AZCUNA

UPDATES

1) The Comelec en banc cannot now be declared to have
committed grave abuse of discretion in disqualifying petitioner
candidate for Representatative because (1) the Comelec
decision is already final, the petition here having been filed
after five days from notice, and (2) Comelec still has
jurisdiction over the case since petitioner had not yet assumed
office. HRET's jurisdiction sets in when the candidate has
been proclaimed, has taken oath and has assumed office.

(Regina Ongsiako Reyes v. Comelec, G.R. No. 207264, June
25, 2013. (En Banc, Perez, J.)

(The proclamation of a winning candidate divests the
Comelec of its jurisdiction over matters pending before it at the
time of the proclamation. (Limkaichong v. Comelec, G.R. Nos.
178831-32, etc., April 1, 2009, 583 SCRA 1). HRET rules
count the 15-day period to file protests and quo warranto from
the time of the proclamation, Rule 16 & 17. Dissenting
Opinion of Brion, J.).

Furthermore, Comelec committed grave abuse of
discretion in finding petitioner to have lost and abandoned her
domicile of origin when she became a naturalized American
citizen. (Ibid.,Brion, J.)


2) Renunciation of US citizenship followed by repeated use
of US passport shows lack of abandonment of US citizenship.

(Maquiling v. Comelec, G.R. No. 195649, July 2, 2013.
(Resolution En Banc, C.J.).


3) Bigamy is commited where the first marriage still
existed when the second marriage was contracted, even if the
first marriage is later declared void.

(Capili v. People, G.R. No. 183805, July 3, 2013. (3rd Div.,
Peralta, J.)


4) Decisions of the Ombudsman are immediately
executory.

The rule of procedure in the Ombudsman office is that
where the respondent is absolved of the charge, or where
respondent is convicted and the penalty imposed is public
censure or reprimand or suspension of not more than one
month or a fine equivalent to one month salary, the decision is
final, executory and unappealable.

In all other cases, the decision may be appealed to the
Court of Appeals but the appeal shall not stop the decision
from being executory.

If the penalty is suspension or removal and the
respondent wins such appeal, respondent shall be considered as
having been under preventive suspension and shall be paid the
salary and such other emoluments not received by reason of
the suspension or removal.

(Office of the Ombudsman v. Ernesto M. Echavez, et al., G.R.
No. 172206, July 3, 2013 (3rd Div., Peralta, J.)


5) The rule in redemption of properties is that it is not
sufficient that a person offering to redeem manifests a desire to
do so. The statement of intention must be accompanied by an
actual and simultaneous tender of payment. This constitutes
the exercise of the right to repurchase. (See, Art. 1616, Civil
Code).

Signifying their intention to avail of the incentive
scheme (liberalizing payments and terms) did not amount to an
exercise of redemption precluding the bank from making the
public sale.

(Note by ASA: The liberalized incentive scheme
program was to expire on December 31, 1988. The bank sold
the properties on November 4, 1988. Yet, petitioners' claim
that the sale was premature was rejected by the SC on the
ground that the evidence (a letter) did not show that the bank
had unequalifiedly represented to petitioners that it had
extended the redemption period to December 31, 1988. The
letter to petitioners had said both that the incentive scheme
[open to all owners of foreclosed properties] would expire
December 31, 1988, and that their own redemption was up to
April 21, 1988. For me, the letter of the bank was
misleading.)

(Spouses Hojas v. Philippine Amanah Bank, G.R. No. 193453,
June 5, 2013. (3rd Div., Mendoza, J.)


6) An unregistered deed of sale has an inferior probative
value to a title certificate.
(Meralco v. Heirs of Spouses Deloy, G.R. No. 192893, June 5,
2013, (3rd Div., Mendoza, J.)

7) A broker has the right to the agreed commission even if
the owner revoked his authority and directly negotiated with
the buyer whom the owner met thru the broker's efforts.
(Infante v. Cunanan, 93 Phil. 691, 695 [1953]).

As for the fact that the properties were eventually sold
for less than the original asking price, that was within the
owner's discretion, decided unilaterally without consulting the
broker. Thus, the owner should be deemed to have waived its
own minimum price requirement.

(Oriental Petroleum & Minerals Corp. v. Tuscan Realty,
Inc., G.R. No. 195481, July 10, 2013. (3rd Div., Abad, J.)


8) When is a person engaged in labor-only contracting?
What is its effect?

Any person who undertakes to supply workers to an
employer is engaged in labor-only contracting where such
person:

(1) Does not have substantial capital or investment in
the form of tools, equipment, machineries, work premises and
other materials, and,

(2) The workers recruited and placed by such person are
performing activities which are directly related to the principal
[activity] or operations of the employer in which the workers
are habitually employed.

Such act (labor-only contracting) is prohibited and the
person acting as contractor shall be considered merely as an
agent of the employer and shall be responsible to the workers
in the same manner and extent as if the latter were directly
employed by him. (Sec. 8, DOLE Dept. Order No. 10, Series
of 1997).

(First Phil. Industrial Corp. v. Raquel M. Calimbas, G.R. No.
179256, July 10, 2013. (3rd Div., Peralta, J.)


9) Fair market value of land taken for agrarian reform is
reckoned as of the time of the taking.

(Heirs of Spouses Tria v. Land Bank, G.R. No. 170245, July 1,
2013. (3rd Div., Perez, J.)



10) The Rules of Court provide that a final and executory
judgment may be executed by motion within 5 years from the
date of its entry or by action after the lapse of 5 years and
before prescription sets in. This Court, however, has allowed
exceptions, when execution may be made by motion after 5
years, where the delay is caused or occasioned by actions of
the judgment obligor and/or incurred for his benefit or
advantage. The rationale for the rule is to prevent parties from
sleeping on their rights. In the case of exception, the party
moving cannot be said to have slept on his rights.

(RCBC v. Serra, G.R. No. 203241, July 10, 2013. (2nd Div.,
Carpio, J.)


11) The rule is that a proper special procedings is required
to declare heirship and the issue cannot be ventilated in a suit
for recovery of property. Exceptions:

(1) For practical reasons, when it appeared that no other
property was involved in the inheritance and the parties in the
civil case had voluntarily submitted the issue to the trial court
and already presented their evidence regarding the heirship and
the RTC consequently rendered judgment thereon, or

(2) When a special proceeding had been instituted but
had been finally closed and terminated, and, hence, cannot be
re-opened.

(Heirs of Magdaleno Ypon v. Ponteras, G.R. No. 198680, July
8, 2013. (Resolution En banc, Perlas-Bernabe, J.)


12) Relaxation of procedural rules by way of exceptions to
finality and entry of judgments (the doctrine of immutability of
judgments) are allowed by reversing judgments and recalling
their entries in the interest of substantial justice and where
special and compelling reasons exist for such actions. (Apo
Fruits Corp. v. Land Bank, G.R. No. 164195, Oct. 12, 2010,
632 SCRA 727, 760 citing Equitable Banking Corp. v. Sadac,
G.R. No. 164772, June 8, 2006, 490 SCRA 380, 416-417).

Bases Conversion Development Authority v. Rosa Reyes
Cenando, G.R. No. 194242, June 19, 2013. (2nd Div., Perlas-
Bernabe, J.)

1) Removal of chairs in the bottling plant of Coca-Cola
Bottlers Phils., Inc. not violative of labor laws.

1. Law requires chairs only for women workers. In this
case, all operators were men.

2. Removal of chairs was done in good faith, to increase
efficiency and prevent operators from falling asleep on the job,
and was compensated by reduced operating hours and increase
of the break periods.

3. Nature of the work called for moving constantly
while working, so the chairs were not necessary.

4. Prolonged sitting at work poses health hazards, per
scientific studies.

(Royal Plant Workers Union v. Coca-Cola Bottlers Phils., Inc.-
Cebu Plant, G.R. No. 198783, April 15, 2013. (3rd Div.,
Mendoza, J.)


2) The doctrine of indefeseability of Torrens title does not
extend to transferees who take the certificate of title in bad
faith.

In this case: petitioners-buyers acted in bad faith: (1)
seller did not have possession of subject property; (2) during
the sale, seller did not have the owner's duplicate copy of the
title; (3) there were existing permanent improvements on the
land; (4) respondents were in actual possession of the land.

(Sps. Esmeraldo D. Vallido, et al. v. Sps. Elmer Pono, et al.,
G.R. No. 200173, April 15, 2013. (3rd Div., Mendoza, J.)


3) An indispensable party is a party-in-interest without
whom no final determination can be had of the action.

Non-joinder of an indispensable party is not a ground for
dismissal of an action. The court should have directed
petitioner to implead the indispensable party. In case of
refusal, then the court can dismiss the complaint for plaintiff's
failure to comply with the order.

(Heirs of Faustino Mesina v. Heirs of Domingo Fian,
G.R. No. 201816, April 8, 2013. (3rd Div., Velasco, Jr., J.)


4) An amicable settlement reached after a barangay
conciliation, per the Revised Katarungang Pambarangay Law,
has the force and effect of a final judgment of the court,

Exception

When repudiated or a petition to nullify it is filed before
the proper city of municipal court in 10 days from its date.

Enforcement

The settlement may be enforced by execution by the
lupong tagapamayapa in 6 months from its date, or by action in
the appropriate city of municipal court beyond such period.

The Precept

The precept under Art. 2037, Civil Code, is that a
Compromise Agreement that is not contrary to law, public
order, public policy, morals or good customs, is a valid
contract which is the law between the parties and has the effect
of res judicata even if not judicially approved.

The Precept Qualified

However, Art. 2041, Civil Code, (effective August 30,
1950), grants for the first time the right of rescission to a party
of a Compromise Agreement in case the other party violates its
terms. The aggrieved party has the right to either enforce the
Compromise Agreement or regard it as rescinded and insist
upon his original demand.

Art. 2041, Civil Code, therefore, qualifies the broad
precept under Art. 2037 that [A] Compromise has upon the
parties the effect and authority of res judicata.

Furthermore, in exercising the option of rescission, the
aggrieved party may bring the suit contemplated or involved
in his original demand, as if no Compromise Agreement had
ever been entered into, without need to bring an action for
rescission, because by the breach of the other party he may
regard the compromise as already rescinded. Citing,Valdez v.
CA, G.R. No. 159411, March 18, 2005, 453 SCRA 843.

(Rey Castegador Catedrilla v. Mario and Margie Lauron, G.R.
No. 179011, April 15, 2013. (3rd Div., Peralta, J.)



5) The Purpose of Amparo

The Writ of Amparo serves both preventive and curative
roles in addressing the problem of extrajudicial killings and
enforced disappearances.

It is preventive in that it breaks the expectation of
impunity in the commission of these offenses, and it is curative
in that it facilitates the subsequent punishment of perpetrators
by inevitably leading to subsequent investigation and action.

In this case, the thrust of ensuring that the investigations
are conducted and the rights to life, liberty and security of the
petitioner, remains.

Substantial Evidence Suffices

The Writ of Amparo partakes of a summary proceeding
that requires only substantial evidence to make the appropriate
interim and permanent reliefs available to the petitioner.

The Totality of the Evidence is the Standard

The totality of the evidence as a standard for the grant of
the writ was correctly applied here.

As first laid down in Razon v. Tagitis, [G.R. No. 182498,
December 3, 2009, 606 SCRA 598, 692], the fair and proper
rule is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with
the admissible evidence adduced. In other words, we reduce
our rules to the most basic test of reason i.e., to the relevance
of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum
test. [Emphasis supplied by Supreme Court to
the Tagitis quote].

Directive to Investigate Stands

The Supreme Court thus denied respondents-military
officers' motion for reconsideration of the decision of
November 15, 2011, and directed the Office of the
Ombudsman and the DOJ to take appropriate action with
respect to any possible liability or liabilities, within their
respective legal competence, that may have been incurred by
respondents-military officers, for the abduction and torture of
petitioner as narrated in petitioner's Sinumpaang
Salaysay which is a meticulous and straighforward account of
his horrific ordeal with the military, detailing the manner in
which he was captured and maltreated on account of his
suspected membership in the NPA.

(In the matter of the Petition for a Writ of Amparo, and
Habeas Data, in favor of Noriel Rodriquez, Rodriguez v.
Gloria Macapagal-Arroyo, et al., G.R. No. 191805; Police
Director Gen. Jesus H. Verzosa v. Noriel Rodriguez, G.R. No.
193160, April 16, 2013. (ResolutionEn Banc, Sereno, C.J.)


6) LGUs and DENR share the responsibility in the
sustainable management and development of the forest
reserves within their territorial jurisdiction. The LGUs'
capacity in forest management is to be enhanced and then the
primary tasks of management of devolved functions shall be
performed by the LGUs and the role of the DENR becomes
assistive and coordinative.

Mayor Ruzol's permit to transport was held invalid for
failure to follow required procedure and for absence of
supporting ordinance.

But he is not guilty of usurpation of official functions
since he acted in good faith and he did not intend his permit to
supplant that of DENR but to complement it.

(Leovegildo R. Ruzol v. Hon. Sandiganbayan, G.R. Nos.
186735-960, April 17, 2013. (3rd Div., Velasco, J.)

1) Relinquishment and waiver of rights under contract by
failure to demand it... (F.F. Cruz & Co., Inc. v. HR
Construction Corp., G.R. No. 187521, March 14, 2012)

2) Recognization of foreign judgment (Minoru Fujiki v.
Maria Paz Galela Marinay, et al., G.R. No. 196049, June 26,
2013):

For the purpose, Philippine courts will only determine
(1) whether the foreign judgment is inconsistent with an
overriding public policy in the Philippines; and (2) whether
any alleging party is able to prove an intrinsic ground to repel
the foreign judgment, i.e., want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact. If
there is neither inconsistency with public policy nor adequate
proof to repel the judgment, Philippine courts should, by
default, recognize the foreign judgment as part of the comity of
nations. Section 48(b), Rule 39 of the Rules of Court states
that the foreign judgment is already presumptive evidence of
a right between the parties. Upon recognition of the foreign
judgment, this right becomes conclusive and the judgment
serves as the basis for the correction or cancellation of entry in
the civil registry. The recognition of the foreign judgment
nullifying a bigamous marriage is a subsequent event that
establishes a new status, right and fact. [See Rules of Court,
Rule 1, Sec. 3(c)] that needs to be reflected in the civil
registry. Otherwise, there will be an inconsistency between the
recognition of the effectivity of the foreign judgment and the
public records of the Philippines.

3) IBP Election of Executive Vice-President (2011-
2013) dispute resolved (Atty. Marcial M. Magsino,- et al. v.
Atty. Rogelio A. Vinluan, et al., A.C. No. 09-5-2-SC & AC No.
8292, April 11, 2013):

To avoid the endless conflicts, confusions and
controversies which have been irritably plaguing the IBP, the
solution is to start another rotational round, a new cycle, open
to all regions. At any rate, all regions, after the election of
Libarios, would be considered as already having its turn in the
presidency. This is not to detract from the fact that under
Section 47, as amended, and from the persistent rulings, the
position of EVP-IBP is the one being actually rotated, but as
stated in the December 14, 2010 Resolution (Rollo, pp. 2998-
3026), it will enable the IBP to start on a clean and correct
slate, free from the politicking and the under handed tactics
that have characterized the IBP elections for so long.


Section 47 of the I BP
By-Laws should be further
amended

Whatever the decision of the Court may be, to prevent
future wranglings and guide the IBP in their future course of
action, Section 47 and Section 49 of the IBP By-laws should
again be amended. Stress should be placed on the automatic
succession of the EVP to the position of the president.
Surprisingly, the automatic succession does not appear in
present Section 47, as ordered amended by the Court in the
December 14, 2010 Resolution. It should be restored.
Accordingly, Section 47 and Section 49, Article VII, are
recommended to read as follows:

Sec. 47. Election of National President Executive Vice
President. The Integrated Bar of the Philippines shall have a
President, an Executive Vice President, and nine (9) regional
Governors. The Governors shall be ex-officio Vice President
for their respective regions.

The Board of Governors shall elect the President and
Executive Vice President from among themselves each by a
vote of at least five (5) Governors. Upon expiration of the term
of the President, the Executive Vice-President shall
automatically succeed as President.

Each region, as enumerated under Section 3, Rule 139-A
of the Rules of Court, shall have the opportunity to have its
representative elected as Executive Vice-President, provided
that, the election for the position of Executive Vice President
shall be on a strict rotation by exclusion basis. A region, whose
representative has just been elected as Executive Vice
President, can no longer have its representative elected for the
same position in subsequent elections until after all regions
have had the opportunity to be elected as such. At the end of
the rotational cycle, all regions, except the region whose
representative has just served the immediately preceding term,
may be elected for another term as Executive VicePresident in
the new rotational cycle. The region whose representative
served last in the previous rotational cycle may be elected
Executive Vice-President only after the first term of the new
rotational cycle ends, subject once more to the rule on
exclusion.

The order of rotation by exclusion shall be without
prejudice to the regions entering into a consensus to adopt any
pre-ordained sequence in the new rotation cycle provided each
region will have its turn in the rotation.

A violation of the rotation rule in any election shall be
penalized by annulment of the election and disqualification of
the offender from election or appointment to any office in the
IBP.

SEC. 49. Terms of office. - The President and the
Executive Vice-President shall hold office for a term of two
years from July 1 following their election until June 30 of their
second year in office and until their successors shall have been
duly chosen and qualified.

In the event the President is absent or unable to act, his
functions and duties shall be performed by the Executive Vice
President, and in the event of the death, resignation, or removal
of the President, the Executive Vice President shall serve as
Acting President for the unexpired portion of the term. His
tenure as such shall not be considered a new turn in the
rotation.

In the event of death, resignation, removal or disability
of the Executive Vice President, the Board of Directors shall
elect among the regions qualified to be elected as Executive
Vice President to serve the unexpired portion of the term or
period of disability.

In the event of the death, resignation, removal or
disability of both the President and the Executive Vice
President, the Board of Governors shall elect an Acting
President to hold office for the unexpired portion of the term or
during the period of disability. Unless otherwise provided in
these By-Laws, all other officers and employees appointed by
the President with the consent of the Board shall hold office at
the pleasure of the Board or for such term as the Board may
fix.

Creation of a permanent
Committee for I BP Affairs

To further avoid conflicting and confusing rulings in the
various IBP cases like what happened to this one, the
December 14,2010 Resolution and Velez [Velez v. de Vera, 528
Phil. 783, 810-812 (2006)], it is recommended that the Court
create a committee for IBP affairs to primarily attend to the
problems and needs of a very important professional body and
to make recommendation for its improvement and
strengthening.

WHEREFORE, the Court hereby resolves to:

1] GRANT the Motion for Leave to Intervene and to Admit the
Attached Petition In Intervention;

2] DECLARE that the election for the position of the EVP for
the 2011-2013 term be open to all regions.

3] AMEND Section 47 and Section 49, Article VII of the IBP
By-Laws to read as recommended in the body of this
disposition.

4] CREATE a permanent Committee for IBP Affairs.

SO ORDERED.


4) System of issuance of acknowledgment receipts
allowed. (Frederick James C. Orais v. Dr. Amelia C.
Almirante, G.R. No. 181195, June 10, 2013)

5) Collateral source rule not applicable to no-fault
insurance contracts (Darma Maslag v. Elizabeth Monzon, et
al., G.R. No. 174908, June 17, 2013:

Atty. Funk erred in applying the
collateral source rule.

The Voluntary Arbitrator based his ruling on the opinion
of Atty. Funk that the employees may recover benefits from
different insurance providers without regard to the amount of
benefits paid by each. According to him, this view is consistent
with the theory of the collateral source rule.

As part of American personal injury law, the collateral
source rule was originally applied to tort cases wherein the
defendant is prevented from benefitting from the plaintiffs
receipt of money from other sources. (YOUNG, MELISSA.
TORT REFORM AND THE COLLATERAL SOURCE
RULEwww.google.com;www.aaos.org/news/aaosnow/mar09/
managing4.asp.>, (visited March 1, 2013). Under this rule, if
an injured person receives compensation for his injuries from a
source wholly independent of the tortfeasor, the payment
should not be deducted from the damages which he would
otherwise collect from the tortfeasor. (BLACKS LAW
DICTIONARY WITH PRONUNCIATIONS, (Sixth ed.
1990/Centennial Edition). In a recent Decision (Wills v. Foster,
Jr., 229 Ill. 2d 393, 399 (Ill. 2008) by the Illinois Supreme
Court, the rule has been described as an established exception
to the general rule that damages in negligence actions must be
compensatory. The Court went on to explain that although the
rule appears to allow a double recovery, the collateral source
will have a lien or subrogation right to prevent such a double
recovery.(Id.) In Mitchell v. Haldar, [883 A.2d 32, 37-38 (Del.
2005)] the collateral source rule was rationalized by the
Supreme Court of Delaware:

The collateral source rule is predicated on the theory that a
tortfeasor has no interest in, and therefore no right to benefit
from monies received by the injured person from sources
unconnected with the defendant. According to the collateral
source rule, a tortfeasor has no right to any mitigation of
damages because of payments or compensation received by the
injured person from an independent source. The rationale for
the collateral source rule is based upon the quasi-punitive
nature of tort law liability. It has been explained as follows:

The collateral source rule is designed to strike a balance
between two competing principles of tort law: (1) a plaintiff is
entitled to compensation sufficient to make him whole, but no
more; and
(2) a defendant is liable for all damages that proximately
result from his wrong. A plaintiff who receives a double
recovery for a single tort enjoys a windfall; a defendant who
escapes, in whole or in part, liability for his wrong enjoys a
windfall. Because the law must sanction one windfall and deny
the other, it favors the victim of the wrong rather than the
wrongdoer.

Thus, the tortfeasor is required to bear the cost for the full
value of his or her negligent conduct even if it results in a
windfall for the innocent plaintiff. (Citations omitted)

As seen, the collateral source rule applies in order to
place the responsibility for losses on the party causing them.
(PERILLO, JOSEPH M., THE COLLATERAL SOURCE
RULES IN CONTRACT CASES, San Diego Law Review, 46
San Diego L. Rev. 705, 709-710 (Summer,
2009); www.lexis.com.>. Its application is justified so that
"'the wrongdoer should not benefit from the expenditures made
by the injured party or take advantage of contracts or other
relations that may exist between the injured party and third
persons. (Wills v. Foster, Jr., supra note 40 at 397). Thus, it
finds no application to cases involving no-fault insurances
under which the insured is indemnified for losses by insurance
companies, regardless of who was at fault in the incident
generating the losses. (BLACKS LAW DICTIONARY, (Fifth
ed. 273, 1979). Here, it is clear that MMPC is a no-fault
insurer. Hence, it cannot be obliged to pay the hospitalization
expenses of the dependents of its employees which had already
been paid by separate health insurance providers of said
dependents.

The Voluntary Arbitrator therefore erred in adopting
Atty. Funks view that the covered employees are entitled to
full payment of the hospital expenses incurred by their
dependents, including the amounts already paid by other health
insurance companies based on the theory of collateral source
rule.


6) Interest rates of 3%/month excessive and void!!!
(Sps. Deo Agner & Maricon Agner v. BPI Family Savings
Bank, et al., G.R. No. 182963, June 3, 2013):

Settled is the principle which this Court has affirmed in a
number of
cases that stipulated interest rates of three percent (3%) per
month and higher are excessive, iniquitous, unconscionable,
and exorbitant. (Arthur F. Menchavez v. Marlyn M. Bermudez,
G.R. No. 185368, October 11, 2012). While Central Bank
Circular No. 905-82, which took effect on January 1, 1983,
effectively removed the ceiling on interest rates for both
secured and unsecured loans, regardless of maturity, nothing in
the said circular could possibly be read as granting carte
blanche authority to lenders to raise interest rates to levels
which would either enslave their borrowers or lead to a
hemorrhaging of their assets. (Macalinao v. Bank of the
Philippine Islands, G.R. No. 175490, September 17, 2009, 600
SCRA 67, 77, citing Chua v. Timan, G.R. No. 170452, August
13, 2008, 562 SCRA 146, 149-150). Since the stipulation on
the interest rate is void for being contrary to morals, if not
against the law, it is as if there was no express contract on said
interest rate; thus, the interest rate may be reduced as reason
and equity demand. (Arthur F. Menchavez v. Marlyn M.
Bermudez, G.R. No. 185368, October 11, 2012, citing
Macalinao v. Bank of the Philippine Islands, supra, at 77,
and Chua v. Timan, supra, at 150).

WHEREFORE, the petition is DENIED and the Court
AFFIRMS WITH MODIFICATION the April 30, 2007
Decision and May 19, 2008 Resolution of the Court of Appeals
in CA-G.R. CV No. 86021. Petitioners spouses Deo Agner and
Maricon Agner are ORDERED to pay, jointly and severally,
respondent BPI Family Savings Bank, Inc. (1) the remaining
outstanding balance of their auto loan obligation as of May 15,
2002 with interest at one percent ( 1 o/o) per month from May
16, 2002 until fully paid; and (2) costs of suit.

SO ORDERED.

7) Rule on pretermission of holiday if extension is
granted. (Reiner Pacific International Shippng, Inc., et al. v.
Captain Francisco B. Guevarra, G.R. No. 157020, G.R. No.
157020, June 19, 2013):

The correct rule, according to the clarification, is that
"[a]ny extension of time to file the required pleading should x
x x be counted from the expiration of the period regardless of
the fact that said due date is a Saturday, Sunday or legal
holiday."

For example, if a pleading is due on July 10 and this
happens to be a Saturday, the time for filing it shall not run,
applying Section 1 of Rule 21, on July 10 (Saturday) nor on
July 11 (Sunday) but will resume to run on the next working
day, which is July 12 (Monday). The pleading will then be due
on the latter date. If the period is extended by 10 days, such 10
days will be counted, not from July 12 (Monday) but from the
original due date, July 10 (Saturday) "regardless of the fact that
said due date is a Saturday." Consequently, the new due date
will be 10 days from July 10 or precisely on July 20.

8) What is a derivative suit? (Juanito Ang, for and in
behalf of Sunrise Marketing (Bacolod), Inc. v. Sps. Roberto
and Rachel Ang., G.R. No. 201675, June 19, 2013):

This Court, in Yu v. Yukayguan, (G.R. No. 177549, 18
June 2009, 589 SCRA 588, at 618, citing Bitong v. Court of
Appeals, 354 Phil. 516 (1998) explained:

The Court has recognized that a stockholders right to
institute a derivative suit is not based on any express provision
of the Corporation Code, or even the Securities Regulation
Code, but is impliedly recognized when the said laws make
corporate directors or officers liable for damages suffered by
the corporation and its stockholders for violation of their
fiduciary duties. Hence, a stockholder may sue for
mismanagement, waste
or dissipation of corporate assets because of a special injury to
him for which he is otherwise without redress. In effect, the
suit is an action for specific performance of an obligation owed
by the corporation to the stockholders to assist its rights of
action when the corporation has been put in default by the
wrongful refusal of the directors or management to make
suitable measures for its protection. The basis of a
stockholders suit is always one in equity. However, it cannot
prosper without first complying with the legal requisites for its
institution. (Emphasis in the original)

Section 1, Rule 8 of the Interim Rules imposes the
following requirements for derivative suits:

(1) [The person filing the suit must be] a stockholder or
member at the time the acts or transactions subject of the
action occurred and the time the action was filed;

(2) [He must have] exerted all reasonable efforts, and alleges
the same with particularity in the complaint, to exhaust all
remedies available under the articles of incorporation, by-laws,
laws or rules governing the corporation or partnership to obtain
the relief he desires;

(3) No appraisal rights are available for the act or acts
complained of; and

(4) The suit is not a nuisance or harrassment suit.

Applying the foregoing, we find that the Complaint is
not a derivative suit. The Complaint failed to show how the
acts of Rachel and Roberto resulted in any detriment to SMBI.

9) Period of Lease of land extended by the court
(Conrado O. Almagro v. Sps. Manuel Amaya, Sr., et al., G.R.
No. 179685, June 19, 2013)

10) Law of the case explained (Sps. Manuel Sy and
Victoria Sy v. Genalyn D. Young, G.R. No. 169214, June 19,
2013):

Law of the case has been defined as the opinion
delivered on a former appeal. It means that whatever is once
irrevocably established 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. (Radio
Communications of the Phils., Inc. v. CA, 522 Phil. 267, 273
(2006), citing Padillo v. Court of Appeals, 422 Phil. 334
(2001).

We point out in this respect that the law of the case does
not have the finality of res judicata. Law of the case applies
only to the same case, whereas res judicata forecloses parties
or privies in one case by what has been done in another case.
In law of the case, the rule made by an appellate court cannot
be departed from in subsequent proceedings in the same case.
Furthermore, law of the case relates entirely to questions of
law while res judicata is applicable to the conclusive
determination of issues of fact. Although res judicata may
include questions of law, it is generally concerned with the
effect of adjudication in a wholly independent
proceeding. (Padillo v. Court of Appeals, supra, at 352, citing
Comilang v. Court of Appeals (Fifth Division), 160 Phil. 85
(1975).

The rationale behind this rule is 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. Without it, there
would be endless litigation. Litigants would be free to
speculate on changes in the personnel of a court, or on the
chance of our rewriting propositions once gravely ruled on
solemn argument and handed down as the law of a given case.
(Zarate v. Director of Lands, 39 Phil. 747, 749-750 (1919).

11) Personal liability of superior for unlawful
expenditures not present here (Rosalinda Dimapilis-Baldoz v.
Commission on Audit, G.R. No. 199114, July 16, 2013):

It is well to stress that neither will it do justice to hold
Dimapilis-Baldoz personally liable simply because she
possessed the final authority for the disbursements and had
direct supervision over her subordinates. Case law exhorts that
although a public officer is the final approving authority and
the employees who processed the transaction were directly
under his supervision, personal liability does not automatically
attach to him but only upon those directly responsible for the
unlawful expenditures. (Salva v. Carague, G.R. No. 157875,
December 19, 2006, 511 SCRA 258, 264). As Dimapilis-
Baldozs direct responsibility therefor had not been
demonstrated, in addition to her good faith as above-discussed,
there is no cogent factual or legal basis to hold her personally
liable. In this respect, the Court finds that the COA gravely
abused its discretion.

12) Constitutionality of RA 9263 (VAWC) sustained
(Jesus C. Garcia v. Judge Ray Alan T. Drilon, et al., G.R. No.
179267, June 25, 2013)

13) Admin case vs a judge cannot be filed AFTER his
retirement (OCA v Retired Judge Guillermo R. Andaya, A.M.
No. RTJ-09-2181, June 25, 2013)

1) A preliminary investigation is either executive (by
a fiscal) to determine probable cause to file a case in court, or
judicial (by a judge) to determine probable cause to issue a
warrant of arrest.

The judicial type is called preliminary examination.

It's the duty of the judge to make it upon receiving a
criminal complaint or information, so a motion for judicial
determination of probable cause is superfluous.

In doing this (preliminary examination), a judge may

(1) dismiss the case outright, if from the records there's
clearly no probable cause;

(2) issue a warrant of arrest, if he determines that
probable cause exists, or

(3) ask the fiscal to submit more evidence.

(Virginia de los Santos-Dio v. Hon. Court of Appeals, G.R. No.
178947; People v. Desmond, G.R. No. 179079, June 25, 2013.
(2nd Div., Perlas-Bernabe, J.)

2) Claim for refund of tax from a local government
(City of Manila) requires (1) written claim for refund/credit
filed with local treasurer and (2) case or proceeding for refund
filed within 2 years from date of payment of tax, fee or charge
or from date taxpayer is entitled to a refund or credit.

(Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No.
190818, June 5, 2013. (2nd Div., Perlas-Bernabe, J.)


3) The Paris Convention is recognized and protection is
extended to parties thereto in trademarks.

(Ecole de Cuisine Manille (Cordon Bleu of the Philippines),
Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l.,
B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-
Bernabe,J.)


4) A disqualified candidate whose certificate of candidacy
is cancelled after assumption of office is a de
facto officer. The cancellation/ disqualification thus creates no
vacancy and no succession occurs. The de jure officer just
assumes the office.

(Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25,
2013. (En Banc, Sereno,C.J.,)


(5) Persons connected with the Court are barred from
acquiring properties and rights in litigation. (See, Art. 1491,
par. 5, Civil Code)

The meaning of in litigation is explained.

The prohibition arises from the relationship of trust
involved and seeks to prevent fraud.

It does not apply where the transaction occurs after the
contest or litigation on the thing is over.

But property subject to estate proceedings, until such
proceedings are closed and terminated, the debts paid, and the
estate is distributed to the heirs, are still in litigation and
covered by the prohibition.

(Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (En
Banc, Villarama, J.)

6) Romeo G. Jalosjos is perpetually disqualified from running
for public office. No pardon or commutation of his perpetual
disqualification was given.

(Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18,
2013 (En Banc, Perlas-Bernabe, J.)

7) A. Rule
Where an employee is terminated for a just cause, no
separation pay is due,
B. Exceptions
Except as an act of social justice or on equitable grounds,
C. Exceptions to the Exceptions
But not where the dismissal (1) was for serious misconduct or
(2)
reflected on the moral character of the employee.
(Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No.
201701, June 3, 2013. (3rd Div., Mendoza, J.).

Significant New
Decisions/Supreme Court
March 19, 2013 at 11:34pm
BY ADOLFO S AZCUNA --
COPYRIGHT 2013.


Proceedings against attorneys are private and confidential.
The final order, however, is publishable. (1)


An attorney was fined P20,000 for distributing to media
copies of her complaint for disbarment against another lawyer.
The members of media, however, who published the fact of
the filing of the complaint, were spared from sanction on the
ground that the subject matter out of which the complaint arose
was of public interest (the Ampatuan murder cases). (2)


Asking for separation pay does not prove abandonment of
employment. (3)


The Rules allow a court to reverse its decision, even motu
proprio, if it is incorrect and will cause injustice. (4)


A statute fixing the value for payment of just compensation
in eminent domain is not binding on the courts. (5)


In a contract TO sell, full payment of the purchase price is a
suspensive condition, so that non-payment by the buyer
prevents the condition from happening, and ownership remains
with the seller, with no remedies to the buyer. (6)


An employee can be dismissed for the just causes stated in
Art. 282 of the Labor Code. But the employer has to give her
two notices: A first written notice that informs the employee
of the particular acts or omissions for which her dismissal is
sought; and--after the proper hearing-- a second written notice
that informs her of the decision to dismiss her. (7)


Failure to observe the two-notice rule for dismissal is a
denial of due process but the dismissal, if for a just cause,
remains valid. The employer is however liable for nominal
damages, now fixed at P30,000, for violating the rule. (8)


Petitioner is disqualified to run for mayor in the 2010
elections for lack of residence. Building a house in the town in
not enough. (9)


Where the inculpatory evidence points to only one thing,
the guilt of respondents as charged, the Court of Appeals erred
in applying the equipoise rule. (10)


A foreign corporation not doing business in the Philippines
can file before a Philippine court a petition for confirmation,
recognition and enforcement of a foreign arbitral award. The
grounds are those set forth in Art. V of the New York
Convention on Recognition and Enforcement of Foreign
Arbitral Awards (1958), which Convention has been
incorporated into the our Alternative Dispute Resolution
(ADR) Act of 2004, which is the applicable law. (11)


The rationale for the 12% interest in just compensation for
properties taken by the State, is to compensate property owners
for the income they would have made had they been properly
compensated for their properties at the time of the taking. (12)


Proof of the victim's age in rape cases is outlined in
PRUNA (2002) and reiterated in RULLEPA (2003):

1. The best evidence - original or certified true copy of
certificate of live birth;
2. In its absence, similar authentic documents such as
baptismal certificate or school records,
showing the date of birth;
3. If the above is lost, destroyed or not available,
testimony, if clear and credible, of victim's mother or family
member qualified to testify on the matter, applying the
provisions of Sec. 40, Rule 130;
4. Absent these, the complainant's testimony will suffice
if expressly and clearly admitted by the accused;
5. The prosecution has the burden to prove the victim's
age. Failure of the accused to object to testimonial evidence
regarding age shall not be taken against him;
6. The trial court should always make a categorical
finding as to the age of the victim. (13)

In Bigamy, the subsequent annulment of the first marriage
is not a ground for exculpation. (14)

Only the Office of the Solicitor General can appeal he
criminal aspect of a case (acquittal in libel in this case). (15)

The doctrine of strained relations in labor cases applied.
(16)

The rule on forum shopping certification can be suspended
for the sake of substantial justice. (17)

Where the elements of violation of B.P. 22 (Bouncing
Check Law) already occurred, the pendency of a civil suit for
rescission of the contract involved under Art. 1191, Civil
Code, does not present a prejudicial question. The contract is
valid until rescinded, so there was no failure of consideration
when the checks were dishonored. The contract, subject to
rescission, is only voidable not void. (18)

In cases of contributory negligence, the rule is a 60-40
sharing, so the plaintiff can only recover 60 %. (19)

To hold a head of office in Government liable for
conspiracy in approving the acts of his subordinate in an anti-
graft case, there must be showing of an "added reason" for him
to scrutinize the details of the transactions in question. (20)

An example in drugs cases where the chain of custody was
held broken (21) and an example where, despite failure to
observe the niceties of procedure under the law, the conviction
was upheld because the integrity and evidentiary value of the
seized items were preserved. (22)

Piercing the veil of corporate fiction sustained on grounds
of common ownership, identity of directors and officers,
manner of keeping corporate books and records and methods
of conducting business. (23)

Disallowed benefits received in good faith need not be
reimbursed to the Government. (24)

Where a judgment has been executed pending appeal and it
is subsequently reversed, partially or totally, or annulled--on
appeal or otherwise--the trial court may, on motion, issue such
orders of restitution or reparation of damages as equity and
justice may warrant under the circumstances. (25)

Ordinance No. 9503-2005 of the City of Cagayan de Oro is
declared void. It imposes a 10% tax on gross receipts of lease
of poles during the preceding calendar year, whereas the Local
Government Code limits the rate to not exceeding 2% of gross
sales on receipts of the preceding year. (26)

A judicial claim for refund or credit of a tax can only be
filed AFTER the lapse of 60 days from the filing of the
administrative claim. San Roque filed its judicial claim (for
over P400 MM) just 13 days after filing its administrative
claim. It, therefore, cannot recove any refund or credit. (27)

N O T E S


(1) Sec. 18, Rule 139-B, Rules of Court.

(2) Fortun v Quinsayas, G R No 194578, Feb 13. 2013.

(3) Tegimenta Chemical v Oco, G R No 175369, Feb 27,
2013.

(4) Ibid., citing Sec. 5(g), Rule 135, Rules of Court.

(5) Spouses Cabahug v NPC, G R No 186069, Jan 30,
2013, referring to Sec. 3-A,
Republic Act No 6395 which provides that only 10%
of the market value of a
property is due to the owner if it is subject to an
easement of right of way.

(6) Diego v Diego, G R No 179965, Feb 20, 2013.

(7) Sang-an v Equator Knights, G R No 173169, Feb 13,
2013
.
(8) Ibid., applying the AGABON doctrine (2004).

(9) Svetlana P Jalosjos v Comelec, G R No 193314, Feb
26, 2013.

(10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.

(11) Tuna Processing v Philippine Kingford, G R No
185587, Feb 29, 2012.

(12) LBP v Obias, G R No 184406, Mar 14, 2012.

(13) Peo v Viojela, G R No 177140, Oct 17, 2012.

(14) Montanez v Cipriano, G R No 181089, Oct 22,2012.

(15) Bautista v Sharon G Cuneta-Pangilinan, G R No
189754, Oct 24, 2012.

(16) Martos v New San Jose Builders, G R No 192650, Oct
24, 2012.

(17) Rodriguez v People, G R No 192799, Oct 24, 2012.

(18) Reyes v Rossi, G R No 159823, Feb 18, 2013.

(19) Allied Banking Corp v BPI, G R No 188363, Feb 27,
2013.

(20) Jaca v People, G R No 166967, and consolidated cases,
Jan 28, 2013.

(21) Peo v Secreto, G R No 198115, Feb 27, 2013.

(22) Peo v Langcua, G R No 190343, Feb 6, 2013.

(23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No
166282, and consolidated cases,
Feb 13, 2013.

(24) Nazareth v Hon Reynaldo A Villar, G R No 188635,
Jan 29, 2013.

(25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20,
2013.

(26) Cagayan Electric v City of Cagayan de Oro, G R No
191761, Nov 14, 2012.

(27) Com'r of Int Revenue v San Roque Power Corp, G R
No 187485, and consolidated
cases, Feb 12, 2013.

"Betrayal of Public Trust Defined
For The First Time" by Justice
Adolfo S. Azcuna
October 3, 2012 at 9:13am
In Emilio A. Gonzales III v. Hon. Paquito N. Ochoa, Jr., G.R.
No. 196231, September 4, 2012, the Supreme Court, by a vote
of 8 to 6, with Madam Justice Estela M. Perlas-Bernabe
as ponente, upheld the power of the President to remove the
Deputy Ombudsman, pursuant to Republic Act No. 6770, the
Ombudsman Act of 1989, on the same grounds provided for
impeachment of the Ombudsman under the Constitution,
namely, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes and betrayal of public
trust.

Deputy Ombudsman Emilio A. Gonzales III was removed
by President Benigno S. Aquino III on the ground of betrayal
of public trust in connection with the manner he handled the
case of P/S Insp. Mendoza, the policeman who hijacked a
tourist bus at the Luneta.

The Supreme Court, while upholding the Presidents
power to remove petitioner Gonzales III on the ground of
betrayal of public trust, held that in this case the acts and
omissions of petitioner did not amount to betrayal of public
trust.

Salient parts of the ruling defining for the first time the
concept of betrayal of public trust as a ground for removal, the
same ground available in cases of impeachment, are thus very
instructive:

"The Constitutional Commission eventually found it
reasonably acceptable for the phrase betrayal of public trust to
refer to '[a]cts which are just short of being criminal but
constitute gross faithlessness against public trust, tyrannical
abuse of power, inexcusable negligence of duty, favoritism,
and gross exercise of discretionary powers.' In other words,
acts that should constitute betrayal of public trust as to warrant
removal from office may be less than criminal but must be
attended by bad faith and of such gravity and seriousness as the
other grounds for impeachment.

"A Deputy Ombudsman and a Special Prosecutor are not
impeachable officers. However, by providing for their
removal from office on the same grounds as removal by
impeachment, the legislature could not have intended to
redefine constitutional standards as culpable violation for the
Constitution, treason, bribery, graft and corruption, other high
crimes, as well as betrayal of public trust, and apply them less
stringently. Hence, wherebetrayal of public trust, for purposes
of impeachment, was not intended to cover all kinds of official
wrongdoing and plain errors of judgment, this should remain
true even for purposes of removing a Deputy Ombudsman and
Special Prosecutor from office. Hence, the fact that the
grounds for impeachment have been made statutory grounds
for the removal by the President of a Deputy Ombudsman and
Special Prosecutor cannot diminish the seriousness of their
nature nor the acuity of their scope. Betrayal of public trust
could not 'overreach' to cover acts that are not vicious or
malevolent on the same level as the other grounds for
impeachment.

"The tragic hostage-taking incident was the result of a
confluence of several unfortunate events including system
failure of government response. It cannot be solely attributed
then to what petitioner Gonzales may have negligently failed to
do for the quick, fair and complete resolution of the case, or to
his error of judgment in the disposition thereof. Neither should
petitioners official acts in the resolution of P/S Insp.
Mendozas case be judged based upon the resulting deaths at
the Quirino Grandstand. The failure to immediately act upon a
partys requests for an early resolution of his case is not, by
itself, gross neglect of duty amounting to betrayal of public
trust. Records show that petitioner took considerably less time
to act upon the draft resolution after the same was submitted to
his appropriate action compared to the length of time that said
draft remained pending and unacted upon in the Office of
Ombudsman Merceditas N. Gutierrez. He reviewed and
denied P/S Insp. Mendozas motion for reconsideration within
nine (9) calendar days reckoned from the time the draft
resolution was submitted to him on April 27, 2010 for the
latters final action. Clearly, the release of any final order on
the case was no longer in his hands.

"Even if there was inordinate delay in the resolution of
P/S/ Insp. Mendozas motion and an unexplained failure of
petitioners part to supervise his subordinates in its prompt
disposition, the same cannot be considered a vicious and
malevolent act warranting his removal for betrayal of public
trust. More so because the neglect imputed upon petitioner
appears to be an isolated case.

"Similarly, petitioners act of directing the PNP-IAS to
endorse P/S Insp. Mendozas case to the Ombudsman without
citing any reason therefor cannot, by itself, be considered a
manifestation of his undue interest in the case that would
amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or
private parties is part and parcel of the constitutional mandate
of the Office of the Ombudsman to be the 'champion of the
people.' The factual circumstances that the case was turned
over to the Office of the Ombudsman upon petitioners
request; that administrative liability was pronounced against
P/S Insp. Mendoza even without the private complainant
verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for
reconsideration thereof remained pending for more than nine
months cannot be simply taken as evidence of petitioners
undue interest in the case considering the lack of evidence of
any personal grudge, social ties or business affiliation with any
of the parties to the case that could have impelled him to act as
he did. There was likewise no evidence at all of any bribery
that took place, or of any corrupt intention or questionable
motivation.

"Accordingly, the OPs pronouncement of administrative
accountability against petitioner and the imposition upon him
of the corresponding penalty of dismissal must be reversed and
set aside, as the findings of neglect of duty or misconduct in
office do not amount to a betrayal of public trust. Hence, the
President, while he may be vested with authority, cannot order
the removal of petitioner as Deputy Ombudsman, there being
no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust."

New Supreme Court Decisions of
Note
February 25, 2013 at 11:10am
(1) Civil Law; Obligations and Contracts. A debt is
liquidated even if lack of accounting is alleged.
Applying Selegna ruling: TML Gasket Industries, Inc. v. BPI
Family Savings Bank, Inc., G.R. No. 188768, Jan. 7, 2013, 2nd
Division, Perez, J.

Labor Law Lay-off is essentially retrenchment and under
Art. 283 of the Labor Code a retrenched employee is entitled to
separation pay equivalent to one (1) month salary or one-half
() month salary per year of service, whichever is higher.
Applying the Sebuguero(1995) ruling. MINDANAO
TERMINAL AND BROKERAGE SERVICE, INC., ET AL. V.
NAGKAHIUSANG MAMUMUO SA MINTEMBRO-
SOUTHERN PHILIPPINES FEDERATION OF CEBU, ET
AL., G.R. No. 174300, Dec. 5, 2012. 1st Division, Leonardo-de
Castro, J.

(2) Constitutional Law. The meaning of capital in the
constitutional provision limiting foreign ownership in public
utilities, Sec. 11, Art. XII, refers only to shares that can vote in
the election of directors. Application in case of foreign debt
converted to equity: First, identify into which class of shares
the debt shall be converted, whether common shares, preferred
shares that have the right to vote in the election of directors or
non-voting preferred shares; Second, determine the number of
shares with voting right held by foreign entities prior to
conversion. If upon conversion, the total number of shares
held by foreign entities exceeds 40% of the capital stock with
voting rights, the constitutional limit on foreign ownership is
violated. Otherwise, the conversion shall be respected.
Applying the Gamboa v. Teves (2011) rule. EXPRESS
INVESTMENTS III PRIVATE LTD AND EXPORT
DEVELOPMENT OF CANADA V. BAYAN
TELECOMMUNICATIONS, INC., ET AL., G.R. Nos.
174457-59, 175418-20 and 177270, Dec. 05, 2012. 1st
Division, Villarama, Jr., J.

(3) Commercial Law. Pari Passu principle in rehabilitaiton
cases explained.

The commitment embodied in the pari passu principle
only goes so far as to ensure that the assets of the distressed
corporation are held in trust for the equal benefit of all
creditors. It does not espouse absolute equality in all aspects
of debt restructuring. EXPRESS INVESTMENTS III PRIVATE
LTD, ET AL. V. BAYAN TELECOMMUNICATIONS, INC., ET
AL. (see above).

(4) Remedial Law. Nice distinction between certiorari as
special civil action to correct excess of jurisdiction
and certiorari as appeal to correct errors of law. The Court of
Appeals, in a special civil action for certiorari, went beyond
finding that therein respondent administrative official acted
within his jurisdiction and proceeded to decide the controversy
on its merits. Held, the Court of Appeals acted beyond its
jurisdiction and its decision is annulled and set aside.

Applying the doctrine in Barnes v. Padilla (2004), the
Supreme Court also set aside technicality of procedure that
tend to frustrate rather than promote substantial justice,
regarding the period for filing a motion for reconsideration in
the Court of Appeals, and suspended the rules: The power to
suspend or even disregard rules can be so pervasive and
compelling as to alter even that which this Court itself had
already declared to be final.

(5) Administative Law. Reconstitution of title. Requisites.
Proof a) that the certificate of title had been lost or destroyed;
b) that the documents presented by petitioner are sufficient and
proper to warrant reconstitution of the lost or destroyed
certificate of title; c) that the petitioner is the registered owner
of the property or had an interest therein; d) that the certificate
of title was in force at the first time it was lost or destroyed;
and e) that the description, area and boundaries of the property
are substantially the same and those contained in the lost or
destroyed certificate of title. Applying Republic v. El
Gobierno de las Islas Filipinas (2005), Held, the absence of
any document, private or official, mentioning the number of
the certificate of title and the date when the certificate of title
was issued, does not warrant [renders not warranted] the
granting of the petition for reconstitution. REPUBLIC OF THE
PHILIPPINES V. CONCEPCION LORENZO, ET AL., G.R.
No. 172338, Dec. 10, 2012. 1st Division, Leonardo de
Castro, J.

(6) Corporation Law. Dissolution of a corporation does not
affect intra-corporate rights. It only prohibits the corporation
from continuing its business. VITALIANO N. AGUIRRE II,
ET AL. V. FQB+7, INC., ET AL. G.R. No. 170770, Jan. 9,
2013. 2nd Division. Del Castillo, J.

(7) Civil Law. Solutio indebiti, Art. 2154 of the Civil Code
embodies the concept of solutio indebiti, a quasi-contract,
which arises when something is delivered through mistake to a
person who has no right to demand it, which obligates that
person to return what has been received through mistake.
METROPOLITAN BANK & TRUST CO. V. ABSOLUTE
MANAGEMENT CORPORATION. G.R. No. 170498, Jan. 9,
2013. 2nd Division. Brion, J.


(8) Administrative Law & Civil Law. P.D. 957, The
Subdivision and Condominium Buyers' Protective Decree,
requires the bank to which a land converted to
condo/subdivision lots has been mortgaged, to release from the
mortgage the portions corresponding to lots or units already
paid for. [Azcuna's Comment: This is a departure from the
rule of integrity of mortgage that allows the mortgagee to
retain the mortgage until full payment.] REPUBLIC V.
CESAR ENCELON, G.R. No. 170022, Jan. 9, 2013. 2nd
Division. Brion, J.

New Supreme Court Decisions of
Note Part 2
February 27, 2013 at 10:32am
(9) Taxes and Duties. E.O. 156. Ban on Used-Car
Importation Sustained [outside of Subic Free Port].
EXECUTIVE SECRETARY, ET AL. V. FORERUNNER
MULTI RESOURCES, INC., G.R. No. 199324, Jan. 7, 2013,
2nd Div., Carpio, J.

(10) Political Law. No reimbursement to foreigner who buys
land in violation of the Constitution. WILLEM BEUMER V.
AVELINA AMORES, ET AL., G.R. No. 195670, Dec. 3,
2012, 2nd Div., Perlas-Bernabe, J.

(11) Drugs. The four links in the chain of custody in drugs
cases enumerated. Applying People v. Kamad (2010) doctrine:
(1) The seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; (2)
the turnover of the illegal drug seized by the appehending
officer to the investigating officer; (3) the turnover by the
investigating officer of the illegal drug to the forensic chemist
for laboratory examination; and, (4) the turnover and
submission of the marked illegal drug seized by the forensic
chemist to the court. PEOPLE V. RICARDO REMIGIO Y
ZAPANTA, G.R. No. 189277, Dec. 5, 2012, 2nd Div., Perez,
J.

(12) Remedial Law. Exception to the doctrine of
immutability of judgments. Respondents' personal obligation
was only P45,000. Due to their former counsel's gross
negligence in handling their cause, coupled with the RTC's
erroneous, baseless and illegal award of 5% monthly interest,
they now stand to lose their property and still owe petitioner a
large amount of money. The CA held that as a court of justice
and equity, it cannot in good conscience allow this
unconscionable situation to prevail. Petitioner invokes the
doctrine of immutability of judgment. Held, This Court is
appalled by petitioner's invocation of the doctrine of
immutability of judgment. Petitioner does not contest as she
even admits that the RTC made a glaring mistake in awarding
5% monthly interest. Amazingly, she wants to benefit from
such erroneous award. This Court cannot allow this injustice to
happen. LETICIA DIONA, ET AL. V. ROMEO A.
BALANGUE, ET AL., G.R. No. 173559, Jan. 7, 2013, 2nd
Div., Del Castillo, J.

(13) Civil Law. Art. 121, Family Code. Liabilities chargeable
to conjugal partnership. Art. 121, Family Code, allows
payment of the criminal indemnities imposed on the wife out
of the partnership assets even before these are liquidated, after
the enumerated responsibilites have been covered. At the time
of liquidation, the offending spouse shall be charged for what
has been paid for such purposes chargeable to said spouse.
EFREN PANA V. HEIRS OF JOSE JUANITE, SR., ET AL.,
G.R. No. 164201, Dec. 10, 2012, 3rd Div. Abad, J.

(14) Retirement Benefits. Not available to COMELEC
members who only had interim appointments that were not
confirmed, since they cannot be deemed to have completed
their term of office, since such service does not constitute a
term, whether fixed or unexpired. EVALYN I. FETALINO,
ET AL. V. COMELEC, G.R. No. 191890, Dec. 4, 2012, En
Banc, Brion, J.

(15) Labor Law. Where the arbitration clause covers any
dispute by reason of difference in interpretation of the contract,
monetary claims under the contract are included, because the
determination of the rights and obligations of the parties
involves interpretation of the provisions of the contract. THE
MANILA INSURANCE CO., INC. V. SPOUSES ROBERTO
AND AIDA AMURAO, G.R. No. 179628, Jan. 16, 2013, 2nd
Div., Del Castillo, J.

(16) Political and Remedial Law. Public officials who are
sued may retain private counsel where personal liability is
sought or may result. Applying the Alinsug doctrine (1993),
ROMEO A. GONTANG, ETC. V. ENGR. CECILIA
ALAYAN, G.R. No. 191691, Jan. 16, 2013, 2nd Div., Perlas-
Bernabe, J.

Significant New
Decisions/Supreme Court
March 19, 2013 at 11:34pm
BY ADOLFO S AZCUNA --
COPYRIGHT 2013.


Proceedings against attorneys are private and confidential.
The final order, however, is publishable. (1)


An attorney was fined P20,000 for distributing to media
copies of her complaint for disbarment against another lawyer.
The members of media, however, who published the fact of
the filing of the complaint, were spared from sanction on the
ground that the subject matter out of which the complaint arose
was of public interest (the Ampatuan murder cases). (2)


Asking for separation pay does not prove abandonment of
employment. (3)


The Rules allow a court to reverse its decision, even motu
proprio, if it is incorrect and will cause injustice. (4)


A statute fixing the value for payment of just compensation
in eminent domain is not binding on the courts. (5)


In a contract TO sell, full payment of the purchase price is a
suspensive condition, so that non-payment by the buyer
prevents the condition from happening, and ownership remains
with the seller, with no remedies to the buyer. (6)


An employee can be dismissed for the just causes stated in
Art. 282 of the Labor Code. But the employer has to give her
two notices: A first written notice that informs the employee
of the particular acts or omissions for which her dismissal is
sought; and--after the proper hearing-- a second written notice
that informs her of the decision to dismiss her. (7)


Failure to observe the two-notice rule for dismissal is a
denial of due process but the dismissal, if for a just cause,
remains valid. The employer is however liable for nominal
damages, now fixed at P30,000, for violating the rule. (8)


Petitioner is disqualified to run for mayor in the 2010
elections for lack of residence. Building a house in the town in
not enough. (9)


Where the inculpatory evidence points to only one thing,
the guilt of respondents as charged, the Court of Appeals erred
in applying the equipoise rule. (10)


A foreign corporation not doing business in the Philippines
can file before a Philippine court a petition for confirmation,
recognition and enforcement of a foreign arbitral award. The
grounds are those set forth in Art. V of the New York
Convention on Recognition and Enforcement of Foreign
Arbitral Awards (1958), which Convention has been
incorporated into the our Alternative Dispute Resolution
(ADR) Act of 2004, which is the applicable law. (11)


The rationale for the 12% interest in just compensation for
properties taken by the State, is to compensate property owners
for the income they would have made had they been properly
compensated for their properties at the time of the taking. (12)


Proof of the victim's age in rape cases is outlined in
PRUNA (2002) and reiterated in RULLEPA (2003):

1. The best evidence - original or certified true copy of
certificate of live birth;
2. In its absence, similar authentic documents such as
baptismal certificate or school records,
showing the date of birth;
3. If the above is lost, destroyed or not available,
testimony, if clear and credible, of victim's mother or family
member qualified to testify on the matter, applying the
provisions of Sec. 40, Rule 130;
4. Absent these, the complainant's testimony will suffice
if expressly and clearly admitted by the accused;
5. The prosecution has the burden to prove the victim's
age. Failure of the accused to object to testimonial evidence
regarding age shall not be taken against him;
6. The trial court should always make a categorical
finding as to the age of the victim. (13)

In Bigamy, the subsequent annulment of the first marriage
is not a ground for exculpation. (14)

Only the Office of the Solicitor General can appeal he
criminal aspect of a case (acquittal in libel in this case). (15)

The doctrine of strained relations in labor cases applied.
(16)

The rule on forum shopping certification can be suspended
for the sake of substantial justice. (17)

Where the elements of violation of B.P. 22 (Bouncing
Check Law) already occurred, the pendency of a civil suit for
rescission of the contract involved under Art. 1191, Civil
Code, does not present a prejudicial question. The contract is
valid until rescinded, so there was no failure of consideration
when the checks were dishonored. The contract, subject to
rescission, is only voidable not void. (18)

In cases of contributory negligence, the rule is a 60-40
sharing, so the plaintiff can only recover 60 %. (19)

To hold a head of office in Government liable for
conspiracy in approving the acts of his subordinate in an anti-
graft case, there must be showing of an "added reason" for him
to scrutinize the details of the transactions in question. (20)

An example in drugs cases where the chain of custody was
held broken (21) and an example where, despite failure to
observe the niceties of procedure under the law, the conviction
was upheld because the integrity and evidentiary value of the
seized items were preserved. (22)

Piercing the veil of corporate fiction sustained on grounds
of common ownership, identity of directors and officers,
manner of keeping corporate books and records and methods
of conducting business. (23)

Disallowed benefits received in good faith need not be
reimbursed to the Government. (24)

Where a judgment has been executed pending appeal and it
is subsequently reversed, partially or totally, or annulled--on
appeal or otherwise--the trial court may, on motion, issue such
orders of restitution or reparation of damages as equity and
justice may warrant under the circumstances. (25)

Ordinance No. 9503-2005 of the City of Cagayan de Oro is
declared void. It imposes a 10% tax on gross receipts of lease
of poles during the preceding calendar year, whereas the Local
Government Code limits the rate to not exceeding 2% of gross
sales on receipts of the preceding year. (26)

A judicial claim for refund or credit of a tax can only be
filed AFTER the lapse of 60 days from the filing of the
administrative claim. San Roque filed its judicial claim (for
over P400 MM) just 13 days after filing its administrative
claim. It, therefore, cannot recove any refund or credit. (27)

N O T E S


(1) Sec. 18, Rule 139-B, Rules of Court.

(2) Fortun v Quinsayas, G R No 194578, Feb 13. 2013.

(3) Tegimenta Chemical v Oco, G R No 175369, Feb 27,
2013.

(4) Ibid., citing Sec. 5(g), Rule 135, Rules of Court.

(5) Spouses Cabahug v NPC, G R No 186069, Jan 30,
2013, referring to Sec. 3-A,
Republic Act No 6395 which provides that only 10%
of the market value of a
property is due to the owner if it is subject to an
easement of right of way.

(6) Diego v Diego, G R No 179965, Feb 20, 2013.

(7) Sang-an v Equator Knights, G R No 173169, Feb 13,
2013
.
(8) Ibid., applying the AGABON doctrine (2004).

(9) Svetlana P Jalosjos v Comelec, G R No 193314, Feb
26, 2013.

(10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.

(11) Tuna Processing v Philippine Kingford, G R No
185587, Feb 29, 2012.

(12) LBP v Obias, G R No 184406, Mar 14, 2012.

(13) Peo v Viojela, G R No 177140, Oct 17, 2012.

(14) Montanez v Cipriano, G R No 181089, Oct 22,2012.

(15) Bautista v Sharon G Cuneta-Pangilinan, G R No
189754, Oct 24, 2012.

(16) Martos v New San Jose Builders, G R No 192650, Oct
24, 2012.

(17) Rodriguez v People, G R No 192799, Oct 24, 2012.

(18) Reyes v Rossi, G R No 159823, Feb 18, 2013.

(19) Allied Banking Corp v BPI, G R No 188363, Feb 27,
2013.

(20) Jaca v People, G R No 166967, and consolidated cases,
Jan 28, 2013.

(21) Peo v Secreto, G R No 198115, Feb 27, 2013.

(22) Peo v Langcua, G R No 190343, Feb 6, 2013.

(23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No
166282, and consolidated cases,
Feb 13, 2013.

(24) Nazareth v Hon Reynaldo A Villar, G R No 188635,
Jan 29, 2013.

(25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20,
2013.

(26) Cagayan Electric v City of Cagayan de Oro, G R No
191761, Nov 14, 2012.

(27) Com'r of Int Revenue v San Roque Power Corp, G R
No 187485, and consolidated
cases, Feb 12, 2013.

) A preliminary investigation is either executive (by a
fiscal) to determine probable cause to file a case in court, or
judicial (by a judge) to determine probable cause to issue a
warrant of arrest.

The judicial type is called preliminary examination.

It's the duty of the judge to make it upon receiving a
criminal complaint or information, so a motion for judicial
determination of probable cause is superfluous.

In doing this (preliminary examination), a judge may

(1) dismiss the case outright, if from the records there's
clearly no probable cause;

(2) issue a warrant of arrest, if he determines that
probable cause exists, or

(3) ask the fiscal to submit more evidence.

(Virginia de los Santos-Dio v. Hon. Court of Appeals, G.R. No.
178947; People v. Desmond, G.R. No. 179079, June 25, 2013.
(2nd Div., Perlas-Bernabe, J.)

2) Claim for refund of tax from a local government
(City of Manila) requires (1) written claim for refund/credit
filed with local treasurer and (2) case or proceeding for refund
filed within 2 years from date of payment of tax, fee or charge
or from date taxpayer is entitled to a refund or credit.

(Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No.
190818, June 5, 2013. (2nd Div., Perlas-Bernabe, J.)


3) The Paris Convention is recognized and protection is
extended to parties thereto in trademarks.

(Ecole de Cuisine Manille (Cordon Bleu of the Philippines),
Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l.,
B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-
Bernabe,J.)


4) A disqualified candidate whose certificate of candidacy
is cancelled after assumption of office is a de
facto officer. The cancellation/ disqualification thus creates no
vacancy and no succession occurs. The de jure officer just
assumes the office.

(Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25,
2013. (En Banc, Sereno,C.J.,)


(5) Persons connected with the Court are barred from
acquiring properties and rights in litigation. (See, Art. 1491,
par. 5, Civil Code)

The meaning of in litigation is explained.

The prohibition arises from the relationship of trust
involved and seeks to prevent fraud.

It does not apply where the transaction occurs after the
contest or litigation on the thing is over.

But property subject to estate proceedings, until such
proceedings are closed and terminated, the debts paid, and the
estate is distributed to the heirs, are still in litigation and
covered by the prohibition.

(Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (En
Banc, Villarama, J.)

6) Romeo G. Jalosjos is perpetually disqualified from running
for public office. No pardon or commutation of his perpetual
disqualification was given.

(Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18,
2013 (En Banc, Perlas-Bernabe, J.)

7) A. Rule
Where an employee is terminated for a just cause, no
separation pay is due,
B. Exceptions
Except as an act of social justice or on equitable grounds,
C. Exceptions to the Exceptions
But not where the dismissal (1) was for serious misconduct or
(2)
reflected on the moral character of the employee.
(Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No.
201701, June 3, 2013. (3rd Div., Mendoza, J.).