Persons Cases

Choco Notes
Persons and Family Relations Cases

1
Cases by Fiscal Recto

Contents
People vs Umali ................................................................ 1
People vs Pesigan ............................................................. 7
People vs verdidiano II ..................................................... 9
TAADA vs Tuvera ......................................................... 12
Kasilag vs Rodriguez ....................................................... 16
People vs Donato ........................................................... 38
People vs Licera .............................................................. 51
People vs Pinuila ............................................................ 53
Yao Kee vs Sy-Gonzales .................................................. 57

G.R. No. 104037 May 29, 1992
People vs Umali
REYNALDO V. UMALI, petitioner,
vs.
HON. JESUS P. ESTANISLAO, Secretary of Finance, and
HON. JOSE U. ONG, Commissioner of Internal
Revenue, respondents.
G.R. No. 104069 May 29, 1992
RENE B. GOROSPE, LEIGHTON R. SIAZON, MANUEL M.
SUNGA, PAUL D. UNGOS, BIENVENIDO T. JAMORALIN,
JR., JOSE D. FLORES, JR., EVELYN G. VILLEGAS,
DOMINGO T. LIGOT, HENRY E. LARON, PASTOR M.
DALMACION, JR., and, JULIUS NORMAN C.
CERRADA,petitioners,
vs
COMMISSIONER OF INTERNAL REVENUE, respondent.
Rene B. Gorospe, Leighton R. Siazon, Manuel M. Sunga,
Bienvinido T. Jamoralin, Jr and Paul D. Ungos for petitioners.

PADILLA, J .:
These consolidated cases are petitions for mandamus and
prohibition, premised upon the following undisputed facts:
Congress enacted Rep. Act 7167, entitled "AN ACT
ADJUSTING THE BASIC PERSONAL AND ADDITIONAL
EXEMPTIONS ALLOWABLE TO INDIVIDUALS FOR INCOME
TAX PURPOSES TO THE POVERTY THRESHOLD LEVEL,
AMENDING FOR THE PURPOSE SECTION 29, PARAGRAPH
(L), ITEMS (1) AND (2) (A) OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES." It provides as follows:
Sec. (1). The first paragraph of item (1),
paragraph (1) of Section 29 of the National
Internal Revenue Code, as amended, is
hereby further amended to read as follows:
(1) Personal Exemptions allowable to
individuals (1) Basic personal exemption
as follows:
For single individual or
married individual judicially
decreed as legally
separated with no qualified
dependents P9,000
For head of a family
P12,000
For married individual
P18,000
Provided, That husband and wife electing to
compute their income tax separately shall be
entitled to a personal exemption of P9,000
each.
Sec. 2. The first paragraph of item (2) (A),
paragraph (1) of Section 29 of the same
Code, as amended, is hereby further
amended to read as follows:
(2) Additional exemption.
(a) Taxpayers with dependents. A married
individual or a head of family shall be allowed
an additional exemption of Five Thousand
Pesos (P5,000) for each
dependent: Provided, That the total number
of dependents for which additional
Choco Notes

2
exemptions may be claimed shall not exceed
four dependents: Provided, further, That an
additional exemption of One Thousand Pesos
(1,000) shall be allowed for each child who
otherwise qualified as dependent prior to
January 1, 1980: Provided, finally, That the
additional exemption for dependents shall be
claimed by only one of the spouses in case of
married individuals electing to compute their
income tax liabilities separately.
Sec. 3. This act shall take effect upon its
approval.
Approved.
1

The said act was signed and approved by the President on 19
December 1991 and published on 14 January 1992 in "Malaya"
a newspaper of general circulation.
On 26 December 1991, respondents promulgated Revenue
Regulations No. 1-92, the pertinent portions of which read as
follows:
Sec. 1. SCOPE Pursuant to Sections 245
and 72 of the National Internal Revenue Code
in relation to Republic Act No. 7167, these
Regulations are hereby promulgated
prescribing the collection at source of income
tax on compensation income paid on or after
January 1, 1992 under the Revised
Withholding Tax Tables (ANNEX "A") which
take into account the increase of personal
and additional exemptions.
xxx xxx xxx
Sec. 3. Section 8 of Revenue Regulations No.
6-82 is amended by Revenue Regulations
No. 1-86 is hereby further amended to read
as follows:
Section 8. Right to claim
the following exemptions. . .
.
Each employee shall be
allowed to claim the
following amount of
exemption with respect to
compensation paid on or
after January 1, 1992.
xxx xxx xxx
Sec. 5. EFFECTIVITY. These regulations
shall take effect on compensation income
from January 1, 1992.
On 27 February 1992, the petitioner in G.R. No. 104037, a
taxpayer and a resident of Gitnang Bayan Bongabong, Oriental
Mindoro, filed a petition for mandamus for himself and in behalf
all individual Filipino taxpayers, to COMPEL the respondents to
implement Rep. Act 7167 with respect to taxable income of
individual taxpayers earned or received on or after 1 January
1991 or as of taxable year ending 31 December 1991.
On 28 February 1992, the petitioners in G.R. No. 104069
likewise filed a petition for mandamus and prohibition on their
behalf as well as for those other individual taxpayers who might
be similarly situated, to compel the Commissioner of Internal
Revenue to implement the mandate of Rep. Act 7167 adjusting
the personal and additional exemptions allowable to individuals
for income tax purposes in regard to income earned or received
in 1991, and to enjoin the respondents from implementing
Revenue Regulations No. 1-92.
In the Court's resolution of 10 March 1992, these two (2) cases
were consolidated. Respondents were required to comment on
the petitions, which they did within the prescribed period.
The principal issues to be resolved in these cases are: (1)
whether or not Rep. Act 7167 took effect upon its approval by
the President on 19 December 1991, or on 30 January
1992, i.e., after fifteen (15) days following its publication on 14
January 1992 in the "Malaya" a newspaper of general
circulation; and (2) assuming that Rep. Act 7167 took effect on
30 January 1992, whether or not the said law nonetheless
covers or applies to compensation income earned or received
during calendar year 1991.
In resolving the first issue, it will be recalled that the Court in its
resolution in Caltex (Phils.), Inc. vs. The Commissioner of
Internal Revenue, G.R. No. 97282, 26 June 1991 which is on
all fours with this case as to the first issue held:
The central issue presented in the instant
petition is the effectivity of R.A. 6965 entitled
"An Act Revising The Form of Taxation on
Petroleum Products from Ad Valorem to
Specific, Amending For the Purpose Section
145 of the National Internal Revenue Code,
As amended by Republic Act Numbered Sixty
Seven Hundred Sixty Seven."
Choco Notes

3
Sec. 3 of R.A. 6965 contains the effectivity
clause which provides. "This Act shall take
effect upon its approval"
R.A. 6965 was approved on September 19,
1990. It was published in the Philippine
Journal, a newspaper of general circulation in
the Philippines, on September 20, 1990.
Pursuant to the Act, an implementing
regulation was issued by the Commissioner of
Internal Revenue, Revenue Memorandum
Circular 85-90, stating that R.A. 6965 took
effect on October 5, 1990. Petitioner took
exception thereof and argued that the law
took effect on September 20, 1990 instead.
Pertinent is Article 2 of the Civil Code (as
amended by Executive Order No. 200) which
provides:
Art. 2. Laws shall take
effect after fifteen days
following the completion of
their publication either in
the official Gazette or in a
newspaper of general
circulation in the
Philippines, unless it is
otherwise provided. . . .
In the case of Tanada vs. Tuvera (L-63915,
December 29, 1986, 146 SCRA 446, 452) we
construed Article 2 of the Civil Code and laid
down the rule:
. . .: the) clause "unless it is
otherwise provided" refers
to the date of effectivity and
not to the requirement of
publication itself, which
cannot in any event be
omitted. This clause does
not mean that the legislator
may make the law effective
immediately upon approval,
or on any other date without
its previous publication.
Publication is indispensable
in every case, but the
legislature may in its
discretion provide that the
usual fifteen-day period
shall be shortened or
extended. . . .
Inasmuch as R.A. 6965 has no specific date
for its effectivity and neither can it become
effective upon its approval notwithstanding its
express statement, following Article 2 of the
Civil Code and the doctrine enunciated in
Tanada, supra, R.A. 6965 took effect fifteen
days after September 20, 1990, or
specifically, on October 5, 1990.
Accordingly, the Court rules that Rep. Act 7167 took effect on
30 January 1992, which is after fifteen (15) days following its
publication on 14 January 1992 in the "Malaya."
Coming now to the second issue, the Court is of the considered
view that Rep. Act 7167 should cover or extend to
compensation income earned or received during calendar year
1991.
Sec. 29, par. (L), Item No. 4 of the National Internal Revenue
Code, as amended, provides:
Upon the recommendation of the Secretary of
Finance, the President shall automatically
adjust not more often than once every three
years, the personal and additional
exemptions taking into account, among
others, the movement in consumer price
indices, levels of minimum wages, and bare
subsistence levels.
As the personal and additional exemptions of individual
taxpayers were last adjusted in 1986, the President, upon the
recommendation of the Secretary of Finance, could have
adjusted the personal and additional exemptions in 1989 by
increasing the same even without any legislation providing for
such adjustment. But the President did not.
However, House Bill 28970, which was subsequently enacted
by Congress as Rep. Act 7167, was introduced in the House of
Representatives in 1989 although its passage was delayed and
it did not become effective law until 30 January 1992. A perusal,
however, of the sponsorship remarks of Congressman
Hernando B. Perez, Chairman of the House Committee on
Ways and Means, on House Bill 28970, provides an indication
of the intent of Congress in enacting Rep. Act 7167. The
pertinent legislative journal contains the following:
At the outset, Mr. Perez explained that the Bill
Provides for increased personal additional
exemptions to individuals in view of the higher
standard of living.
The Bill, he stated, limits the amount of
income of individuals subject to income tax to
Choco Notes

4
enable them to spend for basic necessities
and have more disposable income.
xxx xxx xxx
Mr. Perez added that inflation has raised the
basic necessities and that it had been three
years since the last exemption adjustment in
1986.
xxx xxx xxx
Subsequently, Mr. Perez stressed the
necessity of passing the measure to mitigate
the effects of the current inflation and of the
implementation of the salary standardization
law. Stating that it is imperative for the
government to take measures to ease the
burden of the individual income tax filers, Mr.
Perez then cited specific examples of how the
measure can help assuage the burden to the
taxpayers.
He then reiterated that the increase in the
prices of commodities has eroded the
purchasing power of the peso despite the
recent salary increases and emphasized that
the Bill will serve to compensate the adverse
effects of inflation on the taxpayers. . . .
(Journal of the House of Representatives,
May 23, 1990, pp. 32-33).
It will also be observed that Rep. Act 7167 speaks of the
adjustments that it provides for, as adjustments "to the poverty
threshold level." Certainly, "the poverty threshold level" is the
poverty threshold level at the time Rep. Act 7167 was enacted
by Congress, not poverty threshold levels in futuro, at which
time there may be need of further adjustments in personal
exemptions. Moreover, the Court can not lose sight of the fact
that these personal and additional exemptions are fixed
amounts to which an individual taxpayer is entitled, as a means
to cushion the devastating effects of high prices and a
depreciated purchasing power of the currency. In the end, it is
the lower-income and the middle-income groups of taxpayers
(not the high-income taxpayers) who stand to benefit most from
the increase of personal and additional exemptions provided for
by Rep. Act 7167. To that extent, the act is a social legislation
intended to alleviate in part the present economic plight of the
lower income taxpayers. It is intended to remedy the
inadequacy of the heretofore existing personal and additional
exemptions for individual taxpayers.
And then, Rep. Act 7167 says that the increased personal
exemptions that it provides for shall be available thenceforth,
that is, after Rep. Act 7167 shall have become effective. In
other words, these exemptions are available upon the filing of
personal income tax returns which is, under the National
Internal Revenue Code, done not later than the 15th day of April
after the end of a calendar year. Thus, under Rep. Act 7167,
which became effective, as aforestated, on 30 January 1992,
the increased exemptions are literally available on or before 15
April 1992 (though not before 30 January 1992). But these
increased exemptions can be available on 15 April 1992 only in
respect of compensation income earned or received during the
calendar year 1991.
The personal exemptions as increased by Rep. Act 7167
cannot be regarded as available in respect of compensation
income received during the 1990 calendar year; the tax due in
respect of said income had already accrued, and been
presumably paid, by 15 April 1991 and by 15 July 1991, at
which time Rep. Act 7167 had not been enacted. To make Rep.
Act 7167 refer back to income received during 1990 would
require language explicitly retroactive in purport and effect,
language that would have to authorize the payment of refunds
of taxes paid on 15 April 1991 and 15 July 1991: such language
is simply not found in Rep. Act 7167.
The personal exemptions as increased by Rep. Act 7167
cannot be regarded as available only in respect of
compensation income received during 1992, as the
implementing Revenue Regulations No. 1-92 purport to provide.
Revenue Regulations No. 1-92 would in effect postpone the
availability of the increased exemptions to 1 January-15 April
1993, and thus literally defer the effectivity of Rep. Act 7167 to 1
January 1993. Thus, the implementing regulations collide
frontally with Section 3 of Rep. Act 7167 which states that the
statute "shall take effect upon its approval." The objective of the
Secretary of Finance and the Commissioner of Internal
Revenue in postponing through Revenue Regulations No. 1-92
the legal effectivity of Rep. Act 7167 is, of course, entirely
understandable to defer to 1993 the reduction of
governmental tax revenues which irresistibly follows from the
application of Rep. Act 7167. But the law-making authority has
spoken and the Court can not refuse to apply the law-maker's
words. Whether or not the government can afford the drop in
tax revenues resulting from such increased exemptions was for
Congress (not this Court) to decide.
WHEREFORE, Sections 1, 3 and 5 of Revenue Regulations
No. 1-92 which provide that the regulations shall take effect on
compensation income earned or received from 1 January 1992
are hereby SET ASIDE. They should take effect on
compensation income earned or received from 1 January 1991.
Since this decision is promulgated after 15 April 1992, the
individual taxpayers entitled to the increased exemptions on
compensation income earned during calendar year 1991 who
may have filed their income tax returns on or before 15 April
Choco Notes

5
1992 (later extended to 24 April 1992) without the benefit of
such increased exemptions, are entitled to the corresponding
tax refunds and/or credits, and respondents are ordered to
effect such refunds and/or credits. No costs.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Feliciano, Bidin, Grio-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.

Separate Opinions
PARAS, J ., concurring and dissenting:
I wish to concur with the majority opinion penned in this case by
Justice Teodoro Padilla, because I believe that the tax
exemptions referred to in the law should be effective already
with respect to the income earned for the year 1991. After all,
even if We say that the law became effective only in 1992, still
this can refer only to the income obtained in 1991 since after all,
what should be filed in 1992 is the income tax return of the
income earned in 1991.
However, I wish to dissent from the part of the decision which
affirms the obiter dictum enunciated in the case of Tanada
vs. Tuvera (146 SCRA 446, 452) to the effect that a law
becomes effective not on the date expressly provided for in said
law, but on the date after fifteen (15) days from the publication
in the Official Gazette or any national newspaper of general
circulation. I say obiter dictum because the doctrine mentioned
is not the actual issue in the case of Tanada vs. Tuvera (supra).
In that case, several presidential decrees of President Marcos
were issued, but they were never published in the Official
Gazette or in any national newspaper of general circulation. The
real issue therefore in said case was whether or not said
presidential decrees ever became effective. The Court ruled
with respect to this issue (and not any other issue since
there was no other issue whatsoever), that said presidential
decrees never became effective. In other words, the ratio
decidendi in that case was the ruling that without
publication, there can be no effectivity. Thus, the statement as
to which should be applied "after fifteen (15) days from
publication" or "unless otherwise provided by law" (Art. 2, Civil
Code) was mere obiter. The subsequent ruling in the resolution
dated June 26, 1991 in Caltex, Inc. vs. Com. of Internal
Revenue cannot likewise apply because it was based on the
aforesaid obiter in Tanada v. Tuvera (supra). In the instant tax
exemptions case, the law says effective upon
approval, therefore, since this law was approved by the
President in December, 1991, its subsequent publication in the
January 1992 issue of the Civil Code is actually immaterial.
Art. 2 of the Civil Code which states:
Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise
provided. This Code shall take effect one year
after such publication.
It is very clear and needs no interpretation or construction.
CRUZ. J ., concurring:
As the ponente of Taada v. Tuvera, 146 SCRA 446, I should
like to make these brief observations on my brother Paras's
separate opinion. He says that "the ratio decidendi in that case
was the ruling that without publication, there can be no
effectivity." Yet, while accepting this, he contends that, pursuant
to its terms, R.A. 7167 became effective upon approval (i.e.,
even without publication). He adds that "since this law was
approved by the President in December, 1991, its subsequent
publication in the January 1992 issue of the Civil Code is
actually immaterial." I confess I am profoundly bemused.

Separate Opinions
PARAS, J ., concurring and dissenting:
I wish to concur with the majority opinion penned in this case by
Justice Teodoro Padilla, because I believe that the tax
exemptions referred to in the law should be effective already
with respect to the income earned for the year 1991. After all,
even if We say that the law became effective only in 1992, still
this can refer only to the income obtained in 1991 since after all,
what should be filed in 1992 is the income tax return of the
income earned in 1991.
However, I wish to dissent from the part of the decision which
affirms the obiter dictum enunciated in the case of Tanada
vs. Tuvera (146 SCRA 446, 452) to the effect that a law
becomes effective not on the date expressly provided for in said
law, but on the date after fifteen (15) days from the publication
in the Official Gazette or any national newspaper of general
circulation. I say obiter dictum because the doctrine mentioned
is not the actual issue in the case of Tanada vs. Tuvera (supra).
In that case, several presidential decrees of President Marcos
were issued, but they were never published in the Official
Gazette or in any national newspaper of general circulation. The
real issue therefore in said case was whether or not said
presidential decrees ever became effective. The Court ruled
with respect to this issue (and not any other issue since
there was no other issue whatsoever), that said presidential
decrees never became effective. In other words, the ratio
Choco Notes

6
decidendi in that case was the ruling that without
publication, there can be no effectivity. Thus, the statement as
to which should be applied "after fifteen (15) days from
publication" or "unless otherwise provided by law" (Art. 2, Civil
Code) was mere obiter. The subsequent ruling in the resolution
dated June 26, 1991 in Caltex, Inc. vs. Com. of Internal
Revenue cannot likewise apply because it was based on the
aforesaid obiter in Tanada v. Tuvera (supra). In the instant tax
exemptions case, the law says effective upon
approval, therefore, since this law was approved by the
President in December, 1991, its subsequent publication in the
January 1992 issue of the Civil Code is actually immaterial.
Art. 2 of the Civil Code which states:
Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise
provided. This Code shall take effect one year
after such publication.
It is very clear and needs no interpretation or construction.
CRUZ. J ., concurring:
As the ponente of Taada v. Tuvera, 146 SCRA 446, I should
like to make these brief observations on my brother Paras's
separate opinion. He says that "the ratio decidendi in that case
was the ruling that without publication, there can be no
effectivity." Yet, while accepting this, he contends that, pursuant
to its terms, R.A. 7167 became effective upon approval (i.e.,
even without publication). He adds that "since this law was
approved by the President in December, 1991, its subsequent
publication in the January 1992 issue of the Civil Code is
actually immaterial." I confess I am profoundly bemused.
Footnotes
1 Before the enactment of Rep. Act 7167,
Executive Order No. 37 approved by the
President on 31 July 1986, provided for the
following personal and additional exemptions
for individual taxpayers:
(1) Personal exemptions allowable to
individuals. (1) Basic personal exemption.
For the purpose of determining the tax
provided in Section 21(a) of this Title, there
shall be allowed a basic personal exemption
as follows:
For single individual or married individual
judicially decreed
as legally
separated
with no qualified
dependents
P6,000
For head of a family P7,500
For married individual
P12,000
Provided, That husband and wife
electing to compute their income tax
separately shall be entitled to a
personal exemption of P6,000 each.
For purposes of this paragraph, the term
"Head of Family" means an unmarried or
legally separated man or woman with one or
both parents, or with one or more brothers or
sisters, or with one or more legitimate,
recognized natural or legally adopted children
living with and dependent upon him for their
chief support, where such brothers or sisters
or children are not more than twenty-one (21)
years of age, unmarried and not gainfully
employed or where such children, brothers or
sisters, regardless of age are incapable of
self-support because of mental or physical
defect.
(2) Additional exemption
(A) Taxpayers with dependents. A married
individual or a head of family shall be allowed
an additional exemption of Three thousand
pesos (P3,000) for each
dependent: Provided, That the total number
of dependents for which additional
exemptions may be claimed shall not exceed
four dependents: Provided, further, That an
additional exemption of One thousand pesos
(P1,000) shall be allowed for each child who
otherwise qualified as dependent prior to
January 1, 1980; and Provided, finally, That
the additional exemption for dependents shall
be claimed by only one of the spouses in the
case of married individuals electing to
compute their income tax liabilities separately.
In case of legally separated spouses,
additional exemptions may be claimed only by
Choco Notes

7
the spouse who was awarded custody of the
child or children: Provided, That the total
amount of additional exemptions that may be
claimed by both shall not exceed the
maximum additional exemptions herein
allowed:
For purposes of this paragraph, a dependent
means a legitimate, recognized natural or
legally adopted child chiefly dependent upon
and living with the taxpayer if such dependent
is not more than twenty-one (21) years of
age, unmarried and not gainfully employed or
if such dependent, regardless of age, is
incapable of self-support because of mental
or physical defect.
G.R. No. L-64279 April 30, 1984
People vs Pesigan
ANSELMO L. PESIGAN and MARCELINO L.
PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional
Trial Court, Caloocan City Branch 129, acting for
REGIONAL TRIAL COURT of Camarines Norte,
now presided over by JUDGE NICANOR ORIO,
Daet Branch 40; DRA. BELLA S. MIRANDA,
ARNULFO V. ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for
petitioners.
The Solicitor General for respondents.

AQUINO, J .:+.wph!1
At issue in this case is the enforceability, before
publication in the Official Gazette of June 14, 1982, of
Presidential Executive Order No. 626-A dated October
25, 1980, providing for the confiscation and
forfeiture by the government of carabaos transported
from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao
dealers, transported in an Isuzu ten-wheeler truck in
the evening of April 2, 1982 twenty-six carabaos and a
calf from Sipocot, Camarines Sur with Padre Garcia,
Batangas, as the destination.
They were provided with (1) a health certificate from
the provincial veterinarian of Camarines Sur, issued
under the Revised Administrative Code and
Presidential Decree No. 533, the Anti-Cattle Rustling
Law of 1974; (2) a permit to transport large cattle
issued under the authority of the provincial
commander; and (3) three certificates of inspection,
one from the Constabulary command attesting that the
carabaos were not included in the list of lost, stolen
and questionable animals; one from the LIvestock
inspector, Bureau of Animal Industry of Libmanan,
Camarines Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four
certificates, the carabaos, while passing at Basud,
Camarines Norte, were confiscated by Lieutenant
Arnulfo V. Zenarosa, the town's police station
commander, and by Doctor Bella S. Miranda,
provincial veterinarian. The confiscation was basis on
the aforementioned Executive Order No. 626-A which
provides "that henceforth, no carabao, regardless of
age, sex, physical condition or purpose and no
carabeef shall be transported from one province to
another. The carabaos or carabeef transported in
violation of this Executive Order as amended shall be
subject to confiscation and forfeiture by the
government to be distributed ... to deserving farmers
through dispersal as the Director of Animal Industry
may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among
twenty-five farmers of Basud, and to a farmer from the
Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor
Miranda an action for replevin for the recovery of the
carabaos allegedly valued at P70,000 and damages of
P92,000. The replevin order could not be executed by
the sheriff. In his order of April 25, 1983 Judge
Domingo Medina Angeles, who heard the case at Daet
and who was later transferred to Caloocan City,
dismissed the case for lack of cause of action.
Choco Notes

8
The Pesigans appealed to this Court under Rule 45 of
the Rules of Court and section 25 of the Interim Rules
and pursuant to Republic Act No. 5440, a 1968 law
which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be
enforced against the Pesigans on April 2,
1982 because, as already noted, it is a penal
regulation published more than two months later in the
Official Gazette dated June 14, 1982. It became
effective only fifteen days thereafter as provided in
article 2 of the Civil Code and section 11 of the
Revised Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil
Code) includes circulars and regulations which
prescribe penalties. Publication is necessary to
apprise the public of the contents of the regulations
and make the said penalties binding on the persons
affected thereby. (People vs. Que Po Lay, 94 Phil.
640; Lim Hoa Ting vs. Central Bank of the Phils., 104
Phil. 573; Balbuna vs. Secretary of Education, 110
Phil. 150.)
The Spanish Supreme Court ruled that "bajo la
denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas
de conformidad con las mismas por el Gobierno en
uso de su potestad (1 Manresa, Codigo Civil, 7th Ed.,
p. 146.)
Thus, in the Que Po Lay case, a person, convicted by
the trial court of having violated Central Bank Circular
No. 20 and sentenced to six months' imprisonment
and to pay a fine of P1,000, was acquitted by this
Court because the circular was published in the
Official Gazette three months after his conviction. He
was not bound by the circular.
That ruling applies to a violation of Executive Order
No. 626-A because its confiscation and forfeiture
provision or sanction makes it a penal statute. Justice
and fairness dictate that the public must be informed of
that provision by means of publication in the Gazette
before violators of the executive order can be bound
thereby.
The cases of Police Commission vs. Bello, L-29960,
January 30, 1971, 37 SCRA 230 and Philippine
Blooming Mills vs. Social Security System, 124 Phil.
499, cited by the respondents, do not involve the
enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all
Presidential executive orders having general
applicability should be published in the Official
Gazette. It provides that "every order or document
which shag prescribe a penalty shall be deemed to
have general applicability and legal effect."
Indeed, the practice has always been to publish
executive orders in the Gazette. Section 551 of the
Revised Administrative Code provides that even
bureau "regulations and orders shall become effective
only when approved by the Department Head and
published in the Official Gazette or otherwise publicly
promulgated". (See Commissioner of Civil Service vs.
Cruz, 122 Phil. 1015.)
In the instant case, the livestock inspector and the
provincial veterinarian of Camarines Norte and the
head of the Public Affairs Office of the Ministry of
Agriculture were unaware of Executive Order No. 626-
A. The Pesigans could not have been expected to be
cognizant of such an executive order.
It results that they have a cause of action for the
recovery of the carabaos. The summary confiscation
was not in order. The recipients of the carabaos
should return them to the Pesigans. However, they
cannot transport the carabaos to Batangas because
they are now bound by the said executive order.
Neither can they recover damages. Doctor Miranda
and Zenarosa acted in good faith in ordering the
forfeiture and dispersal of the carabaos.
WHEREFORE, the trial court's order of dismissal and
the confiscation and dispersal of the carabaos are
reversed and set aside. Respondents Miranda and
Zenarosa are ordered to restore the carabaos, with the
requisite documents, to the petitioners, who as owners
are entitled to possess the same, with the right to
dispose of them in Basud or Sipocot, Camarines Sur.
No costs.
Choco Notes

9
SO ORDERED.1wph1. t
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and
Escolin, JJ., concur.
De Castro, J., took no part.

Separate Opinions

ABAD SANTOS, J ., concurring:
The Pesigans are entitled to the return of their
carabaos or the value of each carabao which is not
returned for any reason. The Pesigans are also
entitled to a reasonable rental for each carabao from
the twenty six farmers who used them. The farmers
should not enrich themselves at the expense of the
Pesigans.

Separate Opinions
ABAD SANTOS, J ., concurring:
The Pesigans are entitled to the return of their
carabaos or the value of each carabao which is not
returned for any reason. The Pesigans are also
entitled to a reasonable rental for each carabao from
the twenty six farmers who used them. The farmers
should not enrich themselves at the expense of the
Pesigans.
G.R. No. L-62243 October 12, 1984
People vs verdidiano II
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. REGINO VERIDIANO II, as Presiding Judge of
the Court of First Instance of Zambales and
Olongapo City, Branch I, and BENITO GO BIO,
JR., respondents.
The Solicitor General for petitioner.
Anacleto T. Lacanilao and Carmelino M. Roque for
respondents.

RELOVA, J .:+.wph!1
Private respondent Benito Go Bio, Jr. was charged
with violation of Batas Pambansa Bilang 22 in Criminal
Case No. 5396 in the then Court of First Instance of
Zambales, presided by respondent judge. The
information reads: t.hqw
That on or about and during the
second week of May 1979, in the City
of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court,
the above-named accused,
guaranteeing the authenticity and
genuineness of the same and with
intent to defraud one Filipinas Tan by
means of false pretenses and
pretending to have sufficient funds
deposited in the Bank of the Philippine
Island, did then and there wilfully,
unlawfully and feloniously make and
issue Bank of Philippine Island Check
No. D-357726 in the amount of
P200,000.00 Philippine Currency, said
accused well knowing that he has no
sufficient funds at the Bank of the
Philippine Island and upon
presentation of the said check to the
bank for encashment, the same was
dishonored for the reason that the said
accused has no sufficient funds with
the said bank and despite repeated
Choco Notes

10
demands made by Filipinas Tan on the
accused to redeem the said check or
pay the amount of P200,000.00, said
accused failed and continues to fail to
redeem the said check or to pay the
said amount, to the damage and
prejudice of said Filipinas Tan in the
aforementioned amount of
P200,000.00 Philippine Currency. (pp.
23-24, Rollo)
Before he could be arraigned respondent Go Bio, Jr.
filed a Motion to Quash the information on the ground
that the information did not charge an offense, pointing
out that at the alleged commission of the offense,
which was about the second week of May 1979, Batas
Pambansa Bilang 22 has not yet taken effect.
The prosecution opposed the motion contending,
among others, that the date of the dishonor of the
check, which is on September 26, 1979, is the date of
the commission of the offense; and that assuming that
the effectivity of the law Batas Pambansa Bilang 22
is on June 29, 1979, considering that the offense
was committed on September 26, 1979, the said law is
applicable.
In his reply, private respondent Go Bio, Jr. submits
that what Batas Pambansa Bilang 22 penalizes is not
the fact of the dishonor of the check but the act of
making or drawing and issuing a check without
sufficient funds or credit.
Resolving the motion, respondent judge granted the
same and cancelled the bail bond of the accused. In
its order of August 23, 1982, respondent judge said: t . hqw
The Court finds merit to the contention
that the accused cannot be held liable
for bouncing checks prior to the
effectivity of Batas Pambansa Bilang
22 although the check may have
matured after the effectivity of the said
law. No less than the Minister of
Justice decreed that the date of the
drawing or making and issuance of the
bouncing check is the date to reckon
with and not on the date of the maturity
of the check. (Resolution No. 67, S.
1981, People's Car vs. Eduardo N.
Tan, Feb. 3, 1981; Resolution No. 192,
S. 1981, Ricardo de Guia vs. Agapito
Miranda, March 20, 1981).
Hence, the Court believes that
although the accused can be
prosecuted for swindling (Estafa,
Article 315 of the Revised Penal
Code), the Batas Pambansa Bilang 22
cannot be given a retroactive effect to
apply to the above entitled case. (pp.
49- 50, Rollo)
Hence, this petition for review on certiorari, petitioner
submitting for review respondent judge's dismissal of
the criminal action against private respondent Go Bio,
Jr. for violation of Batas Pambansa Bilang 22,
otherwise known as the Bouncing Checks Law.
Petitioner contends that Batas Pambansa Bilang 22
was published in the April 9, 1979 issue of the Official
Gazette. Fifteen (15) days therefrom would be April
24, 1979, or several days before respondent Go Bio,
Jr. issued the questioned check around the second
week of May 1979; and that respondent judge should
not have taken into account the date of release of the
Gazette for circulation because Section 11 of the
Revised Administrative Code provides that for the
purpose of ascertaining the date of effectivity of a law
that needed publication, "the Gazette is conclusively
presumed to be published on the day indicated therein
as the date of issue."
Private respondent Go Bio, Jr. argues that although
Batas Pambansa Bilang 22 was published in the
Official Gazette issue of April 9, 1979, nevertheless,
the same was released only on June 14, 1979 and,
considering that the questioned check was issued
about the second week of May 1979, then he could not
have violated Batas Pambansa Bilang 22 because it
was not yet released for circulation at the time.
We uphold the dismissal by the respondent judge of
the criminal action against the private respondent.
Choco Notes

11
The Solicitor General admitted the certification issued
by Ms. Charito A. Mangubat, Copy Editor of the Official
Gazette Section of the Government Printing Office,
stating-t.hqw
This is to certify that Volume 75, No.
15, of the April 9, 1979 issue of the
Official Gazette was officiallyreleased
for circulation on June 14, 1979. (p.
138, Rollo)
It is therefore, certain that the penal statute in question
was made public only on June 14, 1979 and not on the
printed date April 9, 1979. Differently stated, June 14,
1979 was the date of publication of Batas Pambansa
Bilang 22. Before the public may be bound by its
contents especially its penal provisions, the law must
be published and the people officially informed of its
contents and/or its penalties. For, if a statute had not
been published before its violation, then in the eyes of
the law there was no such law to be violated and,
consequently, the accused could not have committed
the alleged crime.
The effectivity clause of Batas Pambansa Bilang 22
specifically states that "This Act shall take effect fifteen
days after publication in the Official Gazette." The term
"publication" in such clause should be given the
ordinary accepted meaning, that is, to make known to
the people in general. If the Batasang Pambansa had
intended to make the printed date of issue of the
Gazette as the point of reference in determining the
effectivity of the statute in question, then it could have
so stated in the special effectivity provision of Batas
Pambansa Bilang 22.
When private respondent Go Bio, Jr. committed the
act, complained of in the Information as criminal, in
May 1979, there was then no law penalizing such act.
Following the special provision of Batas Pambansa
Bilang 22, it became effective only on June 29, 1979.
As a matter of fact, in May 1979, there was no law to
be violated and, consequently, respondent Go Bio, Jr.
did not commit any violation thereof.
With respect to the allegation of petitioner that the
offense was committed on September 26, 1979 when
the check was presented for encashment and was
dishonored by the bank, suffice it to say that the law
penalizes the act of making or drawing and issuance
of a bouncing check and not only the fact of its
dishonor. The title of the law itself states:
AN ACT PENALIZING THE MAKING OR DRAWING
AND ISSUANCE OF A CHECK WITHOUT
SUFFICIENT FUNDS OR CREDIT AND FOR OTHER
PURPOSES.
and, Sections 1 and 2 of said Batas Pambansa Bilang
22 provide: t. hqw
SECTION 1. Checks without sufficient
funds. Any person who makes or
draws and issues any check to apply
on account or for value, knowing at the
time of issue that he does not have
sufficient funds ... shall be punished ...
The same penalty shall be imposed
upon any person who, having sufficient
funds in or credit with the drawee
bank when he makes or draws and
issues a check, shall fail to keep
sufficient funds or to maintain a credit
to cover the full amount of the check if
presented within a period of ninety (90)
days from the date appearing thereon,
for which reason it is dishonored by the
drawee bank.
xxx xxx xxx
SECTION 2. Evidence of knowledge of
insufficient funds. The making,
drawing and issuance of a check
payment of which is refused by the
drawee because of insufficient funds ...
. (Emphasis supplied)
ACCORDINGLY, the order of respondent judge dated
August 23, 1982 is hereby AFFIRMED. No costs.
SO ORDERED.1wph1. t
Choco Notes

12
Melencio-Herrera, Plana, Gutierrez, Jr. and De la
Fuente, JJ., concur.
TEEHANKEE, Actg. C.J ., concurring:
I concur on the ground that actual publication of the
penal law is indispensable for its effectivity (Pesigan
vs. Angeles, 129 SCRA 174).
TAADA vs Tuvera
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO,
and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM,
INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as
Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as
Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters
of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution,
1
as well
as the principle that laws to be valid and enforceable
must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official
Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive
orders, letter of implementation and administrative
orders.
Specifically, the publication of the following
presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22,
37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358,
359, 360, 361, 368, 404, 406, 415,
427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573,
574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050, 1060-
1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-
1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39,
49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187,
188, 192, 193, 199, 202, 204, 205,
209, 211-213, 215-224, 226-228, 231-
239, 241-245, 248, 251, 253-261, 263-
269, 271-273, 275-283, 285-289, 291,
293, 297-299, 301-303, 309, 312-315,
325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488,
498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713,
726, 837-839, 878-879, 881, 882, 939-
940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59,
60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144,
1147, 1151, 1196, 1270, 1281, 1319-
1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-
1595, 1594-1600, 1606-1609, 1612-
1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-
1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858,
Choco Notes

13
1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-
2161, 2163-2244.
e] Executive Orders Nos.: 411, 413,
414, 427, 429-454, 457- 471, 474-492,
494-507, 509-510, 522, 524-528, 531-
532, 536, 538, 543-544, 549, 551-553,
560, 563, 567-568, 570, 574, 593, 594,
598-604, 609, 611- 647, 649-677, 679-
703, 705-707, 712-786, 788-852, 854-
857.
f] Letters of Implementation Nos.: 7, 8,
9, 10, 11-22, 25-27, 39, 50, 51, 59, 76,
80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347,
348, 352-354, 360- 378, 380-433, 436-
439.
The respondents, through the Solicitor General, would
have this case dismissed outright on the ground that
petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in
the absence of any showing that petitioners are
personally and directly affected or prejudiced by the
alleged non-publication of the presidential issuances in
question
2
said petitioners are without the requisite legal
personality to institute this mandamus proceeding, they
are not being "aggrieved parties" within the meaning of
Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.
When any tribunal, corporation, board
or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust, or station, or
unlawfully excludes another from the
use a rd enjoyment of a right or office
to which such other is entitled, and
there is no other plain, speedy and
adequate remedy in the ordinary
course of law, the person aggrieved
thereby may file a verified petition in
the proper court alleging the facts with
certainty and praying that judgment be
rendered commanding the defendant,
immediately or at some other specified
time, to do the act required to be done
to Protect the rights of the petitioner,
and to pay the damages sustained by
the petitioner by reason of the wrongful
acts of the defendant.
Upon the other hand, petitioners maintain that since
the subject of the petition concerns a public right and
its object is to compel the performance of a public
duty, they need not show any specific interest for their
petition to be given due course.
The issue posed is not one of first impression. As early
as the 1910 case of Severino vs. Governor
General,
3
this Court held that while the general rule is
that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private
or particular interest to be subserved, or some particular
right to be protected, independent of that which he holds
with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to
be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right
and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as
the real party in interest and the relator at whose
instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator
Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the
Governor General to call a special election for the
position of municipal president in the town of Silay,
Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
We are therefore of the opinion that the
weight of authority supports the
proposition that the relator is a proper
party to proceedings of this character
when a public right is sought to be
Choco Notes

14
enforced. If the general rule in America
were otherwise, we think that it would
not be applicable to the case at bar for
the reason 'that it is always dangerous
to apply a general rule to a particular
case without keeping in mind the
reason for the rule, because, if under
the particular circumstances the reason
for the rule does not exist, the rule itself
is not applicable and reliance upon the
rule may well lead to error'
No reason exists in the case at bar for
applying the general rule insisted upon
by counsel for the respondent. The
circumstances which surround this
case are different from those in the
United States, inasmuch as if the
relator is not a proper party to these
proceedings no other person could be,
as we have seen that it is not the duty
of the law officer of the Government to
appear and represent the people in
cases of this character.
The reasons given by the Court in recognizing a
private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly,
the right sought to be enforced by petitioners herein is
a public right recognized by no less than the
fundamental law of the land. If petitioners were not
allowed to institute this proceeding, it would indeed be
difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the
government officer generally empowered to represent
the people, has entered his appearance for
respondents in this case.
Respondents further contend that publication in the
Official Gazette is not a sine qua non requirement for
the effectivity of laws where the laws themselves
provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in
question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is
not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after
fifteen days following the completion of
their publication in the Official Gazette,
unless it is otherwise provided, ...
The interpretation given by respondent is in accord
with this Court's construction of said article. In a long
line of decisions,
4
this Court has ruled that publication in
the Official Gazette is necessary in those cases where
the legislation itself does not provide for its effectivity
date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth
day following its publication-but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct
only insofar as it equates the effectivity of laws with the
fact of publication. Considered in the light of other
statutes applicable to the issue at hand, the conclusion
is easily reached that said Article 2 does not preclude
the requirement of publication in the Official Gazette,
even if the law itself provides for the date of its
effectivity. Thus, Section 1 of Commonwealth Act 638
provides as follows:
Section 1. There shall be published in
the Official Gazette [1] all important
legisiative acts and resolutions of a
public nature of the, Congress of the
Philippines; [2] all executive and
administrative orders and
proclamations, except such as have no
general applicability; [3] decisions or
abstracts of decisions of the Supreme
Court and the Court of Appeals as may
be deemed by said courts of sufficient
importance to be so published; [4] such
documents or classes of documents as
may be required so to be published by
law; and [5] such documents or classes
of documents as the President of the
Philippines shall determine from time to
time to have general applicability and
legal effect, or which he may authorize
so to be published. ...
The clear object of the above-quoted provision is to
give the general public adequate notice of the various
Choco Notes

15
laws which are to regulate their actions and conduct as
citizens. Without such notice and publication, there
would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the
Philippine Republic has the publication of laws taken
so vital significance that at this time when the people
have bestowed upon the President a power heretofore
enjoyed solely by the legislature. While the people are
kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansaand for the
diligent ones, ready access to the legislative records
no such publicity accompanies the law-making
process of the President. Thus, without publication, the
people have no means of knowing what presidential
decrees have actually been promulgated, much less a
definite way of informing themselves of the specific
contents and texts of such decrees. As the Supreme
Court of Spain ruled: "Bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos,
Reales decretos, Instrucciones, Circulares y Reales
ordines dictadas de conformidad con las mismas por
el Gobierno en uso de su potestad.
5

The very first clause of Section I of Commonwealth Act
638 reads: "There shall be published in the Official
Gazette ... ." The word "shall" used therein imposes
upon respondent officials an imperative duty. That duty
must be enforced if the Constitutional right of the
people to be informed on matters of public concern is
to be given substance and reality. The law itself makes
a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents
with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a
public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax
and revenue measures, fall within this category. Other
presidential issuances which apply only to particular
persons or class of persons such as administrative
and executive orders need not be published on the
assumption that they have been circularized to all
concerned.
6

It is needless to add that the publication of presidential
issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a
rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC
7
:
In a time of proliferating decrees,
orders and letters of instructions which
all form part of the law of the land, the
requirement of due process and the
Rule of Law demand that the Official
Gazette as the official government
repository promulgate and publish the
texts of all such decrees, orders and
instructions so that the people may
know where to obtain their official and
specific contents.
The Court therefore declares that presidential
issuances of general application, which have not been
published, shall have no force and effect. Some
members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on
acts done in reliance of the validity of those
presidential decrees which were published only during
the pendency of this petition, have put the question as
to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior
to their publication. The answer is all too familiar. In
similar situations in the past this Court had taken the
pragmatic and realistic course set forth in Chicot
County Drainage District vs. Baxter Bank
8
to wit:
The courts below have proceeded on
the theory that the Act of Congress,
having been found to be
unconstitutional, was not a law; that it
was inoperative, conferring no rights
and imposing no duties, and hence
affording no basis for the challenged
decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co.
Choco Notes

16
v. Hackett, 228 U.S. 559, 566. It is
quite clear, however, that such broad
statements as to the effect of a
determination of unconstitutionality
must be taken with qualifications. The
actual existence of a statute, prior to
such a determination, is an operative
fact and may have consequences
which cannot justly be ignored. The
past cannot always be erased by a
new judicial declaration. The effect of
the subsequent ruling as to invalidity
may have to be considered in various
aspects-with respect to particular
conduct, private and official. Questions
of rights claimed to have become
vested, of status, of prior
determinations deemed to have finality
and acted upon accordingly, of public
policy in the light of the nature both of
the statute and of its previous
application, demand examination.
These questions are among the most
difficult of those which have engaged
the attention of courts, state and
federal and it is manifest from
numerous decisions that an all-
inclusive statement of a principle of
absolute retroactive invalidity cannot
be justified.
Consistently with the above principle, this Court
in Rutter vs. Esteban
9
sustained the right of a party
under the Moratorium Law, albeit said right had accrued
in his favor before said law was declared unconstitutional
by this Court.
Similarly, the implementation/enforcement of
presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."
From the report submitted to the Court by the Clerk of
Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not
been so published.
10
Neither the subject matters nor the
texts of these PDs can be ascertained since no copies
thereof are available. But whatever their subject matter
may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles,
11
the Court,
through Justice Ramon Aquino, ruled that "publication is
necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering
the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations
of criminal laws until the same shall have been published
in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take
effect immediately.
WHEREFORE, the Court hereby orders respondents
to publish in the Official Gazette all unpublished
presidential issuances which are of general
application, and unless so published, they shall have
no binding force and effect.
SO ORDERED.
Kasilag vs Rodriguez
G.R. No. 46623 December 7, 1939
MARCIAL KASILAG, petitioner,
vs.
RAFAELA RODRIGUEZ, URBANO ROQUE,
SEVERO MAPILISAN and IGNACIO DEL
ROSARIO, respondents.
Luis M. Kasilag for petitioner.
Fortunato de Leon for respondents.

IMPERIAL, J .:
Choco Notes

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

18
10' E. 104.26 m. to point "4"; S. 82 17' W. to point "5";
S. 28 53' W. 72.26 m. to point "6"; N. 71 09' W. to
point "7"; N. 1 42' E. 173.72 m. to point 1, point of
beginning, "Containing an area of 6.7540 hectares.
"Points 1,2,6 and 7, B.L.; points 3,4 and 5, stakes;
points 4, 5 and 6 on bank of Alangan River. "Bounded
on the North, by property claimed by Maria Ambrosio;
on the East, by Road; on the South, by Alangan River
and property claimed by Maxima de la Cruz; and on
the West, by property claimed by Jose del Rosario.
"Bearing true. Declination 0 51' E. "Surveyed under
authority of sections 12-22, Act No. 2874 and in
accordance with existing regulations of the Bureau of
Lands, by Mamerto Jacinto, public land surveyor, on
July 8, 1927 and approved on February 25, 1931.
ARTICLE II. That the improvements on the
above described land consist of the following:
Four (4) mango trees, fruit bearing: one
hundred ten (110) hills of bamboo trees; one
(1) tamarind and six (6) boga trees.
ARTICLE III. That the assessed value of the
land is P940 and the assessed value of the
improvements is P860, as evidenced by tax
declaration No. 3531 of the municipality of
Limay, Bataan.
ARTICLE IV. That for and in consideration of
the sum of one thousand pesos (P1,000)
Philippine currency, paid by the party of
second part to the party of the first part, receipt
whereof is hereby acknowledged, the party of
the first part hereby encumbers and
hypothecates, by way of mortgage, only the
improvements described in Articles II and III
hereof, of which improvements the party of the
first part is the absolute owner.
ARTICLE V. That the condition of said
mortgage is such that if the party of the first
part shall well and truly pay, or cause to paid to
the party of the second part, his heirs, assigns,
or executors, on or before the 16th day of
November, 1936, or four and one-half (4)
years after date of the execution of this
instrument, the aforesaid sum of one thousand
pesos (P1,000) with interest at 12 per cent per
annum, then said mortgage shall be and
become null and void; otherwise the same
shall be and shall remain in full force and
effect, and subject to foreclosure in the manner
and form provided by law for the amount due
thereunder, with costs and also attorney's fees
in the event of such foreclosure.lawphil. net
ARTICLE VI. That the party of the first part
shall pay all taxes and assessments which are
or may become due on the above described
land and improvements during the term of this
agreement.
ARTICLE VII. That within thirty (30) days after
date of execution of this agreement, the party
of the first part shall file a motion before the
Court of First Instance at Balanga, Bataan, P.
I., requesting cancellation of Homestead
Certificate of Title No. 325 referred to in Article
I hereof and the issuance, in lieu thereof, of a
certificate of title under the provisions of Land
Registration Act No. 496, as amended by Act
3901.
ARTICLE III. It if further agreed that if upon the
expiration of the period of time (4) years
stipulated in this mortgage, the mortgagor
should fail to redeem this mortgage, she would
execute a deed of absolute sale of the property
herein described for the same amount as this
mortgage, including all unpaid interests at the
rate of 12 per cent per annum, in favor of the
mortgagee.
ARTICLE IX. That in the event the
contemplated motion under Article VII hereof is
not approved by the Court, the foregoing
contract of sale shall automatically become null
and void, and the mortgage stipulated under
Article IV and V shall remain in full force and
effect.
In testimony whereof, the parties hereto have
hereunto set their hands the day and year first
herein before written.
Choco Notes

19
(Sgd.) MARCIAL KASILAG
(Sgd.) EMILIANA AMBROSIO
Signed in the presence of:
(Sgd.) ILLEGIBLE
(Sgd.) GAVINO RODRIGUEZ.

PHILIPPINE ISLANDS } ss.
BALANGA, BATAAN } ss.
Before me this day personally appeared
Emiliana Ambrosio without cedula by reason of
her sex, to me known and known to me to be
the person who signed the foregoing
instrument, and acknowledged to me that she
executed the same as her free and voluntary
act and deed.
I hereby certify that this instrument consists of
three (3) pages including this page of the
acknowledgment and that each page thereof is
signed by the parties to the instrument and the
witnesses in their presence and in the
presence of each other, and that the land
treated in this instrument consists of only one
parcel.
In witness whereof I have hereunto set my
hand and affixed my notarial seal, this 16th day
of May, 1932.
(Sgd.) NICOLAS NAVARRO
Notary Public
My commission expires December 31, 1933.

Doc. No. 178
Page 36 of my register
Book No. IV
One year after the execution of the aforequoted deed,
that is, in 1933, it came to pass that Emiliana
Ambrosio was unable to pay the stipulated interests as
well as the tax on the land and its improvements. For
this reason, she and the petitioner entered into another
verbal contract whereby she conveyed to the latter the
possession of the land on condition that the latter
would not collect the interest on the loan, would attend
to the payment of the land tax, would benefit by the
fruits of the land, and would introduce improvements
thereon. By virtue of this verbal contract, the petitioner
entered upon the possession of the land, gathered the
products thereof, did not collect the interest on the
loan, introduced improvements upon the land valued
at P5,000, according to him and on May 22, 1934 the
tax declaration was transferred in his name and on
March 6, 1936 the assessed value of the land was
increased from P1,020 to P2,180.
After an analysis of the conditions of Exhibit "1" the
Court of Appeals came to the conclusion and so held
that the contract entered into by and between the
parties, set out in the said public deed, was one of
absolute purchase and sale of the land and its
improvements. And upon this ruling it held null and
void and without legal effect the entire Exhibit 1 as well
as the subsequent verbal contract entered into
between the parties, ordering, however, the
respondents to pay to the petitioner, jointly and
severally, the loan of P1,000 with legal interest at 6 per
cent per annum from the date of the decision. In this
first assignment of error the petitioner contends that
the Court of Appeals violated the law in holding that
Exhibit 1 is an absolute deed of sale of the land and its
improvements and that it is void and without any legal
effect.
The cardinal rule in the interpretation of contracts is to
the effect that the intention of the contracting parties
should always prevail because their will has the force
of law between them. Article 1281 of the Civil Code
consecrates this rule and provides, that if the terms of
a contract are clear and leave no doubt as to the
intention of the contracting parties, the literal sense of
Choco Notes

20
its stipulations shall be followed; and if the words
appear to be contrary to the evident intention of the
contracting parties, the intention shall prevail. The
contract set out in Exhibit 1 should be interpreted in
accordance with these rules. As the terms thereof are
clear and leave no room for doubt, it should be
interpreted according to the literal meaning of its
clauses. The words used by the contracting parties in
Exhibit 1 clearly show that they intended to enter into
the principal contract of loan in the amount of P1,000,
with interest at 12 per cent per annum, and into the
accessory contract of mortgage of the improvements
on the land acquired as homestead, the parties having
moreover, agreed upon the pacts and conditions
stated in the deed. In other words, the parties entered
into a contract of mortgage of the improvements on the
land acquired as homestead, to secure the payment of
the indebtedness for P1,000 and the stipulated interest
thereon. In clause V the parties stipulated that
Emiliana Ambrosio was to pay, within four and a half
years, or until November 16, 1936, the debt with
interest thereon, in which event the mortgage would
not have any effect; in clause VI the parties agreed
that the tax on the land and its improvements, during
the existence of the mortgage, should be paid by the
owner of the land; in clause VII it was covenanted that
within thirty days from the date of the contract, the
owner of the land would file a motion in the Court of
First Instance of Bataan asking that certificate of title
No. 325 be cancelled and that in lieu thereof another
be issued under the provisions of the Land
Registration Act No. 496, as amended by Act No.
3901; in clause VIII the parties agreed that should
Emiliana Ambrosio fail to redeem the mortgage within
the stipulated period of four years and a half, she
would execute an absolute deed of sale of the land in
favor of the mortgagee, the petitioner, for the same
amount of the loan of P1,000 including unpaid interest;
and in clause IX it was stipulated that in case the
motion to be presented under clause VII should be
disapproved by the Court of First Instance of Bataan,
the contract of sale would automatically become void
and the mortgage would subsist in all its force.
Another fundamental rule in the interpretation of
contracts, not less important than those indicated, is to
the effect that the terms, clauses and conditions
contrary to law, morals and public order should be
separated from the valid and legal contract and when
such separation can be made because they are
independent of the valid contract which expresses the
will of the contracting parties. Manresa, commenting
on article 1255 of the Civil Code and stating the rule of
separation just mentioned, gives his views as follows:
On the supposition that the various pacts,
clauses or conditions are valid, no difficulty is
presented; but should they be void, the
question is as to what extent they may produce
the nullity of the principal obligation. Under the
view that such features of the obligation are
added to it and do not go to its essence, a
criterion based upon the stability of juridical
relations should tend to consider the nullity as
confined to the clause or pact suffering
therefrom, except in case where the latter, by
an established connection or by manifest
intention of the parties, is inseparable from the
principal obligation, and is a condition,
juridically speaking, of that the nullity of which
it would also occasion. (Manresa,
Commentaries on the Civil Code, Volume 8, p.
575.)
The same view prevails in the Anglo-American law, as
condensed in the following words:
Where an agreement founded on a legal
consideration contains several promises, or a
promise to do several things, and a part only of
the things to be done are illegal, the promises
which can be separated, or the promise, so far
as it can be separated, from the illegality, may
be valid. The rule is that a lawful promise made
for a lawful consideration is not invalid merely
because an unlawful promise was made at the
same time and for the same consideration, and
this rule applies, although the invalidity is due
to violation of a statutory provision, unless the
statute expressly or by necessary implication
declares the entire contract void. . . . (13 C. J.,
par. 470, p. 512; New York Cent. etc. R. Co. v.
Gray, 239 U.S., 583; 60 Law ed., 451; U.S. v.
Mora, 97 U.S., 413, 24 Law. ed., 1017; U.S. v.
Hodson, 10 Wall, 395; 19 Law ed. 937;
Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed.,
520; U.S. v. Bradly, 10 Pet. 343, 9 Law. ed.,
Choco Notes

21
448; Borland v. Prindle, 144 Fed 713; Western
Union Tel. Co. v. Kansas Pac. R. Co., 4 Fed.,
284; Northern Pac. R. Co. v. U.S., 15 Ct. Cl.,
428.)
Addressing ourselves now to the contract entered into
by the parties, set out in Exhibit 1, we stated that the
principal contract is that of loan and the accessory that
of mortgage of the improvements upon the land
acquired as a homestead. There is no question that
the first of these contract is valid as it is not against the
law. The second, or the mortgage of the
improvements, is expressly authorized by section 116
of Act No. 2874, as amended by section 23 of Act No.
3517, reading:
SEC. 116. Except in favor of the Government
or any of its branches, units or institutions, or
legally constituted banking corporations, lands
acquired under the free patent or homestead
provisions shall not be subject to encumbrance
or alienation from the date of the approval of
the application and for a term of five years from
and after the date of issuance of the patent or
grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the
expiration of said period; but the improvements
or crops on the land may be mortgaged or
pledged to qualified persons, associations, or
corporations.
It will be recalled that by clause VIII of Exhibit 1 the
parties agreed that should Emiliana Ambrosio fail to
redeem the mortgage within the stipulated period of
four and a half years, by paying the loan together with
interest, she would execute in favor of the petitioner an
absolute deed of sale of the land for P1,000, including
the interest stipulated and owing. The stipulation was
verbally modified by the same parties after the
expiration of one year, in the sense that the petitioner
would take possession of the land and would benefit
by the fruits thereof on condition that he would
condone the payment of interest upon the loan and he
would attend to the payment of the land tax. These
pacts made by the parties independently were
calculated to alter the mortgage a contract clearly
entered into, converting the latter into a contract of
antichresis. (Article 1881 of the Civil Code.) The
contract of antichresis, being a real encumbrance
burdening the land, is illegal and void because it is
legal and valid.
The foregoing considerations bring us to the
conclusion that the first assignment of error is well-
founded and that error was committed in holding that
the contract entered into between the parties was one
of absolute sale of the land and its improvements and
that Exhibit 1 is null and void. In the second
assignment of error the petitioner contends that the
Court of Appeals erred in holding that he is guilty of
violating the Public Land Act because he entered into
the contract, Exhibit 1. The assigned error is vague
and not specific. If it attempts to show that the said
document is valid in its entirety, it is not well-founded
because we have already said that certain pacts
thereof are illegal because they are prohibited by
section 116 of Act No. 2874, as amended.
In the third assignment of error the petitioner insists
that his testimony, as to the verbal agreement entered
into between him and Emiliana Ambrosio, should have
been accepted by the Court of Appeals; and in the
fourth and last assignment of error the same petitioner
contends that the Court of Appeals erred in holding
that he acted in bad faith in taking possession of the
land and in taking advantage of the fruits thereof,
resulting in the denial of his right to be reimbursed for
the value of the improvements introduced by him.
We have seen that subsequent to the execution of the
contract, Exhibit 1, the parties entered into another
verbal contract whereby the petitioner was authorized
to take possession of the land, to receive the fruits
thereof and to introduce improvements thereon,
provided that he would renounce the payment of
stipulated interest and he would assume payment of
the land tax. The possession by the petitioner and his
receipt of the fruits of the land, considered as integral
elements of the contract of antichresis, are illegal and
void agreements because, as already stated, the
contract of antichresis is a lien and such is expressly
prohibited by section 116 of Act No. 2874, as
amended. The Court of Appeals held that the
petitioner acted in bad faith in taking possession of the
land because he knew that the contract he made with
Emiliana Ambrosio was an absolute deed of sale and,
Choco Notes

22
further, that the latter could not sell the land because it
is prohibited by section 116. The Civil Code does not
expressly define what is meant by bad faith, but
section 433 provides that "Every person who is
unaware of any flaw in his title, or in the manner of its
acquisition, by which it is invalidated, shall be deemed
a possessor in good faith"; and provides further, that
"Possessors aware of such flaw are deemed
possessors in bad faith". Article 1950 of the same
Code, covered by Chapter II relative to prescription of
ownership and other real rights, provides, in turn, that
"Good faith on the part of the possessor consists in his
belief that the person from whom he received the thing
was the owner of the same, and could transmit the title
thereto." We do not have before us a case of
prescription of ownership, hence, the last article is not
squarely in point. In resume, it may be stated that a
person is deemed a possessor in bad faith when he
knows that there is a flaw in his title or in the manner
of its acquisition, by which it is invalidated.
Borrowing the language of Article 433, the question to
be answered is whether the petitioner should be
deemed a possessor in good faith because he was
unaware of any flaw in his title or in the manner of its
acquisition by which it is invalidated. It will be noted
that ignorance of the flaw is the keynote of the rule.
From the facts found established by the Court of
Appeals we can neither deduce nor presume that the
petitioner was aware of a flaw in his title or in the
manner of its acquisition, aside from the prohibition
contained in section 116. This being the case, the
question is whether good faith may be premised upon
ignorance of the laws. Manresa, commenting on article
434 in connection with the preceding article, sustains
the affirmative. He says:
"We do not believe that in real life there are not many
cases of good faith founded upon an error of law.
When the acquisition appears in a public document,
the capacity of the parties has already been passed
upon by competent authority, and even established by
appeals taken from final judgments and administrative
remedies against the qualification of registrars, and the
possibility of error is remote under such
circumstances; but, unfortunately, private documents
and even verbal agreements far exceed public
documents in number, and while no one should be
ignorant of the law, the truth is that even we who are
called upon to know and apply it fall into error not
infrequently. However, a clear, manifest, and truly
unexcusable ignorance is one thing, to which
undoubtedly refers article 2, and another and different
thing is possible and excusable error arising from
complex legal principles and from the interpretation of
conflicting doctrines.
But even ignorance of the law may be based
upon an error of fact, or better still, ignorance
of a fact is possible as to the capacity to
transmit and as to the intervention of certain
persons, compliance with certain formalities
and appreciation of certain acts, and an error
of law is possible in the interpretation of
doubtful doctrines. (Manresa, Commentaries
on the Spanish Civil Code. Volume IV, pp. 100,
101 and 102.)
According to this author, gross and inexcusable
ignorance of law may not be the basis of good faith,
but possible, excusable ignorance may be such basis.
It is a fact that the petitioner is not conversant with the
laws because he is not a lawyer. In accepting the
mortgage of the improvements he proceeded on the
well-grounded belief that he was not violating the
prohibition regarding the alienation of the land. In
taking possession thereof and in consenting to receive
its fruits, he did not know, as clearly as a jurist does,
that the possession and enjoyment of the fruits are
attributes of the contract of antichresis and that the
latter, as a lien, was prohibited by section 116. These
considerations again bring us to the conclusion that,
as to the petitioner, his ignorance of the provisions of
section 116 is excusable and may, therefore, be the
basis of his good faith. We do not give much
importance to the change of the tax declaration, which
consisted in making the petitioner appear as the owner
of the land, because such an act may only be
considered as a sequel to the change of possession
and enjoyment of the fruits by the petitioner, to about
which we have stated that the petitioner's ignorance of
the law is possible and excusable. We, therefore, hold
that the petitioner acted in good faith in taking
possession of the land and enjoying its fruits.
Choco Notes

23
The petitioner being a possessor in good faith within
the meaning of article 433 of the Civil Code and having
introduced the improvements upon the land as such,
the provisions of article 361 of the same Code are
applicable; wherefore, the respondents are entitled to
have the improvements and plants upon indemnifying
the petitioner the value thereof which we fix at P3,000,
as appraised by the trial court; or the respondents may
elect to compel the petitioner to have the land by
paying its market value to be fixed by the court of
origin.
The respondents also prayed in their complaint that
the petitioner be compelled to pay them the sum of
P650, being the approximate value of the fruits
obtained by the petitioner from the land. The Court of
Appeals affirmed the judgment of the trial court
denying the claim or indemnity for damages, being of
the same opinion as the trial court that the
respondents may elect to compel the petitioner to have
the land. The Court of Appeals affirmed the judgment
of the trial court that the respondents have not
established such damages. Under the verbal contract
between the petitioner and the deceased Emiliana
Ambrosio, during the latter's lifetime, the former would
take possession of the land and would receive the
fruits of the mortgaged improvements on condition that
he would no longer collect the stipulated interest and
that he would attend to the payment of the land tax.
This agreement, at bottom, is tantamount to the
stipulation that the petitioner should apply the value of
the fruits of the land to the payment of stipulated
interest on the loan of P1,000 which is, in turn, another
of the elements characterizing the contract of
antichresis under article 1881 of the Civil Code. It was
not possible for the parties to stipulate further that the
value of the fruits be also applied to the payment of the
capital, because the truth was that nothing remained
after paying the interest at 12% per annum. This
interest, at the rate fixed, amounted to P120 per
annum, whereas the market value of the fruits
obtainable from the land hardly reached said amount
in view of the fact that the assessed value of said
improvements was, according to the decision, P860.
To this should be added the fact that, under the verbal
agreement, from the value of the fruits had to be taken
a certain amount to pay the annual land tax. We
mention these data here to show that the petitioner is
also not bound to render an accounting of the value of
the fruits of the mortgaged improvements for the
reason stated that said value hardly covers the interest
earned by the secured indebtednes.
For all the foregoing considerations, the appealed
decision is reversed, and we hereby adjudge: (1) that
the contract of mortgage of the improvements, set out
in Exhibit 1, is valid and binding; (2) that the contract of
antichresis agreed upon verbally by the parties is a
real incumbrance which burdens the land and, as
such, is a null and without effect; (3) that the petitioner
is a possessor in good faith; (4) that the respondents
may elect to have the improvements introduced by the
petitioner by paying the latter the value thereof,
P3,000, or to compel the petitioner to buy and have
the land where the improvements or plants are found,
by paying them its market value to be filed by the court
of origin, upon hearing the parties; (5) that the
respondents have a right to the possession of the land
and to enjoy the mortgaged improvements; and (6)
that the respondents may redeem the mortgage of the
improvements by paying to the petitioner within three
months the amount of P1,000, without interest, as that
stipulated is set off by the value of the fruits of the
mortgaged improvements which petitioner received,
and in default thereof the petitioner may ask for the
public sale of said improvements for the purpose of
applying the proceeds thereof to the payment of his
said credit. Without special pronouncement as to the
costs in all instances. So ordered.
Diaz, J., concur.

Separate Opinions

VILLA-REAL, J ., concurring and dissenting:
According to the contract entered into May 16, 1932,
between Emiliana Ambrosio, in life, and the petitioner
Choco Notes

24
Marcial Kasilag, the first, in consideration of the sum of
P1,000 given to her by the second, constituted a
mortgage on the improvements only of the land which
she acquired by way of homestead. The improvements
which she mortgaged consisted of four fruit bearing
mango trees, one hundred ten hills of bamboo trees, 1
tamarind tree and 6 betelnut trees, the assessed value
of which was P660. The condition of the loan were that
if the mortgagor should pay the mortgage on
November 16, 1936, that is, four and a half years after
the execution of the deed, said sum of P1,000 with
interest thereon at 12% per annum, the aforesaid
mortgage would become null and void, otherwise it
would remain in full force and effect and would b
subject to foreclosure in the manner provided by law;
that the mortgagor would pay all the land tax on the
land and its improvements during the duration of the
contract; and that if after the expiration of the said
period of four and a half years the mortgagor should
fail to redeem the mortgage, she would execute in
favor of the mortgage an absolute deed of sale of the
property described in the contract for the same sum of
P1,000 plus interest due and unpaid at the rate of 12
per cent per annum.
The principal rule in the interpretation of contracts is
that "If the terms of a contract are clear and leave no
doubt as to the intention of the contracting parties, the
literal sense of its stipulations shall be followed. If the
words appear to be contrary to the evident intention of
the contracting parties, the intention shall prevail"
(article 1281, Civil Cod). "In order to judge as to the
intention of the contracting parties, attention must be
paid principally to their conduct at the time of making
the contract and subsequently thereto." (Article 1282.)
Now, then what is the true nature of the contract
entered into between the parties by virtue of the deed
of sale executed by them on May 16, 1932? The Court
of Appeals held that it is an absolute deed of sale of a
land with a homestead certificate of title, under the
guise of a loan secured by a mortgage upon its
improvements in order to go around the prohibition
contained in section 116 of Act No. 2874, as amended
by section 23 of Act No. 3517.
Closely examined, the only clauses of the contract
which may lead to the conclusion that it is one of the
sale are those which state that if at the expiration of
the period of four years and a half the mortgagor
should fail to pay the amount of the loan plus interest
due and unpaid at the rate of 12 per cent per annum,
she would execute in favor of the mortgagee a deed of
absolute sale of the land whose improvements were
mortgaged for the amount of the loan and the interest
owing. It will be seen that the sale would not be made
until after the lapse of four and a half years from the
execution of the deed, if the mortgagor should fail or
should not wish to redeem the mortgaged
improvements. Consequently, the obligation
contracted by said mortgagor was no more than a
conditional promise to sell. Now, then, is this a
promise to sell valid? Like any other onerous,
consensual and mutually binding contract, that of
promise to sell requires for its legal existence and
validity the concurrence of consent, consideration and
subject-matter. The contract before us dos not show
what is the cause or consideration for such promise to
sell. Assuming that it was the economic impotence of
the mortgagor to redeem the mortgaged
improvements, before she could be compelled to
comply with her obligation to sell, there is need to wait
until she should fail of funds or to abandonment. The
cause will come into being only upon the happening of
said event after the four and half years and only then
will the said contract of promise to sell have juridical
existence. The P1,000 and its interest, should the
mortgagor fail to redeem the improvements upon the
maturity of the indebtedness, would be the
consideration of the sale; because the promise to sell
is a contract different and distinct from that of sale and
each requires a consideration for its existence and
validity.
The terms of the contract are clear and explicit and do
not leave room for doubt that the intention of the
contracting parties was to constitute a mortgage on the
improvements of the land in litigation to secure the
payment of the loan for P1,000, within interest thereon
at 12 per cent per annum. It cannot be said that this
contract is simulated because the assessed value of
the improvements is P860 only. It is well known that
rural properties are valued for assessment purposes
not less than half of their market value. The true value
of the said improvements may therefore be P1,720,
and the mortgagee may have considered that
adequate. Moreover, the petitioner could not have the
Choco Notes

25
property whose improvements were mortgaged to him
the property whose improvements were mortgaged to
him even should the mortgagor default in the payment
of interest. He could only have the mortgaged
improvements in case of foreclosure should he bid
therefor at the sale. Neither could the mortgagor sell
the same property to the mortgagee, even after the
expiration of five years from the issuance of the
homestead certificate of title, for then the sale would
be in satisfaction of an obligation contracted during the
five years, which is prohibited by the oft-mentioned
section 116 of Act No. 2874, as amended by section
23 of Act No. 3517. The fact that after one year the
contracting parties had novated the contract of loan
secured by a mortgagee, converting the same into a
contract of anti-chresis because of the mortgagor's
failure to pay the accrued interest, does not show that
they intended to enter into a contract of sale, because
the conversion in this case of the contract of loan
secured by a mortgage into one of antichresis was
accidental, due to the mortgagor's default in the
payment of unpaid interest for the first year. if the
parties' intention from the beginning had been to sell
the property, the mortgagee would have immediately
entered upon the possession of the land instead of
waiting until after the expiration of one year. The
transfer of the Torrens certificate of title to the
homestead by the original owner to the mortgagee in
1934 was only a consequence of the conversion of the
mortgage loan into an anti-chretic loan, the parties
having such a transfer. The setting off of the interest
on the debt against the fruits of the property given in
antichresis finds authority in article 1885 of the of the
Civil Code. There is, therefore, no ambiguity in the
terms of the contract warranting the search outside its
four corners for the true intention of the contracting
parties other than that of entering into a contract of
loan secured by the said improvements. If the true
intention of the contracting parties, as clearly gathered
from the terms of the contract, was to enter into a
contract, was to enter into a contract of loan secured
by a mortgage upon the improvements, although they
should convert it into a contract of antichresis after one
year and although after the maturity of the loan with
interest they may wish to convert it into one of
absolute sale both conversions being illegal and,
hence, void, 8 the original intention of entering into
a contract of loan secured by a mortgagee upon the
improvements would prevail, the said contract of loan
being the only one legal and valid, and the petitioner
having acted in good faith in making it.
The verbal contract of antichresis, entered into by the
petitioner Marcial Kasilag and Emiliana Ambrosio,
being null and void ab initio and without any legal
effect because it is in violation of the express
prohibition of section 116 of Act No. 2874 as amended
by section 23 of Act No. 3517, (article 4 of the Civil
Code), the contracting parties should restore to each
other the things which have been the subject-matter of
the contract, together with their fruits, and the price
paid therefor, together with interest, pursuant to Article
1303 of the same Code. Marcial Kasilag, therefore,
should return to Emiliana Ambrosio or to her heirs the
possession of the homestead and the improvements
thereon with its fruits, and Emiliana Ambrosio or her
heirs should pay him the sum of P1,000, being the
amount of the loan, plus interest due and unpaid.
As to the improvements introduced upon the land by
the petitioner, having done so with the knowledge and
consent of its owner Emiliana Ambrosio, the former
acted in good faith, and under article 361 of the Civil
Code, the owner of the land may have the said
improvements upon paying the indemnity provided in
articles 453 and 454, or may compel the said Marcial
Kasilag, who introduced the said improvements, to pay
the price of the land. If the herein respondents, as
heirs of Emiliana Ambrosio, do not wish or are unable
to pay for said improvements, and Marcial Kasilag
does not wish or is unable to pay the land, said
petitioner would lose his right of intention over the
same (Bernardo vs. Batalan, 37 Off. G., No. 74, p.
1382), provided that he may remove the improvements
which he had introduced in good faith.
In view of the foregoing, I concur in the majority
opinion except insofar as it holds that the interest is set
off against the fruits of the mortgaged improvements,
because as a result of the nullity of the contract of
antichresis the petitioner should return to the
respondents the products of the mortgaged
improvements, and the latter should pay to the
petitioner the amount of the loan plus interest due and
unpaid at the rate of 12 per cent per annum from the
date of the contract until fully paid.
Choco Notes

26
LAUREL, J ., concurring in the result:
On August 27, 1918, Emiliana Ambrosio put in a
homestead application for lot No. 285 of the Limay
cadastre, Province of Bataan. After complying with the
requisite legal formalities, she obtained therefor
homestead patent No. 16074, the same having been
recorded in the Registry of Deeds of Bataan on Juner
26, 1931. On May 16, 1932, she entered with the
herein petitioner, Marcial Kasilag, into a contract,
Exhibit 1, inserted in the foregoing majority opinion.
Sometime in 1933, or a year after the execution of the
aforequoted and land taxes, whereupon, the
mortgage, Marcial Kasilag, and the mortgagor,
Emiliana Ambrosio, verbally agreed that the former
would pay the land taxes and waive the unpaid
interest, enter into the possession of the property in
question, introducing improvements thereon, and
thereafter be reimbursed for the value of such
improvements. Under this verbal pact, Kasilag went
into possession of the property, planted it with the fruit
trees allegedly valued at P5,000, and on May 22,
1934, declared the same for taxation purposes. In
1934 the original homesteader, Emiliana Rodriguez,
Severo Mapilisan, Ignacio del Rosario and Gavino
Rodriguez.
On May 16, 1936, the said heirs, with the exception
Gavino Rodriguez who testified for the defendant,
sued Marcial Kasilag in the Court of First Instance of
Bataan to recover the possession of the aforesaid
property belonging to their mother. For answer, the
defendant put in as was in good faith with the
knowledge and tolerance of the plaintiffs, a
counterclaim for P1,000 representing the loan to the
deceased homesteader with stipulated interest there
on, and a recoupment for P5,000 allegedly the value of
the improvements he had introduced upon the land.
On the issues thus joined, the trial court gave
judgment for the defendant couched in the following
language:
Resuming all that has been said above, the
court find and declares that the deed of
combined mortgage and sale executed by
Emiliana Ambrosio in favor of the defendant
Marcial Kasilag and dated May 16, 1932, is
null and void as a contract for a future
conveyance or sale of the homestead, but valid
as an equitable mortgage on the improvements
for the sum of P1,000; and that the possession
of the homestead by the defendant Marcial
Kasilag by virtue of said contract or by virtue of
any other agreement is null and void, but that
the making of the improvements thereon by
him, which the court finds to be valued at
P3,000, by virtue of the verbal agreement
entered into after the executing of the original
instrument of mortgage, was in good faith,
entitling the said Marcial Kasilag to be
reimbursed of their actual value, the above-
mentioned amount. Wherefore, let judgment be
entered declaring that the plaintiffs are entitled
to the possession as owners of the homestead
subject of the present suit, lot No. 285 of the
Limay cadastral survey, subject to an
encumbrance of the improvements for the sum
of P1,000 in favor of the defendant, ordering
the defendant deliver unto the plaintiffs in turn
to pay unto the defendant jointly and severally,
as heirs of their deceased mother Rafaela
Rodriguez the sum of P3,000, value of the
improvements introduced on said homestead
by defendant. Let there be no pronouncement
as to costs." On appeal by the plaintiffs, the
Third Division of the Court of Appeals reached
a different result and modified the judgment of
the trial court as follows:
Wherefore, the appealed judgment is hereby
modified by declaring that the contract, Exhibit
"1", is entirely null and void; that the plaintiffs
and appellants are the owners of the lot in
question together with all the improvements
thereon in common with their brother, Gavino
Rodriguez, and are, therefore, entitled to the
possession thereof; ordering the defendant
and appellee to vacate and deliver the
possession of the aforementioned plaintiffs and
appellants free from any encumbrance;
requiring latter, however, to pay jointly and
severally to the said appellee the sum of
P1,000 with the interest thereon at the rate of 6
per cent per annum from and including the
date this decision becomes final; and absolving
the said plaintiffs and appellants from the
Choco Notes

27
cross-complaint with respect to the value of the
improvements claimed by the appellee.
It is further ordered that the register of deeds of
Bataan cancel the certificate of title No. 325 in
the name of the deceased, Emiliana Ambrosio,
and issue in lieu thereof anew certificate of title
in favor of the herein plaintiffs and appellants
and their brother, Gavino Rodriguez, as
owners pro indiviso and in equal shares free
from any lien or encumbrance except those
expressly provided by law.
Without special pronouncement as to the
costs.
The case is before us on petition for certiorari which
was given due course, filed by defendant-appellee,
Marcial Kasilag, now petitioner, against plaintiffs-
appellants, Rafaela Rodriguez and others, now
respondents. The burden of petitioner's case is
condensed in the following assignments of error:
The Honorable Court of Appeals erred:
I. In having interpreted that document Exhibit
"1" is an absolute sale and declared it entirely
null and void, and in not having interpreted and
declared that it is a deed of combined
mortgage and future sale which, if void as a
contract for future conveyance of the
homestead in question is, however, valid as an
equitable mortgage on the improvements
thereof for the sum of P1,000 loaned by
petitioner Marcial Kasilag to the homestead
owner Emiliana Ambrosio.
II. In holding that the petitioner was guilty of the
violation of the public land law for having
entered into said contract Exhibit "1".
III. In not giving probative value to the
uncontradicted testimony of the petitioner
Marcial Kasilag that he was expressly
authorized by the homestead owner Emiliana
Ambrosio to introduction by him of
improvements therein by virtue of the verbal
agreement entered into after the execution of
the original instrument of mortgage was in
good faith, entitling him to reimbursed of the
actual value of improvements he introduced.
Boiled down to the fundamentals, there are only two
propositions which stands to be resolved in this
appeal: (1) What is the legal nature of the agreement,
Exhibit 1, entered into by and between the parties?
and (2) Is Marcial Kasilag guilty of bad faith in entering
upon the possession of the homestead, paying the
land tax and introducing improvements thereon?
The numerous adjudications in controversies of this
nature will show that each case must be decided in the
light of the attendant circumstances and the situation
of the parties which, upon the whole, mark its
character. However, for the purpose of ascertaining
the manner and extent to which persons have
intended to be found by their written agreements, the
safe criterion, the time honored test, is their contention
which is intimately woven into the instrument itself. It is
true that resort to extrinsic evidence is imperative
when the contract is ambiguos and is susceptible of
divergent interpretations; nevertheless, the primary
obligation of the courts is to discover the intention of
the contracting parties, as it is expressed by the
language of the document itself. We are not authorized
to make a contract for the parties.
In the trial court as in the Court of Appeals, the
discussion centered on the nature and validity of the
document, Exhibit 1. This is the correct approach. The
Court of Appeals, however, rejected the conclusion of
the trial court that it is an absolute deed of sale which
is null and void in its entirely because it is banned by
section 116, as amended of the Public land Act. The
ruling is now assailed by the petitioner. I share
petitioner's view that the deed is not what it was
construed to be by the Court of Appeals.
From Article I to III thereof is a description of the
homestead and the improvements existing thereon. By
its Article IV the homesteader, Emiliana Ambrosio,
"encumbers and hipothecates, by way of mortgage,
only the improvements described in Articles II and III"
under the conditions set out in Articles V, VI and VII.
Its closing Articles VIII and IX, particularly relied upon
by the Court of Appeals, speak, not of a present deed
Choco Notes

28
of absolute sale, but of one to be executed "upon the
expiration of the period of time (4 years) stipulated in
the mortgage" if "the mortgagor should fail to redeem
this mortgage". In other words, the redemption of the
mortgage by the payment of the loan may bring about
the frustration of contemplated sale, hence, to hold
unqualifiedly that the whole of Exhibit 1, or even a part
thereof, is an absolute deed of sale would be to do
violence to the terms of the document it self.
Still other tokens drive home the same conviction. The
intimation by the Court of Appeals that the petitioner
"know, therefore, that the land subject of the patent
could not be alienated by express prohibition of law," is
an argument that the petitioner could not have
brazenly disregarded the law by intending Exhibit 1 to
be an absolute deed of sale. Its further observation
that "the stipulation under article VIII of the contract,
Exhibit '1' . . . clearly indicates that there was nothing
left to be done except the execution of the deed of
absolute sale," is a concession that no such sale has
yet been executed. Finally it will be recalled that under
Article VII of Exhibit 1, "within thirty (30) days after
date of execution of this agreement the party of the
first part shall file a motion before the Court of First
Instance of Balanga, Bataan, P.I., requesting
cancellation of homestead certificate of title No. 325
referred to in Article 1 hereof and the issuance, in lieu
thereof, of a certificate of title under the provisions of
Land Registration Act 496, as amended by Act 3901."
And by its Article IX it provides "That in the event the
contemplated motion under Article VII hereof is not
approved by the Court, the foregoing contract of sale
shall automatically become null and void." (Underlining
is mine.) We have nothing in the record to show that
the required motion was filed within thirty days or
thereafter, by Emiliana Ambrosio in life, or by her
successors-in-interest after her death. Indeed,
Homestead Certificate of Title No. 325, sought to be
substituted by another through the said motion, still
stands. It is, evident, therefore, that the projected sale
has and may never come into being, because under
Article IX of Exhibit 1, it became automatically null and
void. This view, incidentally, precludes further
consideration of the validity or invalidity of the sale
clause of Exhibit 1, as it will purely academic to dwell
upon the nature and effect of a contract that has
passed out of existence in the contemplation of the
parties.
Having reached the conclusion, upon its plain
language and unequivocal import, that Exhibit 1 is
essentially and fundamentally a mortgage upon the
improvements found on the questioned homestead,
with a conditional clause for the future sale of said
homestead and improvements which has become a
"dead twig" still attached to a living tree because the
condition has never been performed, I would, under
Articles 1281 and 1283 of the Civil Code, be otherwise
content in resting our decision of this aspect of the
case on this interpretation. But I do not propose to so
limit my inquiry in view of the fact that the Court of
Appeals points to contemporaneous and subsequent
circumstances, beyond the four corners of the
document, Exhibit 1, allegedly revelatory of petitioner's
concealed but evident intention to circumvent the law. I
may state, at the outset, that these circumstances are
fairly susceptible of legitimate explanations. The
appealed decision could not conceive of a man, of
petitioner's intelligence, who "would accept
improvements valued at only P860 as security for the
payment of a larger amount of P1,000." But we are
concerned with an assessed valuation which is not
always nor even frequently the value that it can
command in the market. To ignore this is to live in
monastic seclusion. The appealed decision would
imply from the fact that petitioner subsequently paid
the land taxes and from the further fact that Emiliana
never paid stipulated interest on the one thousand-
peso loan, that Exhibit 1 was meant to vest absolute
title irretrievably in the petitioner. It could hardly be
supposed at the time of the execution of Exhibit 1 that
the homesteader would fail to make these payments,
nor does it seem just to draw from these
circumstances, induced by Emiliana's own neglect,
deductions unfavorable to the petitioner. That the
petitioner went upon the possession of the questioned
property is not proof that he was even already the
would-be owner thereof, for as elsewhere stated, the
said possession came practically at the suggestion of
or at least with the consent of Emiliana Ambrosio as a
result of her failure to live up to her part of the bargain.
Finally, the Court of Appeals asked: "If the real
purpose was to mortgage the improvements only as
specified in article IV of the contract, why is it that in
article VIII thereof it was provided that in case of failure
to redeem the alleged mortgage the grantor would be
required to execute a de of absolute sale of the
property described therein for the same amount of the
Choco Notes

29
mortgage in favor of the grantee, and not of" the
improvements only'?" The precaution which the
petitioner took to have the sale clause of Exhibit I so
phrased that the said sale would not be affected until
after the expiration of the five-year period prohibited by
law, at which time the alienation of the homestead
would then have been perfectly legitimate, may not be
without significance to show petitioner's respect for
and intention to be on the side of the law. The very
mention of the word "sale" in the document in question
argues against any attempt at concealment, for if the
said document was intended as a cover and cloak of
an illegal alienation, then the reference to the contract
of sale therein was illtimed and foolhardy.
The question next at hand is whether or not the
mortgage constituted upon the improvement's of the
homestead is valid. It is, under express provisions of
section 116 of the Public Land Act, before and after its
amendment, reading pertinently that "the
improvements or crops on the land may be mortgaged
or pledged to qualified persons, associations, or
corporations." I find no occasion to dispute this
legislative policy however mistaken it may be. It is
sufficient to observe that what the law permits may be
done. Upon the other hand, I find no occasion to test
the legality of the sale provisions of Exhibit 1, as I have
heretofore said, this question is, in my opinion, moot.
Moreover, the petitioner, technically, is barred from
raising this question, as he did not appeal from and,
therefore, abided by the decision of the trial court
which outlawed this sale clause as violative of the
provisions of section 116 of the Public Land Act. This
part of the decision of the trial court was affirmed by
the Court of Appeals when the latter struck down
Exhibit 1 in its entirety and, even now, petitioner does
not complain against the destruction of Exhibit 1 with
respect to its sale clause. In other words, counsel for
petitioner concedes all along that the said sale clause
may be properly legislated out. As the mortgage
provisions of Exhibit 1 are independent of and
severable from the rest thereof, the same are perfectly
enforceable. Where a part of the contract is perfectly
valid and separable from the rest, the valid portion
should not be avoided. (Ollendorf vs. Abrahamson, 38
Phil., 585.)
The question yet to be answered is whether the
petitioner's possession of the question homestead was
in good faith so as to entitle him to reimbursement for
improvements introduced upon the land. The basis of
petitioner's possession was a verbal agreement with
the original homesteader whereby, for failure of the
latter to comply with her obligations to pay land taxes
and stipulated interest on the loan, the former
assumed the said obligations for the privilege of going
into possession of the property, introducing
improvements thereon, and thereafter being
reimbursed for the value of such improvements. The
petitioner did enter upon such possession, planted the
land to fruit trees valued at P5,000, according to him,
and P3,000, according to the trial judge. It should be
stated, in passing, that the Court of Appeals was
unable to belie this verbal agreement, although it was
of the opinion "that the trial court erred in giving
probative value to the testimony of the appellee with
reference to the alleged verbal agreement". Its reason
for the opinion is not because the testimony is untrue,
but because even if it were true, "it only tends to
corroborate the allegation that he acted in bad faith
when he took possession of the property and made
improvements thereon, because then he knew full well
that the homestead owner could not enter into an
agreement involving the future final and absolute
alienation of the homestead in his favor." As the said
opinion and the reason back of it does not involve a
question of strict fact, it is in our power to inquire into
its soundness. The weakness of the argument lies,
first, in its, (a) inconsistency and (b) in the
misconception of the legal principle involved:
inconsistency, because it considers entry of
possession, payment of land tax as facts tending to
show the real character of the transaction and as
evidencing bad faith on the part of the petitioner, but at
the same time it improperly rejects the verbal
agreement by which such facts are established. It is
clear that we cannot directly reject the verbal
agreement between the parties in so fat as it is
favorable to the petitioner. The misconception
proceeds from the erroneous legal conclusion that,
upon the facts, the good faith is attributable to the
petitioner alone and that Ambrosio was not to be
blamed for the prohibited alienation of the homestead,
as I shall presently proceed to discuss.
Choco Notes

30
In holding that the petitioner was a possessor in bad
faith, the decision sought to be reviewed first laid down
the premise that such possession is banned by law at
least for five years from the issuance of patent (section
116, Public Land Act), assumed that the petitioner had
knowledge of such law, and then drew the conclusion
that the petitioner was aware of the illegality of his
possession. We think that the assumption and
conclusion are precipitate. As observed in the
foregoing majority opinion-citing Manresa-knowledge
of a legal provision does not necessarily mean
knowledge of its true meaning and scope, or of the
interpretation which the courts may place upon it. In
this particular case, what section 116 of the Public
Land Act prohibits is the "incumbrance or alienation" of
land acquired thereunder within the period prescribed
therein. We may concede, as assumed by the
appealed decision, that the petitioner was cognizant of
said section 116, but this is not saying that petitioner
knew that his possession came under the phrase
"incumbrance or alienation" prohibited by law, and that
the petitioner, therefore, knew that his possession was
illegal. The import of the phrase "incumbrance or
alienation" is a subject upon which "men of reason
may reasonably differ," in the same way that we
ourselves have differed in the deliberation of this case.
It is not correct to assume that the petitioner had
knowledge of the illegality of his possession. The
contrary assumption, namely, that petitioner had no
idea of such illegality, would have been more in accord
with the experience of everyday, for petitioner would
not have invested money and labor in the land and
assumed obligations incumbent upon the homesteader
if he had even the least suspicion that all his efforts
would count for nothing and would in the end entangle
him in a mild scandal. As possession in bad faith does
not necessarily mean possession illegal under the law,
it being necessary that the possessor be aware of
such illegality, it follows that the petitioner's possession
of the homestead of the respondents was in good
faith. (Art. 433, Civil Code.) "Good faith is always
presumed, and the burden of proving bad faith on the
part of the possessor rests upon the person alleging it"
(article 434, Civil Code.) As a bona fide possessor,
and it being unquestioned that the improvements
introduced by him upon the land redounded to its
benefit, the petitioner is by law entitled to be paid for
the value of such improvements in the amount of
P3,000, as found by the trial judge. "Useful
expenditures shall be paid the possessor in good faith
with the same right of retention, the person who has
defeated him in his possession having the option of
refunding the amount of such expenditures or paying
him the increase in value which the thing has acquired
by reason thereof." ( Article 453, 2nd par., Civil Code).
The reimbursement in this particular case is the more
in order in view of the express undertaking of
respondent's predecessor-in-interest to pay therefor.
Even the equities of the case militate against the
respondents and in favor of the petitioner. There is a
concession that the petitioner's possession was
neither imposed upon nor wrested from the
homesteader; on the contrary, it came about by virtue
of a mutual agreement whereby the said homesteader
and the herein respondents were spared the burden of
paying for land taxes and stipulated interest and
extended the benefit of having their land improved on
condition that they pay the value of such
improvements upon redeeming the land. We also have
uncontradicted fact that P400 of the one thousand-
peso loan were given to the herein respondents and
the balance kept by their mother. They may not reap
and retain these benefits at the same time repudiate
and go back upon contractual obligations solemnly
entered into.
But let grant that the contract, Exhibit 1, is one of
absolute sale, as found by the Court of Appeals, what
then? As the land could not be alienated for five years
from the date of the issuance of the patent, the sale
was illegal and void because it was entered into in
violation of section 116 of the Public Land Act, as
amended. By whom was the law violated? Certainly,
not by Kasilag alone but by Ambrosio as well. Both are
presumed to know the law, and we cannot justly
charge Kasilag alone with that knowledge on the
alleged reason that Kasilag is rich and Ambrosio is
poor. Neither can we proceed on the bare assumption
that because Exhibit 1 was written in English it was
prepared by Kasilag as if he were the only English-
speaking person in the Province of Bataan where the
document was executed. Are we already living in the
midst of a communistic society that we shall have to
incline invariably the balance in favor of a litigant who
happens to be well-to-do, regardless of the merits of
the case? And to this end, shall we, by a series of
Choco Notes

31
assumptions and deductions, impute to a party malice
aforethought dishonesty and bad faith, in entering into
a transaction made in the open sun, publicly recorded
and whose effectiveness was even conditioned by the
approval of a court of justice? If so, then I dare say
that we have not profited by the admonition of Aristotle
in his Metaphysics centuries ago that "justice is a
virtue of the soul which discards party, friendship
and sentiment and is therefore always represented as
blind." There is a charm in rhetoric but its value in cool
judicial reasoning is nil.
And if as we are confidently told we should relax
the legal principle with reference to Ambrosio, because
she was "poor and ignorant," I am reluctant to believe
that she was ignorant of the condition against the
alienation inserted in all homestead patents, and my
knowledge of the Public Land Law, of the activities of
the Department and bureau charged with the
administration of public lands, gives me just the
contrary impression. Every homestead patent contains
that condition. Circulars and instructions and general
information have been issued in pursuance with law.
(Sec. 5, Act No. 2874; see also sec. 5, Comonwealth
Act No. 141.) I must presume that the Government
and its officials charged with the administration of
public lands have complied with the law and their
duties in this connection, and I cannot believe that
Ambrosio, when she alienated the property, was
unaware of the legal prohibition. Under the
circumstances, then, it is reasonable to conclude that
on the hypothesis that the document, Exhibit 1, was a
contract of absolute sale between Kasilag and
Ambrosio, both of them were guilty of infraction of the
law. If this is correct, what is the legal situation of the
parties?
Justinian, who, by his Corpus Juris Civiles, still speaks
through practically all the civil codes of Continental
Europe, considers both as having acted in good
faith. "Realmente," bluntly observes Manresa, "si los
dos que se encuentran en lucha sobre la propiedad
han provocado el conflicto por su voluntad; a ciencia y
paciencia del dueno del suelo, ante cuya vista las
obras se han ejecutado, y con conciencia, por parte
del que edifica o planta, de que el terreno no es suyo,
no hay razon alguna que abone derecho preferente en
favor de ninguno de los dos; deben, por tanto, tratarse
como si los dos hubiesen obrado de buena fe; la mala
fe del uno extingue y neutraliza, en justa reciprocidad,
la del otro." (Manresa, Codigo Civil segunda edicion
Tomo III pag. 203.) Article 364 of our Civil Code then
comes into play. "Where there has been bad faith, not
only on the part of the person who built, sewed, or
planted on another's land, but also on the part of the
owner of the latter, the rights of both shall be the same
as if they had acted in good faith. Bad faith on the part
of the owner is deemed to exist whenever the act has
been done in his presence, with his knowledge and
tolerance, and without opposition on his part." ( Article
364, Civil Code; see also arts. 1303, 1306 ibid.) The
codal section is evidently based upon the vulnerable
maxim of equity that one who comes into equity must
come with clean hands. A court which seeks to
enforce on the part of the defendant uprightness,
fairness, and conscientiousness also insists that, if
relief is to be granted, it must be to a plaintiff whose
conduct is not inconsistent with the standards he
seeks to have applied to his adversary.
Fundamenta justitiae sunt, ut ne cui noceatur, deinde
ut communi serviatur. I therefore concur in the result.
CONCEPCION, J ., dissenting:
In view of the findings of fact of the Court of Appeals,
which are final according to law, I dissent from the
majority opinion as to the legal denomination of the
contract really entered into by the petitioners and the
now deceased Emiliana Ambrosio.
The facts according to the decision of the Court of
Appeals are as follows:
On August 27, 1918, the deceased Emiliana
Ambrosio applied for the land in question as a
homestead, now known as lot No. 285 of the
Limay cadastral survey of Bataan, and the
application was approved on September 10,
1919. A final proof was submitted on
November 10, 1927 which was approved on
October 17, 1929. The homestead patent No.
16074 and homestead certificate of title No.
325 were issued in favor of the applicant on
June 11, 1931 which were recorded on June
26, 1931 in the office of registrar of deeds in
Choco Notes

32
accordance with the provisions of section 122
of Act 496.
"On or about May 16, 1932, the homestead owner,
Emiliana Ambrosio offered to sell the property to the
defendant and appellee, Marcial Kasilag. The latter,
upon examining her title found that it was a homestead
patent and knew, therefore, that the land subject of the
patent could not be alienated by express prohibition of
law, so he devised a means by which the proposed
sale might not appear in any document and had the
patentee, Emiliana Ambrosio, execute a public
instrument, Exhibit '1', purporting to be a mere
mortgage of the improvements thereon consisting of
four mango trees, fruit bearing; 110 hills of bamboo
trees, 1 tamarind, and 6 boga trees, with the
assessed value of P860, in consideration of the sum of
P1,000 alleged to have been loaned by the said
Kasilag to the said patentee, Emiliana Ambrosio. It
was expressly stipulated in that document that the
aforementioned amount should be paid within four and
a half years from the date of the instrument (May 16,
1932), the condition being that if she would fail to
redeem the alleged mortgage at the expiration of the
stipulated period, she would execute a deed of
absolute sale of the property therein described for the
same amount of the alleged mortgage (P1,000)
including all unpaid interest at the rate of 12 per cent
per annum in favor of the alleged mortgagee. It was
further stipulated therein that the said Emiliana should
pay all the taxes and assessment which might become
due on the land and improvements during the term of
the agreement and that within thirty days after the date
of the execution thereof she should file a motion
before the Court of First Instance of Bataan requesting
the cancellation of the homestead certificate No. 325
above referred to and the issuance in lieu thereof a
certificate of title under the provisions of the Land
Registration Act 496, as amended by Act 3901.
The lot in question was originally declared for
land tax purposes in the name of the
homestead (owner) Emiliana Ambrosio, and
assessed at P1,020 in 1933; but on May 22,
1934, the tax declaration was transferred in the
name of the appellee, Marcial Kasilag, and on
March 6, 1936 the assessed value was raised
to P2,180.
Emiliana, however, never paid any interest on
the alleged loan of P1,000 or paid taxes on the
land since the execution of the contract.
The evidence further discloses that the
appellant entered upon the actual possession
of the land and had been holding the same up
to the present time, having planted various
kinds of fruit trees valued according to him at
P5,000, and collected the products thereof for
his own exclusive benefit.
Relying upon the foregoing facts, the majority
contends that the contract executed by the parties was
one of mortgage, as per Exhibit 1, with a promise to
sell the land in question. I cannot hold to these rulings
of the majority, because the nature of the contract of
mortgage is inconsistent with the idea that the creditor
should immediately enter upon a possession of the
mortgaged land; that he should pay the land tax; that
he should accept as security something whose values
does not cover the amount of the loan sought to be
secured, for in this case the supposed loan was
P1,000, and what were mortgaged were only the
improvements consisting of 4 mango trees, 110 hills of
bamboo trees, 1 tamarind tree and 6 betelnut trees,
assessed at P860.
I believe that the contract which the parties intended to
execute is a promise to sell the land, for which reason
Ambrosio retained the right of ownership of the land
and its improvements while the deed of the promised
sale had not been executed. Under the terms of the
deed Exhibit 1, Kasilag could not be considered the
owner of the land, nor could he execute any act
promised upon the assumption of ownership, nor could
he alienate the same as he had no title to it. But the
parties, in consideration of the fact that Kasilag paid in
advance the price of the land and assumed the
obligation to pay the tax thereon, which Ambrosio
could not pay, agreed that Kasilag may enter upon the
enjoyment of the land until the promise to sell is
converted in fact into an absolute sale by the
execution of the corresponding deed by Ambrosio. It
was stipulated, however, that if the sale is not
approved by the Court, Kasilag would collect the
amount of P1,000 paid him as a mortgage credit, with
all the interest due and payable.
Choco Notes

33
Under these circumstances, the conclusion of law that
Kasilag acted in bad faith is not supported by the
established facts.
Wherefore, the plaintiffs are bound to comply with the
contract as heirs of Ambrosio, by executing in favor of
Kasilag the deed of sale of the land, but should the
sale, for any reason, be not approved, Kasilag may
collect the amount of P1,000 with all the interest
thereon, and may execute the judgment obtained by
him upon the land and all its improvements, deducting,
however, in his favor the value of the improvements
which he introduced upon the land in good faith.
In view of the foregoing, I am of the opinion that the
decision of the Court of Appeals should be reversed
and that another should be entered against the
respondents, requiring them to execute the deed of
sale of the land in favor of the petitioner, provided that
if the sale, for any reason, be not approved by the
court, the petitioner may execute his credit upon the
land and all its improvements, after deducting the
value of the improvements introduced by him upon the
land.
MORAN, J ., dissenting:
According to section 116 of Act No. 2874, as amended
by section 23 of Act No. 3517, "lands acquired under
the free patent or homestead provisions shall not be
subject to encumbrance or alienation from the date of
the approval of the application and for a term of five
years from and after the date of issuance of the patent
or grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the
expiration of said period."
About June 11, 1931, homestead patent No. 16074
was issued to Emiliana Ambrosio, now deceased. On
May 16, 1932 Emiliana Ambrosio offered the sale of
the said homestead to the herein petitioner, Marcial
Kasilag, and in view of the above-quoted legal
prohibition, the parties executed the document Exhibit
1, copied in the majority decision. The heirs of
Emiliana Ambrosio filed a complaint for the annulment
of the contract in the Court of First Instance of Bataan,
and from the judgment rendered by said court an
appeal was taken to the Court of Appeals, which held
that the true contract between the parties is one of
absolute sale, wherefore, it is null and void under the
already cited legal prohibition. Marcial Kasilag comes
to this court on certiorari, and this court reverses the
decision of the Court of Appeals.
The only question is as to the true contract between
the parties at the time of the execution of the deed
Exhibit 1; Kasilag contends that the contract is that set
out in the document Exhibit 1, that is, a mortgage of
the improvements of the homestead to secure a loan
of one thousand pesos given to Emiliana Ambrosio;
and the latter's heirs, in turn, contend that the contract
is one of the absolute sale of the homestead,
wherefore, it is null and void. The findings of the Court
of Appeals are as follows:
The pertinent facts as disclosed by the
evidence of record are as follows:
On August 27, 1918 the deceased, Emiliana
Ambrosio, applied for the land in question as a
homestead, not known as Lot No. 285 of the
Limay cadastral survey of Bataan, and the
application was approved on September 10,
1919. A final proof was submitted on
November 10, 1927 which was approved on
October 17, 1929. The homestead patent No.
16074 and homestead certificate of title No.
325 were issued in favor of the applicant on
June 11, 1931 which were recorded on June
26, 1931 in the office of the register of deeds in
accordance with the provisions of Section 122
of Act No. 496.
On or about May 16, 1932, the homestead
owner Emiliana Ambrosio offered to sell the
property to the defendant and appellee,
Marcial Kasilag. The latter, upon examining her
title found that it was a homestead patent and
knew, therefore, that the land subject of the
patent could not be alienated by express
prohibition of law, so he devised means by
which the proposed sale might not appear in
any document and had the patentee, Emiliana
Ambrosio, execute a public instrument, Exhibit
1, purporting to be a mere mortgage of the
improvements thereon consisting of four
Choco Notes

34
mango trees, fruit bearing; one hundred ten
hills of bamboo trees, one thousand and six
boga trees, with the assessed value of P860,
in consideration of the sum of P1,000 alleged
to have been loaned by the said Kasilag to the
said patentee Emiliana Ambrosio. It was
expressly stipulated in that document that the
aforementioned amount should be paid within
four and a half years from the date of the
instrument (May 16, 1932), the condition being
that if she failed to redeem the alleged
mortgage at the expiration of the stipulated
period, she would execute a deed of absolute
sale of the property therein described for the
same amount of the alleged mortgage
(P1,000) including all unpaid interest at the
rate of 12 per cent per annum in favor of the
alleged mortgagee. It was further stipulated
therein that the said Emiliana should pay all
the taxes and assessment which might
become due on the land and improvements
during the term of the agreement and that
within thirty days after the date of the execution
thereof she should file a motion before the
Court of First Instance of Bataan requesting
the cancellation of the homestead certificate
No. 325 above referred to and the issuance in
lieu thereof of a certificate of title under the
provisions of the Land Registration Act No.
496, as amended by Act No. 3901.
The lot in question was originally declared for
land tax purposes in the name of the
homestead owner, Emiliana Ambrosio, and
assessed at P1,020 in 1933; but on May 22,
1934, the tax declaration was transferred in the
name of the appellee, Marcial Kasilag, and on
March 6, 1936 the assessed value was raised
to P2,180.
Emiliana, however, never paid any interest on
the alleged loan of P1,000 or paid taxes on the
land since the execution of the contract.
The evidence further discloses that the
appellee entered upon the actual possession
of the land and had been holding the same up
to the present time, having planted various
kinds of fruit trees valued according to him at
P5,000, and collected the products thereof for
his own exclusive benefit.
Construing the contract, Exhibit 1, in the light
of all the foregoing facts and circumstances
under which it was executed in relation to the
subsequent acts of the contracting parties, we
are led to the inescapable conclusion that their
real intention was to execute an agreement of
absolute sale of the homestead together with
the improvements thereon. The stipulation
concerning an alleged mortgage in the
instrument is a mere devise to circumvent the
law which expressly prohibits the alienation or
encumbrance of the homestead during the
period of five years from the date of the
issuance of the homestead patent. (Sec. 116
of Act No. 2874 as amended by Act No. 3517.)
It is inconceivable, and, therefore, we refuse to
believe that the appellee, Marcial Kasilag,
being an intelligent man far above the average,
would accept improvements valued at only
P860 as security for the payment of a larger
amount of P1,000, the alleged loan. We
entertain no doubt that at the time the
execution of the contract, Exhibit 1, the
appellee knew that the homestead owner,
Emiliana Ambrosio, a poor ignorant woman,
was badly in need of money and that she was
determined to dispose of and alienate definitely
her homestead, as evidenced by the fact
testified to by Gavino Rodriguez as witness for
the said appellee that she actually offered to
sell the land to the latter. He also knew that
she would not be able to pay back to him such
a large amount with interest of 12 per cent per
annum because she had no other income
except what she would derive from the
homestead. Under such circumstances, there
is reason to believe that she was no longer
concerned with the form in which the contract
would be drawn, as long as could obtain the
amount of P1,000 which was agreeable to her
as the price of the homestead she offered to
sell to the appellee. This conclusion is
supported in part by the subsequent action of
Choco Notes

35
Emiliana in not paying any interest on the
alleged loan of P1,000 or the land taxes
thereon since the execution of the contract and
by the action of the appellee in declaring the
land for tax purposes in his own name as
owner thereof, notwithstanding that he had no
interest in the land, as he alleged, except in the
improvements only.
The contract of absolute sale was
consummated, because the grantor, Emiliana,
received full payment of the purchase price
disguised as a loan of P1,000 and placed the
grantee, Marcial Kasilag, in absolute
possession and control of the land conveyed to
him with all the improvements thereon. The
stipulation under article VIII of the contract,
Exhibit I, to the effect that the grantor would
herein described for the said amount of this
mortgage including all unpaid interest at the
rate of 12 per cent per annum in favor of the
mortgagee', clearly indicates that there was
nothing left to be done except the execution of
the deed of absolute sale, which is merely a
matter of form in contracts of this nature, which
was postponed until after the expiration of four
and a half years because by that time the
period of five years within which the property
could not be alienated nor encumbered in any
way, as provided by section 116 of Act No.
2874 as amended by Act No. 3517, supra,
would have already expired. If the real purpose
was to mortgage the improvements only as
specified in article VIII thereof it was provided
that in case of failure to redeem the alleged
mortgage the grantor would be required to
described therein for the same amount of the
mortgage in favor of the grantee, and not of
'the improvements only'? It is clear, therefore,
that the real contract under Exhibit 1, was one
of absolute sale and not a mortgage with future
sale.
In other words, although the document Exhibit 1 states
that it is a mortgage of the improvements, with a
stipulation regarding a future sale of the land in case of
failure to comply with the mortgage obligations, in
reality the true contract between the parties is one of
absolute sale in the light of the circumstances of the
case, among them the following:
First, Emiliana Ambrosio offered the sale, not the
mortgage, of her homestead to Marcial Kasilag, and it
is a fact found established by the Court of Appeals that
she was agreeable to the sum of one thousand pesos
as the price of the sale offered by her. If this is so, it is
unlikely that Kasilag would refuse the offer of sale of
the homestead and would accept in lieu thereof a
simple mortgage of the improvements, for the same
sum of one thousand pesos;
Second. In the deed it is stipulated that, if at the
expiration of the period of four and a half years, the
debtor should fail to redeem the mortgage, she would
execute in favor of the creditor, Marcial Kasilag, a
deed of absolute sale not only of the mortgaged
improvements but also of the land for the same
amount of the loan of one thousand pesos. This magic
conversion of the mortgage of the improvements into
an absolute sale of the land at the expiration of four
and a half years and without any additional
consideration can only mean that the two contracts are
one and the same thing, and that the first has been
availed of to go around the legal prohibition. The
scheme is very obvious, and to make any attempt to
reconcile it with good faith is simply to fall into it.
The mortgage of the improvements could not have
been intended because the supposed loan which it
guaranteed was the same price of the stipulated sale
to be later executed, and further because Kasilag
knew, according to the findings of fact of the Court of
Appeals, that Emiliana Ambrosio was a poor and
ignorant woman who was not in a position to return to
one thousand pesos;
Third. Kasilag had always considered the contract as
one of sale of the land and not as a mortgage of the
improvements, because he put the tax declaration of
the land in his name, paid the corresponding land tax,
took possession of the land, received the fruits thereof
for his exclusive use, and introduced thereon
permanent improvements, one of them being a
summer house, all of which were valued at about five
Choco Notes

36
thousand pesos. It is not an attribute of a contract of
mortgage that the creditor should take possession of
the mortgaged property, or that he should pay the
taxes thereon. Kasilag would not spend five thousand
pesos for permanent improvements if he knew that his
possession was precarious.
Fourth. In the document it is stipulated that the debtor
would pay interest, but she did not pay any, and the
alleged mortgage was not foreclosed thereby, which
shows that the stipulation was nothing but a ruse.
Fifth. The deed Exhibit 1 was drawn by Kasilag,
because it is in English, and the other party is a poor
and ignorant woman, wherefore, all doubts and
uncertainties arising therefrom should be resolved
against Kasilag. It is to noted that in this document are
phrases indicative of the real contract between the
parties. For instance: in clause IV the word paid and
not loaned is used in referring to the loan of one
thousand pesos; and clause IX of the document states
"the foregoing contract of sale."
Under all these circumstances, the irresistible
conclusion is that the real contract between the parties
is an absolute sale, and that the contract of mortgage
was made to appear in the document Exhibit 1 for the
sole purpose of defeating the legal prohibition.
Nevertheless, the majority of this Court, brushing aside
the findings of fact made by the Court of Appeals
without stating its reasons therefor, holds as to the
document Exhibit 1, that "as the terms thereof are
clear and leave no room for doubt, it should be
interpreted according to the literal meaning of its
clauses." I have already shown in speaking of the
second circumstance, that the context itself of the
document Exhibit 1 discloses strong tokens that the
contract between the parties was one of the sale and
not of mortgage. Moreover, the rule relied upon by the
majority is only applicable in the absence of any
allegation that the document does not express the real
contract between the parties. Under section 285, No.
1, of Act No. 190, a document, however clear its
conditions may be, may and should be rejected when
it is alleged and shown by evidence aliunde that it
does not express the true intent of the parties. We
have often considered as document, by its terms a
contract of absolute sale, as one of mortgage because
it has been so alleged and established by convincing
oral evidence. (Cuyugan vs. Santos, 34 Phil., 100;
Villa vs. Santiago, 38 Phil., 157; Laureano vs. Kilayco,
34 Phil., 148; Cuyugan vs. Santos, 39 Phil., 970;
Rodriguez vs. Pamintuan, 37 Phil., 876; see also
Manalovs. Gueco, 42 Phil., 925; Gatmaitan vs.
Nepumuceno, 42 Phil., 295.)
The majority decision does not only pass over the
findings of fact made by the Court of Appeals, but
further, gives weight to certain facts which said court
finds not to have been established. For instance, we
have the following passages the majority decision:
One year after the execution of the aforequoted deed,
that is, in 1933, it came to pass that Emiliana
Ambrosio was unable to pay the stipulated interest as
well as the tax on the land and its improvements. For
this reason, she and the petitioner entered into another
verbal contract whereby she conveyed to the latter the
possession of the land on condition that the latter
would not collect the interest on the loan, would attend
to the payment of the land tax, would benefit by the
fruits of the land, and would introduce improvements
thereon. . . . .
. . . This stipulation was verbally modified by
the same parties after the expiration of one
year, in the sense that the petitioner would
take possession of the land and would benefit
by the fruits thereof on condition that he would
condone the payment of interest upon the loan
and he would attend to the payment of the land
tax. . . . .
These two paragraphs state as an established fact the
supposed verbal contract between the parties which
Kasilag tried to prove by his testimony. However, the
Court of Appeals expressly held: "We believe,
however, that the trial court erred in giving probative
value to the testimony of the appellee (Marcial Kasilag)
with reference to the alleged verbal agreement with
the deceased, Emiliana Ambrosio, and based thereon
the conclusion that the appellee acted in good faith,"
(Words in parenthesis are mine.)
Rule 47, paragraph (b), of our Rules, provides
expressly that in appeals to this court on certiorari,
Choco Notes

37
"only questions of law may be raised and must be
distinctly set forth." And we have held in various
decisions that in passing upon the legal conclusions of
the Court of Appeals, we shall abide by the findings of
fact of said court.
I, moreover, find certain ambiguities in the majority
decision, for while it states on the one hand that the
verbal contract had for its purpose the "alteration of the
mortgage contract clearly entered into, converting the
latter into a contract of antichresis," (underscoring
mine) thereby implying that the mortgage contract was
abandoned by the parties and ceased to exist, in the
dispositive part of its decision, the majority holds that
the mortgage of the improvements is valid and binding,
and gives to the respondents the right to "redeem the
mortgage of the improvements by paying to the
petitioner within three months the amount of P1,000 . .
. ." It, therefore, requires compliance with a contract
that has ceased to exist.
While on the one hand the majority states that the
aforesaid verbal contract is one of antichresis and that
it is void, on the other hand, it gives force thereto by
holding that the interest on the loan of one thousand
pesos is sufficiently "set off by the value of the fruits of
the mortgaged improvements which the petitioner
received." And, furthermore, why should the interest
be set off against the fruits of the improvements only
and not against those of the entire land? And if the
verbal contract of antichresis is void, why is Kasilag
not required to render an accounting of the fruits of the
land received by him which may exceed the total
amount of interest, taxes and even the principal itself?
The majority states that Kasilag, in taking possessions
of the homestead, receiving its fruits and introducing
improvements thereon, did so under the void contract
of antichresis, and did so in good faith as he was
excusably unaware of the legal provision which
prohibits the incumbrance of the homestead within the
period of five years. Whether Kasilag was aware or
unaware of the legal prohibition is again a factual
question resolved by the Court of Appeals as follows:
"the appellee ( Marcial Kasilag) was also aware of
these provisions which were incorporated in the
homestead patent shown to him at the beginning of
the transaction" (Words in parenthesis are mine). I do
not understand how we can disturb this factual finding.
I found, moreover, that in the majority decision it is
ordered that, if the heirs of Emiliana Ambrosio cannot
pay the value of the permanent improvements
introduced by Marcial Kasilag, the latter may have the
homestead by paying to them its price in the market.
The improvements were appraised by the trial court at
three thousand pesos, and as the heirs of Emiliana
Ambrosio probably inherited nothing from the latter but
poverty, they will eventually be unable to pay the said
amount and, in the last analysis, will lose the
homestead of their mother. The practical effect,
therefore, of the majority decision is that the heirs of
Emiliana Ambrosio will be deprived of the homestead
by virtue of a void antichretic obligation contracted by
her within the period of five years from the granting of
the homestead. And this, at least, is in violation of the
spirit of section 116 of the Homestead Act.
I have other reasons which I need not set out to bring
this dissent to a close. But before I conclude, I should
like to state that the Homestead Act has been enacted
for the welfare and protection of the poor. The law
gives a needy citizen a piece of land where he may
build a modest house for himself and family and plant
what is necessary for subsistence and for the
satisfaction of life's other needs. The right of the
citizens to their homes and to the things necessary for
their subsistence is as vital as the right to life itself.
They have a right to live with a certain degree of
comfort as become human beings, and the State
which looks after the welfare of the people's happiness
is under a duty to safeguard the satisfaction of this
vital right. Moreover, a man with a home and a means
of subsistence is a lover of peace and order and will
profess affection for his country, whereas one without
a home and in penury is not only a social parasite but
also a dangerous element in the social order. The
Homestead Act at once aims at the promotion of
wholesome and happy citizenship and the wiping out
of the germs of social discontent found everywhere.
Considering the social and economic ends of the
Homestead Act, the courts should exercise supreme
care and strict vigilance towards faithful compliance
with all its benign provisions and against the defeat,
Choco Notes

38
directly or indirectly, of its highly commendable
purposes. And it is my firm conviction that where, as in
the present case, a rich and clever man attempts to
wrest a homestead granted to a poor and ignorant
woman, the slightest tokens of illegality should be
enough to move the courts to apply the strong arm of
the law.
I dissent from the majority decision and vote for the
affirmance of the decision of the Court of Appeals.
AVANCEA, C.J ., dissenting:
I concur in this dissenting opinion of Justice Moran.
People vs Donato
G.R. No. 79269 June 5, 1991
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. PROCORO J. DONATO, in his official
capacity as Presiding Judge, Regional Trial Court,
Branch XII, Manila; RODOLFO C. SALAS, alias
Commander Bilog, respondents.
The Solicitor General for petitioner.
Jose Suarez, Romeo Capulong, Efren Mercado and
Movement of Attorneys for Brotherhood, Integrity,
Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J .:p
The People of the Philippines, through the Chief State
Prosecutor of the Department of Justice, the City
Fiscal of Manila and the Judge Advocate General, filed
the instant petition for certiorari and prohibition, with a
prayer for restraining order/preliminary injunction, to
set aside the order of respondent Judge dated July 7,
1987 granting bail to the accused Rodolfo
Salas alias "Commander Bilog" in Criminal Case No.
86-48926 for Rebellion,
1
and the subsequent Order
dated July 30, 1987 granting the motion for
reconsideration of 16 July 1987 by increasing the bail
bond from P30,000.00 to P50,000.00 but denying
petitioner's supplemental motion for reconsideration of
July 17, 1987 which asked the court to allow petitioner to
present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether
the right to bail may, under certain circumstances, be
denied to a person who is charged with an otherwise
bailable offense, and whether such right may be
waived.
The following are the antecedents of this petition:
In the original Information
2
filed on 2 October 1986 in
Criminal Case No. 86-48926 of the Regional Trial Court
of Manila, later amended in an Amended
Information
3
which was filed on 24 October 1986, private
respondent Rodolfo Salas, alias"Commander Bilog", and
his co-accused were charged for the crime of rebellion
under Article 134, in relation to Article 135, of the Revised
Penal Code allegedly committed as follows:
That in or about 1968 and for some
time before said year and continuously
thereafter until the present time, in the
City of Manila and elsewhere in the
Philippines, the Communist Party of
the Philippines, its military arm, the
New People's Army, its mass infiltration
network, the National Democratic Front
with its other subordinate organizations
and fronts, have, under the direction
and control of said organizations'
leaders, among whom are the
aforenamed accused, and with the aid,
participation or support of members
and followers whose whereabouts and
identities are still unknown, risen
publicly and taken arms throughout the
country against the Government of the
Republic of the Philippines for the
purpose of overthrowing the present
Government, the seat of which is in the
City of Manila, or of removing from the
allegiance to that government and its
laws, the country's territory or part of it;
Choco Notes

39
That from 1970 to the present, the
above-named accused in their
capacities as leaders of the
aforenamed organizations, in
conspiracy with, and in support of the
cause of, the organizations
aforementioned, engaged themselves
in war against the forces of the
government, destroying property or
committing serious violence, and other
acts in the pursuit of their unlawful
purpose, such as . . .
(then follows the enumeration of
specific acts committed before and
after February 1986).
At the time the Information was filed the private
respondent and his co-accused were in military
custody following their arrest on 29 September 1986 at
the Philippine General Hospital, Taft Ave., Manila; he
had earlier escaped from military detention and a cash
reward of P250,000.00 was offered for his
capture.
4

A day after the filing of the original information, or on 3
October 1986, a petition for habeas corpus for private
respondent and his co-accused was filed with this
Court
5
which, as shall hereafter be discussed in detail,
was dismissed in Our resolution of 16 October 1986 on
the basis of the agreement of the parties under which
herein private respondent "will remain in legal custody
and will face trial before the court having custody over his
person" and the warrants for the arrest of his co-accused
are deemed recalled and they shall be immediately
released but shall submit themselves to the court having
jurisdiction over their person.
On November 7, 1986 , private respondent filed with
the court below a Motion to Quash the Information
alleging that: (a) the facts alleged do not constitute an
offense; (b) the Court has no jurisdiction over the
offense charged; (c) the Court has no jurisdiction over
the persons of the defendants; and (d) the criminal
action or liability has been extinguished,
6
to which
petitioner filed an Opposition
7
citing, among other
grounds, the fact that in the Joint Manifestation and
Motion dated October 14, 1986, in G.R. No. 76009,
private respondent categorically conceded that:
xxx xxx xxx
Par. 2 (B) Petitioner Rodolfo Salas
will remain in legal custody and face
trial before the court having custody
over his person.
In his Order of March 6, 1987,
8
respondent Judge
denied the motion to quash.
Instead of asking for a reconsideration of said Order,
private respondent filed on 9 May 1987 a petition for
bail,
9
which herein petitioner opposed in an Opposition
filed on 27 May 1987
10
on the ground that since rebellion
became a capital offense under the provisions of P.D.
Nos. 1996, 942 and 1834, which amended Article 135 of
the Revised Penal Code, by imposing the penalty
of reclusion perpetua to death on those who promote,
maintain, or head a rebellion the accused is no longer
entitled to bail as evidence of his guilt is strong.
On 5 June 1987 the President issued Executive Order
No. 187 repealing, among others, P.D. Nos. 1996, 942
and 1834 and restoring to full force and effect Article
135 of the Revised Penal Code as it existed before the
amendatory decrees. Thus, the original penalty for
rebellion, prision mayor and a fine not to exceed
P20,000.00, was restored.
Executive Order No. 187 was published in the Official
Gazette in its June 15, 1987 issue (Vol. 83, No. 24)
which was officially released for circulation on June 26,
1987.
In his Order of 7 July 1987
11
respondent Judge, taking
into consideration Executive Order No. 187, granted
private respondent's petition for bail, fixed the bail bond at
P30,000.00 and imposed upon private respondent the
additional condition that he shall report to the court once
every two (2) months within the first ten (10) days of
every period thereof. In granting the petition respondent
Judge stated:
. . . There is no more debate that with
the effectivity of Executive Order No.
187, the offense of rebellion, for which
accused Rodolfo Salas is herein
charged, is now punishable with the
Choco Notes

40
penalty ofprision mayor and a fine not
exceeding P20,000.00, which makes it
now bailable pursuant to Section 13,
Article III, 1986 Constitution and
Section 3, Rule 114, 1985 Rules of
Criminal Procedure. Unlike the old rule,
bail is now a matter of right in non-
capital offenses before final judgment.
This is very evident upon a reading of
Section 3, Rule 114, aforementioned,
in relation to Section 21, same rule. In
view, therefore, of the present
circumstances in this case, said
accused-applicant is now entitled to
bail as a matter of right inasmuch as
the crime of rebellion ceased to be a
capital offense.
As to the contention of herein petitioner that it would
be dangerous to grant bail to private respondent
considering his stature in the CPP-NPA hierarchy,
whose ultimate and overriding goal is to wipe out all
vestiges of our democracy and to replace it with their
ideology, and that his release would allow his return to
his organization to direct its armed struggle to topple
the government before whose courts he invokes his
constitutional right to bail, respondent Judge replied:
True, there now appears a clash
between the accused's constitutional
right to bail in a non-capital offense,
which right is guaranteed in the Bill of
Rights and, to quote again the
prosecution, "the existence of the
government that bestows the right, the
paramount interest of the state."
Suffice to state that the Bill of Rights,
one of which is the right to bail, is a
"declaration of the rights of the
individual, civil, political and social and
economic, guaranteed by the
Constitution against impairment or
intrusion by any form of governmental
action. Emphasis is placed on the
dignity of man and the worth of
individual. There is recognition of
certain inherent and inalienable rights
of the individual, which the government
is prohibited from violating"
(Quisumbing-Fernando, Philippine
Constitutional Law, 1984 Edition, p.
77). To this Court, in case of such
conflict as now pictured by the
prosecution, the same should be
resolved in favor of the individual who,
in the eyes of the law, is alone in the
assertion of his rights under the Bill of
Rights as against the State. Anyway,
the government is that powerful and
strong, having the resources,
manpower and the wherewithals to
fight those "who oppose, threathen
(sic) and destroy a just and orderly
society and its existing civil and
political institutions." The prosecution's
fear may or may not be founded that
the accused may later on jump bail and
rejoin his comrades in the field to sow
further disorders and anarchy against
the duly constituted authorities. But,
then, such a fear can not be a reason
to deny him bail. For the law is very
explicit that when it comes to bailable
offenses an accused is entitled as a
matter of light to bail. Dura est lex sed
lex.
In a motion to reconsider
12
the above order filed on 16
July 1987, petitioner asked the court to increase the bail
from P30,000.00 to P100,000.00 alleging therein that per
Department of Justice Circular No. 10 dated 3 July 1987,
the bail for the, provisional release of an accused should
be in an amount computed at P10,000.00 per year of
imprisonment based on the medium penalty imposable
for the offense and explaining that it is recommending
P100,000.00 because the private respondent "had in the
past escaped from the custody of the military authorities
and the offense for which he is charged is not an ordinary
crime, like murder, homicide or robbery, where after the
commission, the perpetrator has achieved his end" and
that "the rebellious acts are not consummated until the
well-organized plan to overthrow the government through
armed struggle and replace it with an alien system based
on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental
motion for reconsideration
13
indirectly asking the court
Choco Notes

41
to deny bail to the private respondent and to allow it to
present evidence in support thereof considering the
"inevitable probability that the accused will not comply
with this main condition of his bail to appear in court
for trial," a conclusion it claims to be buttressed "by the
following facts which are widely known by the People of
the Philippines and which this Honorable Court may have
judicial notice of:
1. The accused has evaded the
authorities for thirteen years and was
an escapee from detention when
arrested;
2. He was not arrested at his residence
as he had no known address;
3. He was using the false name
"Manuel Mercado Castro" at the time of
his arrest and presented a Driver's
License to substantiate his false
identity;
4. The address he gave "Panamitan,
Kawit, Cavite," turned out to be also a
false address;
5. He and his companions were on
board a private vehicle with a declared
owner whose identity and address
were also found to be false;
6. Pursuant to Ministry Order No. 1-A
dated 11 January 1982 , a reward of
P250,000.00 was offered and paid for
his arrest,
which "clearly indicate that the accused does not
entertain the slightest intention to appear in court for
trial, if released." Petitioner further argues that the
accused, who is the Chairman of the Communist Party
of the Philippines and head of its military arm, the
NPA, together with his followers, are now engaged in
an open warfare and rebellion against this government
and threatens the existence of this very Court from
which he now seeks provisional release," and that
while he is entitled to bail as a matter of right in view of
Executive Order No. 187 which restored the original
penalty for rebellion under Article 135 of the Revised
Penal Code, yet, when the interest of the State
conflicts with that of an individual, that of the former
prevails for "the right of the State of self-preservation is
paramount to any of the rights of an individual
enshrined in the Bill of Rights of the Constitution."
Petitioner further invokes precedents in the United
States of America holding "that there is no absolute
constitutional barrier to detention of potentially
dangerous resident aliens pending deportation
proceedings,
14
and that an arrestee may be incarcerated
until trial as he presents a risk of flight;
15
and sustaining a
detention prior to trial of arrestee charged with serious
felonies who are found after an adversary hearing to
pose threat to the safety of individuals and to the
community which no condition of release can dispel.
16

On 30 July 1987 respondent Judge handed down the
Order
17
adverted to in the introductory portion of this
decision the dispositive portion of which reads:
WHEREFORE, in the light of the
foregoing considerations, the Court
finds the "supplemental" motion for
reconsideration to be without merit and
hereby denies it but finds the first
motion for reconsideration to be
meritorious only insofar as the amount
of bail is concerned and hereby
reconsiders its Order of July 7, 1987
only to increase the amount of bail
from P30,000.00 to P50,000.00,
subject to the approval of this Court,
and with the additional condition that
accused Rodolfo Salas shall report to
the court once every two (2) months
within the first ten (10) days of every
period thereof (Almendras vs. Villaluz,
et al., L-31665, August 6, 1975, 66
SCRA 58).
In denying the supplemental motion for
reconsideration the respondent Judge took into
account the "sudden turn-about" on the part of the
petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the
private respondent to bail but merely asked to increase
the amount of bail; observed that it is only a reiteration
of arguments in its opposition to the petition for bail of
Choco Notes

42
25 May 1987; asserted that the American precedents
are not applicable since the cases involved deportation
of aliens and, moreover, the U.S. Federal Constitution
does not contain a proviso on the right of an accused
to bail in bailable offenses, but only an injunction
against excessive bail; and quoted the concurring
opinion of the late Justice Pedro Tuason in the cases
of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs.
Montesa, L-4964 and Angeles vs. Abaya, L-5108,
October 11, 1951, 90 Phil, 172.
Unable to agree with said Order, petitioner
commenced this petition submitting therein the
following issues:
THE HONORABLE RESPONDENT
JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF
DISCRETION AND IN EXCESS OF
HIS JURISDICTION, AND IN TOTAL
DISREGARD OF THE PREVAILING
REALITIES, WHEN HE DENIED
PETITIONER'S SUPPLEMENTAL
MOTION FOR RECONSIDERATION
WITH PRAYER TO BE GIVEN THE
OPPORTUNITY TO ADDUCE
EVIDENCE IN SUPPORT OF ITS
OPPOSITION TO THE GRANT OF
BAIL TO THE RESPONDENT
RODOLFO SALAS.
THE HONORABLE RESPONDENT
JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF
DISCRETION AND IN EXCESS OF
HIS JURISDICTION WHEN HE
GRANTED BAIL TO THE
RESPONDENT RODOLFO SALAS.
in support of which petitioner argues that private
respondent is estopped from invoking his right to bail,
having expressly waived it in G.R. No. 76009 when he
agreed to "remain in legal custody and face trial before
the court having custody of his person" in
consideration of the recall of the warrant of arrest for
his co-petitioners Josefina Cruz and Jose Concepcion;
and the right to bail, even in non-capital offenses, is
not absolute when there is prima facie evidence that
the accused is a serious threat to the very existence of
the State, in which case the prosecution must be
allowed to present evidence for the denial of bail.
Consequently, respondent Judge acted with grave
abuse of discretion when he did not allow petitioner to
present all the evidence it may desire to support its
prayer for the denial of bail and when he declared that
the State has forfeited its right to do so since during all
the time that the petition for bail was pending, it never
manifested, much less hinted, its intention to adduce
such evidence. And that even if release on bail may be
allowed, respondent judge, in fixing the amount of bail
at P50,000.00 (originally P30,000.00 only), failed to
take into account the lengthy record of private
respondents' criminal background, the gravity of the
pending charge, and the likelihood of flight.
18

In Our resolution of 11 August 1987
19
We required the
respondents to comment on the petition and issued a
Temporary Restraining Order ordering respondent Judge
to cease and desist from implementing his order of 30
July 1987 granting bail to private respondent in the
amount of P50,000.00.
In his Comment filed on 27 August 1987,
20
private
respondent asks for the outright dismissal of the petition
and immediate lifting of the temporary restraining order
on the following grounds:
I
RESPONDENT SALAS NEVER
WAIVED HIS RIGHT TO BAIL;
NEITHER IS HE ESTOPPED FROM
ASSERTING SAID RIGHT. ON THE
CONTRARY IT IS PETITIONER WHO
IS ESTOPPED FROM RAISING THE
SAID ISSUE FOR THE FIRST TIME
ON APPEAL.
II
RESPONDENT SALAS ENJOYS NOT
ONLY THE CONSTITUTIONAL RIGHT
TO BE PRESUMED INNOCENT BUT
ALSO THE RIGHT TO BAIL.
III
Choco Notes

43
RESPONDENT SALAS IS NOT
CHARGED WITH A CAPITAL
OFFENSE (RECLUSION PERPETUA),
HENCE HE HAS THE RIGHT TO BAIL
AS MANDATED BY THE
CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987
DENYING PETITIONER
OPPORTUNITY TO PRESENT
EVIDENCE IS CORRECT.
PETITIONER'S ALLEGED RIGHT TO
PRESENT EVIDENCE IS NON-
EXISTENT AND/OR HAD BEEN
WAIVED.
V
THE ISSUANCE OF A TEMPORARY
RESTRAINING ORDER IN THIS
CASE VIOLATES NOT ONLY
RESPONDENT SALAS' RIGHT TO
BAIL BUT ALSO HIS OTHER
CONSTITUTIONAL RIGHT TO DUE
PROCESS.
We required the petitioner to reply to the comment of
private respondent.
21
The reply was filed on 18
September 1987.
22

In Our resolution of 15 October 1987
23
We gave due
course to the petition and required the parties to file
simultaneously their memoranda within twenty days from
notice.
In their respective manifestations and motions dated 5
November
24
and 23 November 1987
25
petitioner and
private respondents asked to be excused from filing their
Memoranda and that the petition and reply be considered
as the Memorandum for petitioner and the Comment as
the Memorandum for private respondent, which We
granted in Our resolution of 19 November 1987
26
and 1
December 1987,
27
respectively.
In Our resolution of 14 September 1989 We required
the Solicitor General to express his stand on the
issues raised in this petitions,
28
which he complied with
by filing his Manifestation on 30 May 1990
29
wherein he
manifests that he supports the petition and submits that
the Order of respondent Judge of July 7, July 17 and July
30, 1987 should be annulled and set aside asserting that
private respondent had waived the light to bail in view of
the agreement in G.R. No. 76009; that granting bail to
him is accepting wide-eyed his undertaking which he is
sure to break; in determining bail, the primary
consideration is to insure the attendance of the accused
at the trial of the case against him which would be
frustrated by the "almost certainty that respondent Salas
will lump bail of whatever amount"; and application of the
guidelines provided for in Section 10 of Rule 114, 1985
Rules on Criminal Procedure on the amount of bail
dictates denial of bail to private respondent. The Solicitor
General likewise maintains that the right of the petitioner
to hearing on the application of private respondent for bail
cannot be denied by respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the
amended Informations for rebellion and the application
for bail were filed before the court below the penalty
imposable for the offense for which the private
respondent was charged was reclusion perpetua to
death. During the pendency of the application for bail
Executive Order No. 187 was issued by the President,
by virtue of which the penalty for rebellion as originally
provided for in Article 135 of the Revised Penal Code
was restored. The restored law was the governing law
at the time the respondent court resolved the petition
for bail.
We agree with the respondent court that bail cannot be
denied to the private respondent for he is charged with
the crime of rebellion as defined in Article 134 of the
Revised Penal Code to which is attached the penalty
of prision mayor and a fine not exceeding
P20,000.00.
30
It is, therefore, a bailable offense under
Section 13 of Article III of the 1987 Constitution which
provides thus:
Sec. 13. All persons, except those
charged with offenses punishable
by reclusion perpetua when evidence
Choco Notes

44
of guilt is strong, shall, before
conviction, be bailable by sufficient
sureties, or be released on
recognizance as may be prescribed by
law. The right to bail shall not be
impaired even when the privilege of the
writ of habeas corpus is suspended.
Excessive bail shall not be required.
Section 3, Rule 114 of the Rules of Court, as
amended, also provides:
Bail, a matter of right: exception. All
persons in custody shall, before final
conviction, be entitled to bail as a
matter of right, except those charged
with a capital offense or an offense
which, under the law at the time of its
commission and at the time of the
application for bail, is punishable
by reclusion perpetua, when evidence
of guilt is strong.
Therefore, before conviction bail is either a matter of
right or of discretion. It is a matter of right when the
offense charged is punishable by any penalty lower
than reclusion perpetua.
31
To that extent the right is
absolute.
32

And so, in a similar case for rebellion, People
vs. Hernandez, et al., 99 Phil. 515, despite the fact that
the accused was already convicted, although
erroneously, by the trial court for the complex crime of
rebellion with multiple murders, arsons and robberies,
and sentenced to life imprisonment, We granted bail in
the amount of P30,000.00 during the pendency of his
appeal from such conviction. To the vigorous stand of
the People that We must deny bail to the accused
because the security of the State so requires, and
because the judgment of conviction appealed from
indicates that the evidence of guilt of Hernandez is
strong, We held:
. . . Furthermore, individual freedom is
too basic, too transcendental and vital
in a republican state, like ours, to be
derived upon mere general principles
and abstract consideration of public
safety. Indeed, the preservation of
liberty is such a major preoccupation of
our political system that, not satisfied
with guaranteeing its enjoyment in the
very first paragraph of section (1) of the
Bill of Rights, the framers of our
Constitution devoted paragraphs (3),
(4), (5), (6), (7), (8), (11), (12), (13),
(14), (15), (16), (17), (18), and (21) of
said section (1) to the protection of
several aspects of freedom.
The 1987 Constitution strengthens further the right to
bail by explicitly providing that it shall not be impaired
even when the privilege of the writ of habeas corpus is
suspended. This overturns the Court's ruling in Garcia-
Padilla vs. Enrile, et al., supra., to wit:
The suspension of the privilege of the
writ of habeas corpus must, indeed,
carry with it the suspension of the right
to bail, if the government's campaign to
suppress the rebellion is to be
enhanced and rendered effective. If the
right to bail may be demanded during
the continuance of the rebellion, and
those arrested, captured and detained
in the course thereof will be released,
they would, without the least doubt,
rejoin their comrades in the field
thereby jeopardizing the success of
government efforts to bring to an end
the invasion, rebellion or insurrection.
Upon the other hand, if the offense charged is
punishable by reclusion perpetua bail becomes a
matter of discretion. It shall be denied if the evidence
of guilt is strong. The court's discretion is limited to
determining whether or not evidence of guilt is
strong.
33
But once it is determined that the evidence of
guilt is not strong, bail also becomes a matter of right.
In Teehankee vs. Director of Prisons, supra., We held:
The provision on bail in our
Constitution is patterned after similar
provisions contained in the Constitution
of the United States and that of many
states of the Union. And it is said that:
Choco Notes

45
The Constitution of the
United States and the
constitution of the many
states provide that all
persons shall be
bailable by sufficient
sureties, except for
capital offenses, where
the proof is evident or
the presumption of guilt
is great, and, under
such provisions, bail is
a matter of right which
no court or judge can
properly refuse, in all
cases not embraced in
the exceptions. Under
such provisions bail is a
matter of right even in
cases of capital
offenses, unless the
proof of guilt is evident
or the presumption
thereof is great!
34

Accordingly, the prosecution does not have the right to
present evidence for the denial of bail in the instances
where bail is a matter of right. However, in the cases
where the grant of bail is discretionary, due process
requires that the prosecution must be given an
opportunity to present, within a reasonable time, all the
evidence that it may desire to introduce before the
court should resolve the motion for bail.
35

We agree, however, with petitioner that it was error for
the respondent court to fix the bond at P30,000.00,
then later at P50,000.00 without hearing the
prosecution. The guidelines for the fixing of the
amount of bail provided for in Section 10 of Rule 114
of the Rules of Court are not matters left entirely to the
discretion of the court. As We stated in People
vs. Dacudao, et al., 170 SCRA, 489, 495:
Certain guidelines in the fixing of a
bailbond call for the presentation of
evidence and reasonable opportunity
for the prosecution to refute it. Among
them are the nature and circumstances
of the crime, character and reputation
of the accused, the weight of the
evidence against him, the probability of
the accused appearing at the trial,
whether or not the accused is a fugitive
from justice, and whether or not the
accused is under bond in other case. . .
.
In the instant case petitioner has sufficiently made out
allegations which necessitate a grant of an opportunity
to be heard for the purpose of determining the amount
of bail, but not for the denial thereof because aforesaid
Section 10 of Rule 114 does not authorize any court to
deny bail.
II.
It must, however, be stressed that under the present
state of the law, rebellion is no longer punishable
by prision mayor and fine not exceeding P20,000.00.
Republic Act No. 6968 approved on 24 October 1990
and which took effect after publication in at least two
newspapers of general circulation, amended, among
others, Article 135 of the Revised Penal Code by
increasing the penalty for rebellion such that, as
amended, it now reads:
Article 135. Penalty for rebellion,
insurrection or coup d'etat. Any
person who promotes, maintains, or
heads a rebellion or insurrection shall
suffer the penalty of reclusion
perpetua.
Any person merely participating or
executing the commands of others in a
rebellion or insurrection shall suffer the
penalty of reclusion perpetua.
xxx xxx xxx
This amendatory law cannot apply to the private
respondent for acts allegedly committed prior to its
effectivity. It is not favorable to him. "Penal laws shall
have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal,
as this term is defined in Rule 5 of Article 62 of this
Choco Notes

46
Code, although at the time of the publication of such
laws a final sentence has been pronounced and the
convict is serving the same.
36

III.
We agree with Petitioner that private respondent has,
however, waived his right to bail in G.R. No. 76009.
On 3 October 1986, or the day following the filing of
the original information in Criminal Case No. 86-48926
with the trial court, a petition for habeas corpus for
herein private respondent, and his co-accused
Josefina Cruz and Jose Concepcion, was filed with
this Court by Lucia Cruz, Aida Concepcion Paniza and
Beatriz Salas against Juan Ponce Enrile, Gen. Fidel
Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon
Montao, and Col. Saldajeno praying, among others,
that the petition be given due course and a writ
of habeas corpus be issued requiring respondents to
produce the bodies of herein private respondent and
his co-accused before the Court and explain by what
authority they arrested and detained them. The
following proceedings took place thereafter in said
case:
1. In a resolution of 7 October 1986 We issued a writ
of habeas corpus, required respondents to make a
return of the writ on or before the close of office hours
on 13 October and set the petition for hearing on 14
October 1986 at 10:00 o'clock in the morning.
2. On 13 October 1986 respondents, through the
Office of the Solicitor General, filed a Return To The
Writ ofHabeas Corpus alleging therein that private
respondent and Josefina Cruz alias "Mrs. Mercado",
and Jose Milo Concepcion alias "Eugene Zamora"
were apprehended by the military on September 29,
1986 in the evening at the Philippine General Hospital
Compound at Taft Ave., Mangga being leaders or
members of the Communist Party of the Philippines,
New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the
Government through violent means, and having
actually committed acts of rebellion under Article 134
of the Revised Penal Code, as amended. After their
arrest they were forthwith charged with rebellion
before Branch XII of the Regional Trial Court, National
Capital Region in Criminal Case No. 86-48926 and on
3 October warrants for their arrest were issued and
respondents continue to detain them because of the
warrants of arrest and the pendency of the criminal
cases against them. Respondents further allege that,
contrary to the allegation in the petition, herein private
respondent was not a member of the NDF panel
involved in peace negotiations with the Government;
neither is he and his companions Cruz and
Concepcion covered by any, safe conduct pass issued
by competent authorities.
3. At the hearing on 14 October 1986 the parties
informed the Court of certain agreements reached
between them. We issued a resolution reading as
follows:
When this case was called for hearing
this morning, Attorneys Romeo
Capulong, Arno V. Sanidad, Efren H.
Mercado, Edgardo Pamin-tuan,
Casiano Sabile, Ramon Cura, and
William Chua appeared for the
petitioners with Atty. Capulong arguing
for the petitioners. Solicitor General
Sedfrey Ordonez, Assistant Solicitor
General Romeo C. de la Cruz and Trial
Attorney Josue E. Villanueva appeared
for the respondents, with Solicitor
General Ordoez arguing for the
respondents.
Petitioners' counsel, Atty. Romeo
Capulong, manifested in open Court
that in conformity with the agreement
reached with the government, the
petition for habeas corpus will be
withdrawn with detainee Rodolfo Salas
to remain under custody, whereas his
co-detainees Josefina Cruz and Jose
Milo Concepcion will be released
immediately.
Solicitor General Sedfrey Ordoez,
also in open Court, confirmed the
foregoing statement made by
petitioners' counsel regarding the
withdrawal of the petition for habeas
Choco Notes

47
corpus, declaring that no objection will
be interposed to the immediate release
of detainees Josefina Cruz and Jose
Milo Concepcion, and that no bond will
be required of them, but they will
continue to face trial with their co-
accused, Rodolfo Salas; further, that
they will not be rearrested on the basis
of the warrants issued by the trial court
provided that they manifest in open
Court their willingness to subject
themselves to the jurisdiction of the
Court and to appear in court when their
presence is required.
In addition, he stated that he is willing
to confer with petitioners' counsel today
relative to the compromise agreement
that they have previously undertaken to
submit.
Upon manifestation of petitioners'
counsel, Atty. Romeo Capulong, that
on his oath as member of the Bar, the
detainees Josefina Cruz and Jose Milo
Concepcion have agreed to subject
themselves to the jurisdiction of the
trial court, the Court ordered their
immediate release.
Thereafter, the Court approved the
foregoing manifestations and
statements and required both parties to
SUBMIT to the Court their compromise
agreement by 4:00 o'clock this
afternoon. Teehankee, C.J., is on
official leave.
4. At 3:49 o'clock in the afternoon of 14 October 1986
the parties submitted a Joint Manifestation and Motion
duly signed by Atty. Romeo Capulong, counsel for
petitioners, and Solicitor General Sedfrey Ordoez,
Assistant Solicitor General Romeo C. de la Cruz and
Trial Attorney Josue S. Villanueva, counsel for
respondents, which reads as follows:
COME NOW petitioners and the
respondents, assisted by their
respective counsel, and to this
Honorable Tribunal respectfully
manifest:
1. That in the discussion between
Romeo Capulong, petitioners' counsel,
and Solicitor General Sedfrey A.
Ordoez on October 13, 1986
exploratory talks were conducted to
find out how the majesty of the law
may be preserved and human
considerations may be called into play.
2. That in the conference both counsel
agreed to the following terms of
agreement:
a. The petition
for habeas corpus will
be withdrawn by
petitioners and Josefina
Cruz and Jose Milo
Concepcion will be
immediately released
but shall appear at the
trial of the criminal case
for rebellion (People v.
Rodolfo Salas, et al.,
Criminal Case No. 4886
[should be 86-48926],
Regional Trial Court,
National Capital
Judicial Region) filed
against them under
their personal
recognizance.
b. Petitioner Rodolfo
Salas will remain in
legal custody and face
trial before the court
having custody over his
person.
c. The warrant of arrest
for the persons of
Josefina Cruz and Jose
Milo Concepcion is
Choco Notes

48
hereby deemed
recalled in view of
formal manifestation
before the Supreme
Court that they will
submit themselves to
the court having
jurisdiction over their
person.
3. That on October 14, the Solicitor
General was able to obtain the
conformity of the Government to the
foregoing terms which were likewise
accepted by petitioner (sic) and their
counsel of record.
4. That the two counsel submitted their
oral manifestation during the hearing
on October 14 and the present
manifestation in compliance with the
resolution announced in court this
morning.
WHEREFORE, it is prayed that the
petition for habeas corpus be
dismissed.
5. On 16 October 1986 We issued the following
resolution:
G.R. No. 76009 [In the Matter of the
Petition for Habeas Corpus of Rodolfo
Salas, Josefina Cruz and Jose Milo
Concepcion, et al. v. Hon. Juan Ponce
Enrile, Gen. Fidel V. Ramos, Brig. Gen.
Renato de Villa, Brig. Gen. Ramon
Montao and Col. Virgilio Saldajeno]
considering the Joint Manifestation and
Motion dated October 14, 1986 filed by
Attorneys Romeo Capulong, Arno V.
Sanidad, Efren H. Mercado and
Ricardo Fernandez, Jr. as counsel for
petitioners and Solicitor General
Sedfrey A. Ordonez and Assistant
Solicitor General Romeo C. de la Cruz
and Trial Attorney Josue S. Villanueva
as counsel for respondents which
states that they have entered into an
agreement whereby: [a] the petition
for habeas corpus will be withdrawn by
petitioners, and Josefina Cruz and
Jose Milo Concepcion will be
immediately released but shall appear
at the trial of the criminal case for
rebellion [People vs. Rodolfo Salas, et
al., Criminal Case No. 4886, Regional
Trial Court, National Capital Judicial
Region, Branch XII, Manila], filed
against them, on their personal
recognizance; [b] petitioner Rodolfo
Salas will remain in legal custody and
face trial before the court having
custody over his person; and [c] the
warrant of arrest for the person of
Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled
in view of the formal manifestation
before this Court that they will submit
themselves to the court having
jurisdiction over their person and in
view of the said agreement, the petition
for habeas corpus be dismissed, the
Court Resolved to DISMISS the
petition for habeas corpus but subject
to the condition that petitioners' lead
counsel, Atty. Capulong, upon his oath
as member of the Bar, shall abide by
his commitment to ensure the
appearance of Josefina Cruz and Jose
Milo Concepcion at the trial of the
criminal case for rebellion filed against
them. Teehankee,C.J., is on official
leave.
It is the stand of the petitioner that private respondent,
"in agreeing to remain in legal custody even during the
pendency of the trial of his criminal case, [he] has
expressly waived his right to bail."
37
Upon the other
hand, private respondent asserts that this claim is totally
devoid of factual and legal basis, for in their petition
for habeas corpus they precisely questioned the legality
of the arrest and the continued detention of Rodolfo
Salas, Josefina Cruz and Jose Milo Concepcion, which
was not resolved by this Court or by the compromise
agreement of the parties but left open for further
determination in another proceeding. Moreover, the
Choco Notes

49
matter of the right to bail was neither raised by either
party nor resolved by this Court, and the legal steps
promptly taken by private respondent after the agreement
was reached, like the filing of the motion to quash on 7
November 1986 and the petition for bail on 14 May 1987,
were clear and positive assertions of his statutory and
constitutional rights to be granted not only provisional but
final and permanent liberty. Finally, private respondent
maintains that the term "legal custody" as used in the
Joint Manifestation and Motion simply means that private
respondent agreed to continue to be in the custody of the
law or in custodia legis and nothing else; it is not to be
interpreted as waiver.
Interestingly, private respondent admits that:
"Custody" has been held to mean
nothing less than actual imprisonment.
It is also defined as the detainer of a
person by virtue of a lawful authority, or
the "care and possession of a thing or
person." (Bouviers Law Dictionary,
Third Ed, Vol. I, pp. 741-
742 citing Smith v. Com. 59 Pa. 320
and Rolland v. Com. 82 Pa. 306)
He further admits that, in the light of Section 1 of Rule
114 of the Rules of Court and settled jurisprudence,
the "constitutional right to bail is subject to the
limitation that the person applying for admission to bail
should be in the custody of the law or otherwise
deprived of his liberty."
38

When the parties in G.R. No. 76009 stipulated that:
b. Petitioner Rodolfo Salas will remain
in legal custody and face trial before
the court having custody over his
person.
they simply meant that Rodolfo Salas, herein
respondent, will remain in actual physical custody of
the court, or in actual confinement or detention, as
distinguished from the stipulation concerning his co-
petitioners, who were to be released in view of
the recall of the warrants of arrest against them; they
agreed, however, "to submit themselves to the
court having jurisdiction over their persons." Note
should be made of the deliberate care of the parties in
making a fine distinction between legal
custody and court having custody over the person in
respect to Rodolfo Salas and court having jurisdiction
over the persons of his co-accused. Such a fine
distinction was precisely intended to emphasize the
agreement that Rodolfo Salas will not be released, but
should remain in custody. Had the parties intended
otherwise, or had this been unclear to private
respondent and his counsel, they should have insisted
on the use of a clearer language. It must be
remembered that at the time the parties orally
manifested before this Court on 14 October 1986 the
terms and conditions of their agreement and prepared
and signed the Joint Manifestation and Motion, a
warrant of arrest had already been issued by the trial
court against private respondent and his co-accused.
The stipulation that only the warrants of arrest for
Josefina Cruz and Jose Milo Concepcion shall be
recalled and that only they shall be released, further
confirmed the agreement that herein petitioner shall
remain in custody of the law, or detention or
confinement.
In defining bail as:
. . . the security given for the release of
a person in custody of the law, . . .
Section 1 of Rule 114 of the Revised Rules of Court
admits no other meaning or interpretation for the term
"in custody of the law" than that as above indicated.
The purpose of bail is to relieve an accused from
imprisonment until his conviction and yet secure his
appearance at the trial.
39
It presupposes that the person
applying for it should be in the custody of the law or
otherwise deprived of liberty.
40

Consequently, having agreed in G.R. No. 76009 to
remain in legal custody, private respondent had
unequivocably waived his right to bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
Art. 6. Rights may be waived, unless
the waiver is contrary to law, public
Choco Notes

50
order, public policy, morals, or good
customs, or prejudicial to a third person
with a right recognized by law.
Waiver is defined as "a voluntary and intentional
relinquishment or abandonment of a known existing
legal right, advantage, benefit, claim or privilege, which
except for such waiver the party would have enjoyed;
the voluntary abandonment or surrender, by a capable
person, of a right known by him to exist, with the intent
that such right shall be surrendered and such person
forever deprived of its benefit; or such conduct as
warrants an inference of the relinquishment of such
right; or the intentional doing of an act inconsistent
with claiming it."
41

As to what rights and privileges may be waived, the
authority is settled:
. . . the doctrine of waiver extends to
rights and privileges of any character,
and, since the word "waiver" covers
every conceivable right, it is the
general rule that a person may waive
any matter which affects his property,
and any alienable right or privilege of
which he is the owner or which belongs
to him or to which he is legally entitled,
whether secured by contract, conferred
with statute,or guaranteed by
constitution, provided such rights and
privileges rest in the individual, are
intended for his sole benefit, do not
infringe on the rights of others, and
further provided the waiver of the right
or privilege is not forbidden by law, and
does not contravene public policy; and
the principle is recognized that
everyone has a right to waive, and
agree to waive, the advantage of a law
or rule made solely for the benefit and
protection of the individual in his
private capacity, if it can be dispensed
with and relinquished without infringing
on any public right, and without
detriment to the community at large. . .
.
Although the general rule is that any
right or privilege conferred by statute
or guaranteed by constitution may be
waived, a waiver in derogation of a
statutory right is not favored, and a
waiver will be inoperative and void if it
infringes on the rights of others, or
would be against public policy or
morals and the public interest may be
waived.
While it has been stated generally that
all personal rights conferred by statute
and guaranteed by constitution may be
waived, it has also been said that
constitutional provisions intended to
protect property may be waived, and
even some of the constitutional rights
created to secure personal liberty are
subjects of waiver.
42

In Commonwealth vs. Petrillo,
43
it was held:
Rights guaranteed to one accused of a
crime fall naturally into two classes: (a)
those in which the state, as well as the
accused, is interested; and (b) those
which are personal to the accused,
which are in the nature of personal
privileges. Those of the first class
cannot be waived; those of the second
may be.
It is "competent for a person to waive a right
guaranteed by the Constitution, and to consent to
action which would be invalid if taken against his
will."
44

This Court has recognized waivers of constitutional
rights such as, for example, the right against
unreasonable searches and seizures;
45
the right to
counsel and to remain silent;
46
and the right to be
heard.
47

Even the 1987 Constitution expressly recognizes a
waiver of rights guaranteed by its Bill of Rights.
Section 12(l) of Article III thereof on the right to remain
Choco Notes

51
silent and to have a competent and independent
counsel, preferably of his own choice states:
. . . These rights cannot be waived
except in writing and in the presence of
counsel.
This provision merely particularizes the form and
manner of the waiver; it, nevertheless, clearly
suggests that the other rights may be waived in some
other form or manner provided such waiver will not
offend Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the
constitutional rights which can be waived. It is a right
which is personal to the accused and whose waiver
would not be contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.
The respondent Judge then clearly acted with grave
abuse of discretion in granting bail to the private
respondent.
WHEREFORE, the Orders of respondent Judge of
July 7, 1987 and July 30, 1987 in Criminal Case No.
86-48926 entitled People of the Philippines vs. Rodolfo
C. Salas alias Commander Bilog/Henry, Josefina
Cruz alias Mrs. Mercado, and Jose Milo
Concepcion alias Eugene Zamora, for Rebellion, are
hereby NULLIFIED and SET ASIDE.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez,
Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Grio-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
People vs Licera
G.R. No. L-39990 July 22, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
RAFAEL LICERA, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio,
Assistant Solicitor General Crispin V. Bautista and
Solicitor Pedro A. Ramirez for plaintiff-appellee.
Romeo Mercado (as Counsel de Oficio) for defendant-
appellant.

CASTRO, J .:
This is an appeal, on a question of law, by Rafael
Licera from the judgment dated August 14, 1968 of the
Court of First Instance of Occidental Mindoro
convicting him of the crime of illegal possession of
firearm and sentencing him to imprisonment of five (5)
years. We reverse the judgment of conviction, for the
reasons hereunder stated.
On December 3, 1965 the Chief of Police of Abra de
Ilog, Occidental Mindoro, filed a complaint, subscribed
and sworn to by him, with the municipal court of the
said municipality, charging Rafael Licera with illegal
possession of a Winchester rifle, Model 55, Caliber
.30. On August 13, 1966 the municipal court rendered
judgment finding Licera guilty of the crime charged,
sentencing him to suffer an indeterminate penalty
ranging five years and one day to six years and eight
months of imprisonment. Licera appealed to the Court
of First Instance of Occidental Mindoro.
In the Court of First Instance, the parties agreed to the
joint trial of the case for illegal possession of firearm
and another case, likewise filed against Licera with the
municipal court but already forwarded to the said Court
of First Instance, for assault upon an agent of a person
in authority, the two offenses having arisen from the
same occasion: apprehension of Licera by the Chief of
Police and a patrolman of Abra de Ilog on December
2, 1965 for possession of the Winchester rifle without
the requisite license or permit therefor.
On August 14, 1968 the court a quo rendered
judgment acquitting Licera of the charge of assault
Choco Notes

52
upon an agent of a person in authority, but convicting
him of illegal possession of firearm, sentencing him to
suffer five years of imprisonment, and ordering the
forfeiture of the Winchester rifle in favor of the
Government.
Licera's appeal to the Court of Appeals was certified
on October 16, 1974 to this Court as involving only
one question of law.
Licera invokes as his legal justification for his
possession of the Winschester rifle his appointment as
secret agent on December 11, 1961 by Governor
Feliciano Leviste of Batangas. He claims that as secret
agent, he was a "peace officer" and, thus, pursuant
to People vs. Macarandang,
1
was exempt from the
requirements relating to the issuance of license to
possess firearms. He alleges that the court a quo erred in
relying on the later case of People vs. Mapa
2
which held
that section 879 of the Revised Administrative Code
provides no exemption for persons appointed as secret
agents by provincial governors from the requirements
relating to firearm licenses.
The principal question thus posed calls for a
determination of the rule that should be applied to the
case at bar that enunciated in Macarandang or that
in Mapa.
The appointment given to Licera by Governor Leviste
which bears the date "December 11, 1961" includes a
grant of authority to Licera to possess the Winchester
rifle in these terms: "In accordance with the decision of
the Supreme Court in G.R. No. L-12088 dated
December 23, 1959, you will have the right to bear a
firearm ... for use in connection with the performance
of your duties." Under the rule then prevailing,
enunciated in Macarandang,
3
the appointment of a
civilian as a "secret agent to assist in the maintenance of
peace and order campaigns and detection of crimes
sufficiently put[s] him within the category of a "peace
officer" equivalent even to a member of the municipal
police" whom section 879 of the Revised Administrative
Code exempts from the requirements relating to firearm
licenses.
Article 8 of the Civil Code of the Philippines decrees
that judicial decisions applying or interpreting the laws
or the Constitution form part of this jurisdiction's legal
system. These decisions, although in themselves not
laws, constitute evidence of what the laws mean. The
application or interpretation placed by the Court upon
a law is part of the law as of the date of the enactment
of the said law since the Court's application or
interpretation merely establishes the
contemporaneous legislative intent that the construed
law purports to carry into effect.
4

At the time of Licera's designation as secret agent in
1961 and at the time of his apprehension for
possession of the Winchester rifle without the requisite
license or permit therefor in 1965,
the Macarandang rule the Courts interpretation of
section 879 of the Revised Administrative Code -
formed part of our jurisprudence and, hence, of this
jurisdiction's legal system. Mapa revoked
the Macarandang precedent only in 1967. Certainly,
where a new doctrine abrogates an old rule, the new
doctrine should operate respectively only and should
not adversely affect those favored by the old rule,
especially those who relied thereon and acted on the
faith thereof. This holds more especially true in the
application or interpretation of statutes in the field of
penal law, for, in this area, more than in any other, it is
imperative that the punishability of an act be
reasonably foreseen for the guidance of society.
5

Pursuant to the Macarandang rule obtaining not only
at the time of Licera's appointment as secret agent,
which appointment included a grant of authority to
possess the Winchester rifle, but as well at the time as
of his apprehension, Licera incurred no criminal liability
for possession of the said rifle, notwithstanding his
non-compliance with the legal requirements relating to
firearm licenses.1wph 1.t
ACCORDINGLY, the judgment a quo is reversed, and
Rafael Licera is hereby acquitted. Costs de oficio.
Makasiar, Esguerra, Muoz Palma and Martin, JJ.,
concur.
Teehankee, J., is on leave.
Choco Notes

53
People vs Pinuila
G.R. No. L-11374 May 30, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
DIOSCORO PINUILA, ET AL., defendants,
ABSALON BIGNAY, defendant-appellant.
Attorney de oficio Julio T. de la Cruz for appellant.
Office of the Solicitor General Ambrosio Padilla and
Solicitor Hector C. Fule for appellee.
MONTEMAYOR, J .:
Defendant Absalon Bignay is appealing the decision of
the Court of First Instance of Negros Occidental,
finding him guilty of murder for the death of
Buenaventura Dideroy, and sentencing him
to reclusion perpetua, with the accessories of the law,
to indemnify the heirs of the deceased in the amount
of P6,000, without subsidiary imprisonment in case of
insolvency, and to pay one-third of the costs.
The following facts are not disputed. Early in the
morning of October 20, 1948, the Barge No. 560 of the
Visayan Stevedoring Company, loaded with molasses,
was anchored some distance from the mouth of the
Victorias River, Victorias, Negros Occidental. Bonifacio
del Cano and Buenaventura Dideroy as members of
the crew of said barge, were sleeping inside its cabin,
with a lighted petroleum lamp hanging from the ceiling.
Dideroy was suddenly and violently attacked by men
provided with stout wooden clubs, which were being
used as the capstan handle bars, resulting in a
fracture of his skull and other injuries to his body,
which caused his death hours later. Del Cano went
ashore and reported the tragic incident to the person in
charge of the barge, who in turn notified the
authorities, and the police and the president of the
sanitary division lost no time in going to the vessel and
making the corresponding investigation. On the basis
of said investigation, appellant was arrested together
with Dioscoro Pinuila and Conrado Daiz, who were
later charged with murder.
At the trial, the Government presented its evidence
and after it had rested its case, counsel for the
accused filed a motion for dismissal on the ground that
the jurisdiction of the Court of First Instance of Negros
Occidental had not been duly established. Although
the information charged that the crime was committed
inside the barge and within the Municipality of
Victorias, Negros Occidental, the evidence for the
Government tended to show that at the time, the barge
was not exactly docked at the bank of the Victorias
River, but was some distance from the mouth of said
river, a precaution taken by the master of the barge, so
that at low tide, the barge would not be stranded. On
the basis of this finding, the trial court sustained the
motion for dismissal and claiming that its jurisdiction
had not been duly established, it dismissed the case,
but provided in its order that the three accused should
not be released until the order shall have become final.
The order of dismissal was appealed by the
Government to this Tribunal, over the objection of the
defense which, invoked the principle of double
jeopardy. But this Court in a decision promulgated on
March 28, 1952, found that the jurisdiction of the trial
court had been proven, and that the, appeal did not
involve double jeopardy, and so remanded the case
for further proceedings.
As already stated, the three accused continued to be
under arrest. However, while the order of dismissal,
was pending in this Court, by virtue of an order of the
trial court in a petition for habeas corpus, the three
defendants were released. When criminal proceedings
were resumed, the lower court, the arrest of the three
accused was sought, but only appellant Bignay could
be apprehended. His co-accused, Pinuila and Daiz,
evaded arrest and until now are still at large. For this
reason, the trial, was continued only against Bignay.
The evidence shows that about three months before
October 20, 1948, when Dideroy was killed, the latter
and Dioscoro Pinuila were in the aforementioned
Barge 560, anchored along the Pasig River in Manila,
Dideroy as a plain sailor and Pinuila as master or
patron. It seems that Pinuila had misused or
embezzled the mess funds in his care, and the crew
resented it, resulting in a violent quarrel and fight
between Pinuila and Dideroy. In the course of the fight,
Choco Notes

54
the two men fell into the Pasig River and they
continued the fight in the water. Being a bigger and
stronger man, Dideroy was winning the fight, and had
it not been for the intervention of his companions,
Pinuila would have drowned. Pinuila not only lost the
fight, but also lost his job as master of the barge,
presumably because of his embezzlement of the mess
funds. Because of all this, he nursed a grudge against
Dideroy and he found the opportunity of getting even
when he learned of the presence of Barge 560 with his
enemy in it, anchored near the mouth of the Victorias
River.
Pinuila enlisted the aid of appellant Bignay and one
Conrado Daiz, ostensibly to help him get his
equipment, including a table, from the said barge, and
for this he paid each of them two pesos. There is no
proof that Bignay and Daiz were informed by him on
came to know before hand that they were going to
attack Dideroy, inside the barge. The truth is that at
about 2:30 in the morning of October 20, 1948, the
three took a small sailboat and boarded the barge, and
the three of them, each provided with a capstan
wooden handle bar, attached Dideroy while he was
sleeping. Del Cano, his companion, was rudely
awakened by the noise, and seeing the assault and
realizing the danger to himself, he jumped out of the
cabin through its window, hid under it, but through a
large hole he looked inside the cabin and witnessed
the progress of the attack. By the light of the petroleum
lamp, he could easily identify, Pinuila and saw the
faces of his two companions, noting that one of them
was limping, as though he were lame. After the attack,
and possibly believing that Dideroy was dead, Daiz
said, "Where is the other, man, companion of this man
Dideroy? Let us finish him also." But Pinuila
interceded, saying that Del Cano had no fault at all
and deserved no punishment, and he (Pinuila)
proceeded to call out to Del Cano, telling him not to be
afraid because he would not be harmed. Relying on
this assurance, Del Cano came out of his hiding place
and approached the group. Pinuila said that they were
leaving, and that he (Del Cano) should take care of
everything, at the same time, giving the hint or warning
that they had a rifle in their boat, presumably meaning
that if he informed the authorities of the identity of
appellants, his would be in danger.
In the course of the investigation by the police, Manuel
Ligada, police desk sergeant of Victorias, went to the
barrio within which the crime was committed, and
informed the residents that he was looking for Pinuila,
Daiz, and Bignay, not to arrest them for any killing,
because according to him, Dideroy was alive, but
rather for them to enter into negotiations with the
victim of their attack who wanted an amicable
settlement. The news spread in the community and the
three accused fell into the trap set for them. They
appeared before Sergeant Ligada, Pinuila readily
admitting that they made the attack in order for him to
get even with Dideroy for what he had done to him in
Manila three months before. Bignay impliedly admitted
participating in the attack because he told the sergeant
that he had to help Pinuila in the assault because
Dideroy was a big man.
During the trial, Del Cano readily identified not only
Pinuila but also Bignay and Daiz as the assailants of
Dideroy. There is, therefore, no room for doubt that
said three men were responsible for the death of
Dideroy, with Pinuila as the mastermind.
The trial court found the crime committed to be
murder, qualified by evident premeditation, with the
concurrence of the aggravating circumstances of
nighttime and treachery, compensated by the
mitigating circumstance of voluntary surrender, and
imposed the penalty in its medium degree. Of course,
the aggravating circumstance of treachery absorbs
that of nighttime.
We are inclined to be lenient with appellant Bignay. Of
the three accused, he is clearly the least guilty.
Moreover, he has been in jail since 1952 when re-
arrested, because by order of this Court, the criminal
proceedings were resumed. This, aside from the fact
that he had also been under arrest since 1948, up to
the time he and his co-accused were released after
instituting habeas corpus proceeding in 1949. In other
words, he has been in jail for about seven years. We
are ready to believe and to find that aggravating
circumstance of evident premiditation found by the
lower court to qualify the murder, does not apply to
him. For two pesos, it is hard to believe that appellant
would agree to kill Dediroy. It is more likely, even more
probable, that he only agreed to accompany Pinuila to
Choco Notes

55
get the latter's equipment from Barge 560, and only
learn and realized that their trip to the barge was for
sinister purpose, when they were already aboard the
barge and shortly before the actual attack. In the
absence of the evident premiditation the aggravating
circumstance of alevosia should be used as the
qualifying circumstance of the crime murder, thereby
leaving no aggravating circumstance. With the
presence of the mitigating circumstance of voluntary
surrender, Bignay is entitled to the penalty for the
crime being imposed in its minimum degree,
namely, reclusion temporal in its maximum degree.
Applying the law on indeterminate sentence, appellant
Absalon Bignay should be sentence to not less than
twelve years of prison mayor and not more than
seventeen years, four months and one day
of reclusion temporal.
In the course of the discussion of this case and before
it was actually submitted to a vote, Chief Justice Paras
raised the question of double jeopardy, and without
questioning the guilt of the appellant on the basis of
the evidence of record, claimed that said appellant has
once been placed in jeopardy and, therefore, he
should now be acquitted. It is argued that the decision
of this Court on the appeal prosecuted by the
Government from the order of dismissal of the trial
court on the ground of lack of jurisdiction, (G.R. No. L-
3217) was based on, the case of People vs. Salico,
*
47
Off. Gaz., 1765, which held that an appeal by the
Government from an order of dismissal to lack of
jurisdiction, when such jurisdiction really existed which
order of dismissal was based on and prompted by a
motion to dismiss filed by the accused himself, did not
place him in jeopardy, and that the doctrine laid down
in said case of Salico has recently been overruled by
this same Tribunal in more than one case. The
argument is valid and correct. As a matter of fact, the
writer of the present opinion, together with Mr. Justice
Bengzon, concurred in the dissenting opinion of the
Chief Justice, holding that the doctrine laid down in the
case of Salico was incorrect, not being in accordance
with the law on double jeopardy, and therefore, it
should not be applied in the determination of the
former appeal by the Government G.R. No. L-3217)
from the order of dismissal consequently, said appeal
should be dismissed. And it is really a fact that the
principle enunciated in the Salico case has been
abandoned by this Tribunal.
However, the writer of the present opinion cannot in
conscience and under the law, agree to, much less
recommend that the new doctrine overruling that
enunciated in the Salico case should and could be
applied to the present case. The decision of this Court
on that appeal by the Government from the order of
dismissal, holding that said appeal did not place the
appellants, including Absalon Bignay, in double
jeopardy, signed and concurred in by six Justices as
against three dissenters headed by the Chief Justice,
promulgated way back in the year 1952, has long
become final and conclusive and has become the final
and conclusive and has become, the law of the case. It
may be erroneous, judged by the law on double
jeopardy as recently interpreted by this same Tribunal.
Even so, it may not be disturbed and modified. Our
recent interpretation of the law may be applied to new
cases, but certainly not to an old one finally and
conclusively determined. As already stated, the
majority opinion in that appeal is now the law of the
case.
"Law of the case" has been defined as the
opinion delivered on a former appeal. More
specifically, it means that whatever is once
irrevocably established as the controlling legal
rule of decision between the same parties in
the same case continues to be the law of the
case, whether correct on general principles or
not, so long as the facts on which such
decision was predicated continue to be the
facts of the case before the court. (21 C. J. S.
330) (Emphasis supplied.)
It may be stated as a rule of general
application that, where the evidence on a
second or succeeding appeal is substantially
the same as that on the first or preeceding
appeal, all matters, questions, points, or issues
adjudicated on the prior appeal are the law of
the case on all subsequent appeals and will
not be considered or readjucated therein. (5 C.
J. S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in
Section 1821, where, after a definite
determination, the court has remanded the
cause, for further action below, it will refuse to
Choco Notes

56
examine question other than those, arising
subsequently to such determination and
remand, or other than the propriety of the
compliance with its mandate; and if the court
below has proceeded in substantial conformity
to the direction of the appellate court, its action
will not be questioned on a second appeal. . . .
As a general rule a decision on a prior appeal
of the same case is held to be the law of the
case whether that decision is right or wrong,
the remedy of the party deeming himself
aggrieved being to seek a rehearing. (5 C. J.
S. 1276-77). (Emphasis supplied.)
Questions necessarily involved in the decision
on a former appeal will be regarded as the law
of the case on a subsequent appeal, although
the questions are not expressly treated in the
opinion of the court, as the presumption is that
all the facts in the case bearing on the point
decided have received due consideration
whether all or none of them are mentioned in
the opinion. (5 C. J. S. 1286-87). (Emphasis
supplied.)
The reason behind this well settled principle of law of
the case is wholesome and salutary.
The reason for the rule of the finality of the
appellate decision is sometimes alleged,
without direct reference to either stare
decisis or res judicata, to be found in the want
of power in an appellate court to modify its own
judgment otherwise than on a rehearing, and in
that the issuance of a mandate for a retrial
takes the case out of its jurisdiction. Again the
rule has been said to be founded on the policy
of ending litigation, and to be necessary to
enable an appellate court to perform its duties
satisfactorily and efficiently, which would be
impossible if a question, once considered and
decided by it, were to be litigated anew in the
same case upon any and every subsequent
appeal. If a different, rule were admitted, it is
said, every change in the personnel of the
bench would produce confusion. (5 C. J, S.
1274).
Furthermore, in his appeal belief, appellant's counsel
does not raise this question of double jeopardy,
confining himself as he does, to the discussion of the
evidence in the record, contending that the guilt of the
appellant has not been proven beyond reasonable
doubt. One aspect of this case as regard double
jeopardy is that said defense may be waived, and that
failure to urge it in the appeal may be regarded as a
waiver of said defense of double jeopardy.
While the rule is not inflexible, and its
application lies within the discretion of the
court, except in cases where the error
assigned is fundamental, or is so plain that it
reveals itself by casual inspection of the
record, or unless the point is expressly
reserved by the report of the lower court for the
appellate court's consideration, questioned
assigned as error are generally considered to
be waived by implication where they are not
urged or brought forward on appeal. . . .
Subjects to the exceptions stated in the
preceding section, questions assigned as error
by an appellant are generally deemed to have
been abandoned or waived where they are not
urged or discussed on appeal. (5 C.J. 1218-
19).
In truth, counsel for the appellant may not be blamed
for failing or declining to raise said question of double
jeopardy, knowing as he did that it had already been
formally and conclusively determined and adversely
decided by this Tribunal in a decision long final and
conclusive.
In view of the foregoing, and with the modifications
above-stated, the decision of the trial court is hereby
affirmed. With costs.
Appellant will be credited with any preventive
imprisonment already served.
Bengzon, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L. and Endencia, JJ., concur.
Choco Notes

57
Yao Kee vs Sy-Gonzales
G.R. No. L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY
CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-
BERNABE, RODOLFO SY, and HONORABLE
COURT OF APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for
respondents.

CORTES, J .:
Sy Kiat, a Chinese national. died on January 17, 1977
in Caloocan City where he was then residing, leaving
behind real and personal properties here in the
Philippines worth P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita
Sy-Bernabe and Rodolfo Sy filed a petition for the
grant of letters of administration docketed as Special
Proceedings Case No. C-699 of the then Court of First
Instance of Rizal Branch XXXIII, Caloocan City. In said
petition they alleged among others that (a) they are the
children of the deceased with Asuncion Gillego; (b) to
their knowledge Sy Mat died intestate; (c) they do not
recognize Sy Kiat's marriage to Yao Kee nor the
filiation of her children to him; and, (d) they nominate
Aida Sy-Gonzales for appointment as administratrix of
the intestate estate of the deceased [Record on
Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah,
Sze Lai Cho and Sy Yun Chen who alleged that: (a)
Yao Kee is the lawful wife of Sy Kiat whom he married
on January 19, 1931 in China; (b) the other oppositors
are the legitimate children of the deceased with Yao
Kee; and, (c) Sze Sook Wah is the eldest among them
and is competent, willing and desirous to become the
administratrix of the estate of Sy Kiat [Record on
Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the
probate court, finding among others that:
(1) Sy Kiat was legally married to Yao
Kee [CFI decision, pp. 12-27; Rollo, pp.
49-64;]
(2) Sze Sook Wah, Sze Lai Cho and
Sze Chun Yen are the legitimate
children of Yao Kee with Sy Mat [CFI
decision, pp. 28-31; Rollo. pp. 65-68;]
and,
(3) Aida Sy-Gonzales, Manuel Sy,
Teresita Sy-Bernabe and Rodolfo Sy
are the acknowledged illegitimate
offsprings of Sy Kiat with Asuncion
Gillego [CFI decision, pp. 27-28; Rollo,
pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and
appointed Sze Sook Wah as the administratrix of the
intestate estate of the deceased [CFI decision, pp. 68-
69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision
modifying that of the probate court, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, the
decision of the lower Court is hereby
MODIFIED and SET ASIDE and a new
judgment rendered as follows:
(1) Declaring petitioners Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-
Bernabe and Rodolfo Sy
acknowledged natural children of the
deceased Sy Kiat with Asuncion
Gillego, an unmarried woman with
whom he lived as husband and wife
without benefit of marriage for many
years:
(2) Declaring oppositors Sze Sook
Wah, Sze Lai Chu and Sze Chun Yen,
the acknowledged natural children of
Choco Notes

58
the deceased Sy Kiat with his Chinese
wife Yao Kee, also known as Yui Yip,
since the legality of the alleged
marriage of Sy Mat to Yao Kee in
China had not been proven to be valid
to the laws of the Chinese People's
Republic of China (sic);
(3) Declaring the deed of sale executed
by Sy Kiat on December 7, 1976 in
favor of Tomas Sy (Exhibit "G-1",
English translation of Exhibit "G") of the
Avenue Tractor and Diesel Parts
Supply to be valid and accordingly,
said property should be excluded from
the estate of the deceased Sy Kiat; and
(4) Affirming the appointment by the
lower court of Sze Sook Wah as
judicial administratrix of the estate of
the deceased. [CA decision, pp. 11-12;
Rollo, pp. 36- 37.]
From said decision both parties moved for partial
reconsideration, which was however denied by
respondent court. They thus interposed their
respective appeals to this Court.
Private respondents filed a petition with this Court
docketed as G.R. No. 56045 entitled "Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-Bernabe and
Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook
Wah, Sze Lai Cho and Sy Chun Yen" questioning
paragraphs (3) and (4) of the dispositive portion of the
Court of Appeals' decision. The Supreme Court
however resolved to deny the petition and the motion
for reconsideration. Thus on March 8, 1982 entry of
judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions
paragraphs (1) and (2) of the dispositive portion of the
decision of the Court of Appeals. This petition was
initially denied by the Supreme Court on June 22,
1981. Upon motion of the petitioners the Court in a
resolution dated September 16, 1981 reconsidered the
denial and decided to give due course to this petition.
Herein petitioners assign the following as errors:
I. RESPONDENT COURT OF
APPEALS SERIOUSLY ERRED IN
DECLARING THE MARRIAGE OF SY
KIAT TO YAO YEE AS NOT HAVE
(sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE
PEOPLE'S REPUBLIC OF CHINA.
II. RESPONDENT COURT OF
APPEALS GRAVELY ERRED IN
DECLARING AIDA SY-GONZALES,
MANUEL SY, TERESITA SY-
BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT
WITH ASUNCION GILLEGO. [Petition,
p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao
Kee in accordance with Chinese law and custom was
conclusively proven. To buttress this argument they
rely on the following testimonial and documentary
evidence.
First, the testimony of Yao Kee summarized by the trial
court as follows:
Yao Kee testified that she was married
to Sy Kiat on January 19, 1931 in
Fookien, China; that she does not have
a marriage certificate because the
practice during that time was for elders
to agree upon the betrothal of their
children, and in her case, her elder
brother was the one who contracted or
entered into [an] agreement with the
parents of her husband; that the
agreement was that she and Sy Mat
would be married, the wedding date
was set, and invitations were sent out;
that the said agreement was complied
with; that she has five children with Sy
Kiat, but two of them died; that those
who are alive are Sze Sook Wah, Sze
Lai Cho, and Sze Chun Yen, the eldest
being Sze Sook Wah who is already 38
years old; that Sze Sook Wah was
born on November 7, 1939; that she
and her husband, Sy Mat, have been
Choco Notes

59
living in FooKien, China before he went
to the Philippines on several
occasions; that the practice during the
time of her marriage was a written
document [is exchanged] just between
the parents of the bride and the
parents of the groom, or any elder for
that matter; that in China, the custom is
that there is a go- between, a sort of
marriage broker who is known to both
parties who would talk to the parents of
the bride-to-be; that if the parents of
the bride-to-be agree to have the
groom-to-be their son in-law, then they
agree on a date as an engagement
day; that on engagement day, the
parents of the groom would bring some
pieces of jewelry to the parents of the
bride-to-be, and then one month after
that, a date would be set for the
wedding, which in her case, the
wedding date to Sy Kiat was set on
January 19, 1931; that during the
wedding the bridegroom brings with
him a couch (sic) where the bride
would ride and on that same day, the
parents of the bride would give the
dowry for her daughter and then the
document would be signed by the
parties but there is no solemnizing
officer as is known in the Philippines;
that during the wedding day, the
document is signed only by the parents
of the bridegroom as well as by the
parents of the bride; that the parties
themselves do not sign the document;
that the bride would then be placed in a
carriage where she would be brought
to the town of the bridegroom and
before departure the bride would be
covered with a sort of a veil; that upon
reaching the town of the bridegroom,
the bridegroom takes away the veil;
that during her wedding to Sy Kiat
(according to said Chinese custom),
there were many persons present; that
after Sy Kiat opened the door of the
carriage, two old ladies helped her go
down the carriage and brought her
inside the house of Sy Mat; that during
her wedding, Sy Chick, the eldest
brother of Sy Kiat, signed the
document with her mother; that as to
the whereabouts of that document, she
and Sy Mat were married for 46 years
already and the document was left in
China and she doubt if that document
can still be found now; that it was left in
the possession of Sy Kiat's family; that
right now, she does not know the
whereabouts of that document
because of the lapse of many years
and because they left it in a certain
place and it was already eaten by the
termites; that after her wedding with Sy
Kiat, they lived immediately together as
husband and wife, and from then on,
they lived together; that Sy Kiat went to
the Philippines sometime in March or
April in the same year they were
married; that she went to the
Philippines in 1970, and then came
back to China; that again she went
back to the Philippines and lived with
Sy Mat as husband and wife; that she
begot her children with Sy Kiat during
the several trips by Sy Kiat made back
to China. [CFI decision, pp. 13-15;
Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger
brother of Yao Kee who stated that he was among the
many people who attended the wedding of his sister
with Sy Kiat and that no marriage certificate is issued
by the Chinese government, a document signed by the
parents or elders of the parties being sufficient [CFI
decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when
she testified before the trial court to the effect that (a)
Sy Mat was married to Yao Kee according to Chinese
custom; and, (b) Sy Kiat's admission to her that he has
a Chinese wife whom he married according to Chinese
custom [CFI decision, p. 17; Rollo, p. 54.]
Choco Notes

60
Fourth, Sy Kiat's Master Card of Registered Alien
issued in Caloocan City on October 3, 1972 where the
following entries are found: "Marital statusMarried";
"If married give name of spousesYao Kee";
"Address-China; "Date of marriage1931"; and "Place
of marriageChina" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued
in Manila on January 12, 1968 where the following
entries are likewise found: "Civil statusMarried"; and,
'If married, state name and address of spouseYao
Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October
28, 1977 by the Embassy of the People's Republic of
China to the effect that "according to the information
available at the Embassy Mr. Sy Kiat a Chinese
national and Mrs. Yao Kee alias Yui Yip also Chinese
were married on January 19, 1931 in Fukien, the
People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of
marriage between Yao Kee and Sy Kiat. However, the
same do not suffice to establish the validity of said
marriage in accordance with Chinese law or custom.
Custom is defined as "a rule of conduct formed by
repetition of acts, uniformly observed (practiced) as a
social rule, legally binding and obligatory" [In the
Matter of the Petition for Authority to Continue Use of
the Firm Name "Ozaeta, Romulo, de Leon, Mabanta
and Reyes", July 30, 1979, SCRA 3, 12 citing JBL
Reyes & RC Puno, Outline of Phil. Civil Law, Fourth
Ed., Vol. 1, p. 7.] The law requires that "a custom must
be proved as a fact, according to the rules of
evidence" [Article 12, Civil Code.] On this score the
Court had occasion to state that "a local custom as a
source of right can not be considered by a court of
justice unless such custom is properly established by
competent evidence like any other fact" [Patriarca v.
Orate, 7 Phil. 390, 395 (1907).] The same evidence, if
not one of a higher degree, should be required of a
foreign custom.
The law on foreign marriages is provided by Article 71
of the Civil Code which states that:
Art. 71. All marriages performed
outside the Philippines in accordance
with the laws in force in the country
where they were performed and valid
there as such, shall also be valid in this
country, except bigamous,
Polygamous, or incestuous marriages,
as determined by Philippine law.
(Emphasis supplied.) ***
Construing this provision of law the Court has held that
to establish a valid foreign marriage two things must
be proven, namely: (1) the existence of the foreign law
as a question of fact; and (2) the alleged foreign
marriage by convincing evidence [Adong v. Cheong
Seng Gee, 43 Phil. 43, 49 (1922).]
In proving a foreign law the procedure is provided in
the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states
that:
SEC. 45. Unwritten law.The oral
testimony of witnesses, skilled therein,
is admissible as evidence of the
unwritten law of a foreign country, as
are also printed and published books of
reports of decisions of the courts of the
foreign country, if proved to be
commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is
provided for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official
record.An official record or an entry
therein, when admissible for any
purpose, may be evidenced by an
official publication thereof or by a copy
attested by the officer having the legal
custody of the record, or by his deputy,
and accompanied, if the record is not
kept in the Philippines, with a certificate
that such officer has the custody. If the
office in which the record is kept is in a
foreign country, the certificate may be
made by a secretary of embassy or
legation, consul general, consul, vice
Choco Notes

61
consul, or consular agent or by any
officer in the foreign service of the
Philippines stationed in the foreign
country in which the record is kept and
authenticated by the seal of his office.
The Court has interpreted section 25 to include
competent evidence like the testimony of a witness to
prove the existence of a written foreign law [Collector
of Internal Revenue v. Fisher 110 Phil. 686, 700-701
(1961) citing Willamette Iron and Steel Works v.
Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any
competent evidence relative to the law and custom of
China on marriage. The testimonies of Yao and Gan
Ching cannot be considered as proof of China's law or
custom on marriage not only because they are
self-serving evidence, but more importantly, there is no
showing that they are competent to testify on the
subject matter. For failure to prove the foreign law or
custom, and consequently, the validity of the marriage
in accordance with said law or custom, the marriage
between Yao Kee and Sy Kiat cannot be recognized in
this jurisdiction.
Petitioners contend that contrary to the Court of
Appeals' ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had
been taken by this Court in the case of Sy Joc Lieng v.
Sy Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this
jurisdiction is the principle that Philippine courts cannot
take judicial notice of foreign laws. They must be
alleged and proved as any other fact [Yam Ka Lim v.
Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer
v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the
party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial
letters mutually exchanged by the contracting parties
constitute the essential requisite for a marriage to be
considered duly solemnized in China. Based on his
testimony, which as found by the Court is uniformly
corroborated by authors on the subject of Chinese
marriage, what was left to be decided was the issue of
whether or not the fact of marriage in accordance with
Chinese law was duly proven [Sy Joc Lieng v. Sy
Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that
the Court has indeed taken judicial notice of the law of
China on marriage in the aforecited case, petitioners
however have not shown any proof that the Chinese
law or custom obtaining at the time the Sy Joc
Lieng marriage was celebrated in 1847 was still the
law when the alleged marriage of Sy Kiat to Yao Kee
took place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v.
Memoracion [34 Phil. 633 (1916)] as being applicable
to the instant case. They aver that the judicial
pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is
competent evidence to show the fact of marriage,
holds true in this case.
The Memoracion case however is not applicable to the
case at bar as said case did not concern a foreign
marriage and the issue posed was whether or not the
oral testimony of a spouse is competent evidence to
prove the fact of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese
law on marriage, it should be presumed that it is the
same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31,
1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that
there was no solemnizing officer as is known here in the Philippines [See
Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated
[CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy
Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v.
Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the
status of private respondents.
Respondent court found the following evidence of
petitioners' filiation:
(1) Sy Kiat's Master Card of Registered
Alien where the following are entered:
"Children if any: give number of
childrenFour"; and, "NameAll living
in China" [Exhibit "SS-1";]
Choco Notes

62
(2) the testimony of their mother Yao
Kee who stated that she had five
children with Sy Kiat, only three of
whom are alive namely, Sze Sook
Wah, Sze Lai Chu and Sze Chin Yan
[TSN, December 12, 1977, pp. 9-11;]
and,
(3) an affidavit executed on March
22,1961 by Sy Kiat for presentation to
the Local Civil Registrar of Manila to
support Sze Sook Wah's application for
a marriage license, wherein Sy Kiat
expressly stated that she is his
daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion
Gillego that Sy Kiat told her he has three daughters
with his Chinese wife, two of whomSook Wah and
Sze Kai Choshe knows, and one adopted son [TSN,
December 6,1977, pp. 87-88.]
However, as petitioners failed to establish the
marriage of Yao Kee with Sy Mat according to the laws
of China, they cannot be accorded the status of
legitimate children but only that of acknowledged
natural children. Petitioners are natural children, it
appearing that at the time of their conception Yao Kee
and Sy Kiat were not disqualified by any impediment to
marry one another [See Art. 269, Civil Code.] And they
are acknowledged children of the deceased because
of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"]
and its extension to Sze Lai Cho and Sy Chun Yen
who are her sisters of the full blood [See Art. 271, Civil
Code.]
Private respondents on the other hand are also the
deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for
twenty-five (25) years without the benefit of marriage.
They have in their favor their father's acknowledgment,
evidenced by a compromise agreement entered into
by and between their parents and approved by the
Court of First Instance on February 12, 1974 wherein
Sy Kiat not only acknowleged them as his children by
Asuncion Gillego but likewise made provisions for their
support and future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that
they are common-law husband and
wife and that out of such relationship,
which they have likewise decided to
definitely and finally terminate effective
immediately, they begot five children,
namely: Aida Sy, born on May 30,
1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955;
Ricardo Sy now deceased, born on
December 14, 1956; and Rodolfo Sy,
born on May 7, 1958.
3. With respect to the AVENUE
TRACTOR AND DIESEL PARTS
SUPPLY ... , the parties mutually agree
and covenant that
(a) The stocks and
merchandize and the
furniture and
equipments ..., shall be
divided into two equal
shares between, and
distributed to, Sy Kiat
who shall own
one-half of the total
and the other half to
Asuncion Gillego who
shall transfer the same
to their children,
namely, Aida Sy,
Manuel Sy, Teresita Sy,
and Rodolfo Sy.
(b) the business name
and premises ... shall
be retained by Sy Kiat.
However, it shall be his
obligation to give to
the aforenamed
children an amount of
One Thousand Pesos (
Pl,000.00 ) monthly out
of the rental of the two
doors of the same
Choco Notes

63
building now occupied
by Everett
Construction.
xxx xxx xxx
(5) With respect to the acquisition,
during the existence of the
common-law husband-and-wife
relationship between the parties, of the
real estates and properties registered
and/or appearing in the name of
Asuncion Gillego ... , the parties
mutually agree and covenant that the
said real estates and properties shall
be transferred in equal shares to their
children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy, but to be
administered by Asuncion Gillego
during her lifetime ... [Exhibit "D".]
(Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement
before a court of record by which a child may be
voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the
validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been
ventilated in the Juvenile and Domestic Relations
Court.
Specifically, petitioners rely on the following provision
of Republic Act No. 5502, entitled "An Act Revising
Rep. Act No. 3278, otherwise known as the Charter of
the City of Caloocan', with regard to the Juvenile and
Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of
the Court.
xxx xxx xxx
The provisions of the Judiciary Act to
the contrary notwithstanding, the court
shall have exclusive original jurisdiction
to hear and decide the following cases:
xxx xxx xxx
(2) Cases involving custody,
guardianship, adoption, revocation of
adoption, paternity and
acknowledgment;
(3) Annulment of marriages, relief from
marital obligations, legal separation of
spouses, and actions for support;
(4) Proceedings brought under the
provisions of title six and title seven,
chapters one to three of the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome
[G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA
307.]
With the enactment of Batas Pambansa Blg. 129,
otherwise known as the Judiciary Reorganization Act
of 1980, the Juvenile and Domestic Relations Courts
were abolished. Their functions and jurisdiction are
now vested with the Regional Trial Courts [See
Section 19 (7), B.P. Blg. 129 and Divinagracia v.
Belosillo, G.R. No. L-47407, August 12, 1986, 143
SCRA 356, 360] hence it is no longer necessary to
pass upon the issue of jurisdiction raised by
petitioners.
Moreover, even without the exactment of Batas
Pambansa Blg. 129 we find in Rep. Act No. 5502 sec.
91-A last paragraph that:
xxx xxx xxx
If any question involving any of the
above matters should arise as an
incident in any case pending in the
ordinary court, said incident shall be
determined in the main case.
Choco Notes

64
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No.
L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted
section 1 of Republic Act No.
4834 **** a case involving paternity and
acknowledgment may be ventilated as an
incident in the intestate or testate
proceeding (See Baluyot vs. Ines
Luciano, L-42215, July 13, 1976). But
that legal provision presupposes that
such an administration proceeding is
pending or existing and has not been
terminated. [at pp. 313-314.] (Emphasis
supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the
rendition of conflicting rulings on the same issue by the
Court of First Instance and the Juvenile and Domestic
Relations Court" [Vda. de Baluyut v. Luciano, G.R. No.
L-42215, July 13, 1976, 72 SCRA 52, 63] but more
importantly to prevent multiplicity of suits. Accordingly,
this Court finds no reversible error committed by
respondent court.
WHEREFORE, the decision of the Court of Appeals is
hereby AFFIRMED.
SO ORDERED.

Persons Cases

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Persons Cases

Uploaded by

Copyright:

Available Formats

Choco Notes

Persons and Family Relations Cases

You might also like