EXECUTIVE ORDER NO.

200 June
18, 1987

newspaper of general circulation in the

country;

PROVIDING FOR THE

PUBLICATION OF LAWS EITHER
IN THE OFFICIAL GAZETTE OR IN
A NEWSPAPER OF GENERAL
CIRCULATION IN THE
PHILIPPINES AS A REQUIREMENT
FOR THEIR EFFECTIVITY

NOW, THEREFORE, I, CORAZON C.

AQUINO, President of the Philippines,
by virtue of the powers vested in me by
the Constitution, do hereby order:

WHEREAS, Article 2 of the Civil Code

partly provides that "laws shall take effect
after fifteen days following the
completion of their publication in the
Official Gazette, unless it is otherwise
provided . . .;"
WHEREAS, the requirement that for
laws to be effective only a publication
thereof in the Official Gazette will suffice
has entailed some problems, a point
recognized by the Supreme Court in
Taada. et al. vs. Tuvera, et al. (G.R. No.
63915, December 29, 1986) when it
observed that "[t]here is much to be said
of the view that the publication need not
be made in the Official Gazette,
considering its erratic release and limited
readership";
WHEREAS, it was likewise observed
that "[u]ndoubtedly, newspapers of
general circulation could better perform
the function of communicating the laws
to the people as such periodicals are more
easily available, have a wider readership,
and come out regularly"; and
WHEREAS, in view of the foregoing
premises Article 2 of the Civil Code
should accordingly be amended so the
laws to be effective must be published
either in the Official Gazette or in a

his capacity as Director, Malacaang

Records Office, and FLORENDO S.
PABLO, in his capacity as Director,
Bureau of Printing, respondents.

ESCOLIN, J.:
Sec. 1. 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.
Sec. 2. Article 2 of Republic Act No. 386,
otherwise known as the "Civil Code of
the Philippines," and all other laws
inconsistent with this Executive Order are
hereby repealed or modified accordingly.
Sec. 3. This Executive Order shall take
effect immediately after its publication in
the Official Gazette.
Done in the City of Manila, this 18th day
of June, in the year of Our Lord, nineteen
hundred and eighty-seven.

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:

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

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, 444445, 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, 964,997,1149-1178,11801278.
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, 15941600, 1606-1609, 1612-1628, 1630-1649,
1694-1695, 1697-1701, 1705-1723, 17311734, 1737-1742, 1744, 1746-1751,
1752, 1754, 1762, 1764-1787, 17891795, 1797, 1800, 1802-1804, 18061807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858,
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, 21632244.
e] Executive Orders Nos.: 411, 413, 414,
427, 429-454, 457- 471, 474-492, 494507, 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, 8081, 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
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 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 lawmaking 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. 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 allinclusive 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."

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.
Relova, J., concurs.
Aquino, J., took no part.

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

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with

qualification):
There is on the whole acceptance on my
part of the views expressed in the ably
written opinion of Justice Escolin. I am
unable, however, to concur insofar as it
would unqualifiedly impose the

requirement of publication in the Official

Gazette for unpublished "presidential
issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the
requisite publication, a due process
question would arise if made to apply
adversely to a party who is not even
aware of the existence of any legislative
or executive act having the force and
effect of law. My point is that such
publication required need not be confined
to the Official Gazette. From the
pragmatic standpoint, there is an
advantage to be gained. It conduces to
certainty. That is too be admitted. It does
not follow, however, that failure to do so
would in all cases and under all
circumstances result in a statute,
presidential decree or any other executive
act of the same category being bereft of
any binding force and effect. To so hold
would, for me, raise a constitutional
question. Such a pronouncement would
lend itself to the interpretation that such a
legislative or presidential act is bereft of
the attribute of effectivity unless
published in the Official Gazette. There is
no such requirement in the Constitution
as Justice Plana so aptly pointed out. It is
true that what is decided now applies only
to past "presidential issuances".
Nonetheless, this clarification is, to my
mind, needed to avoid any possible
misconception as to what is required for
any statute or presidential act to be
impressed with binding force or
effectivity.
2. It is quite understandable then why I
concur in the separate opinion of Justice

Plana. Its first paragraph sets forth what

to me is the constitutional doctrine
applicable to this case. Thus: "The
Philippine Constitution does not require
the publication of laws as a prerequisite
for their effectivity, unlike some
Constitutions elsewhere. It may be said
though that the guarantee of due process
requires notice of laws to affected Parties
before they can be bound thereby; but
such notice is not necessarily by
publication in the Official Gazette. The
due process clause is not that precise. 1 I
am likewise in agreement with its closing
paragraph: "In fine, I concur in the
majority decision to the extent that it
requires notice before laws become
effective, for no person should be bound
by a law without notice. This is
elementary fairness. However, I beg to
disagree insofar as it holds that such
notice shall be by publication in the
Official Gazette. 2
3. It suffices, as was stated by Judge
Learned Hand, that law as the command
of the government "must be ascertainable
in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by
Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is
thus essential. What I am not prepared to
subscribe to is the doctrine that it must be
in the Official Gazette. To be sure once
published therein there is the
ascertainable mode of determining the
exact date of its effectivity. Still for me
that does not dispose of the question of
what is the jural effect of past presidential
decrees or executive acts not so
published. For prior thereto, it could be
that parties aware of their existence could
have conducted themselves in accordance

with their provisions. If no legal

consequences could attach due to lack of
publication in the Official Gazette, then
serious problems could arise. Previous
transactions based on such "Presidential
Issuances" could be open to question.
Matters deemed settled could still be
inquired into. I am not prepared to hold
that such an effect is contemplated by our
decision. Where such presidential decree
or executive act is made the basis of a
criminal prosecution, then, of course, its
ex post facto character becomes
evident. 5 In civil cases though,
retroactivity as such is not conclusive on
the due process aspect. There must still
be a showing of arbitrariness. Moreover,
where the challenged presidential decree
or executive act was issued under the
police power, the non-impairment clause
of the Constitution may not always be
successfully invoked. There must still be
that process of balancing to determine
whether or not it could in such a case be
tainted by infirmity. 6 In traditional
terminology, there could arise then a
question of unconstitutional application.
That is as far as it goes.

enactment, Republic Act No. 386. It does

not and cannot have the juridical force of
a constitutional command. A later
legislative or executive act which has the
force and effect of law can legally
provide for a different rule.
5. Nor can I agree with the rather
sweeping conclusion in the opinion of
Justice Escolin that presidential decrees
and executive acts not thus previously
published in the Official Gazette would
be devoid of any legal character. That
would be, in my opinion, to go too far. It
may be fraught, as earlier noted, with
undesirable consequences. I find myself
therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices
Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and
Alampay, JJ., concur.

TEEHANKEE, J., concurring:

4. Let me make therefore that my
qualified concurrence goes no further
than to affirm that publication is essential
to the effectivity of a legislative or
executive act of a general application. I
am not in agreement with the view that
such publication must be in the Official
Gazette. The Civil Code itself in its
Article 2 expressly recognizes that the
rule as to laws taking effect after fifteen
days following the completion of their
publication in the Official Gazette is
subject to this exception, "unless it is
otherwise provided." Moreover, the Civil
Code is itself only a legislative

I concur with the main opinion of Mr.

Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The
Rule of Law connotes a body of norms
and laws published and ascertainable and
of equal application to all similarly
circumstances and not subject to arbitrary
change but only under certain set
procedures. The Court has consistently
stressed that "it is an elementary rule of
fair play and justice that a reasonable
opportunity to be informed must be
afforded to the people who are
commanded to obey before they can be

punished for its violation, 1 citing the

settled principle based on due process
enunciated in earlier cases that "before
the public is bound by its contents,
especially its penal provisions, a law,
regulation or circular must first be
published and the people officially and
specially informed of said contents and
its penalties.
Without official publication in the
Official Gazette as required by Article 2
of the Civil Code and the Revised
Administrative Code, there would be no
basis nor justification for the corollary
rule of Article 3 of the Civil Code (based
on constructive notice that the provisions
of the law are ascertainable from the
public and official repository where they
are duly published) that "Ignorance of the
law excuses no one from compliance
therewith.
Respondents' contention based on a
misreading of Article 2 of the Civil Code
that "only laws which are silent as to their
effectivity [date] need be published in the
Official Gazette for their effectivity" is
manifestly untenable. The plain text and
meaning of the Civil Code is that "laws
shall take effect after fifteen days
following the completion of their
publication in the Official Gazette, unless
it is otherwise provided, " i.e. a different
effectivity date is provided by the law
itself. This proviso perforce refers to a
law that has been duly published pursuant
to the basic constitutional requirements of
due process. The best example of this is
the Civil Code itself: the same Article 2
provides otherwise that it "shall take
effect [only] one year [not 15 days] after
such publication. 2 To sustain
respondents' misreading that "most laws

or decrees specify the date of their

effectivity and for this reason, publication
in the Official Gazette is not necessary
for their effectivity 3 would be to nullify
and render nugatory the Civil Code's
indispensable and essential requirement
of prior publication in the Official
Gazette by the simple expedient of
providing for immediate effectivity or an
earlier effectivity date in the law
itself before the completion of 15 days
following its publication which is the
period generally fixed by the Civil Code
for its proper dissemination.

MELENCIOHERRERA, J., concurring:

I agree. There cannot be any question but
that even if a decree provides for a date of
effectivity, it has to be published. What I
would like to state in connection with that
proposition is that when a date of
effectivity is mentioned in the decree but
the decree becomes effective only fifteen
(15) days after its publication in the
Official Gazette, it will not mean that the
decree can have retroactive effect to the
date of effectivity mentioned in the
decree itself. There should be no
retroactivity if the retroactivity will run
counter to constitutional rights or shall
destroy vested rights.

PLANA, J., concurring (with

qualification):
The Philippine Constitution does not
require the publication of laws as a
prerequisite for their effectivity, unlike

some Constitutions elsewhere. * It may

be said though that the guarantee of due
process requires notice of laws to affected
parties before they can be bound thereby;
but such notice is not necessarily by
publication in the Official Gazette. The
due process clause is not that precise.
Neither is the publication of laws in
the Official Gazette required by any
statute as a prerequisite for their
effectivity, if said laws already provide for
their effectivity date.
Article 2 of the Civil Code provides that
"laws shall take effect after fifteen days
following the completion of their
publication in the Official Gazette, unless
it is otherwise provided " Two things may
be said of this provision: Firstly, it
obviously does not apply to a law with a
built-in provision as to when it will take
effect. Secondly, it clearly recognizes that
each law may provide not only a different
period for reckoning its effectivity date
but also a different mode of notice. Thus,
a law may prescribe that it shall be
published elsewhere than in the Official
Gazette.
Commonwealth Act No. 638, in my
opinion, does not support the proposition
that for their effectivity, laws must be
published in the Official Gazette. The
said law is simply "An Act to Provide for
the Uniform Publication and Distribution
of the Official Gazette." Conformably
therewith, it authorizes the publication of
the Official Gazette, determines its
frequency, provides for its sale and
distribution, and defines the authority of
the Director of Printing in relation
thereto. It also enumerates what shall be
published in the Official Gazette, among
them, "important legislative acts and

resolutions of a public nature of the

Congress of the Philippines" and "all
executive and administrative orders and
proclamations, except such as have no
general applicability." It is noteworthy
that not all legislative acts are required to
be published in the Official Gazette but
only "important" ones "of a public
nature." Moreover, the said law does not
provide that publication in the Official
Gazette is essential for the effectivity of
laws. This is as it should be, for all
statutes are equal and stand on the same
footing. A law, especially an earlier one
of general application such as
Commonwealth Act No. 638, cannot
nullify or restrict the operation of a
subsequent statute that has a provision of
its own as to when and how it will take
effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision
to the extent that it requires notice before
laws become effective, for no person
should be bound by a law without notice.
This is elementary fairness. However, I
beg to disagree insofar as it holds that
such notice shall be by publication in the
Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is
necessary but reserve my vote as to the
necessity of such publication being in the
Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares
the unpublished decrees and issuances of
a public nature or general applicability
ineffective, until due publication thereof.

Separate Opinions
FERNANDO, C.J., concurring (with
qualification):
There is on the whole acceptance on my
part of the views expressed in the ably
written opinion of Justice Escolin. I am
unable, however, to concur insofar as it
would unqualifiedly impose the
requirement of publication in the Official
Gazette for unpublished "presidential
issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the
requisite publication, a due process
question would arise if made to apply
adversely to a party who is not even
aware of the existence of any legislative
or executive act having the force and
effect of law. My point is that such
publication required need not be confined
to the Official Gazette. From the
pragmatic standpoint, there is an
advantage to be gained. It conduces to
certainty. That is too be admitted. It does
not follow, however, that failure to do so
would in all cases and under all

circumstances result in a statute,

presidential decree or any other executive
act of the same category being bereft of
any binding force and effect. To so hold
would, for me, raise a constitutional
question. Such a pronouncement would
lend itself to the interpretation that such a
legislative or presidential act is bereft of
the attribute of effectivity unless
published in the Official Gazette. There is
no such requirement in the Constitution
as Justice Plana so aptly pointed out. It is
true that what is decided now applies only
to past "presidential issuances".
Nonetheless, this clarification is, to my
mind, needed to avoid any possible
misconception as to what is required for
any statute or presidential act to be
impressed with binding force or
effectivity.
2. It is quite understandable then why I
concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what
to me is the constitutional doctrine
applicable to this case. Thus: "The
Philippine Constitution does not require
the publication of laws as a prerequisite
for their effectivity, unlike some
Constitutions elsewhere. It may be said
though that the guarantee of due process
requires notice of laws to affected Parties
before they can be bound thereby; but
such notice is not necessarily by
publication in the Official Gazette. The
due process clause is not that precise. 1 I
am likewise in agreement with its closing
paragraph: "In fine, I concur in the
majority decision to the extent that it
requires notice before laws become
effective, for no person should be bound
by a law without notice. This is
elementary fairness. However, I beg to
disagree insofar as it holds that such

notice shall be by publication in the

Official Gazette. 2
3. It suffices, as was stated by Judge
Learned Hand, that law as the command
of the government "must be ascertainable
in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by
Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is
thus essential. What I am not prepared to
subscribe to is the doctrine that it must be
in the Official Gazette. To be sure once
published therein there is the
ascertainable mode of determining the
exact date of its effectivity. Still for me
that does not dispose of the question of
what is the jural effect of past presidential
decrees or executive acts not so
published. For prior thereto, it could be
that parties aware of their existence could
have conducted themselves in accordance
with their provisions. If no legal
consequences could attach due to lack of
publication in the Official Gazette, then
serious problems could arise. Previous
transactions based on such "Presidential
Issuances" could be open to question.
Matters deemed settled could still be
inquired into. I am not prepared to hold
that such an effect is contemplated by our
decision. Where such presidential decree
or executive act is made the basis of a
criminal prosecution, then, of course, its
ex post facto character becomes
evident. 5 In civil cases though,
retroactivity as such is not conclusive on
the due process aspect. There must still
be a showing of arbitrariness. Moreover,
where the challenged presidential decree
or executive act was issued under the
police power, the non-impairment clause
of the Constitution may not always be

successfully invoked. There must still be

that process of balancing to determine
whether or not it could in such a case be
tainted by infirmity. 6 In traditional
terminology, there could arise then a
question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my
qualified concurrence goes no further
than to affirm that publication is essential
to the effectivity of a legislative or
executive act of a general application. I
am not in agreement with the view that
such publication must be in the Official
Gazette. The Civil Code itself in its
Article 2 expressly recognizes that the
rule as to laws taking effect after fifteen
days following the completion of their
publication in the Official Gazette is
subject to this exception, "unless it is
otherwise provided." Moreover, the Civil
Code is itself only a legislative
enactment, Republic Act No. 386. It does
not and cannot have the juridical force of
a constitutional command. A later
legislative or executive act which has the
force and effect of law can legally
provide for a different rule.
5. Nor can I agree with the rather
sweeping conclusion in the opinion of
Justice Escolin that presidential decrees
and executive acts not thus previously
published in the Official Gazette would
be devoid of any legal character. That
would be, in my opinion, to go too far. It
may be fraught, as earlier noted, with
undesirable consequences. I find myself
therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices

Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.

are duly published) that "Ignorance of the

law excuses no one from compliance
therewith.

Makasiar, Abad Santos, Cuevas and

Alampay, JJ., concur.

Respondents' contention based on a

misreading of Article 2 of the Civil Code
that "only laws which are silent as to their
effectivity [date] need be published in the
Official Gazette for their effectivity" is
manifestly untenable. The plain text and
meaning of the Civil Code is that "laws
shall take effect after fifteen days
following the completion of their
publication in the Official Gazette, unless
it is otherwise provided, " i.e. a different
effectivity date is provided by the law
itself. This proviso perforce refers to a
law that has been duly published pursuant
to the basic constitutional requirements of
due process. The best example of this is
the Civil Code itself: the same Article 2
provides otherwise that it "shall take
effect [only] one year [not 15 days] after
such publication. 2 To sustain
respondents' misreading that "most laws
or decrees specify the date of their
effectivity and for this reason, publication
in the Official Gazette is not necessary
for their effectivity 3 would be to nullify
and render nugatory the Civil Code's
indispensable and essential requirement
of prior publication in the Official
Gazette by the simple expedient of
providing for immediate effectivity or an
earlier effectivity date in the law
itself before the completion of 15 days
following its publication which is the
period generally fixed by the Civil Code
for its proper dissemination.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr.
Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The
Rule of Law connotes a body of norms
and laws published and ascertainable and
of equal application to all similarly
circumstances and not subject to arbitrary
change but only under certain set
procedures. The Court has consistently
stressed that "it is an elementary rule of
fair play and justice that a reasonable
opportunity to be informed must be
afforded to the people who are
commanded to obey before they can be
punished for its violation, 1 citing the
settled principle based on due process
enunciated in earlier cases that "before
the public is bound by its contents,
especially its penal provisions, a law,
regulation or circular must first be
published and the people officially and
specially informed of said contents and
its penalties.
Without official publication in the
Official Gazette as required by Article 2
of the Civil Code and the Revised
Administrative Code, there would be no
basis nor justification for the corollary
rule of Article 3 of the Civil Code (based
on constructive notice that the provisions
of the law are ascertainable from the
public and official repository where they

MELENCIOHERRERA, J., concurring:

I agree. There cannot be any question but

that even if a decree provides for a date of
effectivity, it has to be published. What I
would like to state in connection with that
proposition is that when a date of
effectivity is mentioned in the decree but
the decree becomes effective only fifteen
(15) days after its publication in the
Official Gazette, it will not mean that the
decree can have retroactive effect to the
date of effectivity mentioned in the
decree itself. There should be no
retroactivity if the retroactivity will run
counter to constitutional rights or shall
destroy vested rights.

PLANA, J., concurring (with

qualification):
The Philippine Constitution does not
require the publication of laws as a
prerequisite for their effectivity, unlike
some Constitutions elsewhere. * It may
be said though that the guarantee of due
process requires notice of laws to affected
parties before they can be bound thereby;
but such notice is not necessarily by
publication in the Official Gazette. The
due process clause is not that precise.
Neither is the publication of laws in
the Official Gazette required by any
statute as a prerequisite for their
effectivity, if said laws already provide for
their effectivity date.
Article 2 of the Civil Code provides that
"laws shall take effect after fifteen days
following the completion of their
publication in the Official Gazette, unless
it is otherwise provided " Two things may
be said of this provision: Firstly, it
obviously does not apply to a law with a

built-in provision as to when it will take

effect. Secondly, it clearly recognizes that
each law may provide not only a different
period for reckoning its effectivity date
but also a different mode of notice. Thus,
a law may prescribe that it shall be
published elsewhere than in the Official
Gazette.
Commonwealth Act No. 638, in my
opinion, does not support the proposition
that for their effectivity, laws must be
published in the Official Gazette. The
said law is simply "An Act to Provide for
the Uniform Publication and Distribution
of the Official Gazette." Conformably
therewith, it authorizes the publication of
the Official Gazette, determines its
frequency, provides for its sale and
distribution, and defines the authority of
the Director of Printing in relation
thereto. It also enumerates what shall be
published in the Official Gazette, among
them, "important legislative acts and
resolutions of a public nature of the
Congress of the Philippines" and "all
executive and administrative orders and
proclamations, except such as have no
general applicability." It is noteworthy
that not all legislative acts are required to
be published in the Official Gazette but
only "important" ones "of a public
nature." Moreover, the said law does not
provide that publication in the Official
Gazette is essential for the effectivity of
laws. This is as it should be, for all
statutes are equal and stand on the same
footing. A law, especially an earlier one
of general application such as
Commonwealth Act No. 638, cannot
nullify or restrict the operation of a
subsequent statute that has a provision of
its own as to when and how it will take

effect. Only a higher law, which is the

Constitution, can assume that role.
In fine, I concur in the majority decision
to the extent that it requires notice before
laws become effective, for no person
should be bound by a law without notice.
This is elementary fairness. However, I
beg to disagree insofar as it holds that
such notice shall be by publication in the
Official Gazette.
G.R. No. 101279 August 6, 1992
PHILIPPINE ASSOCIATION OF
SERVICE EXPORTERS,
INC., petitioner,
vs.
HON. RUBEN D. TORRES, as
Secretary of the Department of Labor
& Employment, and JOSE N.
SARMIENTO, as Administrator of the
PHILIPPINE OVERSEAS
EMPLOYMENT
ADMINISTRATION,respondents.
De Guzman, Meneses & Associates for
petitioner.

GRIO-AQUINO, J.:
This petition for prohibition with
temporary restraining order was filed by
the Philippine Association of Service
Exporters (PASEI, for short), to prohibit
and enjoin the Secretary of the
Department of Labor and Employment
(DOLE) and the Administrator of the
Philippine Overseas Employment
Administration (or POEA) from
enforcing and implementing DOLE
Department Order No. 16, Series of 1991

and POEA Memorandum Circulars Nos.

30 and 37, Series of 1991, temporarily
suspending the recruitment by private
employment agencies of Filipino
domestic helpers for Hong Kong and
vesting in the DOLE, through the
facilities of the POEA, the task of
processing and deploying such workers.
PASEI is the largest national organization
of private employment and recruitment
agencies duly licensed and authorized by
the POEA, to engaged in the business of
obtaining overseas employment for
Filipino landbased workers, including
domestic helpers.
On June 1, 1991, as a result of published
stories regarding the abuses suffered by
Filipino housemaids employed in Hong
Kong, DOLE Secretary Ruben D. Torres
issued Department Order No. 16, Series
of 1991, temporarily suspending the
recruitment by private employment
agencies of "Filipino domestic helpers
going to Hong Kong" (p. 30, Rollo). The
DOLE itself, through the POEA took
over the business of deploying such Hong
Kong-bound workers.
In view of the need to establish
mechanisms that will enhance the
protection for Filipino domestic helpers
going to Hong Kong, the recruitment of
the same by private employment agencies
is hereby temporarily suspended effective
1 July 1991. As such, the DOLE through
the facilities of the Philippine Overseas
Employment Administration shall take
over the processing and deployment of
household workers bound for Hong
Kong, subject to guidelines to be issued
for said purpose.

In support of this policy, all DOLE

Regional Directors and the Bureau of
Local Employment's regional offices are
likewise directed to coordinate with the
POEA in maintaining a manpower pool
of prospective domestic helpers to Hong
Kong on a regional basis.

charge of the various operations involved

in the Hong Kong-DH industry segment:
The HWPU shall have the following
functions in coordination with
appropriate units and other entities
concerned:

the last week of July. The last day of

acceptance shall be July 31 which shall
then be the basis of HWPU in accepting
contracts for processing. After the
exhaustion of their respective pools the
only source of applicants will be the
POEA manpower pool.

For compliance. (Emphasis ours; p.

30, Rollo.)

1. Negotiations with and Accreditation of

Hong Kong Recruitment Agencies

For strict compliance of all concerned.

(pp. 31-35, Rollo.)

Pursuant to the above DOLE circular, the

POEA issued Memorandum Circular No.
30, Series of 1991, dated July 10, 1991,
providing GUIDELINES on the
Government processing and deployment
of Filipino domestic helpers to Hong
Kong and the accreditation of Hong Kong
recruitment agencies intending to hire
Filipino domestic helpers.

2. Manpower Pooling

On August 1, 1991, the POEA

Administrator also issued Memorandum
Circular No. 37, Series of 1991, on the
processing of employment contracts of
domestic workers for Hong Kong.

Subject: Guidelines on the Temporary

Government Processing and Deployment
of Domestic Helpers to Hong Kong.
Pursuant to Department Order No. 16,
series of 1991 and in order to
operationalize the temporary government
processing and deployment of domestic
helpers (DHs) to Hong Kong resulting
from the temporary suspension of
recruitment by private employment
agencies for said skill and host market,
the following guidelines and mechanisms
shall govern the implementation of said
policy.
I. Creation of a joint POEA-OWWA
Household Workers Placement Unit
(HWPU)
An ad hoc, one stop Household Workers
Placement Unit [or HWPU] under the
supervision of the POEA shall take

3. Worker Training and Briefing

4. Processing and Deployment
5. Welfare Programs
II. Documentary Requirements and Other
Conditions for Accreditation of Hong
Kong Recruitment Agencies or Principals
Recruitment agencies in Hong Kong
intending to hire Filipino DHs for their
employers may negotiate with the HWPU
in Manila directly or through the
Philippine Labor Attache's Office in
Hong Kong.
xxx xxx xxx
X. Interim Arrangement
All contracts stamped in Hong Kong as of
June 30 shall continue to be processed by
POEA until 31 July 1991 under the name
of the Philippine agencies concerned.
Thereafter, all contracts shall be
processed with the HWPU.
Recruitment agencies in Hong Kong shall
submit to the Philippine Consulate
General in Hong kong a list of their
accepted applicants in their pool within

TO: All Philippine and Hong Kong

Agencies engaged in the recruitment of
Domestic helpers for Hong Kong
Further to Memorandum Circular No. 30,
series of 1991 pertaining to the
government processing and deployment
of domestic helpers (DHs) to Hong
Kong, processing of employment
contracts which have been attested by the
Hong Kong Commissioner of Labor up to
30 June 1991 shall be processed by the
POEA Employment Contracts Processing
Branch up to 15 August 1991 only.
Effective 16 August 1991, all Hong Kong
recruitment agent/s hiring DHs from the
Philippines shall recruit under the new
scheme which requires prior accreditation
which the POEA.
Recruitment agencies in Hong Kong may
apply for accreditation at the Office of the
Labor Attache, Philippine Consulate
General where a POEA team is posted
until 31 August 1991. Thereafter, those
who failed to have themselves accredited

in Hong Kong may proceed to the POEAOWWA Household Workers Placement

Unit in Manila for accreditation before
their recruitment and processing of DHs
shall be allowed.
Recruitment agencies in Hong Kong who
have some accepted applicants in their
pool after the cut-off period shall submit
this list of workers upon accreditation.
Only those DHs in said list will be
allowed processing outside of the HWPU
manpower pool.
For strict compliance of all concerned.
(Emphasis supplied, p. 36, Rollo.)
On September 2, 1991, the petitioner,
PASEI, filed this petition for prohibition
to annul the aforementioned DOLE and
POEA circulars and to prohibit their
implementation for the following reasons:
1. that the respondents acted with grave
abuse of discretion and/or in excess of
their rule-making authority in issuing said
circulars;
2. that the assailed DOLE and POEA
circulars are contrary to the Constitution,
are unreasonable, unfair and oppressive;
and
3. that the requirements of publication
and filing with the Office of the National
Administrative Register were not
complied with.
There is no merit in the first and second
grounds of the petition.
Article 36 of the Labor Code grants the
Labor Secretary the power to restrict and

regulate recruitment and placement

activities.
Art. 36. Regulatory Power. The
Secretary of Labor shall have the
power to restrict and regulate the
recruitment and placement activities of all
agencies within the coverage of this title
[Regulation of Recruitment and
Placement Activities] and is hereby
authorized to issue orders and
promulgate rules and regulations to carry
out the objectives and implement the
provisions of this title. (Emphasis ours.)
On the other hand, the scope of the
regulatory authority of the POEA, which
was created by Executive Order No. 797
on May 1, 1982 to take over the functions
of the Overseas Employment
Development Board, the National
Seamen Board, and the overseas
employment functions of the Bureau of
Employment Services, is broad and farranging for:
1. Among the functions inherited by the
POEA from the defunct Bureau of
Employment Services was the power and
duty:
"2. To establish and maintain a
registration and/or licensing system to
regulate private sector participation in
the recruitment and placement of
workers, locally and overseas, . . ." (Art.
15, Labor Code, Emphasis supplied). (p.
13, Rollo.)
2. It assumed from the defunct Overseas
Employment Development Board the
power and duty:

3. To recruit and place workers for

overseas employment of Filipino contract
workers on a government to government
arrangement and in such other sectors as
policy may dictate . . . (Art. 17, Labor
Code.) (p. 13, Rollo.)
3. From the National Seamen Board, the
POEA took over:
2. To regulate and supervise the activities
of agents or representatives of shipping
companies in the hiring of seamen for
overseas employment; and secure the best
possible terms of employment for
contract seamen workers and secure
compliance therewith. (Art. 20, Labor
Code.)
The vesture of quasi-legislative and
quasi-judicial powers in administrative
bodies is not unconstitutional,
unreasonable and oppressive. It has been
necessitated by "the growing complexity
of the modern society" (Solid Homes,
Inc. vs. Payawal, 177 SCRA 72, 79).
More and more administrative bodies are
necessary to help in the regulation of
society's ramified activities. "Specialized
in the particular field assigned to them,
they can deal with the problems thereof
with more expertise and dispatch than can
be expected from the legislature or the
courts of justice" (Ibid.).
It is noteworthy that the assailed circulars
do not prohibit the petitioner from
engaging in the recruitment and
deployment of Filipino landbased
workers for overseas employment. A
careful reading of the challenged
administrative issuances discloses that the
same fall within the "administrative and
policing powers expressly or by

necessary implication conferred" upon

the respondents (People vs. Maceren, 79
SCRA 450). The power to "restrict and
regulate conferred by Article 36 of the
Labor Code involves a grant of police
power (City of Naga vs. Court of
Appeals, 24 SCRA 898). To "restrict"
means "to confine, limit or stop" (p.
62, Rollo) and whereas the power to
"regulate" means "the power to protect,
foster, promote, preserve, and control
with due regard for the interests, first and
foremost, of the public, then of the utility
and of its patrons" (Philippine
Communications Satellite Corporation vs.
Alcuaz, 180 SCRA 218).
The Solicitor General, in his Comment,
aptly observed:
. . . Said Administrative Order [i.e.,
DOLE Administrative Order No. 16]
merely restricted the scope or area of
petitioner's business operations by
excluding therefrom recruitment and
deployment of domestic helpers for Hong
Kong till after the establishment of the
"mechanisms" that will enhance the
protection of Filipino domestic helpers
going to Hong Kong. In fine, other than
the recruitment and deployment of
Filipino domestic helpers for Hongkong,
petitioner may still deploy other class of
Filipino workers either for Hongkong and
other countries and all other classes of
Filipino workers for other countries.
Said administrative issuances, intended to
curtail, if not to end, rampant violations
of the rule against excessive collections
of placement and documentation fees,
travel fees and other charges committed
by private employment agencies
recruiting and deploying domestic helpers

to Hongkong. [They are reasonable, valid

and justified under the general welfare
clause of the Constitution, since the
recruitment and deployment business, as
it is conducted today, is affected with
public interest.
xxx xxx xxx
The alleged takeover [of the business of
recruiting and placing Filipino domestic
helpers in Hongkong] is merely a
remedial measure, and expires after its
purpose shall have been attained. This is
evident from the tenor of Administrative
Order No. 16 that recruitment of Filipino
domestic helpers going to Hongkong by
private employment agencies are hereby
"temporarily suspended effective July 1,
1991."
The alleged takeover is limited in scope,
being confined to recruitment of domestic
helpers going to Hongkong only.
xxx xxx xxx
. . . the justification for the takeover of
the processing and deploying of domestic
helpers for Hongkong resulting from the
restriction of the scope of petitioner's
business is confined solely to the
unscrupulous practice of private
employment agencies victimizing
applicants for employment as domestic
helpers for Hongkong and not the whole
recruitment business in the Philippines.
(pp. 62-65,Rollo.)
The questioned circulars are therefore a
valid exercise of the police power as
delegated to the executive branch of
Government.

Nevertheless, they are legally invalid,

defective and unenforceable for lack of
power publication and filing in the Office
of the National Administrative Register
as required in Article 2 of the Civil Code,
Article 5 of the Labor Code and Sections
3(1) and 4, Chapter 2, Book VII of the
Administrative Code of 1987 which
provide:
Art. 2. Laws shall take effect after fifteen
(15) days following the completion of
their publication in the Official Gazatte,
unless it is otherwise provided. . . . (Civil
Code.)
Art. 5. Rules and Regulations. The
Department of Labor and other
government agencies charged with the
administration and enforcement of this
Code or any of its parts shall promulgate
the necessary implementing rules and
regulations. Such rules and regulations
shall become effective fifteen (15)
days after announcement of their
adoption in newspapers of general
circulation. (Emphasis supplied, Labor
Code, as amended.)
Sec. 3. Filing. (1) Every agency shall
file with the University of the Philippines
Law Center, three (3) certified copies of
every rule adopted by it. Rules in force on
the date of effectivity of this Code which
are not filed within three (3) months shall
not thereafter be the basis of any sanction
against any party or persons. (Emphasis
supplied, Chapter 2, Book VII of the
Administrative Code of 1987.)
Sec. 4. Effectivity. In addition to other
rule-making requirements provided by
law not inconsistent with this Book, each
rule shall become effective fifteen (15)

days from the date of filing as above

provided unless a different date is fixed
by law, or specified in the rule in cases of
imminent danger to public health, safety
and welfare, the existence of which must
be expressed in a statement
accompanying the rule. The agency shall
take appropriate measures to make
emergency rules known to persons who
may be affected by them. (Emphasis
supplied, Chapter 2, Book VII of the
Administrative Code of 1987).

WHEREFORE, the writ of prohibition is

GRANTED. The implementation of
DOLE Department Order No. 16, Series
of 1991, and POEA Memorandum
Circulars Nos. 30 and 37, Series of 1991,
by the public respondents is hereby
SUSPENDED pending compliance with
the statutory requirements of publication
and filing under the aforementioned laws
of the land.

Once, more we advert to our ruling

in Taada vs. Tuvera, 146 SCRA 446
that:

G.R. No. 137873

. . . Administrative rules and regulations

must also be published if their purpose is
to enforce or implement existing law
pursuant also to a valid delegation. (p.
447.)
Interpretative regulations and those
merely internal in nature, that is,
regulating only the personnel of the
administrative agency and not the public,
need not be published. Neither is
publication required of the so-called
letters of instructions issued by
administrative superiors concerning the
rules or guidelines to be followed by their
subordinates in the performance of their
duties. (p. 448.)
We agree that publication must be in full
or it is no publication at all since its
purpose is to inform the public of the
content of the laws. (p. 448.)
For lack of proper publication, the
administrative circulars in question may
not be enforced and implemented.

SO ORDERED.
April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J.
JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990,
Jose Juego, a construction worker of D.
M. Consunji, Inc., fell 14 floors from the
Renaissance Tower, Pasig City to his
death.
PO3 Rogelio Villanueva of the Eastern
Police District investigated the tragedy
and filed a report dated November 25,
1990, stating that:
x x x. [The] [v]ictim was rushed to [the]
Rizal Medical Center in Pasig, Metro
Manila where he was pronounced dead
on arrival (DOA) by the attending
physician, Dr. Errol de Yzo[,] at around
2:15 p.m. of the same date.
Investigation disclosed that at the given
time, date and place, while victim Jose A.
Juego together with Jessie Jaluag and
Delso Destajo [were] performing their

work as carpenter[s] at the elevator core

of the 14th floor of the Tower D,
Renaissance Tower Building on board a
[p]latform made of channel beam (steel)
measuring 4.8 meters by 2 meters wide
with pinulid plywood flooring and cable
wires attached to its four corners and
hooked at the 5 ton chain block, when
suddenly, the bolt or pin which was
merely inserted to connect the chain
block with the [p]latform, got loose xxx
causing the whole [p]latform assembly
and the victim to fall down to the
basement of the elevator core, Tower D
of the building under construction thereby
crushing the victim of death, save his two
(2) companions who luckily jumped out
for safety.
It is thus manifest that Jose A. Juego was
crushed to death when the [p]latform he
was then on board and performing work,
fell. And the falling of the [p]latform was
due to the removal or getting loose of the
pin which was merely inserted to the
connecting points of the chain block and
[p]latform but without a safety lock.1
On May 9, 1991, Jose Juegos widow,
Maria, filed in the Regional Trial Court
(RTC) of Pasig a complaint for damages
against the deceaseds employer, D.M.
Consunji, Inc. The employer raised,
among other defenses, the widows prior
availment of the benefits from the State
Insurance Fund.
After trial, the RTC rendered a decision
in favor of the widow Maria Juego. The
dispositive portion of the RTC decision
reads:

WHEREFORE, judgment is hereby

rendered ordering defendant to pay
plaintiff, as follows:

1. P50,000.00 for the death of Jose A.

Juego.
2. P10,000.00 as actual and compensatory
damages.
3. P464,000.00 for the loss of Jose A.
Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the
costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court
of Appeals (CA) affirmed the decision of
the RTC in toto.
D. M. Consunji now seeks the reversal of
the CA decision on the following
grounds:

THE APPELLATE COURT

ERRED IN HOLDING THAT
THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE
OF THE ALLEGED
NEGLIGENCE OF
PETITIONER.
THE APPELLATE COURT
ERRED IN HOLDING THAT
THE DOCTRINE OF RES
IPSA LOQUITOR [sic] IS
APPLICABLE TO PROVE
NEGLIGENCE ON THE
PART OF PETITIONER.

THE APPELLATE COURT

ERRED IN HOLDING THAT
PETITIONER IS
PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF
THE CIVIL CODE, AND
THE APPELLATE COURT
ERRED IN HOLDING THAT
RESPONDENT IS NOT
PRECLUDED FROM
RECOVERING DAMAGES
UNDER THE CIVIL CODE.3

Petitioner maintains that the police report

reproduced above is hearsay and,
therefore, inadmissible. The CA ruled
otherwise. It held that said report, being
an entry in official records, is an
exception to the hearsay rule.
The Rules of Court provide that a witness
can testify only to those facts which he
knows of his personal knowledge, that is,
which are derived from his perception.4 A
witness, therefore, may not testify as
what he merely learned from others either
because he was told or read or heard the
same. Such testimony is considered
hearsay and may not be received as proof
of the truth of what he has learned.5 This
is known as the hearsay rule.
Hearsay is not limited to oral testimony
or statements; the general rule that
excludes hearsay as evidence applies to
written, as well as oral statements.6
The theory of the hearsay rule is that the
many possible deficiencies, suppressions,
sources of error and untrustworthiness,
which lie underneath the bare untested
assertion of a witness, may be best
brought to light and exposed by the test

of cross-examiantion.7 The hearsay rule,

therefore, excludes evidence that cannot
be tested by cross-examination.8
The Rules of Court allow several
exceptions to the rule,9 among which are
entries in official records. Section 44,
Rule 130 provides:
Entries in official records made in the
performance of his duty made in the
performance of his duty by a public
officer of the Philippines, or by a person
in the performance of a duty specially
enjoined by law areprima facie evidence
of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et
al.,10 this Court, citing the work of Chief
Justice Moran, enumerated the requisites
for admissibility under the above rule:
(a) that the entry was made by a public
officer or by another person specially
enjoined by law to do so;
(b) that it was made by the public officer
in the performance of his duties, or by
such other person in the performance of a
duty specially enjoined by law; and
(c) that the public officer or other person
had sufficient knowledge of the facts by
him stated, which must have been
acquired by him personally or through
official information.
The CA held that the police report meets
all these requisites. Petitioner contends
that the last requisite is not present.
The Court notes that PO3 Villanueva,
who signed the report in question, also
testified before the trial court.

InRodriguez vs. Court of

Appeals,11 which involved a Fire
Investigation Report, the officer who
signed the fire report also testified before
the trial court. This Court held that the
report was inadmissible for the purpose
of proving the truth of the statements
contained in the report but admissible
insofar as it constitutes part of the
testimony of the officer who executed the
report.
x x x. Since Major Enriquez himself took
the witness stand and was available for
cross-examination, the portions of the
report which were of his personal
knowledge or which consisted of his
perceptions and conclusions were not
hearsay. The rest of the report, such as
the summary of the statements of the
parties based on their sworn statements
(which were annexed to the Report) as
well as the latter, having been included in
the first purpose of the offer [as part of
the testimony of Major Enriquez], may
then be considered as independently
relevant statements which were gathered
in the course of the investigation and may
thus be admitted as such, but not
necessarily to prove the truth thereof. It
has been said that:
"Where regardless of the truth or falsity
of a statement, the fact that it has been
made is relevant, the hearsay rule does
not apply, but the statement may be
shown. Evidence as to the making of such
statement is not secondary but primary,
for the statement itself may constitute a
fact in issue, or be circumstantially
relevant as to the existence of such a
fact."

When Major Enriquez took the witness

stand, testified for petitioners on his
Report and made himself available for
cross-examination by the adverse party,
the Report, insofar as it proved that
certain utterances were made (but not
their truth), was effectively removed from
the ambit of the aforementioned Section
44 of Rule 130. Properly understood, this
section does away with the testimony in
open court of the officer who made the
official record, considers the matter as an
exception to the hearsay rule and makes
the entries in said official record
admissible in evidence as prima
facie evidence of the facts therein stated.
The underlying reasons for this
exceptionary rule are necessity and
trustworthiness, as explained in Antillon
v. Barcelon.
The litigation is unlimited in which
testimony by officials is daily needed; the
occasions in which the officials would be
summoned from his ordinary duties to
declare as a witness are numberless. The
public officers are few in whose daily
work something is not done in which
testimony is not needed from official
sources. Were there no exception for
official statements, hosts of officials
would be found devoting the greater part
of their time to attending as witnesses in
court or delivering deposition before an
officer. The work of administration of
government and the interest of the public
having business with officials would alike
suffer in consequence. For these reasons,
and for many others, a certain verity is
accorded such documents, which is not
extended to private documents. (3
Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence

in public officers that it presumes they
will discharge their several trusts with
accuracy and fidelity; and, therefore,
whatever acts they do in discharge of
their duty may be given in evidence and
shall be taken to be true under such a
degree of caution as to the nature and
circumstances of each case may appear to
require.
It would have been an entirely different
matter if Major Enriquez was not
presented to testify on his report. In that
case the applicability of Section 44 of
Rule 143 would have been ripe for
determination, and this Court would have
agreed with the Court of Appeals that
said report was inadmissible since the
aforementioned third requisite was not
satisfied. The statements given by the
sources of information of Major Enriquez
failed to qualify as "official information,"
there being no showing that, at the very
least, they were under a duty to give the
statements for record.
Similarly, the police report in this case is
inadmissible for the purpose of proving
the truth of the statements contained
therein but is admissible insofar as it
constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions
of PO3 Villanuevas testimony which
were of his personal knowledge suffice to
prove that Jose Juego indeed died as a
result of the elevator crash. PO3
Villanueva had seen Juegos remains at
the morgue,12 making the latters death
beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the
premises of the building the day after the

incident13 and saw the platform for

himself.14 He observed that the platform
was crushed15 and that it was totally
damaged.16 PO3 Villanueva also required
Garcia and Fabro to bring the chain block
to the police headquarters. Upon
inspection, he noticed that the chain was
detached from the lifting machine,
without any pin or bolt.17
What petitioner takes particular exception
to is PO3 Villanuevas testimony that the
cause of the fall of the platform was the
loosening of the bolt from the chain
block. It is claimed that such portion of
the testimony is mere opinion. Subject to
certain exceptions,18 the opinion of a
witness is generally not admissible.19
Petitioners contention, however, loses
relevance in the face of the application
of res ipsa loquitur by the CA. The effect
of the doctrine is to warrant a
presumption or inference that the mere
fall of the elevator was a result of the
person having charge of the
instrumentality was negligent. As a rule
of evidence, the doctrine of res ipsa
loquituris peculiar to the law of
negligence which recognizes that prima
facie negligence may be established
without direct proof and furnishes a
substitute for specific proof of
negligence.20
The concept of res ipsa loquitur has been
explained in this wise:
While negligence is not ordinarily
inferred or presumed, and while the mere
happening of an accident or injury will
not generally give rise to an inference or
presumption that it was due to negligence
on defendants part, under the doctrine of

res ipsa loquitur, which means, literally,

the thing or transaction speaks for itself,
or in one jurisdiction, that the thing or
instrumentality speaks for itself, the facts
or circumstances accompanying an injury
may be such as to raise a presumption, or
at least permit an inference of negligence
on the part of the defendant, or some
other person who is charged with
negligence.
x x x where it is shown that the thing or
instrumentality which caused the injury
complained of was under the control or
management of the defendant, and that
the occurrence resulting in the injury was
such as in the ordinary course of things
would not happen if those who had its
control or management used proper care,
there is sufficient evidence, or, as
sometimes stated, reasonable evidence, in
the absence of explanation by the
defendant, that the injury arose from or
was caused by the defendants want of
care.21
One of the theoretical based for the
doctrine is its necessity, i.e., that
necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in
part upon the theory that the defendant in
charge of the instrumentality which
causes the injury either knows the cause
of the accident or has the best opportunity
of ascertaining it and that the plaintiff has
no such knowledge, and therefore is
compelled to allege negligence in general
terms and to rely upon the proof of the
happening of the accident in order to
establish negligence. The inference which
the doctrine permits is grounded upon the
fact that the chief evidence of the true

cause, whether culpable or innocent, is

practically accessible to the defendant but
inaccessible to the injured person.
It has been said that the doctrine of res
ipsa loquitur furnishes a bridge by which
a plaintiff, without knowledge of the
cause, reaches over to defendant who
knows or should know the cause, for any
explanation of care exercised by the
defendant in respect of the matter of
which the plaintiff complains. The res
ipsa loquitur doctrine, another court has
said, is a rule of necessity, in that it
proceeds on the theory that under the
peculiar circumstances in which the
doctrine is applicable, it is within the
power of the defendant to show that there
was no negligence on his part, and direct
proof of defendants negligence is beyond
plaintiffs power. Accordingly, some
court add to the three prerequisites for the
application of the res ipsa loquitur
doctrine the further requirement that for
the res ipsa loquitur doctrine to apply, it
must appear that the injured party had no
knowledge or means of knowledge as to
the cause of the accident, or that the party
to be charged with negligence has
superior knowledge or opportunity for
explanation of the accident.23
The CA held that all the requisites of res
ipsa loquitur are present in the case at
bar:
There is no dispute that appellees
husband fell down from the 14th floor of a
building to the basement while he was
working with appellants construction
project, resulting to his death. The
construction site is within the exclusive
control and management of appellant. It
has a safety engineer, a project

superintendent, a carpenter leadman and

others who are in complete control of the
situation therein. The circumstances of
any accident that would occur therein are
peculiarly within the knowledge of the
appellant or its employees. On the other
hand, the appellee is not in a position to
know what caused the accident. Res ipsa
loquitur is a rule of necessity and it
applies where evidence is absent or not
readily available, provided the following
requisites are present: (1) the accident
was of a kind which does not ordinarily
occur unless someone is negligent; (2) the
instrumentality or agency which caused
the injury was under the exclusive control
of the person charged with negligence;
and (3) the injury suffered must not have
been due to any voluntary action or
contribution on the part of the person
injured. x x x.
No worker is going to fall from the
14th floor of a building to the basement
while performing work in a construction
site unless someone is negligent[;] thus,
the first requisite for the application of
the rule of res ipsa loquitur is present. As
explained earlier, the construction site
with all its paraphernalia and human
resources that likely caused the injury is
under the exclusive control and
management of appellant[;] thus[,] the
second requisite is also present. No
contributory negligence was attributed to
the appellees deceased husband[;] thus[,]
the last requisite is also present. All the
requisites for the application of the rule
of res ipsa loquitur are present, thus a
reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence
of the requisites for the application of res

ipsa loquitur, but argues that the

presumption or inference that it was
negligent did not arise since it "proved
that it exercised due care to avoid the
accident which befell respondents
husband."
Petitioner apparently misapprehends the
procedural effect of the doctrine. As
stated earlier, the defendants negligence
is presumed or inferred25 when the
plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the
plaintiff makes out a prima facie case of
all the elements, the burden then shifts to
defendant to explain.26 The presumption
or inference may be rebutted or overcome
by other evidence and, under appropriate
circumstances disputable presumption,
such as that of due care or innocence,
may outweigh the inference.27 It is not for
the defendant to explain or prove its
defense to prevent the presumption or
inference from arising. Evidence by the
defendant of say, due care, comes into
play only after the circumstances for the
application of the doctrine has been
established.1wphi1.nt
In any case, petitioner cites the sworn
statement of its leadman Ferdinand Fabro
executed before the police investigator as
evidence of its due care. According to
Fabros sworn statement, the company
enacted rules and regulations for the
safety and security of its workers.
Moreover, the leadman and
the bodegero inspect the chain block
before allowing its use.
It is ironic that petitioner relies on
Fabros sworn statement as proof of its
due care but, in arguing that private
respondent failed to prove negligence on

the part of petitioners employees, also

assails the same statement for being
hearsay.
Petitioner is correct. Fabros sworn
statement is hearsay and inadmissible.
Affidavits are inadmissible as evidence
under the hearsay rule, unless the affiant
is placed on the witness stand to testify
thereon.28 The inadmissibility of this sort
of evidence is based not only on the lack
of opportunity on the part of the adverse
party to cross-examine the affiant, but
also on the commonly known fact that,
generally, an affidavit is not prepared by
the affiant himself but by another who
uses his own language in writing the
affiants statements which may either be
omitted or misunderstood by the one
writing them.29 Petitioner, therefore,
cannot use said statement as proof of its
due care any more than private
respondent can use it to prove the cause
of her husbands death. Regrettably,
petitioner does not cite any other
evidence to rebut the inference or
presumption of negligence arising from
the application of res ipsa loquitur, or to
establish any defense relating to the
incident.
Next, petitioner argues that private
respondent had previously availed of the
death benefits provided under the Labor
Code and is, therefore, precluded from
claiming from the deceaseds employer
damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless
otherwise provided, the liability of the
State Insurance Fund under this Title
shall be exclusive and in place of all other

liabilities of the employer to the

employee, his dependents or anyone
otherwise entitled to receive damages on
behalf of the employee or his dependents.
The payment of compensation under this
Title shall not bar the recovery of benefits
as provided for in Section 699 of the
Revised Administrative Code, Republic
Act Numbered Eleven hundred sixty-one,
as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four
as amended, and other laws whose
benefits are administered by the System
or by other agencies of the government.
The precursor of Article 173 of the Labor
Code, Section 5 of the Workmens
Compensation Act, provided that:
Section 5. Exclusive right to
compensation. The rights and remedies
granted by this Act to an employee by
reason of a personal injury entitling him
to compensation shall exclude all other
rights and remedies accruing to the
employee, his personal representatives,
dependents or nearest of kin against the
employer under the Civil Code and other
laws because of said injury x x x.
Whether Section 5 of the Workmens
Compensation Act allowed recovery
under said Act as well as under the Civil
Code used to be the subject of conflicting
decisions. The Court finally settled the
matter in Floresca vs.Philex Mining
Corporation,30 which involved a cave-in
resulting in the death of the employees of
the Philex Mining Corporation. Alleging
that the mining corporation, in violation
of government rules and regulations,
failed to take the required precautions for
the protection of the employees, the heirs

of the deceased employees filed a

complaint against Philex Mining in the
Court of First Instance (CFI). Upon
motion of Philex Mining, the CFI
dismissed the complaint for lack of
jurisdiction. The heirs sought relief from
this Court.
Addressing the issue of whether the heirs
had a choice of remedies, majority of the
Court En Banc,31 following the rule
in Pacaa vs. Cebu Autobus Company,
held in the affirmative.
WE now come to the query as to whether
or not the injured employee or his heirs in
case of death have a right of selection or
choice of action between availing
themselves of the workers right under
the Workmens Compensation Act and
suing in the regular courts under the Civil
Code for higher damages (actual, moral
and exemplary) from the employers by
virtue of the negligence or fault of the
employers or whether they may avail
themselves cumulatively of both actions,
i.e., collect the limited compensation
under the Workmens Compensation Act
and sue in addition for damages in the
regular courts.
In disposing of a similar issue, this Court
in Pacaa vs. Cebu Autobus Company,
32 SCRA 442, ruled thatan injured
worker has a choice of either to recover
from the employer the fixed amounts set
by the Workmens Compensation Act or
to prosecute an ordinary civil action
against the tortfeasor for higher damages
but he cannot pursue both courses of
action simultaneously. [Underscoring
supplied.]

Nevertheless, the Court allowed some of

the petitioners in said case to proceed
with their suit under the Civil Code
despite having availed of the benefits
provided under the Workmens
Compensation Act. The Court reasoned:
With regard to the other petitioners, it
was alleged by Philex in its motion to
dismiss dated May 14, 1968 before the
court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla
and Saturnino submitted notices and
claims for compensation to the Regional
Office No. 1 of the then Department of
Labor and all of them have been paid in
full as of August 25, 1967, except
Saturnino Martinez whose heirs decided
that they be paid in installments x x x.
Such allegation was admitted by herein
petitioners in their opposition to the
motion to dismiss dated may 27, 1968 x x
x in the lower court, but they set up the
defense that the claims were filed under
the Workmens Compensation Act before
they learned of the official report of the
committee created to investigate the
accident which established the criminal
negligence and violation of law by
Philex, and which report was forwarded
by the Director of Mines to then
Executive Secretary Rafael Salas in a
letter dated October 19, 1967 only x x x.
WE hold that although the other
petitioners had received the benefits
under the Workmens Compensation Act,
such my not preclude them from bringing
an action before the regular court because
they became cognizant of the fact that
Philex has been remiss in its contractual
obligations with the deceased miners only
after receiving compensation under the

Act. Had petitioners been aware of said

violation of government rules and
regulations by Philex, and of its
negligence, they would not have sought
redress under the Workmens
Compensation Commission which
awarded a lesser amount for
compensation. The choice of the first
remedy was based on ignorance or a
mistake of fact, which nullifies the choice
as it was not an intelligent choice. The
case should therefore be remanded to the
lower court for further proceedings.
However, should the petitioners be
successful in their bid before the lower
court, the payments made under the
Workmens Compensation Act should be
deducted from the damages that may be
decreed in their favor. [Underscoring
supplied.]
The ruling in Floresca providing the
claimant a choice of remedies was
reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De
Severo vs. FelicianoGo,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court
again recognized that a claimant who had
been paid under the Act could still sue
under the Civil Code. The Court said:
In the Robles case, it was held that claims
for damages sustained by workers in the
course of their employment could be filed
only under the Workmens Compensation
Law, to the exclusion of all further claims
under other laws. In Floresca, this
doctrine was abrogated in favor of the
new rule that the claimants may invoke
either the Workmens Compensation Act
or the provisions of the Civil Code,
subject to the consequence that the choice
of one remedy will exclude the other and

that the acceptance of compensation

under the remedy chosen will preclude a
claim for additional benefits under the
other remedy. The exception is where a
claimant who has already been paid under
the Workmens Compensation Act may
still sue for damages under the Civil Code
on the basis of supervening facts or
developments occurring after he opted for
the first remedy. (Underscoring supplied.)
Here, the CA held that private
respondents case came under the
exception because private respondent was
unaware of petitioners negligence when
she filed her claim for death benefits from
the State Insurance Fund. Private
respondent filed the civil complaint for
damages after she received a copy of the
police investigation report and the
Prosecutors Memorandum dismissing
the criminal complaint against
petitioners personnel. While stating that
there was no negligence attributable to
the respondents in the complaint, the
prosecutor nevertheless noted in the
Memorandum that, "if at all," the "case is
civil in nature." The CA thus applied the
exception in Floresca:
x x x We do not agree that appellee has
knowledge of the alleged negligence of
appellant as early as November 25, 1990,
the date of the police investigators
report. The appellee merely executed her
sworn statement before the police
investigator concerning her personal
circumstances, her relation to the victim,
and her knowledge of the accident. She
did not file the complaint for "Simple
Negligence Resulting to Homicide"
against appellants employees. It was the
investigator who recommended the filing
of said case and his supervisor referred

the same to the prosecutors office. This

is a standard operating procedure for
police investigators which appellee may
not have even known. This may explain
why no complainant is mentioned in the
preliminary statement of the public
prosecutor in her memorandum dated
February 6, 1991, to wit: "Respondent
Ferdinand Fabro x x x are being charged
by complainant of "Simple Negligence
Resulting to Homicide." It is also
possible that the appellee did not have a
chance to appear before the public
prosecutor as can be inferred from the
following statement in said
memorandum: "Respondents who were
notified pursuant to Law waived their
rights to present controverting evidence,"
thus there was no reason for the public
prosecutor to summon the appellee.
Hence, notice of appellants negligence
cannot be imputed on appellee before she
applied for death benefits under ECC or
before she received the first payment
therefrom. Her using the police
investigation report to support her
complaint filed on May 9, 1991 may just
be an afterthought after receiving a copy
of the February 6, 1991 Memorandum of
the Prosecutors Office dismissing the
criminal complaint for insufficiency of
evidence, stating therein that: "The death
of the victim is not attributable to any
negligence on the part of the respondents.
If at all and as shown by the records this
case is civil in nature." (Underscoring
supplied.) Considering the foregoing, We
are more inclined to believe appellees
allegation that she learned about
appellants negligence only after she
applied for and received the benefits
under ECC. This is a mistake of fact that
will make this case fall under the
exception held in the Floresca ruling.35

The CA further held that not only was

private respondent ignorant of the facts,
but of her rights as well:
x x x. Appellee [Maria Juego] testified
that she has reached only elementary
school for her educational attainment;
that she did not know what damages
could be recovered from the death of her
husband; and that she did not know that
she may also recover more from the Civil
Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings.
It contends that private respondent "failed
to allege in her complaint that her
application and receipt of benefits from
the ECC were attended by ignorance or
mistake of fact. Not being an issue
submitted during the trial, the trial court
had no authority to hear or adjudicate that
issue."
Petitioner also claims that private
respondent could not have been ignorant
of the facts because as early as November
28, 1990, private respondent was the
complainant in a criminal complaint for
"Simple Negligence Resulting to
Homicide" against petitioners
employees. On February 6, 1991, two
months before the filing of the action in
the lower court, Prosecutor Lorna Lee
issued a resolution finding that, although
there was insufficient evidence against
petitioners employees, the case was
"civil in nature." These purportedly show
that prior to her receipt of death benefits
from the ECC on January 2, 1991 and
every month thereafter, private
respondent also knew of the two choices
of remedies available to her and yet she
chose to claim and receive the benefits
from the ECC.

When a party having knowledge of the

facts makes an election between
inconsistent remedies, the election is final
and bars any action, suit, or proceeding
inconsistent with the elected remedy, in
the absence of fraud by the other party.
The first act of election acts as a
bar.37 Equitable in nature, the doctrine of
election of remedies is designed to
mitigate possible unfairness to both
parties. It rests on the moral premise that
it is fair to hold people responsible for
their choices. The purpose of the doctrine
is not to prevent any recourse to any
remedy, but to prevent a double redress
for a single wrong.38
The choice of a party between
inconsistent remedies results in
a waiver by election. Hence, the rule
in Florescathat a claimant cannot
simultaneously pursue recovery under the
Labor Code and prosecute an ordinary
course of action under the Civil Code.
The claimant, by his choice of one
remedy, is deemed to have waived the
other.
Waiver is the intentional relinquishment
of a known right.39
[It] is an act of understanding that
presupposes that a party has knowledge
of its rights, but chooses not to assert
them. It must be generally shown by the
party claiming a waiver that the person
against whom the waiver is asserted had
at the time knowledge, actual or
constructive, of the existence of the
partys rights or of all material facts upon
which they depended. Where one lacks
knowledge of a right, there is no basis
upon which waiver of it can rest.
Ignorance of a material fact negates

waiver, and waiver cannot be established

by a consent given under a mistake or
misapprehension of fact.
A person makes a knowing and
intelligent waiver when that person
knows that a right exists and has adequate
knowledge upon which to make an
intelligent decision.
Waiver requires a knowledge of the facts
basic to the exercise of the right waived,
with an awareness of its consequences.
That a waiver is made knowingly and
intelligently must be illustrated on the
record or by the evidence.40
That lack of knowledge of a fact that
nullifies the election of a remedy is the
basis for the exception in Floresca.
It is in light of the foregoing principles
that we address petitioners contentions.
Waiver is a defense, and it was not
incumbent upon private respondent, as
plaintiff, to allege in her complaint that
she had availed of benefits from the ECC.
It is, thus, erroneous for petitioner to
burden private respondent with raising
waiver as an issue. On the contrary, it is
the defendant who ought to plead waiver,
as petitioner did in pages 2-3 of its
Answer;41 otherwise, the defense is
waived. It is, therefore, perplexing for
petitioner to now contend that the trial
court had no jurisdiction over the issue
when petitioner itself pleaded waiver in
the proceedings before the trial court.
Does the evidence show that private
respondent knew of the facts that led to
her husbands death and the rights
pertaining to a choice of remedies?

It bears stressing that what negates

waiver is lack of knowledge or a mistake
of fact. In this case, the "fact" that served
as a basis for nullifying the waiver is
the negligence of petitioners employees,
of which private respondent purportedly
learned only after the prosecutor issued a
resolution stating that there may be civil
liability. InFloresca, it was
the negligence of the mining corporation
and its violation of government rules and
regulations. Negligence, or violation of
government rules and regulations, for that
matter, however, is not a fact, but
aconclusion of law, over which only the
courts have the final say. Such a
conclusion binds no one until the courts
have decreed so. It appears, therefore,
that the principle that ignorance or
mistake of fact nullifies a waiver has been
misapplied in Floresca and in the case at
bar.
In any event, there is no proof that private
respondent knew that her husband died in
the elevator crash when on November 15,
1990 she accomplished her application
for benefits from the ECC. The police
investigation report is dated November
25, 1990, 10 days after the
accomplishment of the form. Petitioner
filed the application in her behalf on
November 27, 1990.
There is also no showing that private
respondent knew of the remedies
available to her when the claim before the
ECC was filed. On the contrary, private
respondent testified that she was not
aware of her rights.
Petitioner, though, argues that under
Article 3 of the Civil Code, ignorance of
the law excuses no one from compliance

therewith. As judicial decisions applying

or interpreting the laws or the
Constitution form part of the Philippine
legal system (Article 8, Civil Code),
private respondent cannot claim
ignorance of this Courts ruling
inFloresca allowing a choice of remedies.
The argument has no merit. The
application of Article 3 is limited to
mandatory and prohibitory laws.42 This
may be deduced from the language of the
provision, which, notwithstanding a
persons ignorance, does not excuse his
or her compliance with the laws. The rule
in Floresca allowing private respondent a
choice of remedies is neither mandatory
nor prohibitory. Accordingly, her
ignorance thereof cannot be held against
her.
Finally, the Court modifies the
affirmance of the award of damages. The
records do not indicate the total amount
private respondent ought to receive from
the ECC, although it appears from
Exhibit "K"43 that she received P3,581.85
as initial payment representing the
accrued pension from November 1990 to
March 1991. Her initial monthly pension,
according to the same Exhibit "K," was
P596.97 and present total monthly
pension was P716.40. Whether the total
amount she will eventually receive from
the ECC is less than the sum of
P644,000.00 in total damages awarded by
the trial court is subject to speculation,
and the case is remanded to the trial court
for such determination. Should the trial
court find that its award is greater than
that of the ECC, payments already
received by private respondent under the
Labor Code shall be deducted from the
trial court' award of damages. Consistent

with our ruling in Floresca, this

adjudication aims to prevent double
compensation.
WHEREFORE, the case
is REMANDED to the Regional Trial
Court of Pasig City to determine whether
the award decreed in its decision is more
than that of the ECC. Should the award
decreed by the trial court be greater than
that awarded by the ECC, payments
already made to private respondent
pursuant to the Labor Code shall be
deducted therefrom. In all other respects,
the Decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
G.R. No. 152012 September 30, 2005
LAND AND HOUSING
DEVELOPMENT CORPORATION
and ABV ROCK GROUP, Petitioners,
vs.
MARIANITO C.
ESQUILLO, Respondent.
DECISION
PANGANIBAN, J.:
uitclaims, releases and other waivers of
benefits granted by laws or contracts in
favor of workers should be strictly
scrutinized to protect the weak and the
disadvantaged. The waivers should be
carefully examined, in regard not only to
the words and terms used, but also the
factual circumstances under which they
have been executed.
The Case

Before us is a Petition for Review1 under

Rule 45 of the Rules of Court, seeking to
set aside the July 27, 2001 Decision2 and
the January 29, 2002 Resolution3 of the
Court of Appeals (CA) in CA-GR SP No.
50679. The dispositive portion of the
Decision reads as follows:
"WHEREFORE, premises considered,
the decision dated May 30, 1997 of
public respondent is
hereby ANNULLEDand SET
ASIDE and the decision, dated February
27, 1997 of Labor Arbiter Andres Zavalla
is REINSTATED andAFFIRMED in
toto. Costs against [herein petitioners]."4
The assailed Resolution denied
petitioners Motion for Reconsideration.

through an Inter-Office Memo on Notice

of Termination, dated November 17,
1994, allegedly, for the reason, reduction
of force. Petitioner however, claims that
the reason adduced was negated by the
fact that a lot of transferees from other
sites were taken in and promotions as
well as re-classifications in the lower
ranks were done as shown by the list of
fifteen (15) transferees from Riyadh
effective November 5, 1994, as well as
letters of promotion and re-classification.
He further claimed that [Petitioner] ABV
maliciously confiscated his iqama or
resident visa despite the fact that it was
[respondents] previous employer, FEAL
IBC., which secured his iqama.
Consequently, [respondent] was
prevented from getting another job in
Jeddah.

The Facts
The antecedents are narrated by the CA
as follows:
"[Respondent] Marianito C. Esquillo was
hired as a structural engineer by
[Petitioner] ABV Rock Group (ABV)
based in Jeddah, Kingdom of Saudi
Arabia. He commenced employment on
July 27, 1989, with an initial monthly
salary of US$1,000.00 that was gradually
increased, on account of his good
performance and the annual renewal of
his employment contract, until it reached
US$1,300.00. Private respondent Land &
Housing Development Corporation
(LHDC), a local placement agency,
facilitated [respondents] employment
papers.
"Although [respondents] employment
contract was supposed to be valid until
July 26, 1995, it was pre-terminated,

"[Respondent] subsequently received the

amount of twenty-three thousand, one
hundred fifty-three Saudi Riyals
(SR23,153.00) from [Petitioner] ABV, as
final settlement of his claims and was
issued an exit visa that required him to
immediately go back to the Philippines.
"As a result of the foregoing,
[respondent] filed a complaint for breach
of contract and/or illegal dismissal,
before the Philippine Overseas
Employment Administration which was
referred to the National Labor Relations
Commission, Sub-Regional Arbitration
Branch No. IV, San Pablo City, and
docketed as SRAB-IV-4-0053-96-L. The
parties were required to file their position
papers and responsive pleadings.
"In their position paper, [petitioners]
maintained that [respondents] dismissal
was for valid cause, that is, reduction of

force. Due to the Gulf War, the projects

of [Petitioner] ABV were reduced and it
was forced to terminate the contracts of
workers whose job were not so
immediate and urgent and retain only
those workers whose skills were needed
just to maintain the projects.
[Respondent] was informed, one month
in advance, of the pre-termination of his
contract, and he was paid his salary,
overtime pay, bonus and other benefits in
the total amount of US$6,716.00 or Saudi
Riyals SR25,192.00. With respect to the
alleged confiscation of [respondents]
iqama, [petitioners] alleged that the law
requires its surrender to the Saudi
authorities upon the termination of the
employees contract of employment.
"Upon the submission of the case for
resolution, the Hon. Labor Arbiter Andres
Zavalla issued his Decision, dated
February 27, 1997, decreeing, as follows:
WHEREFORE, premises considered,
judgment is hereby rendered ordering
[petitioners] jointly and severally to pay
[respondent] his salaries corresponding to
the unexpired portion of his contract from
December 19, 1994 up to July 26, 1995 in
the total amount of NINE THOUSAND
FOUR HUNDRED FORTY SEVEN U.S.
Dollars (US$9,447.00) and ten percent
(10%) of his monetary award as
attorneys fees both in Philippine
currency to be computed at the prevailing
rate at the time of payment.
All other claims of [respondent] are
hereby dismissed for lack of merit.
SO ORDERED.

"When [petitioners] filed their joint

appeal, docketed as NLRC NCR CA No.
012650-97, [the NLRC] in a Decision,
dated May 30, 1997, reversed the
aforecited decision and dismissed the
[respondents] complaint for lack of
merit. [Respondents] motion for
reconsideration was denied in a
Resolution, dated July 10, 1997."5
Ruling of the Court of Appeals
The Court of Appeals ruled that despite
the absence of a written categorical
objection to the sufficiency of the
payment received as consideration for the
execution of the quitclaim,
jurisprudence supported the right of
respondent to demand what was rightfully
his under our labor laws. Hence, he
should have been allowed to recover the
difference between the amount he had
actually received and the amount he
should have received.
The CA also found that the NLRC had
erroneously applied RA 8042 to the case.
The appellate court held that respondent
was entitled to the salaries corresponding
to the unexpired portion of his Contract,
in addition to what he had already
received.
Hence, this Petition.6
The Issues
Petitioners raise the following issues for
this Courts consideration:
"A. Whether or not the Honorable Court
of Appeals committed reversible error
when it took cognizance of an issue of

fact which was raised for the first time on

appeal.
"B. Whether or not the Honorable Court
of Appeals committed reversible error in
its 27 July 2001 Decision and 29 January
2002 Resolution by affirming the 27
February 1997 Decision of the Labor
Arbiter which rendered as null and void
and without binding effect the release and
quitclaim executed by the respondent in
favor of the petitioners, and, thereafter,
granted the respondent monetary award."7
In the main, the issue is whether
respondent, despite having executed a
quitclaim, is entitled to a grant of his
additional monetary claims.
The Courts Ruling
The Petition has no merit.
At the outset, the Court notes the
Manifestation of the Office of the
Solicitor General (OSG), recommending
that "the decision dated May 30, 1997 of
the NLRC be annulled and set aside and
that [Respondent] Esquillo be awarded
the total amount of his salaries
corresponding to the unexpired portion of
his contract of employment."8
Main Issue:
Entitlements of a Dismissed
Employee Who Has Executed a
Quitclaim
The factual findings of labor officials,
who are deemed to have acquired
expertise in matters within their
respective jurisdictions, are generally

accorded not only respect but finality.9 In

the present case, the labor arbiter found
respondents dismissal to be illegal and
devoid of any just or authorized cause.
The factual findings of the NLRC and the
CA on this matter were not contradictory.
Hence, the Court finds no reason to
deviate from their factualfinding that
respondent was dismissed without any
legal cause.
Indeed, an employee cannot be dismissed
except for cause, as provided by law, and
only after due notice and
hearing.10 Employees who are dismissed
without cause have the right to be
reinstated without loss of seniority rights
and other privileges; and to be paid full
back wages, inclusive of allowances and
other benefits, plus proven damages.
With regard to contract workers, in cases
arising before the effectivity of RA 8042
(the Migrant Workers and Overseas
Filipinos Act11), it is settled that if "the
contract is for a fixed term and the
employee is dismissed without just cause,
he is entitled to the payment of his
salaries corresponding to the unexpired
portion of his contract."12In the present
case, the Contract of respondent was until
July 26, 1995. Since his dismissal from
service effective December 18, 1994, was
not for a just cause, he is entitled to be
paid his salary corresponding to the
unexpired portion of his Contract, in the
total amount of US$9,447.
We now go to the Release and Quitclaim
signed by respondent. The document,
which was prepared by Petitioner ABV
Rock Group,13 states:

"KNOW ALL MEN BY THESE

PRESENTS:

contend that the validity of the document

can no longer be questioned.

That for and in consideration of the sum

of Saudi Riyals SR: TWENTY THREE
THOUSAND ONE HUNDRED FIFTY
THREE (SR23,153) receipt of which is
hereby acknowledged to my full and
complete satisfaction, I, MARIANITO C.
ESQUILLO do discharge my
employer, ABV ROCK GROUP KB,
JEDDAH, & its recruitment agent, the
LAND & HOUSING DEVP. CORP.,
from any and all claims, demands, debts,
dues, actions, or causes of action, arising
from my employment with aforesaid
company/firm/entity.

Unfortunately for petitioners,

jurisprudence does not support their
stance. The fact that employees have
signed a release and/or quitclaim does not
necessarily result in the waiver of their
claims. The law strictly scrutinizes
agreements in which workers agree to
receive less compensation than what they
are legally entitled to. That document
does not always bar them from
demanding benefits to which they are
legally entitled.15 The reason for this
policy was explained, inter
alia, in Marcos v. National Labor
Relations Commission, which we quote:

"I hereby certify that I am of legal age,

that I fully understand this instrument and
agree that this is a full and final release
and discharge of the parties referred to
herein, and I further agree that this
release may be pleaded as absolute and
final bar to any suit or suits or legal
proceedings that may hereafter be
prosecuted by me against aforementioned
companies/entities.
IN WITNESS WHEREOF, I HAVE
HEREUNTO SET MY HANDS
THIS 29 day of NOV, 1994 at JEDDAH.
SIGNED
MARIANITO C. ESQUILLO."14
Petitioners claim that the foregoing
Release and Quitclaim has forever
released them from "any and all claims,
demands, dues, actions, or causes of
action" arising from respondents
employment with them. They also

"We have heretofore explained that the

reason why quitclaims are commonly
frowned upon as contrary to public
policy, and why they are held to be
ineffective to bar claims for the full
measure of the workers legal rights, is
the fact that the employer and the
employee obviously do not stand on the
same footing. The employer drove the
employee to the wall. The latter must
have to get hold of money. Because, out
of a job, he had to face the harsh
necessities of life. He thus found himself
in no position to resist money proffered.
His, then, is a case of adherence, not of
choice. One thing sure, however, is that
petitioners did not relent on their claim.
They pressed it. They are deemed not [to]
have waived any of their
rights. Renuntiatio non praesumitur.
"Along this line, we have more
trenchantly declared that quitclaims
and/or complete releases executed by the
employees do not estop them from

pursuing their claims arising from unfair

labor practices of the employer. The basic
reason for this is that such quitclaims
and/or complete releases are against
public policy and, therefore, null and
void. The acceptance of termination does
not divest a laborer of the right to
prosecute his employer for unfair labor
practice acts. While there may be possible
exceptions to this holding, we do not
perceive any in the case at bar.
xxxxxxxxx
"We have pointed out in Veloso, et al. vs.
Department of Labor and Employment, et
al., that:
While rights may be waived, the same
must 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.
Article 6 of the Civil Code renders a
quitclaim agreement void ab initio where
the quitclaim obligates the workers
concerned to forego their benefits while
at the same time exempting the employer
from any liability that it may choose to
reject. This runs counter to Art. 22 of the
Civil Code which provides that no one
shall be unjustly enriched at the expense
of another."16
In Periquet v. NLRC, this Court set the
guidelines and the current doctrinal
policy regarding quitclaims and waivers,
as follows:
"Not all waivers and quitclaims are
invalid as against public policy. If the
agreement was voluntarily entered into
and represents a reasonable settlement, it

is binding on the parties and may not later

be disowned simply because of a change
of mind. It is only where there is clear
proof that the waiver was wangled from
an unsuspecting or gullible person, or the
terms of settlement are unconscionable on
its face, that the law will step in to annul
the questionable transaction. But where it
is shown that the person making the
waiver did so voluntarily, with full
understanding of what he was doing, and
the consideration for the quitclaim is
credible and reasonable, the transaction
must be recognized as a valid and binding
undertaking."17
Hence, quitclaims in which employees
voluntarily accept a reasonable amount or
consideration as settlement are deemed
valid. These agreements cannot be set
aside merely because the parties have
subsequently changed their
minds.18 Consistent with this doctrine, a
tribunal has the duty of scrutinizing
quitclaims brought to its attention by
either party, in order to determine their
validity.
In the present case, petitioners themselves
offered the Release and Quitclaim as a
defense. Even though respondent -- in his
pleadings before the labor arbiter -- was
silent on the matter, he nonetheless filed
this case and questioned his dismissal
immediately, a few days after setting foot
in the Philippines. In asking for payment
for the unexpired portion of his
employment Contract, he was eloquently
taking issue with the validity of the
quitclaim. His actions spoke loudly
enough; words were not necessary.
To determine whether the Release and
Quitclaim is valid, one important factor

that must be taken into account is the

consideration accepted by respondent; the
amount must constitute a "reasonable
settlement." The NLRC considered the
amount of US$6,716 or SR23,153
reasonable, when compared with (1)
$3,900, the three-month salary that he
would have been entitled to recover if RA
8042 were applied; and (2) US$9,447, his
salaries for the unexpired portion of his
Contract.

- whether in the government or in the

private sector -- in order to give flesh and
vigor to the pro-poor and pro-labor
provisions of our Constitution."20

It is relevant to point out, however, that

respondent was dismissed prior to the
effectivity of RA 8042. As discussed at
the outset, he is entitled to his salaries
corresponding to the unexpired portion of
his Contract. This amount is exclusive of
the SR23,153 that he received based on
the November 29, 1994 Final Settlement.
The latter amount was comprised of
overtime pay, vacation pay, indemnity,
contract reward and notice pay -- items
that were due him under his employment
Contract. For these reasons,
the consideration stated in the Release
and Quitclaim cannot be deemed a
reasonable settlement; hence, that
agreement must be set aside.

G.R. No. L-39990 July 22, 1975

That respondent is a professional

structural engineer did not make him less
susceptible to disadvantageous financial
offers, faced as he was with the prospect
of unemployment in a country not his
own. "This Court has allowed supervisory
employees to seek payment of benefits
and a manager to sue for illegal dismissal
even though, for a consideration, they
executed deeds of quitclaims releasing
their employers from liability."19

CASTRO, J.:

To stress, "in case of doubt, laws should

be interpreted to favor the working class -

WHEREFORE, the Petition

is DENIED and the assailed Decision
and Resolution AFFIRMED. Costs
against petitioners.
SO ORDERED.

THE PEOPLE OF THE

PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL LICERA, defendantappellant.
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.

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 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. Mapa2 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, 3the
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.1wph1.t
ACCORDINGLY, the judgment a quo is
reversed, and Rafael Licera is hereby
acquitted. Costs de oficio.
G.R. No. L-29131
1969

August 27,

NATIONAL MARKETING
CORPORATION, plaintiff-appellant,
vs.
MIGUEL D. TECSON, ET
AL., defendants,
MIGUEL D. TECSON, defendantappellee,
THE INSURANCE
COMMISSIONER, petitioner.
Government Corporate Counsel
Leopoldo M. Abellera and Trial Atty.
Antonio M. Brillantes for plaintiffappellant.
Antonio T. Lacdan for defendantappellee.
Office of the Solicitor General for
petitioner.
CONCEPCION, C.J.:
This appeal has been certified to us by the
Court of Appeals only one question of
law being involved therein.

On November 14, 1955, the Court of First

Instance of Manila rendered judgment, in
Civil Case No. 20520 thereof, entitled
"Price Stabilization Corporation vs.
Miguel D. Tecson and Alto Surety and
Insurance Co., Inc.," the dispositive part
of which reads as follows:
For the foregoing consideration, the
Court decides this case:
(a) Ordering the defendants Miguel D.
Tecson and Alto Surety Insurance Co.,
Inc. to pay jointly and severally plaintiff
PRATRA the sum of P7,200.00 plus 7%
interest from May 25, 1960 until the
amount is fully paid, plus P500.00 for
attorney's fees, and plus costs;
(b) ordering defendant Miguel D. Tecson
to indemnify his co-defendant Alto
Surety & Insurance Co., Inc. on the crossclaim for all the amounts it would be
made to pay in this decision, in case
defendant Alto Surety & Insurance Co.,
Inc. pay the amount adjudged to plaintiff
in this decision. From the date of such
payment defendant Miguel D. Tecson
would pay the Alto Surety & Insurance
Co., Inc., interest at 12% per annum until
Miguel D. Tecson has fully reimbursed
plaintiff of the said amount.
Copy of this decision was, on November
21, 1955, served upon the defendants in
said case. On December 21, 1965, the
National Marketing Corporation, as
successor to all the properties, assets,
rights, and choses in action of the Price
Stabilization Corporation, as plaintiff in
that case and judgment creditor therein,
filed, with the same court, a complaint,
docketed as Civil Case No. 63701
thereof, against the same defendants, for

the revival of the judgment rendered in

said Case No. 20520. Defendant Miguel
D. Tecson moved to dismiss said
complaint, upon the ground of lack of
jurisdiction over the subject matter
thereof and prescription of action. Acting
upon the motion and plaintiff's opposition
thereto, said Court issued, on February
14, 1966, an order reading:
Defendant Miguel Tecson seeks the
dismissal of the complaint on the ground
of lack of jurisdiction and prescription.
As for lack of jurisdiction, as the amount
involved is less than P10,000 as actually
these proceedings are a revival of a
decision issued by this same court, the
matter of jurisdiction must be admitted.
But as for prescription. Plaintiffs admit
the decision of this Court became final on
December 21, 1955. This case was filed
exactly on December 21, 1965 but
more than ten years have passed a year is
a period of 365 days (Art. 13, CCP).
Plaintiff forgot that 1960, 1964 were both
leap years so that when this present case
was filed it was filed two days too late.
The complaint insofar as Miguel Tecson
is concerned is, therefore, dismissed as
having prescribed.1wph1.t
The National Marketing Corporation
appealed from such order to the Court of
Appeals, which, on March 20, 1969t
certified the case to this Court, upon the
ground that the only question therein
raised is one of law, namely, whether or
not the present action for the revival of a
judgment is barred by the statute of
limitations.
Pursuant to Art. 1144(3) of our Civil
Code, an action upon a judgment "must

be brought within ten years from the time

the right of action accrues," which, in the
language of Art. 1152 of the same Code,
"commences from the time the judgment
sought to be revived has become final."
This, in turn, took place on December 21,
1955, or thirty (30) days from notice of
the judgment which was received by
the defendants herein on November 21,
1955 no appeal having been taken
therefrom. 1 The issue is thus confined to
the date on which ten (10) years from
December 21, 1955 expired.
Plaintiff-appellant alleges that it was
December 21, 1965, but appellee Tecson
maintains otherwise, because "when the
laws speak of years ... it shall be
understood that years are of three
hundred sixty-five days each"
according to Art. 13 of our Civil Code
and, 1960 and 1964 being leap years, the
month of February in both had 29 days,
so that ten (10) years of 365 days each, or
an aggregate of 3,650 days, from
December 21, 1955, expired on
December 19, 1965. The lower court
accepted this view in its appealed order of
dismissal.
Plaintiff-appellant insists that the same
"is erroneous, because a year means
a calendar year (Statutory Construction,
Interpretation of Laws, by Crawford, p.
383) and since what is being computed
here is the number of years, a calendar
year should be used as the basis of
computation. There is no question that
when it is not a leap year, December 21
to December 21 of the following year is
one year. If the extra day in a leap year is
not a day of the year, because it is the
366th day, then to what year does it
belong? Certainly, it must belong to the

year where it falls and, therefore, that the

366 days constitute one year." 2
The very conclusion thus reached by
appellant shows that its theory
contravenes the explicit provision of Art.
13 of the Civil Code of the Philippines,
limiting the connotation of each "year"
as the term is used in our laws to 365
days. Indeed, prior to the approval of the
Civil Code of Spain, the Supreme Court
thereof had held, on March 30, 1887, that,
when the law spoke of months, it meant a
"natural" month or "solar" month, in the
absence of express provision to the
contrary. Such provision was
incorporated into the Civil Code of Spain,
subsequently promulgated. Hence, the
same Supreme Court declared 3 that,
pursuant to Art. 7 of said Code,
"whenever months ... are referred to in
the law, it shall be understood that the
months are of 30 days," not the "natural,"
or "solar" or "calendar" months, unless
they are "designated by name," in which
case "they shall be computed by the
actual number of days they have. This
concept was later, modified in the
Philippines, by Section 13 of the Revised
Administrative Code, Pursuant to which,
"month shall be understood to refer to a
calendar month." 4 In the language of this
Court, in People vs. Del Rosario, 5 with
the approval of the Civil Code of the
Philippines (Republic Act 386) ... we
have reverted to the provisions of the
Spanish Civil Code in accordance with
which a month is to be considered as the
regular 30-day month ... and not the solar
or civil month," with the particularity
that, whereas the Spanish Code merely
mentioned "months, days or nights," ours
has added thereto the term "years" and
explicitly ordains that "it shall be

understood that years are of three

hundred sixty-five days."
Although some members of the Court are
inclined to think that this legislation is not
realistic, for failure to conform with
ordinary experience or practice, the
theory of plaintiff-appellant herein cannot
be upheld without ignoring, if not
nullifying, Art. 13 of our Civil Code, and
reviving Section 13 of the Revised
Administrative Code, thereby engaging in
judicial legislation, and, in effect,
repealing an act of Congress. If public
interest demands a reversion to the policy
embodied in the Revised Administrative
Code, this may be done through
legislative process, not by judicial decree.
WHEREFORE, the order appealed from
should be as it is hereby affirmed,
without costs. It is so ordered.
G.R. No. L-19671
1965

November 29,

PASTOR B. TENCHAVEZ, plaintiffappellant,

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

for legal separation and one million pesos

in damages against his wife and parentsin-law, the defendants-appellees, Vicente,
Mamerto and Mena,1 all surnamed
"Escao," respectively.2
The facts, supported by the evidence of
record, are the following:
Missing her late afternoon classes on 24
February 1948 in the University of San
Carlos, Cebu City, where she was then
enrolled as a second year student of
commerce, Vicenta Escao, 27 years of
age (scion of a well-to-do and socially
prominent Filipino family of Spanish
ancestry and a "sheltered colegiala"),
exchanged marriage vows with Pastor
Tenchavez, 32 years of age, an engineer,
ex-army officer and of undistinguished
stock, without the knowledge of her
parents, before a Catholic chaplain, Lt.
Moises Lavares, in the house of one Juan
Alburo in the said city. The marriage was
the culmination of a previous love affair
and was duly registered with the local
civil register.
Vicenta's letters to Pastor, and his to her,
before the marriage, indicate that the
couple were deeply in love. Together
with a friend, Pacita Noel, their
matchmaker and go-between, they had
planned out their marital future whereby
Pacita would be the governess of their
first-born; they started saving money in a
piggy bank. A few weeks before their
secret marriage, their engagement was
broken; Vicenta returned the engagement
ring and accepted another suitor, Joseling
Lao. Her love for Pastor beckoned; she
pleaded for his return, and they
reconciled. This time they planned to get
married and then elope. To facilitate the

elopement, Vicenta had brought some of

her clothes to the room of Pacita Noel in
St. Mary's Hall, which was their usual
trysting place.
Although planned for the midnight
following their marriage, the elopement
did not, however, materialize because
when Vicente went back to her classes
after the marriage, her mother, who got
wind of the intended nuptials, was
already waiting for her at the college.
Vicenta was taken home where she
admitted that she had already married
Pastor. Mamerto and Mena Escao were
surprised, because Pastor never asked for
the hand of Vicente, and were disgusted
because of the great scandal that the
clandestine marriage would provoke
(t.s.n., vol. III, pp. 1105-06). The
following morning, the Escao spouses
sought priestly advice. Father Reynes
suggested a recelebration to validate what
he believed to be an invalid marriage,
from the standpoint of the Church, due to
the lack of authority from the Archbishop
or the parish priest for the officiating
chaplain to celebrate the marriage. The
recelebration did not take place, because
on 26 February 1948 Mamerto Escao
was handed by a maid, whose name he
claims he does not remember, a letter
purportedly coming from San Carlos
college students and disclosing an
amorous relationship between Pastor
Tenchavez and Pacita Noel; Vicenta
translated the letter to her father, and
thereafter would not agree to a new
marriage. Vicenta and Pastor met that day
in the house of Mrs. Pilar Mendezona.
Thereafter, Vicenta continued living with
her parents while Pastor returned to his
job in Manila. Her letter of 22 March
1948 (Exh. "M"), while still solicitous of

her husband's welfare, was not as

endearing as her previous letters when
their love was aflame.
Vicenta was bred in Catholic ways but is
of a changeable disposition, and Pastor
knew it. She fondly accepted her being
called a "jellyfish." She was not
prevented by her parents from
communicating with Pastor (Exh. "1Escao"), but her letters became less
frequent as the days passed. As of June,
1948 the newlyweds were already
estranged (Exh. "2-Escao"). Vicenta had
gone to Jimenez, Misamis Occidental, to
escape from the scandal that her marriage
stirred in Cebu society. There, a lawyer
filed for her a petition, drafted by then
Senator Emmanuel Pelaez, to annul her
marriage. She did not sign the petition
(Exh. "B-5"). The case was dismissed
without prejudice because of her nonappearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her
husband, she applied for a passport,
indicating in her application that she was
single, that her purpose was to study, and
she was domiciled in Cebu City, and that
she intended to return after two years.
The application was approved, and she
left for the United States. On 22 August
1950, she filed a verified complaint for
divorce against the herein plaintiff in the
Second Judicial District Court of the
State of Nevada in and for the County of
Washoe, on the ground of "extreme
cruelty, entirely mental in character." On
21 October 1950, a decree of divorce,
"final and absolute", was issued in open
court by the said tribunal.
In 1951 Mamerto and Mena Escao filed
a petition with the Archbishop of Cebu to

annul their daughter's marriage to Pastor

(Exh. "D"). On 10 September 1954,
Vicenta sought papal dispensation of her
marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married
an American, Russell Leo Moran, in
Nevada. She now lives with him in
California, and, by him, has begotten
children. She acquired American
citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had
initiated the proceedings at bar by a
complaint in the Court of First Instance of
Cebu, and amended on 31 May 1956,
against Vicenta F. Escao, her parents,
Mamerto and Mena Escao, whom he
charged with having dissuaded and
discouraged Vicenta from joining her
husband, and alienating her affections,
and against the Roman Catholic Church,
for having, through its Diocesan Tribunal,
decreed the annulment of the marriage,
and asked for legal separation and one
million pesos in damages. Vicenta
claimed a valid divorce from plaintiff and
an equally valid marriage to her present
husband, Russell Leo Moran; while her
parents denied that they had in any way
influenced their daughter's acts, and
counterclaimed for moral damages.
The appealed judgment did not decree a
legal separation, but freed the plaintiff
from supporting his wife and to acquire
property to the exclusion of his wife. It
allowed the counterclaim of Mamerto
Escao and Mena Escao for moral and
exemplary damages and attorney's fees
against the plaintiff-appellant, to the
extent of P45,000.00, and plaintiff
resorted directly to this Court.

The appellant ascribes, as errors of the

trial court, the following:
1. In not declaring legal separation; in not
holding defendant Vicenta F. Escao
liable for damages and in dismissing the
complaint;.
2. In not holding the defendant parents
Mamerto Escano and the heirs of Doa
Mena Escao liable for damages;.
3 In holding the plaintiff liable for and
requiring him to pay the damages to the
defendant parents on their counterclaims;
and.
4. In dismissing the complaint and in
denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiffappellant, Pastor Tenchavez, and the
defendant-appellee, Vicenta Escao, were
validly married to each other, from the
standpoint of our civil law, is clearly
established by the record before us. Both
parties were then above the age of
majority, and otherwise qualified; and
both consented to the marriage, which
was performed by a Catholic priest (army
chaplain Lavares) in the presence of
competent witnesses. It is nowhere shown
that said priest was not duly authorized
under civil law to solemnize marriages.
The chaplain's alleged lack of
ecclesiastical authorization from the
parish priest and the Ordinary, as required
by Canon law, is irrelevant in our civil
law, not only because of the separation of
Church and State but also because Act
3613 of the Philippine Legislature (which
was the marriage law in force at the time)
expressly provided that

SEC. 1. Essential requisites. Essential

requisites for marriage are the legal
capacity of the contracting parties and
consent. (Emphasis supplied)
The actual authority of the solemnizing
officer was thus only a formal
requirement, and, therefore, not essential
to give the marriage civil effects,3 and
this is emphasized by section 27 of said
marriage act, which provided the
following:
SEC. 27. Failure to comply with formal
requirements. No marriage shall be
declared invalid because of the absence
of one or several of the formal
requirements of this Act if, when it was
performed, the spouses or one of them
believed in good faith that the person who
solemnized the marriage was actually
empowered to do so, and that the
marriage was perfectly legal.
The good faith of all the parties to the
marriage (and hence the validity of their
marriage) will be presumed until the
contrary is positively proved (Lao vs. Dee
Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to
note here that in the case at bar, doubts as
to the authority of the solemnizing priest
arose only after the marriage, when
Vicenta's parents consulted Father
Reynes and the archbishop of Cebu.
Moreover, the very act of Vicenta in
abandoning her original action for
annulment and subsequently suing for
divorce implies an admission that her
marriage to plaintiff was valid and
binding.
Defendant Vicenta Escao argues that
when she contracted the marriage she was

under the undue influence of Pacita Noel,

whom she charges to have been in
conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the
truth of that contention, and assuming
that Vicenta's consent was vitiated by
fraud and undue influence, such vices did
not render her marriage ab initio void, but
merely voidable, and the marriage
remained valid until annulled by a
competent civil court. This was never
done, and admittedly, Vicenta's suit for
annulment in the Court of First Instance
of Misamis was dismissed for nonprosecution.
It is equally clear from the record that the
valid marriage between Pastor Tenchavez
and Vicenta Escao remained subsisting
and undissolved under Philippine law,
notwithstanding the decree of absolute
divorce that the wife sought and obtained
on 21 October 1950 from the Second
Judicial District Court of Washoe
County, State of Nevada, on grounds of
"extreme cruelty, entirely mental in
character." At the time the divorce decree
was issued, Vicenta Escao, like her
husband, was still a Filipino citizen.4 She
was then subject to Philippine law, and
Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already
in force at the time, expressly provided:
Laws relating to family rights and duties
or to the status, condition and legal
capacity of persons are binding upon the
citizens of the Philippines, even though
living abroad.
The Civil Code of the Philippines, now in
force, does not admit absolute
divorce, quo ad vinculo matrimonii; and
in fact does not even use that term, to

further emphasize its restrictive policy on

the matter, in contrast to the preceding
legislation that admitted absolute divorce
on grounds of adultery of the wife or
concubinage of the husband (Act 2710).
Instead of divorce, the present Civil Code
only provides for legal separation (Title
IV, Book 1, Arts. 97 to 108), and, even in
that case, it expressly prescribes that "the
marriage bonds shall not be severed"
(Art. 106, subpar. 1).
For the Philippine courts to recognize and
give recognition or effect to a foreign
decree of absolute divorce betiveen
Filipino citizens could be a patent
violation of the declared public policy of
the state, specially in view of the third
paragraph of Article 17 of the Civil Code
that prescribes the following:
Prohibitive laws concerning persons, their
acts or property, and those which have for
their object public order, policy and good
customs, shall not be rendered ineffective
by laws or judgments promulgated, or by
determinations or conventions agreed
upon in a foreign country.
Even more, the grant of effectivity in this
jurisdiction to such foreign divorce
decrees would, in effect, give rise to an
irritating and scandalous discrimination
in favor of wealthy citizens, to the
detriment of those members of our polity
whose means do not permit them to
sojourn abroad and obtain absolute
divorces outside the Philippines.
From this point of view, it is irrelevant
that appellant Pastor Tenchavez should
have appeared in the Nevada divorce
court. Primarily because the policy of our
law cannot be nullified by acts of private

parties (Civil Code,Art. 17, jam quot.);

and additionally, because the mere
appearance of a non-resident consort
cannot confer jurisdiction where the court
originally had none (Area vs. Javier, 95
Phil. 579).
From the preceding facts and
considerations, there flows as a necessary
consequence that in this jurisdiction
Vicenta Escao's divorce and second
marriage are not entitled to recognition as
valid; for her previous union to plaintiff
Tenchavez must be declared to be
existent and undissolved. It follows,
likewise, that her refusal to perform her
wifely duties, and her denial
of consortium and her desertion of her
husband constitute in law a wrong caused
through her fault, for which the husband
is entitled to the corresponding indemnity
(Civil Code, Art. 2176). Neither an
unsubstantiated charge of deceit nor an
anonymous letter charging immorality
against the husband constitute, contrary
to her claim, adequate excuse. Wherefore,
her marriage and cohabitation with
Russell Leo Moran is technically
"intercourse with a person not her
husband" from the standpoint of
Philippine Law, and entitles plaintiffappellant Tenchavez to a decree of "legal
separation under our law, on the basis of
adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the
untoward effect of a marriage after an
invalid divorce are in accord with the
previous doctrines and rulings of this
court on the subject, particularly those
that were rendered under our laws prior to
the approval of the absolute divorce act
(Act 2710 of the Philippine Legislature).
As a matter of legal history, our statutes

did not recognize divorces a

vinculo before 1917, when Act 2710
became effective; and the present Civil
Code of the Philippines, in disregarding
absolute divorces, in effect merely
reverted to the policies on the subject
prevailing before Act 2710. The rulings,
therefore, under the Civil Code of 1889,
prior to the Act above-mentioned, are
now, fully applicable. Of these, the
decision in Ramirez vs. Gmur, 42 Phil.
855, is of particular interest. Said this
Court in that case:
As the divorce granted by the French
Court must be ignored, it results that the
marriage of Dr. Mory and Leona Castro,
celebrated in London in 1905, could not
legalize their relations; and the
circumstance that they afterwards passed
for husband and wife in Switzerland until
her death is wholly without legal
significance. The claims of the very
children to participate in the estate of
Samuel Bishop must therefore be
rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged
natural children. The children of
adulterous relations are wholly excluded.
The word "descendants" as used in
Article 941 of the Civil Code cannot be
interpreted to include illegitimates born
of adulterous relations. (Emphasis
supplied)
Except for the fact that the successional
rights of the children, begotten from
Vicenta's marriage to Leo Moran after the
invalid divorce, are not involved in the
case at bar, the Gmur case is authority for
the proposition that such union is
adulterous in this jurisdiction, and,
therefore, justifies an action for legal
separation on the part of the innocent

consort of the first marriage, that stands

undissolved in Philippine law. In not so
declaring, the trial court committed error.
True it is that our ruling gives rise to
anomalous situations where the status of
a person (whether divorced or not) would
depend on the territory where the
question arises. Anomalies of this kind
are not new in the Philippines, and the
answer to them was given in Barretto vs.
Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws
in the Philippine Islands are well known
to the members of the Legislature. It is
the duty of the Courts to enforce the laws
of divorce as written by Legislature if
they are constitutional. Courts have no
right to say that such laws are too strict or
too liberal. (p. 72)
The appellant's first assignment of error
is, therefore, sustained.
However, the plaintiff-appellant's charge
that his wife's parents, Dr. Mamerto
Escao and his wife, the late Doa Mena
Escao, alienated the affections of their
daughter and influenced her conduct
toward her husband are not supported by
credible evidence. The testimony of
Pastor Tenchavez about the Escao's
animosity toward him strikes us to be
merely conjecture and exaggeration, and
are belied by Pastor's own letters written
before this suit was begun (Exh. "2Escao" and "Vicenta," Rec. on App., pp.
270-274). In these letters he expressly
apologized to the defendants for
"misjudging them" and for the "great
unhappiness" caused by his "impulsive
blunders" and "sinful pride," "effrontery
and audacity" [sic]. Plaintiff was admitted

to the Escao house to visit and court

Vicenta, and the record shows nothing to
prove that he would not have been
accepted to marry Vicente had he openly
asked for her hand, as good manners and
breeding demanded. Even after learning
of the clandestine marriage, and despite
their shock at such unexpected event, the
parents of Vicenta proposed and arranged
that the marriage be recelebrated in strict
conformity with the canons of their
religion upon advice that the previous one
was canonically defective. If no
recelebration of the marriage ceremony
was had it was not due to defendants
Mamerto Escao and his wife, but to the
refusal of Vicenta to proceed with it. That
the spouses Escao did not seek to
compel or induce their daughter to assent
to the recelebration but respected her
decision, or that they abided by her
resolve, does not constitute in law an
alienation of affections. Neither does the
fact that Vicenta's parents sent her money
while she was in the United States; for it
was natural that they should not wish
their daughter to live in penury even if
they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130132).
There is no evidence that the parents of
Vicenta, out of improper motives, aided
and abetted her original suit for
annulment, or her subsequent divorce;
she appears to have acted independently,
and being of age, she was entitled to
judge what was best for her and ask that
her decisions be respected. Her parents,
in so doing, certainly cannot be charged
with alienation of affections in the
absence of malice or unworthy motives,
which have not been shown, good faith

being always presumed until the contrary

is proved.

applicable in the case of advice given to a

son.

SEC. 529. Liability of Parents,

Guardians or Kin. The law
distinguishes between the right of a
parent to interest himself in the marital
affairs of his child and the absence of
rights in a stranger to intermeddle in such
affairs. However, such distinction
between the liability of parents and that
of strangers is only in regard to what will
justify interference. A parent isliable for
alienation of affections resulting from his
own malicious conduct, as where he
wrongfully entices his son or daughter to
leave his or her spouse, but he is not
liable unless he acts maliciously, without
justification and from unworthy motives.
He is not liable where he acts and advises
his child in good faith with respect to his
child's marital relations in the interest of
his child as he sees it, the marriage of his
child not terminating his right and liberty
to interest himself in, and be extremely
solicitous for, his child's welfare and
happiness, even where his conduct and
advice suggest or result in the separation
of the spouses or the obtaining of a
divorce or annulment, or where he acts
under mistake or misinformation, or
where his advice or interference are
indiscreet or unfortunate, although it has
been held that the parent is liable for
consequences resulting from
recklessness. He may in good faith take
his child into his home and afford him or
her protection and support, so long as he
has not maliciously enticed his child
away, or does not maliciously entice or
cause him or her to stay away, from his or
her spouse. This rule has more frequently
been applied in the case of advice given
to a married daughter, but it is equally

Plaintiff Tenchavez, in falsely charging

Vicenta's aged parents with racial or
social discrimination and with having
exerted efforts and pressured her to seek
annulment and divorce, unquestionably
caused them unrest and anxiety, entitling
them to recover damages. While this suit
may not have been impelled by actual
malice, the charges were certainly
reckless in the face of the proven facts
and circumstances. Court actions are not
established for parties to give vent to their
prejudices or spleen.
In the assessment of the moral damages
recoverable by appellant Pastor
Tenchavez from defendant Vicente
Escao, it is proper to take into account,
against his patently unreasonable claim
for a million pesos in damages, that (a)
the marriage was celebrated in secret, and
its failure was not characterized by
publicity or undue humiliation on
appellant's part; (b) that the parties never
lived together; and (c) that there is
evidence that appellant had originally
agreed to the annulment of the marriage,
although such a promise was legally
invalid, being against public policy (cf.
Art. 88, Civ. Code). While appellant is
unable to remarry under our law, this fact
is a consequence of the indissoluble
character of the union that appellant
entered into voluntarily and with open
eyes rather than of her divorce and her
second marriage. All told, we are of the
opinion that appellant should recover
P25,000 only by way of moral damages
and attorney's fees.

With regard to the P45,000 damages

awarded to the defendants, Dr. Mamerto
Escao and Mena Escao, by the court
below, we opine that the same are
excessive. While the filing of this
unfounded suit must have wounded said
defendants' feelings and caused them
anxiety, the same could in no way have
seriously injured their reputation, or
otherwise prejudiced them, lawsuits
having become a common occurrence in
present society. What is important, and
has been correctly established in the
decision of the court below, is that said
defendants were not guilty of any
improper conduct in the whole deplorable
affair. This Court, therefore, reduces the
damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between
Filipino citizens, sought and decreed after
the effectivity of the present Civil Code
(Rep. Act 386), is not entitled to
recognition as valid in this jurisdiction;
and neither is the marriage contracted
with another party by the divorced
consort, subsequently to the foreign
decree of divorce, entitled to validity in
the country;
(2) That the remarriage of divorced wife
and her co-habitation with a person other
than the lawful husband entitle the latter
to a decree of legal separation
conformably to Philippine law;
(3) That the desertion and securing of an
invalid divorce decree by one consort
entitles the other to recover damages;
(4) That an action for alienation of
affections against the parents of one

consort does not lie in the absence of

proof of malice or unworthy motives on
their part.
WHEREFORE, the decision under appeal
is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor
Tenchavez entitled to a decree of legal
separation from defendant Vicenta F.
Escao;
(2) Sentencing defendant-appellee
Vicenta Escao to pay plaintiff-appellant
Tenchavez the amount of P25,000 for
damages and attorneys' fees;
(3) Sentencing appellant Pastor
Tenchavez to pay the appellee, Mamerto
Escao and the estate of his wife, the
deceased Mena Escao, P5,000 by way of
damages and attorneys' fees.
Neither party to recover costs.
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN
DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR.,
as Presiding Judge of Branch CX,
Regional Trial Court of the National
Capital Region Pasay City and
RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and
Prohibition, petitioner Alice Reyes Van
Dorn seeks to set aside the Orders, dated
September 15, 1983 and August 3, 1984,

in Civil Case No. 1075-P, issued by

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

case. The denial is now the subject of this

certiorari proceeding.
Generally, the denial of a Motion to
Dismiss in a civil case is interlocutory
and is not subject to appeal. certiorari and
Prohibition are neither the remedies to
question the propriety of an interlocutory
order of the trial Court. However, when a
grave abuse of discretion was patently
committed, or the lower Court acted
capriciously and whimsically, then it
devolves upon this Court in a certiorari
proceeding to exercise its supervisory
authority and to correct the error
committed which, in such a case, is
equivalent to lack of
jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of
time to go ahead with the
proceedings. 2 Weconsider the petition
filed in this case within the exception,
and we have given it due course.
For resolution is the effect of the foreign
divorce on the parties and their alleged
conjugal property in the Philippines.
Petitioner contends that respondent is
estopped from laying claim on the alleged
conjugal property because of the
representation he made in the divorce
proceedings before the American Court
that they had no community of property;
that the Galleon Shop was not established
through conjugal funds, and that
respondent's claim is barred by prior
judgment.
For his part, respondent avers that the
Divorce Decree issued by the Nevada
Court cannot prevail over the prohibitive
laws of the Philippines and its declared
national policy; that the acts and

declaration of a foreign Court cannot,

especially if the same is contrary to
public policy, divest Philippine Courts of
jurisdiction to entertain matters within its
jurisdiction.
For the resolution of this case, it is not
necessary to determine whether the
property relations between petitioner and
private respondent, after their marriage,
were upon absolute or relative
community property, upon complete
separation of property, or upon any other
regime. The pivotal fact in this case is the
Nevada divorce of the parties.
The Nevada District Court, which
decreed the divorce, had obtained
jurisdiction over petitioner who appeared
in person before the Court during the trial
of the case. It also obtained jurisdiction
over private respondent who, giving his
address as No. 381 Bush Street, San
Francisco, California, authorized his
attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the
ground of incompatibility in the
understanding that there were neither
community property nor community
obligations. 3 As explicitly stated in the
Power of Attorney he executed in favor
of the law firm of KARP & GRAD LTD.,
336 W. Liberty, Reno, Nevada, to
represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept
service of Summons, to file an Answer,
appear on my behalf and do an things
necessary and proper to represent me,
without further contesting, subject to the
following:

1. That my spouse seeks a divorce on the

ground of incompatibility.
2. That there is no community of property
to be adjudicated by the Court.
3. 'I'hat there are no community
obligations to be adjudicated by the court.
xxx xxx xxx 4
There can be no question as to the
validity of that Nevada divorce in any of
the States of the United States. The
decree is binding on private respondent as
an American citizen. For instance, private
respondent cannot sue petitioner, as her
husband, in any State of the Union. What
he is contending in this case is that the
divorce is not valid and binding in this
jurisdiction, the same being contrary to
local law and public policy.
It is true that owing to the nationality
principle embodied in Article 15 of the
Civil Code, 5 only Philippine nationals
are covered by the policy against absolute
divorces the same being considered
contrary to our concept of public police
and morality. However, aliens may obtain
divorces abroad, which may be
recognized in the Philippines, provided
they are valid according to their national
law. 6 In this case, the divorce in Nevada
released private respondent from the
marriage from the standards of American
law, under which divorce dissolves the
marriage. As stated by the Federal
Supreme Court of the United States in
Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of
divorce from the bond of matrimony by a
court of competent jurisdiction are to

change the existing status or domestic

relation of husband and wife, and to free
them both from the bond. The marriage
tie when thus severed as to one party,
ceases to bind either. A husband without
a wife, or a wife without a husband, is
unknown to the law. When the law
provides, in the nature of a penalty. that
the guilty party shall not marry again, that
party, as well as the other, is still
absolutely freed from the bond of the
former marriage.
Thus, pursuant to his national law, private
respondent is no longer the husband of
petitioner. He would have no standing to
sue in the case below as petitioner's
husband entitled to exercise control over
conjugal assets. As he is bound by the
Decision of his own country's Court,
which validly exercised jurisdiction over
him, and whose decision he does not
repudiate, he is estopped by his own
representation before said Court from
asserting his right over the alleged
conjugal property.
To maintain, as private respondent does,
that, under our laws, petitioner has to be
considered still married to private
respondent and still subject to a wife's
obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner
should not be obliged to live together
with, observe respect and fidelity, and
render support to private respondent. The
latter should not continue to be one of her
heirs with possible rights to conjugal
property. She should not be discriminated
against in her own country if the ends of
justice are to be served.
WHEREFORE, the Petition is granted,
and respondent Judge is hereby ordered

to dismiss the Complaint filed in Civil

Case No. 1075-P of his Court.

Christensen. The will was executed in

Manila on March 5, 1951 and contains
the following provisions:

Without costs.
SO ORDERED.
G.R. No. L-16749
1963

January 31,

IN THE MATTER OF THE

TESTATE ESTATE OF EDWARD E.
CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and
LUCY CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN
GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heirappellees.
Leopoldo M. Abellera and Jovito Salonga
for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the
Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated
September 14, 1949, approving among
things the final accounts of the executor,
directing the executor to reimburse Maria
Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the
property to be enjoyed during her
lifetime, and in case of death without
issue, one-half of said residue to be
payable to Mrs. Carrie Louise C. Borton,
etc., in accordance with the provisions of
the will of the testator Edward E.

3. I declare ... that I have but ONE (1)

child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard
Daney), who was born in the Philippines
about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no
living ascendants, and no descendants
except my above named daughter,
MARIA LUCY CHRISTENSEN
DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto

MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about
eighteen years of age and who,
notwithstanding the fact that she was
baptized Christensen, is not in any way
related to me, nor has she been at any
time adopted by me, and who, from all
information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the
said Maria Helen Christensen with the
Davao Branch of the Philippine National
Bank, and paid to her at the rate of One
Hundred Pesos (P100.00), Philippine
Currency per month until the principal
thereof as well as any interest which may
have accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath,

unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN
DANEY (Mrs. Bernard Daney), now
residing as aforesaid at No. 665 Rodger
Young Village, Los Angeles, California,
U.S.A., all the income from the rest,
remainder, and residue of my property
and estate, real, personal and/or mixed, of
whatsoever kind or character, and
wheresoever situated, of which I may be
possessed at my death and which may
have come to me from any source
whatsoever, during her lifetime: ....
It is in accordance with the above-quoted
provisions that the executor in his final
account and project of partition ratified
the payment of only P3,600 to Helen
Christensen Garcia and proposed that the
residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project
of partition was filed by Helen
Christensen Garcia, insofar as it deprives
her (Helen) of her legitime as an
acknowledged natural child, she having
been declared by Us in G.R. Nos. L11483-84 an acknowledged natural child
of the deceased Edward E. Christensen.
The legal grounds of opposition are (a)
that the distribution should be governed
by the laws of the Philippines, and (b)
that said order of distribution is contrary
thereto insofar as it denies to Helen
Christensen, one of two acknowledged
natural children, one-half of the estate in
full ownership. In amplification of the
above grounds it was alleged that the law
that should govern the estate of the
deceased Christensen should not be the
internal law of California alone, but the
entire law thereof because several foreign

elements are involved, that the forum is

the Philippines and even if the case were
decided in California, Section 946 of the
California Civil Code, which requires that
the domicile of the decedent should
apply, should be applicable. It was also
alleged that Maria Helen Christensen
having been declared an acknowledged
natural child of the decedent, she is
deemed for all purposes legitimate from
the time of her birth.
The court below ruled that as Edward E.
Christensen was a citizen of the United
States and of the State of California at the
time of his death, the successional rights
and intrinsic validity of the provisions in
his will are to be governed by the law of
California, in accordance with which a
testator has the right to dispose of his
property in the way he desires, because
the right of absolute dominion over his
property is sacred and inviolable (In re
McDaniel's Estate, 77 Cal. Appl. 2d 877,
176 P. 2d 952, and In re Kaufman, 117
Cal. 286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria
Helen Christensen, through counsel, filed
various motions for reconsideration, but
these were denied. Hence, this appeal.
The most important assignments of error
are as follows:
I
THE LOWER COURT ERRED IN
IGNORING THE DECISION OF THE
HONORABLE SUPREME COURT
THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD
OF EDWARD E. CHRISTENSEN AND,
CONSEQUENTLY, IN DEPRIVING

HER OF HER JUST SHARE IN THE

INHERITANCE.
II
THE LOWER COURT ERRED IN
ENTIRELY IGNORING AND/OR
FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION
OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN
FAILING TO RECOGNIZE THAT
UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE
RENVOI DOCTRINE, THE INTRINSIC
VALIDITY OF THE TESTAMENTARY
DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF
THE DECEASED EDWARD E.
CHRISTENSEN SHOULD BE
GOVERNED BY THE LAWS OF THE
PHILIPPINES.

There is no question that Edward E.

Christensen was a citizen of the United
States and of the State of California at the
time of his death. But there is also no
question that at the time of his death he
was domiciled in the Philippines, as
witness the following facts admitted by
the executor himself in appellee's brief:
In the proceedings for admission of the
will to probate, the facts of record show
that the deceased Edward E. Christensen
was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival
in the Philippines, as an appointed school
teacher, was on July 1, 1901, on board the
U.S. Army Transport "Sheridan" with
Port of Embarkation as the City of San
Francisco, in the State of California,
U.S.A. He stayed in the Philippines until
1904.
In December, 1904, Mr. Christensen
returned to the United States and stayed
there for the following nine years until
1913, during which time he resided in,
and was teaching school in Sacramento,
California.

IV
THE LOWER COURT ERRED IN NOT
DECLARING THAT THE SCHEDULE
OF DISTRIBUTION SUBMITTED BY
THE EXECUTOR IS CONTRARY TO
THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT
DECLARING THAT UNDER THE
PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF
THE ESTATE IN FULL OWNERSHIP.

Mr. Christensen's next arrival in the

Philippines was in July of the year 1913.
However, in 1928, he again departed the
Philippines for the United States and
came back here the following year, 1929.
Some nine years later, in 1938, he again
returned to his own country, and came
back to the Philippines the following
year, 1939.
Wherefore, the parties respectfully pray
that the foregoing stipulation of facts be
admitted and approved by this Honorable
Court, without prejudice to the parties
adducing other evidence to prove their

case not covered by this stipulation of

facts. 1wph1.t

mere physical presence. (Goodrich on

Conflict of Laws, p. 29)

Being an American citizen, Mr.

Christensen was interned by the Japanese
Military Forces in the Philippines during
World War II. Upon liberation, in April
1945, he left for the United States but
returned to the Philippines in December,
1945. Appellees Collective Exhibits "6",
CFI Davao, Sp. Proc. 622, as Exhibits
"AA", "BB" and "CC-Daney"; Exhs.
"MM", "MM-l", "MM-2-Daney" and p.
473, t.s.n., July 21, 1953.)

As to his citizenship, however, We find

that the citizenship that he acquired in
California when he resided in
Sacramento, California from 1904 to
1913, was never lost by his stay in the
Philippines, for the latter was a territory
of the United States (not a state) until
1946 and the deceased appears to have
considered himself as a citizen of
California by the fact that when he
executed his will in 1951 he declared that
he was a citizen of that State; so that he
appears never to have intended to
abandon his California citizenship by
acquiring another. This conclusion is in
accordance with the following principle
expounded by Goodrich in his Conflict of
Laws.

In April, 1951, Edward E. Christensen

returned once more to California shortly
after the making of his last will and
testament (now in question herein) which
he executed at his lawyers' offices in
Manila on March 5, 1951. He died at the
St. Luke's Hospital in the City of Manila
on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the
domicile of the deceased is the
Philippines, we are persuaded by the fact
that he was born in New York, migrated
to California and resided there for nine
years, and since he came to the
Philippines in 1913 he returned to
California very rarely and only for short
visits (perhaps to relatives), and
considering that he appears never to have
owned or acquired a home or properties
in that state, which would indicate that he
would ultimately abandon the Philippines
and make home in the State of California.
Sec. 16. Residence is a term used with
many shades of meaning from mere
temporary presence to the most
permanent abode. Generally, however, it
is used to denote something more than

The terms "'residence" and "domicile"

might well be taken to mean the same
thing, a place of permanent abode. But
domicile, as has been shown, has
acquired a technical meaning. Thus one
may be domiciled in a place where he has
never been. And he may reside in a place
where he has no domicile. The man with
two homes, between which he divides his
time, certainly resides in each one, while
living in it. But if he went on business
which would require his presence for
several weeks or months, he might
properly be said to have sufficient
connection with the place to be called a
resident. It is clear, however, that, if he
treated his settlement as continuing only
for the particular business in hand, not
giving up his former "home," he could
not be a domiciled New Yorker.
Acquisition of a domicile of choice
requires the exercise of intention as well

as physical presence. "Residence simply

requires bodily presence of an inhabitant
in a given place, while domicile requires
bodily presence in that place and also an
intention to make it one's domicile."
Residence, however, is a term used with
many shades of meaning, from the merest
temporary presence to the most
permanent abode, and it is not safe to
insist that any one use et the only proper
one. (Goodrich, p. 29)
The law that governs the validity of his
testamentary dispositions is defined in
Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as
personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and regardless of
the country where said property may be
found.
The application of this article in the case
at bar requires the determination of the
meaning of the term "national law" is
used therein.
There is no single American law
governing the validity of testamentary
provisions in the United States, each state
of the Union having its own private law
applicable to its citizens only and in force
only within the state. The "national law"

indicated in Article 16 of the Civil Code

above quoted can not, therefore, possibly
mean or apply to any general American
law. So it can refer to no other than the
private law of the State of California.
The next question is: What is the law in
California governing the disposition of
personal property? The decision of the
court below, sustains the contention of
the executor-appellee that under the
California Probate Code, a testator may
dispose of his property by will in the
form and manner he desires, citing the
case of Estate of McDaniel, 77 Cal. Appl.
2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of
the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the
place where personal property is situated,
it is deemed to follow the person of its
owner, and is governed by the law of his
domicile.
The existence of this provision is alleged
in appellant's opposition and is not
denied. We have checked it in the
California Civil Code and it is there.
Appellee, on the other hand, relies on the
case cited in the decision and testified to
by a witness. (Only the case of Kaufman
is correctly cited.) It is argued on
executor's behalf that as the deceased
Christensen was a citizen of the State of
California, the internal law thereof, which
is that given in the abovecited case,
should govern the determination of the
validity of the testamentary provisions of
Christensen's will, such law being in
force in the State of California of which
Christensen was a citizen. Appellant, on
the other hand, insists that Article 946

should be applicable, and in accordance

therewith and following the doctrine of
therenvoi, the question of the validity of
the testamentary provision in question
should be referred back to the law of the
decedent's domicile, which is the
Philippines.
The theory of doctrine of renvoi has been
defined by various authors, thus:
The problem has been stated in this way:
"When the Conflict of Laws rule of the
forum refers a jural matter to a foreign
law for decision, is the reference to the
purely internal rules of law of the foreign
system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one.
The Michigan court chose to accept the
renvoi, that is, applied the Conflict of
Laws rule of Illinois which referred the
matter back to Michigan law. But once
having determined the the Conflict of
Laws principle is the rule looked to, it is
difficult to see why the reference back
should not have been to Michigan
Conflict of Laws. This would have
resulted in the "endless chain of
references" which has so often been
criticized be legal writers. The opponents
of the renvoi would have looked merely
to the internal law of Illinois, thus
rejecting the renvoi or the reference back.
Yet there seems no compelling logical
reason why the original reference should
be the internal law rather than to the
Conflict of Laws rule. It is true that such
a solution avoids going on a merry-goround, but those who have accepted
the renvoi theory avoid this inextricabilis
circulas by getting off at the second
reference and at that point applying

internal law. Perhaps the opponents of

the renvoi are a bit more consistent for
they look always to internal law as the
rule of reference.
Strangely enough, both the advocates for
and the objectors to the renvoi plead that
greater uniformity will result from
adoption of their respective views. And
still more strange is the fact that the only
way to achieve uniformity in this choiceof-law problem is if in the dispute the two
states whose laws form the legal basis of
the litigation disagree as to whether
the renvoi should be accepted. If both
reject, or both accept the doctrine, the
result of the litigation will vary with the
choice of the forum. In the case stated
above, had the Michigan court rejected
the renvoi, judgment would have been
against the woman; if the suit had been
brought in the Illinois courts, and they too
rejected the renvoi, judgment would be
for the woman. The same result would
happen, though the courts would switch
with respect to which would hold
liability, if both courts accepted
the renvoi.
The Restatement accepts
the renvoi theory in two instances: where
the title to land is in question, and where
the validity of a decree of divorce is
challenged. In these cases the Conflict of
Laws rule of the situs of the land, or the
domicile of the parties in the divorce
case, is applied by the forum, but any
further reference goes only to the internal
law. Thus, a person's title to land,
recognized by the situs, will be
recognized by every court; and every
divorce, valid by the domicile of the
parties, will be valid everywhere.

(Goodrich, Conflict of Laws, Sec. 7, pp.

13-14.)
X, a citizen of Massachusetts, dies
intestate, domiciled in France, leaving
movable property in Massachusetts,
England, and France. The question arises
as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of the
conflict of laws as to intestate succession
to movables calls for an application of the
law of the deceased's last domicile. Since
by hypothesis X's last domicile was
France, the natural thing for the
Massachusetts court to do would be to
turn to French statute of distributions, or
whatever corresponds thereto in French
law, and decree a distribution
accordingly. An examination of French
law, however, would show that if a
French court were called upon to
determine how this property should be
distributed, it would refer the distribution
to the national law of the deceased, thus
applying the Massachusetts statute of
distributions. So on the surface of things
the Massachusetts court has open to it
alternative course of action: (a) either to
apply the French law is to intestate
succession, or (b) to resolve itself into a
French court and apply the Massachusetts
statute of distributions, on the assumption
that this is what a French court would do.
If it accepts the so-called renvoidoctrine,
it will follow the latter course, thus
applying its own law.
This is one type of renvoi. A jural matter
is presented which the conflict-of-laws
rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn,

refers the matter back again to the law of

the forum. This is renvoi in the narrower
sense. The German term for this judicial
process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a
foreign law is to be resorted to as
governing a particular case, the further
question may arise: Are the rules as to the
conflict of laws contained in such foreign
law also to be resorted to? This is a
question which, while it has been
considered by the courts in but a few
instances, has been the subject of frequent
discussion by textwriters and essayists;
and the doctrine involved has been
descriptively designated by them as the
"Renvoyer" to send back, or the
"Ruchversweisung", or the
"Weiterverweisung", since an affirmative
answer to the question postulated and the
operation of the adoption of the foreign
law in toto would in many cases result in
returning the main controversy to be
decided according to the law of the
forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The
theory of the doctrine of renvoiis that the
court of the forum, in determining the
question before it, must take into account
the whole law of the other jurisdiction,
but also its rules as to conflict of laws,
and then apply the law to the actual
question which the rules of the other
jurisdiction prescribe. This may be the
law of the forum. The doctrine of
therenvoi has generally been repudiated
by the American authorities. (2 Am. Jur.
296)

The scope of the theory of renvoi has also

been defined and the reasons for its
application in a country explained by
Prof. Lorenzen in an article in the Yale
Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article
are quoted herein below:
The recognition of the renvoi theory
implies that the rules of the conflict of
laws are to be understood as
incorporating not only the ordinary or
internal law of the foreign state or
country, but its rules of the conflict of
laws as well. According to this theory 'the
law of a country' means the whole of its
law.
xxx

xxx

determination of a question to the same

system of law.
xxx

xxx

xxx

If, for example, the English law directs its

judge to distribute the personal estate of
an Englishman who has died domiciled in
Belgium in accordance with the law of
his domicile, he must first inquire
whether the law of Belgium would
distribute personal property upon death in
accordance with the law of domicile, and
if he finds that the Belgian law would
make the distribution in accordance with
the law of nationality that is the
English law he must accept this
reference back to his own law.

xxx

(a) The provisions of a foreign law which

disclaims the right to bind its nationals
abroad as regards their personal statute,
and desires that said personal statute shall
be determined by the law of the domicile,
or even by the law of the place where the
act in question occurred.

We note that Article 946 of the California

Civil Code is its conflict of laws rule,
while the rule applied in In re
Kaufman, Supra, its internal law. If the
law on succession and the conflict of laws
rules of California are to be enforced
jointly, each in its own intended and
appropriate sphere, the principle cited In
re Kaufman should apply to citizens
living in the State, but Article 946 should
apply to such of its citizens as are not
domiciled in California but in other
jurisdictions. The rule laid down of
resorting to the law of the domicile in the
determination of matters with foreign
element involved is in accord with the
general principle of American law that
the domiciliary law should govern in
most matters or rights which follow the
person of the owner.

(b) The decision of two or more foreign

systems of law, provided it be certain that
one of them is necessarily competent,
which agree in attributing the

When a man dies leaving personal

property in one or more states, and leaves
a will directing the manner of distribution
of the property, the law of the state where

Von Bar presented his views at the

meeting of the Institute of International
Law, at Neuchatel, in 1900, in the form of
the following theses:
(1) Every court shall observe the law of
its country as regards the application of
foreign laws.
(2) Provided that no express provision to
the contrary exists, the court shall respect:

he was domiciled at the time of his death

will be looked to in deciding legal
questions about the will, almost as
completely as the law of situs is consulted
in questions about the devise of land. It is
logical that, since the domiciliary rules
control devolution of the personal estate
in case of intestate succession, the same
rules should determine the validity of an
attempted testamentary dispostion of the
property. Here, also, it is not that the
domiciliary has effect beyond the borders
of the domiciliary state. The rules of the
domicile are recognized as controlling by
the Conflict of Laws rules at the situs
property, and the reason for the
recognition as in the case of intestate
succession, is the general convenience of
the doctrine. The New York court has
said on the point: 'The general principle
that a dispostiton of a personal property,
valid at the domicile of the owner, is
valid anywhere, is one of the universal
application. It had its origin in that
international comity which was one of the
first fruits of civilization, and it this age,
when business intercourse and the
process of accumulating property take but
little notice of boundary lines, the
practical wisdom and justice of the rule is
more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of
the Civil Code of the Philippines pointed
out as the national law is the internal law
of California. But as above explained the
laws of California have prescribed two
sets of laws for its citizens, one for
residents therein and another for those
domiciled in other jurisdictions. Reason
demands that We should enforce the
California internal law prescribed for its
citizens residing therein, and enforce the

conflict of laws rules for the citizens

domiciled abroad. If we must enforce the
law of California as in comity we are
bound to go, as so declared in Article 16
of our Civil Code, then we must enforce
the law of California in accordance with
the express mandate thereof and as above
explained, i.e., apply the internal law for
residents therein, and its conflict-of-laws
rule for those domiciled abroad.
It is argued on appellees' behalf that the
clause "if there is no law to the contrary
in the place where the property is
situated" in Sec. 946 of the California
Civil Code refers to Article 16 of the
Civil Code of the Philippines and that the
law to the contrary in the Philippines is
the provision in said Article 16 that
the national law of the deceased should
govern. This contention can not be
sustained. As explained in the various
authorities cited above the national law
mentioned in Article 16 of our Civil Code
is the law on conflict of laws in the
California Civil Code, i.e., Article 946,
which authorizes the reference or return
of the question to the law of the testator's
domicile. The conflict of laws rule in
California, Article 946, Civil Code,
precisely refers back the case, when a
decedent is not domiciled in California, to
the law of his domicile, the Philippines in
the case at bar. The court of the domicile
can not and should not refer the case back
to California; such action would leave the
issue incapable of determination because
the case will then be like a football,
tossed back and forth between the two
states, between the country of which the
decedent was a citizen and the country of
his domicile. The Philippine court must
apply its own law as directed in the
conflict of laws rule of the state of the

decedent, if the question has to be

decided, especially as the application of
the internal law of California provides no
legitime for children while the Philippine
law, Arts. 887(4) and 894, Civil Code of
the Philippines, makes natural children
legally acknowledged forced heirs of the
parent recognizing them.
The Philippine cases (In re Estate of
Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs.
Brimo, 50 Phil. 867; Babcock Templeton
vs. Rider Babcock, 52 Phil. 130; and
Gibbs vs. Government, 59 Phil. 293.)
cited by appellees to support the decision
can not possibly apply in the case at bar,
for two important reasons, i.e., the subject
in each case does not appear to be a
citizen of a state in the United States but
with domicile in the Philippines, and it
does not appear in each case that there
exists in the state of which the subject is a
citizen, a law similar to or identical with
Art. 946 of the California Civil Code.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G.

BELLIS, deceased.
PEOPLE'S BANK and TRUST
COMPANY, executor.
MARIA CRISTINA BELLIS and
MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirsappellees.
Vicente R. Macasaet and Jose D. Villena
for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno
for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees
W. S. Bellis, et al.
J. R. Balonkita for appellee People's
Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A.
B. Allsman.
BENGZON, J.P., J.:

We therefore find that as the domicile of

the deceased Christensen, a citizen of
California, is the Philippines, the validity
of the provisions of his will depriving his
acknowledged natural child, the
appellant, should be governed by the
Philippine Law, the domicile, pursuant to
Art. 946 of the Civil Code of California,
not by the internal law of California..

This is a direct appeal to Us, upon a

question purely of law, from an order of
the Court of First Instance of Manila
dated April 30, 1964, approving the
project of partition filed by the executor
in Civil Case No. 37089
therein.1wph1.t

WHEREFORE, the decision appealed

from is hereby reversed and the case
returned to the lower court with
instructions that the partition be made as
the Philippine law on succession
provides. Judgment reversed, with costs
against appellees.

Amos G. Bellis, born in Texas, was "a

citizen of the State of Texas and of the
United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his

second wife, Violet Kennedy, who

survived him, he had three legitimate
children: Edwin G. Bellis, Walter S.
Bellis and Dorothy Bellis; and finally, he
had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.

respective legacies, or a total of

P120,000.00, which it released from time
to time according as the lower court
approved and allowed the various
motions or petitions filed by the latter
three requesting partial advances on
account of their respective legacies.

On August 5, 1952, Amos G. Bellis

executed a will in the Philippines, in
which he directed that after all taxes,
obligations, and expenses of
administration are paid for, his
distributable estate should be divided, in
trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after
the foregoing two items have been
satisfied, the remainder shall go to his
seven surviving children by his first and
second wives, namely: Edward A. Bellis,
Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman, Edwin G. Bellis,
Walter S. Bellis, and Dorothy E. Bellis, in
equal shares.1wph1.t

On January 8, 1964, preparatory to

closing its administration, the executor
submitted and filed its "Executor's Final
Account, Report of Administration and
Project of Partition" wherein it
reported, inter alia, the satisfaction of the
legacy of Mary E. Mallen by the delivery
to her of shares of stock amounting to
$240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis in the amount of
P40,000.00 each or a total of
P120,000.00. In the project of partition,
the executor pursuant to the "Twelfth"
clause of the testator's Last Will and
Testament divided the residuary estate
into seven equal portions for the benefit
of the testator's seven legitimate children
by his first and second marriages.

Subsequently, or on July 8, 1958, Amos

G. Bellis died a resident of San Antonio,
Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of
Manila on September 15, 1958.

The facts of the case are as follows:

The People's Bank and Trust Company,
as executor of the will, paid all the
bequests therein including the amount of
$240,000.00 in the form of shares of
stock to Mary E. Mallen and to the three
(3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma
Bellis, various amounts totalling
P40,000.00 each in satisfaction of their

On January 17, 1964, Maria Cristina

Bellis and Miriam Palma Bellis filed their
respective oppositions to the project of
partition on the ground that they were
deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs
of the deceased.
Amos Bellis, Jr. interposed no opposition
despite notice to him, proof of service of
which is evidenced by the registry receipt
submitted on April 27, 1964 by the
executor.1
After the parties filed their respective
memoranda and other pertinent pleadings,

the lower court, on April 30, 1964, issued

an order overruling the oppositions and
approving the executor's final account,
report and administration and project of
partition. Relying upon Art. 16 of the
Civil Code, it applied the national law of
the decedent, which in this case is Texas
law, which did not provide for legitimes.
Their respective motions for
reconsideration having been denied by
the lower court on June 11, 1964,
oppositors-appellants appealed to this
Court to raise the issue of which law must
apply Texas law or Philippine law.
In this regard, the parties do not submit
the case on, nor even discuss, the doctrine
of renvoi, applied by this Court in Aznar
v. Christensen Garcia, L-16749, January
31, 1963. Said doctrine is usually
pertinent where the decedent is a national
of one country, and a domicile of another.
In the present case, it is not disputed that
the decedent was both a national of Texas
and a domicile thereof at the time of his
death.2 So that even assuming Texas has a
conflict of law rule providing that the
domiciliary system (law of the domicile)
should govern, the same would not result
in a reference back (renvoi) to Philippine
law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae)
calling for the application of the law of
the place where the properties are
situated, renvoi would arise, since the
properties here involved are found in the
Philippines. In the absence, however, of
proof as to the conflict of law rule of
Texas, it should not be presumed
different from ours.3Appellants' position
is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor

even mentioned it in their arguments.

Rather, they argue that their case falls
under the circumstances mentioned in the
third paragraph of Article 17 in relation to
Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the
Civil Code, render applicable the national
law of the decedent, in intestate or
testamentary successions, with regard to
four items: (a) the order of succession; (b)
the amount of successional rights; (e) the
intrinsic validity of the provisions of the
will; and (d) the capacity to succeed.
They provide that
ART. 16. Real property as well as
personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may he the
nature of the property and regardless of
the country wherein said property may be
found.
ART. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent.
Appellants would however counter that
Art. 17, paragraph three, of the Civil
Code, stating that
Prohibitive laws concerning persons, their
acts or property, and those which have for
their object public order, public policy
and good customs shall not be rendered

ineffective by laws or judgments

promulgated, or by determinations or
conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2
of the Civil Code afore-quoted. This is
not correct. Precisely,
Congressdeleted the phrase,
"notwithstanding the provisions of this
and the next preceding article" when they
incorporated Art. 11 of the old Civil Code
as Art. 17 of the new Civil Code, while
reproducing without substantial change
the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must
have been their purpose to make the
second paragraph of Art. 16 a specific
provision in itself which must be applied
in testate and intestate succession. As
further indication of this legislative
intent, Congress added a new provision,
under Art. 1039, which decrees that
capacity to succeed is to be governed by
the national law of the decedent.
It is therefore evident that whatever
public policy or good customs may be
involved in our System of legitimes,
Congress has not intended to extend the
same to the succession of foreign
nationals. For it has specifically chosen to
leave, inter alia, the amount of
successional rights, to the decedent's
national law. Specific provisions must
prevail over general ones.
Appellants would also point out that the
decedent executed two wills one to
govern his Texas estate and the other his
Philippine estate arguing from this that
he intended Philippine law to govern his
Philippine estate. Assuming that such was
the decedent's intention in executing a

separate Philippine will, it would not alter

the law, for as this Court ruled in Miciano
v. Brimo, 50 Phil. 867, 870, a provision in
a foreigner's will to the effect that his
properties shall be distributed in
accordance with Philippine law and not
with his national law, is illegal and void,
for his national law cannot be ignored in
regard to those matters that Article 10
now Article 16 of the Civil Code
states said national law should govern.
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic
validity of the provision of the will and
the amount of successional rights are to
be determined under Texas law, the
Philippine law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court
is hereby affirmed in toto, with costs
against appellants. So ordered.
G.R. No. 81262 August 25, 1989
GLOBE MACKAY CABLE AND
RADIO CORP., and HERBERT C.
HENDRY, petitioners,
vs.
THE HONORABLE COURT OF
APPEALS and RESTITUTO M.
TOBIAS, respondents.
Atencia & Arias Law Offices for
petitioners.
Romulo C. Felizmena for private
respondent.

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

On December 6,1972, the Manila police

investigators submitted a laboratory
crime report (Exh. "A") clearing private
respondent of participation in the
anomalies.
Not satisfied with the police report,
petitioners hired a private investigator,
retired Col. Jose G. Fernandez, who on
December 10, 1972, submitted a report
(Exh. "2") finding Tobias guilty. This
report however expressly stated that
further investigation was still to be
conducted.
Nevertheless, on December 12, 1972,
petitioner Hendry issued a memorandum
suspending Tobias from work preparatory
to the filing of criminal charges against
him.
On December 19,1972, Lt. Dioscoro V.
Tagle, Metro Manila Police Chief
Document Examiner, after investigating
other documents pertaining to the alleged
anomalous transactions, submitted a
second laboratory crime report (Exh. "B")
reiterating his previous finding that the
handwritings, signatures, and initials
appearing in the checks and other
documents involved in the fraudulent
transactions were not those of Tobias.
The lie detector tests conducted on
Tobias also yielded negative results.
Notwithstanding the two police reports
exculpating Tobias from the anomalies
and the fact that the report of the private
investigator, was, by its own terms, not
yet complete, petitioners filed with the
City Fiscal of Manila a complaint for
estafa through falsification of commercial
documents, later amended to just estafa.
Subsequently five other criminal

complaints were filed against Tobias,

four of which were for estafa through
Falsification of commercial document
while the fifth was for of Article 290 of'
the Revised Penal Code (Discovering
Secrets Through Seizure of
Correspondence).lwph1.t Two of
these complaints were refiled with the
Judge Advocate General's Office, which
however, remanded them to the fiscal's
office. All of the six criminal complaints
were dismissed by the fiscal. Petitioners
appealed four of the fiscal's resolutions
dismissing the criminal complaints with
the Secretary of Justice, who, however,
affirmed their dismissal.
In the meantime, on January 17, 1973,
Tobias received a notice (Exh. "F") from
petitioners that his employment has been
terminated effective December 13, 1972.
Whereupon, Tobias filed a complaint for
illegal dismissal. The labor arbiter
dismissed the complaint. On appeal, the
National Labor Relations Commission
(NLRC) reversed the labor arbiter's
decision. However, the Secretary of
Labor, acting on petitioners' appeal from
the NLRC ruling, reinstated the labor
arbiter's decision. Tobias appealed the
Secretary of Labor's order with the Office
of the President. During the pendency of
the appeal with said office, petitioners
and private respondent Tobias entered
into a compromise agreement regarding
the latter's complaint for illegal dismissal.
Unemployed, Tobias sought employment
with the Republic Telephone Company
(RETELCO). However, petitioner
Hendry, without being asked by
RETELCO, wrote a letter to the latter
stating that Tobias was dismissed by
GLOBE MACKAY due to dishonesty.

Private respondent Tobias filed a civil

case for damages anchored on alleged
unlawful, malicious, oppressive, and
abusive acts of petitioners. Petitioner
Hendry, claiming illness, did not testify
during the hearings. The Regional Trial
Court (RTC) of Manila, Branch IX,
through Judge Manuel T. Reyes rendered
judgment in favor of private respondent
by ordering petitioners to pay him eighty
thousand pesos (P80,000.00) as actual
damages, two hundred thousand pesos
(P200,000.00) as moral damages, twenty
thousand pesos (P20,000.00) as
exemplary damages, thirty thousand
pesos (P30,000.00) as attorney's fees, and
costs. Petitioners appealed the RTC
decision to the Court of Appeals. On the
other hand, Tobias appealed as to the
amount of damages. However, the Court
of Appeals, an a decision dated August
31, 1987 affirmed the RTC decision in
toto. Petitioners' motion for
reconsideration having been denied, the
instant petition for review
on certiorari was filed.
The main issue in this case is whether or
not petitioners are liable for damages to
private respondent.
Petitioners contend that they could not be
made liable for damages in the lawful
exercise of their right to dismiss private
respondent.
On the other hand, private respondent
contends that because of petitioners'
abusive manner in dismissing him as well
as for the inhuman treatment he got from
them, the Petitioners must indemnify him
for the damage that he had suffered.

One of the more notable innovations of

the New Civil Code is the codification of
"some basic principles that are to be
observed for the rightful relationship
between human beings and for the
stability of the social order." [REPORT
ON THE CODE COMMISSION ON
THE PROPOSED CIVIL CODE OF
THE PHILIPPINES, p. 39]. The framers
of the Code, seeking to remedy the defect
of the old Code which merely stated the
effects of the law, but failed to draw out
its spirit, incorporated certain
fundamental precepts which were
"designed to indicate certain norms that
spring from the fountain of good
conscience" and which were also meant
to serve as "guides for human conduct
[that] should run as golden threads
through society, to the end that law may
approach its supreme ideal, which is the
sway and dominance of justice" (Id.)
Foremost among these principles is that
pronounced in Article 19 which provides:
Art. 19. Every person must, in the
exercise of his rights and in the
performance of his duties, act with
justice, give everyone his due, and
observe honesty and good faith.
This article, known to contain what is
commonly referred to as the principle of
abuse of rights, sets certain standards
which must be observed not only in the
exercise of one's rights but also in the
performance of one's duties. These
standards are the following: to act with
justice; to give everyone his due; and to
observe honesty and good faith. The law,
therefore, recognizes a primordial
limitation on all rights; that in their
exercise, the norms of human conduct set
forth in Article 19 must be observed. A

right, though by itself legal because

recognized or granted by law as such,
may nevertheless become the source of
some illegality. When a right is exercised
in a manner which does not conform with
the norms enshrined in Article 19 and
results in damage to another, a legal
wrong is thereby committed for which the
wrongdoer must be held responsible. But
while Article 19 lays down a rule of
conduct for the government of human
relations and for the maintenance of
social order, it does not provide a remedy
for its violation. Generally, an action for
damages under either Article 20 or
Article 21 would be proper.

helpless, even though they have actually

suffered material and moral injury" [Id.]
should "vouchsafe adequate legal remedy
for that untold number of moral wrongs
which it is impossible for human
foresight to provide for specifically in the
statutes" [Id. it p. 40; See also PNB v.
CA, G.R. No. L-27155, May 18,1978, 83
SCRA 237, 247].

Art. 21. Any person who wilfully causes

loss or injury to another in a manner that
is contrary to morals, good customs or
public policy shall compensate the latter
for the damage.

In determining whether or not the

principle of abuse of rights may be
invoked, there is no rigid test which can
be applied. While the Court has not
hesitated to apply Article 19 whether the
legal and factual circumstances called for
its application [See for e.g., Velayo v.
Shell Co. of the Phil., Ltd., 100 Phil. 186
(1956); PNB v. CA, supra;Grand Union
Supermarket, Inc. v. Espino, Jr., G.R. No.
L-48250, December 28, 1979, 94 SCRA
953; PAL v. CA, G.R. No. L-46558, July
31,1981,106 SCRA 391; United General
Industries, Inc, v. Paler G.R. No. L30205, March 15,1982,112 SCRA 404;
Rubio v. CA, G.R. No. 50911, August 21,
1987, 153 SCRA 183] the question of
whether or not the principle of abuse of
rights has been violated resulting in
damages under Article 20 or Article 21 or
other applicable provision of law,
depends on the circumstances of each
case. And in the instant case, the Court,
after examining the record and
considering certain significant
circumstances, finds that all petitioners
have indeed abused the right that they
invoke, causing damage to private
respondent and for which the latter must
now be indemnified.

This article, adopted to remedy the

"countless gaps in the statutes, which
leave so many victims of moral wrongs

The trial court made a finding that

notwithstanding the fact that it was
private respondent Tobias who reported

Article 20, which pertains to damage

arising from a violation of law, provides
that:
Art. 20. Every person who contrary to
law, wilfully or negligently causes
damage to another, shall indemnify the
latter for the same.
However, in the case at bar, petitioners
claim that they did not violate any
provision of law since they were merely
exercising their legal right to dismiss
private respondent. This does not,
however, leave private respondent with
no relief because Article 21 of the Civil
Code provides that:

the possible existence of anomalous

transactions, petitioner Hendry "showed
belligerence and told plaintiff (private
respondent herein) that he was the
number one suspect and to take a one
week vacation leave, not to communicate
with the office, to leave his table drawers
open, and to leave his keys to said
defendant (petitioner Hendry)" [RTC
Decision, p. 2; Rollo, p. 232]. This,
petitioners do not dispute. But regardless
of whether or not it was private
respondent Tobias who reported the
anomalies to petitioners, the latter's
reaction towards the former upon
uncovering the anomalies was less than
civil. An employer who harbors
suspicions that an employee has
committed dishonesty might be justified
in taking the appropriate action such as
ordering an investigation and directing
the employee to go on a leave. Firmness
and the resolve to uncover the truth
would also be expected from such
employer. But the high-handed treatment
accorded Tobias by petitioners was
certainly uncalled for. And this
reprehensible attitude of petitioners was
to continue when private respondent
returned to work on November 20, 1972
after his one week forced leave. Upon
reporting for work, Tobias was
confronted by Hendry who said. "Tobby,
you are the crook and swindler in this
company." Considering that the first
report made by the police investigators
was submitted only on December 10,
1972 [See Exh. A] the statement made by
petitioner Hendry was baseless. The
imputation of guilt without basis and the
pattern of harassment during the
investigations of Tobias transgress the
standards of human conduct set forth in
Article 19 of the Civil Code. The Court

has already ruled that the right of the

employer to dismiss an employee should
not be confused with the manner in which
the right is exercised and the effects
flowing therefrom. If the dismissal is
done abusively, then the employer is
liable for damages to the employee
[Quisaba v. Sta. Ines-Melale Veneer and
Plywood Inc., G.R. No. L-38088, August
30, 1974, 58 SCRA 771; See
also Philippine Refining Co., Inc. v.
Garcia, G.R. No. L-21871, September
27,1966, 18 SCRA 107] Under the
circumstances of the instant case, the
petitioners clearly failed to exercise in a
legitimate manner their right to dismiss
Tobias, giving the latter the right to
recover damages under Article 19 in
relation to Article 21 of the Civil Code.
But petitioners were not content with just
dismissing Tobias. Several other tortious
acts were committed by petitioners
against Tobias after the latter's
termination from work. Towards the
latter part of January, 1973, after the
filing of the first of six criminal
complaints against Tobias, the latter
talked to Hendry to protest the actions
taken against him. In response, Hendry
cut short Tobias' protestations by telling
him to just confess or else the company
would file a hundred more cases against
him until he landed in jail. Hendry added
that, "You Filipinos cannot be trusted."
The threat unmasked petitioner's bad faith
in the various actions taken against
Tobias. On the other hand, the scornful
remark about Filipinos as well as
Hendry's earlier statements about Tobias
being a "crook" and "swindler" are clear
violations of 'Tobias' personal dignity
[See Article 26, Civil Code].

The next tortious act committed by

petitioners was the writing of a letter to
RETELCO sometime in October 1974,
stating that Tobias had been dismissed by
GLOBE MACKAY due to dishonesty.
Because of the letter, Tobias failed to
gain employment with RETELCO and as
a result of which, Tobias remained
unemployed for a longer period of time.
For this further damage suffered by
Tobias, petitioners must likewise be held
liable for damages consistent with Article
2176 of the Civil Code. Petitioners,
however, contend that they have a
"moral, if not legal, duty to forewarn
other employers of the kind of employee
the plaintiff (private respondent herein)
was." [Petition, p. 14; Rollo, p. 15].
Petitioners further claim that "it is the
accepted moral and societal obligation of
every man to advise or warn his
fellowmen of any threat or danger to the
latter's life, honor or property. And this
includes warning one's brethren of the
possible dangers involved in dealing
with, or accepting into confidence, a man
whose honesty and integrity is suspect"
[Id.]. These arguments, rather than justify
petitioners' act, reveal a seeming
obsession to prevent Tobias from getting
a job, even after almost two years from
the time Tobias was dismissed.
Finally, there is the matter of the filing by
petitioners of six criminal complaints
against Tobias. Petitioners contend that
there is no case against them for
malicious prosecution and that they
cannot be "penalized for exercising their
right and prerogative of seeking justice
by filing criminal complaints against an
employee who was their principal suspect
in the commission of forgeries and in the
perpetration of anomalous transactions

which defrauded them of substantial sums

of money" [Petition, p. 10, Rollo, p. 11].
While sound principles of justice and
public policy dictate that persons shall
have free resort to the courts for redress
of wrongs and vindication of their rights
[Buenaventura v. Sto. Domingo, 103 Phil.
239 (1958)], the right to institute criminal
prosecutions can not be exercised
maliciously and in bad faith [Ventura v.
Bernabe, G.R. No. L-26760, April 30,
1971, 38 SCRA 5871.] Hence, in Yutuk
V. Manila Electric Co., G.R. No. L13016, May 31, 1961, 2 SCRA 337, the
Court held that the right to file criminal
complaints should not be used as a
weapon to force an alleged debtor to pay
an indebtedness. To do so would be a
clear perversion of the function of the
criminal processes and of the courts of
justice. And in Hawpia CA, G.R. No. L20047, June 30, 1967. 20 SCRA 536 the
Court upheld the judgment against the
petitioner for actual and moral damages
and attorney's fees after making a finding
that petitioner, with persistence, filed at
least six criminal complaints against
respondent, all of which were dismissed.
To constitute malicious prosecution, there
must be proof that the prosecution was
prompted by a design to vex and
humiliate a person and that it was
initiated deliberately by the defendant
knowing that the charges were false and
groundless [Manila Gas Corporation v.
CA, G.R. No. L-44190, October 30,1980,
100 SCRA 602]. Concededly, the filing
of a suit by itself, does not render a
person liable for malicious prosecution
[Inhelder Corporation v. CA, G.R. No.
52358, May 301983122 SCRA 576]. The
mere dismissal by the fiscal of the

criminal complaint is not a ground for an

award of damages for malicious
prosecution if there is no competent
evidence to show that the complainant
had acted in bad faith [Sison v. David,
G.R. No. L-11268, January 28,1961, 1
SCRA 60].
In the instant case, however, the trial
court made a finding that petitioners
acted in bad faith in filing the criminal
complaints against Tobias, observing
that:
xxx
Defendants (petitioners herein) filed with
the Fiscal's Office of Manila a total of six
(6) criminal cases, five (5) of which were
for estafa thru falsification of commercial
document and one for violation of Art.
290 of the Revised Penal Code
"discovering secrets thru seizure of
correspondence," and all were dismissed
for insufficiency or lack of evidence."
The dismissal of four (4) of the cases was
appealed to the Ministry of Justice, but
said Ministry invariably sustained the
dismissal of the cases. As above adverted
to, two of these cases were refiled with
the Judge Advocate General's Office of
the Armed Forces of the Philippines to
railroad plaintiffs arrest and detention in
the military stockade, but this was
frustrated by a presidential decree
transferring criminal cases involving
civilians to the civil courts.
xxx
To be sure, when despite the two (2)
police reports embodying the findings of
Lt. Dioscoro Tagle, Chief Document
Examiner of the Manila Police

Department, clearing plaintiff of

participation or involvement in the
fraudulent transactions complained of,
despite the negative results of the lie
detector tests which defendants
compelled plaintiff to undergo, and
although the police investigation was
"still under follow-up and a
supplementary report will be submitted
after all the evidence has been gathered,"
defendants hastily filed six (6) criminal
cases with the city Fiscal's Office of
Manila, five (5) for estafa thru
falsification of commercial document and
one (1) for violation of Art. 290 of the
Revised Penal Code, so much so that as
was to be expected, all six (6) cases were
dismissed, with one of the investigating
fiscals, Asst. Fiscal de Guia, commenting
in one case that, "Indeed, the haphazard
way this case was investigated is evident.
Evident likewise is the flurry and haste in
the filing of this case against respondent
Tobias," there can be no mistaking that
defendants would not but be motivated by
malicious and unlawful intent to harass,
oppress, and cause damage to plaintiff.
xxx
[RTC Decision, pp. 5-6; Rollo, pp. 235236].
In addition to the observations made by
the trial court, the Court finds it
significant that the criminal complaints
were filed during the pendency of the
illegal dismissal case filed by Tobias
against petitioners. This explains the
haste in which the complaints were filed,
which the trial court earlier noted. But
petitioners, to prove their good faith,
point to the fact that only six complaints
were filed against Tobias when they

could have allegedly filed one hundred

cases, considering the number of
anomalous transactions committed
against GLOBE MACKAY. However,
petitioners' good faith is belied by the
threat made by Hendry after the filing of
the first complaint that one hundred more
cases would be filed against Tobias. In
effect, the possible filing of one hundred
more cases was made to hang like the
sword of Damocles over the head of
Tobias. In fine, considering the haste in
which the criminal complaints were filed,
the fact that they were filed during the
pendency of the illegal dismissal case
against petitioners, the threat made by
Hendry, the fact that the cases were filed
notwithstanding the two police reports
exculpating Tobias from involvement in
the anomalies committed against GLOBE
MACKAY, coupled by the eventual
dismissal of all the cases, the Court is led
into no other conclusion than that
petitioners were motivated by malicious
intent in filing the six criminal complaints
against Tobias.
Petitioners next contend that the award of
damages was excessive. In the complaint
filed against petitioners, Tobias prayed
for the following: one hundred thousand
pesos (P100,000.00) as actual damages;
fifty thousand pesos (P50,000.00) as
exemplary damages; eight hundred
thousand pesos (P800,000.00) as moral
damages; fifty thousand pesos
(P50,000.00) as attorney's fees; and costs.
The trial court, after making a
computation of the damages incurred by
Tobias [See RTC Decision, pp. 7-8;
Rollo, pp. 154-1551, awarded him the
following: eighty thousand pesos
(P80,000.00) as actual damages; two
hundred thousand pesos (P200,000.00) as

moral damages; twenty thousand pesos

(P20,000.00) as exemplary damages;
thirty thousand pesos (P30,000.00) as
attorney's fees; and, costs. It must be
underscored that petitioners have been
guilty of committing several actionable
tortious acts, i.e., the abusive manner in
which they dismissed Tobias from work
including the baseless imputation of guilt
and the harassment during the
investigations; the defamatory language
heaped on Tobias as well as the scornful
remark on Filipinos; the poison letter sent
to RETELCO which resulted in Tobias'
loss of possible employment; and, the
malicious filing of the criminal
complaints. Considering the extent of the
damage wrought on Tobias, the Court
finds that, contrary to petitioners'
contention, the amount of damages
awarded to Tobias was reasonable under
the circumstances.
Yet, petitioners still insist that the award
of damages was improper, invoking the
principle of damnum absqueinjuria. It is
argued that "[t]he only probable actual
damage that plaintiff (private respondent
herein) could have suffered was a direct
result of his having been dismissed from
his employment, which was a valid and
legal act of the defendants-appellants
(petitioners herein).lwph1.t "
[Petition, p. 17; Rollo, p. 18].
According to the principle of damnum
absque injuria, damage or loss which
does not constitute a violation of a legal
right or amount to a legal wrong is not
actionable [Escano v. CA, G.R. No. L47207, September 25, 1980, 100 SCRA
197; See also Gilchrist v. Cuddy 29 Phil,
542 (1915); The Board of Liquidators v.
Kalaw, G.R. No. L-18805, August 14,

1967, 20 SCRA 987]. This principle finds

no application in this case. It bears
repeating that even granting that
petitioners might have had the right to
dismiss Tobias from work, the abusive
manner in which that right was exercised
amounted to a legal wrong for which
petitioners must now be held liable.
Moreover, the damage incurred by Tobias
was not only in connection with the
abusive manner in which he was
dismissed but was also the result of
several other quasi-delictual acts
committed by petitioners.
Petitioners next question the award of
moral damages. However, the Court has
already ruled in Wassmer v. Velez, G.R.
No. L-20089, December 26, 1964, 12
SCRA 648, 653, that [p]er express
provision of Article 2219 (10) of the New
Civil Code, moral damages are
recoverable in the cases mentioned in
Article 21 of said Code." Hence, the
Court of Appeals committed no error in
awarding moral damages to Tobias.
Lastly, the award of exemplary damages
is impugned by petitioners. Although
Article 2231 of the Civil Code provides
that "[i]n quasi-delicts, exemplary
damages may be granted if the defendant
acted with gross negligence," the Court,
in Zulueta v. Pan American World
Airways, Inc., G.R. No. L- 28589,
January 8, 1973, 49 SCRA 1, ruled that if
gross negligence warrants the award of
exemplary damages, with more reason is
its imposition justified when the act
performed is deliberate, malicious and
tainted with bad faith. As in
the Zuluetacase, the nature of the
wrongful acts shown to have been
committed by petitioners against Tobias

is sufficient basis for the award of

exemplary damages to the latter.
WHEREFORE, the petition is hereby
DENIED and the decision of the Court of
Appeals in CA-G.R. CV No. 09055 is
AFFIRMED.
SO ORDERED.
G.R. No. L-14628
1960

September 30,

FRANCISCO
HERMOSISIMA, petitioner,
vs.
THE HON. COURT OF APPEALS,
ET AL., respondents.
Regino Hermosisima for petitioner.
F.P. Gabriel, Jr. for respondents.
CONCEPCION, J.:
An appeal by certiorari, taken by
petitioner Francisco Hermosisima, from a
decision of Court of Appeals modifying
that of the Court of First Instance of
Cebu.
On October 4, 1954, Soledad Cagigas,
hereinafter referred to as complaint, filed
with said of her child, Chris
Hermosisima, as natural child and moral
damages for alleged breach of promise.
Petitioner admitted the paternity of child
and expressed willingness to support the
latter, but denied having ever promised to
marry the complainant. Upon her motion,
said court ordered petitioner, on October
27, 1954, to pay, by way of
alimony pendente lite, P50.00 a month,
which was, on February 16, 1955,
reduced to P30.00 a month. In due

course, later on, said court rendered a

decision the dispositive part of which
reads:
WHEREFORE, judgment is hereby
rendered, declaring the child, Chris
Hermosisima, as the natural daughter of
defendant, and confirming the
order pendente lite, ordering defendant to
pay to the said child, through plaintiff, the
sum of thirty pesos (P30.00), payable on
or before the fifth day of every month
sentencing defendant to pay to plaintiff
the sum of FOUR THOUSAND FIVE
HUNDRED PESOS (P4,500.00) for
actual and compensatory damages; the
sum of FIVE THOUSAND PESOS
(P5,000.00) as moral damages; and the
further sum of FIVE HUNDRED PESOS
(P500.00) as attorney's fees for plaintiff,
with costs against defendant.
On appeal taken by petitioner, the Court
of Appeals affirmed this decision, except
as to the actual and compensatory
damages and the moral damages, which
were increased to P5,614.25 and
P7,000.00, respectively.
The main issue before us is whether
moral damages are recoverable, under our
laws, for breach of promise to marry. The
pertinent facts are:
Complainant Soledad Cagigas, was born
in July 1917. Since 1950, Soledad then a
teacher in the Sibonga Provincial High
School in Cebu, and petitioner, who was
almost ten (10) years younger than she,
used to go around together and were
regarded as engaged, although he had
made no promise of marriage prior
thereto. In 1951, she gave up teaching
and became a life insurance underwriter

in the City of Cebu, where intimacy

developed among her and the petitioner,
since one evening in 1953, when after
coming from the movies, they had sexual
intercourse in his cabin on board M/V
"Escao," to which he was then attached
as apprentice pilot. In February 1954,
Soledad advised petitioner that she was in
the family way, whereupon he promised
to marry her. Their child, Chris
Hermosisima, was born on June 17, 1954,
in a private maternity and clinic.
However, subsequently, or on July 24,
1954, defendant married one Romanita
Perez. Hence, the present action, which
was commenced on or about October 4,
1954.
Referring now to the issue above referred
to, it will be noted that the Civil Code of
Spain permitted the recovery of damages
for breach to marry. Article 43 and 44 of
said Code provides:
ART. 43. A mutual promise of marriage
shall not give rise to an obligation to
contract marriage. No court shall
entertain any complaint by which the
enforcement of such promise is sought.
ART. 44. If the promise has been in a
public or private instrument by an adult,
or by a minor with the concurrence of the
person whose consent is necessary for the
celebration of the marriage, or if the
banns have been published, the one who
without just cause refuses to marry shall
be obliged to reimburse the other for the
expenses which he or she may have
incurred by reason of the promised
marriage.
The action for reimbursement of expenses
to which the foregoing article refers must

be brought within one year, computed

from the day of the refusal to celebrate
the marriage.
Inasmuch as these articles were never in
force in the Philippines, this Court ruled
in De Jesus vs. Syquia (58 Phil., 866),
that "the action for breach of promises to
marry has no standing in the civil law,
apart from the right to recover money or
property advanced . . . upon the faith of
such promise". The Code Commission
charged with the drafting of the Proposed
Civil Code of the Philippines deem it
best, however, to change the law thereon.
We quote from the report of the Code
Commission on said Proposed Civil
Code:
Articles 43 and 44 the Civil Code of 1889
refer to the promise of marriage. But
these articles are not enforced in the
Philippines. The subject is regulated in
the Proposed Civil Code not only as to
the aspect treated of in said articles but
also in other particulars. It is advisable to
furnish legislative solutions to some
questions that might arise relative to
betrothal. Among the provisions proposed
are: That authorizing the adjudication of
moral damages, in case of breach of
promise of marriage, and that creating
liability for causing a marriage
engagement to be broken.1awphl.nt
Accordingly, the following provisions
were inserted in said Proposed Civil
Code, under Chapter I, Title III, Book I
thereof:
Art. 56. A mutual promise to marry may
be made expressly or impliedly.

Art. 57. An engagement to be married

must be agreed directly by the future
spouses.
Art. 58. A contract for a future marriage
cannot, without the consent of the parent
or guardian, be entered into by a male
between the ages of sixteen and twenty
years or by a female between the ages of
sixteen and eighteen years. Without such
consent of the parents or guardian, the
engagement to marry cannot be the basis
of a civil action for damages in case of
breach of the promise.
Art. 59. A promise to marry when made
by a female under the age of fourteen
years is not civilly actionable, even
though approved by the parent or
guardian.
Art. 60. In cases referred to in the
proceeding articles, the criminal and civil
responsibility of a male for seduction
shall not be affected.
Art. 61. No action for specific
performance of a mutual promise to
marry may be brought.
Art. 62. An action for breach of promise
to marry may be brought by the aggrieved
party even though a minor without the
assistance of his parent or guardian.
Should the minor refuse to bring suit, the
parent or guardian may institute the
action.
Art. 63. Damages for breach of promise
to marry shall include not only material
and pecuniary losses but also
compensation for mental and moral
suffering.

Art. 64. Any person, other than a rival,

the parents, guardians and grandparents,
of the affianced parties, who cause a
marriage engagement to be broken shall
be liable for damages, both material and
moral, to the engaged person who is
rejected.
Art. 65. In case of breach of promise to
marry, the party breaking the engagement
shall be obliged to return what he or she
has received from the other as gift on
account of the promise of the marriage.
These article were, however, eliminated
in Congress. The reason therefor are set
forth in the report of the corresponding
Senate Committee, from which we quote:
The elimination of this Chapter is
proposed. That breach of promise to
marry is not actionable has been
definitely decide in the case of De Jesus
vs. Syquia, 58 Phil., 866. The history of
breach of promise suit in the United
States and in England has shown that no
other action lends itself more readily to
abuse by designing women and
unscrupulous men. It is this experience
which has led to the abolition of the
rights of action in the so-called Balm suit
in many of the American States.
See statutes of:
Florida 1945 pp. 1342 1344
Maryland 1945 pp. 1759 1762
Nevada 1943 p. 75
Maine 1941 pp. 140 141
New Hampshire 1941 p. 223
California 1939 p. 1245
Massachusetts 1938 p. 326
Indiana 1936 p. 1009
Michigan 1935 p. 201

New York 1935

Pennsylvania p. 450
The Commission perhaps though that it
has followed the more progression trend
in legislation when it provided for breach
of promise to marry suits. But it is clear
that the creation of such causes of action
at a time when so many States, in
consequence of years of experience are
doing away with them, may well prove to
be a step in the wrong direction.
(Congressional Record, Vol. IV, No. 79,
Thursday, May 19, 1949, p. 2352.)
The views thus expressed were accepted
by both houses of Congress. In the light
of the clear and manifest intent of our law
making body not to sanction actions for
breach of promise to marry, the award of
moral damages made by the lower courts
is, accordingly, untenable. The Court of
Appeals said award:
Moreover, it appearing that because of
defendant-appellant's seduction power,
plaintiff-appellee, overwhelmed by her
love for him finally yielded to his sexual
desires in spite of her age and selfcontrol, she being a woman after all, we
hold that said defendant-appellant is
liable for seduction and, therefore, moral
damages may be recovered from him
under the provision of Article 2219,
paragraph 3, of the new Civil Code.
Apart from the fact that the general tenor
of said Article 2219, particularly the
paragraphs preceding and those following
the one cited by the Court of Appeals,
and the language used in said paragraph
strongly indicates that the "seduction"
therein contemplated is
the crime punished as such in Article as

such in Article 337 and 338 of the

Revised Penal Code, which admittedly
does not exist in the present case, we find
ourselves unable to say that petitioner
is morally guilty of seduction, not only
because he is approximately ten (10)
years younger than the complainant
who around thirty-six (36) years of age,
and as highly enlightened as a former
high school teacher and a life insurance
agent are supposed to be when she
became intimate with petitioner, then a
mere apprentice pilot, but, also, because,
the court of first instance found that,
complainant "surrendered herself" to
petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" "by
having a fruit of their engagement even
before they had the benefit of clergy."
The court of first instance sentenced
petitioner to pay the following: (1) a
monthly pension of P30.00 for the
support of the child: (2) P4,500,
representing the income that complainant
had allegedly failed to earn during her
pregnancy and shortly after the birth of
the child, as actual and compensation
damages; (3) P5,000, as moral damages;
and (4) P500.00, as attorney's fees. The
Court of Appeals added to the second
item the sum of P1,114.25 consisting
of P144.20, for hospitalization and
medical attendance, in connection with
the parturiation, and the balance
representing expenses incurred to support
the child and increased the moral
damages to P7,000.00.
With the elimination of this award for
damages, the decision of the Court of
Appeals is hereby affirmed, therefore, in
all other respects, without special

pronouncement as to cost in this instance.

It is so ordered.

But the next day, September 3, he sent

her the following telegram:

G.R. No. L-20089

1964

NOTHING CHANGED REST

ASSURED RETURNING VERY SOON
APOLOGIZE MAMA PAPA LOVE .

December 26,

BEATRIZ P. WASSMER, plaintiffappellee,

vs.
FRANCISCO X. VELEZ, defendantappellant.
Jalandoni & Jamir for defendantappellant.
Samson S. Alcantara for plaintiffappellee.
BENGZON, J.P., J.:
The facts that culminated in this case
started with dreams and hopes, followed
by appropriate planning and serious
endeavors, but terminated in frustration
and, what is worse, complete public
humiliation.
Francisco X. Velez and Beatriz P.
Wassmer, following their mutual promise
of love, decided to get married and set
September 4, 1954 as the big day. On
September 2, 1954 Velez left this note for
his bride-to-be:
Dear Bet
Will have to postpone wedding My
mother opposes it. Am leaving on the
Convair today.
Please do not ask too many people about
the reason why That would only create
a scandal.
Paquing

PAKING
Thereafter Velez did not appear nor was
he heard from again.
Sued by Beatriz for damages, Velez filed
no answer and was declared in default.
Plaintiff adduced evidence before the
clerk of court as commissioner, and on
April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff
P2,000.00 as actual damages; P25,000.00
as moral and exemplary damages;
P2,500.00 as attorney's fees; and the
costs.
On June 21, 1955 defendant filed a
"petition for relief from orders, judgment
and proceedings and motion for new trial
and reconsideration." Plaintiff moved to
strike it cut. But the court, on August 2,
1955, ordered the parties and their
attorneys to appear before it on August
23, 1955 "to explore at this stage of the
proceedings the possibility of arriving at
an amicable settlement." It added that
should any of them fail to appear "the
petition for relief and the opposition
thereto will be deemed submitted for
resolution."
On August 23, 1955 defendant failed to
appear before court. Instead, on the
following day his counsel filed a motion
to defer for two weeks the resolution on
defendants petition for relief. The counsel
stated that he would confer with

defendant in Cagayan de Oro City the

latter's residence on the possibility of
an amicable element. The court granted
two weeks counted from August 25,
1955.
Plaintiff manifested on June 15, 1956 that
the two weeks given by the court had
expired on September 8, 1955 but that
defendant and his counsel had failed to
appear.
Another chance for amicable settlement
was given by the court in its order of July
6, 1956 calling the parties and their
attorneys to appear on July 13, 1956. This
time. however, defendant's counsel
informed the court that chances of
settling the case amicably were nil.
On July 20, 1956 the court issued an
order denying defendant's aforesaid
petition. Defendant has appealed to this
Court. In his petition of June 21, 1955 in
the court a quo defendant alleged
excusable negligence as ground to set
aside the judgment by default.
Specifically, it was stated that defendant
filed no answer in the belief that an
amicable settlement was being
negotiated.
A petition for relief from judgment on
grounds of fraud, accident, mistake or
excusable negligence, must be duly
supported by an affidavit of merits stating
facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition
of June 21, 1955 stated: "That he has a
good and valid defense against plaintiff's
cause of action, his failure to marry the
plaintiff as scheduled having been due to
fortuitous event and/or circumstances

beyond his control." An affidavit of

merits like this stating mere conclusions
or opinions instead of facts is not valid.
(Cortes vs. Co Bun Kim, L-3926, Oct. 10,
1951; Vaswani vs. P. Tarrachand Bros.,
L-15800, December 29, 1960.)
Defendant, however, would contend that
the affidavit of merits was in fact
unnecessary, or a mere surplusage,
because the judgment sought to be set
aside was null and void, it having been
based on evidence adduced before the
clerk of court. In Province of Pangasinan
vs. Palisoc, L-16519, October 30, 1962,
this Court pointed out that the procedure
of designating the clerk of court as
commissioner to receive evidence is
sanctioned by Rule 34 (now Rule 33) of
the Rules of Court. Now as to defendant's
consent to said procedure, the same did
not have to be obtained for he was
declared in default and thus had no
standing in court (Velez vs. Ramas, 40
Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).
In support of his "motion for new trial
and reconsideration," defendant asserts
that the judgment is contrary to law. The
reason given is that "there is no provision
of the Civil Code authorizing" an action
for breach of promise to marry. Indeed,
our ruling in Hermosisima vs. Court of
Appeals (L-14628, Sept. 30, 1960), as
reiterated in Estopa vs. Biansay (L14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an
actionable wrong. We pointed out that
Congress deliberately eliminated from the
draft of the new Civil Code the provisions
that would have it so.

It must not be overlooked, however, that

the extent to which acts not contrary to
law may be perpetrated with impunity, is
not limitless for Article 21 of said Code
provides that "any person who wilfully
causes loss or injury to another in a
manner that is contrary to morals, good
customs or public policy shall
compensate the latter for the damage."
The record reveals that on August 23,
1954 plaintiff and defendant applied for a
license to contract marriage, which was
subsequently issued (Exhs. A, A-1). Their
wedding was set for September 4, 1954.
Invitations were printed and distributed to
relatives, friends and acquaintances (Tsn.,
5; Exh. C). The bride-to-be's trousseau,
party drsrses and other apparel for the
important occasion were purchased (Tsn.,
7-8). Dresses for the maid of honor and
the flower girl were prepared. A
matrimonial bed, with accessories, was
bought. Bridal showers were given and
gifts received (Tsn., 6; Exh. E). And then,
with but two days before the wedding,
defendant, who was then 28 years old,:
simply left a note for plaintiff stating:
"Will have to postpone wedding My
mother opposes it ... " He enplaned to his
home city in Mindanao, and the next day,
the day before the wedding, he wired
plaintiff: "Nothing changed rest assured
returning soon." But he never returned
and was never heard from again.
Surely this is not a case of mere breach of
promise to marry. As stated, mere breach
of promise to marry is not an actionable
wrong. But to formally set a wedding and
go through all the above-described
preparation and publicity, only to walk
out of it when the matrimony is about to
be solemnized, is quite different. This is

palpably and unjustifiably contrary to

good customs for which defendant must
be held answerable in damages in
accordance with Article 21 aforesaid.

vs.
HON. COURT OF APPEALS and
MARILOU T.
GONZALES, respondents.

Defendant urges in his afore-stated

petition that the damages awarded were
excessive. No question is raised as to the
award of actual damages. What defendant
would really assert hereunder is that the
award of moral and exemplary damages,
in the amount of P25,000.00, should be
totally eliminated.

Public Attorney's Office for petitioner.

Per express provision of Article 2219

(10) of the New Civil Code, moral
damages are recoverable in the cases
mentioned in Article 21 of said Code. As
to exemplary damages, defendant
contends that the same could not be
adjudged against him because under
Article 2232 of the New Civil Code the
condition precedent is that "the defendant
acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The
argument is devoid of merit as under the
above-narrated circumstances of this case
defendant clearly acted in a "wanton ... ,
reckless [and] oppressive manner." This
Court's opinion, however, is that
considering the particular circumstances
of this case, P15,000.00 as moral and
exemplary damages is deemed to be a
reasonable award.
PREMISES CONSIDERED, with the
above-indicated modification, the lower
court's judgment is hereby affirmed, with
costs.
G.R. No. 97336 February 19, 1993
GASHEM SHOOKAT
BAKSH, petitioner,

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule
45 of the Rules of Court seeking to
review and set aside the Decision 1of the
respondent Court of Appeals in CA-G.R.
CV No. 24256 which affirmed in toto the
16 October 1939 Decision of Branch 38
(Lingayen) of the Regional Trial Court
(RTC) of Pangasinan in Civil Case No.
16503. Presented is the issue of whether
or not damages may be recovered for a
breach of promise to marry on the basis
of Article 21 of the Civil Code of the
Philippines.
The antecedents of this case are not
complicated:
On 27 October 1987, private respondent,
without the assistance of counsel, filed
with the aforesaid trial court a
complaint 2 for damages against the
petitioner for the alleged violation of their
agreement to get married. She alleges in
said complaint that: she is twenty-two
(22) years old, single, Filipino and a
pretty lass of good moral character and
reputation duly respected in her
community; petitioner, on the other hand,
is an Iranian citizen residing at the
Lozano Apartments, Guilig, Dagupan
City, and is an exchange student taking a

medical course at the Lyceum

Northwestern Colleges in Dagupan City;
before 20 August 1987, the latter courted
and proposed to marry her; she accepted
his love on the condition that they would
get married; they therefore agreed to get
married after the end of the school
semester, which was in October of that
year; petitioner then visited the private
respondent's parents in Baaga, Bugallon,
Pangasinan to secure their approval to the
marriage; sometime in 20 August 1987,
the petitioner forced her to live with him
in the Lozano Apartments; she was a
virgin before she began living with him; a
week before the filing of the complaint,
petitioner's attitude towards her started to
change; he maltreated and threatened to
kill her; as a result of such maltreatment,
she sustained injuries; during a
confrontation with a representative of the
barangay captain of Guilig a day before
the filing of the complaint, petitioner
repudiated their marriage agreement and
asked her not to live with him anymore
and; the petitioner is already married to
someone living in Bacolod City. Private
respondent then prayed for judgment
ordering the petitioner to pay her
damages in the amount of not less than
P45,000.00, reimbursement for actual
expenses amounting to P600.00,
attorney's fees and costs, and granting her
such other relief and remedies as may be
just and equitable. The complaint was
docketed as Civil Case No. 16503.
In his Answer with
Counterclaim, 3 petitioner admitted only
the personal circumstances of the parties
as averred in the complaint and denied
the rest of the allegations either for lack
of knowledge or information sufficient to
form a belief as to the truth thereof or

because the true facts are those alleged as

his Special and Affirmative Defenses. He
thus claimed that he never proposed
marriage to or agreed to be married with
the private respondent; he neither sought
the consent and approval of her parents
nor forced her to live in his apartment; he
did not maltreat her, but only told her to
stop coming to his place because he
discovered that she had deceived him by
stealing his money and passport; and
finally, no confrontation took place with a
representative of the barangay captain.
Insisting, in his Counterclaim, that the
complaint is baseless and unfounded and
that as a result thereof, he was
unnecessarily dragged into court and
compelled to incur expenses, and has
suffered mental anxiety and a besmirched
reputation, he prayed for an award of
P5,000.00 for miscellaneous expenses
and P25,000.00 as moral damages.
After conducting a pre-trial on 25 January
1988, the trial court issued a Pre-Trial
Order 4 embodying the stipulated facts
which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident
(sic) of Baaga, Bugallon, Pangasinan,
while the defendant is single, Iranian
citizen and resident (sic) of Lozano
Apartment, Guilig, Dagupan City since
September 1, 1987 up to the present;
2. That the defendant is presently
studying at Lyceum Northwestern,
Dagupan City, College of Medicine,
second year medicine proper;
3. That the plaintiff is (sic) an employee
at Mabuhay Luncheonette , Fernandez
Avenue, Dagupan City since July, 1986

up to the present and a (sic) high school

graduate;
4. That the parties happened to know
each other when the manager of the
Mabuhay Luncheonette, Johhny Rabino
introduced the defendant to the plaintiff
on August 3, 1986.
After trial on the merits, the lower court,
applying Article 21 of the Civil Code,
rendered on 16 October 1989 a
decision 5 favoring the private respondent.
The petitioner was thus ordered to pay the
latter damages and attorney's fees; the
dispositive portion of the decision reads:
IN THE LIGHT of the foregoing
consideration, judgment is hereby
rendered in favor of the plaintiff and
against the defendant.
1. Condemning (sic) the defendant to pay
the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.
2. Condemning further the defendant to
play the plaintiff the sum of three
thousand (P3,000.00) pesos as atty's fees
and two thousand (P2,000.00) pesos at
(sic) litigation expenses and to pay the
costs.
3. All other claims are denied. 6
The decision is anchored on the trial
court's findings and conclusions that (a)
petitioner and private respondent were
lovers, (b) private respondent is not a
woman of loose morals or questionable
virtue who readily submits to sexual
advances, (c) petitioner, through
machinations, deceit and false pretenses,
promised to marry private respondent, d)

because of his persuasive promise to

marry her, she allowed herself to be
deflowered by him, (e) by reason of that
deceitful promise, private respondent and
her parents in accordance with
Filipino customs and traditions made
some preparations for the wedding that
was to be held at the end of October 1987
by looking for pigs and chickens, inviting
friends and relatives and contracting
sponsors, (f) petitioner did not fulfill his
promise to marry her and (g) such acts of
the petitioner, who is a foreigner and who
has abused Philippine hospitality, have
offended our sense of morality, good
customs, culture and traditions. The trial
court gave full credit to the private
respondent's testimony because, inter
alia, she would not have had the temerity
and courage to come to court and expose
her honor and reputation to public
scrutiny and ridicule if her claim was
false. 7
The above findings and conclusions were
culled from the detailed summary of the
evidence for the private respondent in the
foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed that
she was a virgin at the time and that she
never had a boyfriend before, defendant
started courting her just a few days after
they first met. He later proposed marriage
to her several times and she accepted his
love as well as his proposal of marriage
on August 20, 1987, on which same day
he went with her to her hometown of
Baaga, Bugallon, Pangasinan, as he
wanted to meet her parents and inform
them of their relationship and their
intention to get married. The photographs
Exhs. "A" to "E" (and their submarkings)

of defendant with members of plaintiff's

family or with plaintiff, were taken that
day. Also on that occasion, defendant told
plaintiffs parents and brothers and sisters
that he intended to marry her during the
semestral break in October, 1987, and
because plaintiff's parents thought he was
good and trusted him, they agreed to his
proposal for him to marry their daughter,
and they likewise allowed him to stay in
their house and sleep with plaintiff during
the few days that they were in Bugallon.
When plaintiff and defendant later
returned to Dagupan City, they continued
to live together in defendant's apartment.
However, in the early days of October,
1987, defendant would tie plaintiff's
hands and feet while he went to school,
and he even gave her medicine at 4
o'clock in the morning that made her
sleep the whole day and night until the
following day. As a result of this live-in
relationship, plaintiff became pregnant,
but defendant gave her some medicine to
abort the fetus. Still plaintiff continued to
live with defendant and kept reminding
him of his promise to marry her until he
told her that he could not do so because
he was already married to a girl in
Bacolod City. That was the time plaintiff
left defendant, went home to her parents,
and thereafter consulted a lawyer who
accompanied her to the barangay captain
in Dagupan City. Plaintiff, her lawyer,
her godmother, and a barangay tanod sent
by the barangay captain went to talk to
defendant to still convince him to marry
plaintiff, but defendant insisted that he
could not do so because he was already
married to a girl in Bacolod City,
although the truth, as stipulated by the
parties at the pre-trial, is that defendant is
still single.

Plaintiff's father, a tricycle driver, also

claimed that after defendant had informed
them of his desire to marry Marilou, he
already looked for sponsors for the
wedding, started preparing for the
reception by looking for pigs and
chickens, and even already invited many
relatives and friends to the forthcoming
wedding. 8
Petitioner appealed the trial court's
decision to the respondent Court of
Appeals which docketed the case as CAG.R. CV No. 24256. In his Brief, 9 he
contended that the trial court erred (a) in
not dismissing the case for lack of factual
and legal basis and (b) in ordering him to
pay moral damages, attorney's fees,
litigation expenses and costs.
On 18 February 1991, respondent Court
promulgated the challenged
decision 10 affirming in toto the trial
court's ruling of 16 October 1989. In
sustaining the trial court's findings of fact,
respondent Court made the following
analysis:
First of all, plaintiff, then only 21 years
old when she met defendant who was
already 29 years old at the time, does not
appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior
to her unfortunate experience with
defendant and never had boyfriend. She
is, as described by the lower court, a
barrio lass "not used and accustomed to
trend of modern urban life", and certainly
would (sic) not have allowed
"herself to be deflowered by the
defendant if there was no persuasive
promise made by the defendant to marry
her." In fact, we agree with the lower
court that plaintiff and defendant must

have been sweethearts or so the plaintiff

must have thought because of the
deception of defendant, for otherwise, she
would not have allowed herself to be
photographed with defendant in public in
so (sic) loving and tender poses as those
depicted in the pictures Exhs. "D" and
"E". We cannot believe, therefore,
defendant's pretense that plaintiff was a
nobody to him except a waitress at the
restaurant where he usually ate.
Defendant in fact admitted that he went to
plaintiff's hometown of Baaga,
Bugallon, Pangasinan, at least thrice; at
(sic) the town fiesta on February 27, 1987
(p. 54, tsn May 18, 1988), at (sic) a beach
party together with the manager and
employees of the Mabuhay Luncheonette
on March 3, 1987 (p. 50, tsn id.), and on
April 1, 1987 when he allegedly talked to
plaintiff's mother who told him to marry
her daughter (pp. 55-56, tsn id.). Would
defendant have left Dagupan City where
he was involved in the serious study of
medicine to go to plaintiff's hometown in
Baaga, Bugallon, unless there was (sic)
some kind of special relationship between
them? And this special relationship must
indeed have led to defendant's insincere
proposal of marriage to plaintiff,
communicated not only to her but also to
her parents, and (sic) Marites Rabino, the
owner of the restaurant where plaintiff
was working and where defendant first
proposed marriage to her, also knew of
this love affair and defendant's proposal
of marriage to plaintiff, which she
declared was the reason why plaintiff
resigned from her job at the restaurant
after she had accepted defendant's
proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not
appear to be a man of good moral

character and must think so low and have

so little respect and regard for Filipino
women that he openly admitted that when
he studied in Bacolod City for several
years where he finished his B.S. Biology
before he came to Dagupan City to study
medicine, he had a common-law wife in
Bacolod City. In other words, he also
lived with another woman in Bacolod
City but did not marry that woman, just
like what he did to plaintiff. It is not
surprising, then, that he felt so little
compunction or remorse in pretending to
love and promising to marry plaintiff, a
young, innocent, trustful country girl, in
order to satisfy his lust on her. 11
and then concluded:
In sum, we are strongly convinced and so
hold that it was defendant-appellant's
fraudulent and deceptive protestations of
love for and promise to marry plaintiff
that made her surrender her virtue and
womanhood to him and to live with him
on the honest and sincere belief that he
would keep said promise, and it was
likewise these (sic) fraud and deception
on appellant's part that made plaintiff's
parents agree to their daughter's living-in
with him preparatory to their supposed
marriage. And as these acts of appellant
are palpably and undoubtedly against
morals, good customs, and public policy,
and are even gravely and deeply
derogatory and insulting to our women,
coming as they do from a foreigner who
has been enjoying the hospitality of our
people and taking advantage of the
opportunity to study in one of our
institutions of learning, defendantappellant should indeed be made, under
Art. 21 of the Civil Code of the
Philippines, to compensate for the moral

damages and injury that he had caused

plaintiff, as the lower court ordered him
to do in its decision in this case. 12
Unfazed by his second defeat, petitioner
filed the instant petition on 26 March
1991; he raises therein the single issue of
whether or not Article 21 of the Civil
Code applies to the case at bar. 13
It is petitioner's thesis that said Article 21
is not applicable because he had not
committed any moral wrong or injury or
violated any good custom or public
policy; he has not professed love or
proposed marriage to the private
respondent; and he has never maltreated
her. He criticizes the trial court for
liberally invoking Filipino customs,
traditions and culture, and ignoring the
fact that since he is a foreigner, he is not
conversant with such Filipino customs,
traditions and culture. As an Iranian
Moslem, he is not familiar with Catholic
and Christian ways. He stresses that even
if he had made a promise to marry, the
subsequent failure to fulfill the same is
excusable or tolerable because of his
Moslem upbringing; he then alludes to
the Muslim Code which purportedly
allows a Muslim to take four (4) wives
and concludes that on the basis thereof,
the trial court erred in ruling that he does
not posses good moral character.
Moreover, his controversial "common
law life" is now his legal wife as their
marriage had been solemnized in civil
ceremonies in the Iranian Embassy. As to
his unlawful cohabitation with the private
respondent, petitioner claims that even if
responsibility could be pinned on him for
the live-in relationship, the private
respondent should also be faulted for
consenting to an illicit arrangement.

Finally, petitioner asseverates that even if

it was to be assumed arguendo that he
had professed his love to the private
respondent and had also promised to
marry her, such acts would not be
actionable in view of the special
circumstances of the case. The mere
breach of promise is not actionable. 14

function of this Court to analyze or weigh

all over again the evidence introduced by
the parties before the lower court. There
are, however, recognized exceptions to
this rule. Thus, inMedina
vs. Asistio, Jr., 16 this Court took the time,
again, to enumerate these exceptions:
xxx xxx xxx

On 26 August 1991, after the private

respondent had filed her Comment to the
petition and the petitioner had filed his
Reply thereto, this Court gave due course
to the petition and required the parties to
submit their respective Memoranda,
which they subsequently complied with.
As may be gleaned from the foregoing
summation of the petitioner's arguments
in support of his thesis, it is clear that
questions of fact, which boil down to the
issue of the credibility of witnesses, are
also raised. It is the rule in this
jurisdiction that appellate courts will not
disturb the trial court's findings as to the
credibility of witnesses, the latter court
having heard the witnesses and having
had the opportunity to observe closely
their deportment and manner of
testifying, unless the trial court had
plainly overlooked facts of substance or
value which, if considered, might affect
the result of the case. 15
Petitioner has miserably failed to
convince Us that both the appellate and
trial courts had overlooked any fact of
substance or values which could alter the
result of the case.
Equally settled is the rule that only
questions of law may be raised in a
petition for review on certiorari under
Rule 45 of the Rules of Court. It is not the

(1) When the conclusion is a finding

grounded entirely on speculation,
surmises or conjectures (Joaquin v.
Navarro, 93 Phil. 257 [1953]); (2) When
the inference made is manifestly
mistaken, absurb or impossible (Luna v.
Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion
(Buyco v. People, 95 Phil. 453 [1955]);
(4) When the judgment is based on a
misapprehension of facts (Cruz v.
Sosing,
L-4875, Nov. 27, 1953); (5) When the
findings of fact are conflicting (Casica v.
Villaseca, L-9590 Ap. 30, 1957; unrep.)
(6) When the Court of Appeals, in
making its findings, went beyond the
issues of the case and the same is
contrary to the admissions of both
appellate and appellee (Evangelista v.
Alto Surety and Insurance Co., 103 Phil.
401 [1958]);
(7) The findings of the Court of Appeals
are contrary to those of the trial court
(Garcia v. Court of Appeals, 33 SCRA
622 [1970]; Sacay v. Sandiganbayan, 142
SCRA 593 [1986]); (8) When the
findings of fact are conclusions without
citation of specific evidence on which
they are based (Ibid.,); (9) When the facts
set forth in the petition as well as in the
petitioners main and reply briefs are not
disputed by the respondents (Ibid.,); and
(10) The finding of fact of the Court of

Appeals is premised on the supposed

absence of evidence and is contradicted
by the evidence on record (Salazar v.
Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out
to Us the existence of any of the above
quoted exceptions in this case.
Consequently, the factual findings of the
trial and appellate courts must be
respected.
And now to the legal issue.
The existing rule is that a breach of
promise to marry per se is not an
actionable wrong. 17 Congress
deliberately eliminated from the draft of
the New Civil Code the provisions that
would have made it so. The reason
therefor is set forth in the report of the
Senate Committees on the Proposed Civil
Code, from which We quote:
The elimination of this chapter is
proposed. That breach of promise to
marry is not actionable has been
definitely decided in the case of De Jesus
vs. Syquia. 18 The history of breach of
promise suits in the United States and in
England has shown that no other action
lends itself more readily to abuse by
designing women and unscrupulous men.
It is this experience which has led to the
abolition of rights of action in the socalled Heart Balm suits in many of the
American states. . . . 19
This notwithstanding, the said Code
contains a provision, Article 21, which is
designed to expand the concept of torts
or quasi-delict in this jurisdiction by
granting adequate legal remedy for the
untold number of moral wrongs which is

impossible for human foresight to

specifically enumerate and punish in the
statute books. 20
As the Code Commission itself stated in
its Report:
But the Code Commission had gone
farther than the sphere of wrongs defined
or determined by positive law. Fully
sensible that there are countless gaps in
the statutes, which leave so many victims
of moral wrongs helpless, even though
they have actually suffered material and
moral injury, the Commission has
deemed it necessary, in the interest of
justice, to incorporate in the proposed
Civil Code the following rule:
Art. 23. Any person who wilfully causes
loss or injury to another in a manner that
is contrary to morals, good customs or
public policy shall compensate the latter
for the damage.
An example will illustrate the purview of
the foregoing norm: "A" seduces the
nineteen-year old daughter of "X". A
promise of marriage either has not been
made, or can not be proved. The girl
becomes pregnant. Under the present
laws, there is no crime, as the girl is
above nineteen years of age. Neither can
any civil action for breach of promise of
marriage be filed. Therefore, though the
grievous moral wrong has been
committed, and though the girl and
family have suffered incalculable moral
damage, she and her parents cannot bring
action for damages. But under the
proposed article, she and her parents
would have such a right of action.

Thus at one stroke, the legislator, if the

forgoing rule is approved, would
vouchsafe adequate legal remedy for that
untold number of moral wrongs which it
is impossible for human foresight to
provide for specifically in the statutes. 21
Article 2176 of the Civil Code, which
defines a quasi-delict thus:
Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the
damage done. Such fault or negligence, if
there is no pre-existing contractual
relation between the parties, is called
a quasi-delict and is governed by the
provisions of this Chapter.
is limited to negligent acts or omissions
and excludes the notion of willfulness or
intent. Quasi-delict, known in Spanish
legal treatises as culpa aquiliana, is a
civil law concept while torts is an AngloAmerican or common law
concept. Torts is much broader than culpa
aquiliana because it includes not only
negligence, but international criminal acts
as well such as assault and battery, false
imprisonment and deceit. In the general
scheme of the Philippine legal system
envisioned by the Commission
responsible for drafting the New Civil
Code, intentional and malicious acts, with
certain exceptions, are to be governed by
the Revised Penal Code while negligent
acts or omissions are to be covered by
Article 2176 of the Civil Code. 22 In
between these opposite spectrums are
injurious acts which, in the absence of
Article 21, would have been beyond
redress. Thus, Article 21 fills that
vacuum. It is even postulated that
together with Articles 19 and 20 of the

Civil Code, Article 21 has greatly

broadened the scope of the law on civil
wrongs; it has become much more supple
and adaptable than the Anglo-American
law on torts. 23
In the light of the above laudable purpose
of Article 21, We are of the opinion, and
so hold, that where a man's promise to
marry is in fact the proximate cause of
the acceptance of his love by a woman
and his representation to fulfill that
promise thereafter becomes the proximate
cause of the giving of herself unto him in
a sexual congress, proof that he had, in
reality, no intention of marrying her and
that the promise was only a subtle scheme
or deceptive device to entice or inveigle
her to accept him and to obtain her
consent to the sexual act, could justify the
award of damages pursuant to Article 21
not because of such promise to marry but
because of the fraud and deceit behind it
and the willful injury to her honor and
reputation which followed thereafter. It is
essential, however, that such injury
should have been committed in a manner
contrary to morals, good customs or
public policy.
In the instant case, respondent Court
found that it was the petitioner's
"fraudulent and deceptive protestations of
love for and promise to marry plaintiff
that made her surrender her virtue and
womanhood to him and to live with him
on the honest and sincere belief that he
would keep said promise, and it was
likewise these fraud and deception on
appellant's part that made plaintiff's
parents agree to their daughter's living-in
with him preparatory to their supposed
marriage." 24 In short, the private
respondent surrendered her virginity, the

cherished possession of every single

Filipina, not because of lust but because
of moral seduction the kind illustrated
by the Code Commission in its example
earlier adverted to. The petitioner could
not be held liable for criminal seduction
punished under either Article 337 or
Article 338 of the Revised Penal Code
because the private respondent was above
eighteen (18) years of age at the time of
the seduction.
Prior decisions of this Court clearly
suggest that Article 21 may be applied in
a breach of promise to marry where the
woman is a victim of moral seduction.
Thus, in Hermosisima vs. Court of
Appeals, 25 this Court denied recovery of
damages to the woman because:
. . . we find ourselves unable to say that
petitioner is morally guilty of seduction,
not only because he is approximately ten
(10) years younger than the complainant
who was around thirty-six (36) years
of age, and as highly enlightened as a
former high school teacher and a life
insurance agent are supposed to be
when she became intimate with
petitioner, then a mere apprentice pilot,
but, also, because the court of first
instance found that, complainant
"surrendered herself" to petitioner
because, "overwhelmed by her love" for
him, she "wanted to bind" him by having
a fruit of their engagement even before
they had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while
this Court likewise hinted at possible
recovery if there had been moral
seduction, recovery was eventually
denied because We were not convinced
that such seduction existed. The

following enlightening disquisition and

conclusion were made in the said case:
The Court of Appeals seem to have
overlooked that the example set forth in
the Code Commission's memorandum
refers to a tort upon a minor who had
been seduced. The essential feature is
seduction, that in law is more than mere
sexual intercourse, or a breach of a
promise of marriage; it connotes
essentially the idea of deceit, enticement,
superior power or abuse of confidence on
the part of the seducer to which the
woman has yielded (U.S. vs.
Buenaventura, 27 Phil. 121; U.S. vs.
Arlante, 9 Phil. 595).
It has been ruled in
the Buenaventura case (supra) that
To constitute seduction there must in all
cases be some sufficient promise or
inducementand the woman must yield
because of the promise or other
inducement. If she consents merely from
carnal lust and the intercourse is from
mutual desire, there is no seduction (43
Cent. Dig. tit. Seduction, par. 56) She
must be induced to depart from the path
of virtue by the use of some species of
arts, persuasions and wiles, which are
calculated to have and do have that effect,
and which result in her person to
ultimately submitting her person to the
sexual embraces of her seducer (27 Phil.
123).
And in American Jurisprudence we find:
On the other hand, in an action by the
woman, the enticement, persuasion or
deception is the essence of the injury; and

a mere proof of intercourse is insufficient

to warrant a recovery.
Accordingly it is not seduction where the
willingness arises out of sexual desire of
curiosity of the female, and the defendant
merely affords her the needed opportunity
for the commission of the act. It has been
emphasized that to allow a recovery in all
such cases would tend to the
demoralization of the female sex, and
would be a reward for unchastity by
which a class of adventuresses would be
swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations,
the fact stand out that for one whole year,
from 1958 to 1959, the plaintiff-appellee,
a woman of adult age, maintain intimate
sexual relations with appellant, with
repeated acts of intercourse. Such
conduct is incompatible with the idea of
seduction. Plainly there is here
voluntariness and mutual passion; for had
the appellant been deceived, had she
surrendered exclusively because of the
deceit, artful persuasions and wiles of the
defendant, she would not have again
yielded to his embraces, much less for
one year, without exacting early
fulfillment of the alleged promises of
marriage, and would have cut short all
sexual relations upon finding that
defendant did not intend to fulfill his
defendant did not intend to fulfill his
promise. Hence, we conclude that no case
is made under article 21 of the Civil
Code, and no other cause of action being
alleged, no error was committed by the
Court of First Instance in dismissing the
complaint. 27

In his annotations on the Civil

Code, 28 Associate Justice Edgardo L.
Paras, who recently retired from this
Court, opined that in a breach of promise
to marry where there had been carnal
knowledge, moral damages may be
recovered:
. . . if there be criminal or moral
seduction, but not if the intercourse was
due to mutual lust. (Hermosisima vs.
Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs.
Piansay, Jr., L-14733, Sept. 30, 1960;
Batarra vs. Marcos, 7 Phil. 56 (sic);
Beatriz Galang vs. Court of Appeals, et
al., L-17248, Jan. 29, 1962). (In other
words, if the CAUSE be the promise to
marry, and the EFFECT be the carnal
knowledge, there is a chance that there
was criminal or moral seduction, hence
recovery of moral damages will prosper.
If it be the other way around, there can be
no recovery of moral damages, because
here mutual lust has intervened). . . .
together with "ACTUAL damages,
should there be any, such as the expenses
for the wedding presentations (See
Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino 29 is also of
the same persuasion:
It is submitted that the rule in Batarra
vs. Marcos, 30 still subsists,
notwithstanding the incorporation of the
present article 31 in the Code. The
example given by the Code Commission
is correct, if there was seduction, not
necessarily in the legal sense, but in the
vulgar sense of deception. But when the
sexual act is accomplished without any
deceit or qualifying circumstance of

abuse of authority or influence, but the

woman, already of age, has knowingly
given herself to a man, it cannot be said
that there is an injury which can be the
basis for indemnity.
But so long as there is fraud, which is
characterized by willfulness (sic), the
action lies. The court, however, must
weigh the degree of fraud, if it is
sufficient to deceive the woman under the
circumstances, because an act which
would deceive a girl sixteen years of age
may not constitute deceit as to an
experienced woman thirty years of age.
But so long as there is a wrongful act and
a resulting injury, there should be civil
liability, even if the act is not punishable
under the criminal law and there should
have been an acquittal or dismissal of the
criminal case for that reason.
We are unable to agree with the
petitioner's alternative proposition to the
effect that granting, for argument's sake,
that he did promise to marry the private
respondent, the latter is nevertheless also
at fault. According to him, both parties
are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the
doctrine laid down inBatarra
vs. Marcos, 32 the private respondent
cannot recover damages from the
petitioner. The latter even goes as far as
stating that if the private respondent had
"sustained any injury or damage in their
relationship, it is primarily because of her
own doing, 33 for:
. . . She is also interested in the petitioner
as the latter will become a doctor sooner
or later. Take notice that she is a plain
high school graduate and a mere
employee . . . (Annex "C") or a waitress

(TSN, p. 51, January 25, 1988) in a

luncheonette and without doubt, is in
need of a man who can give her
economic security. Her family is in dire
need of financial assistance. (TSN, pp.
51-53, May 18, 1988). And this
predicament prompted her to accept a
proposition that may have been offered
by the petitioner. 34
These statements reveal the true character
and motive of the petitioner. It is clear
that he harbors a condescending, if not
sarcastic, regard for the private
respondent on account of the latter's
ignoble birth, inferior educational
background, poverty and, as perceived by
him, dishonorable employment.
Obviously then, from the very beginning,
he was not at all moved by good faith and
an honest motive. Marrying with a
woman so circumstances could not have
even remotely occurred to him. Thus, his
profession of love and promise to marry
were empty words directly intended to
fool, dupe, entice, beguile and deceive the
poor woman into believing that indeed,
he loved her and would want her to be his
life's partner. His was nothing but pure
lust which he wanted satisfied by a
Filipina who honestly believed that by
accepting his proffer of love and proposal
of marriage, she would be able to enjoy a
life of ease and security. Petitioner clearly
violated the Filipino's concept of morality
and brazenly defied the traditional respect
Filipinos have for their women. It can
even be said that the petitioner committed
such deplorable acts in blatant disregard
of Article 19 of the Civil Code which
directs every person to act with justice,
give everyone his due and observe
honesty and good faith in the exercise of

his rights and in the performance of his

obligations.
No foreigner must be allowed to make a
mockery of our laws, customs and
traditions.
The pari delicto rule does not apply in
this case for while indeed, the private
respondent may not have been impelled
by the purest of intentions, she eventually
submitted to the petitioner in sexual
congress not out of lust, but because of
moral seduction. In fact, it is apparent
that she had qualms of conscience about
the entire episode for as soon as she
found out that the petitioner was not
going to marry her after all, she left him.
She is not, therefore, in pari delicto with
the petitioner. Pari delicto means "in
equal fault; in a similar offense or crime;
equal in guilt or in legal fault." 35 At
most, it could be conceded that she is
merely in delicto.

not apply where one party is literate or

intelligent and the other one is not. (c.f.
Bough vs. Cantiveros, 40 Phil. 209).
We should stress, however, that while We
find for the private respondent, let it not
be said that this Court condones the
deplorable behavior of her parents in
letting her and the petitioner stay together
in the same room in their house after
giving approval to their marriage. It is the
solemn duty of parents to protect the
honor of their daughters and infuse upon
them the higher values of morality and
dignity.
WHEREFORE, finding no reversible
error in the challenged decision, the
instant petition is hereby DENIED, with
costs against the petitioner.
SO ORDERED.
G.R. No. 57227 May 14, 1992

Equity often interferes for the relief of the

less guilty of the parties, where his
transgression has been brought about by
the imposition of undue influence of the
party on whom the burden of the original
wrong principally rests, or where his
consent to the transaction was itself
procured by
fraud. 36

AMELITA CONSTANTINO and

MICHAEL CONSTANTINO, the
latter represented herein by the
former, his mother and natural
guardian, petitioners,
vs.
IVAN MENDEZ and the
HONORABLE COURT OF
APPEALS, respondents.

In Mangayao vs. Lasud, 37 We declared:

Roberto M. Sarenas for petitioners.

Appellants likewise stress that both

parties being at fault, there should be no
action by one against the other (Art.
1412, New Civil Code). This rule,
however, has been interpreted as
applicable only where the fault on both
sides is, more or less, equivalent. It does

Bienvinido D. Cariaga for private

respondent.

BIDIN, J.:

This is a petition for review

on certiorari questioning the
decision 1 dated April 30, 1981 of the
Court of Appeals in CA-G.R. No. 61552R which dismissed petitioner's complaint
and set aside the resolution 2 dated
October 21, 1976 of the then Court of
First Instance of Davao, 16th Judicial
District, amending the dispositive portion
of its decision dated June 21, 1976 and
ordering private respondent Ivan Mendez:
(1) to acknowledge the minor Michael
Constantino as his illegitimate child; (2)
to give a monthly support of P300.00 to
the minor child; (3) to pay complainant
Amelita Constantino the sum of
P8,200.00 as actual and moral damages;
and (4) to pay attorney's fees in the sum
of P5,000 plus costs.
It appears on record that on June 5, 1975,
petitioner Amelita Constantino filed an
action for acknowledgment, support and
damages against private respondent Ivan
Mendez. The case was filed with the then
CFI of Davao, 10th Judicial District and
docketed as Civil Case No. 8881. In her
complaint, Amelita Constantino alleges,
among others, that sometime in the month
of August, 1974, she met Ivan Mendez at
Tony's Restaurant located at Sta. Cruz,
Manila, where she worked as a waitress;
that the day following their first meeting,
Ivan invited Amelita to dine with him at
Hotel Enrico where he was billeted; that
while dining, Ivan professed his love and
courted Amelita; that Amelita asked for
time to think about Ivan's proposal; that at
about 11:00 o'clock in the evening,
Amelita asked Ivan to bring her home to
which the latter agreed, that on the
pretext of getting something, Ivan
brought Amelita inside his hotel room
and through a promise of marriage

succeeded in having sexual intercourse

with the latter; that after the sexual
contact, Ivan confessed to Amelita that he
is a married man; that they repeated their
sexual contact in the months of
September and November, 1974,
whenever Ivan is in Manila, as a result of
which Amelita got pregnant; that her
pleas for help and support fell on deaf
ears; that Amelita had no sexual relations
with any other man except Ivan who is
the father of the child yet to be born at the
time of the filing of the complaint; that
because of her pregnancy, Amelita was
forced to leave her work as a waitress;
that Ivan is a prosperous businessman of
Davao City with a monthly income of
P5,000 to P8,000. As relief, Amelita
prayed for the recognition of the unborn
child, the payment of actual, moral and
exemplary damages, attorney's fees plus
costs.
In his answer dated August 5, 1975, Ivan
admitted that he met Amelita at Tony's
Cocktail Lounge but denied having
sexual knowledge or illicit relations with
her. He prayed for the dismissal of the
complaint for lack of cause of action. By
way of counterclaim, he further prayed
for the payment of exemplary damages
and litigation expense including
attorney's fees for the filing of the
malicious complaint.
On September 1, 1975, Amelita
Constantino filed a motion for leave to
amend the complaint impleading as coplaintiff her son Michael Constantino
who was born on August 3, 1975. In its
order dated September 4, 1975, the trial
court admitted the amended complaint.

On September 11, 1975, Ivan Mendez

filed his answer to the amended
complaint reiterating his previous answer
denying that Michael Constantino is his
illegitimate son.
After hearing, the trial court rendered a
decision dated June 21, 1976, the
dispositive portion of which reads, viz:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered in favor of
plaintiff Amelita Constantino and against
defendant Ivan Mendez, ordering the
latter to pay Amelita Constantino the sum
of P8,000.00 by way of actual and moral
damages; and, the sum of P3,000.00, as
and by way of attorney's fees. The
defendant shall pay the costs of this suit.

the latter to pay Amelita Constantino the

sum of P8,000.00 by way of actual and
moral damages and the sum of P200.00
as and by way of payment of the hospital
and medical bills incurred during the
delivery of plaintiff-minor Michael
Constantino; to recognize as his own
illegitimate child the plaintiff-minor
Michael Constantino who shall be
entitled to all the rights, privileges and
benefits appertaining to a child of such
status; to give a permanent monthly
support in favor of plaintiff Michael
Constantino the amount of P300.00; and
the sum of P5,000.00 as and by way of
attorney's fees. The defendant shall pay
the costs of this suit.
Let this Order form part of the decision
dated June 21, 1976.

SO ORDERED.
SO ORDERED.
From the above decision, both parties
filed their separate motion for
reconsideration. Ivan Mendez anchored
his motion on the ground that the award
of damages was not supported by
evidence. Amelita Constantino, on the
other hand, sought the recognition and
support of her son Michael Constantino
as the illegitimate son of Ivan Mendez.
In its resolution dated October 21, 1976,
the trial court granted Amelita
Constantino's motion for reconsideration,
and amended the dispositive portion of its
decision dated June 21, 1976 to read as
follows, viz:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered in favor of
plaintiff Amelita Constantino and
plaintiff-minor Michael Constantino, and
against defendant Ivan Mendez ordering

On appeal to the Court of Appeals, the

above amended decision was set aside
and the complaint was dismissed. Hence,
this petition for review.
Basically, the issue to be resolved in the
case at bar is whether or not the Court of
Appeals committed a reversible error in
setting aside the decision of the trial court
and in dismissing the complaint.
Petitioners contend that the Court of
Appeals erred in reversing the factual
findings of the trial and in not affirming
the decision of the trial court. They also
pointed out that the appellate court
committed a misapprehension of facts
when it concluded that Ivan did not have
sexual access with Amelita during the
first or second week of November, 1976

(should be 1974), the time of the

conception of the child.
It must be stressed at the outset that
factual findings of the trial court have
only a persuasive and not a conclusive
effect on the Court of Appeals. In the
exercise of its appellate jurisdiction, it is
the duty of the Court of Appeals to
review the factual findings of the trial
court and rectify the errors it committed
as may have been properly assigned and
as could be established by a reexamination of the evidence on record. It
is the factual findings of the Court of
Appeals, not those of the trial court, that
as a rule are considered final and
conclusive even on this Court (Hermo v.
Hon. Court of Appeals, et al., 155 SCRA
24 [1987]). This being a petition
for certiorari under Rule 45 of the Rules
of Court, this Court will review only
errors of law committed by the Court of
Appeals. It is not the function of this
Court to re-examine all over again the
oral and documentary evidence submitted
by the parties unless the findings of facts
of the Court of Appeals is not supported
by the evidence on record or the
judgment is based on misapprehension of
facts (Remalante v. Tibe, et al., 158
SCRA 138 [1988]; Hernandez v. Court of
Appeals, et al., 149 SCRA 97 [1987]).
It is the conclusion of the Court of
Appeals, based on the evidence on
record, that Amelita Constantino has not
proved by clear and convincing evidence
her claim that Ivan Mendez is the father
of her son Michael Constantino. Such
conclusion based on the evaluation of the
evidence on record is controlling on this
Court as the same is supported by the
evidence on record. Even the trial court

initially entertained such posture. It

ordered the recognition of Michael as the
illegitimate son of Ivan only when acting
on the motions for reconsideration, it
reconsidered, on October 21, 1976, its
earlier decision dated June 21, 1976.
Amelita's testimony on cross-examination
that she had sexual contact with Ivan in
Manila in the first or second week of
November, 1974 (TSN, December 8,
1975, p. 108) is inconsistent with her
response that she could not remember the
date of their last sexual intercourse in
November, 1974 (Ibid, p. 106). Sexual
contact of Ivan and Amelita in the first or
second week of November, 1974 is the
crucial point that was not even
established on direct examination as she
merely testified that she had sexual
intercourse with Ivan in the months of
September, October and November,
1974.
Michael Constantino is a full-term baby
born on August 3, 1975 (Exhibit 6) so
that as correctly pointed out by private
respondent's counsel, citing medical
science (Williams Obstetrics, Tenth Ed.,
p. 198) to the effect that "the mean
duration of actual pregnancy, counting
from the day of conception must be close
to 267 days", the conception of the child
(Michael) must have taken place about
267 days before August 3, 1975 or
sometime in the second week of
November, 1974. While Amelita testified
that she had sexual contact with Ivan in
November, 1974, nevertheless said
testimony is contradicted by her own
evidence (Exh. F), the letter dated
February 11, 1975, addressed to Ivan
Mendez requesting for a conference,
prepared by her own counsel Atty.
Roberto Sarenas to whom she must have

confided the attendant circumstances of

her pregnancy while still fresh in her
memory, informing Ivan that Amelita is
four (4) months pregnant so that applying
the period of the duration of actual
pregnancy, the child was conceived on or
about October 11, 1974.
Petitioner's assertion that Ivan is her first
and only boyfriend (TSN, December 8,
1975, p. 65) is belied by Exhibit 2, her
own letter addressed to Mrs. Mendez
where she revealed the reason for her
attachment to Ivan who possessed certain
traits not possessed by her boyfriend. She
also confided that she had a quarrel with
her boyfriend because of gossips so she
left her work. An order for recognition
and support may create an unwholesome
atmosphere or may be an irritant in the
family or lives of the parties so that it
must be issued only if paternity or
filiation is established by clear and
convincing evidence. The burden of proof
is on Amelita to establish her affirmative
allegations that Ivan is the father of her
son. Consequently, in the absence of clear
and convincing evidence establishing
paternity or filiation, the complaint must
be dismissed.
As regards Amelita's claim for damages
which is based on Articles 19 3 & 21 4 of
the Civil Code on the theory that through
Ivan's promise of marriage, she
surrendered her virginity, we cannot but
agree with the Court of Appeals that more
sexual intercourse is not by itself a basis
for recovery. Damages could only be
awarded if sexual intercourse is not a
product of voluntariness and mutual
desire. At the time she met Ivan at Tony's
Restaurant, Amelita was already 28 years
old and she admitted that she was

attracted to Ivan (TSN, December 3,

1975, p. 83). Her attraction to Ivan is the
reason why she surrendered her
womanhood. Had she been induced or
deceived because of a promise of
marriage, she could have immediately
severed her relation with Ivan when she
was informed after their first sexual
contact sometime in August, 1974, that
he was a married man. Her declaration
that in the months of September, October
and November, 1974, they repeated their
sexual intercourse only indicates that
passion and not the alleged promise of
marriage was the moving force that made
her submit herself to Ivan.

Petitioner Hal McElroy an Australian

film maker, and his movie production
company, Petitioner Ayer Productions pty
Ltd. (Ayer Productions), 1 envisioned,
sometime in 1987, the for commercial
viewing and for Philippine and
international release, the histolic peaceful
struggle of the Filipinos at EDSA
(Epifanio de los Santos Avenue).
Petitioners discussed this Project with
local movie producer Lope V. Juban who
suggested th they consult with the
appropriate government agencies and also
with General Fidel V. Ramos and Senator
Juan Ponce Enrile, who had played major
roles in the events proposed to be filmed.

WHEREFORE, the instant petition is

Dismissed for lack of merit.

The proposed motion picture entitled

"The Four Day Revolution" was endorsed
by the Movie Television Review and
Classification Board as wel as the other
government agencies consulted. General
Fidel Ramos also signified his approval
of the intended film production.

SO ORDERED.
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD.
and McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and
JUAN PONCE ENRILE, respondents.

In a letter dated 16 December 1987,

petitioner Hal McElroy informed private
respondent Juan Ponce Enrile about the
projected motion picture enclosing a
synopsis of it, the full text of which is set
out below:

Aquino, to the Feb revolution and the

fleeing of Marcos from the country.
These character stories have been woven
through the real events to help our huge
international audience understand this
ordinary period inFilipino history.
First, there's Tony O'Neil, an American
television journalist working for major
network. Tony reflects the average
American attitude to the Phihppinence
once a colony, now the home of crucially
important military bases. Although Tony
is aware of the corruption and of Marcos'
megalomania, for him, there appears to
be no alternative to Marcos except the
Communists.
Next, Angie Fox a fiery Australian photojournalist. A 'new girl in town,' she is
quickly caught up in the events as it
becomes dear that the time has come for a
change. Through Angle and her
relationship with one of the Reform
Army Movement Colonels (a fictitious
character), we follow the developing
discontent in the armed forces. Their
dislike for General Ver, their strong
loyalty to Defense Minister Enrile, and
ultimately their defection from Marcos.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in
his capacity as Presiding Judge of the
Regional Trial Court of Makati,
Branch 134 and JUAN PONCE
ENRILE, respondents.

FELICIANO, J.:

The Four Day Revolution is a six hour

mini-series about People Powera
unique event in modern history that-made
possible the Peaceful revolution in the
Philippines in 1986.
Faced with the task of dramatising these
rerkble events, screenwriter David
Williamson and history Prof Al McCoy
have chosen a "docu-drama" style and
created [four] fictitious characters to trace
the revolution from the death of Senator

The fourth fictitious character is Ben

Balano, a middle-aged editor of a Manila
newspaper who despises the Marcos
regime and is a supporter an promoter of
Cory Aquino. Ben has two daughters,
Cehea left wing lawyer who is a secret
member of the New People's Army, and
Eva--a -P.R. girl, politically moderate and
very much in love with Tony. Ultimately,
she must choose between her love and the
revolution.

Through the interviews and experiences

of these central characters, we show the
complex nature of Filipino society, and
thintertwining series of events and
characters that triggered these remarkable
changes. Through them also, we meet all
of the principal characters and experience
directly dramatic recreation of the
revolution. The story incorporates actual
documentary footage filmed during the
period which we hope will capture the
unique atmosphere and forces that
combined to overthrow President Marcos.
David Williamson is Australia's leading
playwright with some 14 hugely
successful plays to his credit(Don's Party,'
'The Club,' Travelling North) and 11
feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New
South Wales) is an American historian
with a deep understanding of the
Philippines, who has worked on the
research for this project for some 18
months. Together with Davi Wilhamgon
they have developed a script we believe
accurately depicts the complex issues and
events that occurred during th period .
The six hour series is a McElroy and
McElroy co-production with Home Box
Office in American, the Australian
Broadcast Corporation in Australia and
Zenith Productions in the United
Kingdom
The proposed motion picture would be
essentially a re-enact. ment of the events
that made possible the EDSA revolution;
it is designed to be viewed in a six-hour
mini-series television play, presented in a
"docu-drama" style, creating four (4)

fictional characters interwoven with real

events, and utilizing actual documentary
footage as background.
On 21 December 1987, private
respondent Enrile replied that "[he] would
not and will not approve of the use,
appropriation, reproduction and/or
exhibition of his name, or picture, or that
of any member of his family in any
cinema or television production, film or
other medium for advertising or
commercial exploitation" and further
advised petitioners that 'in the production,
airing, showing, distribution or exhibition
of said or similar film, no reference
whatsoever (whether written, verbal or
visual) should not be made to [him] or
any member of his family, much less to
any matter purely personal to them.
It appears that petitioners acceded to this
demand and the name of private
respondent Enrile was deleted from the
movie script, and petitioners proceeded to
film the projected motion picture.
On 23 February 1988, private respondent
filed a Complaint with application for
Temporary Restraining Order and Wilt of
Pretion with the Regional Trial Court of
Makati, docketed as Civil Case No. 88151 in Branch 134 thereof, seeking to
enjoin petitioners from producing the
movie "The Four Day Revolution". The
complaint alleged that petitioners'
production of the mini-series without
private respondent's consent and over his
objection, constitutes an obvious
violation of his right of privacy. On 24
February 1988, the trial court issued exparte a Temporary Restraining Order and
set for hearing the application for
preliminary injunction.

On 9 March 1988, Hal McElroy flied a

Motion to Dismiss with Opposition to the
Petition for Preliminary Injunction
contending that the mini-series fim would
not involve the private life of Juan Ponce
Enrile nor that of his family and that a
preliminary injunction would amount to a
prior restraint on their right of free
expression. Petitioner Ayer Productions
also filed its own Motion to Dismiss
alleging lack of cause of action as the
mini-series had not yet been completed.
In an Order 2 dated 16 March 1988,
respondent court issued a writ of
Preliminary Injunction against the
petitioners, the dispositive portion of
which reads thus:
WHEREFORE, let a writ of preliminary
injunction be issued, ordering defendants,
and all persons and entities employed or
under contract with them, including
actors, actresses and members of the
production staff and crew as well as all
persons and entities acting on defendants'
behalf, to cease and desist from
producing and filming the mini-series
entitled 'The Four Day Revolution" and
from making any reference whatsoever to
plaintiff or his family and from creating
any fictitious character in lieu of plaintiff
which nevertheless is based on, or bears
rent substantial or marked resemblance
or similarity to, or is otherwise
Identifiable with, plaintiff in the
production and any similar film or
photoplay, until further orders from this
Court, upon plaintiff's filing of a bond in
the amount of P 2,000,000.00, to answer
for whatever damages defendants may
suffer by reason of the injunction if the
Court should finally decide that plaintiff
was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)
On 22 March 1988, petitioner Ayer
Productions came to this Court by a
Petition for certiorari dated 21 March
1988 with an urgent prayer for
Preliminary Injunction or Restraining
Order, which petition was docketed as
G.R. No. L-82380.
A day later, or on 23 March 1988,
petitiioner Hal McElroy also filed
separate Petition for certiorari with
Urgent Prayer for a Restraining Order or
Preliminary Injunction, dated 22 March
1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988,
the petitions were consolidated and
private respondent was required to file a
consolidated Answer. Further, in the
same Resolution, the Court granted a
Temporary Restraining Order partially
enjoining the implementation of the
respondent Judge's Order of 16 March
1988 and the Writ of Preliminary
Injunction issued therein, and allowing
the petitioners to resume producing and
filming those portions of the projected
mini-series which do not make any
reference to private respondent or his
family or to any fictitious character based
on or respondent.
Private respondent seasonably filed his
Consolidated Answer on 6 April 1988
invoking in the main a right of privacy.
I
The constitutional and legal issues raised
by the present Petitions are sharply

drawn. Petitioners' claim that in

producing and "The Four Day
Revolution," they are exercising their
freedom of speech and of expression
protected under our Constitution. Private
respondent, upon the other hand, asserts a
right of privacy and claims that the
production and filming of the projected
mini-series would constitute an unlawful
intrusion into his privacy which he is
entitled to enjoy.
Considering first petitioners' claim to
freedom of speech and of expression the
Court would once more stress that this
freedom includes the freedom to film and
produce motion pictures and to exhibit
such motion pictures in theaters or to
diffuse them through television. In our
day and age, motion pictures are a
univesally utilized vehicle of
communication and medium Of
expression. Along with the press, radio
and television, motion pictures constitute
a principal medium of mass
communication for information,
education and entertainment. In Gonzales
v. Katigbak,3 former Chief Justice
Fernando, speaking for the Court,
explained:
1. Motion pictures are important both as a
medium for the communication of Ideas
and the expression of the artistic impulse.
Their effect on the perception by our
people of issues and public officials or
public figures as well as the pre cultural
traits is considerable. Nor as pointed out
in Burstyn v. Wilson(343 US 495 [19421)
is the Importance of motion pictures as an
organ of public opinion lessened by the
fact that they are designed to entertain as
well as to inform' (Ibid, 501). There is no
clear dividing line between what involves

knowledge and what affords pleasure. If

such a distinction were sustained, there is
a diminution of the basic right to free
expression. ... 4
This freedom is available in our country
both to locally-owned and to foreignowned motion picture companies.
Furthermore the circumstance that the
production of motion picture films is a
commercial activity expected to yield
monetary profit, is not a disqualification
for availing of freedom of speech and of
expression. In our community as in many
other countries, media facilities are
owned either by the government or the
private sector but the private sectorowned media facilities commonly require
to be sustained by being devoted in whole
or in pailt to revenue producing activities.
Indeed, commercial media constitute the
bulk of such facilities available in our
country and hence to exclude
commercially owned and operated media
from the exerciseof constitutionally
protected om of speech and of expression
can only result in the drastic contraction
of such constitutional liberties in our
country.
The counter-balancing of private
respondent is to a right of privacy. It was
demonstrated sometime ago by the then
Dean Irene R. Cortes that our law,
constitutional and statutory, does include
a right of privacy. 5 It is left to case law,
however, to mark out the precise scope
and content of this right in differing types
of particular situations. The right of
privacy or "the right to be let
alone," 6 like the right of free expression,
is not an absolute right. A limited
intrusion into a person's privacy has long
been regarded as permissible where that

person is a public figure and the

information sought to be elicited from
him or to be published about him
constitute of apublic
character. 7 Succinctly put, the right of
privacy cannot be invoked resist
publication and dissemination of matters
of public interest. 8 The interest sought to
be protected by the right of privacy is the
right to be free
from unwarranted publicity, from
the wrongful publicizing of the private
affairs and activities of an
individual which are outside the realm of
legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on
which private respondent relies heavily,
recognized a right to privacy in a context
which included a claim to freedom of
speech and of
expression. Lagunzad involved a suit
fortion picture producer as licensee and
the widow and family of the late Moises
Padilla as licensors. This agreement gave
the licensee the right to produce a motion
Picture Portraying the life of Moises
Padilla, a mayoralty candidate of the
Nacionalista Party for the Municipality of
Magallon, Negros Occidental during the
November 1951 elections and for whose
murder, Governor Rafael Lacson, a
member of the Liberal Party then in
power and his men were tried and
convicted. 11 In the judgment of the lower
court enforcing the licensing agreement
against the licensee who had produced
the motion picture and exhibited it but
refused to pay the stipulated royalties, the
Court, through Justice Melencio-Herrera,
said:
Neither do we agree with petitioner's
subon that the Licensing Agreement is

null and void for lack of, or for having an

illegal cause or consideration, while it is
true that petitioner bad pled the rights to
the book entitled "The Moises Padilla
Story," that did not dispense with the
need for prior consent and authority from
the deceased heirs to portray publicly
episodes in said deceased's life and in that
of his mother and the member of his
family. As held in Schuyler v. Curtis,
([1895],147 NY 434,42 NE 31 LRA
286.49 Am St Rep 671), 'a privilege may
be given the surviving relatives of a
deperson to protect his memory, but the
privilege wts for the benefit of the living,
to protect their feelings and to preventa
violation of their own rights in the
character and memory of the deceased.'
Petitioners averment that private
respondent did not have any property
right over the life of Moises Padilla since
the latter was a public figure, is neither
well taken. Being a public figure ipso
facto does not automatically destroy in
toto a person's right to privacy. The right
to invade a person's privacy to
disseminate public information does not
extend to a fictional or novelized
representation of a person, no matter how
public a he or she may be (Garner v.
Triangle Publications, DCNY 97 F.
Supp., SU 549 [1951]). In the case at bar,
while it is true that petitioner exerted
efforts to present a true-to-life Story Of
Moises Padilla, petitioner admits that he
included a little romance in the film
because without it, it would be a drab
story of torture and brutality. 12
In Lagunzad, the Court had need, as we
have in the instant case, to deal with
contraposed claims to freedom of speech
and of expression and to privacy.

Lagunzad the licensee in effect claimed,

in the name of freedom of speech and
expression, a right to produce a motion
picture biography at least partly
"fictionalized" of Moises Padilla without
the consent of and without paying preagreed royalties to the widow and family
of Padilla. In rejecting the licensee's
claim, the Court said:
Lastly, neither do we find merit in
petitioners contention that the Licensing
Agreement infringes on the constitutional
right of freedom of speech and of the
press, in that, as a citizen and as a
newspaperman, he had the right to
express his thoughts in film on the public
life of Moises Padilla without prior
restraint.The right freedom of expression,
indeed, occupies a preferred position in
the "hierarchy of civil liberties"
(Philippine Blooming Mills Employees
Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191 [1963]). It
is not, however, without limitations. As
held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear
and present danger rule is such a
limitation. Another criterion for
permissible limitation on freedom of
speech and the press, which includes such
vehicles of the mass media as radio,
television and the movies, is the
"balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of
Rights, 1970 ed. p. 79). The principle
"requires a court to take conscious and
detailed consideration of the interplay of
interests observable in given situation or
type of situation" (Separation Opinion of

the late Chief Justice Castro in Gonzales

v. Commission on Elections, supra, p.
899).
In the case at bar, the interests
observable are the right to privacy
asserted by respondent and the right of
freedom of expression invoked by
petitioner. taking into account the
interplay of those interests, we hold
that under the particular circumstances
presented, and considering the
obligations assumed in the Licensing
Agreement entered into by petitioner, the
validity of such agreement will have to be
upheld particularly because the limits of
freedom of expression are reached when
expression touches upon matters of
essentially private concern." 13
Whether the "balancing of interests test"
or the clear and present danger test" be
applied in respect of the instant Petitions,
the Court believes that a different
conclusion must here be reached: The
production and filming by petitioners of
the projected motion picture "The Four
Day Revolution" does not, in the
circumstances of this case, constitute an
unlawful intrusion upon private
respondent's "right of privacy."
1. It may be observed at the outset that
what is involved in the instant case is a
prior and direct restraint on the part of the
respondent Judge upon the exercise of
speech and of expression by petitioners.
The respondent Judge has restrained
petitioners from filming and producing
the entire proposed motion picture. It is
important to note that in Lagunzad, there
was no prior restrain of any kind imposed
upon the movie producer who in fact
completed and exhibited the film

biography of Moises Padilla. Because of

the speech and of expression, a weighty
presumption of invalidity vitiates. 14 The
invalidity of a measure of prior restraint
doesnot, of course, mean that no
subsequent liability may lawfully be
imposed upon a person claiming to
exercise such constitutional freedoms.
The respondent Judge should have stayed
his hand, instead of issuing an ex-parte
Temporary Restraining Order one day
after filing of a complaint by the private
respondent and issuing a Preliminary
Injunction twenty (20) days later; for the
projected motion picture was as yet
uncompleted and hence not exhibited to
any audience. Neither private respondent
nor the respondent trial Judge knew what
the completed film would precisely look
like. There was, in other words, no "clear
and present danger" of any violation of
any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day
Revolution" relates to the non-bloody
change of government that took place at
Epifanio de los Santos Avenue in
February 1986, and the trian of events
which led up to that denouement. Clearly,
such subject matter is one of public
interest and concern. Indeed, it is,
petitioners' argue, of international
interest. The subject thus relates to a
highly critical stage in the history of this
countryand as such, must be regarded as
having passed into the public domain and
as an appropriate subject for speech and
expression and coverage by any form of
mass media. The subject mater, as set out
in the synopsis provided by the
petitioners and quoted above, does not
relate to the individual life and certainly
not to the private life of private

respondent Ponce Enrile. Unlike in

Lagunzad, which concerned the life story
of Moises Padilla necessarily including at
least his immediate family, what we have
here is not a film biography, more or less
fictionalized, of private respondent Ponce
Enrile. "The Four Day Revolution" is not
principally about, nor is it focused upon,
the man Juan Ponce Enrile' but it is
compelled, if it is to be historical, to refer
to the role played by Juan Ponce Enrile in
the precipitating and the constituent
events of the change of government in
February 1986.
3. The extent of the instrusion upon the
life of private respondent Juan Ponce
Enrile that would be entailed by the
production and exhibition of "The Four
Day Revolution" would, therefore, be
limited in character. The extent of that
intrusion, as this Court understands the
synopsis of the proposed film, may be
generally described as such intrusion as is
reasonably necessary to keep that film a
truthful historical account. Private
respondent does not claim that petitioners
threatened to depict in "The Four Day
Revolution" any part of the private life of
private respondent or that of any member
of his family.
4. At all relevant times, during which the
momentous events, clearly of public
concern, that petitioners propose to film
were taking place, private respondent was
what Profs. Prosser and Keeton have
referred to as a "public figure:"
A public figure has been defined as a
person who, by his accomplishments,
fame, or mode of living, or by adopting a
profession or calling which gives the
public a legitimate interest in his doings,

his affairs, and his character, has become

a 'public personage.' He is, in other
words, a celebrity. Obviously to be
included in this category are those who
have achieved some degree of reputation
by appearing before the public, as in the
case of an actor, a professional baseball
player, a pugilist, or any other
entertainment. The list is, however,
broader than this. It includes public
officers, famous inventors and
explorers, war heroes and even ordinary
soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler
of a lodge. It includes, in short, anyone
who has arrived at a position where
public attention is focused upon him as a
person.
Such public figures were held to have
lost, to some extent at least, their tight to
privacy. Three reasons were given, more
or less indiscrimately, in the decisions"
that they had sought publicity and
consented to it, and so could not
complaint when they received it; that
their personalities and their affairs has
already public, and could no longer be
regarded as their own private business;
and that the press had a privilege, under
the Constitution, to inform the public
about those who have become legitimate
matters of public interest. On one or
another of these grounds, and sometimes
all, it was held that there was no liability
when they were given additional
publicity, as to matters legitimately
within the scope of the public interest
they had aroused.
The privilege of giving publicity to news,
and other matters of public interest, was
held to arise out of the desire and the
right of the public to know what is going

on in the world, and the freedom of the

press and other agencies of information
to tell it. "News" includes all events and
items of information which are out of the
ordinary hum-drum routine, and which
have 'that indefinable quality of
information which arouses public
attention.' To a very great extent the
press, with its experience or instinct as to
what its readers will want, has succeeded
in making its own definination of news,
as a glance at any morning newspaper
will sufficiently indicate. It includes
homicide and othe crimes, arrests and
police raides, suicides, marriages and
divorces, accidents, a death from the use
of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old
girl, the reappearance of one supposed to
have been murdered years ago, and
undoubtedly many other similar matters
of genuine, if more or less deplorable,
popular appeal.
The privilege of enlightening the public
was not, however, limited, to the
dissemination of news in the scene of
current events. It extended also to
information or education, or even
entertainment and amusement, by books,
articles, pictures, films and broadcasts
concerning interesting phases of human
activity in general, as well as the
reproduction of the public scene in
newsreels and travelogues. In
determining where to draw the line, the
courts were invited to exercise a species
of censorship over what the public may
be permitted to read; and they were
understandably liberal in allowing the
benefit of the doubt. 15
Private respondent is a "public figure"
precisely because, inter alia, of his

participation as a principal actor in the

culminating events of the change of
government in February 1986. Because
his participation therein was major in
character, a film reenactment of the
peaceful revolution that fails to make
reference to the role played by private
respondent would be grossly unhistorical.
The right of privacy of a "public figure"
is necessarily narrower than that of an
ordinary citizen. Private respondent has
not retired into the seclusion of simple
private citizenship. he continues to be a
"public figure." After a successful
political campaign during which his
participation in the EDSA Revolution
was directly or indirectly referred to in
the press, radio and television, he sits in a
very public place, the Senate of the
Philippines.
5. The line of equilibrium in the specific
context of the instant case between the
constitutional freedom of speech and of
expression and the right of privacy, may
be marked out in terms of a requirement
that the proposed motion picture must be
fairly truthful and historical in its
presentation of events. There must, in
other words, be no knowing or reckless
disregard of truth in depicting the
participation of private respondent in the
EDSA Revolution. 16 There must,
further, be no presentation of the private
life of the unwilling private respondent
and certainly no revelation of intimate or
embarrassing personal facts. 17 The
proposed motion picture should not enter
into what Mme. Justice Melencio-Herrera
in Lagunzad referred to as "matters of
essentially private concern." 18 To the
extent that "The Four Day Revolution"
limits itself in portraying the participation
of private respondent in the EDSA

Revolution to those events which are

directly and reasonably related to
the public facts of the EDSA Revolution,
the intrusion into private respondent's
privacy cannot be regarded as
unreasonable and actionable. Such
portrayal may be carried out even without
a license from private respondent.
II
In a Manifestation dated 30 March 1988,
petitioner Hal McElroy informed this
Court that a Temporary Restraining Order
dated 25 March 1988, was issued by
Judge Teofilo Guadiz of the Regional
Trial Court of Makati, Branch 147, in
Civil Case No. 88-413, entitled "Gregorio
B. Honasan vs. Ayer Productions Pty.
Ltd., McElroy Film Productions, Hal
McElroy, Lope Juban and PMP Motion
for Pictures Production" enjoining him
and his production company from further
filimg any scene of the projected miniseries film. Petitioner alleged that
Honasan's complaint was a "scissors and
paste" pleading, cut out straight grom the
complaint of private respondent Ponce
Enrile in Civil Case No. 88-151.
Petitioner Ayer Productions, in a separate
Manifestation dated 4 April 1988,
brought to the attention of the Court the
same information given by petitoner Hal
McElroy, reiterating that the complaint of
Gregorio B. Honasan was substantially
identical to that filed by private
respondent herein and stating that in
refusing to join Honasan in Civil Case
No. 88-151, counsel for private
respondent, with whom counsel for
Gregorio Honasan are apparently
associated, deliberately engaged in
"forum shopping."

Private respondent filed a CounterManifestation on 13 April 1988 stating

that the "slight similarity" between
private respondent's complaint and that
on Honasan in the construction of their
legal basis of the right to privacy as a
component of the cause of action is
understandable considering that court
pleadings are public records; that private
respondent's cause of action for invasion
of privacy is separate and distinct from
that of Honasan's although they arose
from the same tortious act of petitioners'
that the rule on permissive joinder of
parties is not mandatory and that, the
cited cases on "forum shopping" were not
in point because the parties here and
those in Civil Case No. 88-413 are not
identical.
For reasons that by now have become
clear, it is not necessary for the Court to
deal with the question of whether or not
the lawyers of private respondent Ponce
Enrile have engaged in "forum shopping."
It is, however, important to dispose to the
complaint filed by former Colonel
Honasan who, having refused to subject
himself to the legal processes of the
Republic and having become once again
in fugitive from justice, must be deemed
to have forfeited any right the might have
had to protect his privacy through court
processes.

is hereby MODIFIED by enjoining

unqualifiedly the implementation of
respondent Judge's Order of 16 March
1988 and made PERMANENT, and
b) Treating the Manifestations of
petitioners dated 30 March 1988 and 4
April 1988 as separate Petitions for
Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the
Court, in the exercise of its plenary and
supervisory jurisdiction, hereby
REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch
147, forthwith to DISMISS Civil Case
No. 88-413 and accordingly to SET
ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988
and any Preliminary Injunction that may
have been issued by him.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-32599 June 29, 1979
EDGARDO E. MENDOZA, petitioner
vs.
HON. ABUNDIO Z. ARRIETA,
Presiding Judge of Branch VIII, Court
of First Instance of Manila, FELINO
TIMBOL, and RODOLFO
SALAZAR, respondents.

WHEREFORE,

David G. Nitafan for petitioner.

a) the Petitions for Certiorari are

GRANTED DUE COURSE, and the
Order dated 16 March 1988 of respondent
trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The
limited Temporary Restraining Order
granted by this Court on 24 March 1988

Arsenio R. Reyes for respondent Timbol.

Armando M. Pulgado for respondent
Salazar.

MELENCIO-HERRERA, J:
Petitioner, Edgardo Mendoza, seeks a
review on certiorari of the Orders of
respondent Judge in Civil Case No.
80803 dismissing his Complaint for
Damages based on quasi-delict against
respondents Felino Timbol and Rodolfo
Salazar.
The facts which spawned the present
controversy may be summarized as
follows:
On October 22, 1969, at about 4:00
o'clock in the afternoon, a three- way
vehicular accident occurred along MacArthur Highway, Marilao, Bulacan,
involving a Mercedes Benz owned and
driven by petitioner; a private jeep owned
and driven by respondent Rodolfo
Salazar; and a gravel and sand truck
owned by respondent Felipino Timbol
and driven by Freddie Montoya. As a
consequence of said mishap, two separate
Informations for Reckless Imprudence
Causing Damage to Property were filed
against Rodolfo Salazar and Freddie
Montoya with the Court of First Instance
of Bulacan. The race against truck-driver
Montoya, docketed as Criminal Case No.
SM-227, was for causing damage to the
jeep owned by Salazar, in the amount of
Pl,604.00, by hitting it at the right rear
portion thereby causing said jeep to hit
and bump an oncoming car, which
happened to be petitioner's Mercedes
Benz. The case against jeep-owner-driver
Salazar, docketed as Criminal Case No.
SM 228, was for causing damage to the
Mercedes Benz of petitioner in the
amount of P8,890.00

At the joint trial of the above cases,

petitioner testified that jeep-owner- driver
Salazar overtook the truck driven by
Montoya, swerved to the left going
towards the poblacion of Marilao, and hit
his car which was bound for Manila.
Petitioner further testified that before the
impact, Salazar had jumped from the jeep
and that he was not aware that Salazar's
jeep was bumped from behind by the
truck driven by Montoya. Petitioner's
version of the accident was adopted by
truck driver Montoya. Jeep-owner-driver
Salazar, on the other hand, tried to show
that, after overtaking the truck driven by
Montoya, he flashed a signal indicating
his intention to turn left towards the
poblacion of Marilao but was stopped at
the intersection by a policeman who was
directing traffic; that while he was at a
stop position, his jeep was bumped at the
rear by the truck driven by Montova
causing him to be thrown out of the jeep,
which then swerved to the left and hit
petitioner's car, which was coming from
the opposite direction.
On July 31, 1970, the Court of First
Instance of Bulacan, Branch V, Sta.
Maria, rendered judgment, stating in its
decretal portion:
IN VIEW OF THE FOREGOING, this
Court finds the accused Freddie Montoya
GUILTY beyond reasonable doubt of the
crime of damage to property thru reckless
imprudence in Crime. Case No. SM-227,
and hereby sentences him to pay a fine of
P972.50 and to indemnify Rodolfo
Salazar in the same amount of P972.50 as
actual damages, with subsidiary
imprisonment in case of insolvency, both
as to fine and indemnity, with costs.

Accused Rodolfo Salazar is hereby

ACQUITTED from the offense charged
in Crime. Case No. SM-228, with costs
de oficio, and his bond is ordered
canceled
SO ORDERED. 1
Thus, the trial Court absolved jeepowner-driver Salazar of any liability, civil
and criminal, in view of its findings that
the collision between Salazar's jeep and
petitioner's car was the result of the
former having been bumped from behind
by the truck driven by Montoya. Neither
was petitioner awarded damages as he
was not a complainant against truckdriver Montoya but only against jeepowner-driver Salazar.
On August 22, 1970, or after the
termination of the criminal cases,
petitioner filed Civil Case No. 80803 with
the Court of First Instance of Manila
against respondents jeep-owner-driver
Salazar and Felino Timbol, the latter
being the owner of the gravel and sand
truck driven by Montoya, for
indentification for the damages sustained
by his car as a result of the collision
involving their vehicles. Jeep-ownerdriver Salazar and truck-owner Timbol
were joined as defendants, either in the
alternative or in solidum allegedly for the
reason that petitioner was uncertain as to
whether he was entitled to relief against
both on only one of them.
On September 9, 1970, truck-owner
Timbol filed a Motion to Dismiss Civil
Case No. 80803 on the grounds that the
Complaint is barred by a prior judgment
in the criminal cases and that it fails to

state a cause of action. An Opposition

thereto was filed by petitioner.
In an Order dated September 12, 1970,
respondent Judge dismissed the
Complaint against truck-owner Timbol
for reasons stated in the afore- mentioned
Motion to Dismiss On September 30,
1970, petitioner sought before this Court
the review of that dismissal, to which
petition we gave due course.
On January 30, 1971, upon motion of
jeep-owner-driver Salazar, respondent
Judge also dismissed the case as against
the former. Respondent Judge reasoned
out that "while it is true that an
independent civil action for liability
under Article 2177 of the Civil Code
could be prosecuted independently of the
criminal action for the offense from
which it arose, the New Rules of Court,
which took effect on January 1, 1964,
requires an express reservation of the
civil action to be made in the criminal
action; otherwise, the same would be
barred pursuant to Section 2, Rule 111
... 2 Petitioner's Motion for
Reconsideration thereof was denied in the
order dated February 23, 1971, with
respondent Judge suggesting that the
issue be raised to a higher Court "for a
more decisive interpretation of the rule. 3
On March 25, 1971, petitioner then filed
a Supplemental Petition before us, also to
review the last two mentioned Orders, to
which we required jeep-owner-driver
Salazar to file an Answer.
The Complaint against
truck-owner Timbol

We shall first discuss the validity of the

Order, dated September 12, 1970,
dismissing petitioner's Complaint against
truck-owner Timbol.
In dismissing the Complaint against the
truck-owner, respondent Judge sustained
Timbol's allegations that the civil suit is
barred by the prior joint judgment in
Criminal Cases Nos. SM-227 and SM228, wherein no reservation to file a
separate civil case was made by petitioner
and where the latter actively participated
in the trial and tried to prove damages
against jeep-driver-Salazar only; and that
the Complaint does not state a cause of
action against truck-owner Timbol
inasmuch as petitioner prosecuted jeepowner-driver Salazar as the one solely
responsible for the damage suffered by
his car.
Well-settled is the rule that for a prior
judgment to constitute a bar to a
subsequent case, the following requisites
must concur: (1) it must be a final
judgment; (2) it must have been rendered
by a Court having jurisdiction over the
subject matter and over the parties; (3) it
must be a judgment on the merits; and (4)
there must be, between the first and
second actions, Identity of parties,
Identity of subject matter and Identity of
cause of action.
It is conceded that the first three
requisites of res judicata are present.
However, we agree with petitioner that
there is no Identity of cause of action
between Criminal Case No. SM-227 and
Civil Case No. 80803. Obvious is the fact
that in said criminal case truck-driver
Montoya was not prosecuted for damage
to petitioner's car but for damage to the

jeep. Neither was truck-owner Timbol a

party in said case. In fact as the trial
Court had put it "the owner of the
Mercedes Benz cannot recover any
damages from the accused Freddie
Montoya, he (Mendoza) being a
complainant only against Rodolfo Salazar
in Criminal Case No. SM-228. 4 And
more importantly, in the criminal cases,
the cause of action was the enforcement
of the civil liability arising from criminal
negligence under Article l of the Revised
Penal Code, whereas Civil Case No.
80803 is based on quasi-delict under
Article 2180, in relation to Article 2176
of the Civil Code As held in Barredo vs.
Garcia, et al. 5
The foregoing authorities clearly
demonstrate the separate in. individuality
of cuasi-delitos or culpa aquiliana under
the Civil Code. Specifically they show
that there is a distinction between civil
liability arising from criminal negligence
(governed by the Penal Code) and
responsibility for fault or negligence
under articles 1902 to 1910 of the Civil
Code, and that the same negligent act
may produce either a civil liability arising
from a crime under the Penal Code, or a
separate responsibility for fault or
negligence under articles 1902 to 1910 of
the Civil Code. Still more concretely, the
authorities above cited render it
inescapable to conclude that the employer
in this case the defendant- petitioner is
primarily and directly liable under article
1903 of the Civil Code.
That petitioner's cause of action against
Timbol in the civil case is based on quasidelict is evident from the recitals in the
complaint to wit: that while petitioner
was driving his car along MacArthur

Highway at Marilao, Bulacan, a jeep

owned and driven by Salazar suddenly
swerved to his (petitioner's) lane and
collided with his car That the sudden
swerving of Salazar's jeep was caused
either by the negligence and lack of skill
of Freddie Montoya, Timbol's employee,
who was then driving a gravel and sand
truck iii the same direction as Salazar's
jeep; and that as a consequence of the
collision, petitioner's car suffered
extensive damage amounting to
P12,248.20 and that he likewise incurred
actual and moral damages, litigation
expenses and attorney's fees. Clearly,
therefore, the two factors that a cause of
action must consist of, namely: (1)
plaintiff's primary right, i.e., that he is the
owner of a Mercedes Benz, and (2)
defendant's delict or wrongful act or
omission which violated plaintiff's
primary right, i.e., the negligence or lack
of skill either of jeep-owner Salazar or of
Timbol's employee, Montoya, in driving
the truck, causing Salazar's jeep to swerve
and collide with petitioner's car, were
alleged in the Complaint. 6
Consequently, petitioner's cause of action
being based on quasi-delict, respondent
Judge committed reversible error when he
dismissed the civil suit against the truckowner, as said case may proceed
independently of the criminal
proceedings and regardless of the result
of the latter.
Art. 31. When the civil action is based on
an obligation not arising from the act or
omission complained of as a felony, such
civil action may proceed independently of
the criminal proceedings and regardless
of the result of the latter.

But it is truck-owner Timbol's submission

(as well as that of jeep-owner-driver
Salazar) that petitioner's failure to make a
reservation in the criminal action of his
right to file an independent civil action
bars the institution of such separate civil
action, invoking section 2, Rule 111,
Rules of Court, which says:
Section 2. Independent civil action.
In the cases provided for in Articles 31,
32, 33, 34 and 2177 of the Civil Code of
the Philippines, an independent civil
action entirely separate and distinct from
the criminal action may be brought by the
injured party during the pendency of the
criminal case, provided the right is
reserved as required in the preceding
section. Such civil action shau proceed
independently of the criminal
prosecution, and shall require only a
preponderance of evidence.
Interpreting the above provision, this
Court, in Garcia vs. Florida 7 said:
As we have stated at the outset, the same
negligent act causing damages may
produce a civil liability arising from
crime or create an action for quasi-delict
or culpa extra-contractual. The former is
a violation of the criminal law, while the
latter is a distinct and independent
negligence, having always had its own
foundation and individuality. Some legal
writers are of the view that in accordance
with Article 31, the civil action based
upon quasi-delict may proceed
independently of the criminal proceeding
for criminal negligence and regardless of
the result of the latter. Hence, 'the proviso
in Section 2 of Rule 111 with reference to
... Articles 32, 33 and 34 of the Civil
Code is contrary to the letter and spirit of

the said articles, for these articles were

drafted ... and are intended to constitute
as exceptions to the general rule stated in
what is now Section 1 of Rule 111. The
proviso, which is procedural, may also be
regarded as an unauthorized amendment
of substantive law, Articles 32, 33 and 34
of the Civil Code, which do not provide
for the reservation required in the proviso
... .
In his concurring opinion in the above
case, Mr. Justice Antonio Barredo further
observed that inasmuch as Articles 2176
and 2177 of the Civil Code create a civil
liability distinct and different from the
civil action arising from the offense of
negligence under the Revised Penal
Code, no reservation, therefore, need be
made in the criminal case; that Section 2
of Rule 111 is inoperative, "it being
substantive in character and is not within
the power of the Supreme Court to
promulgate; and even if it were not
substantive but adjective, it cannot stand
because of its inconsistency with Article
2177, an enactment of the legislature
superseding the Rules of 1940."
We declare, therefore, that in so far as
truck-owner Timbol is concerned, Civil
Case No. 80803 is not barred by the fact
that petitioner failed to reserve, in the
criminal action, his right to file an
independent civil action based on quasidelict.

Case No. SM-228, presents a different

picture altogether.
At the outset it should be clarified that
inasmuch as civil liability co-exists with
criminal responsibility in negligence
cases, the offended party has the option
between an action for enforcement of
civil liability based
on culpa criminalunder Article 100 of the
Revised Penal Code, and an action for
recovery of damages based on culpa
aquilianaunder Article 2177 of the Civil
Code. The action for enforcement of civil
liability based on culpa criminal under
section 1 of Rule 111 of the Rules of
Court is deemed simultaneously instituted
with the criminal action, unless expressly
waived or reserved for separate
application by the offended party. 8
The circumstances attendant to the
criminal case yields the conclusion that
petitioner had opted to base his cause of
action against jeep-owner-driver Salazar
on culpa criminal and not on culpa
aquiliana as evidenced by his active
participation and intervention in the
prosecution of the criminal suit against
said Salazar. The latter's civil liability
continued to be involved in the criminal
action until its termination. Such being
the case, there was no need for petitioner
to have reserved his right to file a
separate civil action as his action for civil
liability was deemed impliedly instituted
in Criminal Case No. SM-228.

The suit against

jeep-owner-driver Salazar
The case as against jeep-owner-driver
Salazar, who was acquitted in Criminal

Neither would an independent civil action

he. Noteworthy is the basis of the
acquittal of jeep-owner-driver Salazar in
the criminal case, expounded by the trial
Court in this wise:

In view of what has been proven and

established during the trial, accused
Freddie Montoya would be held able for
having bumped and hit the rear portion of
the jeep driven by the accused Rodolfo
Salazar,
Considering that the collision between the
jeep driven by Rodolfo Salazar and the
car owned and driven by Edgardo
Mendoza was the result of the hitting on
the rear of the jeep by the truck driven by
Freddie Montoya, this Court behaves that
accused Rodolfo Salazar cannot be held
able for the damages sustained by
Edgardo Mendoza's car. 9
Crystal clear is the trial Court's
pronouncement that under the facts of the
case, jeep-owner-driver Salazar cannot be
held liable for the damages sustained by
petitioner's car. In other words, "the fact
from which the civil might arise did not
exist. " Accordingly, inasmuch as
petitioner's cause of action as against
jeep-owner-driver Salazar isex- delictu,
founded on Article 100 of the Revised
Penal Code, the civil action must be held
to have been extinguished in consonance
with Section 3(c), Rule 111 of the Rules
of Court 10 which provides:
Sec. 3. Other civil actions arising from
offenses. In all cases not included in
the preceding section the following rules
shall be observed:
xxx xxx xxx
c) Extinction of the penal action does not
carry with it extinction of the civil, unless
the extinction proceeds from a declaration
in a final judgment that the fact from
which the civil night arise did not exist. ...

And even if petitioner's cause of action as

against jeep-owner-driver Salazar were
not ex-delictu, the end result would be the
same, it being clear from the judgment in
the criminal case that Salazar's acquittal
was not based upon reasonable doubt,
consequently, a civil action for damages
can no longer be instituted. This is
explicitly provided for in Article 29 of the
Civil Code quoted here under:
Art. 29. When the accused in a criminal
prosecution is acquitted on the ground
that his guilt has not been proved beyond
reasonable doubt, a civil action for
damages for the same act or omission
may be instituted. Such action requires
only a preponderance of evidence ...
If in a criminal case the judgment of
acquittal is based upon reasonable doubt,
the court shall so declare. In the absence
of any declaration to that effect, it may be
inferred from the text of the decision
whether or not the acquittal is due to that
ground.
In so far as the suit against jeep-ownerdriver Salazar is concerned, therefore, we
sustain respondent Judge's Order dated
January 30, 1971 dismissing the
complaint, albeit on different grounds.
WHEREFORE, 1) the Order dated
September 12, 1970 dismissing Civil
Case No. 80803 against private
respondent Felino Timbol is set aside,
and respondent Judge, or his successor,
hereby ordered to proceed with the
hearing on the merits; 2) but the Orders
dated January 30, 1971 and February 23,
1971 dismissing the Complaint in Civil
Case No. 80803 against respondent
Rodolfo Salazar are hereby upheld.

No costs.
SO ORDERED.
G.R. No. L-15315
1960

August 26,

ABUNDIO MERCED, petitioner,

vs.
HON. CLEMENTINO V. DIEZ, ETC.
ET AL., respondents.
Pedro A. Bandoquillo for petitioner.
Fulvio Pelaez for respondents.
LABRADOR, J.:
This is a petition for a writ
of certiorari with prohibition to prohibit
the judge presiding the Court of First
Instance of Negros Oriental, Hon.
Clementino V. Diez, from proceeding
further in the Criminal Case No. V-6520,
entitled People of the Philippines vs.
Abundio Merced until after final
termination of Civil Case No. R-5387, for
the annulment of the marriage of
petitioner Abundio Merced with
Elizabeth Ceasar, also pending in same
court.
The record disclose the following
proceedings in the court a quo: On
January 30, 1958, Abundio Merced filed
a complaint for annulment of his second
marriage with Elizabeth Ceasar. The
complaint is docketed as Civil Case No.
R-5387. The complaint alleges that
defendant Elizabeth Ceasar and her
relatives forced, threatened and intimated
him into signing an affidavit to the effect
that he and defendant had been living
together as husband and wife for over
five years, which is not true; that this

affidavit was used by defendant in

securing their marriage of exceptional
character, without the need for marriage
license; that he was again forced,
threatened and intimated by defendant
and her relatives into entering the
marriage with her on August 21, 1957
before Municipal Judge Medardo A.
Conde; that immediately after the
celebration of the marriage plaintiff left
defendant and never lived with her; that
the defendant wrote him on October 29,
1957, admitting that he was forced into
the marriage and asking him to go to
Cebu to have the marriage annulled, but
he refused to go for fear he may be forced
into living with the defendant. Merced
prays for annulment of the marriage and
for moral damages in the amount of
P2,000. On March 3, 1958, Elizabeth
Ceasar filed her answer to the complaint.
In her answer, she denies the material
allegations of the complaint and avers as
affirmative defenses that neither she nor
her relatives know of plaintiff's previous
marriage to Eufrocina Tan; that sometime
in July, 1957, plaintiff asked her mother
to intercede on their behalf to secure her
father's consent to their marriage as
plaintiff could not concentrate on his
studies without marrying Elizabeth, but
that her mother advised him to finish his
studies first; that sometime in April,
1957, defendant learned that plaintiff was
engaged to marry Eufrocina Tan, but
plaintiff, upon being confronted with
such discovery, showed her a letter which
he wrote breaking off his engagement
with Tan. As a counterclaim defendant
asks P50,000 as moral damages for the
deceit, fraud and insidious machinations
committed upon her by plaintiff.

On February 19, 1958, after had filed

Civil Case No. R-5387 defendant
Elizabeth Ceasar filed a criminal
complaint for bigamy 39 3 against
plaintiff Abundio Merced with the office
of the City Fiscal of Cebu. On April 7,
1958 the Assistant City Fiscal filed
Criminal Case No. V-6520, charging
Merced with bigamy for the second
marriage. The information reads.
The undersigned Assistant Fiscal of City
of Cebu accuses Abundio Merced of the
crime of bigamy, committed as follows:
That on or about the 21st day of August,
1957, in the City of Cebu, Philippines,
and within the jurisdiction of this
Honorable Court, the said accused
Abundio Merced, being previously united
in lawful marriage with Eufrocina Tan,
and without the said marriage having
been legally dissolved did then and there
wilfully unlawfully, feloniously contract
a second marriage with Elizabeth Ceasar.
Contrary to Article 349 of the Revised
Penal Code. (Annex "2".)
Abundio Merced filed a motion to hold to
trial of said criminal case in abeyance
until final termination of Civil Case No.
R- 5387. Reason alleged for the motion is
that the Civil Action involves facts which
if proved will determine the innocence of
the accused. After an opposition thereto
was filed by the assistant provincial
fiscal, the court granted the motion.
However, upon motion for
reconsideration filed by the fiscal, the
order was set aside and another entered
denying the motion of accused for
suspension of the criminal proceedings,
which last order is the one sough herein

to be annulled. The court held in its last

order that inasmuch as by virtue of the
decision of the Supreme Court in the case
of People vs. Mendoza, 95 Phil., 50 Off.
Gaz. [10], 4767, judicial declaration of
nullity of a second and bigamous
marriage is not necessary, there is no
need in this case to decide the nullity of
the second marriage, or to determine and
declare the existence of the grounds for
annulling the same, but that said grounds
should be used as a defense in the
criminal action. A motion to reconsider
the second order of the court having been
denied, petition herein was filed.
When the petition for certiorari with
prohibition was filed, the petitioner
secured from this Court a writ of
preliminary injunction to enjoin
respondent judge from proceeding further
in the criminal case.
Before this Court the sole question raised
is whether an action to annul the second
marriage is a prejudicial question in a
prosecution for bigamy.
The definition and the elements of a
prejudicial question have been set forth
by us as follows:
Prejudicial question has been defined to
be that which arises in a case, the
resolution of which (question) is a logical
antecedent of the issue involved in said
case, and the cognizance of which
pertains to another Tribunal (Cuestion
prejudicial, es 3o 3 la que surge en un
pleito o causa cuya resolucion sean
antecedente logico de la cuestion-objeto
del pleito o causa y cuyo conocimiento
corresponda a los Tribunales de otro
orden o jurisdiccion. Enciclopedia

Juridica Espaola, p. 228). The

prejudicial question must be
determinative of the case before the
court; this is its first element. Jurisdiction
to try said question must be lodged in
another tribunal; this is the second
element. In an action for bigamy for
example, if the accused claims that the
first marriage is null and void and the
right to decide such validity is vested in
another tribunal, the civil action for
nullity must be first decided before the
action for bigamy can proceed, hence, the
validity of the first marriage is a
prejudicial question. (People vs. Aragon,
94 Phil., 357; 50 Off. Gaz., No. 10,
4863).

voluntarily given. Without the element of

consent a marriage would be illegal and
void. (Section 29, Act No. 3613,
otherwise known as the Marriage Law.)
But the question of invalidity can not
ordinarily be decided in the criminal
action for bigamy but in a civil action for
annulment. Since the validity of the
second marriage, subject of the action for
bigamy, cannot be determined in the
criminal case and since prosecution for
bigamy does not lie unless the elements
of the second marriage appear to exist, it
is necessary that a decision in a civil
action to the effect that the second
marriage contains all the essentials of a
marriage must first be secured.

In order that a person may be held guilty

of the crime of bigamy, the second and
subsequent marriage must have all the
essential elements of a valid marriage,
were it not for the subsistence of the first
marriage. This was the ruling of this
Court in People vs. Dumpo, 62 Phil., 246,
where we said:

We have, therefore, in the case at bar, the

issue of the validity of the second
marriage, which must be determined
before hand in the civil action, before the
criminal action can proceed. We have a
situation where the issue of the validity of
the second marriage can be determined or
must be determined in the civil action
before the criminal action for bigamy can
be prosecuted. The question of the
validity of the second marriage is,
therefore, a prejudicial question, because
determination of the validity of the
second marriage is determinable in the
civil action and must precede the criminal
action for bigamy.

It is an essential element of the crime of

bigamy that the alleged second marriage,
having all the essential requisites, would
be valid were it not for the subsistence of
the first marriage. It appearing that the
marriage alleged to have been contracted
by the accused with Sabdapal, her former
marriage with Hassan being undissolved,
can not be considered as such, according
to Mohameddan rites, there is no
justification to hold her guilty of the
crime charged in the information. (People
vs. Dumpo, 62 Phil. 246).
One of the essential elements of a valid
marriage is that the consent thereto of the
contracting parties must be freely and

Spanish jurisprudence, from which the

principle of prejudicial question has been
taken, requires that the essential element
determinative of the criminal action must
be cognizable by another court. This
requirement of a different court is
demanded in Spanish jurisprudence
because Spanish courts are divided
according to their jurisdictions, some

courts being exclusively of civil

jurisdiction, others of criminal
jurisdiction. In the Philippines, where our
courts are vested with both civil and
criminal jurisdiction, the principle of
prejudicial question is to be applied even
if there is only one court before which the
civil action and the criminal action are to
be litigated. But in this case the court
when exercising its jurisdiction over the
civil action for the annulment of marriage
is considered as a court distinct and
different from itself when trying the
criminal action for bigamy.

The majority decision in said case of De

Leon vs. Mabanag also sustains the
theory that when a civil action is pending
in court, in which a validity of a
document claimed to be false and
fictitious is in issue, the fiscal may not
prosecute the person who allegedly
executed the false document because the
issue of the validity of the instrument
is sub judice and the prosecuting officer
should be ordered to suspend the criminal
action until the prejudicial question has
been finally determined. Thus the Court
said"

Our conclusion that the determination of

the validity of the marriage in the civil
action for annulment is a prejudicial
question, insofar as the criminal action
for bigamy is concerned, is supported by
Mr. Justice Moran in his dissenting
opinion in De Leon vs. Mabanag, 70
Phil., 207 thus:

Hablando en terminos generales la

facultad del Fiscal y su deber perseguir
los delitos no deben ser controlados ni
coartados por los tribunales; pero no hay
duda que esa facultad puede ser regulada
para que no se abuse de ella. Cuando un
miembro del Ministerio Fiscal se desvia
de la ley y entorpece la recta
administracion de justicia procesando a
una persona por hechos constituvos de
delito que se encuentran sub-judice y de
los cuales se propone una cuestion
prejudicial administrativa, es deber de los
tribunales llamarle la atencion y obligarle
que suspenda toda accion criminal hasta
que la cuestion prejudicial administrativa
se haya decidido finalmente. (De Leon
vs. Mabanag, 70 Phil., 207.)

La regla general es que cuando hay una

cuestion civil y otra criminal sobre un
mismo delito u ofensa, la segunda debe
verse antes que la primera, por la razon
de que las formas de un juicio criminal
son las mas a proposito para la
averiguacion de un delito, y no las de un
juicio civil. Esta regla tiene, sin embargo,
una excepcion, y es la que se refiere a una
cueston civil prejudicial. Una cuestion
civil es de caracter prejudicial y debe
resolverse antes que una cuestion
criminal, cuando versa sonbre un hecho
distinto y separado del delito, pero tan
intimamente ligado a el que determina la
culpabilidad o inocencia del acusado. Por
ejemplo, una accion criminal por
bigamia.

The case of People vs. Mendoza, supra,

upon which the trial court and the
respondents rely, presents a different sets
of facts from the case at bar. So is the
ruling therein as contained in the
syllabus. In the case of People vs.
Mendoza, Mendoza was charged with and
convicted of bigamy for a marriage with
one Carmencita Panlilio, contracted in
August, 1949. Mendoza was married for

the first time in 1946 with Josefa de Asis;

then married for the second time with
Olga Lema; and then married for the third
time to Panlilio in 1949. On February 2,
1943, Josefa de Asis died. The court
citing the provisions of Article 29 of the
marriage law, held that the second
marriage of the appellant Mendoza with
Lema was operation of law null and void,
because at the time of the second
marriage in 1941, appellant's former wife
Josefa de Asis was still living. This
marriage of appellant with Lema being
null and void at the time the appellant
contracted the said marriage, the
impediment of the second marriage did
not exist. Hence the appellant was
acquitted of bigamy for the 1949
marriage because his previous marriage
with Lema in 1941, by operation of law,
was void ab initio.
In the case at bar, in order that the
petitioner be held guilty of the crime of
bigamy, the marriage which she
contracted for the second time with
Elizabeth Ceasar, must first be declared
valid. But its validity has been questioned
in the civil action. This civil action must
be decided before the prosecution for
bigamy can proceed.
For the foregoing considerations, the
petition for the issuance of a writ
of certiorari and prohibition is hereby
granted. The order of the court denying
the petition of the herein petitioner to
prohibit the Fiscal from prosecuting the
case for bigamy, criminal case no. V6520, entitled People vs. Abundio
Merced, is hereby set aside and the
preliminary injunction issued by this
court to that effect is hereby made
permanent. So Ordered.

G.R. No. L-22579

1968

February 23,

ROLANDO LANDICHO, petitioner,

vs.
HON. LORENZO RELOVA, in his
capacity as Judge of the Court of First
Instance of Batangas, Branch I, and
PEOPLE OF THE
PHILIPPINES, respondents.
Jose W. Diokno for petitioner.
Office of the Solicitor General for
respondents.
FERNANDO, J.:
In this petition for certiorari and
prohibition with preliminary injunction,
the question before the Court is whether
or not the existence of a civil suit for the
annulment of marriage at the instance of
the second wife against petitioner, with
the latter in turn filing a third party
complaint against the first spouse for the
annulment of the first marriage,
constitutes a prejudicial question in a
pending suit for bigamy against him.
Respondent, Judge Relova answered in
the negative. We sustain him.
The pertinent facts as set forth in
the petition follow. On February 27,
1963, petitioner was charged before the
Court of First Instance of Batangas,
Branch I, presided over by respondent
Judge, with the offense, of bigamy. It was
alleged in the information that petitioner
"being then lawfully married to Elvira
Makatangay, which marriage has not
been legally dissolved, did then and there
wilfully, unlawfully and feloniously
contract a second marriage with Fe
Lourdes Pasia." On March 15, 1963, an

action was filed before the Court of First

Instance ofBatangas, likewise presided
plaintiff respondent Judge Fe Lourdes
Pasia, seeking to declare her marriage to
petitioner as null and void ab
initio because of the alleged use of force,
threats and intimidation allegedly
employed by petitioner and because of its
allegedly bigamous character. On June
15, 1963, petitioner as defendant in said
case, filed a third-party complaint, against
the third-party defendant Elvira
Makatangay, the first spouse, praying that
his marriage with the said third-party
defendant be declared null and void, on
the ground that by means of threats, force
and intimidation, she compelled him to
appear and contract marriage with her
before the Justice of the Peace of Makati,
Rizal.
Thereafter, on October 7, 1963,
petitioner moved to suspend the hearing
of the criminal case pending the decision
on the question of the validity of the two
marriages involved in the pending civil
suit. Respondent Judge on November 19,
1963 denied the motion for lack of merit.
Then came a motion for reconsideration
to set aside the above order, which was
likewise denied on March 2, 1964. Hence
this petition, filed on March 13, 1964.
In a resolution of this Court of
March 17, 1964, respondent Judge was
required to answer within ten (10) days,
with a preliminary injunction being
issued to restrain him from further
proceeding with the prosecution of the
bigamy case. In the meanwhile, before
the answer was filed there was an
amended petition for certiorari, the
amendment consisting solely in the
inclusion of the People of the Philippines

as another respondent. This Court

admitted such amended petition in a
resolution of April 3, 1964.
Then came the answer to the
amended petition on May 14 of that year
where the statement of facts as above
detailed was admitted, with the
qualifications that the bigamy charge was
filed upon the complaint of the first
spouse Elvira Makatangay. It alleged as
one of its special and affirmative defenses
that the mere fact that "there are actions
to annul the marriages entered into by the
accused in a bigamy case does not mean
that 'prejudicial questions are
automatically raised in said civil actions
as to warrant the suspension of the
criminal case for bigamy." 1 The answer
stressed that even on the assumption that
the first marriage was null and void on
the ground alleged by petitioner, the fact
would not be material to the outcome of
the criminal case. It continued, referring
to Viada, that "parties to the marriage
should not be permitted to judge for
themselves its nullity, for this must be
submitted to the judgment of competent
courts and only when the nullity of a
marriage is so declared can it be held as
void, and so long as there is no such
declaration the presumption is that the
marriage exists. Therefore, according to
Viada, he who contracts a second
marriage before the judicial declaration of
nullity of the first marriage incurs the
penalty provided for in this Article. . . ." 2
This defense is in accordance with
the principle implicit in authoritative
decisions of this Court. In Merced v.
Diez, 3 what was in issue was the validity
of the second marriage, "which must be
determined before hand in the civil action

before the criminal action can proceed."

According to the opinion of Justice
Labrador: "We have a situation where the
issue of the validity of the second
marriage can be determined or must first
be determined in the civil action before
the criminal action for bigamy can be
prosecuted. The question of the validity
of the second marriage is, therefore, a
prejudicial question because
determination of the validity of the
second marriage is determinable in the
civil action and must precede the criminal
action for bigamy." It was the conclusion
of this Court then that for petitioner
Merced to be found guilty of bigamy, the
second marriage which he contracted
"must first be declared valid." Its validity
having been questioned in the civil
action, there must be a decision in such a
case "before the prosecution for bigamy
can proceed."
To the same effect is the doctrine
announced in Zapanta v. Mendoza. 4 As
explained in the opinion of Justice Dizon:
"We have heretofore defined a prejudicial
question as that which arises in a case, the
resolution of which is a logical
antecedent of the issue involved therein,
and the cognizance of which pertains to
another tribunal. . . . The prejudicial
question we further said must be
determinative of the case before the court,
and jurisdiction to try the same must be
lodged in another court. . . . These
requisites are present in the case at bar.
Should the question for annulment of the
second marriage pending in the Court of
First Instance of Pampanga prosper on
the ground that, according to the
evidence, petitioner's consent thereto was
obtained by means of duress, force and
intimidation, it is obvious that his act was

involuntary and can not be the basis of

his conviction for the crime of bigamy
with which he was charged in the Court
of First Instance of Bulacan. Thus the
issue involved in the action for the
annulment of the second marriage is
determinative of petitioner's guilt or
innocence of the crime of bigamy. . . ."
The situation in this case is
markedly different. At the time the
petitioner was indicted for bigamy on
February 27, 1963, the fact that two
marriage ceremonies had been contracted
appeared to be indisputable. Then on
March 15, 1963, it was the second
spouse, not petitioner who filed an action
for nullity on the ground of force, threats
and intimidation. It was sometime later,
on June 15, 1963, to be precise, when
petitioner, as defendant in the civil action,
filed a third-party complaint against the
first spouse alleging that his marriage
with her should be declared null and void
on the ground of force, threats and
intimidation. As was correctly stressed in
the answer of respondent Judge relying
on Viada, parties to a marriage should not
be permitted to judge for themselves its
nullity, only competent courts having
such authority. Prior to such declaration
of nullity, the validity of the first
marriage is beyond question. A party who
contracts a second marriage then assumes
the risk of being prosecuted for bigamy.
Such was the situation of
petitioner. There is no occasion to indulge
in the probability that the third-party
complaint against the first wife brought
almost five months after the prosecution
for bigamy was started could have been
inspired by the thought that he could thus
give color to a defense based on an

alleged prejudicial question. The above

judicial decisions as well as the opinion
of Viada preclude a finding that
respondent Judge abused, much less
gravely abused, his discretion in failing to
suspend the hearing as sought by
petitioner.
WHEREFORE, the petition
for certiorari is denied and the writ of
preliminary injunction issued dissolved.
With costs.1wph1.t
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA,
PRESIDING JUDGE, COURT OF
FIRST INSTANCE OF MANIIA,
BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF
MANILA; PAZ B.
ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private
respondent.
City Fiscal of Manila for public
respondent.

GANCAYCO, J.:
In this petition for certiorari and
prohibition with preliminary injunction,
the question for the resolution of the
Court is whether or not a criminal case
for bigamy pending before the Court of
First Itance of Manila should be
suspended in view of a civil case for

annulment of marriage pending before the

Juvenile and Domestic Relations Court
on the ground that the latter constitutes a
prejudicial question. The respondent
judge ruled in the negative. We sustain
him.
The pertinent facts as set forth in the
records follow. On January 23, 1979, the
City Fiscal of Manila acting thru
Assistant City Fiscal Amado N. Cantor
filed an information for bigamy against
herein petitioner, Leonilo C. Donato with
the Court of First Instance of Manila,
docketed as Criminal Case No. 43554 and
assigned to Branch XXXII of said court.
The information was filed based on the
complaint of private respondent Paz B.
Abayan.
On September 28, 1979, before the
petitioner's arraignment, private
respondent filed with the Juvenile and
Domestic Relations Court of Manila a
civil action for declaration of nullity of
her marriage with petitioner contracted on
September 26, 1978, which action was
docketed as Civil Case No. E-02627. Said
civil case was based on the ground that
private respondent consented to entering
into the marriage, which was petitioner
Donato's second one, since she had no
previous knowledge that petitioner was
already married to a certain Rosalinda R.
Maluping on June 30, 1978. Petitioner
Donato's answer in the civil case for
nullity interposed the defense that his
second marriage was void since it was
solemnized without a marriage license
and that force, violence, intimidation and
undue influence were employed by
private respondent to obtain petitioner's
consent to the marriage. Prior to the
solemnization of the subsequent or

second marriage, petitioner and private

respondent had lived together and
deported themselves as husband and wife
without the benefit of wedlock for a
period of at least five years as evidenced
by a joint affidavit executed by them on
September 26, 1978, for which reason,
the requisite marriage license was
dispensed with pursuant to Article 76 of
the New Civil Code pertaining to
marriages of exceptional character.
Prior to the date set for the trial on the
merits of Criminal Case No. 43554,
petitioner filed a motion to suspend the
proceedings of said case contending that
Civil Case No. E-02627 seeking the
annulment of his second marriage filed
by private respondent raises a prejudicial
question which must first be determined
or decided before the criminal case can
proceed.
In an order dated April 7, 1980. Hon.
Artemon D. Luna denied the motion to
suspend the proceedings in Criminal Case
No. 43554 for bigamy. Respondent
judge's basis for denial is the ruling laid
down in the case of Landicho vs.
Relova. 1 The order further directed that
the proceedings in the criminal case can
proceed as scheduled.
A motion for reconsideration was flied by
herein petitioner thru counsel citing as
one of his grounds for suspension of
proceedings the ruling laid down by this
Court in the case of De la Cruz vs.
Ejercito 2 which was a much later case
than that cited by respondent judge in his
order of denial.
The motion for reconsideration of the
said order was likewise denied in an order

dated April 14, 1980, for lack of merit.

Hence, the present petition for certiorari
and prohibition with preliminary
injunction.
A prejudicial question has been defined
to be one which arises in a case, the
resolution of which question is a logical
antecedent of the issue involved in said
case, and the cognizance of which
pertains to another tribunal. 3 It is one
based on a fact distinct and separate from
the crime but so intimately connected
with it that it determines the guilt or
innocence of the accused, and for it to
suspend the criminal action, it must
appear not only that said case involves
facts intimately related to those upon
which the criminal prosecution would be
based but also that in the resolution of the
issue or issues raised in the civil case, the
guilt or innocence of the accused would
necessarily be determined. 4 A prejudicial
question usually comes into play in a
situation where a civil action and a
criminal action may proceed, because
howsoever the issue raised in the civil
action is resolved would be
determinative juris et de jure of the guilt
or innocence of the accused in a criminal
case. 5
The requisites of a prejudicial question do
not obtain in the case at bar. It must be
noted that the issue before the Juvenile
and Domestic Relations Court touching
upon the nullity of the second marriage is
not determinative of petitioner Donato's
guilt or innocence in the crime of bigamy.
Furthermore, it was petitioner's second
wife, the herein private respondent Paz B.
Abayan who filed the complaint for
annulment of the second marriage on the

ground that her consent was obtained

through deceit.
Petitioner Donato raised the argument
that the second marriage should have
been declared null and void on the ground
of force, threats and intimidation
allegedly employed against him by
private respondent only sometime later
when he was required to answer the civil
action for anulment of the second
marriage. The doctrine elucidated upon
by the case of Landicho vs. Relova 6 may
be applied to the present case. Said case
states that:
The mere fact that there are actions to
annul the marriages entered into by the
accused in a bigamy case does not mean
that "prejudicial questions" are
automatically raised in civil actions as to
warrant the suspension of the case. In
order that the case of annulment of
marriage be considered a prejudicial
question to the bigamy case against the
accused, it must be shown that the
petitioner's consent to such marriage must
be the one that was obtained by means of
duress, force and intimidation to show
that his act in the second marriage must
be involuntary and cannot be the basis of
his conviction for the crime of bigamy.
The situation in the present case is
markedly different. At the time the
petitioner was indicted for bigamy on
February 27, 1963, the fact that two
marriage ceremonies had been contracted
appeared to be indisputable. And it was
the second spouse, not the petitioner who
filed the action for nullity on the ground
of force, threats and intimidation. And it
was only on June 15, 1963, that
petitioner, as defendant in the civil action,
filed a third-party complaint against the

first spouse alleging that his marriage

with her should be declared null and void
on the ground of force, threats and
intimidation. Assuming that the first
marriage was null and void on the ground
alleged by petitioner, the fact would not
be material to the outcome of the case.
Parties to the marriage should not be
permitted to judge for themselves its
nullity, for the same must be submitted to
the judgment of the competent courts and
only when the nullity of the marriage is
so declared can it be held as void, and so
long as there is no such declaration the
presumption is that the marriage exists.
Therefore, he who contracts a second
marriage before the judicial declaration of
nullity of the first marriage assumes the
risk of being prosecuted for bigamy. The
lower court therefore, has not abused
much less gravely abused, its discretion
in failing to suspend the hearing as sought
by petitioner.
In the case at bar, petitioner has not even
sufficiently shown that his consent to the
second marriage has been obtained by the
use of threats, force and intimidation.
Petitioner calls the attention of this Court
to the fact that the case of De la Cruz vs.
Ejercito is a later case and as such it
should be the one applied to the case at
bar. We cannot agree. The situation in the
case at bar is markedly different. In the
aforecited case it was accused Milagros
dela Cruz who was charged with bigamy
for having contracted a second marriage
while a previous one existed. Likewise,
Milagros dela Cruz was also the one who
filed an action for annulment on the
ground of duress, as contra-distinguished
from the present case wherein it was
private respondent Paz B. Abayan,

petitioner's second wife, who filed a

complaint for annulment of the second
marriage on the ground that her consent
was obtained through deceit since she
was not aware that petitioner's marriage
was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in
the civil case that the second marriage of
De la Cruz was null and void, thus
determinative of the guilt or innocence of
the accused in the criminal case. In the
present case, there is as yet no such
judgment in the civil case.
Pursuant to the doctrine discussed in
Landicho vs. Relova, petitioner Donato
cannot apply the rule on prejudicial
questions since a case for annulment of
marriage can be considered as a
prejudicial question to the bigamy case
against the accused only if it is proved
that the petitioner's consent to such
marriage was obtained by means of
duress, violence and intimidation in order
to establish that his act in the subsequent
marriage was an involuntary one and as
such the same cannot be the basis for
conviction. The preceding elements do
not exist in the case at bar.
Obviously, petitioner merely raised the
issue of prejudicial question to evade the
prosecution of the criminal case. The
records reveal that prior to petitioner's
second marriage on September 26, 1978,
he had been living with private
respondent Paz B. Abayan as husband
and wife for more than five years without
the benefit of marriage. Thus, petitioner's
averments that his consent was obtained
by private respondent through force,
violence, intimidation and undue
influence in entering a subsequent
marriage is belled by the fact that both

petitioner and private respondent

executed an affidavit which stated that
they had lived together as husband and
wife without benefit of marriage for five
years, one month and one day until their
marital union was formally ratified by the
second marriage and that it was private
respondent who eventually filed the civil
action for nullity.
Another event which militates against
petitioner's contentions is the fact hat it
was only when Civil Case No. E-02627
was filed on September 28, 1979, or more
than the lapse of one year from the
solemnization of the second marriage that
petitioner came up with the story that his
consent to the marriage was secured
through the use of force, violence,
intimidation and undue influence.
Petitioner also continued to live with
private respondent until November 1978,
when the latter left their abode upon
learning that Leonilo Donato was already
previously married.
In the light of the preceding factual
circumstances, it can be seen that the
respondent Judge did not err in his earlier
order. There is no pivotal issue that must
be pre-emptively resolved in Civil Case
No. E-02627 before proceedings in the
criminal action for bigamy can be
undertaken.
Accordingly, there being no prejudicial
question shown to exit the order of denial
issued by the respondent judge dated
April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing,
the instant petition is hereby DISMISSED
for lack of merit. We make no
pronouncement as to costs.

SO ORDERED.

support at P120.00 per month, damages

and attorney's fees.

G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing
through her parents, ANTONIO
QUIMIGUING and JACOBA
CABILIN,plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffsappellants.
Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J.:

Appeal on points of law from an order of
the Court of First Instance of Zamboanga
del Norte (Judge Onofre Sison Abalos,
presiding), in its Civil Case No. 1590,
dismissing a complaint for support and
damages, and another order denying
amendment of the same pleading.
The events in the court of origin can be
summarized as follows:
Appellant, Carmen Quimiguing, assisted
by her parents, sued Felix Icao in the
court below. In her complaint it was
averred that the parties were neighbors in
Dapitan City, and had close and
confidential relations; that defendant
Icao, although married, succeeded in
having carnal intercourse with plaintiff
several times by force and intimidation,
and without her consent; that as a result
she became pregnant, despite efforts and
drugs supplied by defendant, and plaintiff
had to stop studying. Hence, she claimed

Duly summoned, defendant Icao moved

to dismiss for lack of cause of action
since the complaint did not allege that the
child had been born; and after hearing
arguments, the trial judge sustained
defendant's motion and dismissed the
complaint.
Thereafter, plaintiff moved to amend the
complaint to allege that as a result of the
intercourse, plaintiff had later given birth
to a baby girl; but the court, sustaining
defendant's objection, ruled that no
amendment was allowable, since the
original complaint averred no cause of
action. Wherefore, the plaintiff appealed
directly to this Court.
We find the appealed orders of the court
below to be untenable. A conceived child,
although as yet unborn, is given by law a
provisional personality of its own for all
purposes favorable to it, as explicitly
provided in Article 40 of the Civil Code
of the Philippines. The unborn child,
therefore, has a right to support from its
progenitors, particularly of the defendantappellee (whose paternity is deemed
admitted for the purpose of the motion to
dismiss), even if the said child is only "en
ventre de sa mere;" just as a conceived
child, even if as yet unborn, may receive
donations as prescribed by Article 742 of
the same Code, and its being ignored by
the parent in his testament may result in
preterition of a forced heir that annuls the
institution of the testamentary heir, even
if such child should be born after the
death of the testator Article 854, Civil
Code).

ART. 742. Donations made to conceived

and unborn children may be accepted by
those persons who would legally
represent them if they were already born.
ART. 854. The preterition or omission of
one, some, or all of the compulsory heirs
in the direct line, whether living at the
time of the execution of the will or born
after the death of the testator, shall annul
the institution of heir; but the devises and
legacies shall be valid insofar as they are
not inofficious.
If the omitted compulsory heirs should
die before the testator, the institution shall
be effectual, without prejudice to the right
of 'representation.
It is thus clear that the lower court's
theory that Article 291 of the Civil Code
declaring that support is an obligation of
parents and illegitimate children "does
not contemplate support to children as yet
unborn," violates Article 40 aforesaid,
besides imposing a condition that
nowhere appears in the text of Article
291. It is true that Article 40 prescribing
that "the conceived child shall be
considered born for all purposes that are
favorable to it" adds further "provided it
be born later with the conditions specified
in the following article" (i.e., that the
foetus be alive at the time it is completely
delivered from the mother's womb). This
proviso, however, is not a condition
precedent to the right of the conceived
child; for if it were, the first part of
Article 40 would become entirely useless
and ineffective. Manresa, in his
Commentaries (5th Ed.) to the
corresponding Article 29 of the Spanish
Civil Code, clearly points this out:

Los derechos atribuidos al nasciturus no

son simples expectativas, ni aun en el
sentido tecnico que la moderna doctrina
da a esta figura juridica sino que
constituyen un caso de los propiamente
Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las
condiciones previstas por el art. 30, no
determina el nacimiento de aquellos
derechos (que ya existian de antemano),
sino que se trata de un hecho que tiene
efectos declarativos. (1 Manresa, Op. cit.,
page 271)
A second reason for reversing the orders
appealed from is that for a married man
to force a woman not his wife to yield to
his lust (as averred in the original
complaint in this case) constitutes a clear
violation of the rights of his victim that
entitles her to claim compensation for the
damage caused. Says Article 21 of the
Civil Code of the Philippines:
ART. 21. Any person who wilfully
causes loss or injury to another in a
manner that is contrary to morals, good
customs or public policy shall
compensate the latter for the damage.
The rule of Article 21 is supported by
Article 2219 of the same Code:
ART 2219. Moral damages may be
recovered in the following and analogous
cases:
(3) Seduction, abduction, rape or other
lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in
Articles 21, 26, 27, 28 ....

Thus, independently of the right to

Support of the child she was carrying,
plaintiff herself had a cause of action for
damages under the terms of the
complaint; and the order dismissing it for
failure to state a cause of action was
doubly in error.
WHEREFORE, the orders under appeal
are reversed and set aside. Let the case be
remanded to the court of origin for further
proceedings conformable to this decision.
Costs against appellee Felix Icao. So
ordered.
G.R. No. L-16439

July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS
and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for
review question whether the husband of a
woman, who voluntarily procured her
abortion, could recover damages from
physician who caused the same.
The litigation was commenced in the
Court of First Instance of Manila by
respondent Oscar Lazo, the of Nita
Villanueva, against petitioner Antonio
Geluz, a physician. Convinced of the
merits of the complaint upon the evidence
adduced, the trial court rendered
judgment favor of plaintiff Lazo and
against defendant Geluz, ordering the
latter to pay P3,000.00 as damages,
P700.00 attorney's fees and the costs of

the suit. On appeal, Court of Appeals, in a

special division of five, sustained the
award by a majority vote of three justices
as against two, who rendered a separate
dissenting opinion.
The facts are set forth in the majority
opinion as follows:
Nita Villanueva came to know the
defendant (Antonio Geluz) for the first
time in 1948 through her aunt Paula
Yambot. In 1950 she became pregnant by
her present husband before they were
legally married. Desiring to conceal her
pregnancy from her parent, and acting on
the advice of her aunt, she had herself
aborted by the defendant. After her
marriage with the plaintiff, she again
became pregnant. As she was then
employed in the Commission on
Elections and her pregnancy proved to be
inconvenient, she had herself aborted
again by the defendant in October 1953.
Less than two years later, she again
became pregnant. On February 21, 1955,
accompanied by her sister Purificacion
and the latter's daughter Lucida, she again
repaired to the defendant's clinic on
Carriedo and P. Gomez streets in Manila,
where the three met the defendant and his
wife. Nita was again aborted, of a twomonth old foetus, in consideration of the
sum of fifty pesos, Philippine currency.
The plaintiff was at this time in the
province of Cagayan, campaigning for his
election to the provincial board; he did
not know of, nor gave his consent, to the
abortion.
It is the third and last abortion that
constitutes plaintiff's basis in filing this
action and award of damages. Upon

application of the defendant Geluz we

granted certiorari.
The Court of Appeals and the trial court
predicated the award of damages in the
sum of P3,000.06 upon the provisions of
the initial paragraph of Article 2206 of
the Civil Code of the Philippines. This we
believe to be error, for the said article, in
fixing a minimum award of P3,000.00 for
the death of a person, does not cover the
case of an unborn foetus that is not
endowed with personality. Under the
system of our Civil Code, "la criatura
abortiva no alcanza la categoria de
persona natural y en consscuencia es un
ser no nacido a la vida del Derecho"
(Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable
of having rights and obligations.
Since an action for pecuniary damages on
account of personal injury or death
pertains primarily to the one injured, it is
easy to see that if no action for such
damages could be instituted on behalf of
the unborn child on account of the
injuries it received, no such right of
action could derivatively accrue to its
parents or heirs. In fact, even if a cause of
action did accrue on behalf of the unborn
child, the same was extinguished by its
pre-natal death, since no transmission to
anyone can take place from on that lacked
juridical personality (or juridical capacity
as distinguished from capacity to act). It
is no answer to invoke the provisional
personality of a conceived child
(conceptus pro nato habetur) under
Article 40 of the Civil Code, because that
same article expressly limits such
provisional personality by imposing the
condition that the child should be
subsequently born alive: "provided it be

born later with the condition specified in

the following article". In the present case,
there is no dispute that the child was dead
when separated from its mother's womb.
The prevailing American jurisprudence is
to the same effect; and it is generally held
that recovery can not had for the death of
an unborn child (Stafford vs. Roadway
Transit Co., 70 F. Supp. 555; Dietrich vs.
Northampton, 52 Am. Rep. 242; and
numerous cases collated in the editorial
note, 10 ALR, (2d) 639).
This is not to say that the parents are not
entitled to collect any damages at all. But
such damages must be those inflicted
directly upon them, as distinguished from
the injury or violation of the rights of the
deceased, his right to life and physical
integrity. Because the parents can not
expect either help, support or services
from an unborn child, they would
normally be limited to moral damages for
the illegal arrest of the normal
development of the spes hominis that was
the foetus, i.e., on account of distress and
anguish attendant to its loss, and the
disappointment of their parental
expectations (Civ. Code Art. 2217), as
well as to exemplary damages, if the
circumstances should warrant them (Art.
2230). But in the case before us, both the
trial court and the Court of Appeals have
not found any basis for an award of moral
damages, evidently because the appellee's
indifference to the previous abortions of
his wife, also caused by the appellant
herein, clearly indicates that he was
unconcerned with the frustration of his
parental hopes and affections. The lower
court expressly found, and the majority
opinion of the Court of Appeals did not
contradict it, that the appellee was aware

of the second abortion; and the

probabilities are that he was likewise
aware of the first. Yet despite the
suspicious repetition of the event, he
appeared to have taken no steps to
investigate or pinpoint the causes thereof,
and secure the punishment of the
responsible practitioner. Even after
learning of the third abortion, the appellee
does not seem to have taken interest in
the administrative and criminal cases
against the appellant. His only concern
appears to have been directed at obtaining
from the doctor a large money payment,
since he sued for P50,000.00 damages
and P3,000.00 attorney's fees, an
"indemnity" claim that, under the
circumstances of record, was clearly
exaggerated.

reprehensible act, that can not be too

severely condemned; and the consent of
the woman or that of her husband does
not excuse it. But the immorality or
illegality of the act does not justify an
award of damage that, under the
circumstances on record, have no factual
or legal basis.

CORPORATIONSOLIDARITY OF
UNIONS IN THE
PHILIPPINES FOR
EMPOWERMENT
AND REFORMS
(NMCSC-SUPER),

The decision appealed from is reversed,

and the complaint ordered dismissed.
Without costs.

pondents.

The dissenting Justices of the Court of

Appeals have aptly remarked that:

CONTINENTAL
STEEL
MANUFACTURIN
G CORPORATION,

It seems to us that the normal reaction of

a husband who righteously feels outraged
by the abortion which his wife has
deliberately sought at the hands of a
physician would be highminded rather
than mercenary; and that his primary
concern would be to see to it that the
medical profession was purged of an
unworthy member rather than turn his
wife's indiscretion to personal profit, and
with that idea in mind to press either the
administrative or the criminal cases he
had filed, or both, instead of abandoning
them in favor of a civil action for
damages of which not only he, but also
his wife, would be the beneficiaries.
It is unquestionable that the appellant's
act in provoking the abortion of appellee's
wife, without medical necessity to
warrant it, was a criminal and morally

, and
PERALTA,
JJ.

Res

Let a copy of this decision be furnished to

the Department of Justice and the Board
of Medical Examiners for their
information and such investigation and
action against the appellee Antonio Geluz
as the facts may warrant.
G.R. No.
182836

October 13,
2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Petit
ioner,
Present:

DECISION

- versus CARPIO, J.
,
HON.
ACCREDITED
VOLUNTARY
ARBITRATOR
ALLAN S.
MONTAO and
NAGKAKAISANG
MANGGAGAWA
NG CENTRO
STEEL

Chairpe
rson,
CHICONAZARIO,

Promulgate
d:

Before Us is a Petition for Review

on Certiorari, under Rule 45 of the Rules
of Court, assailing the Decision[1] dated
27 February 2008 and the
Resolution[2] dated 9 May 2008 of the
Court of Appeals in CA-G.R. SP No.
101697, affirming the Resolution[3] dated
20 November 2007 of respondent
Accredited Voluntary Arbitrator Atty.
Allan S. Montao (Montao) granting
bereavement leave and other death
benefits to Rolando P. Hortillano
(Hortillano), grounded on the death of his
unborn child.

The antecedent facts of the case are as

follows:

Hortillano, an employee of petitioner

Continental Steel Manufacturing
Corporation (Continental Steel) and a
member of respondent Nagkakaisang
Manggagawa ng Centro Steel
Corporation-Solidarity of Trade Unions
in the Philippines for Empowerment and
Reforms (Union) filed on 9 January 2006,
a claim for Paternity Leave, Bereavement
Leave and Death and Accident Insurance
for dependent, pursuant to the Collective
Bargaining Agreement (CBA) concluded
between Continental and the Union,
which reads:

CHICO-NAZARIO, J.:
ARTICLE X: LEAVE OF ABSENCE

VELASCO,
JR.,
NACHURA

xxxx

Section 2. BEREAVEMENT LEAVE

The Company agrees to grant a
bereavement leave with pay to any
employee in case of death of the
employees legitimate dependent
(parents, spouse, children, brothers and
sisters) based on the following:

4.3 DEPENDENTSEleven Thousand

Five Hundred Fifty Pesos (Php11,550.00)
in case of death of the employees
legitimate dependents (parents, spouse,
and children). In case the employee is
single, this benefit covers the legitimate
parents, brothers and sisters only with
proper legal document to be presented
(e.g. death certificate).[4]

Conciliation and Mediation Board

(NCMB) of the Department of Labor and
Employment (DOLE), National Capital
Region (NCR).[9] In a Submission
Agreement dated 9 October 2006,
the Union and Continental Steel
submitted for voluntary arbitration the
sole issue of whether Hortillano was
entitled to bereavement leave and other
death benefits pursuant to Article X,
Section 2

2.1 Within Metro Manila up to Marilao,

Bulacan - 7 days

2.2 Provincial/Outside Metro Manila - 11

days

xxxx

The claim was based on the death of

Hortillanos unborn child. Hortillanos
wife, Marife V. Hortillano, had a
premature delivery on 5 January
2006 while she was in the 38th week of
pregnancy.[5] According to the Certificate
of Fetal Death dated 7 January 2006, the
female fetus died during labor due to fetal
Anoxia secondary to uteroplacental
insufficiency.[6]

ARTICLE XVIII: OTHER BENEFITS

xxxx

Section 4. DEATH AND ACCIDENT

INSURANCEThe Company shall grant
death and accidental insurance to the
employee or his family in the following
manner:

xxxx

Continental Steel immediately granted

Hortillanos claim for paternity leave but
denied his claims for bereavement leave
and other death benefits, consisting of the
death and accident insurance.[7]

Seeking the reversal of the denial by

Continental Steel of Hortillanos claims
for bereavement and other death benefits,
the Union resorted to the grievance
machinery provided in the CBA. Despite
the series of conferences held, the parties
still failed to settle their
dispute,[8] prompting the Union to file a
Notice to Arbitrate before the National

and Article XVIII, Section 4.3 of the

CBA.[10] The parties mutually chose
Atty. Montao, an Accredited Voluntary
Arbitrator, to resolve said issue.[11]

When the preliminary conferences again

proved futile in amicably settling the
dispute, the parties proceeded to submit
their respective Position
Papers, [12] Replies,[13] and
Rejoinders[14] to Atty. Montao.

The Union argued that Hortillano was

entitled to bereavement leave and other
death benefits pursuant to the CBA. The
Union maintained that Article X, Section
2 and Article XVIII, Section 4.3 of the
CBA did not specifically state that
thedependent should have first been born
alive or must have acquired juridical
personality so that his/her subsequent
death could be covered by the CBA death
benefits. The Union cited cases wherein
employees of MKK Steel Corporation

(MKK Steel) and Mayer Steel Pipe

Corporation (Mayer Steel), sister
companies of Continental Steel, in similar
situations as Hortillano were able to
receive death benefits under similar
provisions of their CBAs.

The Union mentioned in particular the

case of Steve L. Dugan (Dugan), an
employee of Mayer Steel, whose wife
also prematurely delivered a fetus, which
had already died prior to the
delivery. Dugan was able to receive
paternity leave, bereavement leave, and
voluntary contribution under the CBA
between his union and Mayer
Steel.[15] Dugans child was only 24
weeks in the womb and died before labor,
as opposed to Hortillanos child who was
already 37-38 weeks in the womb and
only died during labor.

The Union called attention to the fact that

MKK Steel and Mayer Steel are located
in the same compound as Continental
Steel; and the representatives of MKK
Steel and Mayer Steel who signed the
CBA with their respective employees
unions were the same as the
representatives of Continental Steel who
signed the existing CBA with the Union.

Finally, the Union invoked Article 1702

of the Civil Code, which provides that all
doubts in labor legislations and labor
contracts shall be construed in favor of
the safety of and decent living for the
laborer.

On the other hand, Continental Steel

posited that the express provision of the
CBA did not contemplate the death of an
unborn child, a fetus, without legal
personality. It claimed that there are two
elements for the entitlement to the
benefits, namely: (1) death and (2) status
as legitimate dependent, none of which
existed in Hortillanos case. Continental
Steel, relying on Articles 40, 41 and
42[16] of the Civil Code, contended that
only one with civil personality could
die. Hence, the unborn child never died
because it never acquired juridical
personality. Proceeding from the same
line of thought, Continental Steel
reasoned that a fetus that was dead from
the moment of delivery was not a person
at all. Hence, the term dependent could
not be applied to a fetus that never
acquired juridical personality. A fetus
that was delivered dead could not be
considered a dependent, since it never
needed any support, nor did it ever
acquire the right to be supported.

Continental Steel maintained that the

wording of the CBA was clear and
unambiguous. Since neither of the parties
qualified the terms used in the CBA, the
legally accepted definitions thereof were
deemed automatically accepted by both
parties. The failure of the Union to
have unborn child included in the
definition of dependent, as used in the
CBA the death of whom would have
qualified the parent-employee for
bereavement leave and other death
benefits bound the Union to the legally
accepted definition of the latter term.

Continental Steel, lastly, averred that

similar cases involving the employees of
its sister companies, MKK Steel and
Mayer Steel, referred to by the Union,
were irrelevant and incompetent
evidence, given the separate and distinct
personalities of the companies. Neither
could the Union sustain its claim that the
grant of bereavement leave and other
death benefits to the parent-employee for
the loss of an unborn child constituted
company practice.

On 20 November 2007, Atty. Montao,

the appointed Accredited Voluntary
Arbitrator, issued a Resolution[17] ruling
that Hortillano was entitled to
bereavement leave with pay and death
benefits.

Atty. Montao identified the elements for

entitlement to said benefits, thus:

This Office declares that for the

entitlement of the benefit of bereavement
leave with pay by the covered employees
as provided under Article X, Section 2 of
the parties CBA, three (3) indispensable
elements must be present: (1) there is
death; (2) such death must be of
employees dependent; and (3) such
dependent must be legitimate.

On the otherhand, for the entitlement to

benefit for death and accident insurance
as provided under Article XVIII, Section
4, paragraph (4.3) of the parties CBA,
four (4) indispensable elements must be
present: (a) there is death; (b) such
death must be of employees
dependent; (c) such dependent must be
legitimate; and (d) proper legal
document to be presented.[18]

Atty. Montao found that there was no

dispute that the death of an employees
legitimate dependent occurred. The fetus
had the right to be supported by the
parents from the very moment he/she was
conceived. The fetus had to rely on
another for support; he/she could not
have existed or sustained himself/herself
without the power or aid of someone else,
specifically, his/her mother. Therefore,
the fetus was already a dependent,
although he/she died during the labor or
delivery. There was also no question that
Hortillano and his wife were lawfully
married, making their dependent, unborn
child, legitimate.

In the end, Atty. Montao decreed:

WHEREFORE, premises considered, a

resolution is hereby rendered
ORDERING [herein petitioner
Continental Steel] to pay Rolando P.
Hortillano the amount of Four Thousand
Nine Hundred Thirty-Nine Pesos

(P4,939.00), representing his

bereavement leave pay and the amount of
Eleven Thousand Five Hundred Fifty
Pesos (P11,550.00) representing death
benefits, or a total amount of P16,489.00

The complaint against Manuel Sy,

however, is ORDERED DISMISSED for
lack of merit.

All other claims are DISMISSED for lack

of merit.

Further, parties are hereby ORDERED to

faithfully abide with the herein
dispositions.

Aggrieved, Continental Steel filed with

the Court of Appeals a Petition for
Review on Certiorari,[19] under Section 1,
Rule 43 of the Rules of Court, docketed
as CA-G.R. SP No. 101697.

Continental Steel claimed that Atty.

Montao erred in granting Hortillanos
claims for bereavement leave with pay
and other death benefits because
no death of an employees dependent had
occurred. The death of a fetus, at
whatever stage of pregnancy, was
excluded from the coverage of the CBA
since what was contemplated by the CBA

was the death of a legal person, and not

that of a fetus, which did not acquire any
juridical personality. Continental Steel
pointed out that its contention was
bolstered by the fact that the
term death was qualified by the
phrase legitimate dependent. It asserted
that the status of a child could only be
determined upon said childs birth,
otherwise, no such appellation can be
had. Hence, the conditions sine qua
non for Hortillanos entitlement to
bereavement leave and other death
benefits under the CBA were lacking.

The Court of Appeals, in its Decision

dated 27 February 2008, affirmed Atty.
Montaos Resolution dated 20
November 2007. The appellate court
interpreted death to mean as follows:

whom the dead fetus stands in a

legitimate relation. [Continental Steel]
has proposed a narrow and technical
significance to the term death of a
legitimate dependent as condition for
granting bereavement leave and death
benefits under the CBA. Following
[Continental Steels] theory, there can be
no experience of death to speak of. The
Court, however, does not share this view.
A dead fetus simply cannot be equated
with anything less than loss of human
life, especially for the expectant parents.
In this light, bereavement leave and death
benefits are meant to assuage the
employee and the latters immediate
family, extend to them solace and
support, rather than an act conferring
legal status or personality upon the
unborn child. [Continental Steels]
insistence that the certificate of fetal
death is for statistical purposes only sadly
misses this crucial point.[20]

With costs against [herein petitioner

Continental Steel].[21]

In a Resolution[22] dated 9 May 2008, the

Court of Appeals denied the Motion for
Reconsideration[23] of Continental Steel.

Hence, this Petition, in which

Continental Steel persistently argues that
the CBA is clear and unambiguous, so
that the literal and legal meaning
of death should be applied. Only one
with juridical personality can die and a
dead fetus never acquired a juridical
personality.

proper legal document to prove such

death, e.g., death certificate.

It is worthy to note that despite the

repeated assertion of Continental Steel
that the provisions of the CBA are clear
and unambiguous, its fundamental
argument for denying Hortillanos claim
for bereavement leave and other death
benefits rests on the purportedly proper
interpretation of the terms death and
dependent as used in the CBA. If the
provisions of the CBA are indeed clear
and unambiguous, then there is no need
to resort to the interpretation or
construction of the same. Moreover,
Continental Steel itself admitted that
neither management nor the Union sought
to define the pertinent terms for
bereavement leave and other death
benefits during the negotiation of the
CBA.

We are not persuaded.

[Herein petitioner Continental Steels]

exposition on the legal sense in which the
term death is used in the CBA fails to
impress the Court, and the same is
irrelevant for ascertaining the purpose,
which the grant of bereavement leave and
death benefits thereunder, is intended to
serve. While there is no arguing with
[Continental Steel] that the acquisition of
civil personality of a child or fetus is
conditioned on being born alive upon
delivery, it does not follow that such
event of premature delivery of a fetus
could never be contemplated as a death
as to be covered by the CBA provision,
undoubtedly an event causing loss and
grief to the affected employee, with

Accordingly, the fallo of the 27

February 2008 Decision of the Court of
Appeals reads:

WHEREFORE, premises considered, the

present petition is hereby DENIED for
lack of merit. The assailed Resolution
dated November 20, 2007 of Accredited
Voluntary Arbitrator Atty. Allan S.
Montao is hereby AFFIRMED and
UPHELD.

As Atty. Montao identified, the

elements for bereavement leave under
Article X, Section 2 of the CBA are: (1)
death; (2) the death must be of a
dependent, i.e., parent, spouse, child,
brother, or sister, of an employee; and (3)
legitimate relations of the dependent to
the employee. The requisites for death
and accident insurance under
Article XVIII, Section 4(3) of the CBA
are: (1) death; (2) the death must be of a
dependent, who could be a parent,
spouse, or child of a married employee;
or a parent, brother, or sister of a single
employee; and (4) presentation of the

The reliance of Continental Steel on

Articles 40, 41 and 42 of the Civil Code
for the legal definition of death is
misplaced. Article 40 provides that a
conceived child acquires personality only
when it is born, and Article 41 defines
when a child is considered born. Article
42 plainly states that civil personality is
extinguished by death.

First, the issue of civil personality is not

relevant herein. Articles 40, 41 and 42 of
the Civil Code on natural persons, must
be applied in relation to Article 37 of the
same Code, the very first of the general

provisions on civil personality, which

reads:

Art. 37. Juridical capacity, which is the

fitness to be the subject of legal relations,
is inherent in every natural person and is
lost only through death. Capacity to act,
which is the power to do acts with legal
effect, is acquired and may be lost.

We need not establish civil personality of

the unborn child herein since his/her
juridical capacity and capacity to act as a
person are not in issue. It is not a
question before us whether the unborn
child acquired any rights or incurred any
obligations prior to his/her death that
were passed on to or assumed by the
childs parents. The rights to
bereavement leave and other death
benefits in the instant case pertain
directly to the parents of the unborn child
upon the latters death.

Second, Sections 40, 41 and 42 of the

Civil Code do not provide at all a
definition of death. Moreover, while the
Civil Code expressly provides that civil
personality may be extinguished by
death, it does not explicitly state that only
those who have acquired juridical
personality could die.

And third, death has been defined

as the cessation of life.[24] Life is not
synonymous with civil personality. One
need not acquire civil personality first
before he/she could die. Even a child
inside the womb already has life. No less
than the Constitution recognizes the life
of the unborn from conception,[25] that
the State must protect equally with the
life of the mother. If the unborn already
has life, then the cessation thereof even
prior to the child being delivered,
qualifies as death.

Likewise, the unborn child can be

considered a dependent under the
CBA. As Continental Steel itself defines,
a dependent is one who relies on another
for support; one not able to exist or
sustain oneself without the power or aid
of someone else. Under said general
definition,[26] even an unborn child is
a dependent of its parents. Hortillanos
child could not have reached 38-39 weeks
of its gestational life without depending
upon its mother, Hortillanos wife, for
sustenance. Additionally, it is explicit in
the CBA provisions in question that
the dependent may be the parent, spouse,
or child of a married employee; or the
parent, brother, or sister of a single
employee. The CBA did not provide a
qualification for the child dependent,
such that the child must have been born
or must have acquired civil personality,
as Continental Steel avers. Without such
qualification, then child shall be
understood in its more general sense,
which includes the unborn fetus in the
mothers womb.

The term legitimate merely addresses the

dependent childs status in relation to
his/her parents. In Angeles v.
Maglaya,[27] we have expounded on who
is a legitimate child, viz:

A legitimate child is a product of, and,

therefore, implies a valid and lawful
marriage. Remove the element of lawful
union and there is strictly no legitimate
filiation between parents and child.
Article 164 of the Family Code cannot be
more emphatic on the matter:
Children conceived or born during the
marriage of the parents are legitimate.
(Emphasis ours.)

Conversely, in Briones v. Miguel,[28] we

identified an illegitimate child to be as
follows:

The fine distinctions among the various

types of illegitimate children have been
eliminated in the Family Code. Now,
there are only two classes of children -legitimate (and those who, like the legally
adopted, have the rights of legitimate
children) and illegitimate. All
children conceived and born outside a
valid marriage are illegitimate, unless the
law itself gives them legitimate status.
(Emphasis ours.)

It is apparent that according to the Family

Code and the afore-cited jurisprudence,
the legitimacy or illegitimacy of a child
attaches upon his/her conception. In the
present case, it was not disputed that
Hortillano and his wife were validly
married and that their child was
conceived during said marriage, hence,
making said child legitimate upon her
conception.

Also incontestable is the fact that

Hortillano was able to comply with the
fourth element entitling him to death and
accident insurance under the CBA, i.e.,
presentation of the death certificate of his
unborn child.

Given the existence of all the

requisites for bereavement leave and
other death benefits under the CBA,
Hortillanos claims for the same should
have been granted by Continental Steel.

We emphasize that bereavement

leave and other death benefits are granted
to an employee to give aid to, and if
possible, lessen the grief of, the said
employee and his family who suffered the
loss of a loved one. It cannot be said that
the parents grief and sense of loss arising
from the death of their unborn child, who,
in this case, had a gestational life of 3839 weeks but died during delivery, is any
less than that of parents whose child was
born alive but died subsequently.

Being for the benefit of the

employee, CBA provisions on
bereavement leave and other death
benefits should be interpreted liberally to
give life to the intentions thereof. Time
and again, the Labor Code is specific in
enunciating that in case of doubt in the
interpretation of any law or provision
affecting labor, such should be
interpreted in favor of labor.[29] In the
same way, the CBA and CBA provisions
should be interpreted in favor of
labor. In Marcopper Mining v. National
Labor Relations Commission,[30] we
pronounced:

When conflicting interests of labor and

capital are to be weighed on the scales of
social justice, the heavier influence of the
latter should be counter-balanced by
sympathy and compassion the law must
accord the underprivileged worker.

In Philippine Telegraph & Telephone

Corporation v. NLRC [183 SCRA 451
(1990)], we categorically stated that:

SO ORDERED.

G.R. No. L-5426

May 29, 1953

RAMON JOAQUIN, petitioner,

vs.
ANTONIO C. NAVARRO, respondent.
Likewise, in Terminal Facilities and
Services Corporation v. NLRC [199
SCRA 265 (1991)], we declared:

Agrava, Peralta & Agrava for petitioner.

Leonardo Abola for respondent.
TUASON, J.:

Any doubt concerning the rights of labor

should be resolved in its favor pursuant to
the social justice policy.
Finally, petitioner misinterprets the
declaration of the Labor Arbiter in the
assailed decision that "when the
pendulum of judgment swings to and fro
and the forces are equal on both sides, the
same must be stilled in favor of labor."
While petitioner acknowledges that all
doubts in the interpretation of the Labor
Code shall be resolved in favor of labor,
it insists that what is involved-here is the
amended CBA which is essentially a
contract between private persons. What
petitioner has lost sight of is the avowed
policy of the State, enshrined in our
Constitution, to accord utmost protection
and justice to labor, a policy, we are,
likewise, sworn to uphold.

Angela Joaquin de Navarro and Joaquin

Navarro, Jr., the latter was declared to
have survived his mother.

IN VIEW WHEREOF, the Petition

is DENIED. The Decision dated 27
February 2008 and Resolution dated 9
May 2008 of the Court of Appeals in CAG.R. SP No. 101697, affirming the
Resolution dated 20 November 2007 of
Accredited Voluntary Arbitrator Atty.
Allan S. Montao, which granted to
Rolando P. Hortillano bereavement leave
pay and other death benefits in the
amounts of Four Thousand Nine Hundred
Thirty-Nine Pesos (P4,939.00) and
Eleven Thousand Five Hundred Fifty
Pesos (P11,550.00), respectively,
grounded on the death of his unborn
child, are AFFIRMED. Costs against
Continental Steel Manufacturing
Corporation.

This three proceedings was instituted in

the Court of First Instance of Manila in
the summary settlement of states of
Joaquin Navarro, Sr., his wife Angela
Joaquin de Navarro, Joaquin Navarro, Jr.,
and Pilar Navarro, deceased. All of them
having been heard jointly, Judge Rafael
Amparo handed down a single decision
which was appealed to the Court of
Appeals, whose decision, modifying that
the Court of First Instance, in turn was
elevated to the Supreme Court for review.
The main question represented in the first
two courts related to the sequence of the
deaths of Joaquin Navarro, Sr., his wife,
and their children, all of whom were
killed in the massacre of civilians by
Japanese troops in Manila in February
1945. The trial court found the deaths of
this persons to have accurred in this
order: 1st. The Navarro girls, named
Pilar, Concepcion and Natividad; 2nd.
Joaquin Navarro, Jr.; 3rd. Angela Joaquin
de Navarro, and 4th, Joaquin Navarro, Sr.
The Court of Appeals concurred with the
trial court except that, with regard to

It is this modification of the lower court's

finding which is now being contested by
the petitioner. The importance of the
question whether Angela Joaquin de
Navarro died before Joaquin Navarro, Jr.,
or vice versa, lies in the fact that it
radically affects the rights of succession
of Ramon Joaquin, the present petitioner
who was an acknowledged natural child
of Angela Joaquin and adopted child of
the deceased spouses, and Antonio C.
Navarro, respondent, son of Joaquin
Navarro, Sr. by first marriage.
The facts, which is not disputed, are
outlined in the statement in the decision
of the Court of Appeals as follows:
"On February 6, 1945, while the battle for
the liberation of Manila was raging, the
spouses Joaquin Navarro, Sr. and Angela
Joaquin, together with their three
daughters, Pilar, Concepcion, and
Natividad, and their son Joaquin Navarro,
Jr., and the latter's wife, Adela Conde,
sought refuge in the ground floor of the
building known as the German Club, at
the corner of San Marcelino and San Luis
Streets of this City. During their stay, the
building was packed with refugees, shells
were exploding around, and the Club was
set on fire. Simultaneously, the Japanese
started shooting at the people inside the
building, especially those who were
trying to escape. The three daughters
were hit and fell of the ground near the
entrance; and Joaquin Navarro, Sr., and
his son decided to abandon the premises
to seek a safer heaven. They could not
convince Angela Joaquin who refused to

join them; and son Joaquin Navarro, Sr.,

his son, Joaquin Navarro, Jr., and the
latter's wife, Angela Conde, and a friend
and former neighbor, Francisco Lopez,
dashed out of the burning edifice. As they
came out, Joaquin Navarro, Jr. was shot
in the head by a Japanese soldier and
immediately dropped. The others lay flat
on the ground in front of the Club
premises to avoid the bullets. Minutes
later, the German Club, already on fire,
collapsed, trapping many people inside,
presumably including Angela Joaquin.
"Joaquin Navarro, Sr., Mrs. Joaquin
Navarro, Jr., and Francisco Lopez
managed to reach an air raid shelter
nearby, the stayed there about three days,
until February 10, 1915, when they were
forced to leave the shelter be- cause the
shelling tore it open. They flied toward
the St. Theresa Academy in San
Marcelino Street, but unfortunately met
Japanese Patrols, who fired at the
refugees, killing Joaquin Navarro, Sr.,
and his daughter-in-law.
"At the time of the masaccre, Joaquin
Navarro, Sr. was aged 70; his wife
Angela Joaquin was about 67 years old;
Joaquin Navarro, Jr., about 30; Pilar
Navarro was two or three years older than
her brother; while the other sisters,
Concepcion and Natividad Navarro y
Joaquin, were between 23 and 25."
The Court of Appeals' finding were all
taken from the testimony of Francisco
Lopez, who miraculously survived the
holocaust, and upon them the Court of
Appeals opined that, "as between the
mother Angela Joaquin and the son
Joaquin Navarro, Jr., the evidence of the
survivorship is uncertain and insufficient"

and the statutory presumption must be

applied. The appellate Court's reasoning
for its conclusion is thus stated:
"It does not require argument to show
that survivorship cannot be established by
proof of the death of only one of the
parties; but that there must be adequate
proof that one was alive when the other
had already died. Now in this case before
us, the testimony of the sole witness
Lopez is to the effect that Joaquin
Navarro, Jr. was shot and died shortly
after the living the German Club in the
company of his father and the witness,
and that the burning edified entirely
collapsed minutes after the shooting of
the son; but there is not a scintilla of
evidence, direct or circumstantial, from
which we may infer the condition of the
mother, Angela Joaquin, during the
appreciable interval from the instant his
son turned his back to her, to dash out to
the Club, until he died. All we can glean
from the evidence is that Angela Joaquin
was unhurt when her son left her to
escape from the German Club; but she
could have died almost immediately after,
from a variety of causes. She might have
been shot by the Japanese, like her
daughters, killed by falling beams from
the burning edifice, overcome by the
fumes, or fatally struck by splinters from
the exploding shells. We cannot say for
certain. No evidence is available on the
point. All we can decide is that no one
saw her alive after her son left her aside,
and that there is no proof when she died.
Clearly, this circumstance alone cannot
support a finding that she died latter than
her son, and we are thus compelled to fall
back upon the statutory presumption. In
deed, it could be said that the purpose of
the presumption of survivorship would be

precisely to afford a solution to

uncertainties like these. Hence the son
Joaquin Navarro, Jr. aged 30, must be
deemed to have survived his mother,
Angela Joaquin, who was admittedly
above 60 years of age (Rule 123, sec. 69,
subsec. (ii), Rules of Court).

article 43 of the New Civil Code. It is the

contention of the petitioner that it did not,
and that on the assumption that there is
total lack of evidence, as the Court of
Appeals said, then Angela Joaquin and
Joaquin Navarro, Jr. should, under article
33, be held to have died at the same time.

"The total lack of evidence on how

Angela Joaquin died likewise disposes of
the question whether she and her
deceased children perished in the same
calamity. There being no evidence to the
contrary, the only guide is the occasion of
the deaths, which is identical for all of
them; that battle for the liberation of
Manila. A second reason is that the law,
in declaring that those fallen in the same
battle are to be regarded as perishing in
the same calamity, could not overlooked
that a variety of cause of death can ( and
usually do) operate in the source of
combats. During the same battle, some
may die from wounds, other from gages,
fire, or drowning. It is clear that the law
disregards episodic details, and treats the
battle as an overall cause of death in
applying the presumption of survivorship.

The point is not of much if any relevancy

and will be left open for the consideration
when obsolute necessity there for arises.
We say irrelevant because our opinion is
that neither of the two provisions is
applicable for the reasons to be presently
set forth.

"We are thus led the conclusion that the

order in which the members of the
Navarro-Joaquin family met their end is
as follows: first, the three daughters Pilar,
Concepcion, and Natividad; then the
mother Angela Joaquin; then the son
Joaquin Navarro, Jr., and days later (of
which there is no doubt), the father
Joaquin Navarro, Sr."

xxx

Much space in the briefs is taken in a

discussion of whether section 334(37) of
Act No. 129, now section 69 (ii) of Rule
123 of the Rules of Court, has repealed
article 33 of the civil code of 1889, now

Rule 123, section 69 (ii) of the Revised

Rules of Court, reads:
When two person perish in the same
calamity, such as wreck, battle or
conflagration, and it is not (1) shown who
died first, and there are no (2) particular
circumstances from when it can be
inferred, the survivorship is presumed
from the probabilities resulting from the
strength and ages of the sexes, according
to the following rules:
xxx

xxx

Article 33 of the Civil Code of 1889 of

the following tenor:
Whenever a doubt arises as to which was
the first to die to the two or more persons
who would inherent one from the other,
the persons who alleges the prior death of
either must prove the allegation; in the
absence of proof the presumption shall be
that they died at the same time, and no
transmission of rights from one to the
other shall take place.

Most provisions, as their language plainly

implies, are intended as a substitute for
lacks and so are not to be available when
there are facts. With particular reference
to section 69 (ii) of Rule 123, "the
situation which it present is one in which
the facts are not only unknown but
unknowable. By hypothesis, there is no
specific evidence as to the time of death .
. . ." . . . it is assumed that no evidence
can be produced. . . . Since the facts are
unknown and unknowable, the law may
apply the law of fairness appropriate to
the different legal situation that arises."
(IX Wigmore on Evidence, 1940 ed.,
483.)
In In re Wallace's Estate, 220 Pac. 683,
which the Court of Appeals cited the
applied with the respect to the deaths of
the Navarro girls, pointing out that "our
rule is taken from the Fourth Division of
sec. 1936 of the California Code of Civil
Procedure," the Supreme Court of
California said:
When the statue speaks of "particular
circumstances from which it can be
inferred" that one died before the other it
means that there are circumstances from
which the fact of death by one before the
other may be inferred as a relation
conclusion from the facts proven. The
statue does not mean circumstances
which would shown, or which would tend
to show, probably that one died before
the other. Grand Lodge A.O.W.W.vs.
Miller, 8 Cal. App. 28, 96 Pac. 22. When
by circumstantial evidence alone, a party
seeks to prove a survivorship contrary to
the statutory presumption, the
circumstances by which it is sought to
prove the survivorship must be such as
are competent and sufficient when tested

by the general rules of evidence in civil

cases. The inference of survivorship
cannot rest upon mere surmise,
speculation, or conjecture. As was said in
Grand Lodge vs. Miller, supra, "if the
matter is left to probably, then the statue
of the presumption."
It is manifest from the language of
section 69 (ii) of Rule 123 and of that of
the foregoing decision that the evidence
of the survivorship need not be direct; it
may be indirect, circumstantial, or
inferential. Where there are facts, known
or knowable, from which a rational
conclusion can be made, the presumption
does not step in, and the rule of
preponderance of evidence controls.
Are there particular circumstances on
record from which reasonable inference
of survivorship between Angela Joaquin
and her son can be drawn? Is Francisco
Lopez' testimony competent and
sufficient for this purpose? For a better
appreciation of this issue, it is convenient
and necessary to detail the testimony,
which was described by the trial court as
"disinterested and trustworthy" and by the
Court of Appeals as "entitled to
credence."
Lopez testified:
Q. You said you were also heat at that
time as you leave the German Club with
Joaquin Navarro, Sr., Joaquin Navarro,
Jr. and the latter's wife?- A. Yes, sir.
Q. Did you fall? A. I fell down.
Q. And you said you fell down close to
Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed

where were you? A. We were out 15
meters away from the building but I could
see what was going on.

but when the building collapsed over her

I saw and I am positive and I did not see
her come out of that building so I
presumed she died there.

xxx

xxx

xxx

xxx

xxx

xxx

Q. Could there have been an interval of

fifteen minutes between the two events,
that is the shooting of Joaquin Navarro,
Jr. and the collapse of the German Club?
A. Yes, sir, I could not say exactly,
Occasions like that, you know, you are
confused.

Q. Why did you have to dash out of the

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

Q. Could there (have) been an interval of

an hour instead of fifteen minutes? A.
Possible, but not probable.

xxx

Q. Could it have been 40 minutes? A.

Yes, sir, about 40 minutes.
xxx

xxx

xxx

xxx

Q. You mean to say that before you

jumped out of the German Club all the
Navarro girls, Pilar, Concepcion, and
Natividad, were already wounded? A.
to my knowledge, yes.

xxx
Q. They were wounded? A. Yes, sir.

Q. You also know that Angela Joaquin is

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

xxx

xxx

Q. From your testimony it would appear

that while you can give positive evidence
to the fact that Pilar, Concepcion and
Natividad Navarro, and Joaquin Navarro,
Jr. died, you can not give the same
positive evidence to the fact that Angela
Joaquin also died? A. Yes, sir, in the
sense that I did not see her actually die,

Q. Were they lying on the ground or not?

A. On the ground near the entrance,
because most of the people who were
shot by the Japanese were those who
were trying to escape, and as far as I can
remember they were among those killed.
xxx

xxx

xxx

Q. So you noticed that they were killed or

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

xxx

xxx

Q. And none of them was not except the

girls, is that what you mean? A . There
were many people shot because they were
trying to escape.
xxx

xxx

xxx

Q. How come that these girls were shot

when they were inside the building, can
you explain that? A. They were trying
to escape probably.
It is our opinion that the preceding
testimony contains facts quite adequate to
solve the problem of survivorship
between Angela Joaquin and Joaquin
Navarro, Jr. and keep the statutory
presumption out of the case. It is believed
that in the light of the conditions painted
by Lopez, a fair and reasonable inference
can be arrived at, namely: that Joaquin
Navarro, Jr. died before his mother.
While the possibility that the mother died
before the son can not be ruled out, it
must be noted that this possibility is
entirely speculative and must yield to the
more rational deduction from proven
facts that it was the other way around.
Joaquin Navarro, Jr., it will be recalled,
was killed, while running, in front of, and
15 meters from, the German Club. Still in
the prime of life, 30, he must have
negotiated that distance in five seconds or
less, and so died within that interval from
the time he dashed out of the building.
Now, when Joaquin Navarro, Jr. with his
father and wife started to flee from the
clubhouse, the old lady was alive and
unhurt, so much so that the Navarro
father and son tried hard to have her
come along. She could have perished
within those five or fewer seconds, as
stated, but the probabilities that she did

seem very remote. True, people in the

building were also killed but these,
according to Lopez, were mostly refugees
who had tried to slip away from it and
were shot by Japanese troops. It was not
very likely that Mrs. Joaquin Navarro, Sr.
made an attempt to escape. She even
made frantic efforts to dissuade her
husband and son from leaving the place
and exposing themselves to gun fire.
This determination of Mrs. Angela
Joaquin to stay where she was may well
give an idea, at the same time, of a
condition of relative safety in the
clubhouse at the moment her husband,
son, and daughter-in-law left her. It
strongly tends to prove that, as the
situation looked to her, the perils of death
from staying were not so imminent. And
it lends credence to Mr. Lopez' statement
that the collapse of the clubhouse
occurred about 40 minutes after Joaquin
Navarro the son was shot in the head and
dropped dead, and that it was the collapse
that killed Mrs. Angela Navarro. The
Court of Appeals said the interval
between Joaquin Navarro's death and the
breaking down of the edifice was
"minutes". Even so, it was much longer
than five seconds, long enough to warrant
the inference that Mrs. Angela Joaquin
was sill alive when her son expired
The Court of Appeals mentioned several
causes, besides the collapse of the
building, by which Mrs. Navarro could
have been killed. All these are speculative
, and the probabilities, in the light of the
known facts, are against them. Dreading
Japanese sharpshooters outside as
evidenced by her refusal to follow the
only remaining living members of her
family, she could not have kept away

form protective walls. Besides, the

building had been set on fire trap the
refugees inside, and there was no
necessity for the Japanese to was their
ammunition except upon those who tried
to leave the premises. Nor was Angela
Joaquin likely to have been killed by
falling beams because the building was
made of concrete and its collapse, more
likely than not, was sudden. As to fumes,
these do not cause instantaneous death;
certainly not within the brief space of five
seconds between her son's departure and
his death.
It will be said that all this is indulging in
inferences that are not conclusive.
Section 69(ii) of Rule 123 does not
require that the inference necessary to
exclude the presumption therein provided
be certain. It is the "particular
circumstances from which it
(survivorship) can be inferred" that are
required to be certain as tested by the
rules of evidence. In speaking of
inference the rule can not mean beyond
doubt, for "inference is never certainty,
but if may be plain enough to justify a
finding of fact." (In re Bohenko's Estate,
4 N.Y.S. 2nd. 427, citing Tortora vs. State
of New York, 269 N.Y. 199 N.E. 44;
Hart vs. Hudson River Bridge Co., 80
N.Y.). 622.) As the California courts have
said, it is enough that "the circumstances
by which it is sought to prove the
survivorship must be such as are
competent and sufficient when tested by
the general rules of evidence in civil
cases." (In re Wallace's Estate,supra.)
"Juries must often reason," says one
author, "according
to probabilities, drawing an inference that
the main fact in issue existed from
collateral facts not directly proving, but

strongly tending to prove, its existence.

The vital question in such cases is the
cogency of the proof afforded by the
secondary facts. How likely, according to
experience, is the existence of the
primary fact if certain secondary facts
exist?" (1 Moore on Facts, Sec. 596.) The
same author tells us of a case where "a
jury was justified in drawing the
inference that the person who was caught
firing a shot at an animal trespassing on
his land was the person who fired a shot
about an hour before at the same animal
also trespassing." That conclusion was
not airtight, but rational. In fact, the
circumstances in the illustration leave
greater room for another possibility than
do the facts of the case at hand.
In conclusion the presumption that
Angela Joaquin de Navarro died before
her son is based purely on surmises,
speculations, or conjectures without any
sure foundation in the evidence. the
opposite theory that the mother
outlived her son is deduced from
established facts which, weighed by
common experience, engender the
inference as a very strong probability.
Gauged by the doctrine of preponderance
of evidence by, which civil cases are
decided, this inference ought to prevail. It
can not be defeated as in an instance,
cited by Lord Chief Justice Kenyon,
"bordering on the ridiculous, where in an
action on the game laws it was suggested
that the gun with which the defendant
fired was not charged with shot, but that
the bird might have died in consequence
of the fright." (1 Moore on Facts, 63,
citing Wilkinson vs. Payne, 4 T. R. 468.)
It is said that part of the decision of the
Court of Appeals which the appellant

impugns, and which has been discussed,

involves findings of fact which can not be
disturbed. The point is not, in our
judgment, well considered. The particular
circumstances from which the parties and
the Court of Appeals drew conclusions
are, as above seen, undisputed, and this
being the case, the correctness or
incorrectness of those conclusions raises
a question of law, not of fact, which the
Supreme Court has jurisdiction to look
into. As was said in 1 Moran
Commentaries on the Rules of ?Court,
3rd Ed. 856, 857, "Undisputed evidence
is one thing, and contradicted evidence is
another. An incredible witness does not
cease to be such because he is not
impeached or contradicted. But when the
evidence is purely documentary, the
authenticity of which is not questioned
and the only issue is the construction to
be placed thereon, or where a case is
submitted upon an agreement of facts, or
where all the facts are stated in the
judgment and the issue is the correctness
of the conclusions drawn therefrom, the
question is one of law which may be
reviewed by the Supreme Court."
The question of whether upon given facts
the operation of the statutory presumption
is to be invoked is a question of law.
The prohibition against intermeddling
with decisions on questions of evidence
refers to decisions supported by
substantial evidence. By substantial
evidence is meant real evidence or at least
evidence about which reasonable men
may disagree. Findings grounded entirely
on speculations, surmises, or conjectures
come within the exception to the general
rule.

We are constrained to reverse the

decision under review, and hold that the
distribution of the decedents' estates
should be made in accordance with the
decision of the trial court. This result
precludes the necessity of passing upon
the question of "reserva troncal" which
was put forward on the hypothetical
theory that Mrs. Joaquin Navarro's death
preceded that of her son. Without costs.