G.R. No. L-63915 December 29, 1986 LORENZO M. TA;ADA, 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. RESOLUTION

CRUZ, J.: Due process was invoked by the petitioners in demanding the disclosure of 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dispositive portion as follows: WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.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. 1 Specifically, they ask the following questions: 1. What is meant by "law of public nature" or "general applicability"? 2. Must a distinction be made between laws of general applicability and laws which are not? 3. What is meant by "publication"? 4. Where is the publication to be made? 5. 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. 2 In the Comment 3 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 internal 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 the legislature could validly provide that a law e 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 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. 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 t 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. 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 a 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. 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 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 Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature. 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. SO ORDERED. Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

G.R. No. 159747

April 13, 2004

GREGORIO B. HONASAN II, petitioner, vs. THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.: On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part: 2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II 3. 4. The said crime was committed as follows: 4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint. 4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe is the only program that would solve the ills of society. . . . (Emphasis supplied). The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit: 1. That I am a member of the Communication Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major; 2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it; 4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest; 5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located somewhere in San Juan, Metro Manila; 6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns within the framework of NRP and we were likewise served with dinner; 7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan; 8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan; 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like; 10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect." After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions; 11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities. 12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed; 13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did; 14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "kaya nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place; 16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community; 17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacaang Compound for "D-DAY", my task is to switch off the telephone PABX that serves the Malacaang complex. I told him that I could not do it. No further conversation ensued and he left; 18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4th meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I"; 19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied) The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation. On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion. Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply. On September 10, 2003, the DOJ Panel issued an Order, to wit: On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion. The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case. In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and controverting evidence on or before September 23, 2003.1 Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the

aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation. Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments. The Court heard the parties in oral arguments on the following issues: 1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner; 2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and 3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation. After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are: 1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner. 2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95001 to conduct the preliminary investigation involving Honasan. 3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication, hence null and void. 4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the jurisdiction to conduct the preliminary investigation. 5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation. 6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases. The arguments of respondent DOJ Panel are: 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513. 2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office. 4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion. The arguments of respondent Ombudsman are: 1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249. 2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure. 3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770. 4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general. The Court finds the petition without merit. The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides: Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system;

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions: (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis supplied) and Section 1 of P.D. 1275, effective April 11, 1978, to wit: SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied) Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. and Mabanag vs. Lopez Vito.2 The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz: SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides: (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides: Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation of such cases. . (Emphasis supplied) Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit: A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both. For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases. The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied) It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court. In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared: A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive.3 Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case: Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial court. In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied) A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus: As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]). The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we. The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of

their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770). ......... Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and honest investigative body, like the Ombudsman, is greatest.6 At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and the Deloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate. In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary and not an exclusive authority, thus: The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any illegal act or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or amended information. In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the investigation.9 (Emphasis supplied) In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held: The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former.

In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux. These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861. The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows: "SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows: 'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise: '(a) Exclusive original jurisdiction in all cases involving: ... (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporation, whether simple or complexed with other crimes, where the penalty prescribed by law is higher that prision correccional or imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court." A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and the penalty prescribed be higher then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11 Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate. It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same class of persons or things, or object, or cover the same specific or particular subject matter. It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes

relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied) R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office. In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage. Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit: OMB-DOJ JOINT CIRCULAR NO. 95-001 Series of 1995 TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE. SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS. x-------------------------------------------------------------------------------------------------------x In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized prosecutors of the ombudsman. Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees: 1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman. 2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality. 3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. 4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. Manila, Philippines, October 5, 1995. (signed) TEOFISTO T. GUINGONA, JR. Secretary Department of Justice (signed) ANIANO A. DESIERTO Ombudsman Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ. Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit: SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied) confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy. Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him.

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against public officers and employees. To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit: Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published. As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty. What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: 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. (at page 454. emphasis supplied) OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95001 DOES NOT regulate the conduct of persons or the public, in general. Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published.14 Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him.

The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the presence of other respondents in the subject complaint. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED. Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, J., joins J. Ynares-Santiago. Vitug, J., see separate dissenting opinion. Quisumbing, J., joins the dissent. Ynares-Santiago, J., see separate dissenting opinion. Sandoval-Gutierrez, J., see dissenting opinion.

[G.R. No. 105364*. June 28, 2001] PHILIPPINE VETERANS BANK EMPLOYEES UNION-N.U.B.E. and PERFECTO V. FERNANDEZ, petitioners, vs. HONORABLE BENJAMIN VEGA, Presiding Judge of Branch 39 of the REGIONAL TRIAL COURT of Manila, the CENTRAL BANK OF THE PHILIPPINES and THE LIQUIDATOR OF THE PHILIPPINE VETERANS BANK, respondents DECISION
KAPUNAN, J.:

May a liquidation court continue with liquidation proceedings of the Philippine Veterans Bank (PVB) when Congress had mandated its rehabilitation and reopening? This is the sole issue raised in the instant Petition for Prohibition with Petition for Preliminary Injunction and application for Ex Parte Temporary Restraining Order. The antecedent facts of the case are as follows: Sometime in 1985, the Central Bank of the Philippines (Central Bank, for brevity) filed with Branch 39 of the Regional Trial Court of Manila a Petition for Assistance in the Liquidation of the Philippine Veterans Bank, the same docketed as Case No. SP-32311. Thereafter, the Philipppine Veterans Bank Employees Union-N.U.B.E., herein petitioner, represented by petitioner Perfecto V. Fernandez, filed claims for accrued and unpaid employee wages and benefits with said court in SP-32311.i[1] After lengthy proceedings, partial payment of the sums due to the employees were made. However, due to the piecemeal hearings on the benefits, many remain unpaid.ii[2] On March 8, 1991, petitioners moved to disqualify the respondent judge from hearing the above case on grounds of bias and hostility towards petitioners.iii[3] On January 2, 1992, the Congress enacted Republic Act No. 7169 providing for the rehabilitation of the Philippine Veterans Bank.iv[4] Thereafter, petitioners filed with the labor tribunals their residual claims for benefits and for reinstatement upon reopening of the bank.v[5] Sometime in May 1992, the Central Bank issued a certificate of authority allowing the PVB to reopen.vi[6] Despite the legislative mandate for rehabilitation and reopening of PVB, respondent judge continued with the liquidation proceedings of the bank. Moreover, petitioners learned that respondents were set to order the payment and release of employee benefits upon motion of another lawyer, while petitioners claims have been frozen to their prejudice. Hence, the instant petition.

Petitioners argue that with the passage of R.A. 7169, the liquidation court became functus officio, and no longer had the authority to continue with liquidation proceedings. In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a Temporary Restraining Order enjoining the trial court from further proceeding with the case. On June 22, 1992, VOP Security & Detective Agency (VOPSDA) and its 162 security guards filed a Motion for Intervention with prayer that they be excluded from the operation of the Temporary Restraining Order issued by the Court. They alleged that they had filed a motion before Branch 39 of the RTC of Manila, in SP-No. 32311, praying that said court order PVB to pay their backwages and salary differentials by authority of R.A. No 6727, Wage Orders No. NCR-01 and NCR-01-Ad and Wage Orders No. NCR-02 and NCR-02-A; and, that said court, in an Order dated June 5, 1992, approved therein movants case and directed the bank liquidator or PVB itself to pay the backwages and differentials in accordance with the computation incorporated in the order. Said intervenors likewise manifested that there was an error in the computation of the monetary benefits due them. On August 18, 1992, petitioners, pursuant to the Resolution of this Court, dated July 6, 1992, filed their Comment opposing the Motion for Leave to File Intervention and for exclusion from the operation of the T.R.O. on the grounds that the movants have no legal interest in the subject matter of the pending action; that allowing intervention would only cause delay in the proceedings; and that the motion to exclude the movants from the T.R.O. is without legal basis and would render moot the relief sought in the petition. On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the issuance of the writs of certiorari and prohibition under Rule 65 of the Rules of Court in connection with the issuance by respondent judge of several orders involving acts of liquidation of PVB even after the effectivity of R.A. No. 7169. PVB further alleges that respondent judge clearly acted in excess of or without jurisdiction when he issued the questioned orders. We find for the petitioners. Republic Act No. 7169 entitled An Act To Rehabilitate The Philippine Veterans Bank Created Under Republic Act No. 3518, Providing The Mechanisms Therefor, And For Other Purposes, which was signed into law by President Corazon C. Aquino on January 2, 1992 and which was published in the Official Gazette on February 24, 1992, provides in part for the reopening of the Philippine Veterans Bank together with all its branches within the period of three (3) years from the date of the reopening of the head office.vii[7] The law likewise provides for the creation of a rehabilitation committee in order to facilitate the implementation of the provisions of the same.viii[8] Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the proposed Rehabilitation Plan of the PVB to the Monetary Board for its approval. Meanwhile, PVB filed a Motion to Terminate Liquidation of Philippine Veterans Bank dated March 13, 1992 with the respondent judge praying that the liquidation proceedings be immediately terminated in view of the passage of R.A. No. 7169. On April 10, 1992, the Monetary Board issued Monetary Board Resolution No. 348 which approved the Rehabilitation Plan submitted by the Rehabilitaion Committee. Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB to reopen. On June 3, 1992, the liquidator filed A Motion for the Termination of the Liquidation Proceedings of the Philippine Veterans Bank with the respondent judge. As stated above, the Court, in a Resolution dated June 8, 1992, issued a temporary restraining order in the instant case restraining respondent judge from further proceeding with the liquidation of PVB.

On August 3, 1992, the Philippine Veterans Bank opened its doors to the public and started regular banking operations. Clearly, the enactment of Republic Act No. 7169, as well as the subsequent developments has rendered the liquidation court functus officio. Consequently, respondent judge has been stripped of the authority to issue orders involving acts of liquidation. Liquidation, in corporation law, connotes a winding up or settling with creditors and debtors.ix[9] It is the winding up of a corporation so that assets are distributed to those entitled to receive them. It is the process of reducing assets to cash, discharging liabilities and dividing surplus or loss. On the opposite end of the spectrum is rehabilitation which connotes a reopening or reorganization. Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency.x[10] It is crystal clear that the concept of liquidation is diametrically opposed or contrary to the concept of rehabilitation, such that both cannot be undertaken at the same time. To allow the liquidation proceedings to continue would seriously hinder the rehabilitation of the subject bank. Anent the claim of respondents Central Bank and Liquidator of PVB that R.A. No. 7169 became effective only on March 10, 1992 or fifteen (15) days after its publication in the Official Gazette; and, the contention of intervenors VOP Security, et. al. that the effectivity of said law is conditioned on the approval of a rehabilitation plan by the Monetary Board, among others, the Court is of the view that both contentions are bereft of merit. While as a rule, laws take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines, the legislature has the authority to provide for exceptions, as indicated in the clause unless otherwise provided. In the case at bar, Section 10 of R.A. No. 7169 provides: Sec. 10. Effectivity. - This Act shall take effect upon its approval. Hence, it is clear that the legislature intended to make the law effective immediately upon its approval. It is undisputed that R.A. No. 7169 was signed into law by President Corazon C. Aquino on January 2, 1992. Therefore, said law became effective on said date. Assuming for the sake of argument that publication is necessary for the effectivity of R.A. No. 7169, then it became legally effective on February 24, 1992, the date when the same was published in the Official Gazette, and not on March 10, 1992, as erroneously claimed by respondents Central Bank and Liquidator. WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE and GRANTED. Respondent Judge is hereby PERMANENTLY ENJOINED from further proceeding with Civil Case No. SP- 32311. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

G.R. No. L-15127

May 30, 1961

EMETERIO CUI, plaintiff-appellant, vs. ARELLANO UNIVERSITY, defendant-appellee. G.A.S. Sipin, Jr., for plaintiff-appellant. E. Voltaire Garcia for defendant-appellee. CONCEPCION, J.: Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon. In the language of the decision appealed from: The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant university up to and including the first semester of the fourth year. During all the school years in which plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos University, plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the college of law of the Abad Santos University graduating from the college of law of the latter university. Plaintiff, during all the time he was studying law in defendant university was awarded scholarship grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After graduating in law from Abad Santos University he applied to take the bar examination. To secure permission to take the bar he needed the transcripts of his records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to recover from defendant in this case.

Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the following contract covenant and agreement: "In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer to another school without having refunded to the University (defendant) the equivalent of my scholarship cash. (Sgd.) Emeterio Cui". It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and universities," reading: 1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to deserving students for excellence in scholarship or for leadership in extracurricular activities. Such inducements to poor but gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students concerned continue in the same school nullifies the principle of merit in the award of these scholarships. 2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to attract and keep students in a school. 3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect that they could not transfer to other schools since their credentials would not be released unless they would pay the fees corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the right to authorize such transfer. that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on his right to secure the transcript of his record in defendant University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a written order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses of litigation. In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees. The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the former waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that, although the contractual provision "may be unethical,

yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and simply because he wanted to follow the example of his uncle." Moreover, defendant maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void because said officer had no authority to issue it, and because it had been neither approved by the corresponding department head nor published in the official gazette. We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature of the issue before us, and its far reaching effects, transcend personal equations and demand a determination of the case from a high impersonal plane. Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant, There is one more point that merits refutation and that is whether or not the contract entered into between Cui and Arellano University on September 10, 1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of government officers.' It might take more than a government bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of government officials as one of the four factors in determining a public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a direct violation of our Memorandum and an open challenge to the authority of the Director of Private Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing to be done, contravenes some established interest of society, or is inconsistent with sound policy and good morals or tends clearly to undermine the security of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep outstanding students in school to bolster its prestige. In the understanding of that university scholarships award is a business scheme designed to increase the business potential of an education institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is morals? Manresa has this definition. It is good customs; those generally accepted principles of morality which have received some kind of social and practical confirmation. The practice of awarding scholarships to attract students and keep them in school is not good customs nor has it received some kind of social and practical confirmation except in some private institutions as in Arellano University. The University of the Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the corresponding value of the scholarships if they transfer to other schools. So also with the leading colleges and universities of the United States after which our educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in school for their propaganda mine but to reward merit or help gifted students in whom society has an established interest or a first lien. (Emphasis supplied.)

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered. Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad, JJ., concur. Bautista Angelo, J., reserves his vote.

G.R. No. L-65425 November 5, 1987 IRENEO LEAL, JOSE LEAL, CATALINA LEAL, BERNABELA LEAL, VICENTE LEAL EUIOGIA LEAL PATERNO RAMOS, MACARIO DEL ROSARIO, MARGARITA ALBERTO, VICTORIA TORRES, JUSTINA MANUEL, JULIAN MANUEL, MELANIA SANTOS, CLEMENTE SAMARIO, MARIKINA VALLEY, INC., MIGUELA MENDOZA, and REGISTER OF DEEDS OF RIZAL, petitioners, vs. THE HONORABLE INTERMEDIATE APPELLATE COURT (4th Civil Cases Division), and VICENTE SANTIAGO (Substituted by SALUD M. SANTIAGO), respondents.

SARMIENTO, J.: In its resolution dated September 27, 1983, the respondent Intermediate Appellate Court, 1 speaking through Justice Porfirio V, Sison, ordered, in part, the petitioners to accept the sum of P5,600.00 from the private respondent as repurchase price of the lots described in the "Compraventa" and, thereafter, to execute a Deed of Repurchase to effect transfer over ownership over the same properties to the private respondent. This ruling was a complete reversal of the earlier decision, 2 dated June 28, 1.978, penned by Justice Paras, of the Court of Appeals, in the same case, affirming the trial court's dismissal of the private respondent's complaint. The petitioners, feeling aggrieved and astonished by the complete turnaround of the respondent court, come to Us with this petition for review by certiorari. The antecedent facts are undisputed. This case brings us back almost half a century ago, on March 21, 1941, when a document entitled "Compraventa," written entirely in the Spanish language, involving three parcels of land, was executed by the private respondent's predecessors-in-interest, Vicente Santiago and his brother, Luis Santiago, in favor of Cirilio Leal the deceased father of some of the petitioners, Pursuant to this "Compraventa," the title over the three parcels of land in the name of the vendors was cancelled and a new one was issued in the name of Cirilo Leal who immediately took possession and exercised ownership over the said lands. When Cirilo died on December 10, 1959, the subject lands were inherited by his six children, who are among the petitioners, and who caused the consolidation and subdivision of the properties among themselves. Between the years 1960 and 1965, the properties were either mortgaged or leased by the petitionerschildren of Cirilo Leal to their co-petitioners. Sometime before the agricultural year 1966-1967, Vicente Santiago approached the petitioners and offered re- repurchase the subject properties. Petitioners, however, refused the offer. Consequently,

Vicente Santiago instituted a complaint for specific performance before the then Court of First Instance of Quezon City on August 2, 1967. All the trial, the court a quo rendered its decision,-dismissing the complaint on the ground that the same was still premature considering that there was, as yet, no sale nor any alienation equivalent to a sale. Not satisfied with this decision, the private respondent appealed to the Court of Appeals and the latter, acting through the Fourth Division and with Justice Edgardo Paras as ponente affirmed the decision of the court a quo. The petitioners seasonably filed a motion to amend the dispositive portion of the decision so as to include an order for the cancellation of the annotations at the back of the Transfer certificates of Title issued in their favor. The private respondent,-on the other hand, filed a-timely motion for reconsideration of the above decision and an opposition to petitioners' motion to amend. These incidents were not resolved until then Court of Appeals was abolished and in lieu of which the Intermideate Appellate Court was established In view of the said reorganization, case was reassigned to the Fourth Civil in this cases Division. Resolving the abovestated motion for reconsideration, the respondent court, in a resolution penned by Justice Sison and promulgated on September 27, 1983, ruled, as follows:
WHEREFORE, Our decision of June 28, 1978 is hereby reversed and set aside and another one is rendered ordering: (1) defendants-appellees surnamed Leal to accept the sum of P5,600.00 from plaintiffappellant (substituted by Salud M. Santiago) as repurchase price of the lots described in the "Compraventa" of March 21, 1941, and thereafter to execute a deed of repurchase sufficient in law to transfer ownership of the properties to appellant Salud M. Santiago, the same to be done within five (5) days from payment; (2) ordering the same defendants Leals and defendant Clemente Samario to indemnify appellant in the sum of P3,087.50 as rental for the year 1967-1968 and the same amount every year thereafter; (3) ordering an the defendants jointly and severally to pay the sum of Pl,500.00 as attorney's fees and other expenses of litigation; and (4) ordering defendant Register of Deeds of Rizal to cancel Transfer Certificate of Title No. 42535 in the names of Vicente Santiago and Luis Santiago upon presentation of the deed of sale herein ordered to be executed by the appellees in favor of Salud M. Santiago and to issue thereof another Transfer Certificate of Title in the name alone of Salud M. Santiago. No costs here and in the courts (sic) below. SO ORDERED.

Verily, the well-spring whence the present controversy arose is the abovementioned "Compraventa," more particularly paragraph (b) thereof, to wit:
xxx xxx xxx (b) En caso de venta, no podran vender a otros dichos tres lotes de terreno sino al aqui vendedor Vicente Santiago, o los herederos o sucesores de este por el niismo precio de CINCO MIL SEISCIENTOS 3 PESOS (P5,600.00) siempre y cuando estos ultimos pueden hacer la compra. xxx xxx xxx

which is now the subject of varying and conflicting interpretations.

xxx xxx xxx

It is admitted by both parties that the phrase "they shall not sell to others these three lots but only to the seller Vicente Santiago or to his heirs or successors" is an express prohibition against the sale of the lots described in the "Compraventa" to third persons or strangers to the contract. However, while

private respondent naturally lauds the resolution of Justice Sison, which sustains the validity of this prohibition, the petitioners, on the other hand, endorse the decision penned by Justice Paras, which states, in part:
xxx xxx xxx Finally, there is grave doubt re the validity of the ostensible resolutory condition here, namely, the prohibition to sell the lots to persons other than the vendor (appellant); uncertainly, a prohibition to alienate should not exceed at most a period of twenty years, otherwise there would be subversion of 4 public policy, which naturally frowns on unwarranted restrictions on the right of ownership. xxx xxx xxx

We agree with the Paras ponencia. Contracts are generally binding between the parties, their assigns and heirs; however, under Art. 1255 of the Civil Code of Spain, which is applicable in this instance, pacts, clauses, and conditions which are contrary to public order are null and void, thus, without any binding effect. Parenthetically, the equivalent provision in the Civil Code of the Philippines is that of Art. 1306, which states: "That contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. Public order signifies the public weal public policy. 5 Essentially, therefore, public order and public policy mean one and the same thing. Public policy is simply the English equivalent of "order publico" in Art. 1255 of the Civil Code of Spain. 6 One such condition which is contrary to public policy is the present prohibition to self to third parties, because the same virtually amounts to a perpetual restriction to the right of ownership, specifically the owner's right to freely dispose of his properties. This, we hold that any such prohibition, indefinite and stated as to time, so much so that it shall continue to be applicable even beyond the lifetime of the original parties to the contract, is, without doubt, a nullity. In the light of this pronouncement, we grant the petitioners' prayer for the cancellation of the annotations of this prohibition at the back of their Transfer Certificates 'Title. It will be noted, moreover, that the petitioners have never sold, or even attempted to sell, the properties subject of the "Compraventa. " We now come to what we believe is the very issue in this case which is, whether or not under the aforequoted paragraph (b) of the "Compraventa" a right of repurchase in favor of the private respondent exist. The ruling of the Fourth Division (Justice Paras) is that the said stipulation does not grant a right to repurchase. Contrarily, the resolution of the Fourth Civil Cases Division (Justice P. V. Sison) interpreted the same provision as granting the right to repurchase subject to a condition precedent. Thus, the assailed Resolution, reversing the earlier decision of the same respondent court, ruled
xxx xxx xxx The all-importartant phrase "en caso de venta," must of necessity refer to the sale of the properties either by Cirilo or his heirs to the Santiago brothers themselves or to their heirs, including appellants Vicente

Santiago including appellants Vicente Santiago and Salud M Santiago, for the same sum of P5,600.00, "siempre y cuando estos ultimos pueden hacer la compra" (when the latter shall be able to buy it). xxx xxx xxx ... We repeat, The words envision the situation contemplated by the contracting parties themselves, the resale of the lots to their owners, and NOT to a sale of the lots to third parties or strangers to the 7 contracts. ... xxx xxx xxx

The law provides that for conventional redemption to take place, the vendor should reserve, in no uncertain terms, the right to repurchase the thing sold. 8 Thus, the right to redeem must be expressly stipulated in the contract of sale in order that it may have legal existence. In the case before us, we cannot and any express or implied grant of a right to repurchase, nor can we infer, from any word or words in the questioned paragraph, the existence of any such right. The interpretation in the resolution (Justice Sison) is rather strained. The phrase "in case case" of should be construed to mean "should the buyers wish to sell which is the plain and simple import of the words, and not "the buyers should sell," which is clearly a contorted construction of the same phrase. The resort to Article 1373 of the Civil Code of the Philippines is erroneous. The subject phrase is patent and unambiguous, hence, it must not be given another interpretation But even assuming that such a right of repurchase is granted under the "Compraventa," the petitioner correctly asserts that the same has already prescribed. Under Art. 1508 of the Civil Code of Spain (Art,. 1606 of the Civil Code of the Philippines), the right to redeem or repurchase, in the absence of an express agreement as to time, shall last four years from the date of the contract. In this case then, the right to repurchase, if it was at four guaranteed under in the "Compraventa," should have been exercise within four years from March 21, 1941 (indubitably the date of execution of the contract), or at the latest in 1945. In the respondent court's resolution, it is further ruled that the right to repurchase was given birth by the condition precedent provided for in the phrase "siempre y cuando estos ultimos pueden hacer la compra" (when the buyer has money to buy). In other words, it is the respondent court's contention that the right may be exercised only when the buyer has money to buy. If this were so, the second paragraph of Article 1508 would apply there is agreement as to the time, although it is indefinite, therefore, the right should be exercised within ten years, because the law does not favor suspended ownership. Since the alleged right to repurchase was attempted to be exercised by Vicente Santiago only in 1966, or 25 years from the date of the contract, the said right has undoubtedly expired. WHEREFORE, in view of the foregoing, the Resolution dated September 27, 1983, of the respondent court is SET ASIDE and the Decision promulgated on June 28, 1978 is hereby REINSTATED. The annotations of the prohibition to sell at the back of TCT Nos. 138837, 138838, 138839, 138840, 138841, and 138842 are hereby ordered CANCELLED. Costs against the private respondent. SO ORDERED. Yap (Chairman), Melencio-Herrera and Padilla, JJ., concur. Paras, J., took no part.

[G.R. No. 138322. October 2, 2001] GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent. DECISION PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decisionix[1] and the March 24, 1999 Orderix[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as follows: WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties.ix[3] The assailed Order denied reconsideration of the above-quoted Decision. The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.ix[4] They lived together as husband and wife in Australia. On May 18, 1989, ix[5] a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian Citizenship issued by the Australian government.ix[6] Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.ix[7] In their application for a marriage license, respondent was declared as single and Filipino.ix[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.ix[9] On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriageix[10] in the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.ix[11] He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;ix[12] thus, he was legally capacitated to marry petitioner in 1994. On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably broken down.ix[13] Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of action.ix[14] The Office of the Solicitor General agreed with respondent.ix[15] The court marked and admitted the documentary evidence of both parties.ix[16] After they submitted their respective memoranda, the case was submitted for resolution.ix[17] Thereafter, the trial court rendered the assailed Decision and Order. Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union to nullify or annul. Hence, this Petition.ix[18] Issues Petitioner submits the following issues for our consideration: 1 The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. 2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioners marriage to the respondent

3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case. 4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. 5 The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts.ix[19] The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Courts Ruling The Petition is partly meritorious. First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial courts recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,ix[20] petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.ix[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15ix[22] and 17ix[23] of the Civil Code.ix[24] In mixed marriages involving a Filipino and a foreigner, Article 26ix[25] of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.ix[26] A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.ix[27] A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.ix[28] Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.ix[29] Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx (5) xxx xxx xxx

If previously married, how, when and where the previous marriage was dissolved or annulled; xxx x x x

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons. Respondent, on the other hand, argues that the Australian divorce decree is a public document -- a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.ix[30] A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.ix[31] The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.ix[32] Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attestedix[33] by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. ix[34] The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.ix[35] However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated. Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.ix[36] The trial court ruled that it was admissible, subject to petitioners qualification.ix[37] Hence, it was admitted in evidence and accorded weight by the judge. Indeed,

petitioners failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.ix[38] Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.ix[39] Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.ix[40] Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.ix[41] In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.ix[42] Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.ix[43] Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.ix[44] The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. Second Issue: Respondents Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondents contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.ix[45] There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.ix[46] Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a

divorce which was granted on the ground of adultery may be prohibited from marrying again. The court may allow a remarriage only after proof of good behavior.ix[47] On its face, the herein Australian divorce decree contains a restriction that reads: 1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy.ix[48] This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 39ix[49] of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws. Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.ix[50] As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint;ix[51] (b) Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;ix[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;ix[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recio and Editha D. Samson was in its records;ix[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A. Recio;ix[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;ix[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;ix[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick A. Recio;ix[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;ix[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.ix[60] Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioners contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a

direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the ground of bigamy, as above discussed. No costs. SO ORDERED. Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

G.R.No. L-68470 October 8, 1985 ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\ In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. 'I'hat there are no community obligations to be adjudicated by the court. xxx xxx xxx
4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending

in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDERED. Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

G.R. No. 132344

February 17, 2000

UNIVERSITY OF THE EAST, petitioner, vs. ROMEO A. JADER, respondent. YNARES-SANTIAGO, J.: May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? This is the issue in the instant petition for review premised on the following undisputed facts as summarized by the trial court and adopted by the Court of Appeals (CA),1 to wit: Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first semester of his last year (School year 1987-1988), he failed to take the regular final examination in Practice Court I for which he was given an incomplete grade (Exhibits "2", also Exhibit "H"). He enrolled for the second semester as fourth year law student (Exhibit "A") and on February 1, 1988 he filed an application for the removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2") which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a grade of five (5). (Exhibits "H-4", also Exhibits "2-L", "2-N").1wphi1.nt In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who among the fourth year students should be allowed to graduate. The plaintiff's name appeared in the Tentative List of Candidates for graduation for the Degree of Bachelor of Laws (LL.B) as of Second Semester (1987-1988) with the following annotation: JADER ROMEO A. Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with S.O. (Exhibits "3", "3-C-1", "3-C-2"). The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was scheduled on the 16th of April 1988 at 3:00 o'clock in the afternoon, and in the invitation for that

occasion the name of the plaintiff appeared as one of the candidates. (Exhibits "B", "B-6", "B-6-A"). At the foot of the list of the names of the candidates there appeared however the following annotation: This is a tentative list Degrees will be conferred upon these candidates who satisfactorily complete requirements as stated in the University Bulletin and as approved of the Department of Education, Culture and Sports (Exhibit "B-7-A"). The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus, during the program of which he went up the stage when his name was called, escorted by her (sic) mother and his eldest brother who assisted in placing the Hood, and his Tassel was turned from left to right, and he was thereafter handed by Dean Celedonio a rolled white sheet of paper symbolical of the Law Diploma. His relatives took pictures of the occasion (Exhibits "C" to "C-6", "D-3" to "D-11"). He tendered a blow-out that evening which was attended by neighbors, friends and relatives who wished him good luck in the forthcoming bar examination. There were pictures taken too during the blow-out (Exhibits "D" to "D-1"). He thereafter prepared himself for the bar examination. He took a leave of absence without pay from his job from April 20, 1988 to September 30, 1988 (Exhibit "G") and enrolled at the pre-bar review class in Far Eastern University. (Exhibits "F" to "F-2"). Having learned of the deficiency he dropped his review class and was not able to take the bar examination.2 Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was not able to take the 1988 bar examinations arising from the latter's negligence. He prayed for an award of moral and exemplary damages, unrealized income, attorney's fees, and costs of suit. In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to believe that he completed the requirements for a Bachelor of Laws degree when his name was included in the tentative list of graduating students. After trial, the lower court rendered judgment as follows: WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and against the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of interest from the filing of the complaint until fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's fees and the cost of suit. Defendant's counterclaim is, for lack of merit, hereby dismissed. SO ORDERED.3 which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The dispositive portion of the CA decision reads: WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED with the MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower court in favor of plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of FIFTY THOUSAND (P50,000.00) PESOS for moral damages. Costs against defendant-appellee. SO ORDERED.4

Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a petition for review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages incurred by the latter arose out of his own negligence in not verifying from the professor concerned the result of his removal exam. The petition lacks merit. When a student is enrolled in any educational or learning institution, a contract of education is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered merely as agents and administrators tasked to perform the school's commitment under the contract. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the former's agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information. The Court takes judicial notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice and information to each and every student as to whether he or she had already complied with all the requirements for the conferment of a degree or whether they would be included among those who will graduate. Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the educational institution's way of announcing to the whole world that the students included in the list of those who will be conferred a degree during the baccalaureate ceremony have satisfied all the requirements for such degree. Prior or subsequent to the ceremony, the school has the obligation to promptly inform the student of any problem involving the latter's grades and performance and also most importantly, of the procedures for remedying the same. Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith. Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious.5 It is the school that has access to those information and it is only the school that can compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students do not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school's rules and orders. Being the party that hired them, it is the school that exercises general supervision and exclusive control over the professors with respect to the submission of reports involving the students' standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury.6 The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services.7 He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a student's grade, is not only imputable to the professor but is an act of the school, being his employer. Considering further, that the institution of learning involved herein is a university which is engaged in legal education, it should have practiced what it inculcates in its students, more specifically the principle of good dealings enshrined in Articles 19 and 20 of the Civil Code which states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law.8 In civilized society, men must be able to assume that others will do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society.9 Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages.10 Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable.11 Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner's liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course. Worth quoting is the following disquisition of the respondent court: It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been informed during the deliberation that the professor in Practice Court I gave plaintiffappellant a failing grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to complete the requirements for the degree nor did they remove his name from the tentative list of candidates for graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant failed in Practice Court I, again included plaintiff-appellant's name in the "tentative list of candidates for graduation which was prepared after the deliberation and which became the basis for the commencement rites program. Dean Tiongson reasons out that plaintiff-appellant's name was allowed to remain in the tentative list of candidates for graduation in the hope that the latter would still be able to remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did not explain how plaintiff appellant Jader could have done something to complete his deficiency if defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing grade in Practice Court I.12 Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it.13 The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. 14 If mere fault or negligence in one's acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in

the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.15 However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual damages, we hold that respondent should not have been awarded moral damages. We do not agree with the Court of Appeals' findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, are in order. Given these considerations, we fail to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet. WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per annum computed from the date of filing of the complaint until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the suit. The award of moral damages is DELEIED.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Kapunan and Pardo, JJ., concur. Puno, J., took no part.

G.R. No. 101749 July 10, 1992 CONRADO BUNAG, JR., petitioner, vs. HON. COURT OF APPEALS, First Division, and ZENAIDA B. CIRILO, respondents.

REGALADO, J.: Petitioner appeals for the reversal of the decision 1 of respondent Court of Appeals promulgated on May 17, 1991 in CA-G.R. CV No. 07054, entitled "Zenaida B. Cirilo vs. Conrado Bunag, Sr. and Conrado Bunag, Jr.," which affirmed in toto the decision of the Regional Trial Court, Branch XI at Bacoor, Cavite, and, implicitly, respondent court's resolution of September 3, 1991 2 denying petitioner's motion for reconsideration. Respondent court having assiduously discussed the salient antecedents of this case, vis-a-vis the factual findings of the court below, the evidence of record and the contentions of the parties, it is appropriate that its findings, which we approve and adopt, be extensively reproduced hereunder:
Based on the evidence on record, the following facts are considered indisputable: On the afternoon of September 8, 1973, defendant-appellant Bunag, Jr. brought plaintiff-appellant to a motel or hotel where they had sexual intercourse. Later that evening, said defendant-appellant brought plaintiff-appellant to the house of his grandmother Juana de Leon in Pamplona, Las Pias, Metro Manila, where they lived together as husband and wife for 21 days, or until September 29, 1973. On September 10, 1973, defendant-appellant Bunag, Jr. and plaintiff-appellant filed their respective applications for a marriage license with the Office of the Local Civil Registrar of Bacoor, Cavite. On October 1, 1973, after leaving plaintiff-appellant, defendant-appellant Bunag, Jr. filed an affidavit withdrawing his application for a marriage license. Plaintiff-appellant contends that on the afternoon of September 8, 1973, defendant-appellant Bunag, Jr., together with an unidentified male companion, abducted her in the vicinity of the San Juan de Dios

Hospital in Pasay City and brought her to a motel where she was raped. The court a quo, which adopted her evidence, summarized the same which we paraphrased as follows: Plaintiff was 26 years old on November 5, 1974 when she testified, single and had finished a college course in Commerce (t.s.n., p. 4, Nov. 5, 1974). It appears that on September 8, 1973, at about 4:00 o'clock in the afternoon, while she was walking along Figueras Street, Pasay City on her way to the San Juan de Dios Canteen to take her snack, defendant, Conrado Bunag, Jr., came riding in a car driven by a male companion. Plaintiff and defendant Bunag, Jr. were sweethearts, but two weeks before September 8, 1973, they had a quarrel, and Bunag, Jr. wanted to talk matters over with plaintiff, so that he invited her to take their merienda at the Aristocrat Restaurant in Manila instead of at the San Juan de Dios Canteen, to which plaintiff obliged, as she believed in his sincerity (t.s.n., pp. 8-10, Nov. 5, 1974). Plaintiff rode in the car and took the front seat beside the driver while Bunag, Jr. seated himself by her right side. The car travelled north on its way to the Aristocrat Restaurant but upon reaching San Juan Street in Pasay City, it turned abruptly to the right, to which plaintiff protested, but which the duo ignored and instead threatened her not to make any noise as they were ready to die and would bump the car against the post if she persisted. Frightened and silenced, the car travelled its course thru F.B. Harrison Boulevard until they reached a motel. Plaintiff was then pulled and dragged from the car against her will, and amidst her cries and pleas. In spite of her struggle she was no match to the joint strength of the two male combatants because of her natural weakness being a woman and her small stature. Eventually, she was brought inside the hotel where the defendant Bunag, Jr. deflowered her against her will and consent. She could not fight back and repel the attack because after Bunag, Jr. had forced her to lie down and embraced her, his companion held her two feet, removed her panty, after which he left. Bunag, Jr. threatened her that he would ask his companion to come back and hold her feet if she did not surrender her womanhood to him, thus he succeeded in feasting on her virginity. Plaintiff described the pains she felt and how blood came out of her private parts after her vagina was penetrated by the penis of the defendant Bunag, Jr. (t.s.n. pp. 17-24, Nov. 5, 1974). After that outrage on her virginity, plaintiff asked Bunag, Jr. once more to allow her to go home but the latter would not consent and stated that he would only let her go after they were married as he intended to marry her, so much so that she promised not to make any scandal and to marry him. Thereafter, they took a taxi together after the car that they used had already gone, and proceeded to the house of Juana de Leon, Bunag, Jr.'s grandmother in Pamplona, Las Pias, Metro Manila where they arrived at 9:30 o'clock in the evening (t.s.n., p. 26, Nov. 5, 1974). At about ten (10) o'clock that same evening, defendant Conrado Bunag, Sr., father of Bunag, Jr. arrived and assured plaintiff that the following day which was a Monday, she and Bunag, Jr. would go to Bacoor, to apply for a marriage license, which they did. They filed their applications for marriage license (Exhibits "A" and "C") and after that plaintiff and defendant Bunag, Jr. returned to the house of Juana de Leon and lived there as husband and wife from September 8, 1973 to September 29, 1973. On September 29, 1973 defendant Bunag, Jr. left and never returned, humiliating plaintiff and compelled her to go back to her parents on October 3, 1973. Plaintiff was ashamed when she went home and could not sleep and eat because of the deception done against her by defendants-appellants (t.s.n., p. 35, Nov. 5, 1974). The testimony of plaintiff was corroborated in toto by her uncle, Vivencio Bansagan who declared that on September 8, 1973 when plaintiff failed to arrive home at 9:00 o'clock in the evening, his sister who is the mother of plaintiff asked him to look for her but his efforts proved futile, and he told his sister that plaintiff might have married (baka nagasawa, t.s.n., pp. 5-6, March 18, 1976). However, in the afternoon of the next day (Sunday), his sister told him that Francisco Cabrera, accompanied by barrio captain Jacinto Manalili of Ligas, Bacoor, Cavite, informed her that plaintiff and Bunag, Jr. were in Cabrera's house, so that her sister requested him to go and see the plaintiff, which he

did, and at the house of Mrs. Juana de Leon in Pamplona, Las Pias, Metro Manila he met defendant Conrado Bunag, Sr., who told him, "Pare, the children are here already. Let us settle the matter and have them married." He conferred with plaintiff who told him that as she had already lost her honor, she would bear her sufferings as Boy Bunag, Jr. and his father promised they would be married. Defendants-appellants, on the other hand, deny that defendant-appellant Conrado Bunag, Jr. abducted and raped plaintiff-appellant on September 8, 1973. On the contrary, plaintiff-appellant and defendantappellant Bunag, Jr. eloped on that date because of the opposition of the latter's father to their relationship. Defendant-appellants claim that defendant-appellant Bunag, Jr. and plaintiff-appellant had earlier made plans to elope and get married, and this fact was known to their friends, among them, Architect Chito Rodriguez. The couple made good their plans to elope on the afternoon of September 8, 1973, when defendant-appellant Bunag, Jr., accompanied by his friend Guillermo Ramos, Jr., met plaintiff-appellant and her officemate named Lydia in the vicinity of the San Juan de Dios Hospital. The foursome then proceeded to (the) aforesaid hospital's canteen where they had some snacks. Later, Guillermo Ramos, Jr. took Lydia to Quirino Avenue where she could get a ride home, thereby leaving the defendantappellant Bunag, Jr. and plaintiff-appellant alone. According to defendant-appellant Bunag, Jr., after Guillermo Ramos, Jr. and Lydia left, he and plaintiff-appellant took a taxi to the Golden Gate and Flamingo Hotels where they tried to get a room, but these were full. They finally got a room at the Holiday Hotel, where defendant-appellant registered using his real name and residence certificate number. Three hours later, the couple check out of the hotel and proceeded to the house of Juana de Leon at Pamplona, Las Pias, where they stayed until September 19, 1873. Defendant-appellant claims that bitter disagreements with the plaintiff-appellant over money and the threats made to his life prompted him to break off their plan to get married. During this period, defendant-appellant Bunag, Sr. denied having gone to the house of Juan de Leon and telling plaintiff-appellant that she would be wed to defendant-appellant Bunag, Jr. In fact, he phoned Atty. Conrado Adreneda, member of the board of directors of Mandala Corporation, defendant-appellant Bunag, Jr.'s employer, three times between the evening of September 8, 1973 and September 9, 1973 inquiring as to the whereabouts of his son. He came to know about his son's whereabouts when he was told of the couple's elopement late in the afternoon of September 9, 1973 by his mother Candida Gawaran. He likewise denied having met relatives and emissaries of plaintiff-appellant and agreeing to 3 her marriage to his son.

A complaint for damages for alleged breach of promise to marry was filed by herein private respondent Zenaida B. Cirilo against petitioner Conrado Bunag, Jr. and his father, Conrado Bunag, Sr., as Civil Case No. N-2028 of the Regional Trial Court, Branch XIX at Bacoor, Cavite. On August 20, 1983, on a finding, inter alia, that petitioner had forcibly abducted and raped private respondent, the trial court rendered a decision 4 ordering petitioner Bunag, Jr. to pay private respondent P80,000.00 as moral damages, P20,000.00 as exemplary damages, P20,000.00 by way of temperate damages, and P10,000.00 for and as attorney's fees, as well as the costs of suit. Defendant Conrado Bunag, Sr. was absolved from any and all liability. Private respondent appealed that portion of the lower court's decision disculpating Conrado Bunag, Sr. from civil liability in this case. On the other hand, the Bunags, as defendants-appellants, assigned in their appeal several errors allegedly committed by trial court, which were summarized by respondent court as follows: (1) in finding that defendant-appellant Conrado Bunag, Jr. forcibly abducted and raped plaintiff-appellant; (2) in finding that defendants-appellants promised plaintiffappellant that she would be wed to defendant-appellant Conrado Bunag, Jr.; and (3) in awarding plaintiff-appellant damages for the breach of defendants-appellants' promise of marriage. 5 As stated at the outset, on May 17, 1991 respondent Court of Appeals rendered judgment dismissing both appeals and affirming in toto the decision of the trial court. His motion for reconsideration having

been denied, petitioner Bunag, Jr. is before us on a petition for review, contending that (1) respondent court failed to consider vital exhibits, testimonies and incidents for petitioner's defense, resulting in the misapprehensions of facts and violative of the law on preparation of judgment; and (2) it erred in the application of the proper law and jurisprudence by holding that there was forcible abduction with rape, not just a simple elopement and an agreement to marry, and in the award of excessive damages. 6 Petitioner Bunag, Jr. first contends that both the trial and appellate courts failed to take into consideration the alleged fact that he and private respondent had agreed to marry, and that there was no case of forcible abduction with rape, but one of simple elopement and agreement to marry. It is averred that the agreement to marry has been sufficiently proven by the testimonies of the witnesses for both parties and the exhibits presented in court. This submission, therefore, clearly hinges on the credibility of the witnesses and evidence presented by the parties and the weight accorded thereto in the factual findings of the trial court and the Court of Appeals. In effect, what petitioner would want this Court to do is to evaluate and analyze anew the evidence, both testimonial and documentary, presented before and calibrated by the trial court, and as further meticulously reviewed and discussed by respondent court. The issue raised primarily and ineluctably involves questions of fact. We are, therefore, once again constrained to stress the well-entrenched statutory and jurisprudential mandate that findings of fact of the Court of Appeals are, as a rule, conclusive upon this Court. Only questions of law, distinctly set forth, may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court, subject to clearly settled exceptions in case law. Our jurisdiction in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to the latter, its findings of fact being conclusive. This Court has emphatically declared that it is not its function to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed by the lower court. Barring, therefore, a showing that the findings complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for this Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties. 7 Neither does the instant case reveal any feature falling within, any of the exceptions which under our decisional rules may warrant a review of the factual findings of the Court of Appeals. On the foregoing considerations and our review of the records, we sustain the holding of respondent court in favor of private respondent. Petitioner likewise asserts that since action involves a breach of promise to marry, the trial court erred in awarding damages. It is true that in this jurisdiction, we adhere to the time-honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. 8 Generally, therefore, a breach of promise to marry per se is not actionable, except where the plaintiff has actually incurred expenses for the wedding and the necessary incidents thereof. However, the award of moral damages is allowed in cases specified in or analogous to those provided in Article 2219 of the Civil Code. Correlatively, under Article 21 of said Code, in relation to paragraph 10 of said Article 2219, 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 moral damages. 9 Article 21 was adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless even though they have actually suffered material and moral injury,

and is intended to vouchsafe adequate legal remedy for that untold number of moral wrongs which is impossible for human foresight to specifically provide for in the statutes. 10 Under the circumstances obtaining in the case at bar, the acts of petitioner in forcibly abducting private respondent and having carnal knowledge with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for twenty-one days, irremissibly constitute acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21 in relation to paragraphs 3 and 10, Article 2219, and Article 2229 and 2234 of Civil Code. Petitioner would, however, belabor the fact that said damages were awarded by the trial court on the basis of a finding that he is guilty of forcible abduction with rape, despite the prior dismissal of the complaint therefor filed by private respondent with the Pasay City Fiscal's Office. Generally, the basis of civil liability from crime is the fundamental postulate of our law that every person criminally liable for a felony is also civilly liable. In other words, criminal liability will give rise to civil liability ex delicto only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. 11 Hence, extinction of the penal action does not carry with it the extinction of civil liability unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. 12 In the instant case, the dismissal of the complaint for forcible abduction with rape was by mere resolution of the fiscal at the preliminary investigation stage. There is no declaration in a final judgment that the fact from which the civil case might arise did not exist. Consequently, the dismissal did not in any way affect the right of herein private respondent to institute a civil action arising from the offense because such preliminary dismissal of the penal action did not carry with it the extinction of the civil action. The reason most often given for this holding is that the two proceedings involved are not between the same parties. Furthermore, it has long been emphasized, with continuing validity up to now, that there are different rules as to the competency of witnesses and the quantum of evidence in criminal and civil proceedings. In a criminal action, the State must prove its case by evidence which shows the guilt of the accused beyond reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by preponderance of evidence only. 13 Thus, in Rillon, et al. vs. Rillon, 14 we stressed that it is not now necessary that a criminal prosecution for rape be first instituted and prosecuted to final judgment before a civil action based on said offense in favor of the offended woman can likewise be instituted and prosecuted to final judgment. WHEREFORE, the petition is hereby DENIED for lack of merit, and the assailed judgment and resolution are hereby AFFIRMED. SO ORDERED. Narvasa, C.J. and Padilla, J., concur. Nocon, J., took no part.

G.R. No. 81262 August 25, 1989 GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C. HENDRY, petitioners, vs. THE HONORABLE COURT OF APPEALS and RESTITUTO M. TOBIAS, respondents. Atencia & Arias Law Offices for petitioners. Romulo C. Felizmena for private respondent.

CORTES, J.: Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio Corporation (GLOBE MACKAY) in a dual capacity as a purchasing agent and administrative assistant to the engineering operations manager. In 1972, GLOBE MACKAY discovered fictitious purchases and other fraudulent transactions for which it lost several thousands of pesos. According to private respondent it was he who actually discovered the anomalies and reported them on November 10, 1972 to his immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry who was then the Executive Vice-President and General Manager of GLOBE MACKAY. On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry confronted him by stating that he was the number one suspect, and ordered him to take a one week forced leave, not to communicate with the office, to leave his table drawers open, and to leave the office keys. On November 20, 1972, when private respondent Tobias returned to work after the forced leave, petitioner Hendry went up to him and called him a "crook" and a "swindler." Tobias was then ordered to take a lie detector test. He was also instructed to submit specimen of his handwriting, signature, and initials for examination by the police investigators to determine his complicity in the anomalies.

On December 6,1972, the Manila police investigators submitted a laboratory crime report (Exh. "A") clearing private respondent of participation in the anomalies. Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G. Fernandez, who on December 10, 1972, submitted a report (Exh. "2") finding Tobias guilty. This report however expressly stated that further investigation was still to be conducted. Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum suspending Tobias from work preparatory to the filing of criminal charges against him. On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after investigating other documents pertaining to the alleged anomalous transactions, submitted a second laboratory crime report (Exh. "B") reiterating his previous finding that the handwritings, signatures, and initials appearing in the checks and other documents involved in the fraudulent transactions were not those of Tobias. The lie detector tests conducted on Tobias also yielded negative results. Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the report of the private investigator, was, by its own terms, not yet complete, petitioners filed with the City Fiscal of Manila a complaint for estafa through falsification of commercial documents, later amended to just estafa. Subsequently five other criminal complaints were filed against Tobias, four of which were for estafa through Falsification of commercial document while the fifth was for of Article 290 of' the Revised Penal Code (Discovering Secrets Through Seizure of Correspondence).lwph1.t Two of these complaints were refiled with the Judge Advocate General's Office, which however, remanded them to the fiscal's office. All of the six criminal complaints were dismissed by the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the criminal complaints with the Secretary of Justice, who, however, affirmed their dismissal. In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his employment has been terminated effective December 13, 1972. Whereupon, Tobias filed a complaint for illegal dismissal. The labor arbiter dismissed the complaint. On appeal, the National Labor Relations Commission (NLRC) reversed the labor arbiter's decision. However, the Secretary of Labor, acting on petitioners' appeal from the NLRC ruling, reinstated the labor arbiter's decision. Tobias appealed the Secretary of Labor's order with the Office of the President. During the pendency of the appeal with said office, petitioners and private respondent Tobias entered into a compromise agreement regarding the latter's complaint for illegal dismissal. Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO). However, petitioner Hendry, without being asked by RETELCO, wrote a letter to the latter stating that Tobias was dismissed by GLOBE MACKAY due to dishonesty. Private respondent Tobias filed a civil case for damages anchored on alleged unlawful, malicious, oppressive, and abusive acts of petitioners. Petitioner Hendry, claiming illness, did not testify during the hearings. The Regional Trial Court (RTC) of Manila, Branch IX, through Judge Manuel T. Reyes rendered judgment in favor of private respondent by ordering petitioners to pay him eighty thousand pesos (P80,000.00) as actual damages, two hundred thousand pesos (P200,000.00) as moral damages, twenty thousand pesos (P20,000.00) as exemplary damages, thirty thousand pesos (P30,000.00) as attorney's fees, and costs. Petitioners appealed the RTC decision to the Court of Appeals. On the other hand, Tobias appealed as to the amount of damages. However, the Court of Appeals, an a decision dated August 31, 1987 affirmed the RTC decision in toto. Petitioners' motion for reconsideration having been denied, the instant petition for review on certiorari was filed.

The main issue in this case is whether or not petitioners are liable for damages to private respondent. Petitioners contend that they could not be made liable for damages in the lawful exercise of their right to dismiss private respondent. On the other hand, private respondent contends that because of petitioners' abusive manner in dismissing him as well as for the inhuman treatment he got from them, the Petitioners must indemnify him for the damage that he had suffered. One of the more notable innovations of the New Civil Code is the codification of "some basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the old Code which merely stated the effects of the law, but failed to draw out its spirit, incorporated certain fundamental precepts which were "designed to indicate certain norms that spring from the fountain of good conscience" and which were also meant to serve as "guides for human conduct [that] should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice" (Id.) Foremost among these principles is that pronounced in Article 19 which provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper. Article 20, which pertains to damage arising from a violation of law, provides that:
Art. 20. Every person who contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

However, in the case at bar, petitioners claim that they did not violate any provision of law since they were merely exercising their legal right to dismiss private respondent. This does not, however, leave private respondent with no relief because Article 21 of the Civil Code provides that:
Art. 21. 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.

This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury" [ Id.] should "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" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18,1978, 83 SCRA 237, 247]. In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual circumstances called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391; United General Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends on the circumstances of each case. And in the instant case, the Court, after examining the record and considering certain significant circumstances, finds that all petitioners have indeed abused the right that they invoke, causing damage to private respondent and for which the latter must now be indemnified. The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who reported the possible existence of anomalous transactions, petitioner Hendry "showed belligerence and told plaintiff (private respondent herein) that he was the number one suspect and to take a one week vacation leave, not to communicate with the office, to leave his table drawers open, and to leave his keys to said defendant (petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute. But regardless of whether or not it was private respondent Tobias who reported the anomalies to petitioners, the latter's reaction towards the former upon uncovering the anomalies was less than civil. An employer who harbors suspicions that an employee has committed dishonesty might be justified in taking the appropriate action such as ordering an investigation and directing the employee to go on a leave. Firmness and the resolve to uncover the truth would also be expected from such employer. But the high-handed treatment accorded Tobias by petitioners was certainly uncalled for. And this reprehensible attitude of petitioners was to continue when private respondent returned to work on November 20, 1972 after his one week forced leave. Upon reporting for work, Tobias was confronted by Hendry who said. "Tobby, you are the crook and swindler in this company." Considering that the first report made by the police investigators was submitted only on December 10, 1972 [See Exh. A] the statement made by petitioner Hendry was baseless. The imputation of guilt without basis and the pattern of harassment during the investigations of Tobias transgress the standards of human conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the right of the employer to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom. If the dismissal is done abusively, then the employer is liable for damages to the employee [Quisaba v. Sta. Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA 771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA 107] Under the circumstances of the instant case, the petitioners clearly failed to exercise in a legitimate manner their right to dismiss Tobias, giving the latter the right to recover damages under Article 19 in relation to Article 21 of the Civil Code. But petitioners were not content with just dismissing Tobias. Several other tortious acts were committed by petitioners against Tobias after the latter's termination from work. Towards the latter part of January, 1973, after the filing of the first of six criminal complaints against Tobias, the latter talked to Hendry to protest the actions taken against him. In response, Hendry cut short Tobias' protestations by telling him to just confess or else the company would file a hundred more cases against him until he landed in jail. Hendry added that, "You Filipinos cannot be trusted." The threat unmasked petitioner's bad faith in the various actions taken against Tobias. On the other hand, the

scornful remark about Filipinos as well as Hendry's earlier statements about Tobias being a "crook" and "swindler" are clear violations of 'Tobias' personal dignity [See Article 26, Civil Code]. The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in October 1974, stating that Tobias had been dismissed by GLOBE MACKAY due to dishonesty. Because of the letter, Tobias failed to gain employment with RETELCO and as a result of which, Tobias remained unemployed for a longer period of time. For this further damage suffered by Tobias, petitioners must likewise be held liable for damages consistent with Article 2176 of the Civil Code. Petitioners, however, contend that they have a "moral, if not legal, duty to forewarn other employers of the kind of employee the plaintiff (private respondent herein) was." [Petition, p. 14; Rollo, p. 15]. Petitioners further claim that "it is the accepted moral and societal obligation of every man to advise or warn his fellowmen of any threat or danger to the latter's life, honor or property. And this includes warning one's brethren of the possible dangers involved in dealing with, or accepting into confidence, a man whose honesty and integrity is suspect" [Id.]. These arguments, rather than justify petitioners' act, reveal a seeming obsession to prevent Tobias from getting a job, even after almost two years from the time Tobias was dismissed. Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias. Petitioners contend that there is no case against them for malicious prosecution and that they cannot be "penalized for exercising their right and prerogative of seeking justice by filing criminal complaints against an employee who was their principal suspect in the commission of forgeries and in the perpetration of anomalous transactions which defrauded them of substantial sums of money" [Petition, p. 10, Rollo, p. 11]. While sound principles of justice and public policy dictate that persons shall have free resort to the courts for redress of wrongs and vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)], the right to institute criminal prosecutions can not be exercised maliciously and in bad faith [Ventura v. Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila Electric Co., G.R. No. L-13016, May 31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints should not be used as a weapon to force an alleged debtor to pay an indebtedness. To do so would be a clear perversion of the function of the criminal processes and of the courts of justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA 536 the Court upheld the judgment against the petitioner for actual and moral damages and attorney's fees after making a finding that petitioner, with persistence, filed at least six criminal complaints against respondent, all of which were dismissed. To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design to vex and humiliate a person and that it was initiated deliberately by the defendant knowing that the charges were false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30,1980, 100 SCRA 602]. Concededly, the filing of a suit by itself, does not render a person liable for malicious prosecution [Inhelder Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere dismissal by the fiscal of the criminal complaint is not a ground for an award of damages for malicious prosecution if there is no competent evidence to show that the complainant had acted in bad faith [Sison v. David, G.R. No. L-11268, January 28,1961, 1 SCRA 60]. In the instant case, however, the trial court made a finding that petitioners acted in bad faith in filing the criminal complaints against Tobias, observing that: xxx

Defendants (petitioners herein) filed with the Fiscal's Office of Manila a total of six (6) criminal cases, five (5) of which were for estafa thru falsification of commercial document and one for violation of Art. 290 of the Revised Penal Code "discovering secrets thru seizure of correspondence," and all were dismissed for insufficiency or lack of evidence." The dismissal of four (4) of the cases was appealed to the Ministry of Justice, but said Ministry invariably sustained the dismissal of the cases. As above adverted to, two of these cases were refiled with the Judge Advocate General's Office of the Armed Forces of the Philippines to railroad plaintiffs arrest and detention in the military stockade, but this was frustrated by a presidential decree transferring criminal cases involving civilians to the civil courts.

xxx
To be sure, when despite the two (2) police reports embodying the findings of Lt. Dioscoro Tagle, Chief Document Examiner of the Manila Police Department, clearing plaintiff of participation or involvement in the fraudulent transactions complained of, despite the negative results of the lie detector tests which defendants compelled plaintiff to undergo, and although the police investigation was "still under follow-up and a supplementary report will be submitted after all the evidence has been gathered," defendants hastily filed six (6) criminal cases with the city Fiscal's Office of Manila, five (5) for estafa thru falsification of commercial document and one (1) for violation of Art. 290 of the Revised Penal Code, so much so that as was to be expected, all six (6) cases were dismissed, with one of the investigating fiscals, Asst. Fiscal de Guia, commenting in one case that, "Indeed, the haphazard way this case was investigated is evident. Evident likewise is the flurry and haste in the filing of this case against respondent Tobias," there can be no mistaking that defendants would not but be motivated by malicious and unlawful intent to harass, oppress, and cause damage to plaintiff.

xxx [RTC Decision, pp. 5-6; Rollo, pp. 235-236]. In addition to the observations made by the trial court, the Court finds it significant that the criminal complaints were filed during the pendency of the illegal dismissal case filed by Tobias against petitioners. This explains the haste in which the complaints were filed, which the trial court earlier noted. But petitioners, to prove their good faith, point to the fact that only six complaints were filed against Tobias when they could have allegedly filed one hundred cases, considering the number of anomalous transactions committed against GLOBE MACKAY. However, petitioners' good faith is belied by the threat made by Hendry after the filing of the first complaint that one hundred more cases would be filed against Tobias. In effect, the possible filing of one hundred more cases was made to hang like the sword of Damocles over the head of Tobias. In fine, considering the haste in which the criminal complaints were filed, the fact that they were filed during the pendency of the illegal dismissal case against petitioners, the threat made by Hendry, the fact that the cases were filed notwithstanding the two police reports exculpating Tobias from involvement in the anomalies committed against GLOBE MACKAY, coupled by the eventual dismissal of all the cases, the Court is led into no other conclusion than that petitioners were motivated by malicious intent in filing the six criminal complaints against Tobias. Petitioners next contend that the award of damages was excessive. In the complaint filed against petitioners, Tobias prayed for the following: one hundred thousand pesos (P100,000.00) as actual damages; fifty thousand pesos (P50,000.00) as exemplary damages; eight hundred thousand pesos (P800,000.00) as moral damages; fifty thousand pesos (P50,000.00) as attorney's fees; and costs. The trial court, after making a computation of the damages incurred by Tobias [ See RTC Decision, pp. 7-8; Rollo, pp. 154-1551, awarded him the following: eighty thousand pesos (P80,000.00) as actual damages; two hundred thousand pesos (P200,000.00) as moral damages; twenty thousand pesos (P20,000.00) as exemplary damages; thirty thousand pesos (P30,000.00) as attorney's fees; and, costs. It must be underscored that petitioners have been guilty of committing several actionable tortious acts, i.e., the abusive manner in which they dismissed Tobias from work including the

baseless imputation of guilt and the harassment during the investigations; the defamatory language heaped on Tobias as well as the scornful remark on Filipinos; the poison letter sent to RETELCO which resulted in Tobias' loss of possible employment; and, the malicious filing of the criminal complaints. Considering the extent of the damage wrought on Tobias, the Court finds that, contrary to petitioners' contention, the amount of damages awarded to Tobias was reasonable under the circumstances. Yet, petitioners still insist that the award of damages was improper, invoking the principle of damnum absque injuria. It is argued that "[t]he only probable actual damage that plaintiff (private respondent herein) could have suffered was a direct result of his having been dismissed from his employment, which was a valid and legal act of the defendants-appellants (petitioners herein).lwph1.t " [Petition, p. 17; Rollo, p. 18]. According to the principle of damnum absque injuria, damage or loss which does not constitute a violation of a legal right or amount to a legal wrong is not actionable [Escano v. CA, G.R. No. L47207, September 25, 1980, 100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil, 542 (1915); The Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987]. This principle finds no application in this case. It bears repeating that even granting that petitioners might have had the right to dismiss Tobias from work, the abusive manner in which that right was exercised amounted to a legal wrong for which petitioners must now be held liable. Moreover, the damage incurred by Tobias was not only in connection with the abusive manner in which he was dismissed but was also the result of several other quasi-delictual acts committed by petitioners. Petitioners next question the award of moral damages. However, the Court has already ruled in Wassmer v. Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA 648, 653, that [p]er express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code." Hence, the Court of Appeals committed no error in awarding moral damages to Tobias. Lastly, the award of exemplary damages is impugned by petitioners. Although Article 2231 of the Civil Code provides that "[i]n quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence," the Court, in Zulueta v. Pan American World Airways, Inc., G.R. No. L- 28589, January 8, 1973, 49 SCRA 1, ruled that if gross negligence warrants the award of exemplary damages, with more reason is its imposition justified when the act performed is deliberate, malicious and tainted with bad faith. As in the Zulueta case, the nature of the wrongful acts shown to have been committed by petitioners against Tobias is sufficient basis for the award of exemplary damages to the latter. WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. CV No. 09055 is AFFIRMED. SO ORDERED. Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur. Feliciano, J., took no part.

[G.R. No. 99039. February 3, 1997] FORD PHILIPPINES, INC., JOHN SAGOVAC and ANASTACIO R. TEODORO, II, petitioners, vs. COURT OF APPEALS and MANUEL I. OBOZA, respondents. DECISION FRANCISCO, J.: The facts of this case as found by the respondent Court of Appeals and which we quote with approval are as follows: Manuel I. Oboza worked with appellee Ford Philippines from 1968 to 1983. He was initially employed as supervisor of Fords Sales and Planning Distribution Section. He received promotions in succession and on August 19, 1980 he was appointed to the newly-created position of General Sales Manager and concurrently member of the Operating Committee (Exh. A, Records, p. 270). The position is one rank below the position of Director of Sales and Marketing, then occupied by appellee Malcolm J. Johnston, an American Citizen. In a letter dated December 9, 1982, Ford Philippines through Anastacio R. Teodoro II, in his capacity as Director of Industrial Relations, wrote the following advisory to the appellant: When WHQ approved the establishment of the position of General Sales Manager (SG T-11) on August 1980 and your appointment to the same position on September 1980, the condition laid out was for this position to be transitory and the continued appropriateness of this position would be revised within the next 18 months. It has now been decided and approved that it is no longer appropriate to maintain the position of General Sales Manager as originally planned. Consequently, the position is declared redundant and the more relevant position of Vehicle Sales Manager (SG-10) is re-established. On October 12, 1982, I confirmed with you this fact and advised you of two alternatives. The first was for you to accept redundancy which includes the payment of full benefits in accordance with the provision of law as well as under Company policy. The second was for you to accept an appointment to the position of Vehicle

Sales Manager (SG-T11). The second alternative is offered in recognition of your long years of service to the company. During this discussion, you asked for more time to decide. On Wednesday, December 1, 1982, I again requested for your decision and you still do not have any decision in this regard. I explained that management is hard-pressed by APAQ for a resolution of this case on or before December 31, 1982. To date you still have not advised me officially of your decision and in view of your reluctance to do so, Management has no choice but to conclude that you are not interested in the position of Vehicle Sales Manager (SG-10). This is to advise you, therefore, that with the abolition of the position of General Sales Manager, the Company is declaring you redundant as of January 15, 1983. x.x.x. (Underscoring supplied, Exh. C, Records, p. 278). Under these circumstances, Oboza left the employ of Ford, Philippines. On August 31, 1983, Oboza filed an action for damages in the trial court, alleging that the abolition of his position on the ground of redundancy was done in bad faith. It is admitted that what prompted appellant to file this action for damages was his discovery of the existence of an appeal and memorandum filed before the Department of Labor and Employment by appellee Ford Philippines in behalf of its employee Malcolm Johnston who holds a position one rank higher than that of Manuel Obozas and, in effect, the latters immediate superior. The appeal and memorandum was filed pursuant to the denial of Fords petition for extension of the alien employment permit of Malcolm J. Johnston. This appeal and memorandum dated November 29, 1982 alleged among others, that: xxx 2. On September 1, 1980, Mr. Manuel I. Oboza, Vehicle Sales Manager (understudy), was appointed and tried as General Sales Manager of appellant company to further strengthen his development with the prime intention of the appellant company of ultimately appointing him as replacement of Mr. Malcolm J. Johnston as the other understudy, Mr. Clarito P. Munda (Dealer Affairs Manager) had resigned from Ford Philippines, Inc. on June 30, 1980. However, after more than eighteen (18) months on the job training. Mr. Manuel Oboza has not developed the proper attitudes motivation and qualities required for the position of Director of Sales and Marketing. 3. Due to the aforesaid development, appellant Ford Philippines, Inc., on September 2, 1982 thru its counsel filed an extension/renewal (sic) the Alien Employment Permit of Mr. Malcolm J. Johnston which was valid until October 9, 1982, with the prime purpose of retaining him until and after a deserving Filipino understudy can qualify to the position x x x. 'x x x in view of the failure of Mr. Manuel I. Oboza (understudy) to mature and qualify for the position of Director, Sales and Marketing appellant, Ford Philippines Inc. has no alternative but to request the extension/renewal of the alien employment permit of Mr. Malcolm J. Johnston, Director Sales Marketing (sic), Ford Philippines, Inc. on September 2, 1982, otherwise the company will have no qualified Sales and Marketing Director. The Alien Employment Permit of Mr. Malcolm J. Johnston was only valid up and until October 9, 1982. (Exh. D, Records, pp. 282-283, 286, Underscoring supplied) Appellant, upon discovery of said Appeal and Memorandum filed an action for damages alleging that:

The abolition of his [appellants] position, as will be clearly seen, was timed in such a way that as admitted by Mr. Teodoro, it was after the denial of the petition for extension of Mr. Johnstons alien work permit to stay in the Philippines. And to support or buttress the appeal memorandum, defendants had to resort to the abolition of plaintiffs position on the ground of redundancy. Of course, he was offered an alternative, reappointment to the position of Vehicle Sales Manager, [which] plaintiff previously occupied which was another debasing, degrading and humiliating act. Plaintiff Oboza had no choice but to accept redundancy. (Memorandum for plaintiff, Records, p. 199). To these allegations, defendants-appellees interposed the defense that the abolition of plaintiffs position was done in good faith on the ground of redundancy and that the allegation in appellants testimony that Ford Philippines terminated his employment in order to use it as an argument in support of Fords application for extension of Johnstons alien employment permit is without basis.x x x.x[1] After hearing, the trial court rendered a decision dismissing private respondents complaint. It found that the only basis for the private respondents claim for damages against the petitioners was their act of insulting, maligning and discrediting him in their Appeal and Memorandum filed before the Department of Labor and Employment (DOLE) for the extension of Malcolm Johnstons Alien Employment Permit. The trial court viewed the statements contained in the said Appeal and Memorandum as falling under the category of privileged communication which cannot be the basis of an action for damages.x[2] The foregoing decision was, however, reversed upon appeal to the respondent court which held, among others, that the trial court gravely erred in motu propio amending the private respondents complaint, thereby limiting his cause of action to the discrediting statements contained in the Memorandum and Appeal. The allegations in the complaint filed before the trial court conclusively establish that the private respondent predicated his cause of action on the allegation that in dismissing him from employment, the petitioners acted with injustice, failed to give him his due and did not observe honesty and good faith.x[3] Thus, as correctly held by the respondent court, what the private respondent invokes for the redress of the wrong committed against him are the following provisions of the Civil Codex[4]: ART. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. ART. 21. 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. Thus, the issue of paramount consideration which confronted the respondent court and which is now before us for resolution is: whether or not the petitioners, in dismissing the private respondent from employment on the ground of redundancy, had acted with bad faith. The respondent court agreed with the private respondents theory that the latters dismissal was a mere subterfuge in order to secure with certainty the extension of the Alien Employment Permit of Johnston. The respondent court justified its conclusion of bad faith on the part of the petitioners in this wise: Ford Philippines duplicity in dealing with appellant Oboza in the matter of his dismissal has been plainly demonstrated. While Oboza was made to believe that he was dismissed on the ground of redundancy, Ford Philippines, unknown to appellant almost simultaneously filed a Memorandum and Appeal on the Bureau of Local Employments previous denial of the request for extension of the alien employment permit of Ford employee, Malcolm J. Johnston on the ground that Oboza, who is the local understudy failed to develop the proper attitude and qualities required for the position held by said alien employee (Exh. D, supra). The Appeal and Memorandum dated November 29, 1982 was filed only ten (10) days ahead of the letter dated December 9, 1982 advising Oboza of the abolition of his position on ground of redundancy. The proximity in

time and personalities involved expose Fords hidden agenda: to ease out appellant Oboza from his position effectively as the understudy of Johnston in order to render moot and academic the question of whether or not to grant an extension of Johnstons alien employment permit. The scheme is simple. With the understudy effectively removed ostensibly on the ground of redundancy, there would be no further obstacle in obtaining the BLEs grant of extension for Johnstons alien work permit since Obozas dismissal renders useless the bureaus reservations for the grant of said request - i.e. the presence of the local sales and marketing staff who are now in a position to carry on the duties and responsibilities of Johnston x x x."x[5] At the outset it must be stressed that it is not the factual findings of the respondent court that petitioners assails but the abovementioned inferences drawn therefrom. After taking a second hard look at the facts of this case, we are constrained to rule differently, and to agree with the petitioners contention that their act of dismissing the private respondent was not motivated by the hidden agenda of securing the extension of Johnstons Alien Employment Permit. Several factors contribute to effectively rebut the private respondents allegation of bad faith and render erroneous the respondent courts similar conclusion. First of all, it is important to note that on November 29, 1982 when the Memorandum with its criticisms of private respondent was filed, the latter was still employed with Ford Philippines. The abolition of the private respondents position did not take place until after the filing of the said Memorandum. Thus, as correctly pointed out by the petitioners, such belated abolition clearly would not have helped secure the extension of Johnstons Alien Employment Permit. And, as a matter of fact, the extension prayed for was denied by the Bureau of Local Employment (BLE).x[6] Another point of significance which the respondent court failed to consider is the presence of two other understudies aside from private respondent who could take the place of Johnston in the event his Alien Employment Permit is not extended by the BLE. As a matter of fact, the BLE took cognizance of this in denying the extension of Johnstons Alien Employment Permit, thereby stating that: 4. Granting that Mr. Manuel Oboza does not qualify for the position, either Mr. Elmer Yap or Mr. Alfredo Velayo could be considered for the position inasmuch as they have been working for Mr. Johnston even before the latter became Director of Sales and Marketing. (p. 1 ) 2. The understudies for the past 2 years were Messrs. Yap and Oboza. During the incumbency of Mr. Marshall, the understudies were Messrs. Munda and Oboza. To claim that Mr. Oboza is the only remaining understudy is therefore inaccurate. (p. 2) (emphasis ours)x[7] Also, the Memorandum and Appeal are bereft of any representation to the effect that the extension of Johnstons Alien Employment Permit is necessitated by the abolition of the private respondents position. The said extension was sought not because of private respondents dismissal but because the latter had not developed the proper attitude, motivation and qualities required for the position of Director of Sales and Marketing and could, therefore, not yet be promoted to latter position. We agree with the petitioners contention that had it been their intention to use the abolition of the private respondents position as an excuse to facilitate the extension Johnstons Alien Employment Permit, they would have prominently played up such abolition. The fact is they did not, as they could not, precisely because at that time, the private respondent was still employed with Ford Philippines. Bad faith does not simply connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of wrong.x[8] It means a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud.x[9] Applying this precept to the foregoing circumstances, we find that there was no dishonest purpose, or some moral obliquity, or conscious doing of wrong, or breach of a known duty, or some motive or interest or ill will that partakes the nature of fraud that can be attributed to the petitioners. It must be reiterated that bad faith should be established by clear and convincing

evidence.x[10] Furthermore, the settled rule is that the law always presumes good faith such that any person who seeks to be awarded damages due to acts of another has the burden of proving that the latter acted in bad faith or with ill motive.x[11] In the case at bench, we find the evidence presented by the private respondent insufficient to overcome the presumption of good faith. On the contrary, a careful scrutiny of the evidence leads us to take the opposite view. We are convinced that the petitioners had in fact acted in accord with the norms of good faith. As admitted by the private respondent, he was not immediately terminated from the employ of Ford Philippines, but was given the prerogative of choosing between availing of the benefits under redundancy or continuing his employment as Vehicle Sales Manager. This was in recognition of private respondents long years of service to Ford Philippines and is indicative of the petitioners good will. Moreover, at the time that private respondent was dismissed from employment, Ford Philippines was losing heavily and had resorted to massive layoffs of employees from both the rank and file and managerial levels. That Ford Philippines was in dire financial straits could not have been unknown to the private respondent who was then its General Sales Manager. As a matter of fact, Ford Philippines closed down barely a year after the institution of the case before the trial court and even before the latter could render a decision therein. Ford Philippines could have retrenched the private respondent as it had the right to do so because of severe financial reverses. Despite this, the private respondent was not retrenched but was dismissed on the ground of redundancy, thus, entitling him to a larger amount of separation pay equivalent one (1) month salary for every year of service. Finally, worth reiterating is our consistent pronouncement on the matter of awarding damages in illegal dismissal cases that moral damages are recoverable only where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy.x[12] In the case of Primero v. IAC,x[13] we held further that an award of moral damages in the illegal dismissal of an employee is not based on the Labor Code but is grounded on the Civil Code. Such an award cannot be justified solely upon the premise that the employer fired his employee without just cause or due process. Additional facts must be pleaded and proven to warrant the grant of moral damages under the Civil Code, these being, to repeat, that the act of dismissal was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy; and, of course, that social humiliation, wounded feelings, grave anxiety, and similar injury resulted therefrom.x[14] In this case, not only was there good faith in the dismissal of the private respondent, as previously discussed, but the same was also grounded on just cause. The private respondent concedes that termination of employment due to redundancy is a management prerogative. And at the hearing before the trial court, he admitted that his functions as General Sales Manager were similar to the functions of Johnston as Director of Sales and Marketing.x[15] Obviously, private respondent recognized that the petitioners had a just cause for terminating his employment, and for this reason did not file a case for illegal dismissal against them. WHEREFORE, the petition is granted and the assailed decision of the Court of Appeals is REVERSED. The trial courts decision in Civil Case No. 83-20001 dismissing the complaint and the counterclaim is hereby REINSTATED. SO ORDERED. Narvasa, C.J. (Chairman)., Davide, Jr., Melo, and Panganiban, JJ., concur.

[G.R. No. 107019. March 20, 1997] FRANKLIN M. DRILON, AURELIO C. TRAMPE, GREGORIO A. ARIZALA, CESAR M. SOLIS and FERDINAND R. ABESAMIS, petitioners, vs. COURT OF APPEALS, HON. GEORGE C. MACLI-ING, in his capacity as Presiding Judge of Branch 100 of the Regional Trial Court of Quezon City, and HOMOBONO ADAZA, respondents. DECISION HERMOSISIMA, JR., J.: Petitioners seek the reversal of the Resolutions of respondent Court of Appeals in CA-G.R. SP No. 25080 dated January 31, 1992 and September 2, 1992 affirming the Orders, dated February 8, 1991 and May 14, 1991, of respondent Judge George C. Macli-ing which denied herein petitioners Motion to Dismiss the complaint filed in Civil Case No. Q-90-6073 by respondent Homobono Adaza. The facts are not in dispute. In a letter-complaint to then Secretary of Justice Franklin Drilonx[1] dated March 20, 1990, General Renato de Villa,x[2] who was then the Chief of Staff of the Armed Forces of the Philippines, requested the Department of Justice to order the investigation of several individuals named therein, including herein private respondent Homobono Adaza, for their alleged participation in the failed December 1989 coup detat. The letter-complaint was based on the affidavit of Brigadier General Alejandro Galido, Captain Oscarlito Mapalo, Colonel Juan Mamorno, Colonel Hernani Figueroa and Major Eduardo Sebastian. Gen. de Villas letter-complaint with its annexes was referred for preliminary inquiry to the Special Composite Team of Prosecutors created pursuant to Department of Justice Order No. 5 dated January 10, 1990. Petitioner then Assistant Chief State Prosecutor Aurelio Trampe,x[3] the Team Leader, finding sufficient basis to continue the inquiry, issued a subpoena to the individuals named in the letter-complaint, Adaza included, and assigned the case for preliminary investigation to a panel of investigators composed of prosecutors George Arizala, as

Chairman, and Ferdinand Abesamis and Cesar Solis as members. The case was docketed as I.S. No. DOJ-SC90-013. On April 17, 1990, the panel released its findings, thru a Resolution, which reads: PREMISES CONSIDERED, we find and so hold that there is probable cause to hold herein respondents for trial for the crime of REBELLION WITH MURDER AND FRUSTRATED MURDER. Hence we respectfully recommend the filing of the corresponding information against them in court.x[4] The above Resolution became the basis for the filing of an Information,x[5] dated April 18, 1990, charging private respondent with the crime of rebellion with murder and frustrated murder before the Regional Trial Court of Quezon City, with no recommendation as to bail.x[6] Feeling aggrieved by the institution of these proceedings against him, private respondent Adaza filed a complaint for damages,x[7] dated July 11, 1990, before Branch 100 of the Regional Trial Court of Quezon City. The complaint was docketed as Civil Case No. Q-90-6073 entitled, Homobono Adaza, plaintiff versus Franklin Drilon, et al., respondents. In his complaint, Adaza charged petitioners with engaging in a deliberate, willful and malicious experimentation by filing against him a charge of rebellion complexed with murder and frustrated murder when petitioners, according to Adaza, were fully aware of the non-existence of such crime in the statute books. On October 15, 1990, petitioners filed a Motion to Dismiss Adazas complaint on the ground that said complaint states no actionable wrong constituting a valid cause of action against petitioners. On February 8, 1991, public respondent judge issued an Orderx[8] denying petitioners Motion to Dismiss. In the same Order, petitioners were required to file their answer to the complaint within fifteen (15) days from receipt of the Order. Petitioners moved for a reconsideration of the Order of denial, but the same was likewise denied by respondent Judge in another Order dated May 14, 1991.x[9] The subsequent Order reiterated that petitioners file their responsive pleading within the prescribed reglementary period. Instead of filing their answer as ordered, petitioners filed on June 5, 1991 a petition for certiorari under Rule 65 before the Court of Appeals, docketed as CA-G.R. No. 25080, alleging grave abuse of discretion on the part of the respondent Judge in ruling that sufficient cause of action exists to warrant a full-blown hearing of the case filed by Adaza and thus denying petitioners Motion to Dismiss. In its Resolution promulgated on January 31, 1992, the appellate court dismissed the petition for lack of merit and ordered respondent Judge to proceed with the trial of Civil Case No. Q-90-6073.x[10] A Motion for Reconsideration having been subsequently filed on February 28, 1992, the court a quo denied the same in a Resolution dated September 2, 1992.x[11] Hence, this petition, dated October 9, 1992, pleading this Court to exercise its power of review under Rule 45 of the Revised Rules of Court. On January 13, 1993, however, this Court, thru the Second Division, dismissed the petition for failure to comply with Revised Circular No. 1-88, particularly the requirement on the payment of the prescribed docketing fees.x[12]

On March 8, 1993,x[13] we reinstated the petition and required the respondents to comment on the aforesaid petition. In the same Resolution, a temporary restraining order was issued by this Court enjoining respondent Judge from further proceeding with Civil Case No. Q-90-6073 until further orders from this Court. The petition has merit. In his Comment,x[14] dated March 23, 1993, respondent Adaza maintains that his claim before the trial court was merely a suit for damages based on tort by reason of petitioners various malfeasance, misfeasance and nonfeasance in office, as well as for violation by the petitioners of Section 3 (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. It was not a suit for malicious prosecution. Private respondent is taking us for a ride. A cursory perusal of the complaint filed by Adaza before respondent Judge George Macli-ing reveals that it is one for malicious prosecution against the petitioners for the latters filing of the charge against him of rebellion with murder and frustrated murder. An examination of the records would show that this latest posture as to the nature of his cause of action is only being raised for the first time on appeal. Nowhere in his complaint filed with the trial court did respondent Adaza allege that his action is one based on tort or on Section 3 (e) of Republic Act No. 3019. Such a change of theory cannot be allowed. When a party adopts a certain theory in the court below, he will not be permitted to change his theory on appeal, for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process.x[15] Any member of the Bar, even if not too schooled in the art of litigation, would easily discern that Adazas complaint is no doubt a suit for damages for malicious prosecution against the herein petitioners. Unfortunately, however, his complaint filed with the trial court suffers from a fatal infirmity -- that of failure to state a cause of action -- and should have been dismissed right from the start. We shall show why. The term malicious prosecution has been defined in various ways. In American jurisdiction, it is defined as: One begun in malice without probable cause to believe the charges can be sustained (Eustace v. Dechter, 28 Cal. App. 2d. 706,83 P. 2d. 525). Instituted with intention of injuring defendant and without probable cause, and which terminates in favor of the person prosecuted. For this injury an action on the case lies, called the action of malicious prosecution (Hicks v. Brantley, 29 S.E. 459, 102 Ga. 264; Eggett v. Allen, 96 N.W. 803, 119 Wis. 625).x[16] In Philippine jurisdiction, it has been defined as: An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury (Cabasaan v. Anota, 14169-R, November 19, 1956).x[17] The statutory basis for a civil action for damages for malicious prosecution are found in the provisions of the New Civil Code on Human Relations and on damages particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and 2219 (8).x[18] To constitute malicious prosecution, however, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution.x[19] Thus, in order for a malicious prosecution suit to prosper, the plaintiff must prove three (3) elements: (1) the fact of the prosecution and the further fact that the defendant was himself the prosecutor and that the action finally terminated with an acquittal; (2) that in bringing the action, the prosecutor acted without probable cause; and (3) that the prosecutor

was actuated or impelled by legal malice, that is by improper or sinister motive.x[20] All these requisites must concur. Judging from the face of the complaint itself filed by Adaza against the herein petitioners, none of the foregoing requisites have been alleged therein, thus rendering the complaint dismissible on the ground of failure to state a cause of action under Section 1 (g), Rule 16 of the Revised Rules of Court. There is nothing in the records which shows, and the complaint does not allege, that Criminal Case No. Q-9011855, filed by the petitioners against respondent Adaza for Rebellion with Murder and Frustrated Murder, has been finally terminated and therein accused Adaza acquitted of the charge. Not even Adaza himself, thru counsel, makes any positive asseveration on this aspect that would establish his acquittal. Insofar as Criminal Case No. Q-90-11855 is concerned, what appears clear from the records only is that respondent has been discharged on a writ of habeas corpus and granted bail.x[21] This is not, however, considered the termination of the action contemplated under Philippine jurisdiction to warrant the institution of a malicious prosecution suit against those responsible for the filing of the informaion against him. The complaint likewise does not make any allegation that the prosecution acted without probable cause in filing the criminal information dated April 18, 1990 for rebellion with murder and frustrated murder. Elementarily defined, probable cause is the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. It is well-settled that one cannot be held liable for maliciously instituting a prosecution where one has acted with probable cause. Elsewise stated, a suit for malicious prosecution will lie only in cases where a legal prosecution has been carried on without probable cause. The reason for this rule is that it would be a very great discouragement to public justice, if prosecutors, who had tolerable ground of suspicion, were liable to be sued at law when their indictment miscarried.x[22] In the case under consideration, the decision of the Special Team of Prosecutors to file the information for rebellion with murder and frustrated murder against respondent Adaza, among others, cannot be dismissed as the mere product of whim or caprice on the part of the prosecutors who conducted the preliminary investigation. Said decision was fully justified in an eighteen (18)-page Resolution dated April 17, 1990.x[23] While it is true that the petitioners were fully aware of the prevailing jurisprudence enunciated in People v. Hernandez,x[24] which proscribes the complexing of murder and other common crimes with rebellion, petitioners were of the honest conviction that the Hernandez Case can be differentiated from the present case. The petitioners thus argued: Of course we are aware of the ruling in People vs. Hernandez, 99 Phil. 515, which held that common crimes like murder, arson, etc. are absorbed by rebellion. However, the Hernandez case is different from the present case before us. In the Hernandez case, the common crimes of murder, arson, etc. were found by the fiscal to have been committed as a necessary means to commit rebellion, or in furtherance thereof. Thus, the fiscal filed an information for rebellion alleging those common crimes as a necessary means of committing the offense charged under the second part of Article 48, RPC. We, however, find no occasion to apply the Hernandez ruling since as intimated above, the crimes of murder and frustrated murder in this case were absolutely unnecessary to commit rebellion although they were the natural consequences of the unlawful bombing. Hence, the applicable provision is the first part of Article 48 of the RPC.x[25] While the Supreme Court in the case of Enrile v. Salazar,x[26] addressing the issue of whether or not the Hernandez doctrine is still good law, in a 10-3 vote, did not sustain the position espoused by the herein petitioners on the matter, three justicesx[27] felt the need to re-study the Hernandez ruling in light of present-day

developments, among whom was then Chief Justice Marcelo Fernan who wrote a dissenting opinion in this wise: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956), should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion (p. 9, Decision). The Hernandez doctrine has served the purpose for which it was applied by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly-constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.x[28] Apparently, not even the Supreme Court then was of one mind in debunking the theory being advanced by the petitioners in this case, some of whom were also the petitioners in the Enrile case. Nevertheless, we held in Enrile that the Information filed therein properly charged an offense -- that of simple rebellion --x[29] and thereupon ordered the remand of the case to the trial court for the prosecution of the named accusedx[30] in the Information therein. Following this lead, the Information against Adaza in Criminmal Case No. Q-90-11855 was not quashed, but was instead treated likewise as charging the crime of simple rebellion. A doubtful or difficult question of law may become the basis of good faith and, in this regard, the law always accords to public officials the presumption of good faith and regularity in the performance of official duties.x[31] Any person who seeks to establish otherwise has the burden of proving bad faith or ill-motive. Here, since the petitioners were of the honest conviction that there was probable cause to hold respondent Adaza for trial for the crime of rebellion with murder and frustrated murder, and since Adaza himself, through counsel, did not allege in his complaint lack of probable cause, we find that the petitioners cannot be held liable for malicious prosecution. Needless to say, probable cause was not wanting in the institution of Criminal Case No. Q-9011855 against Adaza. As to the requirement that the prosecutor must be impelled by malice in bringing the unfounded action, suffice it to state that the presence of probable cause signifies, as a legal consequence, the absence of malice.x[32] At the risk of being repetitious, it is evident in this case that petitioners were not motivated by malicious intent or by a sinister design to unduly harass private respondent, but only by a well-founded belief that respondent Adaza can be held for trial for the crime alleged in the information. All told, the complaint, dated July 11, 1990, filed by Adaza before Branch 100 of the Regional Trial Court against the petitioners does not allege facts sufficient to constitute a cause of action for malicious prosecution. Lack of cause of action, as a ground for a motion to dismiss under Section 1 (g), Rule 16 of the Revised Rules of Court, must appear on the face of the complaint itself, meaning that it must be determined from the allegations of the complaint and from none other.x[33] The infirmity of the complaint in this regard is only too obvious to have escaped respondent judges attention. Paragraph 14 of the complaint which states:

x x x x x x

xxx

14. The malicious prosecution, nay persecution, of plaintiff for a non-existent crime had severely injured and besmirched plaintiffs name and reputation and forever stigmatized his stature as a public figure, thereby causing him extreme physical suffering, serious anxiety, mental anguish, moral shock and social humiliation.x[34] is a mere conclusion of law and is not an averment or allegation of ultimate facts. It does not, therefore, aid in any wise the complaint in setting forth a valid cause of action against the petitioners. It is worthy to note that this case was elevated to the public respondent Court of Appeals and now to this Court because of respondent Judge Macli-ings denial of petitioners motion to dismiss the Adaza complaint. The ordinary procedure, as a general rule, is that petitioners should have filed an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal.x[35] This general rule, however, is subject to certain exceptions, among which are, if the court denying the motion to dismiss acts without or in excess of jurisdiction or with grave abuse of discretion, in which case certiorari under Rule 65 may be availed of. The reason is that it would be unfair to require the defendants (petitioners in this case) to undergo the ordeal and expense of trial under such circumstances, because the remedy of appeal then would then not be plain and adequate.x[36] Judge Macliing committed grave abuse of discretion in denying petitioners motion to dismiss the Adaza complaint, and thus public respondent Court of Appeals should have issued the writ of certiorari prayed for by the petitioners and annulled the February 8, 1991 and May 14, 1991 Orders of respondent Judge. It was grievous error on the part of the court a quo not to have done so. This has to be corrected. Respondent Adazas baseless action cannot be sustained for this would unjustly compel the petitioners to needlessly go through a protracted trial and thereby unduly burden the court with one more futile and inconsequential case. WHEREFORE, the petition is GRANTED. The Resolutions of respondent Court of Appeals dated January 31, 1992 and September 2, 1992 affirming the February 8, 1991 and May 14, 1991 Orders of respondent Judge George C. Macli-ing are all hereby NULLIFIED AND SET ASIDE. Respondent Judge is DIRECTED to take no further action on Civil Case No. Q-90-6073 except to DISMISS the same. SO ORDERED. Padilla, (Chairman), Bellosillo, and Vitug, JJ., concur. Kapunan, J., concurs in the result.

[G.R. No. 135882. June 27, 2001] LOURDES T. MARQUEZ, in her capacity as Branch Manager, Union Bank of the Philippines, petitioners, vs. HON. ANIANO A. DESIERTO, (in his capacity as OMBUDSMAN, Evaluation and Preliminary Investigation Bureau, Office of the Ombudsman, ANGEL C. MAYOR-ALGO, JR., MARY ANN CORPUZ-MANALAC and JOSE T. DE JESUS, JR., in their capacities as Chairman and Members of the Panel, respectively, respondents. DECISION
PARDO, J.:

In the petition at bar, petitioner seeks to-a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, respondents order dated September 7, 1998 in OMB-0-970411, In Re: Motion to Cite Lourdes T. Marquez for indirect contempt, received by counsel of September 9, 1998, and their order dated October 14, 1998, denying Marquezs motion for reconsideration dated September 10, 1998, received by counsel on October 20, 1998. b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of the motion to cite Marquez for indirect contempt, through the issuance by this Court of a temporary restraining order and/or preliminary injunction.x[1] The antecedent facts are as follows:

Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to produce several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines, Julia Vargas Branch, where petitioner is the branch manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 24530318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et. al. The order further states: It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of records and documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989 and under existing jurisprudence on the matter. It must be noted that R. A. 6770 especially Section 15 thereof provides, among others, the following powers, functions and duties of the Ombudsman, to wit: x x x

(8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein. Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A. 1405) and places the office of the Ombudsman in the same footing as the courts of law in this regard.x[2] The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail of managers checks purchased by one George Trivinio, a respondent in OMB-0-97-0411, pending with the office of the Ombudsman. It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of P272.1 Million at Traders Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the amount of P70.6 million, were deposited and credited to an account maintained at the Union Bank, Julia Vargas Branch.x[3] On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B. Macalino at the banks main office, Ayala Avenue, Makati City. The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks furnished by Traders Royal Bank. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.x[4] However, on June 4, 1998, petitioner wrote the Ombudsman explaining to him that the accounts in question cannot readily be identified and asked for time to respond to the order. The reason forwarded by petitioner was that despite diligent efforts and from the account numbers presented, we can not identify these accounts since the checks are issued in cash or bearer. We surmised that these accounts have long been dormant, hence are not covered by the new account number generated by the Union Bank system. We therefore have to verify from the Interbank records archives for the whereabouts of these accounts.x[5] The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: firstly, it must be emphasized that Union Bank, Julia Vargas Branch was the depositary bank of the subject Traders

Royal Bank Managers Checks (MCs), as shown at its dorsal portion and as cleared by the Philippine Clearing House, not the International Corporate Bank. Notwithstanding the fact that the checks were payable to cash or bearer, nonetheless, the name of the depositor(s) could easily be identified since the account numbers x x x where said checks were deposited are identified in the order. Even assuming that the accounts xxx were already classified as dormant accounts, the bank is still required to preserve the records pertaining to the accounts within a certain period of time as required by existing banking rules and regulations. And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3, 1998, thereby giving the bank enough time within which to sufficiently comply with the order.x[6] Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents relative to the accounts in issue. The order states: Viewed from the foregoing, your persistent refusal to comply with Ombudsmans order is unjustified, and is merely intended to delay the investigation of the case. Your act constitutes disobedience of or resistance to a lawful order issued by this office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also constitute obstruction in the lawful exercise of the functions of the Ombudsman which is punishable under Section 36 of R.A. 6770.x[7] On July 10, 1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief, prohibition and injunctionx[8] with the Regional Trial Court, Makati City, against the Ombudsman. The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her rights from the court due to the clear conflict between R. A. No. 6770, Section 15 and R. A. No. 1405, Sections 2 and 3. Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and other persons acting under his authority were continuously harassing her to produce the bank documents relative to the accounts in question. Moreover, on June 16, 1998, the Ombudsman issued another order stating that unless petitioner appeared before the FFIB with the documents requested, petitioner manager would be charged with indirect contempt and obstruction of justice. In the meantime,x[9] on July 14, 1998, the lower court denied petitioners prayer for a temporary restraining order and stated thus: After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be without merit. Since the application prays for the restraint of the respondent, in the exercise of his contempt powers under Section 15 (9) in relation to paragraph (8) of R.A. 6770, known as The Ombudsman Act of 1989, there is no great or irreparable injury from which petitioners may suffer, if respondent is not so restrained. Respondent should he decide to exercise his contempt powers would still have to apply with the court. x x x Anyone who, without lawful excuse x x x refuses to produce documents for inspection, when thereunto lawfully required shall be subject to discipline as in case of contempt of Court and upon application of the individual or body exercising the power in question shall be dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the case in a manner provided by law (section 580 of the Revised Administrative Code). Under the present Constitution only judges may issue warrants, hence, respondent should apply with the Court for the

issuance of the warrant needed for the enforcement of his contempt orders. It is in these proceedings where petitioners may question the propriety of respondents exercise of his contempt powers. Petitioners are not therefore left without any adequate remedy. The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs. Amado Lagdameo, et. el., OMB-0-97-0411, for violation of R.A. 3019. Since petitioner failed to show prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be issued by this Court to delay this investigation pursuant to Section 14 of the Ombudsman Act of 1989.x[10] On July 20, 1998, petitioner filed a motion for reconsideration based on the following grounds: a. Petitioners application for Temporary Restraining Order is not only to restrain the Ombudsman from exercising his contempt powers, but to stop him from implementing his Orders dated April 29,1998 and June 16,1998; and b. The subject matter of the investigation being conducted by the Ombudsman at petitioners premises is outside his jurisdiction.x[11] On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief x[12] on the ground that the Regional Trial Court has no jurisdiction to hear a petition for relief from the findings and orders of the Ombudsman, citing R. A. No. 6770, Sections 14 and 27. On August 7, 1998, the Ombudsman filed an opposition to petitioners motion for reconsideration dated July 20, 1998.x[13] On August 19, 1998, the lower court denied petitioners motion for reconsideration,x[14] and also the Ombudsmans motion to dismiss.x[15] On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).x[16] On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the filing thereof was premature due to the petition pending in the lower court.x[17] Petitioner likewise reiterated that she had no intention to disobey the orders of the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her breaking any law, particularly R. A. No. 1405.x[18] Respondent Ombudsman panel set the incident for hearing on September 7, 1998.x[19] After hearing, the panel issued an order dated September 7, 1998, ordering petitioner and counsel to appear for a continuation of the hearing of the contempt charges against her.x[20] On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above order.x[21] Her motion was premised on the fact that there was a pending case with the Regional Trial Court, Makati City,x[22] which would determine whether obeying the orders of the Ombudsman to produce bank documents would not violate any law. The FFIB opposed the motion,x[23] and on October 14, 1998, the Ombudsman denied the motion by order the dispositive portion of which reads: Wherefore, respondent Lourdes T. Marquezs motion for reconsideration is hereby DENIED, for lack of merit. Let the hearing of the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt be

intransferrably set to 29 October 1998 at 2:00 oclock p.m. at which date and time she should appear personally to submit her additional evidence. Failure to do so shall be deemed a waiver thereof.x[24] Hence, the present petition.x[25] The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (R. A. No. 1405). An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the following exceptions: 1. Where the depositor consents in writing; 2. Impeachment case; 3. By court order in bribery or dereliction of duty cases against public officials; 4. Deposit is subject of litigation; 5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancaycox[26] The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI. We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case. In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be absolutely confidential except: (1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, (2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, (3) Upon written permission of the depositor, (4) In cases of impeachment, (5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or (6) In cases where the money deposited or invested is the subject matter of the litigationx[27]

In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection. Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code.x[28] IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place to comply with the order dated October 14, 1998, and similar orders. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

[G. R. No. 126486. February 9, 1998] BARONS MARKETING CORP., petitioner, vs. COURT OF APPEALS and PHELPS DODGE PHILS., INC. respondents. DECISION KAPUNAN, J.: The instant petition raises two issues: (1) whether or not private respondent is guilty of abuse of right; and (2) whether or not private respondent is entitled to interest and attorneys fe es. The facts are undisputed: On August 31, 1973, plaintiff [Phelps Dodge, Philippines, Inc. private respondent herein] appointed defendant [petitioner Barons Marketing, Corporation] as one of its dealers of electrical wires and cables effective September 1, 1973 (Exh. A). As such dealer, defendant was given by plaintiff 60 days credit for its purchases of plaintiffs electrical products. This credit term was to be reckoned from the date of delivery by plaintiff of its products to defendant (Exh. 1). During the period covering December 1986 to August 17, 1987, defendant purchased, on credit, from plaintiff various electrical wires and cables in the total amount of P4,102,438.30 (Exh. B to K). These wires and cables were in turn sold, pursuant to previous arrangements, by defendant to MERALCO, the former being the accredited supplier of the electrical requirements of the latter. Under the sales

invoices issued by plaintiff to defendant for the subject purchases, it is stipulated that interest at 12% on the amount due for attorneys fees and collection (Exh. BB).x[1] On September 7, 1987, defendant paid plaintiff the amount of P300,000.00 out of its total purchases as above-stated (Exh. S), thereby leaving an unpaid account on the aforesaid deliveries of P3,802,478.20. On several occasions, plaintiff wrote defendant demanding payment of its outstanding obligations due plaintiff (Exhs. L, M, N, and P). In response, defendant wrote plaintiff on October 5, 1987 requesting the latter if it could pay its outstanding account in monthly installments of P500,000.00 plus 1% interest per month commencing on October 15, 1987 until full payment (Exh. O and O-4). Plaintiff, however, rejected defendants offer and accordingly reiterated its demand for the full payment of defendants account (Exh. P).x[2] On 29 October 1987, private respondent Phelps Dodge Phils., Inc. filed a complaint before the Pasig Regional Trial Court against petitioner Barons Marketing Corporation for the recovery of P3,802,478.20 representing the value of the wires and cables the former had delivered to the latter, including interest. Phelps Dodge likewise prayed that it be awarded attorneys fees at the rate of 25% of the amount demanded, exemplary damages amounting to at least P100,000.00, the expenses of litigation and the costs of suit. Petitioner, in its answer, admitted purchasing the wires and cables from private respondent but disputed the amount claimed by the latter. Petitioner likewise interposed a counterclaim against private respondent, alleging that it suffered injury to its reputation due to Phelps Dodges acts. Such acts were purportedly calculated to humiliate petitioner and constituted an abuse of rights. After hearing, the trial court on 17 June 1991 rendered its decision, the dispositive portion of which reads: WHEREFORE, from all the foregoing considerations, the Court finds Phelps Dodge Phils., Inc. to have preponderantly proven its case and hereby orders Barons Marketing, Inc. to pay Phelps Dodge the following: 1. P3,108,000.00 constituting the unpaid balance of defendants purchases from plaintiff and interest thereon at 12% per annum computed from the respective expiration of the 60 day credit term, vis-vis the various sales invoices and/or delivery receipts; 2. 25% of the preceding obligation for and as attorneys fees; 3. P10,000.00 as exemplary damages; 4. Costs of suit.x[3] Both parties appealed to respondent court. Private respondent claimed that the trial court should have awarded it the sum of P3,802,478.20, the amount which appeared in the body of the complaint and proven during the trial rather than P3,108,000.00. The latter amount appears in petitioners prayer supposedly as a result of a typographical error. On the other hand, petitioner reiterated its claims for damages as a result of creditors abuse. It also alleged that private respondent failed to prove its cause of action against it. On 25 June 1996, the Court of Appeals rendered a decision modifying the decision of the trial court, thus:

WHEREFORE, from all the foregoing considerations, the Court finds Phelps Dodge Phils., Inc. to have preponderantly proven its case and hereby orders Barons Marketing, Inc. to pay Phelps Dodge the following: 1. P3,802,478.20 constituting the unpaid balance of defendants purchases from plaintiff and interest thereon at 12% per annum computed from the respective expiration of the 60 day credit term, vis-vis the various sales invoices and/or delivery receipts; and 2. 5% of the preceding obligation for and as attorneys fees. No costs.x[4] Petitioner Barons Marketing is now before this Court alleging that respondent court erred when it held (1) private respondent Phelps Dodge not guilty of creditors abuse, and (2) petitioner liable to private respondent for interest and attorneys fees. I Petitioner does not deny private respondents rights to institute an action for collection and to claim full payment. Indeed, petitioners right to file an action for collection is beyond cavil. x[5] Likewise, private respondents right to reject petitioners offer to pay in installments is guaranteed by Article 1248 of the Civil Code which states: ART. 1248. Unless there is an express stipulation to that effect, the creditor cannot be compelled partially to receive the prestations in which the obligation consists. Neither may the debtor be required to make partial payments. However, when the debt is in part liquidated and in part unliquidated, the creditor may demand and the debtor may effect the payment of the former without waiting for the liquidation of the latter. Under this provision, the prestation , i.e., the object of the obligation, must be performed in one act, not in parts. Tolentino concedes that the right has its limitations: Partial Prestations. Since the creditor cannot be compelled to accept partial performance, unless otherwise stipulated, the creditor who refuses to accept partial prestations does not incur in delay or mora accipiendi, except when there is abuse of right or if good faith requires acceptance.x[6] Indeed, the law, as set forth in Article 19 of the Civil Code, prescribes a primordial limitation on all rights by setting certain standards that must be observed in the exercise thereof .x[7] Thus: ART. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Petitioner now invokes Article 19 and Article 21x[8] of the Civil Code, claiming that private respondent abused its rights when it rejected petitioners offer of settlement and subsequently filed the action for collection considering:

xxx that the relationship between the parties started in 1973 spanning more than 13 years before the complaint was filed, that the petitioner had been a good and reliable dealer enjoying a good credit standing during the period before it became delinquent in 1987, that the relationship between the parties had been a fruitful one especially for the private respondent, that the petitioner exerted its outmost efforts to settle its obligations and avoid a suit, that the petitioner did not evade in the payment of its obligation to the private respondent, and that the petitioner was just asking a small concession that it be allowed to liquidate its obligation to eight (8) monthly installments of P500,000.00 plus 1% interest per month on the balance which proposal was supported by post-dated checks.x[9] Expounding on its theory, petitioner states: In the ordinary course of events, a suit for collection of a sum of money filed in court is done for the primary purpose of collecting a debt or obligation. If there is an offer by the debtor to pay its debt or obligation supported by post-dated checks and with provision for interests, the normal response of a creditor would be to accept the offer of compromise and not file the suit for collection. It is of common knowledge that proceedings in our courts would normally take years before an action is finally settled. It is always wiser and more prudent to accept an offer of payment in installment rather than file an action in court to compel the debtor to settle his obligation in full in a single payment. xxx. xxx. Why then did private respondent elect to file a suit for collection rather than accept petitioners offer of settlement, supported by post-dated checks, by paying monthly installments of P500,000.00 plus 1% per month commencing on October 15, 1987 until full payment? The answer is obvious. The action of private respondent in filling a suit for collection was an abuse of right and exercised for the sole purpose of prejudicing and injuring the petitioner.x[10] Petitioner prays that the Court order private respondent to pay petitioner moral and exemplary damages, attorneys fees, as well as the costs of suit. It likewise asks that it be allowed to liquidate its obligation to private respondent, without interests, in eight equal monthly installments. Petitioners theory is untenable. Both parties agree that to constitute an abuse of rights under Article 19 the defendant must act with bad faith or intent to prejudice the plaintiff. They cite the following comments of Tolentino as their authority: Test of Abuse of Right. Modern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another. Ultimately, however, and in practice, courts, in the sound exercise of their discretion, will have to determine all the facts and circumstances when the exercise of a right is unjust, or when there has been an abuse of right. x[11]

The question, therefore, is whether private respondent intended to prejudice or injure petitioner when it rejected petitioners offer and filed the action for collection. We hold in the negative. It is an elementary rule in this jurisdiction that good faith is presumed and that the burden of proving bad faith rests upon the party alleging the same.x[12] In the case at bar, petitioner has failed to prove bad faith on the part of private respondent. Petitioners allegation that private respondent was motivated by a desire to terminate its agency relationship with petitioner so that private respondent itself may deal directly with Meralco is simply not supported by the evidence. At most, such supposition is merely speculative. Moreover, we find that private respondent was driven by very legitimate reasons for rejecting petitioners offer and instituting the action for collection before the trial court. As pointed out by private respondent, the corporation had its own cash position to protect in order for it to pay its own obligations. This is not such a lame and poor rationalization as petitioner purports it to be. For if private respondent were to be required to accept petitioners offer, there would be no reason for the latter to reject similar offers from its other debtors. Clearly, this would be inimical to the interests of any enterprise, especially a profit-oriented one like private respondent. It is plain to see that what we have here is a mere exercise of rights, not an abuse thereof. Under these circumstances, we do not deem private respondent to have acted in a manner contrary to morals, good customs or public policy as to violate the provisions of Article 21 of the Civil Code. Consequently, petitioners prayer for moral and exemplary damages must thus be rejected. Petitioners claim for moral damages is anchored on Article 2219 (10) of the Civil Code which states: ART. 2219. Moral damages may be recovered in the following and analogous cases: xxx. (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. xxx. Having ruled that private respondents acts did not transgress the provisions of Article 21, petitioner cannot be entitled to moral damages or, for that matter, exemplary damages. While the amount of exemplary damages need not be proved, petitioner must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded.x[13] As we have observed above, petitioner has failed to discharge this burden. It may not be amiss to state that petitioners contract with private respondent has the force of law between them.x[14] Petitioner is thus bound to fulfill what has been expressly stipulated therein.x[15] In the absence of any abuse of right, private respondent cannot be allowed to perform its obligation under such contract in parts. Otherwise, private respondents right under Article 1248 will be negated, the sanctity of its contract with petitioner defiled. The principle of autonomy of contractsx[16] must be respected. II Under said contract, petitioner is liable to private respondent for the unpaid balance of its purchases from private respondent plus 12% interest. Private respondents sales invoices expressly provide that:

xxx. Interest at 12% per annum will be charged on all overdue account plus 25% on said amount for attorneys fees and collection. xxx.x[17] It may also be noted that the above stipulation, insofar as it provides for the payment of 25% on said amount for attorneys fees and collection (sic), constitutes what is known as a penal clause.x[18] Petitioner is thus obliged to pay such penalty in addition to the 12% annual interest, there being an express stipulation to that effect. Petitioner nevertheless urges this Court to reduce the attorneys fees for being grossly excessive, considering the nature of the case which is a mere action for collection of a sum of money. It may be pointed out however that the above penalty is suppo sed to answer not only for attorneys fees but for collection fees as well. Moreover: x x x the attorneys fees here provided is not, strictly speaking, the attorneys fees recoverable as between attorney and client spoken of and regulated by the Rules of Court. Rather, the attorneys fees here are in the nature of liquidated damages and the stipulation therefor is aptly called a penal clause. It has been said that so long as such stipulation does not contravene law, morals, or public order, it is strictly binding upon defendant. The attorneys fees so provided are awarded in favor of the litigant, not his counsel. It is the litigant, not counsel, who is the judgment creditor entitled to enforce the judgment by execution.x[19] Nonetheless, courts are empowered to reduce such penalty if the same is iniquitous or unconscionable. Article 1229 of the Civil Code states thus: ART. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable. (Underscoring supplied.) The sentiments of the law are echoed in Article 2227 of the same Code: ART. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. It is true that we have upheld the reasonableness of penalties in the form of attorneys fees consisting of twenty-five percent (25%) of the principal debt plus interest.x[20] In the case at bar, however, the interest alone runs to some four and a half million pesos (P4.5M), even exceeding the principal debt amounting to almost four million pesos (P4.0M). Twenty five percent (25%) of the principal and interest amounts to roughly two million pesos (P2M). In real terms, therefore, the attorneys fees and collection fees are manifestly exorbitant. Accordingly, we reduce the same to ten percent (10%) of the principal. Private respondent, however, argues that petitioner failed to question the award of attorneys fees on appeal before respondent court and raised the issue only in its motion for reconsideration. Consequently, petitioner should be deemed to have waived its right to question such award. Private respondents attempts to dissuade us from reducing the penalty are futile. The Court is clothed with ample authority to review matters, even if they are not assigned as errors in their appeal, if it finds that their consideration is necessary in arriving at a just decision of the case.x[21]

WHEREFORE, the decision of the Court of Appeals is hereby MODIFIED in that the attorneys and collection fees are reduced to ten percent (10%) of the principal but is AFFIRMED in all other respects. SO ORDERED. Narvasa, C.J., Romero, Francisco, and Purisima, JJ., concur.

[G.R. No. 129132. July 8, 1998] ISABELITA VITAL-GOZON, petitioner, vs. HONORABLE COURT OF APPEALS and ALEJANDRO DE LA FUENTE, respondents. DECISION DAVIDE, JR., J.: This is a sequel to our decisionx[1] of 5 August 1992 in G.R. No. 101428, entitled Isabelita VitalGozon v. The Honorable Court of Appeals, et al., which held that the Court of Appeals had jurisdiction, in a special civil action for mandamus against a public officer (docketed therein as CAG.R. SP No. 16438 and entitled Dr. Alejandro S. de la Fuente v. Dr. Isabelita Vital-Gozon, et al.), to take cognizance of the claim for damages against respondent public officer. Specifically, the instant petition seeks to reverse the Resolution of 7 May 1997x[2] of respondent Court of Appeals in CA-G.R. SP No. 16438 awarding to petitioner below, now private respondent, moral and exemplary damages and attorneys fees after hearing the evidence thereon som etime after this Courts decision in G.R. No. 101428 became final. The factual antecedents then, as found by us in G.R. No. 101428, must be restated, thus: In the early months of 1987 -- and pursuant to Executive Order No. 119 issued on January 30, 1987 by President Corazon C. Aquino -- reorganization of the various offices of the

Ministry of Health commenced; existing offices were abolished, transfers of personnel effected. At the time of the reorganization, Dr. Alejandro S. de la Fuente was the Chief of Clinics of the National Children's Hospital, having been appointed to that position on December 20, 1978. Prior thereto, he occupied the post of Medical Specialist II, a position to which he was promoted in 1977 after serving as Medical Specialist I of the same hospital for six (6) years (since 1971). On February 4, 1988 Dr. de la Fuente received notice from the Department of Health that he would be re-appointed Medical Specialist II. Considering this to be a demotion by no less than two ranks from his post as Chief of Clinics, Dr. de la Fuente filed a protest with the DOH Reorganization Board. When his protest was ignored, he brought his case to the Civil Service Commission where it was docketed as CSC Case No. 4. In the meantime the duties and responsibilities pertaining to the position of Chief of Clinics were turned over to and were allowed to be exercised by Dr. Jose D. Merencilla, Jr. Dr. de la Fuentes case was decided by the Civil Service Commission in a Resolution dated August 9, 1988. In that Resolution, the Commission made the following conclusion and disposition, to wit: xxx (The Commission) declares the demotion/transfer of appellant dela Fuente, Jr. from Chief of Clinics to Medical Specialist II as null and void: hence, illegal. Considering further that since the National Children's Hospital was not abolished and the positions therein remained intact although the title or the position of Chief of Clinics was changed to 'Chief of Medical Professional Staff' with substantially the same functions and responsibilities, the Commission hereby orders that: 1. Appellant dela Fuente, Jr. be retained or considered as never having relinquished his position of Chief of Clinics (now Chief of Medical Professional Staff) without loss of seniority rights; and He be paid back salaries, transportation, representation and housing allowances and such other benefits withheld from him from the date of his illegal demotion/transfer.

2.

No motion for reconsideration of this Resolution was ever submitted nor appeal therefrom essayed to the Supreme Court, within the thirty-day period prescribed therefor by the Constitution. Consequently, the resolution became final, on September 21, 1988. De la Fuente thereupon sent two (2) letters to Dr. Vital-Gozon, the Medical Center Chief of the National Childrens Hospital, demanding implementation of the Commission's decision. Dr. Vital-Gozon referred de la Fuentes claims to the Department of Health Assistant Secretary for Legal Affairs for appropriate advice and/or action xxx (She did this allegedly because, according to the Solicitor General, she was) unaware when and how a CSC Resolution becomes final and executory, whether such Resolution had in fact become final and executory and whether the DOH Legal Department would officially assail the mentioned Resolution. But she did not answer Dr. de la Fuentes letters, not even to inform him of the referral thereof to the Assistant Secretary. She chose simply to await legal guidance from the DOH Legal Department. On the other hand, no one in the DOH Legal Department bothered to reply to Dr. de la Fuente, or to take steps to comply or otherwise advise compliance, with the final and executory Resolution of the Civil Service Commission. In fact, de la Fuente claims that Vital-Gozon had actually threatened to stop paying xxx (his) salary

and allowances on the pretext that he has as yet no 'approved' appointment even as Medical Specialist II x x x. Three months having elapsed without any word from Vital-Gozon or anyone in her behalf, or any indication whatever that the CSC Resolution of August 9, 1988 would be obeyed, and apprehensive that the funds to cover the salaries and allowances otherwise due him would revert to the General Fund, Dr. de la Fuente repaired to the Civil Service Commission and asked it to enforce its judgment. He was however told to file in court a petition for mandamus because of the belief that the Commission had no coercive powers -- unlike a court -- to enforce its final decisions/resolutions. So he instituted in the Court of Appeals on December 28, 1988 an action of mandamus and damages with preliminary injunction to compel Vital-Gozon, and the Administrative Officer, Budget Officer and Cashier of the NCH to comply with the final and executory resolution of the Civil Service Commission. He prayed for the following specific reliefs: (1) (That) xxx a temporary restraining order be issued immediately, ordering the principal and other respondents to revert the funds of the NCH corresponding to the amounts necessary to implement the final resolution of the CSC in CSC Case No. 4 in favor of herein petitioner, Dr. Alejandro S. de la Fuente, Jr., and to pay such sums which have accrued and due and payable as of the date of said order; (2) After hearing on the prayer for preliminary injunction, that the restraining order be converted to a writ of preliminary injunction; and that a writ of preliminary mandatory injunction be issued ordering principal respondent and the other respondents to implement in full the said final resolution; and That, after hearing on the merits of the petition, that judgment be rendered seeking (sic) permanent writs issued and that principal respondent be ordered and commanded to comply with and implement the said final resolution without further delay; and, furthermore, that the principal respondent be ordered to pay to the petitioner the sums of P100,000.00 and P20,000.00 as moral and exemplary damages, and P10,000.00 for litigation expenses and attorney's fees. xxx The Court of Appeals required the respondents to answer. It also issued a temporary restraining order as prayed for, and required the respondents to show cause why it should not be converted to a writ of preliminary injunction. The record shows that the respondents prayed for and were granted an extension of fifteen (15) days to file their answer through counsel, who, as the Court of Appeals was later to point out, did not bother to indicate his address, thus notice was sent to him through the individual respondents xxx (However, no) answer was filed; neither was there any show cause [sic] against a writ of preliminary injunction. It was a certain Atty. Jose Fabia who appeared in Vital-Gozon's behalf. About a month afterwards, de la Fuente filed with th e same Court a Supplemental/Amended Petition dated February 2, 1989. The second petition described as one for quo warranto aside from mandamus, added three respondents including Dr. Jose Merencilla, Jr.; and alleged inter alia that he (de la Fuente) had clear title to the position in question [by] virtue of the final and executory judgment of the Civil Service Commission; that even after the Commission's judgment had become final and executory and been communicated to VitalGozon, the latter allowed Dr. Merencilla, Jr. as OIC Professional Service to further usurp,

(3)

intrude into and unlawfully hold and exercise the public office/position of petitioner (under a duly approved permanent appointment as Chief of Clinics since 1978). De la Fuente thus prayed, additionally, for judgment: (a) Declaring that principal respondent Dr. Jose D. Merencilla, Jr. is not legally entitled to the office of Chief of Clinics (now retitled/known as Chief of Medical Professional Staff, NCH), ousting him therefrom and ordering said respondent to immediately cease and desist from further performing as OIC Professional Service any and all duties and responsibilities of the said office; (and) (b) Declaring that the petitioner, Dr. Alejandro S. de la Fuente, Jr., is the lawful or de jure Chief of Clinics (now known as Chief of the Medical Professional Staff and placing him in the possession of said office/position, without the need of reappointment or new appointment as held by the Civil Service Commission in its resolution of August 9, 1988, in CSC Case No. 4. xxx." Copy of the Supplemental/Amended Petition was sent to Atty. Jose A. Favia, Counsel for Respondents c/o Dr. Ma. Isabelita Vital-Gozon, etc., National Children's Hospital, E. Rodriguez Ave., Quezon City (Atty. Fabia's address not being indicated or mentioned in his motion for Extension of Time). Again the Court of Appeals required answer of the respondents. Again, none was filed. The petitions were consequently resolved on the basis of their allegations and the annexes. The Appellate Court promulgated its judgment on June 9, 1989. It held that -The question of whether petitioner may be divested of his position as Chief of Clinics by the expedient of having him appointed to another, lower position is no longer an issue. It ceased to be such when the resolution in CSC Case No. 4 became final. The said resolution is explicit in its mandate; petitioner was declared the lawful and de jure Chief of Clinics (Chief of the Medical Professional Staff) of the National Childrens Hospital, and by this token, respondent Dr. Jose D. Merencilla, Jr. is not legally entitled to the office. Respondents, particularly Dr. Isabelita Vital-Gozon, had no discretion or choice on the matter; the resolution had to be complied with. It was ill-advised of principal respondent, and violative of the rule of law, that the resolution has not been obeyed or implemented. and accordingly ordered xxx respondents, particularly Dr. Isabelita Vital-Gozon, xxx to forthwith comply with, obey and implement the resolution in CSC Case No. 4 (and) xxx Dr. Jose D. Merencilla, Jr., who is not entitled to the office, xx to immediately cease and desist from further performing and acting as OIC Professional Service. But de la Fuente's prayer for damages -- founded essentially on the refusal of Gozon, et al. to obey the final and executory judgment of the Civil Service Commission, which thus compelled him to litigate anew in a different forum -- was denied by the Court of Appeals on the ground that the petitions (for mandamus) are not the vehicle nor is the Court the forum for xxx (said) claim of damages. Gozon acknowledged in writing that she received a copy of the Appellate Tribunal's Decision of June 9, 1989 on June 15, 1989. Respondent de la Fuente acknowledged receipt of his

own copy on June 15, 1989. Neither Vital-Gozon nor her co-party, Dr. Merencilla, Jr., moved for reconsideration of, or attempted to appeal the decision. It was de la Fuente who sought reconsideration of the judgment, by motion filed through new counsel, Atty. Ceferino Gaddi. He insisted that the Appellate Court had competence to award damages in a mandamus action. He argued that while such a claim for damages might not have been proper in a mandamus proceeding in the Appellate Court before the enactment of B.P. Blg. 129 because the Court of Appeals had authority to issue such writs only in aid of its appellate jurisdiction, the situation was changed by said BP 129 in virtue of which three levels of courts -- the Supreme Court, the Regional Trial Court, and the Court of Appeals -- were conferred concurrent original jurisdiction to issue said writs, and the Court of Appeals was given power to conduct hearings and receive evidence to resolve factual issues. To require him to separately litigate the matter of damages, he continued, would lead to that multiplicity of suits which is abhorred by the law. While his motion for reconsideration was pending, de la Fuente sought to enforce the judgment of the Court of Appeals of June 9, 1989 -- directing his reinstatement pursuant to the Civil Service Commissions Resolution of August 9, 1988, supra. He filed on July 4, 1989 a Motion for Execution, alleging that the judgment of June 9, 1989 had become final and executory for failure of Gozon, et al. -- served with notice thereof on June 16, 1989 -- to move for its reconsideration or elevate the same to the Supreme Court. His motion was granted by the Court of Appeals in a Resolution dated July 7, 1989, reading as follows: The decision of June 9, 1989 having become final and executory, as prayed for, let the writ of execution issue forthwith. The corresponding writ of execution issued on July 13, 1989, on the invoked authority of Section 9, Rule 39. The writ quoted the dispositive portion of the judgment of June 9, 1989, including, as the Solicitor Generals Office points out, the second paragraph to the effect that the petitions are not the vehicle nor is the Court the forum for the claim of damages; (hence,) the prayer therefor is denied. The writ of execution notwithstanding, compliance with the June 9, 1989 judgment was not effected. Consequently, de la Fuente filed, on July 20, 1989, an Urgent Ex Parte Manifestation with Prayer to Cite Respondents for Contempt, comp laining that although Gozon and her co-parties had been served with the writ of execution on July 14, they had not complied therewith. By Resolution dated July 26, 1989, the Court required Gozon and Merencilla to appear before it on August 3, 1989 to answer the charge and show cause why they should not be adjudged in contempt for disobeying and/or resisting the judgment. At the hearing Gozon and Merencilla duly presented themselves, accompanied by their individual private lawyers -- one for Gozon (Felipe Hidalgo, Jr.), two for Merencilla (Bernardo S. Nera and Moises S. Rimando). One other lawyer appeared in their behalf, from the Health Department, Artemio Manalo, who stated that he was there in behalf of Jose A. Fabia. They explained that they had no intention to defy the Court, they had simply referred the matter to their superiors in good faith; and they were perfectly willing to comply with the judgment, undertaking to do so even in the afternoon of that same day. The Court consequently ordered them "to comply with their undertaking xxx without any further delay, and report the action taken towards this end, within five (5) days. On August 9, 1989, Gozon, as Medical Center Chief, sent a letter to Associate Justice Pedro A. Ramirez, advising that under Hospital Special Order No. 31 dated August 3, 1989, de la Fuente had been directed to assume the position of Chief of the Medical Professional

Staff, and that a voucher for the payment of his allowances had been prepared and was being processed. More than a month later, or more precisely on September 27, 1989, the Court of Appeals promulgated another Resolution, this time resolving de la Fuente's motion for reconsideration of June 29, 1989. It modified the Decision of June 9, 1989 by (a) deleting its last paragraph (disallowing the claim of damages, supra), (b) consequently describing and treating it as a PARTIAL DECISION, and (c) scheduling further proceedings for the purpose of receiving evidence (of damages), since said question cannot be resolved by mere reference to the pleadings. This was done in reliance on Section 3, Rule 65 of the Rules of Court, invoked by de la Fuente, which reads as follows: SEC. 3. Mandamus. -- When any tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. At about this time, yet another lawyer, Atty. Pedro F. Martinez entered his appearance for Isabelita Gozon. At his instance, the Court gave him an opportunity to xxx file a motion for reconsideration of the Resolution of September 27, 1989. That motion he filed by registered mail on November 10, 1989. His basic contentions were (a) that the decision of June 9, 1989 could no longer be altered, having become final and executory and having in fact been executed, and (b) that under BP 129, the Appellate Court had no jurisdiction over the question of damages in a mandamus action. The Office of the Solicitor General also put in an appearance in Gozon's behalf at this juncture, saying that the case had been referred to it only on November 14, 1989. It, too, sought reconsideration of the Resolution of September 27, 1989. It filed on November 16, 1989 an Omnibus Motion: I. For Reconsideration of Resolution dated September 27, 1989; and II. To defer hearing on petitioner's claims for damages. Both motions were denied by the Court of Appeals in a Resolution dated January 11, 1991. In that Resolution, the Court 1) declared that the amended decision had already become final and could no longer be re-opened because, although a copy of the amendatory resolution was received by counsel who was representing Gozon on October 3, 1989, the first motion for reconsideration was not mailed until November 10, 1989 and the Solicitor Generals Omnibus Motion was not filed until November 16, 1989; and 2) prohibited the Solicitor General from representing Gozon in connection with xx (de la Fuentes) claim for damages, on the authority of this Courts ruling promulgated on March 19, 1990 in G.R. No. 87977 (Urbano, et al. v. Chavez, et al.) and G.R. No. 88578 (Co v. Regional Trial Court of Pasig). Notice of this Resolution of January 11, 1991 was served on the Solicitor Generals Office on January 18, 1991. Again the Solicitor General sought reconsideration, by motion dated January 25, 1991 and filed on January 30, 1991. Again it was rebuffed. In a Resolution rendered on August 7, 1991, served on the Solicitor Generals Office on August 20, 1991,

the Court of Appeals denied the motion. It ruled that the question of the authority of the Solicitor General to appear as counsel for respondent Gozon xxx (had already) been extensively discussed, and that its jurisdiction xxx to hear and determine issues on damages proceeds from Sec. 9, Batas Pambansa 129 as amended. In an attempt to nullify the adverse dispositions of the Court of Appeals -- and obtain the ultimate and corollary relief of dismissing respondent de la Fuentes claim for damages - the Solicitor Generals Office has instituted the special civil action of certiorari at bar. It contends that the Court of Appeals is not legally competent to take cognizance of and decide the question of damages in a mandamus suit. xxxx[3] On 5 May 1993, the Court of Appeals issued a Resolutionx[4] which noted that our decision in G.R. No. 101428 had become final and left the option to reopen the case to de la Fuente. In its resolution of 26 October 1995,x[5] the Court of Appeals, inter alia, set the hearing for reception of evidence on the matter of damages on 7 December 1995. After de la Fuente presented his evidence, the Court of Appeals set reception of Vital-Gozons evidence on 16 and 17 January 1996.x[6] At the scheduled hearing on 16 January 1996, Conrado M. Dela Fuente sought to block the presentation of Vital-Gozons evidence on the ground that the former had not filed an answer, which the latter refuted. The hearing was then reset to other dates for the parties to prove their respective claims. Vital-Gozon submitted, on 18 January 1996, copies of a Manifestation and Motion dated 10 September 1992 to which was attached an Answer likewise dated 10 September 1992. It was claimed in the Manifestation that the answer to the claim for damages could not have been filed earlier as the jurisdiction of the Court of Appeals over de la Fuentes claim for damages had been questioned before the Supreme Court. Vital-Gozon likewise claimed that copies of the Manifestation and Motion were received by the Court of Appeals on 18 September 1992 at 3:40 p.m. and sent by registered mail to counsel for dela Fuente.x[7] The filing of the Manifestation and Motion with the Court of Appeals was confirmed by Remigio M. Escalada, Jr., Division Clerk of Court of the Fifth Division of the Court of Appeals in an undated Report.x[8] He further disclosed that the pleading was transmitted to the Archives Section on 19 September 1992. The Court of Appeals then ordered the parties to submit their respective memoranda,x[9] after which, the Court of Appeals promulgated, on 20 March 1997, a resolution denying petitioners motion to admit her Answer to the petition and supplemental/amended petition for mandamus with damages, on the ground that the period to file the answer had long prescribed, thus: It was too late that the answer was filed in this Court on September 18, 1992, after promulgation on August 5, 1992, of the decision of the Supreme Court in G.R. No. 101428. The prescribed period to file such answer as well as the extended period had long expired on January 24, 1989 (pp. 35, 37, 55, Rollo) by the time respondents answer was filed in this Court on September 18, 1992. She had another opportunity to answer when petitioner filed a supplemental/amended petition. (pp. 57, 72, Rollo). Still, she filed none. It is evident respondent just ignored the case filed against her or gave no importance to the petitions and the notices sent to her by this Court. The delay in filing her answer is inexcusable. After promulgation and upon finality of this Courts decision granting the principal relief sought by the petitioner, the instant case for mandamus was virtually disposed of with the exception of the incidental damages that petitioner has claimed. It was uncontested in view of respondents failure to answer the petition setting up her defenses. Con sequently, the

allegations in the petition and supplemental petition were deemed admitted; unpleaded defenses were deemed waived and any counterclaim not set up, barred (Sections 1, 2 and 4, Rule 9, Revised Rules of Court). Such procedural rules would become meaningless unless strictly complied with by litigants. As clearly indicated in the proposed answer, respondents purpose is to set up a counterclaim already barred and to plead defenses already waived. Besides, the parties as well as this Court are bound by the comprehensive findings and conclusions of the Supreme Court in its final decision in G.R. No. 101428, based on the uncontroverted allegations of the verified petitions. So are they bound thereby in this proceeding which deals with the lone issue of incidental damages claimed by petitioner. What remains to be done by this Court is but the determination of whether respondents wrongful act or refusal/failure to perform an official duty caused injury to the claimant and the amount of the damages that may be awarded in his favor.x[10] Respondent court then set the hearing of the case on 22-23 April 1997 for the presentation of [VitalGozons] evidence to controvert or rebut that of [de la Fuente] which he has adduced in support of his claim for damages. In its resolutionx[11] of 21 April 1997, the Court of Appeals denied petitioners motion to reconsiderx[12] the 20 March 1997 resolution. Petitioner then opted not to present her evidence, as she intended to file a petition with the Supreme Court questioning the validity of the 20 March 1997 resolution and 21 April 1997 order of the Court of Appeals.x[13] On 7 May 1997, the Court of Appeals promulgated a Resolutionx[14] finding petitioner liable for damages and ordered her to pay private respondent P50,000.00 as moral damages, P20,000.00 as exemplary damages and P10,000.00 as attorneys fees. In support thereof, respondent court quoted our finding in G.R. No. 101428,x[15] to wit: The record demonstrates that Vital-Gozon was fully aware of the following acts and events: 1) the proceeding commenced by de la Fuente in the Civil Service Commission in protest against his demotion; the Commissions Resolution of August 9, 1988 as well, particularly, as the direction therein that de la Fuente be reinstated and paid all his back salaries and other monetary benefits otherwise due him, this being couched in fairly simple language obviously understandable to persons of ordinary or normal intelligence; no less than two (2) written demands of de la Fuente for implementation of the CSCs aforesaid Resolution of August 9, 1988; the petition filed by de la Fuente in the Court of Appeals for enforcement of the CSC Resolution of August 9, 1988; the extension granted by said Court of Appeals within which to file answer, notice thereof having been sent directly to her and her co-respondents since the attorney who sought the extension in their behalf (Atty. Fabia) did not set out his address in his motion for extension;

2)

3)

4)

5)

6)

the supplemental/amended petition subsequently presented by de la Fuente, copy of which was sent to Atty. Fabia, c/o Dr. Vital-Gozon; and the Decision and Amendatory Decision sent to her counsel on October 3, 1989.

7)

To all these, her reaction, and that of the officials of the Department of Health concerned, was a regrettably cavalier one, to say the least. Neither she nor the Health officials concerned accorded said acts and events any importance. She never bothered to find out what was being done to contest or negate de la Fuentes petitions and actions, notwithstanding that as time went by, de la Fuentes efforts were being met with success. Nothing in the record even remotely suggests that Vital-Gozon merits relief from the final and executory Resolution of the Civil Service Commission. This Court will not disturb that Resolution. It is satisfied that no procedural or substantive errors taint that Resolution, or its becoming final and executory. The Court of Appeals then considered the evidence for private respondent and the applicable law, thus: Upon respondents continued refusal without justifiable cause to implement the final resolution of the Civil Service Commission upholding petitioners right to the position he has been claiming with back salaries, transportation, representation and housing allowances and other benefits withheld from him, petitioner is entitled to the damages he claims. Testifying in his own behalf petitioner declared that he was greatly disturbed, shocked and frustrated during the three months preceding the filing of his petition; that he had sleepless nights and suffered from mental anxiety, mental anguish, worry, tension and humiliation when respondent ignored and disregarded the final resolution of the Civil Service Commission; that he felt harassed by her refusal because he had to go to court to obtain relief and had to incur additional expenses for litigation which he could hardly afford; and that he had to spend no less than P5,000 for court fees and incidental expenses and to pay his counsel P10,000 at the end of the litigation (pp. 6, 7, 12, 13, t.s.n., Dec. 7, 1995). All these respondent has not successfully rebutted by her evidence since she adduced none in her behalf. Petitioner, therefore, is entitled to recover moral damages from respondent for her refusal and neglect without just cause to perform her official duty to reinstate petitioner to the position he was entitled, as ordered by the Civil Service Commission in its decision. While he was reinstated to his position, petitioner had to seek the aid of the courts for that purpose. In point is the case of San Luis vs. Court of Appeals, decided by the Supreme Court on June 26, 1989 (174 SCRA 258, 276), which involves the unlawful suspension and dismissal by a Provincial Governor of a quarry superintendent and the Governors obstinate refusal to comply with the final decisions of the Civil Service Commission and the Office of the President which declared said suspension and dismissal unlawful or without just cause. The Supreme Court held that the Governor (who was sued both in his official and private capacities) was personally liable for the damages claimed and awarded in favor of the offended party P50,000 as moral damages and P20,000 for attorneys fees and litigation expenses. Tan Kapoe vs. Masa, decided January 21, 1985 (134 SCRA 231), is also pertinent. There the Supreme Court upheld the award of moral damages although it was made on the basis of documentary evidence x x x without supporting oral testimonies. And the award of exemplary damages, in addition to moral damages, was also deemed proper even if not expressly pleaded in the complaint nor proved. Such award of exemplary damages is by way of example or correction for the public good, in addition to moral damages

(Article 2229, Civil Code). Inasmuch as petitioner is entitled to exemplary damages, he should be awarded attorneys fees. The award in favor of petitioner of moral and exemplary damages are attorneys fees in the amounts of P50,000, P20,000 and P10,000, respectively, is but fair and just and not excessive.x[16] Unsatisfied, petitioner forthwith filed the instant petition for review on certiorari under Rule 45 of the Rules of Court. She prays that we reverse and set aside the challenged Resolution on the following grounds: 1. There is absolutely no ground for the award of moral and exemplary damages, as well as attorneys fees. 2. Petitioners right to due process was violated. Anent the first ground, petitioner asserts there is no factual basis for the award of moral damages for, concretely, private respondent was unable to show any causal connection between his supposed injury and petitioners alleged actionable wrong. Petitioner argues tha t while testifying, private respondent simply made generalized statements that he had sleepless nights and suffered mental anxiety, mental anguish, worry, tension and humiliation. Petitioner next reiterates her stand that she had nothing to do with the Civil Service case relative to respondents original position, as she was not yet connected with the NCH when said case was filed. Moreover, the failure to immediately reinstate private respondent was caused by the directive of the Legal Department of the Department of Health, to which office she forwarded the decision of the Civil Service Commission for guidance, pursuant to standard procedure. Petitioner, therefore, acted in good faith. She likewise faults the Court of Appeals for considering our observations in G.R. No. 101428 as factual findings which bound respondent court. As to exemplary damages, petitioner asserts that she did not act with vindictiveness nor wantonness, hence the award of said damages was unwarranted,x[17] as such, there could likewise be no basis for the award of attorneys fees.x[18] Anent the second ground, petitioner contends that she was sued in her official capacity, hence could not be held liable for damages, and to hold otherwise would violate her right to due process as a private individual, citing Cario v. Agricultural Credit and Cooperative Financing Administrationx[19] and Animos v. Philippine Veterans Affairs Office.x[20] Petitioner further argues that the Court of Appeals denied her due process by refusing to admit her answer, considering that: (a) she personally attended each and every hearing of the mandamus case; (b) in its decision of 9 June 1989, the Court of Appeals explicitly declared that it was not the proper forum for the claim for damages, at which point then the necessity of an answer had become moot; (c) it was only on 27 September 1989 that the Court of Appeals reconsidered its decision of 9 June 1989 thereby upholding its jurisdiction to hear the claims for damages; (d) but then, consistent with her stand that the Court of Appeals had no jurisdiction over the claims for damages, she assailed such ruling before this Court, hence she could not have been expected to file an answer; (e) nonetheless, upon receipt of the adverse decision of this Court of 4 August 1992 in G.R. No. 101428, she immediately filed her answer with a corresponding motion for its admission; and (f) while her motion for admission of the answer had been pending since 18 October 1992, the Court of Appeals did not act on it until it was already her turn to present her evidence on the claim for damages. In his comment on the petition submitted in compliance with the Resolution of 21 July 1997, private respondent contends that: (a) petitioners incomplete and slanted version of the facts of the case

cannot be relied upon; (b) the factual findings of this Court in G.R. No. 101428 are conclusive and binding, hence the Court of Appeals did not err nor abuse its discretion in relying on said findings; (c) petitioners invocation of state immunity is untenable as she was sued not in her official capacity, and assuming otherwise, petitioner could nevertheless be held liable for damages under Articles 20, 27 and 2176 of the Civil Code and Section 3, Rule 65 of the Rules of Court; (d) the Court of Appeals did not err in denying petitioners motion to admit her answer; and (e) the Court of Appeals awards of moral and exemplary damages and attorneys fees were proper, fair, reasonable, justified and in accord with the law and precedent. Two principal issues thus confront us, viz: (a) whether petitioner was denied due process when her answer to the petition was not admitted; and (b) whether the awards of moral and exemplary damages and attorneys fees were proper. These will be resolved in seriatim. I We do not hesitate to rule that petitioner was not denied due process. The record of CA-G.R. SP No. 16438 shows that in the resolution of 29 December 1998, the Court of Appeals gave due course to private respondents petition and required herein petitioner and the other respondents to answer the petition within 10 days from notice of the resolution.x[21] On 9 January 1988, petitioner and the other respondents, represented by Atty. Jose Fabia, filed a motion for an extension of 15 days from said date within which to file their answer, which respondent court granted in its resolution of 17 January 1989.x[22] Likewise, on 17 January 1989, private respondent, as petitioner below, was granted leave to file a supplemental/amended petition.x[23] The Supplemental/Amended Petition was filed on 3 February 1989,x[24] and in the resolution of 9 February 1989,x[25] the Court of Appeals required petitioner herein and her co-respondents in CAG.R. SP No. 16438 to file their answer thereto within 10 days from notice. However, no such answer was filed, and on 9 June 1989, the Court of Appeals rendered its decision.x[26] De la Fuente seasonably filed a motion for reconsideration,x[27] principally as regards the holding that the petitions are not the vehicle nor is the Court the forum for the claim of damages. A copy of this motion was furnished counsel for respondents. Respondents therein were then required, in the resolution of 5 July 1989,x[28] to comment within 10 days from notice. However, respondents below once more failed to comply. Thus, on 27 September 1989, the Court of Appeals promulgated a resolutionx[29] granting the motion for reconsideration by deleting therefrom the challenged portion of its decision of 9 June 1989. Respondent court then set reception of evidence on the claims for damages on 9 and 11 of October 1989. Respondents below, represented by new counsel, Atty. Pedro Martinez, and the rest by the Office of the Solicitor General, filed motions to reconsider the resolution of 27 September 1989, primarily on the ground that the Court of Appeals had no jurisdiction over the claim for damages in the petition for mandamus. The incidental issue of the authority of the Solicitor General to appear for herein petitioner in respect of the claim for damages against her in her personal capacity was also raised. These matters became the subject of various pleadings. Eventually, on 11 January 1991, the Court of Appeals promulgated a resolutionx[30] which gave rise to G.R. No. 101428, after the Court of Appeals denied herein petitioners motion for reconsideration. Clearly, therefore, petitioners failure to file the answer to the petition was due to her fault or negligence. She was, by formal resolutions of the Court of Appeals, required to file answers to both the original petition and the Supplemental/Amended Petition; yet, she failed to heed both resolutions. As regards the resolution to answer the Supplemental/Amended Petition, herein petitioner totally

disregarded the same. And if only to further evince that herein petitioner had no one to blame but herself for her plight, as regards the resolution to answer the original petition, this she spurned despite the fact that she asked for and was granted an extension of 15 days within which to do so. That she questioned the jurisdiction of the Court of Appeals over the claims for damages is entirely irrelevant, considering that she did so only after the Court of Appeals promulgated its Resolution of 27 September 1989. Up to that time, petitioner had absolutely no responsive pleading setting forth her defense. It may likewise be stressed that under Section 2.c.(4) of the Revised Internal Rules of the Court of Appeals then in force, after the expiration of the period for filing the answer or the reply in special civil actions, a case is deemed submitted for resolution. Thus, after the expiration of the 10-day period granted to herein petitioner to file her Answer to the Supplemental/Amended Petition, and in light of her failure to file her answer to the original petition despite the grant of her motion for extension of time to file it, then the case was automatically deemed submitted for decision. After the decision was rendered, she could then no longer be heard to raise a defense which, by her inaction, she indubitably expressed no desire to raise. It cannot then be successfully maintained that the Court of Appeals committed reversible error, much less, grave abuse of discretion, when it denied admission to an answer that was filed only after this Courts decision in G.R. No. 101428 had long become final and immutable. What further militates against petitioners advocacy is that the Court of Appeals, aside from affording petitioner an opportunity to be heard through the filing of pleadings, likewise sustained petitioners right to due process at the hearing. What petitioner neglects to mention is that respondent court did not deprive her the right to cross-examine private respondent when the latter testified as to the matter of damages. Through the exercise of the right, petitioner could have negated private respondent s claims by showing the absence of legal or factual basis therefor. Moreover, the Court of Appeals explicitly allowed petitioner to present her evidence against the claim for damages. However, petitioner again failed to take the opportunity to have herself heard. It may be pointed out that in her Answer,x[31] she interposed the following defenses against the claim for moral and exemplary damages and attorneys fees, namely: (1) the claim was effectively and exclusively a suit against the State, but without its consent; (2) she had not committed any actionable wrong as she acted in good faith and without malice or negligence; and (3) whatever injury private respondent may have suffered were mere consequences of his indiscretion, negligence and/or ignorance of the law which, at best, constituted damnum absque injuria. From the nature of these defenses, they could very well have been taken up, even indirectly, on cross-examination of private respondent or in the course of petitioners testimony had she chose n to present her evidence. All told, the above discussion should readily refute petitioners claim of a denial of due process. II Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. They may be recovered if they are the proximate result of the defendants wrongful act or omission.x[32] The instances when moral damages may be recovered are, inter alia, acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35 of the Civil Code,x[33] which, in turn, are found in the Chapter on Human Relations of the Preliminary Title of the Civil Code. Relevant to the instant case, which involves public officers, is Article 27,x[34] which provides:

ART. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Article 27 must then be read in conjunction with Section 1 of Article XI (Accountability of Public Officers) of the Constitution,x[35] which provides: Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. It is thus evident that under Article 27, in relation to Articles 2219 and 2217 of the Civil Code, a public officer, like petitioner herein, may be liable for moral damages for as long as the moral damages suffered by private respondent were the proximate result of petitioners wrongful act or omission, i.e., refusal to perform an official duty or neglect in the performance thereof. In fact, if only to underscore the vulnerability of public officials and employees to suits for damages to answer for any form or degree of misfeasance, malfeasance or nonfeasance, this Court has had occasion to rule that under Articles 19 and 27 of the Civil Code, a public official may be made to pay damages for performing a perfectly legal act, albeit with bad faith or in violation of the abuse of right do ctrine embodied in the preliminary articles of the Civil Code concerning Human Relations.x[36] Exemplary damages may be imposed by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.x[37] Attorneys fees and other expenses of litigation may be recovered as actual or compensatory damages when, inter alia, exemplary damages are awarded; when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim, and in any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered.x[38] There can be no question that private respondent was entitled to be restored to his position as Chief of Clinics by virtue of the final and executory decision of the Civil Service Commission. Petitioner, as head or chief of the National Childrens Hospital, then had the duty to see to it that the decision be obeyed and implemented. This she failed to do and private respondents two official demands for compliance with the Civil Service Commissions decision were merely referred by petitioner to the Legal Department of the Department of Health; and as further noted by this Court in its decision in G.R. No. 101428, she did not answer [private respondents] letters not even to inform him of the referral thereof to the Assistant Secretary [for Legal Affairs]. She chose simply to await legal guidance from the DOH Legal Department. This Court further noted: To all these, [petitioners] reaction, and that of the officials of the Department of Health concerned, was a regrettably cavalier one, to say the least. Neither she nor the Health Department officials concerned accorded said acts and events any importance. She never bothered to find out what was being done to contest or negate [private respondents] petitions and actions, notwithstanding that as time went by, [private respondents] efforts were being met with success. That petitioner then committed an actionable wrong for unjustifiably refusing or neglecting to perform an official duty is undeniable. Private respondent testified on the moral damages which he suffered by reason of such misfeasance or malfeasance of petitioner, and the attorneys fees and litigation expenses he incurred to vindicate his rights and protect his interests. The Court of Appeals which heard him gave full faith and credit to his testimony. Private respondent declared that by reason of

the unjust action or refusal of petitioner when she did not recognize, ignored and disregarded the final and executory Civil Service Resolution, he: [W]as actually greatly disturbed, shocked and frustrated during those three ... months. [He] had sleepless nights and ... suffered from mental anxiety, worry, tension and humiliation...x[39] Private respondents anguish even continued during the 5 -month period while the case was pending with the Court of Appeals, thus: During this period my sleepless nights and my moral sufferings continued. As a matter of fact, even worsened. I just could not understand, actually I could not understand the action here of Dr. Gozon for having not followed the decision of the Court of Appeals. And that is why I felt very much aggrieved during this period. I could not sleep at all and this has weakened me.x[40] Private respondent further testified that he spent not less than P5,000.00 for court fees and as incidental expenses and had committed himself to pay P10,000.00 to his counsel at the end of the case.x[41] While private respondent did not quantify the extent of his moral damages, the Court of Appeals fixed the same at P50,000.00. Since moral damages are, in the language of Article 2217 of the Civil Code, incapable of pecuniary estimation, courts have the discretion to fix the corresponding amount, not being bound by any self-serving assessment by the claimants. On the other hand, a claimants failure to state the monetary value of moral damages suffered presents no legal obsta cle to a courts determination thereof, as long as there is factual basis for the award such as the claimants testimony as to his sufferings. As a matter of fact, it is not unusual for claimants to leave the determination of the amount of the award to the discretion of the court. Under Article 2233 of the Civil Code, exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. In the instant case, the Court of Appeals awarded exemplary damages in the amount of P20,000.00. Considering that a public official is the culprit here, the propriety of such an award cannot be questioned. It serve as an example or deterrent so that other public officials be always reminded that they are public servants bound to adhere faithfully to the constitutional injunction that a public office is a public trust. That the aggrieved party happened to be another public official will not serve to mitigate the effects of petitioners having failed to observe the required degree of accountability and responsibility. As to attorneys fees as actual damages, the Court of Appeals determination of its propriety in this case and the extent thereof were well within its discretion. The agreement between private respondent and his counsel as to the amount does not control. Petitioners contention that she cannot be liable for damages since she was sued in her official capacity is without merit. Whether petitioner was impleaded as respondent in an official capacity, i.e., solely in her capacity as Chief of the National Childrens Hospital, is best determined from the Petition as well as the Supplemental/Amended Petition. For one, in the captions in both, she is named as one of the respondents without any express mention that she was so sued in her capacity, as Chief of the National Childrens Hospital. For another, the allegations in the body of the Petition clearly show that she was sued in both her official and private capacities. As to the former, paragraphs 1 and 7 respectively allege petitioners position as a public official, and specifically as Head of the Childrens Hospital; her duty to restore private respondent to his position by virtue of the final decision of the Civil Service Commission; and her refusal to allow private respondent to perform and discharge his

duties and responsibilities as Chief of Clinics. As to the latter, paragraph 16 of the Petition explicitly speaks of petitioners personal liability, thus: 16. For causing such mental suffering and anguish, etc.,x[42] principal respondent [herein petitioner] ought to and must be, in accordance with the Civil Code, held personally answerable and liable to the petitioner in the sum of not less than P100,000.00 as moral damages, and another sum of P20,000.00 as exemplary damages, by way of example or correction for the public good. x[43] (emphasis supplied) In maintaining then that she was sued merely in her official capacity, petitioner has either overlooked paragraph 16 or sought to deliberately mislead this Court. WHEREFORE, for utter failure to show that respondent Court of Appeals committed reversible error in the challenged resolutions, the instant petition is denied. Costs against petitioner. SO ORDERED. Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.

[G.R. No. 121917. March 12, 1997] ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. DECISION FRANCISCO, J.: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions; "(3) "(4) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and Six additional live double action ammunitions of .38 caliber revolver."x[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866x[2] thru the following Information:x[3] "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW."x[4] The lower court then ordered the arrest of petitioner,x[5] but granted his application for bail.x[6] During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused,x[7] upon advice of counsel,x[8] to make any plea.x[9] Petitioner waived in writing his right to be present in any and all stages of the case.x[10] After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum".x[11] Petitioner filed his notice of appeal on April 28, 1994.x[12] Pending the appeal in the respondent Court of Appeals,x[13] the SolicitorGeneral, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction,x[14] the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED."x[15] Petitioner received a copy of this decision on July 26, 1995.x[16] On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)"x[17] but the same was denied by respondent court in its September 20, 1995 Resolution,x[18] copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bailx[19] followed by two "supplemental petitions" filed by different counsels,x[20] a "second supplemental petition"x[21] and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-Generalx[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996.x[23] The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply.x[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.x[25]

The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows:x[26] "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there

was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been interrogated by the

Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. After a careful review of the recordsx[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances:x[28] "Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person.x[29] Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene."x[30] As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner.x[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at the scene of the hit and run.x[32] We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action.x[33] The exigent circumstances of - hot pursuit,x[34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay improvident.x[35] The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity.x[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer.x[37] Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner,x[38] its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof.x[39] These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information.x[40] Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea.x[41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.x[42] Likewise, by applying for bail, petitioner patently waived such irregularities and defects.x[43] We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid,x[44] are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Courtx[45] and by prevailing jurisprudencex[46], 2. Seizure of evidence in "plain view", the elements of which are:x[47] (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

(b). the evidence was inadvertently discovered by the police who had the right to be where they are; (c). (d). the evidence must be immediately apparent, and "plain view" justified mere seizure of evidence without further search.x[48]

3. search of a moving vehicle.x[49] Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.x[50] 4. consented warrantless search, and 5. customs search. In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed.x[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat.x[52] Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."x[53] "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."x[54] With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police.x[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizurex[56], and that his failure to quash the information estopped him from assailing any purported defect.x[57] Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective searchx[58] of the passenger compartment and containers in the vehiclex[59] which are within petitioner's grabbing distance regardless of the nature of the offense.x[60] This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate controlx[61] and (ii) the search was contemporaneous with the arrest.x[62] The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.x[63]

Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Orderx[64] and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.x[65] The first element is beyond dispute as the subject firearms and ammunitionsx[66] were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."x[67] The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that:

"VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation."x[68] which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.x[69] His surname thereon, we note, was glaringly misspelled as "Durembes."x[70] In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, & PCFORs.x[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City,"x[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters" x[73] which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel.x[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."x[75] Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering."

That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner.x[76] Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any?

"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir.x[77] xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 28 November 1992 xxx xxx

"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. "FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP Chief, Records Branch" x[78] In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm.x[79] In People vs. Tobias,x[80] we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidencex[81] that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,x[82] as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality.x[83] Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists.x[84] He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.x[85] The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones.x[86] Indeed, it is the duty of judicial officers to respect and apply the law as it stands.x[87] And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community' "x[88] It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.x[89]

Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,x[90] as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court.x[91] Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . ."x[92] Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lianx[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,x[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.x[95] WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. SO ORDERED Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.

G.R. No. 78911-25 December 11, 1987 CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudia respondents.

GUTIERREZ, JR., J.: This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order dated 8 January

1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in the aforestated criminal cases. It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to Branch 84. The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition for recuse dated May 19,1986. The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then presided over by Judge Johnico G. Serquina During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987. In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105. On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order." The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March 10, 1987. Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987. In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration. Hence, this petition questioning the orders of the respondent Court. The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor. The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing worthless checks as an offense against public order. As such, it is argued that it is the State and the public that are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor may intervene. On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas Pambansa Blg. 22 so provides. A careful study of the concept of civil liability allows a solution to the issue in the case at bar. Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man criminally liable is also civilly liable" (Art. 100, The Revised Penal Code). Underlying this

legal principle is the traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247). Article 20 of the New Civil Code provides:
Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses. (United States v. Bernardo, 19 Phil. 265). Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money, property or services. She suffered with the State when the checks bounced. In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that "The effects of a worthless check transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to the public." Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive the payment of money for which the worthless check was issued. Having been caused the damage, she is entitled to recompense.

Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended private party defrauded and empty- handed by excluding the civil liability of the offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so, may leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore, be brought to naught. The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the protection of her interests but also in the interest of the speedy and inexpensive administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability is clearly unwarranted. WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further proceedings. This decision is immediately executory. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. L-19671

November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendants-appellees. I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees. REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation

and one million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2 The facts, supported by the evidence of record, are the following: Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place. Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame. Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4"). On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in

character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal. In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2). On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958. But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court. The appellant ascribes, as errors of the trial court, the following: 1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the complaint;. 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;. 3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and. 4. In dismissing the complaint and in denying the relief sought by the plaintiff. That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages. The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following: SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution. It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1). For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, 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. Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of

our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579). From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333). The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case: As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied) Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained. However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132). There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees. With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only. Summing up, the Court rules: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country; (2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law; (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages; (4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. WHEREFORE, the decision under appeal is hereby modified as follows; (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao; (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees; (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees. Neither party to recover costs. Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

[G.R. No. 108395. March 7, 1997] HEIRS OF THE LATE TEODORO GUARING, JR., petitioners, vs. COURT OF APPEALS, PHILIPPINE RABBIT BUS LINES, INC., and ANGELES CUEVAS, respondents. DECISION MENDOZA, J.: This is a petition for review of the decision of the Court of Appeals, reversing the decision of the Regional Trial Court of Manila, Branch 20, which ordered respondent Philippine Rabbit Bus Lines, Inc. and its driver, Angeles Cuevas, to pay various amounts in damages to petitioners, the heirs of the late Teodoro Guaring, Jr. This case arose from an unfortunate vehicular accident which happened on November 7, 1987, along the North Expressway in San Rafael, Mexico, Pampanga. Involved in the accident were a Mitsubishi Lancer car driven

by Teodoro Guaring, Jr., who died as a result of the mishap, Philippine Rabbit Bus No. 415, driven by Angeles Cuevas, and a Toyota Cressida car, driven by Eligio Enriquez. The Mitsubishi Lancer was heading north, at the speed of 80 to 90 kilometers per hour. Following it was the Philippine Rabbit Bus No. 415, with Plate No. CVD-584. On the other hand, the Toyota Cressida was cruising on the opposite lane, bound for Manila. Petitioners, heirs of Teodoro Guaring, Jr., brought this action for damages, based on quasi delict, in the Regional Trial Court of Manila. Their evidence tended to show that the Rabbit bus tried to overtake Guarings car by passing on the right shoulder of the road and that in so doing it hit the right rear portion of Guarings Mitsubishi Lancer. The impact caused the Lancer to swerve to the south-bound lane, as a result of which it collided with the Toyota Cressida car coming from the opposite direction. With Teodoro Guaring, Jr. in the Lancer, seated beside him in front, was Bonifacio Clemente. Riding in the Toyota Cressida driven by Sgt. Eligio Enriquez was his mother, Dolores Enriquez, who was seated beside him. Seated at the back were his daughter Katherine (who was directly behind him), his wife Lilian, and his nephew Felix Candelaria. Killed in the collision were Teodoro Guaring, Jr., who was driving the Lancer, and Dolores Enriquez, who was riding in the Cressida, while injured were Bonifacio Clemente and the occupants of the Toyota Cressida. Private respondents, on the other hand, presented evidence tending to show that the accident was due to the negligence of the deceased Guaring. They claimed that it was Guaring who tried to overtake the vehicle ahead of him on the highway and that in doing so he encroached on the south-bound lane and collided with the oncoming Cressida of U.S. Air Force Sgt. Enriquez. Private respondents claim that as a result of the collision the Lancer was thrown back to its lane where it crashed into the Rabbit bus. On May 16, 1990, the Regional Trial Court rendered judgment finding Philippine Rabbit Bus Lines, Inc. and its driver, Angeles Cuevas, at fault, and holding them solidarily liable for damages to petitioners. The dispositive portion of its decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants, ordering the latter to pay the former, jointly and severally, the sum of: 1. P500,000.00 for loss of earning capacity of the deceased Teodoro Guaring, Jr.; 2. P1,000,000.00 as moral damages; 3. P50,000.00 as and for attorneys fees; and 4. Costs of suit. From this judgment, private respondent Philippine Rabbit Bus Lines, Inc. appealed, contending: 1. The lower court erred in not finding that the proximate cause of the collision was Guarings negligence in attempting to overtake the car in front of him. 2. The lower court erred in not holding that PRBL exercised due diligence in the supervision of its employees. 3. The lower court erred in awarding the amount of P500,000.00 in favor of plaintiffs-appellees representing Guarings loss of earning capacity. 4. The lower court erred in awarding moral damages in favor of plaintiffs-appellees. 5. The lower court erred in awarding attorneys fees in favor of plaintiffs-appellees.

On December 16, 1992, the Court of Appeals rendered a decision, setting aside the decision of the Regional Trial Court of Manila in the civil action for damages and dismissing the complaint against private respondents Philippine Rabbit Bus Lines, Inc. and Cuevas, on the strength of a decision rendered by the Regional Trial Court at San Fernando, Pampanga, in the criminal case, acquitting the bus driver Angeles Cuevas of reckless imprudence resulting in damage to property and double homicide. The appellate court held that since the basis of petitioners action was the alleged negligence of the bus driver, the latters acquittal in the criminal case rendered the civil case based on quasi delict untenable. Hence, this petition. Petitioners contend that [1] EVIDENCE IN ONE CASE IS INADMISSIBLE IN ANOTHER CASE AGAINST A PERSON NOT A PARTY IN THE FIRST CASE AND TO HOLD OTHERWISE IS VIOLATIVE OF PROCEDURAL DUE PROCESS. [2] THE DECISION OF THE COURT OF APPEALS WAS WITHOUT FACTUAL FINDINGS AND DID NOT RESOLVE SQUARELY THE ASSIGNED ERRORS AND IS THEREFORE A VOID JUDGMENT. [3] ACQUITTAL OF THE ACCUSED IN THE CRIMINAL CASE, WHETHER ON REASONABLE DOUBT OR NOT, IS NO BAR TO THE PROSECUTION FOR DAMAGES BASED ON QUASI-DELICT. The question is whether the judgment in the criminal case extinguished the liability of private respondent Philippine Rabbit Bus Lines, Inc. and its driver, Angeles Cuevas, for damages for the death of Teodoro Guaring, Jr. In absolving private respondents from liability, the Court of Appeals reasoned: x[1] Since the appellees civil action is predicated upon the negligence of the accused which does not exist as found by the trial court in the said criminal case, it necessarily follows that the acquittal of the accused in the criminal case carries with it the extinction of the civil responsibility arising therefrom. Otherwise stated, the fact from which the civil action might arise, that is, the negligence of the accused, did not exist. The finding in the criminal case that accused Cuevas was not negligent and the proximate cause of the accident was the act of deceased Guaring in overtaking another vehicle ahead of him likewise exonerates PRB from any civil liability. Although it did not say so expressly, the appellate court appears to have based its ruling on Rule 111, 2(b) of the Rules of Criminal Procedure, which provides: (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. This provision contemplates, however, a civil action arising from crime, whereas the present action was instituted pursuant to Art. 2176 of the Civil Code, which provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict. Thus, in Tayag v. Alcantara,x[2] it was held:

. . . a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (c), Section 3, Rule 111 [now Rule 111, 2(b)], refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. . . . It is noteworthy that the accident in that case also involved a Philippine Rabbit bus and that, as in this case, the acquittal of the bus driver was based on reasonable doubt. We held that the civil case for damages was not barred since the cause of action of the heirs was based on quasi delict. Again, in Gula v. Dianala it was held:x[3] Since the cause of action of plaintiffs-appellants is based on culpa aquiliana and not culpa criminal, thus precluding the application of the exception in Sec. 3(c) of Rule 111 [now Rule 111, 2(b)], and the fact that it can be inferred from the criminal case that defendant-accused, Pedro Dianala, was acquitted on reasonable doubt because of dearth of evidence and lack of veracity of the two principal witnesses, the doctrine in Mendoza vs. Arrieta, 91 SCRA 113, will not find application. In that case, the acquittal was not based on reasonable doubt and the cause of action was based on culpa criminal, for which reason we held the suit for damages barred. Even if damages are sought on the basis of crime and not quasi delict, the acquittal of the bus driver will not bar recovery of damages because the acquittal was based not on a finding that he was not guilty but only on reasonable doubt. Thus, it has been held:x[4] The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil might arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as only preponderance of evidence is required in civil cases; where the court expressly declares that the liability of the accused is not criminal but only civil in nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig, supra) as, for instance, in the felonies of estafa, theft, and malicious mischief committed by certain relatives who thereby incur only civil liability (See Art. 332, Revised Penal Code); and, where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted (Castro v. Collector of Internal Revenue, 4 SCRA 1093; See Regalado, Remedial Law Compendium, 1983 ed., p. 623). In the present case, the dispositive portion of the decision of the RTC in the criminal case reads: WHEREFORE, the Court, entertaining reasonable doubt as to his guilt, the accused is hereby acquitted, of the offense of reckless imprudence resulting to double homicide and damage to property as charged in the Information, without pronouncement as to costs. SO ORDERED.x[5] It was thus error for the appellate court to skip the review of the evidence in this case and instead base its decision on the findings of the trial court in the criminal case. In so doing, the appellate court disregarded the fact that this case had been instituted independently of the criminal case and that petitioners herein took no part in the criminal prosecution. In fact this action was filed below before the prosecution presented evidence in the

criminal action. The attention of the Court of Appeals was called to the decision in the criminal case, which was decided on September 7, 1990, only when the decision of the trial court in this case was already pending review before it (the Court of Appeals). The appellate court did not even have before it the evidence in the criminal case. What it did was simply to cite findings contained in the decision of the criminal court. Worse, what the criminal court considered was reasonable doubt concerning the liability of the bus driver the appellate court regarded as a categorical finding that the driver was not negligent and, on that basis, declared in this case that the proximate cause of the accident was the act of deceased Guaring in overtaking another vehicle ahead of him. The notion that an action for quasi delict is separate and distinct from the criminal action was thus set aside. This case must be decided on the basis of the evidence in the civil case. This is important because the criminal court appears to have based its decision, acquitting the bus driver on the ground of reasonable doubt, solely on what it perceived to be the relative capacity for observation of the prosecution and defense witnesses.x[6] The prosecution did not call Bonifacio Clemente to testify despite the fact that shortly after the accident he gave a statement to the police, pinning the blame for the accident on the Philippine Rabbit bus driver. Indeed, the civil case involved a different set of witnesses. Petitioners presented Eligio Enriquez, who was driving the Cressida, and Bonifacio Clemente, who was a passenger in Guarings car. Thus, both had full view of the accident. It is unfair to bind petitioners to the result of the criminal action when the fact is that they did not take part therein. That the witnesses presented on behalf of the petitioners are different from those presented by the prosecution should have brought home to the appellate court the fundamental unfairness of considering the decision in the criminal case conclusive of the civil case. Because the Court of Appeals did not consider the evidence in the civil case, this case should be remanded to it so that it may render another decision in accordance with the law and the evidence. The issues raised by petitioners are essentially factual and require the evaluation of evidence, which is the function of the Court of Appeals in the exercise of its exclusive appellate jurisdiction. They cannot be decided in this Court. WHEREFORE, the decision of the Court of Appeals is REVERSED and this case is REMANDED to the Court of Appeals with instruction to render judgment with reasonable dispatch in accordance with law and the evidence presented in Civil Case No. 88-43860. SO ORDERED. Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur. [G.R. No. 133978. November 12, 2002] JOSE S. CANCIO, JR., represented by ROBERTO L. CANCIO, petitioner, vs. EMERENCIANA ISIP, respondent. DECISION YNARES-SANTIAGO, J.: The instant petition for review under Rule 45 of the Rules of Court raises pure questions of law involving the March 20, 1998x[1] and June 1, 1998x[2] Ordersx[3] rendered by the Regional Trial Court of Pampanga, Branch 49, in Civil Case No. G-3272. The undisputed facts are as follows:

Petitioner, assisted by a private prosecutor, filed three cases of Violation of B.P. No. 22 and three cases of Estafa, against respondent for allegedly issuing the following checks without sufficient funds, to wit: 1) Interbank Check No. 25001151 in the amount of P80,000.00; 2) Interbank Check No. 25001152 in the amount of P 80,000.00; and 3) Interbank Check No. 25001157 in the amount of P30,000.00.x[4] The Office of the Provincial Prosecutor dismissed Criminal Case No. 13356, for Violation of B.P. No. 22 covering check no. 25001151 on the ground that the check was deposited with the drawee bank after 90 days from the date of the check. The two other cases for Violation of B.P. No. 22 (Criminal Case No. 13359 and 13360) were filed with and subsequently dismissed by the Municipal Trial Court of Guagua, Pampanga, Branch 1, on the ground of failure to prosecute.x[5] Meanwhile, the three cases for Estafa were filed with the Regional Trial Court of Pampanga, Branch 49, and docketed as Criminal Case Nos. G-3611 to G-3613. On October 21, 1997, after failing to present its second witness, the prosecution moved to dismiss the estafa cases against respondent. The prosecution likewise reserved its right to file a separate civil action arising from the said criminal cases. On the same date, the trial court granted the motions of the prosecution. ThusUpon motion of the prosecution for the dismissal of these cases without prejudice to the refiling of the civil aspect thereof and there being no comment from the defense, let these cases be dismissed without prejudice to the refiling of the civil aspect of the cases. SO ORDER[ED].x[6] On December 15, 1997, petitioner filed the instant case for collection of sum of money, seeking to recover the amount of the checks subject of the estafa cases. On February 18, 1998, respondent filed a motion to dismiss the complaint contending that petitioners action is barred by the doctrine of res judicata. Respondent further prayed that petitioner should be held in contempt of court for forum-shopping.x[7] On March 20, 1998, the trial court found in favor of respondent and dismissed the complaint. The court held that the dismissal of the criminal cases against respondent on the ground of lack of interest or failure to prosecute is an adjudication on the merits which amounted to res judicata on the civil case for collection. It further held that the filing of said civil case amounted to forum-shopping. On June 1, 1998, the trial court denied petitioners motion for reconsideration.x[8] Hence, the instant petition. The legal issues for resolution in the case at bar are: 1) whether the dismissal of the estafa cases against respondent bars the institution of a civil action for collection of the value of the checks subject of the estafa cases; and 2) whether the filing of said civil action violated the anti-forum-shopping rule. An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code;x[9] and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as felony [e.g. culpa contractual or obligations arising from law under Article 31x[10] of the Civil Code,x[11] intentional torts under Articles 32x[12] and 34,x[13] and culpa aquiliana under Article 2176x[14] of the Civil Code]; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action [Article 33,x[15] Civil Code].x[16] Either of these two possible liabilities may be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages twice for the same act or omission or under both causes.x[17] The modes of enforcement of the foregoing civil liabilities are provided for in the Revised Rules of Criminal Procedure. Though the assailed order of the trial court was issued on March 20, 1998, the said Rules, which

took effect on December 1, 2000, must be given retroactive effect in the instant case considering that statutes regulating the procedure of the court are construed as applicable to actions pending and undetermined at the time of their passage.x[18] Section 1, Rule 111, of the Revised Rules of Criminal Procedure provides: SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx xxx xxx

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. Under the 1985 Rules on Criminal Procedure, as amended in 1988 and under the present Rules, the civil liability ex-delicto is deemed instituted with the criminal action, but the offended party is given the option to file a separate civil action before the prosecution starts to present evidence.x[19] Anent the independent civil actions under Articles 31, 32, 33, 34 and 2176 of the Civil Code, the old rules considered them impliedly instituted with the civil liability ex-delicto in the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Under the present Rules, however, the independent civil actions may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code.x[20] In the case at bar, a reading of the complaint filed by petitioner show that his cause of action is based on culpa contractual, an independent civil action. Pertinent portion of the complaint reads: xxx xxx xxx

2. That plaintiff is the owner/proprietor to CANCIOS MONEY EXCHANGE with office address at Guagua, Pampanga; 3. That on several occasions, particularly on February 27, 1993 to April 17 1993, inclusive, defendant drew, issued and made in favor of the plaintiff the following checks: CHECK NO. DATE AMOUNT P80,000.00 P80,000.00

1. INTERBANK CHECK NO. 25001151 March 10, 1993 2. INTERBANK CHECK NO. 25001152 March 27, 1993

3. INTERBANK CHECK NO. 25001157 May 17, 1993

P30,000.00

in exchange of cash with the assurance that the said checks will be honored for payment on their maturity dates, copy of the aforementioned checks are hereto attached and marked. 4. That when the said checks were presented to the drawee bank for encashment, the same were all dishonored for reason of DRAWN AGAINST INSUFFICIENT FUNDS (DAIF); 5. That several demands were made upon the defendant to make good the checks but she failed and refused and still fails and refuses without justifiable reason to pay plaintiff; 6. That for failure of the defendant without any justifiable reason to pay plaintiff the value of the checks, the latter was forced to hire the services of undersigned counsel and agreed to pay the amount of P30,000.00 as attorneys fees and P1,000.00 per appearance in court; 7. That for failure of the defendant without any justifiable reason to pay plaintiff and forcing the plaintiff to litigate, the latter will incur litigation expenses in the amount of P20,000.00. IN VIEW OF THE FOREGOING, it is prayed of this Court that after due notice and hearing a judgment be rendered ordering defendant to pay plaintiff as follows: a. b. c. the principal sum of P190,000.00 plus the legal interest; attorneys fees of P30,000.00 plus P1,000.00 per court appearance; litigation expenses in the amount of P20,000.00

PLAINTIFF prays for other reliefs just and equitable under the premises. xxx xxx x x x.x[21]

Evidently, petitioner sought to enforce respondents obligation to make good the value of the checks in exchange for the cash he delivered to respondent. In other words, petitioners cause of action is the respondents breach of the contractual obligation. It matters not that petitioner claims his cause of action to be one based on delict.x[22] The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action. The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief.x[23] Neither does it matter that the civil action reserved in the October 21, 1997 order of the trial court was the civil action ex delicto. To reiterate, an independent civil action arising from contracts, as in the instant case, may be filed separately and prosecuted independently even without any reservation in the criminal action. Under Article 31 of the Civil Code [w]hen the civil action is based on an obligation not arising from the act or omission complained of as a felony, [e.g. culpa contractual] such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Thus, in Vitola, et al. v. Insular Bank of Asia and America,x[24] the Court, applying Article 31 of the Civil Code, held that a civil case seeking to recover the value of the goods subject of a Letter of Credit-Trust Receipt is a civil action ex contractu and not ex delicto. As such, it is distinct and independent from the estafa case filed against the offender and may proceed regardless of the result of the criminal proceedings.

One of the elements of res judicata is identity of causes of action.x[25] In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains separate and distinct from any criminal prosecution based on the same act.x[26] Not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e., culpa contractual. In the same vein, the filing of the collection case after the dismissal of the estafa cases against respondent did not amount to forum-shopping. The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Although the cases filed by petitioner arose from the same act or omission of respondent, they are, however, based on different causes of action. The criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored on culpa contractual. Moreover, there can be no forum-shopping in the instant case because the law expressly allows the filing of a separate civil action which can proceed independently of the criminal action.x[27] Clearly, therefore, the trial court erred in dismissing petitioners complaint for collection of the value of the checks issued by respondent. Being an independent civil action which is separate and distinct from any criminal prosecution and which require no prior reservation for its institution, the doctrine of res judicata and forum-shopping will not operate to bar the same. WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The March 20, 1998 and June 1, 1998 Orders of the Regional Trial Court of Pampanga, Branch 49, in Civil Case No. G-3272 are REVERSED and SET ASIDE. The instant case is REMANDED to the trial court for further proceedings. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

G.R. No. 79578 March 13, 1991 RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner, vs. HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents. Salalima, Trenas, Pagaoa & Associates for petitioner. Paul P. Lentejas for private respondents.

SARMIENTO, J.:p A social condolence telegram sent through the facilities of the petitioner gave rise to the present petition for review on certiorari assailing the decision 1 of the respondent Court of Appeals which

affirmed in toto the judgment 2 of the trial court, dated February 14, 1985, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual and compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary damages. 2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant. SO ORDERED.
3

The facts as gleaned from the records of the case are as follows: On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao, Quezon City, to convey their deepest sympathy for the recent death of the mother-in-law of Hilario Midoranda 4 to wit:
MR. & MRS. HILARIO MIDORANDA TRINIDAD, CALBAYOG CITY MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST SYMPATHY TO YOU AND MEMBERS OF THE FAMILY. MINER & FLORY 5 . The condolence telegram was correctly transmitted as far as the written text was concerned. However, the condolence message as communicated and delivered to the addressees was typewritten on a "Happy Birthday" card and placed inside a "Christmasgram" envelope. Believing that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner was done intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of the private respondents and the addressees, including their friends and relatives, the spouses Timan demanded an explanation. Unsatisfied with RCPI's explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a 6 complaint for damages. The parties stipulated at the pre-trial that the issue to be resolved by the trial court was: WHETHER or not the act of delivering the condolence message in a Happy Birthday" card with a "Christmasgram" envelope constitutes a breach of contract on the part of the defendant. If in the 7 affirmative, whether or not plaintiff is entitled to damages. The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the Court of Appeals. RCPI now submits the following assignment of errors: I THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05. II

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES IN THE AMOUNT OF P10,000.00. III THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY DAMAGES IN THE AMOUNT OF P5,000.00. IV THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ATTORNEYS FEES IN 8 THE AMOUNT OF P5,000.00 PLUS COSTS OF SUIT. The four assigned errors are going to be discussed jointly because they are all based on the same findings of fact. We fully agree with the appellate court's endorsement of the trial court's conclusion that RCPI, a corporation dealing in telecommunications and offering its services to the public, is engaged in a business affected with public interest. As such, 9 it is bound to exercise that degree of diligence expected of it in the performance of its obligation. One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was received by the 10 addressees on time despite the fact that there was "error" in the social form and envelope used. RCPI asserts that there was no showing that it has any motive to cause harm or damage on private respondents: Petitioner humbly submits that the "error" in the social form used does not come within the ambit of fraud, 11 malice or bad faith as understood/defined under the law. We do not agree. In a distinctly similar case,
12

and oddly also involving the herein petitioner as the same culprit, we held:

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately . . . As a corporation, the petitioner can act only through its employees. Hence the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general public 13 availing of the services of the petitioner of an effective and adequate remedy. Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to convey a message of sorrow and sympathy. Precisely, it is denominated "telegram of condolence" because it tenders sympathy and offers to share another's grief. It seems out of this world, therefore, to place that message of condolence in a birthday card and deliver the same in a Christmas envelope for such acts of carelessness and incompetence not only render violence to good taste and common sense, they depict a bizarre presentation of the sender's feelings. They ridicule the deceased's loved ones and destroy the atmosphere of grief and respect for the departed. Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message in the ordinary form or in a social form. In the ordinary form, the text of the message is typed on plain newsprint paper. On the other hand, a social telegram is placed in a special form with the proper decorations and embellishments to suit the occasion and the message and delivered in an envelope matching the purpose of the occasion and the words and intent of the message. The sender pays a higher amount for the social telegram than for one in the ordinary form. It is clear, therefore, that when RCPI typed the private respondents' message of condolence in a birthday card and delivered the same in a colorful Christmasgram envelope, it committed a breach of contract as well as gross negligence. Its excuse that it had run out of 14 social condolence cards and envelopes is flimsy and unacceptable. It could not have been faulted had it delivered the message in the ordinary form and reimbursed the difference in the cost to the private respondents. But by transmitting it unfittinglythrough other special forms clearly, albeit outwardly, portraying the opposite feelings of joy and happiness and thanksgivingRCPI only exacerbated the sorrowful situation of the addressees and the senders. It bears stress that this botchery exposed not only the petitioner's gross negligence but also its callousness and disregard for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be held liable for damages.

It is not surprising that when the Timans' telegraphic message reached their cousin, it became the joke of the Midorandas' friends, relatives, and associates who thought, and rightly so, that the unpardonable mix-up was a mockery of the death of the mother-in-law of the senders' cousin. Thus it was not unexpected that because of this unusual incident, which caused much embarrassment and distress to respondent Minerva Timan, he suffered nervousness and hypertension resulting in 15 his confinement for three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City. The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the fact and amount of damages, but must depend on the actual proof that damages had been suffered and evidence of the actual 16 amount. In other words, RCPI insists that there is no causal relation of the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of fact. The findings of fact of the trial court and the respondent court concur in favor of the private respondents. We are bound by such findings that is the general rule well-established by a long line of cases. Nothing has been shown to convince us to justify the relaxation of this rule in the petitioner's favor. On the contrary, these factual findings are supported by substantial evidence on record. Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent court are persuasive. . . . When plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through its authorized agent or agency the order and received the corresponding compensation therefor. Defendant did not comply with its contract as intended by the parties and instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines, placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness. Under the circumstances, We cannot accept the defendant's plea of good faith predicated on such exhaustion of social condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in not supplying its various stations with such sufficient and adequate social condolence forms when it held out to the public sometime in January, 1983, the availability of such social condolence forms and accepted for a fee the transmission of messages on said forms. Knowing that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a contract for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or 17 malice. . . . RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in character, is without merit. We have so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the transgressor. xxx xxx xxx . . . In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness or negligence constitutes wanton misconduct. xxx xxx xxx . . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages, even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. vs. Stroude 91 SW 18; West vs. Western U. Tel. Co., 17 P807; Peterson vs. Western U. Tel. Co., 77 NW 985; Brown vs. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission of telegrams (Pittman vs. Western Union Tel. Co., 66 SO 977; Painter vs. Western Union Tel. Co., 84 SE 293) 19 (emphasis supplied). We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has reached this Court in which the petitioner was time and again held liable for the same causes as in the present case breach of contract and gross negligencethe ineluctable conclusion is that it has not in any way reformed nor improved its services to the public. It must do so now or else next time the Court may be constrained to adjudge stricter sanctions. WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.
18

Costs against the petitioner. SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.