Joaquin v Navarro, 93 Phil 257

May 29, 1953 G.R. No. L-5426 RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent. Agrava, Peralta & Agrava for petitioner. Leonardo Abola for respondent. TUASON, J.: This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the Court of Appeals, whose decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court for review. The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived his mother. It is this modification of the lower courts finding which is now being contested by the petitioner. The importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first marriage. The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals as follows: On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro, Jr., and the latters wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club, at the

corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a safer heaven. They could not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latters wife, Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin. Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing Joaquin Navarro, Sr., and his daughter-in-law. At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and 25. The Court of Appeals finding were all taken from the testimony of Francisco Lopez, who miraculously survived the holocaust, and upon them the Court of Appeals opined that, as between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and insufficient and the statutory presumption must be applied. The appellate Courts reasoning for its conclusion is thus stated: It does not require argument to sh ow that survivorship cannot be established by proof of the death of only one of the parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company of his father and the witness, and that the burning edified entirely collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant his son turned his back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German Club; but she could have died almost immediately after, from a variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for

certain. No evidence is available on the point. All we can decide is that no one saw her alive after her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone cannot support a finding that she died latter than her son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court). The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the occasion of the deaths, which is identical for all of them; that battle for the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity, could not overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. During the same battle, some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards episodic details, and treats the battle as an overall cause of death in applying the presumption of survivorship. We are thus led the conclusion that the order in which the members of the Navarro -Joaquin family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr. Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889, now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time. The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be presently set forth. Rule 123, section 69 (ii) of the Revised Rules of Court, reads: When two person perish in the same calamity, such as wreck, battle or conflagration, and it is not (1) shown who died first, and there are no (2) particular circumstances from when it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and ages of the sexes, according to the following rules: xxxxxxxxx Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one from the other, the persons who alleges the prior death of either must prove the allegation; in the absence of proof the presumption shall be that they died at the same time, and no transmission of rights from one to the other shall take place. Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, the situation which it present is one in which the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of death . . . . . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the law of fairness appropriate to the different legal situation that arises. (IX Wigmore on Evidence, 1940 ed., 483.) In In re Wallaces Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect to the deaths of the Navarro girls, pointing out that our rule is taken from the Fourth Division of section 1936 of the California Code of Civil Procedure, the Supreme Court of California said: When the statue speaks of particular circumstances from which it can be inferred that one died before the other it means that there are circumstances from which the fact of death by one before the other may be inferred as a relation conclusion from the facts proven. The statue does not mean circumstances which would shown, or which would tend to show, probably that one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the statutory presumption, the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand Lodge vs. Miller,supra, if the matter is left to probably, then the statue of the presumption. It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls. Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin and her son can be drawn? Is Francisco Lopez testimony competent and sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court as disinterested and trustworthy and by the Court of Appeals as entitled to credence. Lopez testified: Q. You said you were also heat at that time as you leave the German Club with Joaquin Navarro, Sr., Joaquin Navarro, Jr. and the latters wife?- A. Yes, sir.

Q. Did you fall? A. I fell down. Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir. Q. When the German Club collapsed where were you? A. We were out 15 meters away from the building but I could see what was going on. xxxxxxxxx Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of Joaquin Navarro, Jr. and the collapse of the German Club? A. Yes, sir, I could not say exactly, Occasions like that, you know, you are confused. Q. Could there (have) been an interval of an hour instead of fifteen minutes? A. Possible, but not probable. Q. Could it have been 40 minutes? A. Yes, sir, about 40 minutes. xxxxxxxxx Q. You also know that Angela Joaquin is already dead? A. Yes, sir. Q. Can you tell the Honorable Court when did Angela Joaquin die? A. Well, a few minutes after we have dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr. xxxxxxxxx Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive evidence to the fact that Angela Joaquin also died? A. Yes, sir, in the sense that I did not see her actually die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that building so I presumed she died there. xxxxxxxxx Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro Jr. and the latters wife? A. Because the Japanese had set fire to the Club and they were shooting people outside, so we thought of running away rather than be roasted. xxxxxxxxx Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion, and Natividad, were already wounded? A. to my knowledge, yes. Q. They were wounded? A. Yes, sir. Q. Were they lying on the ground or not? A. On the ground near the entrance, because most of the people who were shot by the Japanese were those who were trying to escape, and as far as I can remember they were among those killed.

xxxxxxxxx Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? A. That is what I think, because those Japanese soldiers were shooting the people inside especially those trying to escape. xxxxxxxxx Q. And none of them was not except the girls, is that what you mean? A . There were many people shot because they were trying to escape. xxxxxxxxx Q. How come that these girls were shot when they were inside the building, can you explain that? A. They were trying to escape probably. It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very remote. True, people in the building were also killed but these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gun fire. This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to Mr. Lopez statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said the interval between Joaquin Navarros death and the breaking down of the edifice was minutes. Even so, it

was much longer than five seconds, long enough to warrant the inference that Mrs. Angela Joaquin was sill alive when her son expired The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have been killed. All these are speculative , and the probabilities, in the light of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family, she could not have kept away form protective walls. Besides, the building had been set on fire trap the refugees inside, and there was no necessity for the Japanese to was their ammunition except upon those who tried to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the brief space of five seconds between her sons departure and his death. It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the particular circumstances from which it (survivorship) can be inferred that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for inference is never certainty, but if may be plain enough to justify a finding of fact. (In re Bohenkos Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. (In re Wallaces Estate, supra.) Juries must often reason, says one author, according to probabilities, drawing an inference that the main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts exist? (1 Moore on Facts, Sec. 596.) The same author tells us of a case where a jury was justified in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing. That conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite theory that the mother outlived her son is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, bordering on the ridiculous, where in an action on the

game laws it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright. (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.) It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed, involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed. 856, 857, Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to be such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court. The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of law. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. By substantial evidence is meant real evidence or at least evidence about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general rule. We are constrained to reverse the decision under review, and hold that the distribution of the decedents estates should be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon the question of reserva troncal which was put forward on the hypothetical theory that Mrs. Joaquin Navarros death preceded that of her son. Without costs. Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

Juliano v Tamano

FIRST DIVISION G.R. No. 169766 March 30, 2011

ESTRELLITA JULIANO-LLAVE, Petitioner, vs. REPUBLIC OF THE PHILIPPINES, HAJA PUTRI ZORAYDA A. TAMANO and ADIB AHMAD A. TAMANO,Respondents. DECISION DEL CASTILLO, J.: A new law ought to affect the future, not what is past. Hence, in the case of subsequent marriage laws, no vested rights shall be impaired that pertain to the protection of the legitimate union of a married couple. This petition for review on certiorari assails the Decision1 dated August 17, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 61762 and its subsequent Resolution2 dated September 13, 2005, which affirmed the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 89 declaring petitioner Estrellita Juliano-Llaves (Estrellita) marriage to Sen. Mamintal A.J. Tamano (Sen. Tamano) as void ab initio. Factual Antecedents Around 11 months before his death, Sen. Tamano married Estrellita twice initially under the Islamic laws and tradition on May 27, 1993 in Cotabato City3 and, subsequently, under a civil ceremony officiated by an RTC Judge at Malabang, Lanao del Sur on June 2, 1993. 4 In their marriage contracts, Sen. Tamanos civil status was indicated as divorced. Since then, Estrellita has been representing herself to the whole world as Sen. Tamanos wife, and upon his death, his widow. On November 23, 1994, private respondents Haja Putri Zorayda A. Tamano (Zorayda) and her son Adib Ahmad A. Tamano (Adib), in their own behalf and in behalf of the rest of Sen. Tamanos legitimate children with Zorayda,5filed a complaint with the RTC of Quezon City for the declaration of nullity of marriage between Estrellita and Sen. Tamano for being bigamous. The complaint6 alleged, inter alia, that Sen. Tamano married Zorayda on May 31, 1958 under civil rites, and that this marriage remained subsisting when he married Estrellita in 1993. The complaint likewise averred that: 11. The marriage of the deceased and Complainant Zorayda, having been celebrated under the New Civil Code, is therefore governed by this law. Based on Article 35 (4) of the Family Code, the subsequent marriage entered into by deceased

Mamintal with Defendant Llave is void ab initio because he contracted the same while his prior marriage to Complainant Zorayda was still subsisting, and his status being declared as "divorced" has no factual or legal basis, because the deceased never divorced Complainant Zorayda in his lifetime, and he could not have validly done so because divorce is not allowed under the New Civil Code; 11.1 Moreover, the deceased did not and could not have divorced Complainant Zorayda by invoking the provision of P.D. 1083, otherwise known as the Code of Muslim Personal Laws, for the simple reason that the marriage of the deceased with Complainant Zorayda was never deemed, legally and factually, to have been one contracted under Muslim law as provided under Art. 186 (2) of P.D. 1083, since they (deceased and Complainant Zorayda) did not register their mutual desire to be thus covered by this law;7 Summons was then served on Estrellita on December 19, 1994. She then asked from the court for an extension of 30 days to file her answer to be counted from January 4, 1995,8 and again, another 15 days9 or until February 18, 1995, both of which the court granted.10 Instead of submitting her answer, however, Estrellita filed a Motion to Dismiss 11 on February 20, 1995 where she declared that Sen. Tamano and Zorayda are both Muslims who were married under the Muslim rites, as had been averred in the latters disbarment complaint against Sen. Tamano.12 Estrellita argued that the RTC has no jurisdiction to take cognizance of the case because under Presidential Decree (PD) No. 1083, or the Code of Muslim Personal Laws of the Philippines (Muslim Code), questions and issues involving Muslim marriages and divorce fall under the exclusive jurisdiction of sharia courts. The trial court denied Estrellitas motion and asserted its jurisdiction over the case for declaration of nullity.13Thus, Estrellita filed in November 1995 a certiorari petition with this Court questioning the denial of her Motion to Dismiss. On December 15, 1995, we referred the petition to the CA14 which was docketed thereat as CA-G.R. SP No. 39656. During the pendency of CA-G.R. SP No. 39656, the RTC continued to try the case since there can be no default in cases of declaration of nullity of marriage even if the respondent failed to file an answer. Estrellita was allowed to participate in the trial while her opposing parties presented their evidence. When it was Estrellitas turn to adduce evidence, the hearings set for such purpose15 were postponed mostly at her instance until the trial court, on March 22, 1996, suspended the proceedings16 in view of the CAs temporary restraining order issued on February 29, 1996, enjoining it from hearing the case. 17 Eventually, however, the CA resolved the petition adverse to Estrellita in its Decision dated September 30, 1996.18Estrellita then elevated the appellate courts judgment to this Court by way of a petition for review on certiorari docketed as G.R. No. 126603.19 Subsequent to the promulgation of the CA Decision, the RTC ordered Estrellita to present her evidence on June 26, 1997.20 As Estrellita was indisposed on that day, the hearing was reset to July 9, 1997.21 The day before this scheduled hearing, Estrellita again asked for a postponement.22

Unhappy with the delays in the resolution of their case, Zorayda and Adib moved to submit the case for decision,23reasoning that Estrellita had long been delaying the case. Estrellita opposed, on the ground that she has not yet filed her answer as she still awaits the outcome of G.R. No. 126603.24 On June 29, 1998, we upheld the jurisdiction of the RTC of Quezon City,25 stating as one of the reasons that as sharia courts are not vested with original and exclusive jurisdiction in cases of marriages celebrated under both the Civil Code and PD 1083, the RTC, as a court of general jurisdiction, is not precluded from assuming jurisdiction over such cases. In our Resolution dated August 24, 1998,26 we denied Estrellitas motion for reconsideration27 with finality. A few days before this resolution, or on August 18, 1998, the RTC rendered the aforementioned judgment declaring Estrellitas marriage with Sen. Tamano as void ab initio.28 Ruling of the Regional Trial Court The RTC, finding that the marital ties of Sen. Tamano and Zorayda were never severed, declared Sen. Tamanos subsequent marriage to Estrellita as void ab initio for being bigamous under Article 35 of the Family Code of the Philippines and under Article 83 of the Civil Code of the Philippines.29 The court said: A comparison between Exhibits A and B (supra) immediately shows that the second marriage of the late Senator with [Estrellita] was entered into during the subsistence of his first marriage with [Zorayda]. This renders the subsequent marriage void from the very beginning. The fact that the late Senator declared his civil status as "divorced" will not in any way affect the void character of the second marriage because, in this jurisdiction, divorce obtained by the Filipino spouse is not an acceptable method of terminating the effects of a previous marriage, especially, where the subsequent marriage was solemnized under the Civil Code or Family Code.30 Ruling of the Court of Appeals In her appeal,31 Estrellita argued that she was denied her right to be heard as the RTC rendered its judgment even without waiting for the finality of the Decision of the Supreme Court in G.R. No. 126603. She claimed that the RTC should have required her to file her answer after the denial of her motion to dismiss. She maintained that Sen. Tamano is capacitated to marry her as his marriage and subsequent divorce with Zorayda is governed by the Muslim Code. Lastly, she highlighted Zoraydas lack of legal standing to question the validity of her marriage to the deceased. In dismissing the appeal in its Decision dated August 17, 2004,32 the CA held that Estrellita can no longer be allowed to file her answer as she was given ample opportunity to be heard but simply ignored it by asking for numerous postponements. She never filed her answer despite the lapse of around 60 days, a period longer than what was prescribed by the rules. It also ruled that Estrellita cannot rely on her pending petition for certiorari with the higher

courts since, as an independent and original action, it does not interrupt the proceedings in the trial court. As to the substantive merit of the case, the CA adjudged that Estrellitas marriage to Sen. Tamano is void ab initio for being bigamous, reasoning that the marriage of Zorayda and Sen. Tamano is governed by the Civil Code, which does not provide for an absolute divorce. It noted that their first nuptial celebration was under civil rites, while the subsequent Muslim celebration was only ceremonial. Zorayda then, according to the CA, had the legal standing to file the action as she is Sen. Tamanos wife and, hence, the injured party in the senators subsequent bigamous marriage with Estrellita. In its September 13, 2005 Resolution,33 the CA denied Estrellitas Motion for Reconsideration/Supplemental Motion for Reconsideration where it debunked the additional errors she raised. The CA noted that the allegation of lack of the public prosecutors report on the existence of collusion in violation of both Rule 9, Section 3(e) of the Rules of Court34 and Article 48 of the Family Code35 will not invalidate the trial courts judgment as the proceedings between the parties had been adversarial, negating the existence of collusion. Assuming that the issues have not been joined before the RTC, the same is attributable to Estrellitas refusal to file an answer. Lastly, the CA disregarded Estrellitas allegation that the trial court erroneously rendered its judgment way prior to our remand to the RTC of the records of the case ratiocinating that G.R. No. 126603 pertains to the issue on the denial of the Motion to Dismiss, and not to the issue of the validity of Estrellitas marriage to Sen. Tamano. The Parties Respective Arguments Reiterating her arguments before the court a quo, Estrellita now argues that the CA erred in upholding the RTC judgment as the latter was prematurely issued, depriving her of the opportunity to file an answer and to present her evidence to dispute the allegations against the validity of her marriage. She claims that Judge Macias v. Macias36 laid down the rule that the filing of a motion to dismiss instead of an answer suspends the period to file an answer and, consequently, the trial court is obliged to suspend proceedings while her motion to dismiss on the ground of lack of jurisdiction has not yet been resolved with finality. She maintains that she merely participated in the RTC hearings because of the trial courts assurance that the proceedings will be without prejudice to whatever action the High Court will take on her petition questioning the RTCs jurisdiction and yet, the RTC violated this commitment as it rendered an adverse judgment on August 18, 1998, months before the records of G.R. No. 126603 were remanded to the CA on November 11, 1998. 37 She also questions the lack of a report of the public prosecutor anent a finding of whether there was collusion, this being a prerequisite before further proceeding could be held when a party has failed to file an answer in a suit for declaration of nullity of marriage. Estrellita is also steadfast in her belief that her marriage with the late senator is valid as the latter was already divorced under the Muslim Code at the time he married her. She asserts that such law automatically applies to the marriage of Zorayda and the deceased without need of registering their consent to be covered by it, as both parties are Muslims whose marriage was solemnized under Muslim law. She pointed out that Sen. Tamano married all

his wives under Muslim rites, as attested to by the affidavits of the siblings of the deceased.38 Lastly, Estrellita argues that Zorayda and Adib have no legal standing to file suit because only the husband or the wife can file a complaint for the declaration of nullity of marriage under Supreme Court Resolution A.M. No. 02-11-10-SC.39 Refuting the arguments, the Solicitor General (Sol Gen) defends the CAs reasoning and stresses that Estrellita was never deprived of her right to be heard; and, that filing an original action for certiorari does not stay the proceedings of the main action before the RTC. As regards the alleged lack of report of the public prosecutor if there is collusion, the Sol Gen says that this is no longer essential considering the vigorous opposition of Estrellita in the suit that obviously shows the lack of collusion. The Sol Gen also supports private respondents legal standing to challenge the validity of Estrellitas purported marriage with Sen. Tamano, reasoning that any proper interested party may attack directly or collaterally a void marriage, and Zorayda and Adib have such right to file the action as they are the ones prejudiced by the marital union. Zorayda and Adib, on the other hand, did not file any comment. Issues The issues that must be resolved are the following: 1. Whether the CA erred in affirming the trial courts judgment, even though the latter was rendered prematurely because: a) the judgment was rendered without waiting for the Supreme Courts final resolution of her certiorari petition, i.e., G.R. No. 126603; b) she has not yet filed her answer and thus was denied due process; and c) the public prosecutor did not even conduct an investigation whether there was collusion; 2. Whether the marriage between Estrellita and the late Sen. Tamano was bigamous; and 3. Whether Zorayda and Adib have the legal standing to have Estrellitas marriage declared void ab initio. Our Ruling Estrellitas refusal to file an answer eventually led to the loss of her right to answer; and her pending petition for certiorari/review on certiorari questioning the denial of the motion to dismiss before the higher courts does not at all suspend the trial proceedings of the principal suit before the RTC of Quezon City.

Firstly, it can never be argued that Estrellita was deprived of her right to due process. She was never declared in default, and she even actively participated in the trial to defend her interest. Estrellita invokes Judge Macias v. Macias40 to justify the suspension of the period to file an answer and of the proceedings in the trial court until her petition for certiorari questioning the validity of the denial of her Motion to Dismiss has been decided by this Court. In said case, we affirmed the following reasoning of the CA which, apparently, is Estrellitas basis for her argument, to wit: However, she opted to file, on April 10, 2001, a Motion to Dismiss, instead of filing an Answer to the complaint. The filing of said motion suspended the period for her to file her Answer to the complaint. Until said motion is resolved by the Respondent Court with finality, it behooved the Respondent Court to suspend the hearings of the case on the merits. The Respondent Court, on April 19, 2001, issued its Order denying the Motion to Dismiss of the Petitioner. Under Section 6, Rule 16 of the 1997 Rules of Civil Procedure [now Section 4], the Petitioner had the balance of the period provided for in Rule 11 of the said Rules but in no case less than five (5) days computed from service on her of the aforesaid Order of the Respondent Court within which to file her Answer to the complaint: x x x41 (Emphasis supplied.) Estrellita obviously misappreciated Macias. All we pronounced therein is that the trial court is mandated to suspend trial until it finally resolves the motion to dismiss that is filed before it. Nothing in the above excerpt states that the trial court should suspend its proceedings should the issue of the propriety or impropriety of the motion to dismiss be raised before the appellate courts. In Macias, the trial court failed to observe due process in the course of the proceeding of the case because after it denied the wifes motion to dismiss, it immediately proceeded to allow the husband to present evidence ex parte and resolved the case with undue haste even when, under the rules of procedure, the wife still had time to file an answer. In the instant case, Estrellita had no time left for filing an answer, as she filed the motion to dismiss beyond the extended period earlier granted by the trial court after she filed motions for extension of time to file an answer. Estrellita argues that the trial court prematurely issued its judgment, as it should have waited first for the resolution of her Motion to Dismiss before the CA and, subsequently, before this Court. However, in upholding the RTC, the CA correctly ruled that the pendency of a petition for certiorari does not suspend the proceedings before the trial court. "An application for certiorari is an independent action which is not part or a continuation of the trial which resulted in the rendition of the judgment complained of."42 Rule 65 of the Rules of Court is explicit in stating that "[t]he petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case."43 In fact, the trial court respected the CAs temporary restraining order and only after the CA rendered judgment did the RTC again require Estrellita to present her evidence. Notably, when the CA judgment was elevated to us by way of Rule 45, we never issued any order precluding the trial court from proceeding with the principal action. With her numerous requests for postponements, Estrellita remained obstinate in refusing to file an answer or to

present her evidence when it was her turn to do so, insisting that the trial court should wait first for our decision in G.R. No. 126603. Her failure to file an answer and her refusal to present her evidence were attributable only to herself and she should not be allowed to benefit from her own dilatory tactics to the prejudice of the other party. Sans her answer, the trial court correctly proceeded with the trial and rendered its Decision after it deemed Estrellita to have waived her right to present her side of the story. Neither should the lower court wait for the decision in G.R. No. 126603 to become final and executory, nor should it wait for its records to be remanded back to it because G.R. No. 126603 involves strictly the propriety of the Motion to Dismiss and not the issue of validity of marriage. The Public Prosecutor issued a report as to the non-existence of collusion. Aside from Article 48 of the Family Code and Rule 9, Section 3(e) of the Rules of Court, the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC)44 also requries the participation of the public prosecutor in cases involving void marriages. It specifically mandates the prosecutor to submit his investigation report to determine whether there is collusion between the parties: Sec. 9. Investigation report of public prosecutor.(1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Records show that the trial court immediately directed the public prosecutor to submit the required report,45 which we find to have been sufficiently complied with by Assistant City Prosecutor Edgardo T. Paragua in his Manifestation dated March 30, 1995,46 wherein he attested that there could be no collusion between the parties and no fabrication of evidence because Estrellita is not the spouse of any of the private respondents. Furthermore, the lack of collusion is evident in the case at bar. Even assuming that there is a lack of report of collusion or a lack of participation by the public prosecutor, just as we held in Tuason v. Court of Appeals,47 the lack of participation of a fiscal does not invalidate the proceedings in the trial court: The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care

that the evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.48 The Civil Code governs the marriage of Zorayda and the late Sen. Tamano; their marriage was never invalidated by PD 1083. Sen. Tamanos subsequent marriage to Estrellita is void ab initio. The marriage between the late Sen. Tamano and Zorayda was celebrated in 1958, solemnized under civil and Muslim rites.49 The only law in force governing marriage relationships between Muslims and non-Muslims alike was the Civil Code of 1950, under the provisions of which only one marriage can exist at any given time. 50 Under the marriage provisions of the Civil Code, divorce is not recognized except during the effectivity of Republic Act No. 39451 which was not availed of during its effectivity. As far as Estrellita is concerned, Sen. Tamanos prior marriage to Zorayda has been severed by way of divorce under PD 1083,52 the law that codified Muslim personal laws. However, PD 1083 cannot benefit Estrellita. Firstly, Article 13(1) thereof provides that the law applies to "marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines." But we already ruled in G.R. No. 126603 that "Article 13 of PD 1083 does not provide for a situation where the parties were married both in civil and Muslim rites."53 Moreover, the Muslim Code took effect only on February 4, 1977, and this law cannot retroactively override the Civil Code which already bestowed certain rights on the marriage of Sen. Tamano and Zorayda. The former explicitly provided for the prospective application of its provisions unless otherwise provided: Art. 186 (1). Effect of code on past acts. Acts executed prior to the effectivity of this Code shall be governed by the laws in force at the time of their execution, and nothing herein except as otherwise specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby. It has been held that: The foregoing provisions are consistent with the principle that all laws operate prospectively, unless the contrary appears or is clearly, plainly and unequivocably expressed or necessarily implied; accordingly, every case of doubt will be resolved against the retroactive operation of laws. Article 186 aforecited enunciates the general rule of the Muslim Code to have its provisions applied prospectively, and implicitly upholds the force and effect of a pre-existing body of law, specifically, the Civil Code in respect of civil acts that took place before the Muslim Codes enactment.54 An instance of retroactive application of the Muslim Code is Article 186(2) which states:

A marriage contracted by a Muslim male prior to the effectivity of this Code in accordance with non-Muslim law shall be considered as one contracted under Muslim law provided the spouses register their mutual desire to this effect. Even granting that there was registration of mutual consent for the marriage to be considered as one contracted under the Muslim law, the registration of mutual consent between Zorayda and Sen. Tamano will still be ineffective, as both are Muslims whose marriage was celebrated under both civil and Muslim laws. Besides, as we have already settled, the Civil Code governs their personal status since this was in effect at the time of the celebration of their marriage. In view of Sen. Tamanos prior marriage which subsisted at the time Estrellita married him, their subsequent marriage is correctly adjudged by the CA as void ab initio. Zorayda and Adib, as the injured parties, have the legal personalities to file the declaration of nullity of marriage. A.M. No. 02-11-10-SC, which limits to only the husband or the wife the filing of a petition for nullity is prospective in application and does not shut out the prior spouse from filing suit if the ground is a bigamous subsequent marriage. Her marriage covered by the Family Code of the Philippines,55 Estrellita relies on A.M. No. 02-11-10-SC which took effect on March 15, 2003 claiming that under Section 2(a)56 thereof, only the husband or the wife, to the exclusion of others, may file a petition for declaration of absolute nullity, therefore only she and Sen. Tamano may directly attack the validity of their own marriage. Estrellita claims that only the husband or the wife in a void marriage can file a petition for declaration of nullity of marriage. However, this interpretation does not apply if the reason behind the petition is bigamy. In explaining why under A.M. No. 02-11-10-SC only the spouses may file the petition to the exclusion of compulsory or intestate heirs, we said: The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner, viz: (1) Only an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State. [Section 2; Section 3, paragraph a] Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.57

Note that the Rationale makes it clear that Section 2(a) of A.M. No. 02-11-10-SC refers to the "aggrieved or injured spouse." If Estrellitas interpretation is employed, the prior spouse is unjustly precluded from filing an action. Surely, this is not what the Rule contemplated. The subsequent spouse may only be expected to take action if he or she had only discovered during the connubial period that the marriage was bigamous, and especially if the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit from the bigamous marriage, it would not be expected that they would file an action to declare the marriage void and thus, in such circumstance, the "injured spouse" who should be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the disregard of the prior marriage which sanctity is protected by the Constitution. Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes the son from impugning the subsequent marriage. But in the case at bar, both Zorayda and Adib have legal personalities to file an action for nullity. Albeit the Supreme Court Resolution governs marriages celebrated under the Family Code, such is prospective in application and does not apply to cases already commenced before March 15, 2003.58
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Zorayda and Adib filed the case for declaration of nullity of Estrellitas marriage in November 1994. While the Family Code is silent with respect to the proper party who can file a petition for declaration of nullity of marriage prior to A.M. No. 02-11-10-SC, it has been held that in a void marriage, in which no marriage has taken place and cannot be the source of rights, any interested party may attack the marriage directly or collaterally without prescription, which may be filed even beyond the lifetime of the parties to the marriage.59 Since A.M. No. 02-11-10-SC does not apply, Adib, as one of the children of the deceased who has property rights as an heir, is likewise considered to be the real party in interest in the suit he and his mother had filed since both of them stand to be benefited or injured by the judgment in the suit.60 Since our Philippine laws protect the marital union of a couple, they should be interpreted in a way that would preserve their respective rights which include striking down bigamous marriages. We thus find the CA Decision correctly rendered. WHEREFORE, the petition is DENIED. The assailed August 17, 2004 Decision of the Court of Appeals in CA-G.R. CV No. 61762, as well as its subsequent Resolution issued on September 13, 2005, are hereby AFFIRMED. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice Chairperson PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice

JOSE PORTUGAL PEREZ Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

CA rollo, pp. 129-142; penned by Associate Justice Aurora Santiago-Lagman and concurred in by Associate Justices Portia Alio-Hormachuelos and Rebecca de Guia-Salvador.
2

Id. at 205-210. Records, p. 103. Id. at 13. Namely Jamila, Jacob, Amina, Macapanton, Ysmael, Soraya, Adel and Aquil. Rollo, pp. 54-60. Id. at 57. Records, pp. 14-15, 25-26. Id. at 25-26. Id. at 17, 29.

10

11

Id. at 32-38. Id. at 38-40. Id. at 109-111, 123. Id. at 143. Id. at 151, 153, 173, 174. Id. at 213. Id. at 176. Id. at 230-236. Tamano v. Hon. Ortiz, 353 Phil. 775 (1998).

12

13

14

15

16

17

18

19

Records, p. 237. The trial court erred in stating that let reception of plaintiffs evidence herein be set on June 26, 1997 x x x" when in fact, it was already defendants turn.
20 21

Id. at 240. Id. at 242-244. Id. at 315-318. Id. at 319-322. Rollo, pp. 69-76. Records, p. 367. Id. at 354-362. Rollo, pp. 77-82; penned by Judge Elsa de Guzman. Family Code, Article 35. The following marriages shall be void from the beginning: xxxx (4) Those bigamous or polygamous marriages not falling under Article 41; xxxx

22

23

24

25

26

27

28

29

New Civil Code, Article 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; xxxx
30

Rollo, p. 80. CA rollo, pp. 17-41. Rollo, pp. 34-46. Id. at 48-53.

31

32

33

Rules of Court, Rule 9, Section 3(e) Where no defaults allowed. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.
34 35

Family Code, Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.
36

457 Phil 463 (2003). Rollo, p. 217. Id. at 133, 135. Inadvertently referred to as A.M. No. 00-11-01-SC. Supra note 36. Id. at 468. Sps. Diaz v. Diaz, 387 Phil 314, 334 (2000). Rules of Court, Rule 65, Section 7.

37

38

39

40

41

42

43

44

Dated March 4, 2003, with an effectivity date of March 15, 2003. Records, p. 30. Id. at 56. 326 Phil 169 (1996). Id. at 181.

45

46

47

48

Supra note 12, where Zoraydas disbarment complaint stated that the marriage was conducted under both rites.
49 50

Malang v. Judge Moson, 398 Phil. 41 (2000).

51

An Act Authorizing For A Period Of Twenty Years Divorce Among Moslems Residing In Non-Christian Provinces In Accordance With Moslem Customs and Practices (approved on June 18, 1949), Section 1 of which provides: Section 1. For a period of twenty years from the date of the approval of this Act, divorce among Moslems residing in non-Christian provinces shall be recognized and be governed by Moslem customs and practices.
52

Under Articles 45-57. Tamano v. Hon. Ortiz, supra note 19 at 781. Malang v. Judge Moson, supra note 50 at 57. Executive Order No. 209, which took effect on August 3, 1988. Sec. 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file.A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.

53

54

55

56

57

Enrico v. Heirs of Sps. Eulogio B. Medinaceli and Trinidad Catli-Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 418, 429, citing Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders.
58

Carlos v. Sandoval, G.R. No. 179922, December 16, 2008, 574 SCRA 116, 132 citing Enrico v. Heirs of Sps. Eulogio B. Medinaceli and Trinidad Catli-Medinaceli, supra note 57 at 428.
59

Nial v. Bayadog, 384 Phil 661, 673 (2000).

60

Rules of Court, Rule 3, Section 2.

Cojuangco v Palma

EN BANC Adm. Case No. 2474 September 15, 2004

EDUARDO M. COJUANGCO, JR., complainant, vs. ATTY. LEO J. PALMA, respondent. DECISION PER CURIAM: "The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal."1 Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo J. Palma, alleging as grounds "deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct." The facts are undisputed: Complainant and respondent met sometime in the 70s. Complainant was a client of Angara Concepcion Regala & Cruz Law Offices (ACCRA) and respondent was the lawyer assigned to handle his cases. Owing to his growing business concerns, complainant decided to hire respondent as his personal counsel. Consequently, respondents relationship with complainants family became intimate. He traveled and dined with them abroad.2 He frequented their house and even tutored complainants 22-year old daughter Maria Luisa Cojuangco (Lisa), then a student of Assumption
lavvphil.net

Convent. On June 22, 1982, without the knowledge of complainants family, respondent married Lisa in Hongkong. It was only the next day that respondent informed complainant and assured him that "everything is legal." Complainant was shocked, knowing fully well that respondent is a married man and has three children. Upon investigation, complainant found that respondent courted Lisa during their tutoring sessions. Immediately, complainant sent his two sons to Hongkong to

convince Lisa to go home to Manila and discuss the matter with the family. Lisa was persuaded. Complainant also came to know that: (a) on the date of the supposed marriage, respondent requested from his (complainants) office an airplane ticket to and from Australia, with stop over in Hong Kong; (b) respondent misrepresented himself as "bachelor" before the Hong Kong authorities to facilitate his marriage with Lisa; and (c) respondent was married to Elizabeth Hermosisima and has three children, namely: Eugene Philippe, Elias Anton and Eduardo Lorenzo. On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a petition3 for declaration of nullity of the marriage between respondent and Lisa, docketed as Civil Case No. Pq-0401-P. In the Decision4 dated November 2, 1982, the CFI declared the marriage null and void ab initio. Thereafter, complainant filed with this Court the instant complaint5 for disbarment, imputing to respondent the following acts: "a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his family and taking undue advantage of his tutoring sessions with Maria Luisa, respondent secretly courted her. The great disparity in intelligence, education, age, experience and maturity between Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as to overcome her scruples and apprehensions about respondents courtship and advances, considering that he is a married man with three (3) children; b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her travels abroad under false pretenses that he was traveling on official business for complainant. To break down the final resistance of Maria Luisa and assuage her pangs of guilt, he made representations that there was no legal impediment whatsoever to his marrying; c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage, respondent succeeded in inducing and beguiling her into marrying him. Without complying with the requirements of Philippine law that he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the "advice" of Maria Luisas parents should first be obtained she being only twenty-two (22) years of age, respondent succeeded in contracting marriage with her in Hongkong on June 22, 1982 by falsely representing himself before the Hongkong authorities that he is a bachelor. x x x." Respondent filed a motion to dismiss6 on the ground of lack of cause of action. He contended that the complaint fails to allege acts constituting deceit, malpractice, gross misconduct or violation of his lawyers oath. There is no allegation that he acted with "wanton recklessness, lack of skill or ignorance of the law" in serving complainants interest. Anent the charge of grossly immoral conduct, he stressed that he married complainants

daughter with "utmost sincerity and good faith" and that "it is contrary to the natural course of things for an immoral man to marry the woman he sincerely loves." In the Resolution7 dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and recommendation. Former Assistant Solicitor General Oswaldo D. Agcaoili conducted the investigation. Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 645388 a Resolution9 (a)setting aside the CFI Decision dated November 2, 1982 in Civil Case No. Pq0401-P declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the outcome of this case. On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedings10 on the ground that the final outcome of Civil Case No. Pq0401-P poses a prejudicial question to the disbarment proceeding. It was denied. Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining Order.11 In the Resolution dated December 19, 1984, we enjoined the OSG from continuing the investigation of the disbarment proceedings.12 Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar Discipline. On October 19, 1998, Commissioner Julio C. Elamparo issued the following order: "Considering the length of time that this case has remained pending and as a practical measure to ease the backlog of this Commission, the parties shall within ten (10) days from notice, manifest whether or not they are still interested in prosecuting this case or supervening events have transpired which render this case moot and academic or otherwise, this case shall be deemed closed and terminated."13 In his Manifestation,14 complainant manifested and confirmed his continuing interest in prosecuting his complaint for disbarment against respondent. On the other hand, respondent sought several postponements of hearing on the ground that he needed more time to locate vital documents in support of his defense. The scheduled hearing of December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he fail to appear or present deposition, the case will be deemed submitted for resolution.15 Respondent again failed to appear on January 24, 2002; hence, the case was considered submitted for resolution.16 On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and Recommendation finding respondent guilty of grossly immoral conduct and violation of his oath as a lawyer. She recommended that respondent be suspended from the practice of law for a period of three (3) years. Thus:

"The main issue to be resolved in this case is whether or not respondent committed the following acts which warrant his disbarment: a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant; b) His misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage; c) The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his oath as a lawyer. Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor, however, he claimed that the marriage certificate stated a condition no different from term "spinster" with respect to Luisa. There is no question that respondent as a lawyer well versed in the law knew fully well that in marrying Maria Luisa he was entering into a bigamous marriage defined and penalized under Article 349 of the Revised Penal Code. The respondent betrayed the trust reposed in him by complainant. He was treated as part of the family and was allowed to tutor Maria Luisa. For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and violation of his oath as a lawyer, and it is recommended that respondent be suspended from the practice of law for a period of three (3) years. SO ORDERED." The IBP Board of Governors adopted and approved the above Report and Recommendation, but it reduced respondents penalty to only one (1) year suspension. Except for the penalty, we affirm the IBPs Report and Recommendation. At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards among its members. There is no distinction as to whether the transgression is committed in the lawyers professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.17 Thus, not only his professional activities but even his private life, insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of inquiry on the part of the proper authorities. 18 Respondent claims that he had served complainant to the best of his ability. In fact, the complaint does not allege that he acted with "wanton recklessness, lack of skill and ignorance of the law." While, complainant himself admitted that respondent was a good lawyer, 19 however, professional competency alone does not make a lawyer a worthy member of the Bar. Good moral character is always an indispensable requirement.

The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with Elizabeth Hermosisima. The Certification20 from the Local Civil Registrar of Cebu City shows that he married Elizabeth on December 19, 1971 at Cardials Private Chapel, Cebu City. On the other hand, the Certificate of Marriage 21 from the Deputy Registrar of Marriages, Hong Kong, proves respondents subsequent marriage with Lisa on July 9, 1982. That Elizabeth was alive at the time of respondents second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeths classmate and family friend.22 Undoubtedly, respondents act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of Court. He exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage is contrary to honesty, justice, decency and morality.23 This is not the first occasion that we censure immorality. Thus, we have somehow come up with a common definition of what constitutes immoral conduct, i.e., "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community."24 Measured against this definition, respondents act is manifestly immoral. First, he abandoned his lawful wife and three children. Second, he lured an innocent young woman into marrying him. And third, he misrepresented himself as a "bachelor" so he could contract marriage in a foreign land. Our rulings in the following cases are relevant: 1) In Macarrubo vs. Macarrubo,25 respondent entered into multiple marriages and then resorted to legal remedies to sever them. There, we ruled that "[S]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole." As such, "there can be no other fate that awaits respondent than to be disbarred." (2) In Tucay vs. Tucay,26 respondent contracted marriage with another married woman and left complainant with whom he has been married for thirty years. We ruled that such acts constitute "a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession," warranting respondents disbarment. (3) In Villasanta vs. Peralta,27 respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We held that "the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality." Thus, lacking the good moral character required by the Rules of Court, respondent was disqualified from being admitted to the bar. (4) In Cabrera vs. Agustin,28 respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that respondent failed to maintain

that degree of morality and integrity, which at all times is expected of members of the bar. He is, therefore, disbarred from the practice of law. (5) In Toledo vs. Toledo,29 respondent abandoned his wife, who supported him and spent for his law education, and thereafter cohabited with another woman. We ruled that he "failed to maintain the highest degree of morality expected and required of a member of the bar." For this, respondent was disbarred. (6) In Obusan vs. Obusan, Jr.,30 respondent abandoned his lawful wife and child and resumed cohabitation with his former paramour. Here, we ruled that "abandoning ones wife and resuming carnal relations with a former paramour, a married woman," constitute grossly immoral conduct warranting disbarment. The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was respondents closeness to the complainants family as well as the latters complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be complainants legal affairs only, he sneaked at the latters back and courted his daughter. Like the proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of complainants resources by securing a plane ticket from complainants office in order to marry the latters daughter in Hongkong. He did this without complainants knowledge. Afterwards, he even had the temerity to assure complainant that "everything is legal." Clearly, respondent had crossed the limits of propriety and decency. Respondent justified his conduct by professing he really loved Lisa and since he married her, he cannot be charged with immorality. His reasoning shows a distorted mind and a brazen regard on the sanctity of marriage. In such relationship, the man and the woman are obliged to live together, observe mutual respect and fidelity.31 How could respondent perform these obligations to Lisa when he was previously married to Elizabeth? If he really loved her, then the noblest thing he could have done was to walk away. Respondents culpability is aggravated by the fact that Lisa was just a 22-year old college student of Assumption Convent and was under psychological treatment for emotional immaturity.32 Naturally, she was an easy prey. Anent respondents argument that since the validity of his marriage to Lisa has not yet been determined by the court with finality, the same poses a prejudicial question to the present disbarment proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to the instant disbarment proceeding. As we held in In re Almacen,33 a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him,34 or if an affidavit of withdrawal of a disbarment case does not affect its course,35 then the judgment of annulment of respondents marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof --- clear preponderance of evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches.36

The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they "shall not engage in unlawful, dishonest, immoral or deceitful conduct." This is founded on the lawyers primordial duty to society as spelled out in Canon 1 which states: "CANON 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes." It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:37 "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic." Corollarily, the above responsibility is enshrined in the Attorneys Oath which every lawyer in the country has to take before he is allowed to practice. In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The penalty of one (1) year suspension recommended by the IBP is not commensurate to the gravity of his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of disbarment. WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation of his oath as a lawyer, and is hereby DISBARRED from the practice of law. Let respondents name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision. SO ORDERED. Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez*, Corona, Callejo, Sr., Carpio Morales*, Tinga, Azcuna, and ChicoNazario**, JJ., concur. Footnotes
*

On Official Leave. On leave. In re Gutierrez, Adm. Case No. L-363, July 31, 1962, 5 SCRA 661.

**

Transcript of Stenographic Notes (TSN), April 21, 1983 at 49-51. Annex "D", Complaint, Rollo at 13-19. Annex "F", id. at 32-36. Dated November 8, 1982, id. at 1-6. Dated February 8, 1983, id. at 53-56. Supra. "Leo J. Palma vs. Hon. Manuel V. Romillo, etc." In Civil Case No. Pq-0401-P, for declaration of nullity of marriage mentioned earlier, the trial court issued an order dated January 17, 1983 denying respondents motion for reconsideration/new trial. This prompted him to file with this Court a petition for certiorari assailing the said order. In this Resolution, this Court ordered respondent judge "to conduct a new trial in the case below and to allow petitioner to file his answer, which answer should be filed within ten (10) days from finality of this Resolution. The records show that respondent judge acted with undue haste in declaring petitioner in default on the complaint filed on August 24, 1982 and in rendering his ex parte decision of November 2, 1982 as well as in refusing to give due course to the timely appeal filed by petitioner and instead ordering the execution of the judgment."

Rollo, at 197-198. Id. at 199 - 201. Dated December 13, 1984.

10

11

12

OSG Records at 5. The OSG issued the Order dated December 20, 1984 suspending the scheduled hearing until the Court orders otherwise. (OSG Records at 1)
13

Records of the Commission on Bar Discipline at 11. Dated November 13, 1998, id. at 13. Order dated December 4, 2001, id. at 51. Order dated January 24, 2002, id. at 97. In re Almacen, 31 SCRA 562 (1970).

14

15

16

17

18

Bustamante-Alejandro vs. Alejandro, et al., AC No. 4256, February 13, 2004. Rule 7.03, Canon 7 provides: "A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in scandalous manner to the discredit of the legal profession."

19

TSN, April 21, 1983, at 98. Annex "A", Rollo at 7. Annex "C" and Annex "D", id., at 12 and 13. TSN, July 12, 1982, at 1-42. Villasanta vs. Peralta, 101 Phil. 313 (1957). 7 C.J.S. 959. Adm. Case. No. 6148, February 27, 2004. A.C. No. 5170, November 17, 1999, 318 SCRA 229. 101 Phil.313 (1957). 106 Phil. 256 (1960). 117 SCRA768, Adm. Case No. 266, April 27, 1963. 128 SCRA 485, Adm. Case No. 1392, April 2, 1984. Article 109 of the Civil Code. TSN, April 21, 1983 at 90-93. 31 Phil. 562 (1970). Calub vs. Suller, 323 SCRA 556 (2000). Rayos Ombac vs. Rayos, 285 SCRA 93 (1998). Macarubbo vs. Macarubbo, supra. 107 U.S. 263, 27 Law ed., 552, 556.

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

Amanquiton v People

DECISION CORONA, J.:

Petitioner Julius Amanquiton was a purok leader of Barangay Western Bicutan, Taguig, Metro Manila. As a purok leader and barangay tanod, he was responsible for the maintenance of cleanliness, peace and order of the community.

At 10:45 p.m. on October 30, 2001, petitioner heard an explosion. He, together with two auxiliary tanod, Dominador Amante[1] and a certain Cabisudo, proceeded to Sambong Street where the explosion took place. Thereafter, they saw complainant Leoselie John Baaga being chased by a certain Gil Gepulane. Upon learning that Baaga was the one who threw the pillbox[2] that caused the explosion, petitioner and his companions also went after him. On reaching Baagas house, petitioner, Cabisudo and Amante knocked on the door. When no one answered, they decided to hide some distance away. After five minutes, Baaga came out of the house. At this juncture, petitioner and his companions immediately apprehended him. Baaga's aunt, Marilyn Alimpuyo, followed them to the barangay hall.

Baaga was later brought to the police station. On the way to the police station, Gepulane suddenly appeared from nowhere and boxed Baaga in the face. This caused petitioner to order Gepulanes apprehension a long with Baaga. An incident report was made.[3]

During the investigation, petitioner learned Baaga had been previously mauled by a group made up of a certain Raul, Boyet and Cris but failed to identify two others. The mauling was the result of gang trouble in a certain residental compound in Taguig City. Baagas mauling was recorded in a barangay blotter which read:
10-30-201 Time: 10-15 p.m. RECORD purposes Dumating dito sa Barangay Head Quarters si Dossen[4] Baaga is Alimpuyo 16 years old student nakatira sa 10 B Kalachuchi St. M.B.T. M.M. Upang ireklamo yong sumapak sa akin sina Raul[,] Boyet [at] Cris at yong dalawang sumapak ay hindi ko kilala. Nang yari ito kaninang 10:p.m. araw ng [M]artes taong kasalukuyan at yong labi ko pumutok at yong kabilang mata ko ay namaga sa bandang kanan. Ang iyong kaliwang mukha at pati yong likod ko ay may tama sa sapak. Patunay dito ang aking lagda.

Dossen Banaga (sgd.)

Thereafter, an Information for violation of Section 10 (a), Article VI, RA[5] 7160[6] in relation to Section 5 (j) of R.A. 8369 was filed against petitioner, Amante and Gepulane. The Information read:
The undersigned 2nd Assistant Provincial Prosecutor accuses Julius Amanquiton, Dominador Amante and Gil Gepulane of the crime of Violations of Section 10 (a) Article VI, Republic Act No. 7610 in relation to Section 5 (j) of R.A. No. 8369 committed as follows: That on the 30th day of October, 2001, in the Municipality of Taguig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused in conspiracy with one another, armed with nightstick, did then and there willfully, unlawfully and feloniously attack, assault and use personal violence, a form of physical abuse, upon the person of Leoselie John A. [Baaga], seventeen (17) years old, a minor, by then and there manhandling him and hitting him with their nightsticks, thus, constituting other acts of child abuse, which is inimical or prejudicial to childs development, in violation of the abovementioned law. CONTRARY TO LAW.

On arraignment, petitioner and Amante both pleaded not guilty. Gepulane remains at-large.

During the trial, the prosecution presented the following witnesses: Dr. Paulito Cruz, medico-legal officer of the Taguig-Pateros District Hospital who attended to Baaga on October 30, 2001, Baaga himself, Alimpuyo and Rachelle Baaga (complainants mother).

The defense presented the testimonies of petitioner, Amante and Briccio Cuyos, then deputy chief barangay tanod of the same barangay. Cuyos testified

that the blotter notation entered by Gepulane and Baaga was signed in his presence and that they read the contents thereof before affixing their signatures.

On May 10, 2005, the RTC found petitioner and Amante guilty beyond reasonable doubt of the crime charged.[7] The dispositive portion of the RTC decision read:
WHEREFORE, in view of the foregoing, this Court finds the accused JULIUS AMANQUITON and DOMINADOR AMANTE GUILTY beyond reasonable doubt for violation of Article VI Sec. 10 (a) of Republic Act 7610 in relation to Section 3 (j) of Republic Act 8369, hereby sentences accused JULIUS AMANQUITON and DOMINADOR AMANTE a straight penalty of thirty (30) days of Arresto Menor. Both accused Julius Amanquiton and Dominador Amante are hereby directed to pay Leoselie John A. Banaga the following: 1. Actual damages in the amount of P5,000.00; 2. Moral Damages in the amount of P 30,000.00; and 3. Exemplary damages in the amount of P 20,000.00. The case against the accused Gil Gepulane is hereby sent to the ARCHIVES to be revived upon the arrest of the accused. Let [a] warrant of arrest be issued against him. SO ORDERED.

Amanquitons motion for reconsideration was denied.[8]

Petitioner filed a notice of appeal which was given due course. On August 28, 2008, the CA rendered a decision[9] which affirmed the conviction but increased the penalty. The dispositive portion of the assailed CA decision read:

WHEREFORE, in view of the foregoing the Decision appealed from is AFFIRMED with MODIFICATION. The accused-appellant is sentenced to suffer the penalty of four (4) years, two (2) months and one (1) day of prision correccional maximum up to eight (8) years of prision mayor minimum as maximum. In addition to the damages already awarded, a fine of thirty thousand pesos (P30,000.00) is hereby solidarily imposed the proceeds of which shall be administered as a cash fund by the DSWD. IT IS SO ORDERED.

Petitioners motion for reconsideration was denied.[10]

Hence, this petition. Petitioner principally argues that the facts of the case as established did not constitute a violation of Section 10 (a), Article VI of RA 7160 and definitely did not prove the guilt of petitioner beyond reasonable doubt.

The Constitution itself provides that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.[11] An accused is entitled to an acquittal unless his guilt is shown beyond reasonable doubt.[12] It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion, with moral certainty.[13]

The necessity for proof beyond reasonable doubt was discussed in People v. Berroya:[14]
[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution, the State is arrayed against the subject; it enters the contest with a

prior inculpatory finding in its hands; with unlimited means of command; with counsel usually of authority and capacity, who are regarded as public officers, as therefore as speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast to that of defendant engaged in a perturbed and distracting struggle for liberty if not for life. These inequalities of position, the law strives to meet by the rule that there is to be no conviction where there is reasonable doubt of guilt. However, proof beyond reasonable doubt requires only moral certainty or that degree of proof which produces conviction in an unprejudiced mind.

The RTC and CA hinged their finding of petitioners guilt beyond reasonable doubt (of the crime of child abuse) solely on the supposed positive identification by the complainant and his witness (Alimpuyo) of petitioner and his co-accused as the perpetrators of the crime. We note Baagas statement that, when he was apprehended by petitioner and Amante, there were many people around.[15] Yet, the prosecution presented only Baaga and his aunt, Alimpuyo, as witnesses to the mauling incident itself. Where were the other people who could have testified, in an unbiased manner, on the alleged mauling of Baaga by petitioner and Amante, as supposedly witnessed by Alimpuyo?[16] The testimonies of the two other prosecution witnesses, Dr. Paulito Cruz and Rachelle Baaga, did not fortify Baagas claim that petitioner mauled him, for the following reasons: Dr. Cruz merely attended to Baagas injuries, while Rachelle testified that she saw Baaga only after the injuries have been inflicted on him.

We note furthermore that, Baaga failed to controvert the validity of the barangay blotter he signed regarding the mauling incident which happened prior to his apprehension by petitioner. Neither did he ever deny the allegation that he figured in a prior battery by gang members. All this raises serious doubt on whether Baagas injuries were really inflicted by petitioner, et al., to the exclusion of other people. In fact, petitioner testified clearly that Gepulane, who had been harboring a grudge against Baaga, came out of nowhere and punched Baaga while the latter was being brought to the police station. Gepulane, not petitioner, could very well have caused Baaga's injuries.

Alimpuyo admitted that she did not see who actually caused the bloodied condition of Baagas face because she had to first put down the baby she was then carrying when the melee started.[17] More importantly, Alimpuyo stated that she was told by Baaga that, while he was allegedly being held by the neck by petitioner, others were hitting him. Alimpuyo was obviously testifying not on what she personally saw but on what Baaga told her. While we ordinarily do not interfere with the findings of the lower courts on the trustworthiness of witnesses, when there appear in the records facts and

circumstances of real weight which might have been overlooked or misapprehended, this Court cannot shirk from its duty to sift fact from fiction. We apply the pro reo principle and the equipoise rule in this case. Where the evidence on an issue of fact is in question or there is doubt on which side the evidence weighs, the doubt should be resolved in favor of the accused.[18] If inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and will not justify a conviction.[19]

Time and again, we have held that:

Republic Act No. 7610 is a measure geared towards the implementation of a national comprehensive program for the survival of the most vulnerable members of the population, the Filipino children, in keeping with the Constitutional mandate under Article XV, Section 3, paragraph 2, that The State shall defend the right of the children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. This piece of legislation supplies the inadequacies of existing laws treating crimes committed against children, namely, the Revised Penal Code and Presidential Decree No. 603 or the Child and Youth Welfare Code. As a statute that provides for a mechanism for strong deterrence against the commission of child abuse and exploitation, the law has stiffer penalties for their commission, and a means by which child traffickers could easily be prosecuted and penalized. Also, the definition of child abuse is expanded to encompass not only those specific acts of child abuse under existing laws but includes also other acts of neglect, abuse, cruelty or exploitation and other conditions prejudicial to the childs development.[20]

However, this noble statute should not be used as a sharp sword, ready to be brandished against an accused even if there is a patent lack of proof to convict him of the crime. The right of an accused to liberty is as important as a minors right not to be subjected to any form of abuse. Both are enshrined in the Constitution. One need not be sacrificed for the other. There is no dearth of law, rules and regulations protecting a child from any and all forms of abuse. While unfortunately, incidents of maltreatment of children abound amidst social ills, care has to be likewise taken that wayward youths should not be cuddled by a misapplication of the law. Society, through its laws, should correct the deviant conduct of the youth rather than take the cudgels for them. Lest we regress to a culture of juvenile delinquency and errant behavior, laws for the protection of children against abuse should be applied only and strictly to actual abusers. The objective of this seemingly catch-all provision on abuses against children will be best achieved if parameters are set in the law itself, if only to prevent baseless accusations against innocent individuals. Perhaps the time has come for Congress to review this matter and institute the safeguards necessary for the attainment of its laudable ends. We reiterate our ruling in People v. Mamalias:[21]
We emphasize that the great goal of our criminal law and procedure is not to send people to the gaol but to do justice. The prosecutions job is to prove that the accused is guilty beyond reasonable

doubt. Conviction must be based on the strength of the prosecution and not on the weakness of the defense. Thus, when the evidence of the prosecution is not enough to sustain a conviction, it must be rejected and the accused absolved and released at once.

WHEREFORE, the petition is hereby GRANTED. The August 28, 2008 decision and January 15, 2009 resolution Petitioner of Court of Appeals is

are REVERSED and SET

ASIDE.

Julius

Amanquiton

hereby ACQUITTED of violation of Section 10 (a), Article VI of RA 7160. SO ORDERED.

People v Veneracion

EN BANC

G.R. Nos. 119987-88 October 12, 1995 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents.

KAPUNAN, J.: The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death? The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men: On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila. When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left ear, lacerations on her genitalia, and with her head bashed in. On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071, reads: That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one alias "LANDO" and other persons whose true names, identifies and present whereabouts are still

unknown and helping one another, with treachery, taking advantage of their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138, allegedly committed as follows: That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength and nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said accused together with their confederates ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12, 1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information. After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty of reclusion perpetua with all the accessories provided for by law." 3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads: The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila. WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein accused is hereby reiterated. The Clerk of this Court is hereby directed to transmit the complete records of these cases, together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure. SO ORDERED. Hence, the instant petition. The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide. We find for petitioner. Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries

within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," 4 resist encroachments by governments, political parties, 5 or even the interference of their own personal beliefs. In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions. Section 11 of R.A. No. 7659 provides: Sec. 11. Article 335 of the same Code is hereby amended to read as follows: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation. 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty 6 shall be death. . . .

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows judges the discretion depending on the existence of circumstances modifying the offense committed to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty

shall be death." The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death. We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held that:
[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is 8 in force, they must apply it and give it effect as decreed by the law-making body.

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper penalty and civil liability provided for by the law on the accused." 9 This is not a case of a magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the penalty of Death. WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent judge's finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty. SO ORDERED.

Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

NARVASA, C.J., concurring: I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this separate opinion merely to address a question which may be raised in relation to the appeal taken by the accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent Judge declined to act on the merits of motion for reconsideration filed by the prosecution praying that his decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be imposed" for the reason that since the accused had already "complied with the legal requirements for the perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court of the special civil action of certiorari at bar. It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction. Such a conclusion is not warranted. The judgment in question is void, and has been annulled and set aside by this Court, because rendered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than that peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There exists no legal obstacle to the remand of the cases to it and its modification of the judgment so that it may comply with the mandatory prescription of the law. REGALADO, J., concurring:

I concur without reservation in the ponencia in this case and its directive that the court a quo impose the correct penalty of death as provided by law and consequent to its findings of guilt on the part of private respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the mandate thereof would not have been necessary were it not for the contrary observations that the petition herein should either have been dismissed or consolidated with the criminal case elevated on appeal by private respondents. Such digression from the judgment unconditionally accepted by the other members of the Court does not impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his judicial discretion. 1 On the other hand, the criminal case with which it is sought to be consolidated is an appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of private respondents. Evidently, the determinative issues involved and the limited relief sought in the present special civil action are entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject matter and the existence of a common question of law or fact. This is essentially the same as the rule on consolidation in criminal procedure 3 which contemplates charges for offenses founded on the same facts, or forming part of a series of offenses of similar character. Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and not a special civil action in combination with the former. The impropriety of the latter situation is specially underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial courts in the exercise of original jurisdiction and to the appellate courts in the implementation of revisory power. The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge erroneous because he imposed the wrong penalty corrected on that score in the first instance. After such correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the resultant amended judgment containing the proper penalty shall be the basis for the review as to whether appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square with the figurative posture of putting the cart before the horse, it does result in the same absurdity of both the horse and the cart moving abreast at the same time along the same judicial path. It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the judgment a quoopen for review and the

Court may raise the penalty to the appropriate punitive level. But, as the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate denouement would be the death sentence? Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in the appellate court. 4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court is permitted. 5 Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the penalty imposed may be corrected in the judgment of the case on the merits, 6 why should the appellate course of the proceedings still have to be subject to such contingencies with the inevitable waste of time and effort in the formulation of alternative theories in two sets of pleadings by both parties when with the decisive sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare? Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will consequently be before this Court on automatic review. That provision calling for automatic review when capital punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through protective features established by case law. Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without the benefit of briefs or arguments from the accused. 8 The automatic review of the case shall proceed even if the death convict shall escape, 9 as an exception to the provisions of Section 8, Rule 124, and such automatic review cannot be waived. 10 The aforementioned beneficial effects are not provided for and may not be availed of by the accused in an ordinary appeal to this Court. The automatic review of the death sentence ensures the right of the condemned person to procedural due process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental policies, hence my unqualified assent thereto. VITUG, J., dissenting: The ponencia itself indicates that the case against the convicted accused is already on appeal before this Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open for review and consideration. A ruling on the petition would be precipitate and might be so perceived as peremptory on the imposition of the death penalty. With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at the very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition. Davide, Jr., J. concurs.

Separate Opinions NARVASA, C.J., concurring: I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this separate opinion merely to address a question which may be raised in relation to the appeal taken by the accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent Judge declined to act on the merits of motion for reconsideration filed by the prosecution praying that his decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be imposed" for the reason that since the accused had already "complied with the legal requirements for the perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court of the special civil action of certiorari at bar. It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction. Such a conclusion is not warranted. The judgment in question is void, and has been annulled and set aside by this Court, because rendered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than that peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There exists no legal obstacle to the remand of the cases to it and its modification of the judgment so that it may comply with the mandatory prescription of the law. REGALADO, J., concurring: I concur without reservation in the ponencia in this case and its directive that the court a quo impose the correct penalty of death as provided by law and consequent to its findings of guilt on the part of private respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the mandate thereof would not have been necessary were it not for the contrary observations that the petition herein should either

have been dismissed or consolidated with the criminal case elevated on appeal by private respondents. Such digression from the judgment unconditionally accepted by the other members of the Court does not impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his judicial discretion. 1 On the other hand, the criminal case with which it is sought to be consolidated is an appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of private respondents. Evidently, the determinative issues involved and the limited relief sought in the present special civil action are entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject matter and the existence of a common question of law or fact. This is essentially the same as the rule on consolidation in criminal procedure 3 which contemplates charges for offenses founded on the same facts, or forming part of a series of offenses of similar character. Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and not a special civil action in combination with the former. The impropriety of the latter situation is specially underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial courts in the exercise of original jurisdiction and to the appellate courts in the implementation of revisory power. The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge erroneous because he imposed the wrong penalty corrected on that score in the first instance. After such correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the resultant amended judgment containing the proper penalty shall be the basis for the review as to whether appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square with the figurative posture of putting the cart before the horse, it does result in the same absurdity of both the horse and the cart moving abreast at the same time along the same judicial path. It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the judgment a quoopen for review and the Court may raise the penalty to the appropriate punitive level. But, as the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate denouement would be the death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in the appellate court. 4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court is permitted. 5 Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the penalty imposed may be corrected in the judgment of the case on the merits, 6 why should the appellate course of the proceedings still have to be subject to such contingencies with the inevitable waste of time and effort in the formulation of alternative theories in two sets of pleadings by both parties when with the decisive sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare? Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will consequently be before this Court on automatic review. That provision calling for automatic review when capital punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through protective features established by case law. Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without the benefit of briefs or arguments from the accused. 8 The automatic review of the case shall proceed even if the death convict shall escape, 9 as an exception to the provisions of Section 8, Rule 124, and such automatic review cannot be waived. 10 The aforementioned beneficial effects are not provided for and may not be availed of by the accused in an ordinary appeal to this Court. The automatic review of the death sentence ensures the right of the condemned person to procedural due process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental policies, hence my unqualified assent thereto. VITUG, J., dissenting: The ponencia itself indicates that the case against the convicted accused is already on appeal before this Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open for review and consideration. A ruling on the petition would be precipitate and might be so perceived as peremptory on the imposition of the death penalty. With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at the very least be consolidated with the appealed case. Accordingly, I am constrained, at this time, to vote for the dismissal of the petition. Davide, Jr., J. concurs. Footnotes

1 Rollo, p. 4, Except as to the penalty imposed, petitioner and respondent court are in agreement as to the essential facts of the case. 2 Rollo, pp. 24-51. 3 Rollo, p. 28, The dispositive portion reads: WHEREFORE, premises considered judgment is hereby rendered, dismissing the information as against ROLANDO MANLANGIT for lack of evidence, and finding both accused HENRY LAGARTO y PETILLA and ERNESTO CORDERO y MARISTELA "guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE charged in the Information of these cases, and sentencing both accused the penalty of reclusion perpetua with all the accessories provided for by law." Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of P100,000 for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages, and the amount of P52,000.00 for actual damages representing expenses incurred for the wake and funeral of the victim. They are further ordered to pay the costs of these suits. SO ORDERED. (ANNEX 'A', Petition) 4 Act of Athens (1955). 5 Id. 6 Emphasis supplied. 7 88 Phil. 36 [1951]. 8 Id. at 43-44. 9 Rule 120, sec. 1. REGALADO, concurring: 1 People vs. Olaes, 105 Phil. 502 (1959); People vs. Limaco, 88 Phil. 35 (1951); People vs. Carillo, et al., 85 Phil. 611 (1950). 2 Section 1, Rule 31. 3 Section 14, Rule 119. 4 U.S. vs. Sotto, 38 Phil. 666 (1918).

5 People vs. Mendoza, 93 Phil. 581 (1953). 6 See People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117. 7 Sec. 10, Rule 122. 8 People vs. Villanueva, 93 Phil. 927 (1953). 9 People vs. Vallente, L-37937, September 30, 1986, 144 SCRA 495; People vs. Cornelio, et al., L-1289, June 10, 1971, 39 SCRA 435. 10 People vs. Daban, L-31429, January 31, 1972, 43 SCRA 185.

Mangonon v CA and Delgado

FIRST DIVISION G.R. No. 125041 June 30, 2006

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA DELGADO and REGINA ISABEL DELGADO. Petitioner, vs. HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C. DELGADO, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated 20 March 1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court (RTC), Branch 149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed Delgado. The generative facts leading to the filing of the present petition are as follows: On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente lite with the RTC Makati.3In said petition, it was alleged that on 16 February 1975, petitioner and respondent Federico Delgado were civilly married by then City Court Judge Eleuterio Agudo in Legaspi City, Albay. At that time, petitioner was only 21 years old while respondent Federico was only 19 years old. As the marriage was solemnized without the required consent per Article 85 of the New Civil Code, 4 it was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic Relations Court. 5 On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second husband Danny Mangonon, raised her twin daughters as private respondents had totally abandoned them. At the time of the institution of the petition, Rica and Rina were about to enter college in the United States of America (USA) where petitioner, together with her daughters and second husband, had moved to and finally settled in. Rica was admitted to the University of Massachusetts (Amherst) while Rina was accepted by the Long Island University and Western New England College. Despite their admissions to said universities, Rica and Rina were, however, financially incapable of pursuing collegiate education because of the following: i) The average annual cost for college education in the US is about US$22,000/year, broken down as follows:

Tuition Fees US$13,000.00 Room & Board 5,000.00 Books 1,000.00 Yearly Transportation & Meal Allowance 3,000.00 Total US$ 22,000.00 or a total of US$44,000.00, more or less, for both Rica and Rina ii) Additionally, Rica and Rina need general maintenance support each in the amount of US$3,000.00 per year or a total of US$6,000 per year. iii) Unfortunately, petitioners monthly income from her 2 jobs is merely US$1,200 after taxes which she can hardly give general support to Rica and Rina, much less their required college educational support. iv) Neither can petitioners present husband be compelled to share in the general support and college education of Rica and Rina since he has his own son with petitioner and own daughter (also in college) to attend to. v) Worse, Rica and Rinas petitions for Federal Student Aid have been rejected by the U.S. Department of Education.6 Petitioner likewise averred that demands7 were made upon Federico and the latters father, Francisco,8 for general support and for the payment of the required college education of Rica and Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with respondent Federico and respondent Francisco, the latter being generally known to be financially well-off.9 These demands, however, remained unheeded. Considering the impending deadline for admission to college and the opening of classes, petitioner and her then minor children had no choice but to file the petition before the trial court. Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since the twin sisters were born within seven months from the date of the annulment of her marriage to respondent Federico. However, as respondent Federico failed to sign the birth certificates of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico, and as granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of the Family Code.10 As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the Family Code. Petitioner alleged that under these provisions, in case of default on the part of the parents, the obligation to provide support falls upon the

grandparents of the children; thus, respondent Federico, or in his default, respondent Francisco should be ordered to provide general and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year. Petitioner also claimed that she was constrained to seek support pendente lite from private respondents - who are millionaires with extensive assets both here and abroad - in view of the imminent opening of classes, the possibility of a protracted litigation, and Rica and Rinas lack of financial means to pursue their college education in the USA. In his Answer,15 respondent Francisco stated that as the birth certificates of Rica and Rina do not bear the signature of respondent Federico, it is essential that their legitimacy be first established as "there is no basis to claim support until a final and executory judicial declaration has been made as to the civil status of the children."16Whatever good deeds he may have done to Rica and Rina, according to respondent Francisco, was founded on pure acts of Christian charity. He, likewise, averred that the order of liability for support under Article 199 of the Family Code is not concurrent such that the obligation must be borne by those more closely related to the recipient. In this case, he maintained that responsibility should rest on the shoulders of petitioner and her second husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. Even assuming that he is responsible for support, respondent Francisco contends that he could not be made to answer beyond what petitioner and the father could afford. On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in Default.17 This was favorably acted upon by the trial court in the Order dated 16 June 1994.18 On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the summons and a copy of the petition were not served in his correct address. 19 Attached thereto was his Answer20 where he claimed that petitioner had no cause of action against him. According to him, he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of the three hundred days immediately preceding March 25, 1976" and that he only came to know about the birth of Rica and Rina when the twins introduced themselves to him seventeen years later. In order not to antagonize the two, respondent Federico claimed he did not tell them that he could not be their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could not give them the support they were demanding as he was only making P40,000.00 a month. Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its Order dated 16 June 1994 and admitted his Answer.21 In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial resources for their education.22 This Motion was opposed by respondent Francisco.23 After both parties submitted supplemental pleadings to bolster their respective positions, the trial court resolved the motion in an Order dated 12 September 1995 in this wise:

WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to provide a monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the education of Rebecca Angela and Regina Isabel Delgado to be delivered within the first five days of each month without need of demand.24 Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via Petition for Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the petition in the following manner: WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court dated September 12, 1995 is hereby AFFIRMED.25 Petitioners Motion for Reconsideration was denied through the Resolution of the Court of Appeals dated 16 May 1996.26 Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted with the following errors: RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT A MEASLEY P5,000.00 PER CHILD. I. RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY OF RICA AND RINAS PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE GRANDFATHER. II. IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT GRANDFATHER DON PACO IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27 At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers University in New Jersey with a budget of US$12,500.00 for academic year 19941995. She was able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US government in the amount of US$2,615.00.28 In order to defray the remaining balance of Ricas education for said school year, petitioner claims that she had to secure a loan under the Federal Direct Student Loan Program. Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00, federal work study assistance of US$2,000.00, and a Federal Stafford loan of

US$2,625.00.29 Again, petitioner obtained a loan to cover the remainder of Rinas school budget for the year. Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first imposed upon their parents. She contends, however, that the records of this case demonstrate her as well as respondent Federicos inability to give the support needed for Rica and Rinas college education. Consequently, the obligation to provide support devolves upon respondent Francisco being the grandfather of Rica and Rina. Petitioner also maintains that as respondent Francisco has the financial resources to help defray the cost of Rica and Rinas schooling, the Court of Appeals then erred in sustaining the trial courts Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00 each as monthly support pendente lite. On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner and respondent Federico should be the ones to provide the support needed by their twin daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the financial package availed of by Rica and Rina in the form of state tuition aid grant, work study program and federal student loan program, petitioner herself was eligible for, and had availed herself of, the federal parent loan program based on her income and properties in the USA. He, likewise, insists that assuming he could be held liable for support, he has the option to fulfill the obligation either by paying the support or receiving and maintaining in the dwelling here in the Philippines the person claiming support. 30 As an additional point to be considered by this Court, he posits the argument that because petitioner and her twin daughters are now US citizens, they cannot invoke the Family Code provisions on support as "[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad."31 Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating the grounds he had previously raised before the trial court. Like his father, respondent Federico argues that assuming he is indeed the father of the twin sisters, he has the option under the law as to how he would provide support. Lastly, he assents with the declaration of the trial court and the Court of Appeals that the parents of a child should primarily bear the burden of providing support to their offspring. The petition is meritorious. As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente lite. The pertinent portion of the Rules of Court on the matter provides: Rule 61 SUPPORT PENDENTE LITE SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of

both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. xxxx SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. Under this provision, a court may temporarily grant support pendente lite prior to the rendition of judgment or final order. Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.32
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After the hearings conducted on this matter as well as the evidence presented, we find that petitioner was able to establish, by prima facie proof, the filiation of her twin daughters to private respondents and the twins entitlement to support pendente lite. In the words of t he trial court By and large, the status of the twins as children of Federico cannot be denied. They had maintained constant communication with their grandfather Francisco. As a matter of fact, respondent Francisco admitted having wrote several letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom thereof, respondent Francisco wrote the names of Rica and Rina Delgado. He therefore was very well aware that they bear the surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a financial help of US$1,000.00." On top of this, respondent Federico even gave the twins a treat to Hongkong during their visit to the Philippines. Indeed, respondents, by their actuations, have shown beyond doubt that the twins are the children of Federico.33 Having addressed the issue of the propriety of the trial courts grant of support pendente lite in favor of Rica and Rina, the next question is who should be made liable for said award. The pertinent provision of the Family Code on this subject states: ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse;

(2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters. An eminent author on the subject explains that the obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so. 34 In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide monthly support pendente lite in the total amount of P10,000.00 by taking into consideration his supposed income ofP30,000.00 to P40,000.00 per month. We are, however, unconvinced as to the veracity of this ground relied upon by the trial court and the Court of Appeals. It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent application where the Court of Appeals upholds the findings of fact of the trial court; in such a situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by the appellate and the lower courts. This rule, however, is not ironclad as it admits of the following recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion."35 The case at bar falls within the seventh and eleventh exceptions. The trial court gave full credence to respondent Federicos allegation in his Answer 36 and his testimony37 as to the amount of his income. We have, however, reviewed the records of this case and found them bereft of evidence to support his assertions regarding his employment and his earning. Notably, he was even required by petitioners counsel to present to the court his income tax return and yet the records of this case do not bear a copy of said document.38 This, to our mind, severely undermines the truthfulness of respondent Federicos assertion with respect to his financial status and capacity to provide support to Rica and Rina. In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his son, respondent Federico did not own anything

"Atty. Lopez: I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19, 1991 addressed to Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you remember." xxxx WITNESS: A: I do remember this letter because it really irritated me so much that I threw it away in a waste basket. It is a very demanding letter, that is what I do not like at all. ATTY. LOPEZ: Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for reasons we both are aware of." Do you know what reason that is? A: Yes. The reason is that my son do not have fix employment and do not have fix salary and income and they want to depend on the lolo. xxxx
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Q: Would you have any knowledge if Federico owns a house and lot? A: Not that I know. I do not think he has anything. Q: How about a car? A: Well, his car is owned by my company.39 Respondent Federico himself admitted in court that he had no property of his own, thus: Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified that this building belongs to Citadel Corporation. Do you confirm that? A: Yes, sir. Q: What car are you driving, Mr. Witness? A: I am driving a lancer, sir. Q: What car, that registered in the name of the corporation? A: In the corporation, sir. Q: What corporation is that?

A: Citadel Commercial, Inc., sir. Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness? A: None, sir."40 (Emphasis supplied.) Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to her twin daughters as she has gainful employment in the USA. He even went as far as to state that petitioners income abroad, when converted to Philippine peso, was much higher than that received by a trial court judge here in the Philippines. In addition, he claims that as she qualified for the federal parent loan program, she could very well support the college studies of her daughters. We are unconvinced. Respondent Franciscos assertion that petitioner had the means to support her daughters education is belied by the fact that petitioner was even forced by her financial status in the USA to secure the loan from the federal government. If petitioner were really making enough money abroad, she certainly would not have felt the need to apply for said loan. The fact that petitioner was compelled to take out a loan is enough indication that she did not have enough money to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves were forced by the circumstances they found themselves in to secure loans under their names so as not to delay their entrance to college. There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their childrens college education. In view however of their incapacities, th e obligation to furnish said support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his granddaughters in default of their parents. It bears stressing that respondent Francisco is the majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated, which owns and manages twelve gasoline stations, substantial real estate, and is engaged in shipping, brokerage and freight forwarding. He is also the majority stockholder and Chairman of the Board of Directors of Citadel Shipping which does business with Hyundai of Korea. Apart from these, he also owns the Citadel Corporation which, in turn, owns real properties in different parts of the country. He is likewise the Chairman of the Board of Directors of Isla Communication Co. and he owns shares of stocks of Citadel Holdings. In addition, he owns real properties here and abroad.41 It having been established that respondent Francisco has the financial means to support his granddaughters education, he, in lieu of petitioner and respondent Federico, should be held liable for support pendente lite. Anent respondent Francisco and Federicos claim that they have the option under the law as to how they could perform their obligation to support Rica and Rina, respondent Francisco insists that Rica and Rina should move here to the Philippines to study in any of the local universities. After all, the quality of education here, according to him, is at par with that offered in the USA. The applicable provision of the Family Code on this subject provides:

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation to give support. Thus, he may give the determined amount of support to the claimant or he may allow the latter to stay in the family dwelling. The second option cannot be availed of in case there are circumstances, legal or moral, which should be considered. In this case, this Court believes that respondent Francisco could not avail himself of the second option. From the records, we gleaned that prior to the commencement of this action, the relationship between respondent Francisco, on one hand, and petitioner and her twin daughters, on the other, was indeed quite pleasant. The correspondences exchanged among them expressed profound feelings of thoughtfulness and concern for one anothers well-being. The photographs presented by petitioner as part of her exhibits presented a seemingly typical family celebrating kinship. All of these, however, are now things of the past. With the filing of this case, and the allegations hurled at one another by the parties, the relationships among the parties had certainly been affected. Particularly difficult for Rica and Rina must be the fact that those who they had considered and claimed as family denied having any familial relationship with them. Given all these, we could not see Rica and Rina moving back here in the Philippines in the company of those who have disowned them. Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law mandating the amount of support to be proportionate to the resources or means of the giver and to the necessities of the recipient.42 Guided by this principle, we hold respondent Francisco liable for half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As established by petitioner, respondent Francisco has the financial resources to pay this amount given his various business endeavors. Considering, however, that the twin sisters may have already been done with their education by the time of the promulgation of this decision, we deem it proper to award support pendente lite in arrears43 to be computed from the time they entered college until they had finished their respective studies. The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then order the return of the amounts already paid with legal interest from the dates of actual payment.44 WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated 12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of support pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in that respondent Francisco Delgado is hereby held liable for support pendente lite in the amount to be determined by the trial court pursuant to this Decision. Let the records of this case be remanded to the trial court for the determination of

the proper amount of support pendente lite for Rebecca Angela and Regina Isabel as well as the arrearages due them in accordance with this Decision within ten (10) days from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main case and the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is further directed to submit a report of his compliance with the directive regarding the support pendente lite within ten (10) days from compliance thereof. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: On Official Leave ARTEMIO V. PANGANIBAN Chief Justice Chairperson CONSUELO YNARES-SANTIAGO Associate Justice Acting Chairman MA. ALICIA AUSTRIA-MARTINEZ Asscociate Justice

ROMEO J. CALLEJO, SR. Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Acting Chairman, First Division CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Acting Chief Justice

Footnotes
1

Penned by Associate Justice Portia Alio-Hormachuelos with Associate Justices Artemon D. Luna and Ramon Barcelona, concurring; Rollo, pp. 38-46.
2

Rollo, pp. 216-221. Records, Vol. I, pp. 2-13; Docketed as Civil Case No. 94-1093.

Article 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife.
5

Records, Vol. I, pp. 14-18. Id. at 4-5. Annexes "D" and "D-1"; Records, Vol. I, pp. 25-27. Sometimes referred to in the pleadings as Don Paco. Annexes " E-1" and "E-2"; Records, Vol. I, pp. 29 and 30.

10

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.
11

Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

(3) To be entitled to the legitime and other successional rights granted to them by the Civil Code.
12

Should be Art. 195(2). It reads: Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: xxx (2) Legitimate ascendants and descendants; xxx

13

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.
14

Should be Art. 199(3). It states: Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: xxx (3) The ascendants in the nearest degree; and xxx

15

Records, Vol. I, pp. 68-77. Id. at 71, citing Francisco v. Zandueta, 61 Phil. 752, 757 (1935). Records, Vol. I, pp. 220-222. Id. at 261. Id. at 397-399. Id. at 400-402.

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17

18

19

20

21

Order dated 29 August 1994; Records, Vol. I, p. 479. Records, Vol. I, pp. 58-61. Id. at 78-91. Order dated 12 September 1995; Records, Vol. II, p. 610. Rollo, p. 46. Id. at 48-49. Id. at 14-15. Id. at 12. Id. Citing Article 204 of the Family Code. Civil Code, Art. 15. Ramos v. Court of Appeals, 150-A Phil. 996, 1001 (1972). Rollo, p. 220.

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23

24

25

26

27

28

29

30

31

32

33

34

CIVIL CODE OF THE PHILIPPINES, COMMENTARIES AND JURISPRUDENCE, Vol. I, Arturo Tolentino, Art. 199 of the Family Code.
35

The Insular Life Assurance Company, Ltd. v. Court of Appeals, G.R. No. 126850, 28 April 2004, 428 SCRA 79, 86.
36

Records, p. 400. TSN, November 11, 1994, pp. 17-19; Records, Vol. II, pp. 468-470. TSN, October 21, 1994, p. 13; Records, Vol. II, p. 438. TSN, August 19, 1994, pp. 31-33; Records, Vol. II, pp. 347-349. TSN, October 21, 1994, pp. 12-13; Records, Vol. II, pp. 437-438. Rollo, pp. 20-30. Family Code, Art. 201.

37

38

39

40

41

42

43

See Amurao v. Court of Appeals, G.R. No. 83942, 29 December 1988, 168 SCRA 734, 737.
44

Rules of Court, Rule 62, Sec. 7.

RA 9225

Congress of the Philippines Twelfth Congress Third Regular Session

Begun held in Metro Manila on Monday, the twenty-eighth day of July, two thousand three.

Republic Act No. 9225

August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT. AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Short Title this act shall be known as the "Citizenship Retention and Reacquisition Act of 2003." Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _____________________, solemny swear (or affrim) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any other section or provision not affected thereby shall remain valid and effective. Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 8. Effectivity Clause This Act shall take effect after fifteen (15) days following its publication in theOfficial Gazette or two (2) newspaper of general circulation.

Approved, FRANKLIN DRILON President of the Senate JOSE DE VENECIA JR. Speaker of the House of Representatives

This Act, which is a consolidation of Senate Bill No. 2130 and House Bill No. 4720 was finally passed by the the House of Representatives and Senate on August 25, 2003 and August 26, 2003, respectively.

Hermosisima v CA

EN BANC G.R. No. L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner, vs. THE HON. COURT OF APPEALS, ET AL., respondents. Regino Hermosisima for petitioner. F.P. Gabriel, Jr. for respondents. CONCEPCION, J.: An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that of the Court of First Instance of Cebu. On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of child and expressed willingness to support the latter, but denied having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the dispositive part of which reads: WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant. On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively. The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The pertinent facts are: Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go around together and were regarded as engaged,

although he had made no promise of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was commenced on or about October 4, 1954. Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of damages for breach to marry. Article 43 and 44 of said Code provides: ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall entertain any complaint by which the enforcement of such promise is sought. ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns have been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised marriage. The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the day of the refusal to celebrate the marriage. Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right to recover money or property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the report of the Code Commission on said Proposed Civil Code: Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement to be broken.
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Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof: Art. 56. A mutual promise to marry may be made expressly or impliedly.

Art. 57. An engagement to be married must be agreed directly by the future spouses. Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil action for damages in case of breach of the promise. Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even though approved by the parent or guardian. Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction shall not be affected. Art. 61. No action for specific performance of a mutual promise to marry may be brought. Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may institute the action. Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental and moral suffering. Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged person who is rejected. Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he or she has received from the other as gift on account of the promise of the marriage. These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding Senate Committee, from which we quote: The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American States. See statutes of: Florida 1945 pp. 1342 1344 Maryland 1945 pp. 1759 1762 Nevada 1943 p. 75 Maine 1941 pp. 140 141

New Hampshire 1941 p. 223 California 1939 p. 1245 Massachusetts 1938 p. 326 Indiana 1936 p. 1009 Michigan 1935 p. 201 New York 1935 Pennsylvania p. 450 The Commission perhaps though that it has followed the more progression trend in legislation when it provided for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so many States, in consequence of years of experience are doing away with them, may well prove to be a step in the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.) The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages made by the lower courts is, accordingly, untenable. The Court of Appeals said award: Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman after all, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code. Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the "seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy ." The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the balance representing expenses incurred to support the child and increased the moral damages to P7,000.00.

With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all other respects, without special pronouncement as to cost in this instance. It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David, Paredes and Dizon, JJ., concur.

Constancia v CA and David

THIRD DIVISION G.R. No. L-41427 June 10, 1988 CONSTANCIA C. TOLENTINO, petitioner, vs. COURT OF APPEALS and CONSUELO DAVID, respondents.

GUTIERREZ, JR., J.: The issue in this petition for review on certiorari is whether or not a woman who has been legally divorced from her husband may be enjoined by the latter's present wife from using the surname of her former husband. A complaint was filed by petitioner Constancia C. Tolentino with the then Court of First Instance of Quezon City against Consuelo David for the purpose of stopping and enjoining her by injunction from using the surname Tolentino. The complaint also contained a claim for damages which the petitioner, however, waived. An application for a writ of preliminary injunction was filed as well. On January 13, 1972 respondent Consuelo David filed her answer admitting she has been using and continues to use the surname Tolentino. The application for the writ was heard with both parties presenting evidence in support of their respective claims. On January 18, 1972, the trial court issued an order granting the petitioner's action for a writ of preliminary injunction with the actual writ being issued on January 20, 1972. The order granting said writ reads: NOW, THEREFORE, it is hereby ordered by the undersigned Judge of the Court of First Instance of Rizal, Branch XVI, Quezon City, that, until further orders, you CONSUELO DAVID, your agents and/or representatives and/or persons acting under your control, direction, instruction and/or supervision, ARE ENJOINED from using, employing and/or applying, in any manner, form or means whatsoever, the surname TOLENTINO. (p. 17, Original Record On Appeal) On February 2, 1972, respondent Consuelo filed a motion for leave to file a third party complaint against her former husband. The motion was granted on March 18,1972. Thereafter, third party defendant Arturo Tolentino filed his answer on April 19,1972.

After the hearings, the trial court rendered a decision in favor of the petitioner. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered confirming the preliminary injunction and making the same permanent and perpetual-restraining and enjoining defendant, her agents and/or representatives and/or persons acting under her control, direction, instruction and/or supervision, from using, employing and/or applying, in any manner, form or means whatsoever, the surname" TOLENTINO." No pronouncement as to costs, the same having been waived by the plaintiff. The third-party complaint is hereby dismissed, without pronouncement as to costs. (p. 93, Original Record on Appeal) The private respondent appealed the decision to the Court of Appeals raising several issues, among them, the prescription of the plaintiff's cause of action and the absence of a monopolistic proprietary right of the plaintiff over the use of the surname Tolentino. On June 25, 1975, the Court of Appeals reversed the decision of the trial court. The dispositive portion of the decision reads as follows: IN VIEW WHEREOF, sustaining Error 1, this Court is constrained to reverse, as it now reverses, judgment appealed from, complaint is dismissed, with costs. (p. 76, Petitioner's Brief) The petitioner filed a motion for reconsideration but the same was denied in a resolution dated August 29,1975. Hence, this appeal by the petitioner. The uncontroverted facts of the case are: The petitioner is the present legal wife of Arturo Tolentino, their marriage having been celebrated on April 21, 1945 in Manila. The union produced three children. Respondent Consuelo David was legally married to Arturo Tolentino on February 8, 1931. Their marriage likewise produced children. The marriage was dissolved and terminated pursuant to the law during the Japanese occupation on September 15, 1943 by a decree of absolute divorce granted by the Court of First Instance of Manila in Divorce Case No. R-619 entitled "Arturo Tolentino v. Consuelo David" on the ground of desertion and abandonment by the wife. The trial court granted the divorce on its finding that Arturo Tolentino was abandoned by Consuelo David for at least three (3) continuous years. Thereafter, Arturo Tolentino married a certain Pilar Adorable, who however, died soon after their marriage. Tolentino subsequently married Constancia on April 21, 1945.

Consuelo David, on the other hand, continued using the surname Tolentino after the divorce and up to the time of the filing of this complaint. The third party defendant, in his answer, admitted that the use of the surname Tolentino by the private respondent was with his and his family's (brothers and sisters) consent. The petition mainly revolves around two issues: 1. Whether or not the petitioner's cause of action has already prescribed, and 2. Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced. The petitioner's contention that her cause of action is imprescriptible is without merit. In fact, it is contradictory to her own claim. The petitioner insists that the use by respondent Consuelo David of the surname Tolentino is a continuing actionable wrong and states that every use of the surname constitutes a new crime. The contention cannot be countenanced because the use of a surname by a divorced wife for a purpose not criminal in nature is certainly not a crime. The rule on prescription in civil cases such as the case at bar is different. Art. 1150 of the Civil Code provides: "The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought." All actions, unless an exception is provided, have a prescriptive period. Unless the law makes an action imprescriptible, it is subject to bar by prescription and the period of prescription is five (5) years from the time the right of action accrues when no other period is prescribed by law (Civil Code, Art. 1149). The Civil Code provides for some rights which are not extinguished by prescription but an action as in the case before us is not among them. Neither is there a special law providing for imprescriptibility. Moreover, the mere fact that the supposed violation of the petitioner's right may be a continuous one does not change the principle that the moment the breach of right or duty occurs, the right of action accrues and the action from that moment can be legally instituted (Soriano v. Sternberg, 41 Phil. 210). The respondent Court of Appeals, on the other hand, is of the opinion that the period of prescription should be four (4) years, since it appears to be an action based on quasi-delict. hatever the period, it cannot be denied that the action has long prescribed whether the cause accrued on April 21, 1945 when the petitioner and Arturo Tolentino got married, or on August 30, 1950, when the present Civil Code took effect, or in 1951 when Constancia Tolentino came to know of the fact that Consuelo David was still using the surname Tolentino. It is the legal possibility of bringing the action which detemines the starting point for the computation of the period of prescription (Espanol v. Phil. Veterans Administration, 137 SCRA 314). The petitioner should have brought legal action immediately against the private respondent after she gained knowledge of the use by the private respondent of the surname of her former husband. As it is, action was brought only on November 23, 1971 with only verbal

demands in between and an action to reconstitute the divorce case. The petitioner should have filed her complaint at once when it became evident that the private respondent would not accede to her demands instead of waiting for twenty (20) years. As aptly stated by the Court of Appeals, "where the plaintiff fails to go to the Court within the prescriptive period, he loses his cause, but not because the defendant had acquired ownership by adverse possession over his name but because the plaintiffs cause of action had lapsed thru the statute of limitations." (p. 37, Rollo) On the principal issue of whether or not a divorced woman may continue using the surname of her former husband, Philippine law is understandably silent. We have no provisions for divorce in our laws and consequently, the use of surnames by a divorced wife is not provided for. There is no merit in the petitioner's claim that to sustain the private respondent's stand is to contradict Articles 370 and 371 of the Civil Code. It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code states that "the wife cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can she restrain others from using it." (Tolentino, Civil Code, 1974 ed., P. 681). Art. 371 is not applicable to the case at bar because Art. 371 speaks of annulment while the case before us refers to absolute divorce where there is a severance of valid marriage ties. The effect of divorce is more akin to the death of the spouse where the deceased woman continues to be referred to as the Mrs. of her husband even if the latter has remarried rather than to annulment since in the latter case, it is as if there had been no marriage at all. The private respondent has established that to grant the injunction to the petitioner would be an act of serious dislocation to her. She has given proof that she entered into contracts with third persons, acquired properties and entered into other legal relations using the surname Tolentino. The petitioner, on the other hand, has failed to show that she would suffer any legal injury or deprivation of legal rights inasmuch as she can use her husband's surname and be fully protected in case the respondent uses the surname Tolentino for illegal purposes. There is no usurpation of the petitioner's name and surname in this case so that the mere use of the surname Tolentino by the Private respondent cannot be said to have injured the petitioner's rights. "The usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility of confusion of Identity ... between the owner and the usurper. It exists when a person designates himself by another name ... The following are the elements of usurpation of a name: 1) there is an actual use of another's name by the defendant; 2) the use is unauthorized; and 3) the use of another's name is to designate personality or Identify a person" (Tolentino, supra, p. 685). None of these elements exists in the case at bar and neither is there a claim by the petitioner that the private respondent impersonated her. In fact, it is of public knowledge that Constancia Tolentino is the legal wife of Arturo Tolentino so that all invitations for Senator and Mrs. Tolentino are sent to Constancia. Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino

but simply as Mrs. Consuelo David-Tolentino. The private respondent has legitimate children who have every right to use the surname Tolentino. She could not possibly be compelled to use the prefix "Miss" or use the name Mrs. David, different from the surnames of her children. The records do not show that she has legally remarried. In Silva, et al. v. Peralta (110 Phil. 57) cited by the petitioner, it was not the mere use of the surname that was enjoined but the defendant's representation that she was the wife of Saturnino Silva. There was, therefore, a usurpation of the wife's status which is absent in the case at bar. We rule that the use of the surname Tolentino does not impinge on the rights of the petitioner. Considering the circumstances of this petition, the age of the respondent who may be seriously prejudiced at this stage of her life, having to resort to further legal procedures in reconstituting documents and altering legal transactions where she used the surname Tolentino, and the effects on the private respondent who, while still not remarried, will have to use a surname different from the surnames of her own children, we find it just and equitable to leave things as they are, there being no actual legal injury to the petitioner save a deep hurt to her feelings which is not a basis for injunctive relief. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The decision of the Court of Appeals is AFFIRMED. The writs of preliminary and mandatory injunction issued by the trial court are SET ASIDE. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Panganiban v Borromeo

EN BANC Panganiban September 9, 1933

JOSE R. PAGANIBAN, complainant, vs. ELIAS BORROMEO, respondent. The Respondent in his own behalf. Office of the Solicitor-General Hilado for the Government. MALCOLM, J.: These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the Solicitor-General that the respondent appear and show cause, if any he has, why he should not be proceeded against for professional malpractice. The respondent admits that, in his capacity as notary public he legalized the document which is the basis of the complaint against him, and that the document contains provisions contrary to law, morals and good customs, but by way of defense disclaims any previous knowledge of the illegal character of the document. On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the notary public Elias Borromeo, who was at that time a regularly admitted member of the Philippine Bar. The contract in question had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at lease, some knowledge of its contents, although he may not have been fully informed because of a difference in dialect. The contract in substance purported to formulate an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them. Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an illicit and immoral purpose. The second concerns the point, on the supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be disciplined for misconduct as a notary public. The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as modified by Act No. 1773 was in force. Conceding, however, that the more liberal provisions of the Revised Penal Code should be given application, it is herein provided that the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. In this instance, if the spouses should retain their present frame of mind, no prosecution of either one by the other could be expected. Nevertheless, we think it far from the purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot be

instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is not matter for legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to law, morals and public order, and as a consequence not judicially recognizable. Passing to the second question, we think there can be no question as to the right of the court to discipline an attorney who, in his capacity as notary public, has been guilty of misconduct. To the office of notary public there is not attached such importance under present conditions as under the Spanish administration. Even so, the notary public exercise duties calling for carefulness and faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.) It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration (1) that the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in this case to exercise clemency and to confine our discipline of the respondent to severe censure. So ordered. Avancea, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

Biton v Momongan

EN BANC Per Rec. No. L-2555 September 3, 1935

LEONARDO S. BITON, Petitioner, vs. ANDRES MOMONGAN, Respondent. The respondent in his own behalf. Office of the Solicitor-General for the Government. IMPERIAL, J.:
chan roble s virtual law lib rary

The administrative case originated from the complaint for malpractice filed against the respondent attorney. The latter was a legal practictioner and at the same time a notary public in the City of Cebu, Province of Cebu. On October 26, 1927, he ratified, as notary public, a document entitled "Legal Separation", executed by the spouses Leonardo Biton and Fortunata Quijano, as husband and wife, wherein it was agreed that they separated mutually and voluntarily, that they renounced their rights and obligations, and that they authorized each other to remarry, renouncing any action to which they might be entitled and each promising not to be a witness against the other.
chan roble svirtualawl ibra ry cha nrob les vi rtua l law lib rary

The respondent admits that he ratified the document without reading its contents, but that he was not the one who prepared it. The complainant testified that the respondent prepared the document and that it was drawn up to conform with the respondent's legal advice to him and his wife. The latter asserts that it was her husband who had prepared the document. In the face of this evidence, we are of the opinion that it is preponderantly in favor of the respondent's claim that he did not draft the document.
cha nrob lesvi rtua lawlib rary chan roble s virtu al law lib rary

It seems evident that the respondent ratified the document with knowledge of its contents. It is unbelievable that he had merely asked the parties to the document if the acknowledged its contents without he himself being familiar therewith. The word "pleases" appearing on the second line of the second paragraph has the respondent's initial's stamped over it. The latter admitted his initials and the authorship of the amendment. This admission necessarily implies knowledge of the contents of the document, for otherwise it would not have been possible for the respondent to make the amendment.
chan rob lesvi rtua lawlib rary c han robles v irt ual law li bra ry

The contract acknowledged by the respondent is indubitably illegal and immoral. Its covenants are contrary to laws, morals, and good customs, and tend to subvert the vital foundation of the legitimate family. The ratification of a contract of this type, executed by a notary public who is a practicing attorney at the same time, constitutes malpractice, and as a disciplinary measure, this court may impose even disbarment. (Paganiban vs. Borromeo, 58 Phil., 367.)
chanro bles vi rt ual law li bra ry

In imposing the punishment, there should be taken into account the recommendation for leniency made by the judge who conducted the investigation, and the circumstance that the respondent has been undoubtedly suspended from the office of notary public to which he will not be reappointed for an indefinite period; wherefore, we hold the respondent Andres Momongan guilty of malpractice, and he is hereby severely censured. So ordered.
c han roblesv irt ualawli bra ry chan rob les vi rtual law lib rary

Avancea, C.J., Malcolm, Villa-Real, Abad Santos, Hull, Butte, Goddard, and Recto, JJ., concur.

In Re: Atty. Santiago, 70 Phil 66

EN BANC A.C. No. 932 June 21, 1940 In re ATTY. ROQUE SANTIAGO, respondent, Office of the Solicitor-General Ozaeta as petitioner-complainant. LAUREL, J.: This is an administrative case initiated upon complaint of the Solicitor-General against the respondent Roque Santiago, charging the latter with malpractice and praying that disciplinary action be taken against him. It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares for some nine consecutive years and who was bent on contracting a second marriage, sought the legal advice of the respondent, who was at the time a practicing and notary public in the Province of Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that he could secure a separation from his wife and marry again, and asked him to bring his wife on the afternoon of the same day, May 29, 1939. This was done and the respondent right then and there prepared the document Exhibit A in which it was stipulated, among other things, that the contracting parties, who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever right of action one might have against the party so marrying. After the execution and acknowledgment of Exhibit A by the parties, the respondent asked the spouses to shake hands and assured them that they were single and as such could contract another and subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if this document turns out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939, contracted a second marriage with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for this service the sum of P50, but as the evidence on this point is not clear and the same is not material in the resolution of the present case, we do not find it necessary to make any express finding as to whether the full amount or any portion thereof was paid or, as contended by the respondent, the service were rendered free of charge. The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea that seven years separation of husband and wife would entitle either of them to contract a second marriage and for that reason prepared Exhibit A, but immediately after the execution of said document he realized that he had made a mistake and for that reason immediately sent for the contracting parties who, on June 30, 1939, came to his office and signed the deed of cancellation Exhibit A. There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit and Soledad Colares upon the advice of the respondent and prepared by the latter as a lawyer and acknowledged by him as a notary public is contrary to law, moral, and tends to subvert the vital foundation of the family. The advice given by the respondent, the preparation

and acknowledgment by him of the contract constitute malpractice which justifies disbarment from the practice of law. The admission of a lawyer to the practice of law is upon the implied condition that his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the enjoyment of this professional privilege should be declared terminated. In the present case, respondent was either ignorant of the applicable provision of the law or carelessly negligent in giving the complainant legal advice. Drastic action should lead to his disbarment and this is the opinion of some members of the court. The majority, however, have inclined to follow the recommendation of the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of said investigator and the fact that immediately after discovering his mistakes, respondent endeavored to correct it by making the parties sign another document cancelling the previous one. The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the practice of law for a period of one year. So ordered. Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur

In Re: Atty. Bucana

A.M. No. 1637 July 6, 1976 IN RE: ATTY. RUFILLO D. BUCANA, respondent. RESOLUTION

ANTONIO, J.: Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories, Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D. Bucana was required by this Court in its Resolution of March 23, 1976, to show cause within ten (10) days from notice, why he should not be disciplinarily dealt with for having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned spouses agreed therein that "in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions against them" and that the afore-mentioned Agreement was "entered into for the purpose of agreement to allow each and everyone of them to remarry without objection or reservation ...", which affidavit is contrary to law because it sanctions an illicit and immoral purpose. On April 21, 1976, respondent . submitted his explanation, admitting that he notarized the afore-mentioned document and that the Agreement is "immoral and against public policy", but in mitigation he asserted that the document in question was Prepared by his clerk, Lucia D. Doctolero without his previous knowledge; that when said document was presented to him for signature after it was signed by the parties, he vehemently refused to sign it and informed the parties that the document was immoral; that he placed the said document on his table among his files and more than a week later, he asked his clerk where the document was for the purpose of destroying it, but to his surprise he found that the same was notarized by him as per his file copies in the office; that he dispatched his clerk to get the copy from the parties, but the afore-mentioned parties could not be found in their respective residences; that he must have inadvertently notarized the same in view of the numerous documents on his table and at that time he was emotionally disturbed as his father (now deceased) was then seriously ill. The foregoing contentions of respondent were corroborated substantially by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon Baltazar, both dated April 20, 1976. 1 There is no question that the afore-mentioned Agreement is contrary to law, morals and good customs. Marriage is an inviolable social institution, in the maintenance of which in its purity the public is deeply interested for it is the foundation of the family and of society without which there could be neither civilization nor progress. 2

The contract, in substance, purports to formulate an agreement between the husband and the wife to take unto himself a concubine and the wife to live in adulterous relations with another man, without opposition from either one, and what is more, it induces each party to commit bigamy. 3 This is not only immoral but in effect abets the commission of a crime. A notary public, by virtue of the nature of his office, is required to exercise his duties with due care and with due regard to the provisions of existing law. As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to inform himself of the facts to which he intends to certify and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and as such, in the commingling of his duties notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment." In the case at bar, respondent in effect pleads for clemency, claiming that the notarization of the questioned document was due to his negligence. We find, however, that the aforementioned document could not have been notarized if the respondent had only exercised the requisite care required by law in the exercise of his duties as notary public. WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and is hereby suspended from the office of not try public for a period of six (6) months, with the admonition that a repetition of the same or a similar act in the future will be dealt with more severely. Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur. Concepcion, Jr., J., is on leave. Martin, J., was designated to sit in the Second Division.

Footnotes 1 Annexes "A" and "B". 2 Ramirez v. Gmur, 42 Phil. 855. 3 Panganiban v. Borromeo, 58 Phil. 367; Biton v. Momongan, 62 Phil. 7. 4 58 Phil. 367, 369.

In Re: Espinosa v Atty. Omana

SECOND DIVISION A.C. No. 9081 October 12, 2011

RODOLFO A. ESPINOSA and MAXIMO A. GLINDO, Complainants, vs. ATTY. JULIETA A. OMAA, Respondent. DECISION CARPIO, J.: The Case Before the Court is a complaint for disbarment filed by Rodolfo A. Espinosa (Espinosa) and Maximo A. Glindo (Glindo) against Atty. Julieta A. Omaa (Omaa). The Antecedent Facts Complainants Espinosa and Glindo charged Omaa with violation of her oath as a lawyer, malpractice, and gross misconduct in office. Complainants alleged that on 17 November 1997, Espinosa and his wife Elena Marantal (Marantal) sought Omaas legal advice on whether they could legally live separately and dissolve their marriage solemnized on 23 July 1983. Omaa then prepared a document entitled "Kasunduan Ng Paghihiwalay" (contract) which reads: REPUBLIKA NG PILIPINAS BAYAN NG GUMACA LALAWIGAN NG QUEZON KASUNDUAN NG PAGHIHIWALAY KAMI, ELENA MARANTAL AT RODOLFO ESPINOSA, mga Filipino, may sapat na gulang, dating legal na mag-asawa, kasalukuyang naninirahan at may pahatirang sulat sa Brgy. Buensoceso, Gumaca, Quezon, at COMELEC, Intramuros, Manila ayon sa pagkakasunodsunod, matapos makapanumpa ng naaayon sa batas ay nagpapatunay ng nagkasundo ng mga sumusunod: 1. Na nais na naming maghiwalay at magkanya-kanya ng aming mga buhay ng walang pakialaman, kung kayat bawat isa sa amin ay maaari ng humanap ng makakasama sa buhay;

2. Na ang aming mga anak na sina Ariel John Espinosa, 14 na taong gulang; Aiza Espinosa, 11 taong gulang at Aldrin Espinosa, 10 taong gulang ay namili na kung kanino sasama sa aming dalawa. Si Ariel John at Aiza Espinosa ay sasama sa kanilang ama, Rodolfo Espinosa, at ang bunso, Aldrin Espinosa at sasama naman sa ina na si Elena; 3. Na dahil sina Ariel John at Aiza ay nagsisipag-aral sa kasalukuyan sila ay pansamantalang mananatili sa kanilang ina, habang tinatapos ang kanilang pag-aaral. Sa pasukan sila ay maaari ng isama ng ama, sa lugar kung saan siya ay naninirahan; 4. Na ang mga bata ay maaaring dalawin ng sino man sa aming dalawa tuwing may pagkakataon; 5. Na magbibigay ng buwanang gastusin o suporta ang ama kay Aldrin at ang kakulangan sa mga pangangailangan nito ay pupunan ng ina; 6. Na lahat ng mga kasangkapan sa bahay tulad ng T.V., gas stove, mga kagamitan sa kusina ay aking (Rodolfo) ipinagkakaloob kay Elena at hindi na ako interesado dito; 7. Na lahat ng maaaring maipundar ng sino man sa amin dalawa sa mga panahong darating ay aming mga sari-sariling pag-aari na at hindi na pinagsamahan o conjugal. BILANG PATUNAY ng lahat ng ito, nilagdaan namin ito ngayong ika-17 ng Nobyembre, 1997, dito sa Gumaca, Quezon. (Sgd) ELENA MARANTAL Nagkasundo (Sgd) RODOLFO ESPINOSA Nagkasundo

PINATUNAYAN AT PINANUMPAAN dito sa harap ko ngayong ika-17 ng Nobyembre, 1997, dito sa Gumaca, Quezon ATTY. JULIETA A. OMAA Notary Public PTR No. 3728169; 1-10-97 Gumaca, Quezon Doc. No. 482; Page No. 97; Book No. XI; Series of 1997. Complainants alleged that Marantal and Espinosa, fully convinced of the validity of the contract dissolving their marriage, started implementing its terms and conditions. However,

Marantal eventually took custody of all their children and took possession of most of the property they acquired during their union. Espinosa sought the advice of his fellow employee, complainant Glindo, a law graduate, who informed him that the contract executed by Omaa was not valid. Espinosa and Glindo then hired the services of a lawyer to file a complaint against Omaa before the Integrated Bar of the Philippines Commission on Bar Discipline (IBP-CBD). Omaa alleged that she knows Glindo but she does not personally know Espinosa. She denied that she prepared the contract. She admitted that Espinosa went to see her and requested for the notarization of the contract but she told him that it was illegal. Omaa alleged that Espinosa returned the next day while she was out of the office and managed to persuade her part-time office staff to notarize the document. Her office staff forged her signature and notarized the contract. Omaa presented Marantals "Sinumpaang Salaysay" (affidavit) to support her allegations and to show that the complaint was instigated by Glindo. Omaa further presented a letter of apology from her staff, Arlene Dela Pea, acknowledging that she notarized the document without Omaas knowledge, consent, and authority. Espinosa later submitted a "Karagdagang Salaysay" stating that Omaa arrived at his residence together with a girl whom he later recognized as the person who notarized the contract. He further stated that Omaa was not in her office when the contract was notarized. The Decision of the Commission on Bar Discipline In its Report and Recommendation1 dated 6 February 2007, the IBP-CBD stated that Espinosas desistance did not put an end to the proceedings. The IBP-CBD found that Omaa violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The IBP-CBD stated that Omaa had failed to exercise due diligence in the performance of her function as a notary public and to comply with the requirements of the law. The IBPCBD noted the inconsistencies in the defense of Omaa who first claimed that it was her part-time staff who notarized the contract but then later claimed that it was her former maid who notarized it. The IBP-CBD found: Respondent truly signed the questioned document, yet she still disclaimed its authorship, thereby revealing much more her propensity to lie and make deceit, which she is deserving [of] disciplinary sanction or disbarment. The IBP-CBD recommended that Omaa be suspended for one year from the practice of law and for two years as a notary public. In a Resolution dated 19 September 2007, the IBP Board of Governors adopted and approved the recommendation of the IBP-CBD. Omaa filed a motion for reconsideration.

In a Resolution dated 26 June 2011, the IBP Board of Governors denied Omaas motion for reconsideration. The Issue The sole issue in this case is whether Omaa violated the Canon of Professional Responsibility in the notarization of Marantal and Espinosas "Kasunduan Ng Paghihiwalay." The Ruling of this Court We adopt the findings and recommendation of the IBP-CBD. This case is not novel. This Court has ruled that the extrajudicial dissolution of the conjugal partnership without judicial approval is void.2 The Court has also ruled that a notary public should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudicially dissolving the conjugal partnership, 3 which is exactly what Omaa did in this case.
1avv phi1

In Selanova v. Judge Mendoza,4 the Court cited a number of cases where the lawyer was sanctioned for notarizing similar documents as the contract in this case, such as: notarizing a document between the spouses which permitted the husband to take a concubine and allowed the wife to live with another man, without opposition from each other; 5 ratifying a document entitled "Legal Separation" where the couple agreed to be separated from each other mutually and voluntarily, renouncing their rights and obligations, authorizing each other to remarry, and renouncing any action that they might have against each other;6 preparing a document authorizing a married couple who had been separated for nine years to marry again, renouncing the right of action which each may have against the other;7 and preparing a document declaring the conjugal partnership dissolved.8 We cannot accept Omaas allegation that it was her part-time office staff who notarized the contract. We agree with the IBP-CBD that Omaa herself notarized the contract. Even if it were true that it was her part-time staff who notarized the contract, it only showed Omaas negligence in doing her notarial duties. We reiterate that a notary public is personally responsible for the entries in his notarial register and he could not relieve himself of this responsibility by passing the blame on his secretaries9 or any member of his staff. We likewise agree with the IBP-CBD that in preparing and notarizing a void document, Omaa violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." Omaa knew fully well that the "Kasunduan Ng Paghihiwalay" has no legal effect and is against public policy. Therefore, Omaa may be suspended from office as an attorney for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.10 WHEREFORE, we SUSPEND Atty. Julieta A. Omaa from the practice of law for ONE YEAR. We REVOKE Atty. Omaas notarial commission, if still existing, and SUSPEND her as a notary public for TWO YEARS.

Let a copy of this Decision be attached to Atty. Omaas personal record in the Office of the Bar Confidant. Let a copy of this Decision be also furnished to all chapters of the Integrated Bar of the Philippines and to all courts in the land. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: ARTURO D. BRION Associate Justice MARIA LOURDES P. A. SERENO Associate Justice BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE* Associate Justice

Footnotes
*

Designated Acting Member per Special Order No. 1114 dated 3 October 2011. Signed by Atty. Salvador B. Hababag, Commissioner. Selanova v. Judge Mendoza, A.M. No. 804-CJ, 159-A Phil. 360 (1975). Albano v. Mun. Judge Gapusan, A.M. No. 1022-MJ, 162 Phil. 884 (1976). Supra, note 2. Panganiban v. Borromeo, 58 Phil. 367 (1933). Biton v. Momongan, 62 Phil. 7 (1935). In re: Atty. Roque Santiago, 70 Phil. 66 (1940). Balinon v. De Leon, 94 Phil. 277 (1954). Lingan v. Calubaquib and Baliga, 524 Phil. 60 (2006). Catu v. Rellosa, A.C. No. 5738, 19 February 2008, 546 SCRA 209.

10

Republic v Orbecido

DECISION
QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and itsResolution[2] dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.
[3]

The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 [4] OF THE FAMILY CODE

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6] For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.[7] At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional

Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8] This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American

citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings [9] on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can remarry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

2.

Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of theCivil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree

validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would

lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.[12] If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:
1. 2. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.[13]

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.[15] Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such

declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.