounts, which was to conceal from the military any transaction involving the petitioner's property. CAIHTE Petitioner raised as his fourth issue that granting that there was a sale, Businessday, and not respondent Locsin, was the party to the transaction. The curious facts that the payments were received on the 15th and 30th of each month and that the payor named in the checks was Businessday, were adequately explained by respondent Locsin. Respondent Locsin had obtained cash advances from the company, paid to him on the 15th and 30th of the month, so that he can pay petitioner for the shares. To support his claim, he presented Businessday's financial records and the testimony of Leo Atienza, the Company's Accounting Manager. When asked why the term "shares of stock" was used for the entries, instead of "cash advances," Atienza explained that the term "shares of stock" was more specific rather than the broader phrase "cash advances." 39 More to the point, had the entries been for "shares of stock," the issuance of shares should have been reflected in the stock and transfer books of Businessday, which the petitioner presented as evidence. Instead the stock and transfer books reveal that the increase in respondent Locsin's shares was a result of the cancellation and transfer of petitioner's shares in favor of respondent Locsin. Petitioner alleges that the purported sale between himself and respondent Locsin of the disputed shares of stock is void since it contravenes Article 1491 of the Civil Code, which provides that: ART. 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: xxx xxx xxx

(2) Agents, the property whose administration or sale may have been entrusted to them, unless the consent of the principal has been given; . . . . It is, indeed, a familiar and universally recognized doctrine that a person who undertakes to act as agent for another cannot be permitted to deal in the agency matter on his own account and for his own benefit without the consent of his principal, freely given, with full knowledge of every detail known to the agent which might affect the transaction. 40 The prohibition against agents purchasing property in their hands for sale or management is, however, clearly, not absolute. It does not apply where the principal consents to the sale of the property in the hands of the agent or administrator. 41 In the present case, the parties have conflicting allegations. While respondent Locsin averred that petitioner had permitted him to purchase petitioner's shares, petitioner vehemently denies having known of the transaction. However, records show that petitioner's position is less credible than that taken by respondent Locsin given petitioner's contemporaneous and subsequent acts. 42 In 1980, when Fernando returned a stock certificate she borrowed from the petitioner, it was marked "cancelled." Although the petitioner alleged that he was furious when he saw the word cancelled, he had not demanded the issuance of a new certificate in his name. Instead of having been put on his guard, petitioner remained silent over this obvious red flag and continued receiving, through his wife, payments which totalled to the aggregate amount of the shares of stock valued at par. When the payments stopped, no demand was made by either petitioner or his wife for further payments. IaDSEA From the foregoing, it is clear that petitioner knew of the transaction, agreed to the purchase price of P600,000.00 for the shares of stock, and had in fact facilitated the implementation of the terms of the payment by providing respondent Locsin, through petitioner's wife, with the information on the bank accounts of his in-laws. Petitioner's wife and his son even provided receipts for the payments that were made to them by respondent Locsin, 43 a practice that bespeaks of an onerous transaction and not an act of gratuity. Lastly, petitioner claims that the cancellation of the shares and the subsequent transfer thereof were fraudulent, and, therefore, illegal. In the present case, the shares were transferred in the name of the buyer, respondent Locsin, without the petitioner delivering to the buyer his certificates of stock. Section 63 of the Corporation Code provides that: Sec. 63. Certificate of Stock and Transfer of Shares. . . . Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner or his attorney-in-fact or other person legally authorized to make the transfer. No transfer, however, shall be valid, except as between the parties, until the transfer is

recorded in the books of the corporation showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred. (Emphasis provided.) IaTSED The aforequoted provision furnishes the procedure for the transfer of shares the delivery of the endorsed certificates, in order to prevent the fraudulent transfer of shares of stock. However, this rule cannot be applied in the present case without causing the injustice sought to be avoided. As had been amply demonstrated, there was a valid sale of stocks. Petitioner's failure to deliver the shares to their rightful buyer is a breach of his duty as a seller, which he cannot use to unjustly profit himself by denying the validity of such sale. Thus, while the manner of the cancellation of petitioner's certificates of stock and the issuance of the new certificates in favor of respondent Locsin was highly irregular, we must, nonetheless, declare the validity of the sale between the parties. Neither does this irregularity prove that the transfer was fraudulent. In his testimony, petitioner admitted that they had intended to conceal his being a stockholder of Businessday. 44 The cancellation of his name from the stock and transfer book, even before the shares were actually sold, had been done with his consent. As earlier explained, even the subsequent sale of the shares in favor of Locsin had been done with his consent. IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This Court AFFIRMS the assailed Decision of the Court of Appeals, promulgated on 30 June 2003, affirming the validity of the sale of the shares of stock in favor of respondent Locsin. No costs. SO ORDERED.

[G.R. No. 181126. June 15, 2011.] LEONARDO S. UMALE, [deceased] represented by CLARISSA VICTORIA, JOHN LEO, GEORGE LEONARD, KRISTINE, MARGUERITA ISABEL, AND MICHELLE ANGELIQUE, ALL SURNAMED UMALE, petitioners, vs. ASB REALTY CORPORATION, respondent. DECISION DEL CASTILLO, J p: Being placed under corporate rehabilitation and having a receiver appointed to carry out the rehabilitation plan do not ipso facto deprive a corporation and its corporate officers of the power to recover its unlawfully detained property. DHIETc Petitioners filed this Petition for Review on Certiorari 1 assailing the October 15, 2007 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 91096, as well as its January 2, 2008 Resolution. 3 The dispositive portion of the assailed Decision reads:

WHEREFORE, the Decision dated March 28, 2005 of the trial court is affirmed in toto. SO ORDERED. 4 Factual Antecedents This case involves a parcel of land identified as Lot 7, Block 5, Amethyst Street, Ortigas Center, Pasig City which was originally owned by Amethyst Pearl Corporation (Amethyst Pearl), a company that is, in turn, wholly-owned by respondent ASB Realty Corporation (ASB Realty). In 1996, Amethyst Pearl executed a Deed of Assignment in Liquidation of the subject premises in favor of ASB Realty in consideration of the full redemption of Amethyst Pearl's outstanding capital stock from ASB Realty. 5 Thus, ASB Realty became the owner of the subject premises and obtained in its name Transfer Certificate of Title No. PT-105797, 6 which was registered in 1997 with the Registry of Deeds of Pasig City. Sometime in 2003, ASB Realty commenced an action in the Metropolitan Trial Court (MTC) of Pasig City for unlawful detainer 7 of the subject premises against petitioner Leonardo S. Umale (Umale). ASB Realty alleged that it entered into a lease contract

8 with Umale for the period June 1, 1999-May 31, 2000. Their agreement was for Umale to conduct a pay-parking business on the property and pay a monthly rent of P60,720.00 to ASB Realty. EICSDT Upon the contract's expiration on May 31, 2000, Umale continued occupying the premises and paying rentals albeit at an increased monthly rent of P100,000.00. The last rental payment made by Umale to ASB Realty was for the June 2001 to May 2002 period, as evidenced by the Official Receipt No. 56511 9 dated November 19, 2001. On June 23, 2003, ASB Realty served on Umale a Notice of Termination of Lease and Demand to Vacate and Pay. 10 ASB Realty stated that it was terminating the lease effective midnight of June 30, 2003; that Umale should vacate the premises, and pay to ASB Realty the rental arrears amounting to P1.3 million by July 15, 2003. Umale failed to comply with ASB Realty's demands and continued in possession of the subject premises, even constructing commercial establishments thereon. Umale admitted occupying the property since 1999 by virtue of a verbal lease contract but vehemently denied that ASB Realty was his lessor. He was adamant that his lessor was the original owner, Amethyst Pearl. Since there was no contract between himself and ASB Realty, the latter had no cause of action to file the unlawful detainer complaint against him. In asserting his right to remain on the property based on the oral lease contract with Amethyst Pearl, Umale interposed that the lease period agreed upon was "for a long period of time." 11 He then allegedly paid P1.2 million in 1999 as one year advance rentals to Amethyst Pearl. 12 aSCHcA Umale further claimed that when his oral lease contract with Amethyst Pearl ended in May 2000, they both agreed on an oral contract to sell. They agreed that Umale did not have to pay rentals until the sale over the subject property had been perfected between them. 13 Despite such agreement with Amethyst Pearl regarding the waiver of rent payments, Umale maintained that he continued paying the annual rent of P1.2 million. He was thus surprised when he received the Notice of Termination of Lease from ASB Realty. 14 Umale also challenged ASB Realty's personality to recover the subject premises considering that ASB Realty had been placed under receivership by the Securities and Exchange Commission (SEC) and a rehabilitation receiver had been duly appointed. Under Section 14 (s), Rule 4 of the Administrative Memorandum No. 00-8-10-SC, otherwise known as the Interim Rules of Procedure on Corporate Rehabilitation (Interim Rules), it is the rehabilitation receiver that has the power to "take possession, control and custody of the debtor's assets." Since ASB Realty claims that it owns the subject premises, it is its duly-appointed receiver that should sue to recover possession of the same. 15 ASB Realty replied that it was impossible for Umale to have entered into a Contract of Lease with Amethyst Pearl in 1999 because Amethyst Pearl had been liquidated in 1996. ASB Realty insisted that, as evidenced by the written lease contract, Umale contracted with ASB Realty, not with Amethyst Pearl. As further proof thereof, ASB Realty cited the official receipt evidencing the rent payments made by Umale to ASB Realty. IEaHSD Ruling of the Metropolitan Trial Court In its August 20, 2004 Decision, 16 the MTC dismissed ASB Realty's complaint against Umale without prejudice. It held that ASB Realty had no cause to seek Umale's ouster from the subject property because it was not Umale's lessor. The trial court noted an inconsistency in the written lease contract that was presented by ASB Realty as basis for its complaint. Its whereas clauses cited ASB Realty, with Eden C. Lin as its representative, as Umale's lessor; but its signatory page contained Eden C. Lin's name under the heading Amethyst Pearl. The MTC then concluded from such inconsistency that Amethyst Pearl was the real lessor, who can seek Umale's ejectment from the subject property. 17 Likewise, the MTC agreed with Umale that only the rehabilitation receiver could file suit to recover ASB Realty's property. 18 Having been placed under receivership, ASB Realty had no more personality to file the complaint for unlawful detainer. Ruling of the Regional Trial Court ASB Realty appealed the adverse MTC Decision to the Regional Trial Court (RTC), 19 which then reversed 20 the MTC ruling. The RTC held that the MTC erred in dismissing ASB Realty's complaint for lack of cause of action. It found sufficient evidence to support the conclusion that it was indeed ASB Realty that entered into a lease contract with Umale, hence, the proper party

who can assert the corresponding right to seek Umale's ouster from the leased premises for violations of the lease terms. In addition to the written lease contract, the official receipt evidencing Umale's rental payments for the period June 2001 to May 2002 to ASB Realty adequately established that Umale was aware that his lessor, the one entitled to receive his rent payments, was ASB Realty, not Amethyst Pearl. HETDAC ASB Realty's positive assertions, supported as they are by credible evidence, are more compelling than Umale's bare negative assertions. The RTC found Umale's version of the facts incredible. It was implausible that a businessman such as Umale would enter into several transactions with his alleged lessor a lease contract, payment of lease rentals, acceptance of an offer to sell from his alleged lessor, and an agreement to waive rentals sans a sliver of evidence. With the lease contract between Umale and ASB Realty duly established and Umale's failure to pay the monthly rentals since June 2002 despite due demands from ASB Realty, the latter had the right to terminate the lease contract and seek his eviction from the leased premises. Thus, when the contract expired on June 30, 2003 (as stated in the Notice of Termination of Lease), Umale lost his right to remain on the premises and his continued refusal to vacate the same constituted sufficient cause of action for his ejectment. 21 With respect to ASB Realty's personality to file the unlawful detainer suit, the RTC ruled that ASB Realty retained all its corporate powers, including the power to sue, despite the appointment of a rehabilitation receiver. Citing the Interim Rules, the RTC noted that the rehabilitation receiver was not granted therein the power to file complaints on behalf of the corporation. 22 Moreover, the retention of its corporate powers by the corporation under rehabilitation will advance the objective of corporate rehabilitation, which is to conserve and administer the assets of the corporation in the hope that it may eventually be able to go from financial distress to solvency. The suit filed by ASB Realty to recover its property and back rentals from Umale could only benefit ASB Realty. 23 AaHTIE The dispositive portion of the RTC Decision reads as follows: WHEREFORE, premises considered, the appealed decision is hereby reversed and set aside. Accordingly, judgment is hereby rendered in favor of the plaintiff-appellant ordering defendant-appellee and all persons claiming rights under him: 1) To immediately vacate the subject leased premises located at Lot 7, Block 5, Amethyst St., Pearl Drive, Ortigas Center, Pasig City and deliver possession thereof to the plaintiff-appellant; 2) To pay plaintiff-appellant the sum of P1,300,000.00 representing rentals in arrears from June 2002 to June 2003;

3) To pay plaintiff-appellant the amount of P100,000.00 a month starting from July 2003 and every month thereafter until they finally vacate the subject premises as reasonable compensation for the continued use and occupancy of the same; 4) To pay plaintiff-appellant the sum of P200,000.00 as and by way of attorney's fees; and the costs of suit.

SO ORDERED. 24 Umale filed a Motion for Reconsideration 25 while ASB Realty moved for the issuance of a writ of execution pursuant to Section 21 of the 1991 Revised Rules on Summary Procedure. 26 TAIESD In its July 26, 2005 Order, the RTC denied reconsideration of its Decision and granted ASB Realty's Motion for Issuance of a Writ of Execution. 27 Umale then filed his appeal 28 with the CA insisting that the parties did not enter into a lease contract. 29 Assuming that there was a lease, it was at most an implied lease. Hence its period depended on the rent payments. Since Umale paid rent annually, ASB Realty had to respect his lease for the entire year. It cannot terminate the lease at the end of the month, as it did in its Notice of Termination of Lease. 30 Lastly, Umale insisted that it was the rehabilitation receiver, not ASB Realty, that was the real party-in-interest. 31 Pending the resolution thereof, Umale died and was substituted by his widow and legal heirs, per CA Resolution dated August 14, 2006. 32

Ruling of the Court of Appeals The CA affirmed the RTC Decision in toto. 33 According to the appellate court, ASB Realty fully discharged its burden to prove the existence of a lease contract between ASB Realty and Umale, 34 as well as the grounds for eviction. 35 The veracity of the terms of the lease contract presented by ASB Realty was further bolstered, instead of demolished, by Umale's admission that he paid monthly rents in accordance therewith. 36 cACHSE The CA found no merit in Umale's claim that in light of Article 1687 of the Civil Code the lease should be extended until the end of the year. The said provision stated that in cases where the lease period was not fixed by the parties, the lease period depended on the payment periods. In the case at bar, the rent payments were made on a monthly basis, not annually; thus, Umale's failure to pay the monthly rent gave ASB Realty the corresponding right to terminate the lease at the end of the month. 37 The CA then upheld ASB Realty's, as well as its corporate officers', personality to recover an unlawfully withheld corporate property. As expressly stated in Section 14 of Rule 4 of the Interim Rules, the rehabilitation receiver does not take over the functions of the corporate officers. 38 Petitioners filed a Motion for Reconsideration, 39 which was denied in the assailed January 2, 2008 Resolution. 40 Issues The petitioners raise the following issues for resolution: 41 1. Can a corporate officer of ASB Realty (duly authorized by the Board of Directors) file suit to recover an unlawfully detained corporate property despite the fact that the corporation had already been placed under rehabilitation? cEaCAH 2. 3. Whether a contract of lease exists between ASB Realty and Umale; and Whether Umale is entitled to avail of the lease periods provided in Article 1687 of the Civil Code.

Our Ruling Petitioners ask for the dismissal of the complaint for unlawful detainer on the ground that it was not brought by the real party-in-interest. 42 Petitioners maintain that the appointment of a rehabilitation receiver for ASB Realty deprived its corporate officers of the power to recover corporate property and transferred such power to the rehabilitation receiver. Section 6, Rule 59 of the Rules of Court states that a receiver has the power to bring actions in his own name and to collect debts due to the corporation. Under Presidential Decree (PD) No. 902-A and the Interim Rules, the rehabilitation receiver has the power to take custody and control of the assets of the corporation. Since the receiver for ASB Realty did not file the complaint for unlawful detainer, the trial court did not acquire jurisdiction over the subject property. 43 Petitioners cite Villanueva v. Court of Appeals, 44 Yam v. Court of Appeals, 45 and Abacus Real Estate Development Center, Inc. v. The Manila Banking Corporation, 46 as authorities for the rule that the appointment of a receiver suspends the authority of the corporation and its officers over its property and effects. 47 aEIADT ASB Realty counters that there is no provision in PD 902-A, the Interim Rules, or in Rule 59 of the Rules of Court that divests corporate officers of their power to sue upon the appointment of a rehabilitation receiver. 48 In fact, Section 14, Rule 4 of the Interim Rules expressly limits the receiver's power by providing that the rehabilitation receiver does not take over the management and control of the corporation but shall closely oversee and monitor the operations of the debtor. 49 Further, the SEC Rules of Procedure on Corporate Recovery (SEC Rules), the rules applicable to the instant case, do not include among the receiver's powers the exclusive right to file suits for the corporation. 50 The Court resolves the issue in favor of ASB Realty and its officers.

There is no denying that ASB Realty, as the owner of the leased premises, is the real party-in-interest in the unlawful detainer suit. 51 Real party-in-interest is defined as "the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit." 52 What petitioners argue is that the corporate officer of ASB Realty is incapacitated to file this suit to recover a corporate property because ASB Realty has a duly-appointed rehabilitation receiver. Allegedly, this rehabilitation receiver is the only one that can file the instant suit. Corporations, such as ASB Realty, are juridical entities that exist by operation of law. 53 As a creature of law, the powers and attributes of a corporation are those set out, expressly or impliedly, in the law. Among the general powers granted by law to a corporation is the power to sue in its own name. 54 This power is granted to a duly-organized corporation, unless specifically revoked by another law. The question becomes: Do the laws on corporate rehabilitation particularly PD 902-A, as amended, 55 and its corresponding rules of procedure forfeit the power to sue from the corporate officers and Board of Directors? IHAcCS Corporate rehabilitation is defined as "the restoration of the debtor to a position of successful operation and solvency, if it is shown that its continuance of operation is economically feasible and its creditors can recover by way of the present value of payments projected in the plan more if the corporation continues as a going concern than if it is immediately liquidated." 56 It was first introduced in the Philippine legal system through PD 902-A, as amended. 57 The intention of the law is "to effect a feasible and viable rehabilitation by preserving a floundering business as a going concern, because the assets of a business are often more valuable when so maintained than they would be when liquidated." 58 This concept of preserving the corporation's business as a going concern while it is undergoing rehabilitation is called debtor-in-possession or debtor-inplace. This means that the debtor corporation (the corporation undergoing rehabilitation), through its Board of Directors and corporate officers, remains in control of its business and properties, subject only to the monitoring of the appointed rehabilitation receiver. 59 The concept of debtor-in-possession, is carried out more particularly in the SEC Rules, the rule that is relevant to the instant case. 60 It states therein that the interim rehabilitation receiver of the debtor corporation "does not take over the control and management of the debtor corporation." 61 Likewise, the rehabilitation receiver that will replace the interim receiver is tasked only to monitor the successful implementation of the rehabilitation plan. 62 There is nothing in the concept of corporate rehabilitation that would ipso facto deprive 63 the Board of Directors and corporate officers of a debtor corporation, such as ASB Realty, of control such that it can no longer enforce its right to recover its property from an errant lessee. aSEHDA To be sure, corporate rehabilitation imposes several restrictions on the debtor corporation. The rules enumerate the prohibited corporate actions and transactions 64 (most of which involve some kind of disposition or encumbrance of the corporation's assets) during the pendency of the rehabilitation proceedings but none of which touch on the debtor corporation's right to sue. The implication therefore is that our concept of rehabilitation does not restrict this particular power, save for the caveat that all its actions are monitored closely by the receiver, who can seek an annulment of any prohibited or anomalous transaction or agreement entered into by the officers of the debtor corporation. Petitioners insist that the rehabilitation receiver has the power to bring and defend actions in his own name as this power is provided in Section 6 of Rule 59 of the Rules of Court. Indeed, PD 902-A, as amended, provides that the receiver shall have the powers enumerated under Rule 59 of the Rules of Court. But Rule 59 is a rule of general application. It applies to different kinds of receivers rehabilitation receivers, receivers of entities under management, ordinary receivers, receivers in liquidation and for different kinds of situations. While the SEC has the discretion 65 to authorize the rehabilitation receiver, as the case may warrant, to exercise the powers in Rule 59, the SEC's exercise of such discretion cannot simply be assumed. There is no allegation whatsoever in this case that the SEC gave ASB Realty's rehabilitation receiver the exclusive right to sue. aEIADT Petitioners cite Villanueva, 66 Yam, 67 and Abacus Real Estate 68 as authorities for their theory that the corporate officers of a corporation under rehabilitation is incapacitated to act. In Villanueva, 69 the Court nullified the sale contract entered into by the Philippine Veterans Bank on the ground that the bank's insolvency restricted its capacity to act. Yam, 70 on the other hand, nullified the compromise agreement that Manphil Investment Corporation entered into while it was under receivership by the Central Bank. In Abacus Real Estate, 71 it was held that Manila Bank's president had no authority to execute an "option to purchase" contract while the bank was under liquidation.

These jurisprudence are inapplicable to the case at bar because they involve banking and financial institutions that are governed by different laws. 72 In the cited cases, the applicable banking law was Section 29 73 of the Central Bank Act. 74 In stark contrast to rehabilitation where the corporation retains control and management of its affairs, Section 29 of the Central Bank Act, as amended, expressly forbids the bank or the quasi-bank from doing business in the Philippines. Moreover, the nullified transactions in the cited cases involve dispositions of assets and claims, which are prohibited transactions even for corporate rehabilitation 75 because these may be prejudicial to creditors and contrary to the rehabilitation plan. The instant case, however, involves the recovery of assets and collection of receivables, for which there is no prohibition in PD 902-A. SCaTAc While the Court rules that ASB Realty and its corporate officers retain their power to sue to recover its property and the back rentals from Umale, the necessity of keeping the receiver apprised of the proceedings and its results is not lost upon this Court. Tasked to closely monitor the assets of ASB Realty, the rehabilitation receiver has to be notified of the developments in the case, so that these assets would be managed in accordance with the approved rehabilitation plan. Coming to the second issue, petitioners maintain that ASB Realty has no cause of action against them because it is not their lessor. They insist that Umale entered into a verbal lease agreement with Amethyst Pearl only. As proof of this verbal agreement, petitioners cite their possession of the premises, and construction of buildings thereon, sans protest from Amethyst Pearl or ASB Realty. 76 Petitioners concede that they may have raised questions of fact but insist nevertheless on their review as the appellate court's ruling is allegedly grounded entirely on speculations, surmises, and conjectures and its conclusions regarding the termination of the lease contract are manifestly absurd, mistaken, and impossible. 77 Petitioners' arguments have no merit. Ineluctably, the errors they raised involve factual findings, 78 the review of which is not within the purview of the Court's functions under Rule 45, particularly when there is adequate evidentiary support on record. SIcEHD While petitioners assail the authenticity of the written lease contract by pointing out the inconsistency in the name of the lessor in two separate pages, they fail to account for Umale's actions which are consistent with the terms of the contract the payment of lease rentals to ASB Realty (instead of his alleged lessor Amethyst Pearl) for a 12-month period. These matters cannot simply be brushed off as sheer happenstance especially when weighed against Umale's incredible version of the facts that he entered into a verbal lease contract with Amethyst Pearl; that the term of the lease is for a "very long period of time;" that Amethyst Pearl offered to sell the leased premises and Umale had accepted the offer, with both parties not demanding any written documentation of the transaction and without any mention of the purchase price; and that finally, Amethyst Pearl agreed that Umale need not pay rentals until the perfection of the sale. The Court is of the same mind as the appellate court that it is simply inconceivable that a businessman, such as petitioners' predecessor-in-interest, would enter into commercial transactions with and pay substantial rentals to a corporation nary a single documentation. Petitioners then try to turn the table on ASB Realty with their third argument. They say that under Article 1687 of the New Civil Code, the period for rent payments determines the lease period. Judging by the official receipt presented by ASB Realty, which covers the 12-month period from June 2001 to May 2002, the lease period should be annual because of the annual rent payments. 79 Petitioners then conclude that ASB Realty violated Article 1687 of the New Civil Code when it terminated the lease on June 30, 2003, at the beginning of the new period. They then implore the Court to extend the lease to the end of the annual period, meaning until May 2004, in accordance with the annual rent payments. 80 IHCSET In arguing for an extension of lease under Article 1687, petitioners lost sight of the restriction provided in Article 1675 of the Civil Code. It states that a lessee that commits any of the grounds for ejectment cited in Article 1673, including non-payment of lease rentals and devoting the leased premises to uses other than those stipulated, cannot avail of the periods established in Article 1687. 81 Moreover, the extension in Article 1687 is granted only as a matter of equity. The law simply recognizes that there are instances when it would be unfair to abruptly end the lease contract causing the eviction of the lessee. It is only for these clearly unjust situations that Article 1687 grants the court the discretion to extend the lease. 82

The particular circumstances of the instant case however, do not inspire granting equitable relief. Petitioners have not paid, much less offered to pay, the rent for 14 months and even had the temerity to disregard the pay-and-vacate notice served on them. An extension will only benefit the wrongdoer and punish the long-suffering property owner. 83 WHEREFORE, the petition is DENIED. The October 15, 2007 Decision and January 2, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 91096 are hereby AFFIRMED. ASB Realty Corporation is ordered to FURNISH a copy of the Decision on its incumbent Rehabilitation Receiver and to INFORM the Court of its compliance therewith within 10 days. IHaSED SO ORDERED. [G.R. No. L-16439. July 20, 1961.] ANTONIO GELUZ, petitioner, vs. THE HON. COURT OF APPEALS and OSCAR LAZO, respondents. Mariano H. de Joya for petitioner. A. P. Salvador for respondents. SYLLABUS 1. CRIMINAL LAW; ABORTION; CONSENT OF WOMAN OR HUSBAND DOES NOT EXCUSE CRIMINAL ACT. Abortion, without medical necessity to warrant it, is a criminal act, and neither the consent of the woman nor that of the husband would excuse it. 2. DAMAGES; UNBORN FOETUS: WITHOUT PERSONALITY; AWARD FOR DEATH OF A PERSON DOES NOT COVER UNBORN FOETUS. The minimum award for the death of a person does not cover the case of an unborn foetus that is not endowed with personality and incapable of having rights and obligations. 3. ID.; ID.; PARENTS OF UNBORN FOETUS CANNOT SUE FOR DAMAGES ON ITS BEHALF. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the injured, no such right of action could derivatively accrue to the parents or heirs of an unborn child. 4. ID.; ID.; NATURE OF DAMAGES RECOVERABLE BY PARENTS OF UNBORN CHILD. The damages which the parents of an unborn child can recover are limited to the moral damages for the illegal arrest of normal development of the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations, as well as to exemplary damages, if the circumstances should warrant them (Art. 2230, New Civil Code). DECISION REYES, J.B.L., J p: This petition for certiorari brings up for review the question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from the physician who caused the same. The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the husband of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment in favor of plaintiff Lazo and against defendant Geluz ordering the latter to pay P3,000 as damages, P700 as attorney's fees and the costs of the suit. On appeal, the Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion. The facts are set forth in the majority opinion as follows: "Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became

pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent to, the abortion." It is the third and last abortion that constitutes plaintiffs basis in filing this action and award of damages. Upon application of the defendant Geluz, we granted certiorari. The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.00 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consecuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado" Vol. 1, p. 49). being incapable of having rights and obligations. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from one that lacked juridical personality (or juridical capacity, as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the conditions specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb. The prevailing American jurisprudence is to the same effect; and is generally held that recovery can not be had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northhampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR (2d) 639). This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e. on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code, Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000 damages and P3,000 attorneys fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated. The dissenting Justices of the Court of Appeals have aptly remarked that: "It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be high-minded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries."

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damages that, under the circumstances on record, have no factual or legal basis. The decision appealed from is reversed, and the complaint ordered dismissed. Without costs. Let a copy of this decision be furnished the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant. Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur. Concepcion, J., took no part. De Leon, J., did not take part. [G.R. No. 182836. October 13, 2009.] CONTINENTAL STEEL MANUFACTURING CORPORATION, petitioner, vs. HON. ACCREDITED VOLUNTARY ARBITRATOR ALLAN S. MONTAO and NAGKAKAISANG MANGGAGAWA NG CENTRO STEEL CORPORATION-SOLIDARITY OF UNIONS IN THE PHILIPPINES FOR EMPOWERMENT AND REFORMS (NMCSC-SUPER), respondents. DECISION CHICO-NAZARIO, J p: Before Us is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision 1 dated 27 February 2008 and the Resolution 2 dated 9 May 2008 of the Court of Appeals in CA-G.R. SP No. 101697, affirming the Resolution 3 dated 20 November 2007 of respondent Accredited Voluntary Arbitrator Atty. Allan S. Montao (Montao) granting bereavement leave and other death benefits to Rolando P. Hortillano (Hortillano), grounded on the death of his unborn child. EDIHSC The antecedent facts of the case are as follows: Hortillano, an employee of petitioner Continental Steel Manufacturing Corporation (Continental Steel) and a member of respondent Nagkakaisang Manggagawa ng Centro Steel Corporation-Solidarity of Trade Unions in the Philippines for Empowerment and Reforms (Union) filed on 9 January 2006, a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to the Collective Bargaining Agreement (CBA) concluded between Continental and the Union, which reads: ARTICLE X: LEAVE OF ABSENCE xxx xxx xxx

Section 2. BEREAVEMENT LEAVE. The Company agrees to grant a bereavement leave with pay to any employee in case of death of the employee's legitimate dependent (parents, spouse, children, brothers and sisters) based on the following: 2.1 2.2 xxx Within Metro Manila up to Marilao, Bulacan 7 days Provincial/Outside Metro Manila 11 days xxx xxx

ARTICLE XVIII: OTHER BENEFITS Section 4. DEATH AND ACCIDENT INSURANCE. The Company shall grant death and accidental insurance to the employee or his family in the following manner: IHSTDE xxx xxx xxx

4.3 DEPENDENTS Eleven Thousand Five Hundred Fifty Pesos (Php11,550.00) in case of death of the employees legitimate dependents (parents, spouse, and children). In case the employee is single, this benefit covers the legitimate parents, brothers and sisters only with proper legal document to be presented (e.g., death certificate). 4 The claim was based on the death of Hortillano's unborn child. Hortillano's wife, Marife V. Hortillano, had a premature delivery on 5 January 2006 while she was in the 38th week of pregnancy. 5 According to the Certificate of Fetal Death dated 7 January 2006, the female fetus died during labor due to fetal Anoxia secondary to uteroplacental insufficiency. 6 Continental Steel immediately granted Hortillano's claim for paternity leave but denied his claims for bereavement leave and other death benefits, consisting of the death and accident insurance. 7 Seeking the reversal of the denial by Continental Steel of Hortillano's claims for bereavement and other death benefits, the Union resorted to the grievance machinery provided in the CBA. Despite the series of conferences held, the parties still failed to settle their dispute, 8 prompting the Union to file a Notice to Arbitrate before the National Conciliation and Mediation Board (NCMB) of the Department of Labor and Employment (DOLE), National Capital Region (NCR). 9 In a Submission Agreement dated 9 October 2006, the Union and Continental Steel submitted for voluntary arbitration the sole issue of whether Hortillano was entitled to bereavement leave and other death benefits pursuant to Article X, Section 2 and Article XVIII, Section 4.3 of the CBA. 10 The parties mutually chose Atty. Montao, an Accredited Voluntary Arbitrator, to resolve said issue. 11 DCTHaS When the preliminary conferences again proved futile in amicably settling the dispute, the parties proceeded to submit their respective Position Papers, 12 Replies, 13 and Rejoinders 14 to Atty. Montao. The Union argued that Hortillano was entitled to bereavement leave and other death benefits pursuant to the CBA. The Union maintained that Article X, Section 2 and Article XVIII, Section 4.3 of the CBA did not specifically state that the dependent should have first been born alive or must have acquired juridical personality so that his/her subsequent death could be covered by the CBA death benefits. The Union cited cases wherein employees of MKK Steel Corporation (MKK Steel) and Mayer Steel Pipe Corporation (Mayer Steel), sister companies of Continental Steel, in similar situations as Hortillano were able to receive death benefits under similar provisions of their CBAs. The Union mentioned in particular the case of Steve L. Dugan (Dugan), an employee of Mayer Steel, whose wife also prematurely delivered a fetus, which had already died prior to the delivery. Dugan was able to receive paternity leave, bereavement leave, and voluntary contribution under the CBA between his union and Mayer Steel. 15 Dugan's child was only 24 weeks in the womb and died before labor, as opposed to Hortillano's child who was already 37-38 weeks in the womb and only died during labor. The Union called attention to the fact that MKK Steel and Mayer Steel are located in the same compound as Continental Steel; and the representatives of MKK Steel and Mayer Steel who signed the CBA with their respective employees' unions were the same as the representatives of Continental Steel who signed the existing CBA with the Union. HECTaA Finally, the Union invoked Article 1702 of the Civil Code, which provides that all doubts in labor legislations and labor contracts shall be construed in favor of the safety of and decent living for the laborer. On the other hand, Continental Steel posited that the express provision of the CBA did not contemplate the death of an unborn child, a fetus, without legal personality. It claimed that there are two elements for the entitlement to the benefits, namely: (1) death and (2) status as legitimate dependent, none of which existed in Hortillano's case. Continental Steel, relying on Articles 40, 41 and 42 16 of the Civil Code, contended that only one with civil personality could die. Hence, the unborn child never died because it never acquired juridical personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus that was dead from the moment of delivery was not a person at all. Hence, the term dependent could not be applied to a fetus that never acquired juridical personality. A fetus that was delivered dead could not be considered a dependent, since it never needed any support, nor did it ever acquire the right to be supported. Continental Steel maintained that the wording of the CBA was clear and unambiguous. Since neither of the parties qualified the terms used in the CBA, the legally accepted definitions thereof were deemed automatically accepted by both parties. The failure of the Union to have unborn child included in the definition of dependent, as used in the CBA the death of whom

would have qualified the parent-employee for bereavement leave and other death benefits bound the Union to the legally accepted definition of the latter term. ScaATD Continental Steel, lastly, averred that similar cases involving the employees of its sister companies, MKK Steel and Mayer Steel, referred to by the Union, were irrelevant and incompetent evidence, given the separate and distinct personalities of the companies. Neither could the Union sustain its claim that the grant of bereavement leave and other death benefits to the parent-employee for the loss of an unborn child constituted "company practice". On 20 November 2007, Atty. Montao, the appointed Accredited Voluntary Arbitrator, issued a Resolution 17 ruling that Hortillano was entitled to bereavement leave with pay and death benefits. Atty. Montao identified the elements for entitlement to said benefits, thus: This Office declares that for the entitlement of the benefit of bereavement leave with pay by the covered employees as provided under Article X, Section 2 of the parties' CBA, three (3) indispensable elements must be present: (1) there is "death"; (2) such death must be of employee's "dependent"; and (3) such dependent must be "legitimate". On the otherhand, for the entitlement to benefit for death and accident insurance as provided under Article XVIII, Section 4, paragraph (4.3) of the parties' CBA, four (4) indispensable elements must be present: (a) there is "death"; (b) such death must be of employee's "dependent"; (c) such dependent must be "legitimate"; and (d) proper legal document to be presented. 18 CTSAaH Atty. Montao found that there was no dispute that the death of an employee's legitimate dependent occurred. The fetus had the right to be supported by the parents from the very moment he/she was conceived. The fetus had to rely on another for support; he/she could not have existed or sustained himself/herself without the power or aid of someone else, specifically, his/her mother. Therefore, the fetus was already a dependent, although he/she died during the labor or delivery. There was also no question that Hortillano and his wife were lawfully married, making their dependent, unborn child, legitimate. In the end, Atty. Montao decreed: WHEREFORE, premises considered, a resolution is hereby rendered ORDERING [herein petitioner Continental Steel] to pay Rolando P. Hortillano the amount of Four Thousand Nine Hundred Thirty-Nine Pesos (P4,939.00), representing his bereavement leave pay and the amount of Eleven Thousand Five Hundred Fifty Pesos (P11,550.00) representing death benefits, or a total amount of P16,489.00 The complaint against Manuel Sy, however, is ORDERED DISMISSED for lack of merit. All other claims are DISMISSED for lack of merit. Further, parties are hereby ORDERED to faithfully abide with the herein dispositions. Aggrieved, Continental Steel filed with the Court of Appeals a Petition for Review on Certiorari, 19 under Section 1, Rule 43 of the Rules of Court, docketed as CA-G.R. SP No. 101697. DTaSIc Continental Steel claimed that Atty. Montao erred in granting Hortillano's claims for bereavement leave with pay and other death benefits because no death of an employee's dependent had occurred. The death of a fetus, at whatever stage of pregnancy, was excluded from the coverage of the CBA since what was contemplated by the CBA was the death of a legal person, and not that of a fetus, which did not acquire any juridical personality. Continental Steel pointed out that its contention was bolstered by the fact that the term death was qualified by the phrase legitimate dependent. It asserted that the status of a child could only be determined upon said child's birth, otherwise, no such appellation can be had. Hence, the conditions sine qua non for Hortillano's entitlement to bereavement leave and other death benefits under the CBA were lacking. The Court of Appeals, in its Decision dated 27 February 2008, affirmed Atty. Montao's Resolution dated 20 November 2007. The appellate court interpreted death to mean as follows:

[Herein petitioner Continental Steel's] exposition on the legal sense in which the term "death" is used in the CBA fails to impress the Court, and the same is irrelevant for ascertaining the purpose, which the grant of bereavement leave and death benefits thereunder, is intended to serve. While there is no arguing with [Continental Steel] that the acquisition of civil personality of a child or fetus is conditioned on being born alive upon delivery, it does not follow that such event of premature delivery of a fetus could never be contemplated as a "death" as to be covered by the CBA provision, undoubtedly an event causing loss and grief to the affected employee, with whom the dead fetus stands in a legitimate relation. [Continental Steel] has proposed a narrow and technical significance to the term "death of a legitimate dependent" as condition for granting bereavement leave and death benefits under the CBA. Following [Continental Steel's] theory, there can be no experience of "death" to speak of. The Court, however, does not share this view. A dead fetus simply cannot be equated with anything less than "loss of human life", especially for the expectant parents. In this light, bereavement leave and death benefits are meant to assuage the employee and the latter's immediate family, extend to them' solace and support, rather than an act conferring legal status or personality upon the unborn child. [Continental Steel's] insistence that the certificate of fetal death is for statistical purposes only sadly misses this crucial point. 20 CSHcDT Accordingly, the fallo of the 27 February 2008 Decision of the Court of Appeals reads: WHEREFORE, premises considered, the present petition is hereby DENIED for lack of merit. The assailed Resolution dated November 20, 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montao is hereby AFFIRMED and UPHELD. With costs against [herein petitioner Continental Steel]. 21 In a Resolution 22 dated 9 May 2008, the Court of Appeals denied the Motion for Reconsideration 23 of Continental Steel. Hence, this Petition, in which Continental Steel persistently argues that the CBA is clear and unambiguous, so that the literal and legal meaning of death should be applied. Only one with juridical personality can die and a dead fetus never acquired a juridical personality. We are not persuaded. As Atty. Montao identified, the elements for bereavement leave under Article X, Section 2 of the CBA are: (1) death; (2) the death must be of a dependent, i.e., parent, spouse, child, brother, or sister, of an employee; and (3) legitimate relations of the dependent to the employee. The requisites for death and accident insurance under Article XVIII, Section 4 (3) of the CBA are: (1) death; (2) the death must be of a dependent, who could be a parent, spouse, or child of a married employee; or a parent, brother, or sister of a single employee; and (4) presentation of the proper legal document to prove such death, e.g., death certificate. IcDCaT It is worthy to note that despite the repeated assertion of Continental Steel that the provisions of the CBA are clear and unambiguous, its fundamental argument for denying Hortillano's claim for bereavement leave and other death benefits rests on the purportedly proper interpretation of the terms "death" and "dependent" as used in the CBA. If the provisions of the CBA are indeed clear and unambiguous, then there is no need to resort to the interpretation or construction of the same. Moreover, Continental Steel itself admitted that neither management nor the Union sought to define the pertinent terms for bereavement leave and other death benefits during the negotiation of the CBA. The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death. First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation to Article 37 of the same Code, the very first of the general provisions on civil personality, which reads: Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. CDHacE We need not establish civil personality of the unborn child herein since his/her juridical capacity and capacity to act as a person are not in issue. It is not a question before us whether the unborn child acquired any rights or incurred any obligations

prior to his/her death that were passed on to or assumed by the child's parents. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latter's death. Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die. And third, death has been defined as the cessation of life. 24 Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, 25 that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death. Likewise, the unborn child can be considered a dependent under the CBA. As Continental Steel itself defines, a dependent is "one who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else". Under said general definition, 26 even an unborn child is a dependent of its parents. Hortillano's child could not have reached 38-39 weeks of its gestational life without depending upon its mother, Hortillano's wife, for sustenance. Additionally, it is explicit in the CBA provisions in question that the dependent may be the parent, spouse, or child of a married employee; or the parent, brother, or sister of a single employee. The CBA did not provide a qualification for the child dependent, such that the child must have been born or must have acquired civil personality, as Continental Steel avers. Without such qualification, then child shall be understood in its more general sense, which includes the unborn fetus in the mother's womb. ASHICc The term legitimate merely addresses the dependent child's status in relation to his/her parents. In Angeles v. Maglaya, 27 we have expounded on who is a legitimate child, viz.: A legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: "Children conceived or born during the marriage of the parents are legitimate". (Emphasis ours.) Conversely, in Briones v. Miguel, 28 we identified an illegitimate child to be as follows: The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code. Now, there are only two classes of children legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status. (Emphasis ours.) It is apparent that according to the Family Code and the afore-cited jurisprudence, the legitimacy or illegitimacy of a child attaches upon his/her conception. In the present case, it was not disputed that Hortillano and his wife were validly married and that their child was conceived during said marriage, hence, making said child legitimate upon her conception. Also incontestable is the fact that Hortillano was able to comply with the fourth element entitling him to death and accident insurance under the CBA, i.e., presentation of the death certificate of his unborn child. CSaIAc Given the existence of all the requisites for bereavement leave and other death benefits under the CBA, Hortillano's claims for the same should have been granted by Continental Steel. We emphasize that bereavement leave and other death benefits are granted to an employee to give aid to, and if possible, lessen the grief of, the said employee and his family who suffered the loss of a loved one. It cannot be said that the parents' grief and sense of loss arising from the death of their unborn child, who, in this case, had a gestational life of 38-39 weeks but died during delivery, is any less than that of parents whose child was born alive but died subsequently. Being for the benefit of the employee, CBA provisions on bereavement leave and other death benefits should be interpreted liberally to give life to the intentions thereof. Time and again, the Labor Code is specific in enunciating that in case of doubt in the interpretation of any law or provision affecting labor, such should be interpreted in favor of labor. 29 In the same way, the CBA and CBA provisions should be interpreted in favor of labor. In Marcopper Mining v. National Labor Relations Commission, 30 we pronounced:

Finally, petitioner misinterprets the declaration of the Labor Arbiter in the assailed decision that "when the pendulum of judgment swings to and fro and the forces are equal on both sides, the same must be stilled in favor of labor". While petitioner acknowledges that all doubts in the interpretation of the Labor Code shall be resolved in favor of labor, it insists that what is involved-here is the amended CBA which is essentially a contract between private persons. What petitioner has lost sight of is the avowed policy of the State, enshrined in our Constitution, to accord utmost protection and justice to labor, a policy, we are, likewise, sworn to uphold. EHTSCD In Philippine Telegraph & Telephone Corporation v. NLRC [183 SCRA 451 (1990)], we categorically stated that: When conflicting interests of labor and capital are to be weighed on the scales of social justice, the heavier influence of the latter should be counter-balanced by sympathy and compassion the law must accord the underprivileged worker. Likewise, in Terminal Facilities and Services Corporation v. NLRC [199 SCRA 265 (1991)], we declared: Any doubt concerning the rights of labor should be resolved in its favor pursuant to the social justice policy. IN VIEW WHEREOF, the Petition is DENIED. The Decision dated 27 February 2008 and Resolution dated 9 May 2008 of the Court of Appeals in CA-G.R. SP No. 101697, affirming the Resolution dated 20 November 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montao, which granted to Rolando P. Hortillano bereavement leave pay and other death benefits in the amounts of Four Thousand Nine Hundred Thirty-Nine Pesos (P4,939.00) and Eleven Thousand Five Hundred Fifty Pesos (P11,550.00), respectively, grounded on the death of his unborn child, are AFFIRMED. Costs against Continental Steel Manufacturing Corporation. SO ORDERED. DHSaCA [G.R. No. 39110. November 28, 1933.] ANTONIA L. DE JESUS, ET AL., plaintiffs-appellants, vs. CESAR SYQUIA, defendant-appellant. Jose Sotelo, for plaintiffs-appellants. Vicente J. Francisco, for defendant-appellant. SYLLABUS 1. PARENT AND CHILD; NATURAL CHILD; ACKNOWLEDGMENT OF PATERNITY. The acknowledgment of paternity required in No. 1 of article 135 of the Civil Code is satisfied by the production of more than one document of indubitable authenticity, containing, all together, the admission of the father recognizing a particular child as of his paternity, the admission of one writing being supplement by those of another. DECISION STREET, J p: This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her own right and by her mother, Pilar Marque, as next friend and representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the defendant, Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named plaintiff from breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children begotten by him with Antonia, and to pay for the maintenance of the three the amount of five hundred pesos per month, together with costs. Upon hearing the cause, after answer of the defendant, the trial court entered a decree requiring the defendant to recognize Ismael Loanco as his natural child and to pay maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other respects. From this judgment both parties appealed, the plaintiffs from so much of the decision as denied part of the relief sought by them, and the defendant from that feature of the decision which required him to recognize Ismael Loanco and to pay for his maintenance. At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of twenty-three years, and an unmarried scion of a prominent family in Manila, being possessed of a considerable property in his own right. His brother-inlaw, Vicente Mendoza is the owner of a barber shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in

this barber shop. Syquia was not long in making her acquaintance and amorous relations resulted, as a consequence of which Antonia was gotten with child and a baby boy was born on June 17, 1931. The defendant was a constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to the padre who was expected to christen the baby. This note was as follows: "Saturday, 1.30 p. m. "February 14, 1931 "REV. FATHER, "The baby due in June is mine and I should like for my name to be given to it. "CESAR SYQUIA" The occasion for writing this note was that the defendant was on the eve of his departure on a trip to China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing a paternal interest in the situation that had developed with her, and cautioning her to keep in good condition in order that "junior" (meaning the baby to be, "Syquia, jr.") might be strong, and promising to return to them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made by the defendant. To this end he employed his friend Dr. Crescenciano Talavera to attend at the birth, and made arrangements for the hospitalization of the mother in Saint Joseph's Hospital of the City of Manila, where she was cared for during confinement. When Antonia was able to leave the hospital, Syquia took her, with her mother and the baby, to a house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular family style, all household expenses, including gas and electric light, being defrayed by Syquia. In course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a second pregnancy, the defendant decamped, and he is now married to another woman. A point that should here be noted is that when the time came for christening the child, the defendant, who had charge of the arrangements for this ceremony, caused the name Ismael Loanco to be given to him, instead of Cesar Syquia, jr., as was at first planned. The first question that is presented in the case is whether the note to the padre, quoted above, in connection with the letters written by the defendant to the mother during pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code. Upon this point we have no hesitancy in holding that the acknowledgment thus show is sufficient. It is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and capable of being dealt with as a living person. The fact that it is as yet unborn is no impediment to the acquisition of rights. The problem here presented of the recognition of an unborn child is really not different from that presented in the ordinary case of the recognition of a child already born and bearing a specific name. Only the means and resources of identification are different. Even a bequest to a living child requires oral evidence to connect the particular individual intended with the name used. It is contended, however, in the present case that the words of description used in the writings before us are not legally sufficient to identify the child now suing as Ismael Loanco. This contention is not, in our opinion, well founded. The words of recognition contained in the note to the padre are not capable of two constructions. They refer to a baby then conceived which was expected to be born in June and which would thereafter be presented for christening. The baby came, and though it was in the end given the name of Ismael Loanco instead of Cesar Syquia, jr., its identity as the child which the defendant intended to acknowledge is clear. Any doubt that might arise on this point is removed by the letters Exhibits F, G, H, and J. In these letters the defendant makes repeated reference to junior as the baby which Antonia, to whom the letters were addressed, was then carrying in her womb, and the writer urged Antonia to eat with good appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged her to take good care of herself and of junior also. It seems to us that the only legal question that can here arise as to the sufficiency of the acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the Civil Code must be made in a single document or may be made in more than one document, of indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition can be made out by putting together the admissions of more than one document, supplementing the admission made in one letter by an admission or admissions made in another. In the case before us the admission of

paternity is contained in the note to the padre and the other letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law that the writing shall be addressed to one, or any particular individual. It is merely required that the writing shall be indubitable. The second question that presents itself in this case is whether the trial court erred in holding that Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by the conduct of the father himself, and that as a consequence, the defendant in this case should be compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here that our conclusion upon the first branch of the case that the defendant had acknowledged this child in the writings above referred to must be taken in connection with the facts found by the court upon the second point. It is undeniable that from the birth of this child the defendant supplied a home for it and the mother, in which they lived together with the defendant. This situation continued for about a year, and until Antonia became enceinte a second time, when the idea entered the defendant's head of abandoning her. The law fixes no period during which a child must be in the continuous possession of the status of a natural child; and the period in this case was long enough to evince the father's resolution to concede the status. The circumstance that he abandoned the mother and child shortly before this action was started is unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status shall continue forever, but only that it shall not be of an intermittent character while it continues. What has been said disposes of the principal feature of the defendant's appeal. With respect to the appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not satisfactorily proved, and we may add that the action for breach of promise to marry has not standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. This case exhibits none of the features necessary to maintain such an action. Furthermore, there is no proof upon which a judgment could be based requiring the defendant to recognize the second baby, Pacita Loanco. Finally, we see no necessity or propriety in modifying the judgment as to the amount of the maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point out that, as conditions change, the Court of First Instance will have jurisdiction to modify the order as to the amount of the pension as circumstances will require. The judgment appealed from is in all respects affirmed, without costs. So ordered. Malcolm, Abad Santos, Hull, Vickers and Butte, JJ., concur. Separate Opinions VILLA-REAL, J., dissenting: The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia has expressly acknowledged his paternity of the child Ismael Loanco in an indubitable writing of his; and secondly, that said child has enjoyed the uninterrupted possession of the status of a natural son of said defendant-appellant Cesar Syquia, justified by his direct acts, as required by article 135 of the Civil Code. The first conclusion is drawn from Exhibits C, F, G, H and J. Exhibit C, which is the handwriting of and signed by the defendant-appellant Cesar Syquia, reads as follows: "Sabado, 1.30 p. m. 14 febrero, 1931 "REV. PADRE: "La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura. "(Fdo.) CESAR SYQUIA" Exhibits F, G, H, and J, which are letters written by the said defendant-appellant Cesar Syquia to plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the following expressions:

Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo manches. Acuerdate muy bien Toni que es por ti y por junior volvere alli pronto. . . ." Exhibit G, Feb. 24, 1931: "Toni por favor cuida bien a junior eh? Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. . . ." Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . . ." Article 135, number 1, provides as follows: "ART. 135. "1. The father may be compelled to acknowledge his natural child in the following cases:

When an indisputable paper written by him, expressly acknowledging his paternity, is in existence."

Manresa (Codigo Civil, Vol. 1, page 596, 4th ed.), commenting on said article, says: "Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible admitir por otro medio la prueba de la paternidad natural. Entendemos que no, porque el articulo es terminante y la intencion de la ley mas terminante aun. Se establecio en la base 5.a que 'no se admitira investigacion de la paternidad sino en los casos de delito, o cuando exista escrito del padre en el que conste su voluntad indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o cuando medie posesion de estado, y esto mismo es lo que se ordena en el presente articulo. "No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo natural, aunque solo se limite a pedir alimentos, si no se funda en el reconocimiento expreso del padre hecho por escrito, en la posesion constante de estado de hijo natural o en sentencia firme recaida en causa por delito de violacion, estupro o rapto. El escrito y la sentencia habran de acompaarse a la demanda, y no puede admitirse otra prueba que la conducente a justificar que el escrito es indubitadamente del padre que en el reconozca su paternidad, o la relative a los actos directos del mismo padre o de su familia, que demuestren la posesion continua de dicho estado. Para la prueba de estos dos hechos podran utilizarse todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por cualquier otro concepto se dirija a la investigacion de la paternidad. xxx xxx xxx

"En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta hacerlo por incidencia; es indispensable que se consigne en el escrito la voluntad indubitada, clara y terminante del padre, de reconocer por suyo al hijo, deliberadamente expresada con este fin, como se ordena en la base 5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888; de suerte que el escrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener por objeto el reconocimiento deliberado y expeso del hijo natural. No llena, pues, ese objeto la manifestacion que incidentalmente haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el titulo y tratamiento de hijo en cartas familiares. Sin embargo, en cada caso decidiran los tribunales, y cuando el escrito por si solo no reconozca de un modo suficientemente expresivo la paternidad, servira de base para acreditar, en union con otros datos, la posesion constante del estado del hijo a los efectos de este articulo, y con arreglo a su numero 2." Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs. Municipality of Panay, 442 Phil., 643; Donado vs. Menendez Donado, 55 Phil., 861). The only exceptions to this rule are those established in article 135 of the Civil Code quoted above, the first of which is that the father may be compelled to acknowledge his paternity, "When an indubitable writing of his exists in which he expressly acknowledges his paternity." The writing that is required by said provision must be complete in itself and by itself, and must contain all the statements that are necessary to constitute a full and clear acknowledgment by a father of his paternity of a child, the general prohibition to investigate paternity would be violated. By the mere reading of all said letters, the one addressed to a priest and the others to the herein plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is the "creature that is coming in June", which the defendant-appellant, Cesar Syquia, says in the said letter addressed to the priest is his, nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good care of, as there is nothing in anyone of said letters from which it may be inferred that Antonia L. de Jesus

was enceinte at the time, that the "junior" was the being she was carrying in her womb, and that it was the "creature that it coming in June." To connect all these facts it was necessary to prove that Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result of such relations the woman became pregnant, and that she gave birth to a boy in June 1931. All this certainly constitutes an investigation of the paternity of Cesar Syquia of said child outside of the documents, which is prohibited by law. Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient to constitute a "indubitable writing of Cesar Syquia, in which he expressly acknowledges his paternity of the child Ismael Loanco," as required by number 1 of article 135 of the Civil Code. As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code provides: "ART. 135. xxx xxx The father may be compelled to acknowledge his natural child in the following cases: xxx

"2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself or that of his family." The majority decision bases its conclusion on the second point on Exhibits C, F, G, H and J and the following facts, as found by the lower court in its decision: "Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar Syquia llamo a su comprovinciano Dr. Crescenciano Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila, para que asistiera a aquella en su parto y a ese efecto llevo a la demandante Antonia L. de Jesus acompaado del Dr. Talavera al Hospital San Jose, de esta Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr. Talavera, que firmo el certificado de nacimiento Exhibit E. "Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con este y con la demandante Antonia L. de Jesus en la case No. 551 de la Calle Camarines, Manila, entregando a dicha demandante el dinero para los gastos de casa y el pago del consumo de gas y luz electrica, habiendo firmado el contrato para el suministro del fluido electrico en dicha case." Exhibits C, F, G, H, and J, are inadmissible in evidence for the purpose of showing that Ismael Loanco has enjoyed the continuous possession of the status of a natural child, because being of prior date to the birth of said child they can not be considered as direct acts of Cesar Syquia showing possession of the status of natural child, as no human being can enjoy such possession until he be born with legal capacity for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738; Granados vs. Leynes, G. R. No. 31224, promulgated September 9, 1929, not reported). It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael when it was baptized, so that the name of its mother, Loanco, had to be given to it. The facts which were found by the court below to have been proved by the testimony of the witnesses during the trial, are not sufficient to constitute the uninterrupted possession of the status of Ismael Loanco as natural child of said Cesar Syquia, in the light of the following authorities: In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said: ". . . . ourselves to the acts proved to have been performed by Don Telesforo, we find that he visited the mother of the plaintiff; that he paid money for her support; that he paid money for the support of the plaintiff; that he told one witness that the plaintiff was his son; that the plaintiff called him 'Papa,' and that Don Telesforo answered to this designation; that when the plaintiff visited Don Telesforo he kissed his hand; that Don Telesforo wrote letter to him; that he paid his fees for instruction in school, and secured him a position in a commercial house. xxx xxx xxx

"All these facts taken together are not sufficient to show that plaintiff possessed continuously the status of a natural child. They may have a tendency to show that Don Telesforo was the father of the child, but that is not sufficient. It is not sufficient

that the father recognize the child as his. By the express terms of article 135 that recognition must appear either in writing, made by the father, or it must appear in acts which show that the son has possessed continuously the status of a natural child. No recognition by the father of the child which comes short of the requirements of these two paragraphs is sufficient. It must appear that it was the intention of the father to so recognize the child as to give him that status, and that the acts performed by him were done with that intention." Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of Spain says: "En la sentencia de 5 de julio de 1906 declarase que para justificar la posesion de estado de hijo natural se requiere que los actos sean de tal naturaleza que releven, a la vez que el convencimiento de la paternidad, la voluntad ostensible de tener y tratar al hijo como tal en las relaciones sociales y de la vida, y esto no accidentalmente, sino continuadamente, porque en tal supuesto los actos tienen el mismo valor que el reconocimiento expreso. "En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el hecho de que dos nodrizas criaron a otros tantos nios, sufragando el gasto el demandado, quien ademas iba a casa de la demandante, los besaba, los llamaba hijos y encargaba para los mismos el mayor cuidado; el de que subvenia a las necesidades de la madre y de los seis hijos que la nacieron, el primero de los cuales se llamaba como el padre; y el de que los porteros de la casa donde vivio la actora sabian que el finado visitaba a esta, se lamentaba de la much familia que tenia y era tenido en el concepto publico como padre de los menores, no son suficentes para fundar la declaracion de paternidad, pues no es legal confundir actos que puedan revelar mas o menos la presuncion o convencimiento en que una persona este de su paternidad con relacion a hijos naturales, con los que demuestren su proposito de poner a estos hijos en la posesion de tal estado." It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant Cesar Syquia cannot be compelled to acknowledge the child Ismael Loanco as his natural son because there exists not an indubitable writing of his in which he expressly acknowledges his paternity of said child, and because the said child has not enjoyed the uninterrupted possession of the status of a natural child of the said defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of the Civil Code. The decision appealed from should, therefore, be reversed and the complaint dismissed. [G.R. No. L-770. April 27, 1948.]

ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGANTE, deceased, respondent. Angel Limjoco, jr. and Delfin L. Gonzales, for petitioner. Bienvenido A. Tan, for respondent. SYLLABUS 1. PUBLIC SERVICE COMMISSION; CERTIFICATE OF PUBLIC CONVENIENCE; RIGHT OF ESTATE OF DECEDENT TO PROSECUTE APPLICATION; CASE AT BAR. If P. O. F. had not died, there can be no question that he would have had the right to prosecute his application for a certificate of public convenience to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 monthly. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid light of P. O. F. to prosecute said application to its final conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for such a right was property despite the possibility that in the end the commission might have denied the application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (p. 3) that a certificate of public convenience once granted "as a rule, should descend to his estate as an asset." Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. 2. ID.; ID.; ID.; ESTATE OF DECEDENT, A PERSON; CASE AT BAR. Within the philosophy of the present legal system and within the framework of the constitution, the estate of P. O. F. should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. An injustice would ensue from the opposite course. 3. ID.; ID.; ID.; ID.; CITIZENSHIP OF DECEDENT EXTENDED TO HIS ESTATE; CASE AT BAR. If by legal fiction the personality of P. O. F. is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, there is no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors, and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if F. had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of his personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death, to the loss of the investment amounting to P35,000, which he already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission to this court. DECISION HILADO, J p: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-1/2) tons in the municipality of San Juan; that the original applicant Pedro 0. Fragante was a Filipino citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended, a certificate of public convenience be issued to the Intestate Estate of

the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one half tons (2-1/2) in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34). Petitioner makes four assignments of error in his brief as follows: "1. "2. The decision of the Public Service Commission is not in accordance with law. The decision of the Public Service Commission is not reasonably supported by evidence.

"3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. "4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant." (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 monthly. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its final conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for such a right was property despite the possibility that in the end the commission might have denied the application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that a certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragante's undoubted right to apply for and acquire the desired certificate of public convenience the evidence established that the public needed the ice plant was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367), the present Chief Justice of this Court draws the following conclusion from the decisions cited by him: "Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (underscoring supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . .". It is true that a proceeding upon an application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees, or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line," and on page 748 of the same volume we read: "However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed." (Italics supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p. 5325), states the following doctrine in the jurisdiction of the State of Indiana: "As the estate of a decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77." The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: ". . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of a decedent is a person in legal contemplation. 'The word "person", says Mr. Abbot, 'in its legal signification, is a generic term, and includes artificial as well as natural persons,' 2 Abb. Dict. 271; Douglas vs. Pacific, etc., Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port (Ala.) 404. It is said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. Examples are the estate of a bankrupt or deceased person.' 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of the person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a

disposition of the assets to be properly made, and, although natural persons as heirs, devisees, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since he cannot be presumed to have known who those persons were, or what was the nature of their respective interests. The fraudulent intent is against the artificial person, the estate, and not the natural persons who have direct or contingent interests in it." (107 Ind. 54, 55, 6 N. E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragante is considered a "person", for the quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of the heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: ". . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to the plaintiffs in the amount of P245,804.69 . . .." Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not be even of his flesh and blood the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person. Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, co-partnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of a deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said: ". . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . .."

Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the constitution, the estate of Pedro O. Fragante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of his personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death, to the loss of the investment amounting to P35,000, which he had already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission to this Court. We can perceive no valid reason for holding that within the intent of the Constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding. Pedro O. Fragante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered. Moran, C. J., Paras, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur. Paras, J., I hereby certify that Mr. Justice Feria voted with the majority. Separate Opinions PERFECTO, J., dissenting: Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8 of Article XIV of the Constitution which provides.

"No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the Philippines, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. No franchise or right shall be granted to any individual, firm, or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the public interest so requires." The main question in this case is whether the estate of Pedro O. Fragante fulfills the citizenship requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O. Fragante fulfill the citizenship requirement of the law. The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs. They inherit and replace the deceased at the very moment of his death. As there are procedural requisites for their identification and determination that need time for their compliance, a legal fiction has been devised to represent them. That legal fiction is the estate, a liquid condition in process of solidification. The estate, therefore, has only a representative value. What the law calls estate is, as a matter of fact, intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to the citizenship of the heirs of Fragante. There is nothing in the record to show conclusively the citizenship of the heirs of Fragante. If they are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they are not, it should be reversed. Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien. We are of opinion that the citizenship of the heirs of Fragante should be determined by the Commission upon evidence that the party should present. It should also determine the dummy question raised by petitioner. We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946, be set aside and that the Commission be instructed to receive evidence on the above factual questions and render a new decision accordingly. [G.R. No. L-27956. April 30, 1976.] DIONISIO DUMLAO, in his own behalf and in his capacity as Administrator of the Testate Estate of the late Pedro Oria; FAUSTA DUMLAO, AMADO DUMLAO, and BENJAMIN DUMLAO, plaintiffs-appellants, vs. QUALITY PLASTIC PRODUCTS, INC., defendant-appellee. Castillo & Castillo for plaintiffs-appellants. Eugenio T. Estavillo for defendant-appellee. SYNOPSIS To satisfy the judgment debt in favor of appellees, the trial court ordered the foreclosure of the bond and auction sale of the real properties given as security. It turned out that Pedro Oria, one of the bondsmen whose land was sold had already died long before the filing of the case, and that summons and copy of the complaint were not served on him but on the principal in the bond who acknowledged the service for himself and his co-defendants. Oria's heirs, appellants herein, sued appellee to annul the judgment against Oria on the ground of lack of jurisdiction. Appellee claimed that appellants were estopped from questioning the jurisdiction of the court over the person of deceased because they were aware of the action against the principal in the bond and his sureties. The trial court ruled that it had acquired jurisdiction over the deceased. On appeal, the Supreme Court held that summons cannot be served upon a deceased litigant since a person's juridical capacity, which is his fitness to be the subject of legal relations is lost through death; that since no valid service of summons can be effected, jurisdiction over him cannot be acquired; and that the principle of estoppel has no application to this case. SYLLABUS

1. COURTS; JURISDICTION; JUDGMENT RENDERED WITHOUT JURISDICTION NULL AND VOID. A judgment rendered against a against a deceased defendant who, being already in the other world, was never served with a summons is a patent nullity since the court did not acquire jurisdiction over his person. 2. ID.; ID.; ID.; COURT CANNOT ACQUIRE JURISDICTION OVER A DEAD LITIGANT. A court cannot acquire jurisdiction over the person of a party-litigant who is already dead because he no longer has a civil personality. A man's juridical capacity which is the fitness to be the subject of legal relations is lost through death; hence, no valid service of summons can be effected upon him which will vest jurisdiction upon the court over his person. 3. ID.; ID.; ID.; SURVIVING DEFENDANT'S COUNSEL CANNOT VALIDLY APPEAR FOR A DEAD CO-DEFENDANT. The lower court's ruling that since the surviving defendant's counsel also appeared for the defendant, there was in effect a voluntary appearance which enabled the court to acquire jurisdiction over said deceased defendant was contemplated in Section 234, Rule 14 of the Revised Rules of the Court is erroneous, because the surviving defendant's counsel cannot validly appear for a dead co-defendant. 4. ID.; ID.; ID.; ESTOPPEL DOES NOT APPLY WHERE NO VALID JURISDICTION IS ACQUIRED. The fact that the heirs of deceased defendant were aware of the action against the latter, they are not estopped from questioning the court's jurisdiction where no valid summons was served on said deceased. The principle of estoppel cannot apply where it appears that no valid jurisdiction had been acquired by the trial court 5. ATTORNEY'S FEES; GOOD FAITH A GROUND FOR EXEMPTION TO PAY ATTORNEY'S FEES. From the fact that appellants had to sue appellee in order to annul the judgment against their predecessor, it does not follow that they are entitled to claim attorney's fees against appellee. The parties herein agreed in their stipulation of facts that appellee was unaware of the death of appellants' predecessor. Appellants in effect conceded that appellee acted in good faith in joining their predecessor as co-defendant. DECISION AQUINO, J p: On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case No. T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria, Santiago Laurencio, Marcelino Sumalbag and Juana Darang to pay solidarily Quality Plastic Products, Inc. the sum of P3,667.03 plus the legal rate of interest from November, 1958. The lower court directed that in case the defendants failed to pay the said amount before its decision became final, then Quality Plastic Products, Inc. "is hereby authorized to foreclose the bond, Exhibit A, in accordance with law, for the satisfaction of the judgment." (Under that bond the four sureties bound themselves to answer solidarily for the obligations of the principal, Vicente Soliven and certain real properties of the sureties were "given as security for" their undertaking). Upon defendants' failure to pay the amount of the judgment and after the decision had become final, the lower court, on motion of Quality Plastic Products, Inc., ordered the "foreclosure" of the surety bond and the sale at public auction of the land of Pedro Oria which he had given as security under the bond. Oria's land, which was covered by Original Certificate of Title No. 28732 and has an area of nine and six-tenths hectares, was levied upon and sold by the sheriff at public auction on September 24, 1962. The sale was confirmed by the lower court in its order of November 20, 1962. It turned out that Oria died on April 23, 1959 or long before June 13, 1960 when the action was filed. Oria's death was not known to Quality Plastic Products, Inc. Nor were the representatives of Quality Plastic Products, Inc. aware that in the same Tayug court Special Proceeding No. T-212, Testate Estate of the deceased Pedro Oria, was pending. The summons and copies of the complaint for the five defendants in Civil Case No. T-662 had been personally served on June 24, 1960 by a deputy sheriff on Soliven, the principal in the bond, who acknowledged such service by signing on the back of the original summons in his behalf and again signing for his co-defendants. On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all testamentary heirs in Oria's duly probated will, sued Quality Plastic Products, Inc., also in the Tayug court for the annulment of the judgment against Oria and the execution against his land (Dionisio Dumlao also sued in his capacity as administrator of Oria's testate estate).

The ground for annulment was lack of jurisdiction over the person of the deceased Oria (Civil Case No. T-873). It was only when Quality Plastic Products, Inc. received the summons in Civil Case No. T-873 that it learned that Oria was already dead at the time the prior case, Civil Case No. T-662, was filed. Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware of the suit against Soliven and his sureties and that the said heirs were estopped to question the court's jurisdiction over Oria. After hearing the lower court held that it acquired jurisdiction over Soliven and the other defendants in Civil Case No. T-662 by reason of their voluntary appearance. It reasoned out that Soliven acted in bad faith because he did not apprise the court that Oria was dead. It specifically ruled that "it had acquired jurisdiction over the person" of Oria and that the judgment was valid as to him. From that decision the plaintiffs appealed. The four assignments of error of appellants Dumlao may be boiled down to the issue as to the validity of the lower court's judgment against the deceased Pedro Oria who, being already in the other world, was never served with summons. There is no difficulty in resolving that issue. Since no jurisdiction was acquired over Oria, the judgment against him is a patent nullity (Ang Lam vs. Rosillosa and Santiago, 86 Phil. 447; Asuncion vs. Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil. 4). As far as Oria was concerned, the lower court's judgment against him in Civil Case No. T-662 is void for lack of jurisdiction over his person. He was not, and he could not have been, validly served with summons. He had no more civil personality. His juridical capacity, which is the fitness to be the subject of legal relations, was lost through death. (Arts. 37 and 42, Civil Code). The lower court erred in ruling that since Soliven's counsel also appeared as counsel for Oria, there was a voluntary appearance which enabled the court to acquire jurisdiction over Oria, as contemplated in section 23, Rule 14 of the Revised Rules of Court. Soliven's counsel could not have validly appeared for a dead codefendant. Estoppel has no application to this case. But from the fact that appellants Dumlao had to sue Quality Plastic Products, Inc. in order to annul the judgment against Oria, it does not follow that they are entitled to claim attorney's fees against that corporation. The parties herein agreed in their stipulation of facts that Quality Plastic Products, Inc. was unaware of Oria's death. Appellants Dumlao in effect conceded that the appellee acted in good faith in joining Oria as a codefendant. WHEREFORE, the lower court' decision is reversed and set aside. Its judgment in Civil Case No. T-662 against Pedro Oria is declared void for lack of jurisdiction. The execution sale of Oria's land covered by OCT No. 28732 is also void. No costs. SO ORDERED.EN BANC [G.R. No. 85140. May 17, 1990.] TOMAS EUGENIO, SR., petitioner, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, RAYMUNDO VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents. [G.R. No. 86470. May 17, 1990.] TOMAS EUGENIO, petitioner-appellant, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees. Maximo G. Rodriguez for petitioner. Erasmo B. Damasing and Oliver Asis Improso for respondents. DECISION

PADILLA, J p: On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No. 88-55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order. LLjur The records disclose the following: Unaware of the death on 28 August 1988 of Vitaliana Vargas (Vitaliana, for brevity), her full blood brothers and sisters, herein private respondents (Vargases, for brevity) filed on 27 September 1988, a petition for habeas corpus before the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio. The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner, he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he (petitioner) is the Supreme President and Founder. Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August 1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy. Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all cases of illegal confinement or detention of a live person. Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of the habeas corpus petition), private respondents (Vargases) alleged that petitioner Tomas Eugenio, who is not in any way related to Vitaliana was wrongfully interferring with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for resolution on 21 October 1988. In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and examined by a duly authorized government pathologist. 4 Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that: "It should be noted from the original petition, to the first amended petition, up to the second amended petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then this Court is being prayed to declare the petitioners as the persons entitled to the custody, interment and/or burial of the body of said deceased. The Court, considering the circumstance that Vitaliana Vargas was already dead on August 28, 1988 but only revealed to the Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction over the nature and subject matter of this case because it may entertain this case thru the allegations in the body of the petition on the determination as to who is entitled to the custody of the dead body of the late Vitaliana Vargas as well as the burial or interment thereof, for the reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows:

'Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) xxx (5) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; xxx xxx

In all actions involving the contract of marriage and marital relations;

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasijudicial functions: xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129." Thereafter, the court a quo proceeded as in ordinary civil cases and, in due course, rendered a decision on 17 January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action for custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the Court first dismissing the original petition for habeas corpus. cdrep Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of Rule 135 of the Rules of Court, 8 Articles 305 and 308 in relation to Article 294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the decision stated: ". . . By a mere reading of the petition the court observed that the allegations in the original petition as well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty and if she were dead then relief was prayed for the custody and burial of said dead person. The amendments to the petition were but elaborations but the ultimate facts remained the same, hence, this court strongly finds that this court has ample jurisdiction to entertain and sit on this case as an action for custody and burial of the dead body because the body of the petition controls and is binding and since this case was raffled to this court to the exclusion of all other courts, it is the primary duty of this court to decide and dispose of this case. . . ." 10 Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body, (for purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the award. Since there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who was merely a common law spouse, the latter being himself legally married to another woman. 11 On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically identical to those raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the issuance of an injunction to maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without further pleadings. Between the two (2) consolidated petitions, the following issues are raised:. 1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of the dead body of a 25 year old female, single, whose nearest surviving claimants are full blood brothers and sisters and a common law husband. 2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for custody/possession/authority to bury the deceased/recovery of the dead. 3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family Code) which states:

'ART. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) xxx From the spouse; xxx xxx'

Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or petition; but the allegations therein determine the nature of the action, and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. 13 When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the petition complies with the legal requirements and its averments make a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in the petition. 15 In Macazo and Nuez vs. Nuez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother to obtain custody of a minor sister, stating: "All these circumstances notwithstanding, we believe that the case should not have been dismissed. The court below should not have overlooked that by dismissing the petition, it was virtually sanctioning the continuance of an adulterous and scandalous relation between the minor and her married employer, respondent Benildo Nuez, against all principles of law and morality. It is no excuse that the minor has expressed preference for remaining with said respondent, because the minor may not chose to continue an illicit relation that morals and law repudiate. xxx xxx xxx

"The minor's welfare being the paramount consideration, the court below should not allow the technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving the child full protection. Even in a habeas corpus proceeding the court had power to award temporary custody to the petitioner herein, or some other suitable person, after summoning and hearing all parties concerned. What matters is that the immoral situation disclosed by the records be not allowed to continue." 17 After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings, amendment of the petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and should be liberally allowed in furtherance of justice in order that every case may so far as possible be determined on its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo had to resolve. Cdpr Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally "married" in common law jurisdictions but not in the Philippines. 19

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

"(b) If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within the Philippines and in possession of sufficient means to defray the necessary expenses." WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs. SO ORDERED. EN BANC [G.R. Nos. L-5426-28. May 29, 1953.] RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent. Agrava, Peralta & Agrava for petitioner. Leonardo Abola for respondent. SYLLABUS 1. SURVIVORSHIP; EVIDENCE; WHERE FACTS ARE CLEAR PRESUMPTIONS CANNOT LIE. On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses of JN, Sr. and AJ, together with their three daughters, P, C, and N, and their son JN, Jr. and the latter's wife, AC, sought refuge in the ground floor of the building known as the German Club, at the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell on the ground near the entrance; and JN. Sr. and his son decided to abandon the premises to seek a safer haven. They could not convince AJ, who refused to join them and so JN, Sr., his son JN, Jr., and the latter's wife, AC and a friend and former neighbor FL, dashed out of the burning edifice. As they came out JN, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside, presumably including AJ: JN, Sr., Mrs., JN, Jr. and FL managed to reach an air raid shelter nearby, and stayed there about three days, until February 10, 1945, when they were forced to leave the shelter because the shelling tore it

open. They fled toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese patrols, who fired at the refugees, killing JN, Sr. and his daughter-in-law. At the time of the massacre, JN, Sr. was at the age of 70; his wife was about 67 years old; JN, Jr. about 30; P was two or three years older than her brother; while the other sisters C and N were between 23 and 25. With this, three proceedings were instituted, which were jointly heard, for the summary settlement of the estates of the deceased, by the petitioner, an acknowledged natural child of AJ and adopted child of the deceased spouses, and by the respondent son of JN, Sr. by first marriage. The controversy relative to succession is focused on the question whether the mother, AJ, died before her son JN, Jr. or vice versa. The trial court found the mother to have survived her son but the appellate court found otherwise. Held: The facts are quite adequate to solve the problem of survivorship between AJ and JN, Jr., and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by FL, a fair and reasonable inference can be arrived at, namely: that JN, Jr., died before his mother. The presumption that AJ died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. The opposite theory that the mother outlived her son is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by which civil cases are decided, this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired was charged with shot, but that the bird might have died in consequence of fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.) 2. ID.; EVIDENCE OF SURVIVORSHIP. The evidence of survivorship need not be direct; it may be indirect, circumstantial or inferential. Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rules of preponderance of evidence controls. 3. ID.; ID.; PARTICULAR CIRCUMSTANCE REQUIRED. Section 68 (ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but it may be plain enough to justify a finding of fact." (In re Bhenko's Estate, 4 N. Y. S. 2d. 427, citing Tortera vs. State of New York, 269 N. Y. 199 N. E. 44; Hart vs. Hudson River Bridge Co., 80 N. W. 622.) 4. EVIDENCE; TESTIMONY; UNDISPUTED EVIDENCE AND CONTRADICTED EVIDENCE, DISTINGUISHED. Undisputed evidence is one thing, and contradicted evidence another. An incredible witness does not cease to be such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court. (1 Moran Comm. on the Rules of Court, 3rd Ed. 855, 857.) 5. ID.; INTERMEDDLING WITH COURT DECISIONS; SUBSTANTIAL EVIDENCE. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. But substantial evidence is meant real evidence or at least evidence about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general rules. DECISION TUASON, J p: These three proceedings were instituted in the Court of First Instance of Manila for the summary settlement of the estates of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the Court of Appeals, whose decision, modifying that of the Court of First Instance, in turn was elevated to the Supreme Court for review. The main question presented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of these persons to have occurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of Appeals

concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived his mother. It is this modification of the lower court's finding which is now being contested by the petitioner. The importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it radically affects the right of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of the deceased spouses, and of Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first marriage. The facts, which are not disputed, are outlined in the statement in the decision of the Court of Appeals as follows: "On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club, at the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell on the ground near the entrance; and Joaquin Navarro, Sr. and his son decided to abandon the premises to seek a safer haven. They could not convince Angela Joaquin, who refused to join them; and so Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife, Adela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin. "Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby, and stayed there about three days, until February 10, 1945, when they were forced to leave the shelter because the shelling tore it open. They fled toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese patrols, who fired at the refugees, killing Joaquin Navarro, Sr. and his daughter-in-law. "At the time of the massacre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old; Joaquin Navarro, Jr. about 30; Pilar Navarro was two or three years older than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and 25." The Court of Appeals' findings were all taken from the testimony of Francisco Lopez, who miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of survivorship is uncertain and insufficient" and the statutory presumption must be applied. The Appellate Court's reasoning for its conclusion is thus stated: "It does not require argument to show that survivorship cannot be established by proof of the death of only one of the parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly after leaving the German Club in the company of his father and the witness, and that the burning edifice entirely collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant her son turned his back to her, to dash out of the Club, until he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German Club; but she could have died almost immediately after, from a variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for certain. No evidence is available on the point. All we can decide is that no one saw her alive after her son left her side, and that there is no proof when she died. Clearly, this circumstance alone cannot support a finding that she died later than her son, and we are thus compelled to fall back upon the statutory presumption. Indeed, it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. Hence, the son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the occasion of the deaths, which is identical for all of them: the battle for the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity, could not have overlooked that a variety of causes of death can (and usually do) operate in the course of combats. During the same battle, some may die from wounds, others from gases, fire, or drowning. It is clear that the law disregards episodic details, and treats of the battle as an overall cause of death in applying the presumption of survivorship. "We are thus led to the conclusion that the order in which the members of the Navarro-Joaquin family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr." Much space in the briefs is taken in a discussion of whether section 334 (37) of Act No. 190, now section 69(ii) of Rule 123 of the Rules of Court, has repealed article 33 of the Civil Code of 1889, now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time. The point is not of much if any relevancy and will be left open for consideration when absolute necessity therefor arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be presently set forth.

Rule 123, section 69(ii) of the Revised Rules of Court, reads: "When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not (1) shown who died first, and there are no (2) particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules: xxx xxx xxx

Article 33 of the Civil Code of 1889 is of the following tenor: "Whenever a doubt arises as to which was the first to die of the two or more persons who would inherit one from the other, the person who alleges the prior death of either must prove the allegation; in the absence of proof the presumption shall be that they died at the same time, and no transmission of rights from one to the other shall take place." Both provisions, as their language plainly implies, are intended as a substitute for facts, and so are not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, "the situation which it represents is one in which the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of death . . . " . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the law of fairness appropriate to the different legal situations that arises." (IX Wigmore on Evidence, 1940 ed., 483.) In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited and applied with respect to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec. 1936 of the California Code of Civil Procedure," the Supreme Court of California said: "When the statute speaks of 'particular circumstances from which it can be inferred' that one died before the other, it means that there are circumstances from which the fact of death by one before the other may be inferred as a rational conclusion from the facts proven. The Statute does not mean circumstances which would show, or which would tend to show, probably that one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When, by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the statutory presumption, the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand Lodge vs. Miller, supra, 'if the matter is left to probability, then the statute settles the presumption.'" It is manifest from the language of section 69(ii) of Rule 123 and of that of the foregoing decision that the evidence of survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known or knowable,

from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls. Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court as "disinterested and trustworthy" and by the Court of Appeals as "entitled to credence." Lopez testified: "Q. You said you were also hit at that time as you leave the German Club with Joaquin Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife? A. Yes, sir. "Q. "Q. Did you fall? A. I fell down. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

"Q. When the German Club collapsed where were you? A. We were about 15 meters away from the building but I could see what was going on." xxx xxx xxx

"Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of Joaquin Navarro, Jr. and the collapse of the German Club? A. Yes sir, I could not say exactly, Occasions like that, you know, you are confused. "Q. "Q. xxx "Q. Could there (have) been an interval of an hour instead of fifteen minutes? A. Possible, but not probable. Could it have been 40 minutes? A. Yes, sir, about 40 minutes." xxx xxx

You also know that Angela Joaquin is already dead? A. Yes, sir.

"Q. Can you tell the Honorable Court when did Angela Joaquin die? A. Well, a few minutes after we have dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr." xxx xxx xxx

"Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive evidence to the fact that Angela Joaquin also died? A. Yes, sir, in the sense that I did not see her actually die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that building so I presumed she died there." xxx xxx xxx

"Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro Jr. and the latter's wife? A. Because the Japanese had set fire to the Club and they were shooting people outside, so we thought of running away rather than be roasted." xxx xxx xxx

"Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion, and Natividad, were already wounded? A. To my knowledge, yes. "Q. They were wounded? A. Yes, sir.

"Q. Were they lying on the ground or not? A. On the ground near the entrance, because most of the people who were shot by the Japanese were those who were trying to escape, and as far as I can remember they were among those killed."

xxx

xxx

xxx

"Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? A. That is what I think, because those Japanese soldiers were shooting the people inside especially those trying to escape." xxx xxx xxx

"Q. And none of them was shot except the three girls, is that what you mean? A. There were many people shot because they were trying to escape." xxx xxx xxx

"Q. How come that these girls were shot when they were inside the building, can you explain that? A. They were trying to escape probably." It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very remote. True, people in the building were also killed but these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gun fire. This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter- in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to Mr. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela Joaquin was still alive when her son expired. The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have been killed. All these causes are speculative, and the probabilities, in the light of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family, she could not have kept away from protective walls. Besides, the building had been set on fire to trap the refugees inside, and there was no necessity for the Japanese to waste their ammunition except upon those who tried to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the brief space of five seconds between her son's departure and his death. It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but it may be plain enough to justify a finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y. 622.) As the California courts have said, it is enough that "the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must often reason," says one author, "according to probabilities, drawing an inference that the

main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing." That conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. In conclusion, the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. The opposite theory - that the mother outlived her son - is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by which civil cases are decided, this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.) It is said that that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed, involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of Court, 3rd Ed. 856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to be such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court." The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of law. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. By substantial evidence is meant real evidence or at least evidence about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general rule. We are constrained to reverse the decision under review, and hold that the distribution of the decedents' estates should be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon the question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs. Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

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