Taada vs.

Tuvera 136 SCRA 27 (April 24, 1985) 146 SCRA 446 (December
29, 1986)
TAADA
VS.
TUVERA
136

SCRA

27

(April

24,

1985)

FACTS:
Invoking the right of the people to be informed on matters of public concern as well
as the principle that laws to be valid and enforceable must be published in the
Official Gazette, petitioners filed for writ of mandamus to compel respondent public
officials to publish and/or cause to publish various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letters of
implementations
and
administrative
orders.
The Solicitor General, representing the respondents, moved for the dismissal of the
case, contending that petitioners have no legal personality to bring the instant
petition.
ISSUE:
Whether or not publication in the Official Gazette is required before any law or
statute
becomes
valid
and
enforceable.
HELD:
Art. 2 of the Civil Code does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. The
clear object of this 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 ignoratia legis nominem excusat. It would be the height of injustive to
punish or otherwise burden a citizen for the transgression of a law which he had no
notice
whatsoever,
not
even
a
constructive
one.
The very first clause of Section 1 of CA 638 reads: there shall be published in the
Official Gazette. The word shall therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the constitutional right of the people
to be informed on matter of public concern is to be given substance and validity.
The publication of presidential issuances of 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.
The Court declared that presidential issuances of general application which have not
been
published
have
no
force
and
effect.

TAADA
146

VS.
SCRA

446

(December

TUVERA
29,

1986)

FACTS:
This is a motion for reconsideration of the decision promulgated on April 24, 1985.
Respondent argued that while publication was necessary as a rule, it was not so
when it was otherwise as when the decrees themselves declared that they were to
become
effective
immediately
upon
their
approval.
ISSUES:
1. Whether or not a distinction be made between laws of general applicability and
laws
which
are
not
as
to
their
publication;
2. Whether or not a publication shall be made in publications of general circulation.
HELD:
The clause unless it is otherwise provided refers to the date of effectivity and not
to the requirement of publication itself, which cannot in any event be omitted. This
clause does not mean that the legislature may make the law effective immediately
upon approval, or in any other date, without its previous publication.
Laws should refer to all laws and not only to those of general application, for
strictly speaking, all laws relate to the people in general albeit there are some that
do not apply to them directly. A law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest eve if it
might be directly applicable only to one individual, or some of the people only, and
not
to
the
public
as
a
whole.
All statutes, including those of local application and private laws, shall be published
as a condition for their effectivity, which shall begin 15 days after publication unless
a
different
effectivity
date
is
fixed
by
the
legislature.
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
law.
Article 2 of the Civil Code provides that publication of laws must be made in the
Official Gazette, and not elsewhere, as a requirement for their effectivity. The
Supreme Court is not called upon to rule upon the wisdom of a law or to repeal or
modify
it
if
it
finds
it
impractical.
The publication must be made forthwith, or at least as soon as possible.
J.

Cruz:

Laws must come out in the open in the clear light of the sun instead of skulking in
the shadows with their dark, deep secrets. Mysterious pronouncements and
2

rumored rules cannot be recognized as binding unless their existence and contents
are confirmed by a valid publication intended to make full disclosure and give
proper notice to the people. The furtive law is like a scabbarded saber that cannot
faint, parry or cut unless the naked blade is drawn.
EN BANC
G.R. No. 170338

December 23, 2008

VIRGILIO
O.
GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION,
PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY,
INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND
ELECTORAL REFORMS, respondents.
x----------------------x
G.R. No. 179275

December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G.
BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S.
MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation
purportedly between the President of the Philippines and a high-ranking official of
the Commission on Elections (COMELEC) surfaced. They captured unprecedented
public attention and thrust the country into a controversy that placed the legitimacy
of the present administration on the line, and resulted in the near-collapse of the
3

Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes,
allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections.
These recordings were to become the subject of heated legislative hearings
conducted separately by committees of both Houses of Congress. 1
In the House of Representatives (House), on June 8, 2005, then Minority Floor
Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set
in motion a congressional investigation jointly conducted by the Committees on
Public Information, Public Order and Safety, National Defense and Security,
Information and Communications Technology, and Suffrage and Electoral Reforms
(respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of
Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of
former NBI Deputy Director Samuel Ong submitted to the respondent House
Committees seven alleged "original" tape recordings of the supposed three-hour
taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were
eventually played in the chambers of the House. 2
On August 3, 2005, the respondent House Committees decided to suspend the
hearings indefinitely. Nevertheless, they decided to prepare committee reports
based on the said recordings and the testimonies of the resource persons. 3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed
with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary
Restraining Order and/or Writ of Preliminary Injunction 4docketed as G.R. No. 170338.
He prayed that the respondent House Committees be restrained from using these
tape recordings of the "illegally obtained" wiretapped conversations in their
committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the
inquiry, and the respondent House Committees directed to desist from further using
the recordings in any of the House proceedings. 5
Without reaching its denouement, the House discussion and debates on the "Garci
tapes" abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the
slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness."
In his discourse, Senator Lacson promised to provide the public "the whole
unvarnished truth the whats, whens, wheres, whos and whys" of the alleged
wiretap, and sought an inquiry into the perceived willingness of telecommunications
providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to

the Senate Committee on National Defense and Security, chaired by Senator
Rodolfo Biazon, who had previously filed two bills 6 seeking to regulate the sale,
purchase and use of wiretapping equipment and to prohibit the Armed Forces of the
Philippines (AFP) from performing electoral duties. 7
In the Senates plenary session the following day, a lengthy debate ensued when
Senator Richard Gordon aired his concern on the possible transgression of Republic
Act (R.A.) No. 42008 if the body were to conduct a legislative inquiry on the matter.
On August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege
speech, articulating her considered view that the Constitution absolutely bans the
use, possession, replay or communication of the contents of the "Hello Garci" tapes.
However, she recommended a legislative investigation into the role of the
Intelligence Service of the AFP (ISAFP), the Philippine National Police or other
government entities in the alleged illegal wiretapping of public officials. 9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired
justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction,10 docketed as G.R. No. 179275, seeking to bar the Senate from
conducting its scheduled legislative inquiry. They argued in the main that the
intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its public
hearings on the "Hello Garci" tapes on September 7, 12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C.
Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S.
Madrigal and Antonio F. Trillanes filed their Comment 16on the petition on September
25, 2007.
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of
the resource persons summoned by the Senate to appear and testify at its hearings,
moved to intervene as petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and
179275.19
It may be noted that while both petitions involve the "Hello Garci" recordings, they
have different objectivesthe first is poised at preventing the playing of the tapes in
the House and their subsequent inclusion in the committee reports, and the second
5

seeks to prohibit and stop the conduct of the Senate inquiry on the wiretapped
conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R.
No. 179275.
-IBefore delving into the merits of the case, the Court shall first resolve the issue on
the parties standing, argued at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus
standi refers to a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury because of the challenged governmental act x
x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that
he has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly traceable
to the challenged action; and (3) the injury is likely to be redressed by a
favorable action.21
The gist of the question of standing is whether a party has "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions." 22
However, considering that locus standi is a mere procedural technicality, the Court,
in recent cases, has relaxed the stringent direct injury test. David v. MacapagalArroyo23 articulates that a "liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast
media, who failed to allege a personal stake in the outcome of the controversy, to
challenge the acts of the Secretary of Justice and the National Telecommunications
Commission. The majority, in the said case, echoed the current policy that "this
Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that greatly
impact on public interest, in keeping with the Courts duty under the 1987
Constitution to determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they have
not abused the discretion given to them." 26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition
by alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his
was publicly identified by the members of the respondent committees as one of the
voices in the recordings.27 Obviously, therefore, petitioner Garcillano stands to be
directly injured by the House committees actions and charges of electoral fraud.
The Court recognizes his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging
that they are concerned citizens, taxpayers, and members of the IBP. They are of
the firm conviction that any attempt to use the "Hello Garci" tapes will further divide
the country. They wish to see the legal and proper use of public funds that will
necessarily be defrayed in the ensuing public hearings. They are worried by the
continuous violation of the laws and individual rights, and the blatant attempt to
abuse constitutional processes through the conduct of legislative inquiries
purportedly in aid of legislation.28
Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his
rights therein through the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation, but also of the intended legislation which underpins
the investigation. He further intervenes as a taxpayer bewailing the useless and
wasteful expenditure of public funds involved in the conduct of the questioned
hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the
laws and that intervenor Sagge asserts his constitutional right to due process, 30 they
satisfy the requisite personal stake in the outcome of the controversy by merely
being citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we
find sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation
that the continuous conduct by the Senate of the questioned legislative inquiry will
necessarily involve the expenditure of public funds. 32 It should be noted that
inFrancisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been
injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably
invoked the vindication of their own rightsas taxpayers, members of Congress,
citizens, individually or in a class suit, and members of the bar and of the legal
professionwhich were also supposedly violated by the therein assailed
unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and
intervenor Sagge advance constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as precedents. The issues are
7

of transcendental and paramount importance not only to the public but also to the
Bench and the Bar, and should be resolved for the guidance of all. 34
Thus, in the exercise of its sound discretion and given the liberal attitude it has
shown in prior cases climaxing in the more recent case of Chavez, the Court
recognizes the legal standing of petitioners Ranada and Agcaoili and intervenor
Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being moot and academic.
Repeatedly stressed in our prior decisions is the principle that the exercise by this
Court of judicial power is limited to the determination and resolution of actual cases
and controversies.35 By actual cases, we mean existing conflicts appropriate or ripe
for judicial determination, not conjectural or anticipatory, for otherwise the decision
of the Court will amount to an advisory opinion. The power of judicial inquiry does
not extend to hypothetical questions because any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.36 Neither will the Court determine a moot question in a case in which no
practical relief can be granted. A case becomes moot when its purpose has become
stale.37 It is unnecessary to indulge in academic discussion of a case presenting a
moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced. 38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as
aforementioned, the issuance of an injunctive writ to prohibit the respondent House
Committees from playing the tape recordings and from including the same in their
committee report. He likewise prays that the said tapes be stricken off the records
of the House proceedings. But the Court notes that the recordings were already
played in the House and heard by its members. 39 There is also the widely publicized
fact that the committee reports on the "Hello Garci" inquiry were completed and
submitted to the House in plenary by the respondent committees. 40 Having been
overtaken by these events, the Garcillano petition has to be dismissed for being
moot and academic. After all, prohibition is a preventive remedy to restrain the
doing of an act about to be done, and not intended to provide a remedy for an act
already accomplished.41
- III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot
be allowed to continue with the conduct of the questioned legislative inquiry without
duly published rules of procedure, in clear derogation of the constitutional
requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate
or the House of Representatives, or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of
procedure." The requisite of publication of the rules is intended to satisfy the basic
requirements of due process. 42 Publication is indeed imperative, for it will be the
height of injustice to punish or otherwise burden a citizen for the transgression of a
law or rule of which he had no notice whatsoever, not even a constructive
one.43 What constitutes publication is set forth in Article 2 of the Civil Code, which
provides that "[l]aws shall take effect after 15 days following the completion of their
publication either in the Official Gazette, or in a newspaper of general circulation in
the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation had been published in newspapers of general circulation only in 1995
and in 2006.45 With respect to the present Senate of the 14 th Congress, however, of
which the term of half of its members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v.
Senate Committee on Accountability of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the Constitution,
requiring that the inquiry be in accordance with the "duly published rules
of procedure." We quote the OSGs explanation:
The phrase "duly published rules of procedure" requires the Senate of
every Congress to publish its rules of procedure governing inquiries in
aid of legislation because every Senate is distinct from the one before
it or after it. Since Senatorial elections are held every three (3) years
for one-half of the Senates membership, the composition of the
Senate also changes by the end of each term. Each Senate may thus
enact a different set of rules as it may deem fit. Not having
published its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore,
procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this
ruling with the following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing
legislative body. The present Senate has twenty-four members, twelve of
whom are elected every three years for a term of six years each. Thus, the
9

term of twelve Senators expires every three years, leaving less than a
majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to
"constitute a quorum to do business." Applying the same reasoning inArnault
v. Nazareno, the Senate under the 1987 Constitution is not a continuing body
because less than majority of the Senators continue into the next Congress.
The consequence is that the Rules of Proceduremust be republished by the
Senate after every expiry of the term of twelve Senators. 47
The subject was explained with greater lucidity in our Resolution48 (On the Motion
for Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to
issue a clarification. Certainly, there is no debate that the Senate as an
institution is "continuing," as it is not dissolved as an entity with each
national election or change in the composition of its members. However, in
the conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states:
RULE
UNFINISHED BUSINESS

XLIV

SEC. 123. Unfinished business at the end of the session shall be taken
up at the next session in the same status.
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e.,
unpassed bills and even legislative investigations, of the Senate of a
particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous
Congress) should not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even with respect
to the conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a matter of
course, continue into the next Congress with the same status.

10

This dichotomy of the continuity of the Senate as an institution and of the

opposite nature of the conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE
AMENDMENTS TO, OR REVISIONS OF, THE RULES

LI

SEC. 136. At the start of each session in which the Senators elected in
the preceding elections shall begin their term of office, the President
may endorse the Rules to the appropriate committee for amendment
or revision.
The Rules may also be amended by means of a motion which should
be presented at least one day before its consideration, and the vote of
the majority of the Senators present in the session shall be required for
its approval.
RULE
DATE OF TAKING EFFECT

LII

SEC. 137. These Rules shall take effect on the date of their adoption
and shall remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the
amendment or revision of the Rules at the start of each session in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended
or repealed. Such language is conspicuously absent from theRules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." The latter does not
explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two
sets of Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published
11

rules clearly state that the same shall be effective in subsequent Congresses
or until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative
inquiries to be effective even in the next Congress, it could have easily
adopted the same language it had used in its main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated
publication by arguing that the rules have never been amended since 1995 and,
despite that, they are published in booklet form available to anyone for free, and
accessible to the public at the Senates internet web page. 49
The Court does not agree. The absence of any amendment to the rules cannot
justify the Senates defiance of the clear and unambiguous language of Section 21,
Article VI of the Constitution. The organic law instructs, without more, that the
Senate or its committees may conduct inquiries in aid of legislation only in
accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The
constitutional mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.
Justice Carpios response to the same argument raised by the respondents is
illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in
pamphlet form available at the Senate, is not sufficient under the Taada v.
Tuvera ruling which requires publication either in the Official Gazette or in a
newspaper of general circulation. The Rules of Procedure even provide that
the rules "shall take effect seven (7) days after publication in two (2)
newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Taada is mandatory to comply with the due
process requirement because the Rules of Procedure put a persons liberty at
risk. A person who violates the Rules of Procedure could be arrested and
detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise
known as the Electronic Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document as the functional equivalent of a
written document only for evidentiary purposes.51 In other words, the law merely
recognizes the admissibility in evidence (for their being the original) of electronic
data messages and/or electronic documents. 52 It does not make the internet a
medium for publishing laws, rules and regulations.

12

Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry
subject of these consolidated cases. The conduct of inquiries in aid of legislation by
the Senate has to be deferred until it shall have caused the publication of the rules,
because it can do so only "in accordance with its duly published rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this fact, the recent publication
does not cure the infirmity of the inquiry sought to be prohibited by the instant
petitions. Insofar as the consolidated cases are concerned, the legislative
investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the
Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other
issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R.
No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of
the Republic of the Philippines and/or any of its committees from conducting any
inquiry in aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.
EN BANC
G.R. No. 159747

April 13, 2004

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

DECISION

AUSTRIA-MARTINEZ, J.:

13

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice

(DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was

indeed committed by military personnel who occupied Oakwood on the
27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II
3.
4. The said crime was committed as follows:
4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan,
Metro Manila, a meeting was held and presided by Senator
Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and
made an integral part of this complaint.

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for
and in behalf of the military rebels occupying Oakwood, made a public
statement aired on nation television, stating their withdrawal of
support to the chain of command of the AFP and the Government of
President Gloria Macapagal Arroyo and they are willing to risk their
lives in order to achieve the National Recovery Agenda of Sen.
Honasan, which they believe is the only program that would solve the
ills of society. . . . (Emphasis supplied).
The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director
Matillano is quoted verbatim, to wit:
1. That I am a member of the Communication Electronics and Information
Systems Services, Armed Forces of the Philippines with the rank of Major;
2. That I met a certain Captain Gary Alejano of the Presidential Security
Guard (PSG) during our Very Important Person (VIP) Protection Course
sometime in last week of March 2003;
3. That sometime in May 2003, Captain Alejano gave me a copy of the
pamphlet of the National Recovery Program (NRP) and told me that:
"Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption
kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but
never had the time to read it;
4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me
to join him in a meeting where the NRP would be discussed and that there
would be a special guest;

14

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the
evening of June 4, 2003 in a house located somewhere in San Juan, Metro
Manila;
6. That upon arrival we were given a document consisting of about 3-4 pages
containing discussion of issues and concerns within the framework of NRP
and we were likewise served with dinner;
7. That while we were still having dinner at about past 11 o'clock in the
evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow
who was later introduced as Capt. Turingan;
8. That after Sen. Honasan had taken his dinner, the meeting proper started
presided by Sen. Honasan;
9. That Sen. Honasan discussed the NRP, the graft and corruption in the
government including the military institution, the judiciary, the executive
branch and the like;
10. That the discussion concluded that we must use force, violence and
armed struggle to achieve the vision of NRP. At this point, I raised the
argument that it is my belief that reforms will be achieved through the
democratic processes and not thru force and violence and/or armed struggle.
Sen. Honasan countered that "we will never achieve reforms through the
democratic processes because the people who are in power will not give up
their positions as they have their vested interests to protect." After a few
more exchanges of views, Sen. Honasan appeared irritated and asked me
directly three (3) times: "In ka ba o out?" I then asked whether all those
present numbering 30 people, more or less, are really committed, Sen.
Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din
nating pumatay sa mga kasamahang magtataksil." I decided not to pursue
further questions;
11. That in the course of the meeting, he presented the plan of action to
achieve the goals of NRP, i.e., overthrow of the government under the
present leadership thru armed revolution and after which, a junta will be
constituted and that junta will run the new government. He further said that
some of us will resign from the military service and occupy civilian positions
in the new government. He also said that there is urgency that we implement
this plan and that we would be notified of the next activities.
12. That after the discussion and his presentation, he explained the rites that
we were to undergo-some sort of "blood compact". He read a prayer that
sounded more like a pledge and we all recited it with raised arms and
clenched fists. He then took a knife and demonstrated how to make a cut on
the left upper inner arm until it bleeds. The cut was in form of the letter "I" in
the old alphabet but was done in a way that it actually looked like letter "H".
Then, he pressed his right thumb against the blood and pressed the thumb on
the lower middle portion of the copy of the Prayer. He then covered his thumb
15

mark in blood with tape. He then pressed the cut on his left arm against the
NRP flag and left mark of letter "I" on it. Everybody else followed;
13. That when my turn came, I slightly made a cut on my upper inner arm
and pricked a portion of it to let it bleed and I followed what Senator
HONASAN did;
14. That I did not like to participate in the rites but I had the fear for my life
with what Senator HONASAN said that "kaya nating pumatay ng
kasamahan";
15. That after the rites, the meeting was adjourned and we left the place;
16. That I avoided Captain Alejano after that meeting but I was extra cautious
that he would not notice it for fear of my life due to the threat made by
Senator HONASAN during the meeting on June 4, 2003 and the information
relayed to me by Captain Alejano that their group had already deeply
established their network inside the intelligence community;
17. That sometime in the first week of July 2003, Captain Alejano came to see
me to return the rifle that he borrowed and told me that when the group
arrives at the Malacaang Compound for "D-DAY", my task is to switch off the
telephone PABX that serves the Malacaang complex. I told him that I could
not do it. No further conversation ensued and he left;
18. That on Sunday, July 27, 2003, while watching the television, I saw
flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala,
Captain Alejano and some others who were present during the June
4th meeting that I attended, having a press conference about their occupation
of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the
banner is the same letter "I" in the banner which was displayed and on which
we pressed our wound to leave the imprint of the letter "I";
19. That this Affidavit is being executed in order to attest the veracity of the
foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN,
Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt.
GERARDO GAMBALA and others for violation of Article 134-A of the Revised
Penal Code for the offense of "coup d'etat". (Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of
Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a
subpoena to petitioner for preliminary investigation.
On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He
filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting
that since the imputed acts were committed in relation to his public office, it is the
Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the
corresponding preliminary investigation; that should the charge be filed in court, it
is the Sandiganbayan, not the regular courts, that can legally take cognizance of the
16

case considering that he belongs to the group of public officials with Salary Grade
31; and praying that the proceedings be suspended until final resolution of his
motion.
Respondent Matillano submitted his comment/opposition thereto and petitioner filed
a reply.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a
"Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a
Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted and shall be
passed upon in the resolution of this case.
In the meantime, in view of the submission by complainant of additional
affidavits/evidence and to afford respondents ample opportunity to controvert
the same, respondents, thru counsel are hereby directed to file their
respective counter-affidavits and controverting evidence on or before
September 23, 2003.1
Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under
Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNPP/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave
abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of
September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the
preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General in representation of
respondents DOJ Panel, and Director Matillano submitted their respective
comments.
The Court heard the parties in oral arguments on the following issues:
1) Whether respondent Department of Justice Panel of Investigators has
jurisdiction to conduct preliminary investigation over the charge of coup
d'etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution
and Republic Act No. 6770 or Ombudsman Act of 1989; and
3) Whether respondent DOJ Panel of Investigators committed grave abuse of
discretion in deferring the resolution of the petitioner's motion to clarify
jurisdiction considering the claim of the petitioner that the DOJ Panel has no
jurisdiction to conduct preliminary investigation.
After the oral arguments, the parties submitted their respective memoranda. The
arguments of petitioner are:
17

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary

investigation over all public officials, including petitioner.
2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ
Joint Circular No. 95-001 to conduct the preliminary investigation involving
Honasan.
3. Even if deputized, the respondent DOJ Panel is still without authority since
OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the
Constitution, beyond the powers granted to the Ombudsman by R.A. 6770
and inoperative due to lack of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in relation to his office, it is
the Office of the Ombudsman which has the jurisdiction to conduct the
preliminary investigation.
5. The respondent DOJ Panel gravely erred in deferring the resolution of
petitioner's Motion to Clarify Jurisdiction since the issue involved therein is
determinative of the validity of the preliminary investigation.
6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in
the guise of directing him to submit Counter-Affidavit and yet refused and/or
failed to perform its duties to resolve petitioner's Motion stating its legal and
factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary investigation on
petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised
Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D.
No. 1513.
2. Petitioner is charged with a crime that is not directly nor intimately related
to his public office as a Senator. The factual allegations in the complaint and
the supporting affidavits are bereft of the requisite nexus between
petitioner's office and the acts complained of.
3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as
a ground to question the jurisdiction of the DOJ over the complaint below, is
misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised
Administrative Code. It is not derived from any provision of the joint circular
which embodies the guidelines governing the authority of both the DOJ and
the Office of the Ombudsman to conduct preliminary investigation on
offenses charged in relation to public office.
4. Instead of filing his counter-affidavit, petitioner opted to file a motion to
clarify jurisdiction which, for all intents and purposes, is actually a motion to
dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised
Rules of Criminal Procedure. The DOJ Panel is not required to act or even
18

recognize it since a preliminary investigation is required solely for the

purpose of determining whether there is a sufficient ground to engender a
well founded belief that a crime has been committed and the respondent is
probably guilty thereof and should be held for trial. The DOJ panel did not
outrightly reject the motion of petitioner but ruled to pass upon the same in
the determination of the probable cause; thus, it has not violated any law or
rule or any norm of discretion.
The arguments of respondent Ombudsman are:
1. The DOJ Panel has full authority and jurisdiction to conduct preliminary
investigation over the petitioner for the reason that the crime of coup
d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under
the jurisdiction of the Sandiganbayan only if the same is committed "in
relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as
amended by R.A. No. 7975 and R.A. No. 8249.
2. Petitioner's premise that the DOJ Panel derives its authority to conduct
preliminary investigation over cases involving public officers solely from the
OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent
authority with the OMB to conduct preliminary investigation of cases
involving public officials has been recognized in Sanchez vs. Demetriou (227
SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised
Rules of Criminal Procedure.
3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ
cannot be deputized by the Ombudsman en masse but must be given in
reference to specific cases has no factual or legal basis. There is no rule or
law which requires the Ombudsman to write out individualized authorities to
deputize prosecutors on a per case basis. The power of the Ombudsman to
deputize DOJ prosecutors proceeds from the Constitutional grant of power to
request assistance from any government agency necessary to discharge its
functions, as well as from the statutory authority to so deputize said DOJ
prosecutors under Sec. 31 of RA 6770.
4. The Joint Circular which is an internal arrangement between the DOJ and
the Office of the Ombudsman need not be published since it neither contains
a penal provision nor does it prescribe a mandatory act or prohibit any under
pain or penalty. It does not regulate the conduct of persons or the public, in
general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ
Circular No. 95-001 but on the provisions of the 1987 Administrative Code under
Chapter I, Title III, Book IV, governing the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy of the State to provide
the government with a principal law agency which shall be both its legal
19

counsel and prosecution arm; administer the criminal justice system in

accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the
correctional system;
Sec. 3. Powers and Functions - To accomplish its mandate, the Department
shall have the following powers and functions:

(2) Investigate the commission of crimes, prosecute offenders and

administer the probation and correction system; (Emphasis
supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution Service; Supervision and
Control of the Secretary of Justice. There is hereby created and established
a National Prosecution Service under the supervision and control of the
Secretary of Justice, to be composed of the Prosecution Staff in the Office of
the Secretary of Justice and such number of Regional State Prosecution
Offices, and Provincial and City Fiscal's Offices as are hereinafter provided,
which shall be primarily responsible for the investigation and
prosecution of all cases involving violations of penal laws. (Emphasis
supplied)
Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to
conduct the preliminary investigation under paragraph (1), Section 13, Article XI of
the 1987 Constitution, which confers upon the Office of the Ombudsman the power
to investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987
Administrative Code and the Ombudsman Act of 1989 cannot prevail over the
Constitution, pursuant to Article 7 of the Civil Code, which provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution.
and Mabanag vs. Lopez Vito.2
The Court is not convinced. Paragraph (1) of Section 13, Article XI of the
Constitution, viz:
20

SEC. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or omission
of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
does not exclude other government agencies tasked by law to investigate and
prosecute cases involving public officials. If it were the intention of the framers of
the 1987 Constitution, they would have expressly declared the exclusive
conferment of the power to the Ombudsman. Instead, paragraph (8) of the same
Section 13 of the Constitution provides:
(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act
of 1989." Section 15 thereof provides:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigatory agency of the government, the
investigation of such cases.
. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the Constitution and the
Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the
Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990,
entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to
wit:
A complaint filed in or taken cognizance of by the Office of the Ombudsman
charging any public officer or employee including those in government-owned
or controlled corporations, with an act or omission alleged to be illegal,
unjust, improper or inefficient is an Ombudsman case. Such a complaint may
be the subject of criminal or administrative proceedings, or both.
For purposes of investigation and prosecution, Ombudsman cases
involving criminal offenses may be subdivided into two classes, to
wit: (1) those cognizable by the Sandiganbayan, and (2) those falling
under the jurisdiction of the regular courts. The difference between
the two, aside from the category of the courts wherein they are
21

filed, is on the authority to investigate as distinguished from the

authority to prosecute, such cases.
The power to investigate or conduct a preliminary investigation on
any Ombudsman case may be exercised by an investigator or
prosecutor of the Office of the Ombudsman, or by any Provincial or
City Prosecutor or their assistance, either in their regular capacities
or as deputized Ombudsman prosecutors.
The prosecution of cases cognizable by the Sandiganbayan shall be
under the direct exclusive control and supervision of the Office of
the Ombudsman. In cases cognizable by the regular Courts, the
control and supervision by the Office of the Ombudsman is only in
Ombudsman cases in the sense defined above. The law recognizes a
concurrence of jurisdiction between the Office of the Ombudsman
and other investigative agencies of the government in the
prosecution of cases cognizable by regular courts. (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had properly differentiated
the authority to investigate cases from the authority to prosecute cases. It is on this
note that the Court will first dwell on the nature or extent of the authority of the
Ombudsman to investigate cases. Whence, focus is directed to the second sentence
of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that
the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigating agency of the government, the investigation of
such cases.
That the power of the Ombudsman to investigate offenses involving public officers
or employees is not exclusive but is concurrent with other similarly authorized
agencies of the government such as the provincial, city and state prosecutors has
long been settled in several decisions of the Court.
In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in
1990, the Court expressly declared:
A reading of the foregoing provision of the Constitution does not show that
the power of investigation including preliminary investigation vested on the
Ombudsman is exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the
Ombudsman Act, the Court held in said case:
Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman
has primary jurisdiction over cases cognizable by the Sandiganbayan so that
it may take over at any stage from any investigatory agency of the
government, the investigation of such cases. The authority of the
Ombudsman to investigate offenses involving public officers or
employees is not exclusive but is concurrent with other similarly
22

authorized agencies of the government. Such investigatory agencies

referred to include the PCGG and the provincial and city prosecutors
and their assistants, the state prosecutors and the judges of the
municipal trial courts and municipal circuit trial court.
In other words the provision of the law has opened up the authority
to conduct preliminary investigation of offenses cognizable by the
Sandiganbayan to all investigatory agencies of the government duly
authorized to conduct a preliminary investigation under Section 2,
Rule 112 of the 1985 Rules of Criminal Procedure with the only
qualification that the Ombudsman may take over at any stage of
such
investigation
in
the
exercise
of
his
primary
jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the
Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has
jurisdiction to investigate any crime committed by a public official, elucidating thus:
As protector of the people, the office of the Ombudsman has the power,
function and duty to "act promptly on complaints filed in any form or manner
against public officials" (Sec. 12) and to "investigate x x x any act or omission
of any public official x x x when such act or omission appears to be illegal,
unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also
empowered to "direct the officer concerned," in this case the Special
Prosecutor, "to take appropriate action against a public official x x x and to
recommend his prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public official" is broad
enough to embrace any crime committed by a public official. The law does
not qualify the nature of the illegal act or omission of the public official or
employee that the Ombudsman may investigate. It does not require that the
act or omission be related to or be connected with or arise from, the
performance of official duty. Since the law does not distinguish, neither
should we.
The reason for the creation of the Ombudsman in the 1987 Constitution and
for the grant to it of broad investigative authority, is to insulate said office
from the long tentacles of officialdom that are able to penetrate judges' and
fiscals' offices, and others involved in the prosecution of erring public
officials, and through the exertion of official pressure and influence, quash,
delay, or dismiss investigations into malfeasances and misfeasances
committed by public officers. It was deemed necessary, therefore, to create a
special office to investigate all criminal complaints against public officers
regardless of whether or not the acts or omissions complained of are related
to or arise from the performance of the duties of their office. The
Ombudsman Act makes perfectly clear that the jurisdiction of the
Ombudsman encompasses "all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned
in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770).
23

.........
Indeed, the labors of the constitutional commission that created the
Ombudsman as a special body to investigate erring public officials would be
wasted if its jurisdiction were confined to the investigation of minor and less
grave offenses arising from, or related to, the duties of public office, but
would exclude those grave and terrible crimes that spring from abuses of
official powers and prerogatives, for it is the investigation of the latter where
the need for an independent, fearless, and honest investigative body, like the
Ombudsman, is greatest.6
At first blush, there appears to be conflicting views in the rulings of the Court in
the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more
apparent than real. In subsequent cases, the Court elucidated on the nature of the
powers of the Ombudsman to investigate.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the
Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission
of any public official, the authority of the Ombudsman to investigate is merely a
primary and not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA
6770 to investigate and prosecute any illegal act or omission of any public
official. However as we held only two years ago in the case of Aguinaldo vs.
Domagas,8 this authority "is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged."
Petitioners finally assert that the information and amended information filed
in this case needed the approval of the Ombudsman. It is not disputed that
the information and amended information here did not have the approval of
the Ombudsman. However, we do not believe that such approval was
necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held
that the Ombudsman has authority to investigate charges of illegal acts or
omissions on the part of any public official, i.e., any crime imputed to a public
official. It must, however, be pointed out that the authority of the
Ombudsman to investigate "any [illegal] act or omission of any
public official" (191 SCRA 550) is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense
charged, i.e., the crime of sedition. Thus, the non-involvement of the office
of the Ombudsman in the present case does not have any adverse legal
consequence upon the authority of the panel of prosecutors to file and
prosecute the information or amended information.
In fact, other investigatory agencies of the government such as the
Department of Justice in connection with the charge of sedition, and
the Presidential Commission on Good Government, in ill gotten
wealth cases, may conduct the investigation.9 (Emphasis supplied)

24

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor
contended that it is the Ombudsman and not the provincial fiscal who has the
authority to conduct a preliminary investigation over his case for alleged Murder,
the Court held:
The Deloso case
has
already
been
re-examined
in
two
cases,
namely Aguinaldo vs. Domagas andSanchez vs. Demetriou. However, by way
of amplification, we feel the need for tracing the history of the legislation
relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary
jurisdiction is dependent on the cases cognizable by the former.
In the process, we shall observe how the policy of the law, with reference to
the subject matter, has been in a state of flux.
These laws, in chronological order, are the following: (a) Pres. Decree No.
1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which
expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa
Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads
as follows:
"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby
amended to read as follows:
'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise:
'(a) Exclusive original jurisdiction in all cases involving:
...
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporation, whether simple or
complexed with other crimes, where the penalty prescribed by
law is higher thatprision correccional or imprisonment for six (6)
years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses
or felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000 shall be tried
by the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court."
A perusal of the aforecited law shows that two requirements must concur
under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's
jurisdiction, namely: the offense committed by the public officer must be in
relation to his office and the penalty prescribed be higher then prision
correccional or imprisonment for six (6) years, or a fine of P6,000.00.11

25

Applying the law to the case at bench, we find that although the second
requirement has been met, the first requirement is wanting. A review of these
Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the
crime committed by public officers or employees must be "in relation to their
office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase
which is traceable to Pres. Decree No. 1468, has been retained by Pres.
Decree No. 1861 as a requirement before the Ombudsman can acquire
primary jurisdiction on its power to investigate.
It cannot be denied that Pres. Decree No. 1861 is in pari materia to
Article XI, Sections 12 and 13 of the 1987 Constitution and the
Ombudsman Act of 1989 because, as earlier mentioned, the
Ombudsman's power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are in pari materia when
they relate to the same person or thing or to the same class of
persons or things, or object, or cover the same specific or particular
subject matter.
It is axiomatic in statutory construction that a statute must be
interpreted, not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form a
complete, coherent and intelligible system. The rule is expressed in
the maxim, "interpretare et concordare legibus est optimus
interpretandi," or every statute must be so construed and
harmonized with other statutes as to form a uniform system of
jurisprudence. Thus, in the application and interpretation of Article
XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman
Act of 1989, Pres. Decree No. 1861 must be taken into consideration.
It must be assumed that when the 1987 Constitution was written, its
framers had in mind previous statutes relating to the same subject
matter. In the absence of any express repeal or amendment, the
1987 Constitution and the Ombudsman Act of 1989 are deemed in
accord with existing statute, specifically, Pres. Decree No.
1861.12 (Emphasis supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law
(P.D. 1861) likewise provides that for other offenses, aside from those enumerated
under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the
Sandiganbayan, they must have been committed by public officers or employees in
relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman
exclusive jurisdiction to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate offenses involving
public officers or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the Ombudsman,
in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation of such cases.
26

In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws but if
the cases fall under the exclusive jurisdiction of the Sandiganbayan, then
respondent Ombudsman may, in the exercise of its primary jurisdiction take over at
any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have
concurrent jurisdiction to conduct preliminary investigation, the respective heads of
said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper
guidelines of their respective prosecutors in the conduct of their investigations, to
wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE
OFFICE OF THE OMBUDSMAN
ALL
REGIONAL
STATE
PROSECUTORS
AND
THEIR
ASSISTANTS,
PROVINCIAL/CITY
PROSECUTORS
AND
THEIR
ASSISTANTS,
STATE
PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF
JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND
EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION
OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY
PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.
x-------------------------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the supreme court on the extent to which the ombudsman
may call upon the government prosecutors for assistance in the investigation
and prosecution of criminal cases cognizable by his office and the conditions
under which he may do so. Also discussed was Republic Act No. 7975
otherwise known as "an act to strengthen the functional and structural
organization of the sandiganbayan, amending for the purpose presidential
decree no. 1606, as amended" and its implications on the jurisdiction of the
office of the Ombudsman on criminal offenses committed by public officers
and employees.
Concerns were expressed on unnecessary delays that could be caused by
discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the
department of justice, and by procedural conflicts in the filing of complaints
against public officers and employees, the conduct of preliminary
investigations, the preparation of resolutions and informations, and the

27

prosecution of cases by provincial and city prosecutors and their assistants as

deputized prosecutors of the ombudsman.
Recognizing the concerns, the office of the ombudsman and the department
of justice, in a series of consultations, have agreed on the following
guidelines to be observed in the investigation and prosecution of cases
against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by public
officers and employees in relation to office whether cognizable by the
sandiganbayan or the regular courts, and whether filed with the office of the
ombudsman or with the office of the provincial/city prosecutor shall be under
the control and supervision of the office of the ombudsman.
2. Unless the Ombudsman under its Constitutional mandate finds reason to
believe otherwise, offenses not in relation to office and cognizable by the
regular courts shall be investigated and prosecuted by the office of the
provincial/city prosecutor, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation. Resolutions
recommending prosecution together with the duly accomplished criminal
informations shall be forwarded to the appropriate approving authority.
4. Considering that the office of the ombudsman has jurisdiction over public
officers and employees and for effective monitoring of all investigations and
prosecutions of cases involving public officers and employees, the office of
the provincial/city prosecutor shall submit to the office of the ombudsman a
monthly list of complaints filed with their respective offices against public
officers and employees.
Manila, Philippines, October 5, 1995.

(signed)

(signed)

TEOFISTO T. GUINGONA, JR. ANIANO

A.
DESIERTO
Secretary
Ombudsman
Department of Justice
Office of the Ombudsman

A close examination of the circular supports the view of the respondent

Ombudsman that it is just an internal agreement between the Ombudsman and the
DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:

28

SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all
crimes cognizable by the proper court in their respective territorial
jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information, He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself file the
information against the respondent, or direct another assistant prosecutor or
state prosecutor to do so without conducting another preliminary
investigation.

29

If upon petition by a proper party under such rules as the Department of

Justice may prescribe or motu proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of
criminal complaints filed with them for offenses cognizable by the proper court
within their respective territorial jurisdictions, including those offenses which come
within the original jurisdiction of the Sandiganbayan; but with the qualification that
in offenses falling within the original jurisdiction of the Sandiganbayan, the
prosecutor shall, after their investigation, transmit the records and their
resolutions to the Ombudsman or his deputy for appropriate action. Also,
the prosecutor cannot dismiss the complaint without the prior written authority of
the Ombudsman or his deputy, nor can the prosecutor file an Information with the
Sandiganbayan without being deputized by, and without prior written authority of
the Ombudsman or his deputy.
Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no
showing that the Office of the Ombudsman has deputized the prosecutors of the
DOJ to conduct the preliminary investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily discussed, the Constitution,
the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the
Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal
Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman
and the DOJ to conduct preliminary investigation on charges filed against public
officers and employees.
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be exercised
by an investigator or by any provincial or city prosecutor or their assistants, either
in their regular capacities or as deputized Ombudsman prosecutors. The fact that all
prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ
Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized
by the Ombudsman to conduct the preliminary investigation for complaints filed
with it because the DOJ's authority to act as the principal law agency of the
government and investigate the commission of crimes under the Revised Penal
Code is derived from the Revised Administrative Code which had been held in
the Natividad case13 as not being contrary to the Constitution. Thus, there is not
even a need to delegate the conduct of the preliminary investigation to an agency
which has the jurisdiction to do so in the first place. However, the Ombudsman may
assert its primary jurisdiction at any stage of the investigation.

30

Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the
ground that it was not published is not plausible. We agree with and adopt the
Ombudsman's dissertation on the matter, to wit:
Petitioner appears to be of the belief, although NOT founded on a proper
reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95001, an internal arrangement between the DOJ and the Office of the
Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid down the rule in the
case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and
regulations which prescribe a penalty for its violation should be published
before becoming effective, this, on the general principle and theory that
before the public is bound by its contents, especially its penal provision, a
law, regulation or circular must first be published and the people officially and
specifically informed of said contents and its penalties: said precedent, to
date, has not yet been modified or reversed. OMB-DOJ Joint Circular No. 95001 DOES NOT contain any penal provision or prescribe a mandatory act or
prohibit any, under pain or penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the
Honorable Court ruled that:
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules
or guidelines to be followed by their subordinates in the performance of their
duties. (at page 454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the
DOJ and the Office of the Ombudsman, outlining authority and responsibilities
among prosecutors of the DOJ and of the Office of the Ombudsman in the
conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES
NOT regulate the conduct of persons or the public, in general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint
Circular No. 95-001 has to be published.14
Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary
investigation because petitioner is a public officer with salary Grade 31 so that the
case against him falls exclusively within the jurisdiction of the Sandiganbayan.
Considering the Court's finding that the DOJ has concurrent jurisdiction to
investigate charges against public officers, the fact that petitioner holds a Salary
Grade 31 position does not by itself remove from the DOJ Panel the authority to
investigate the charge of coup d'etat against him.
The question whether or not the offense allegedly committed by petitioner is one of
those enumerated in the Sandiganbayan Law that fall within the exclusive
31

jurisdiction of the Sandiganbayan will not be resolved in the present petition so as

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

SEPARATE OPINION
VITUG, J.:
Preliminary investigation is an initial step in the indictment of an accused; it is a
substantive right, not merely a formal or a technical requirement, 1 which an
accused can avail himself of in full measure. Thus, an accused is entitled to rightly
assail the conduct of an investigation that does not accord with the law. He may
also question the jurisdiction or the authority of the person or agency conducting
that investigation and, if bereft of such jurisdiction or authority, to demand that it be
undertaken strictly in conformity with the legal prescription. 2
The Ombudsman is empowered3 to, among other things, investigate and prosecute
on its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary jurisdiction, it may, at any
stage, take over from any agency of Government the investigation of such cases.
This statutory provision, by and large, is a restatement of the constitutional grant to
the Ombudsman of the power to investigate and prosecute "any act or omission of
any public officer or employee, office or agency, when such act or omission appears
to be illegal x x x."4
The Panel of Investigating Prosecutors of the Department of Justice, in taking
cognizance of the preliminary investigation on charges of coup d'etat against
petitioner Gregorio Honasan, relies on OMB-DOJ Circular No. 95-001. That joint
circular must be understood as being merely a working arrangement between the
Office of the Ombudsman (OMB) and the Department of Justice (DOJ) that must not
32

be meant to be such a blanket delegation to the DOJ as to generally allow it to

conduct preliminary investigation over any case cognizable by the OMB.
While Section 31 of Republic Act No. 6770 states that the Ombudsman may
"designate or deputize any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases," the provision cannot be assumed, however, to be an
undefined and broad entrustment of authority. If it were otherwise, it would be
unable to either withstand the weight of burden to be within constitutional
parameters or the proscription against undue delegation of powers. The deputized
fiscal, state prosecutor or government lawyer must in each instance be named; the
case to which the deputized official is assigned must be specified; and the
investigation must be conducted under the supervision and control of the
Ombudsman. The Ombudsman remains to have the basic responsibility, direct or
incidental, in the investigation and prosecution of such cases.
The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction
over offenses or felonies, whether simple or complexed with other crimes,
committed by the public officials, including members of Congress, in relation to their
office. The crime of coup d'etat, with which petitioner, a member of the Senate, has
been charged, is said to be closely linked to his "National Recovery Program," a
publication which encapsules the bills and resolutions authored or sponsored by him
on the senate floor. I see the charge as being then related to and bearing on his
official function.
On the above score, I vote to grant the petition.

DISSENTING OPINION
YNARES-SANTIAGO, J.:
The first question to answer is which court has jurisdiction to try a Senator who is
accused of coup d'etat. Behind the simple issue is a more salient question - Should
this Court allow an all too restrictive and limiting interpretation of the law rather
than take a more judicious approach of interpreting the law by the spirit, which
vivifies, and not by the letter, which killeth?
The elemental thrust of the Majority view is that the Department of Justice
(DOJ), not the Office of the Ombudsman, has the jurisdiction to investigate
the petitioner, a Senator, for the crime of coup d'etatpursuant to Section 4 of
Presidential Decree No. 1606 as amended by Republic Act No. 8249
(Sandiganbayan Law). The Majority maintains that since the crime for which
petitioner is charged falls under Section 4, paragraph (b) of the
Sandiganbayan Law, it is imperative to show that petitioner committed the
offense in relation to his office as Senator. It reasoned that since petitioner
committed the felonious acts, as alleged in the complaint, not in connection
33

with or in relation to his public office, it is the DOJ, and not the Office of the
Ombudsman, which is legally tasked to conduct the preliminary investigation.
In light of the peculiar circumstances prevailing in the instant case and in
consideration of the policies relied upon by the Majority, specifically, the
Sandiganbayan Law and Republic Act No. 6770 (The Ombudsman Act of
1989), I submit that the posture taken by the Majority seriously deviates from
and renders nugatory the very intent for which the laws were enacted.
The crime of coup d'etat, if committed by members of Congress or by a public
officer with a salary grade above 27, falls within the exclusive original
jurisdiction of the Sandiganbayan. Section 4 of P.D. 1606, as amended,
provides:
Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
xxxxxxxxx
(2) Members of Congress and officials thereof classified as Grade "27" and up
under the Compensation and Position Classification Act of 1989;
x x x x x x x x x.
In the case of Lacson v. Executive Secretary,1 we clarified the exclusive original
jurisdiction of the Sandiganbayan pursuant to Presidential Decree ("PD") No. 1606,
as amended by Republic Act ("RA") Nos. 7975 and 8249, and made the following
definitive pronouncements:
Considering that herein petitioner and intervenors are being charged with
murder which is a felony punishable under Title VIII of the Revised Penal
Code, the governing provision on the jurisdictional offense is not paragraph
but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other
offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a of
[Section 4, R.A. 8249] in relation to their office." The phrase "other offenses
or felonies" is too broad as to include the crime of murder, provided it was
committed in relation to the accused's official functions. Thus, under said
paragraph b, what determines the Sandiganbayan's jurisdiction is the official
position or rank of the offender that is, whether he is one of those public
officers or employees enumerated in paragraph a of Section 4. The offenses
mentioned in paragraphs a, b and c of the same Section 4 do not make any
34

reference to the criminal participation of the accused public officer as to

whether he is charged as a principal, accomplice or accessory. In enacting
R.A. 8249, the Congress simply restored the original provisions of P.D. 1606
which does not mention the criminal participation of the public officer as a
requisite to determine the jurisdiction of the Sandiganbayan.
As worded, the Sandiganbayan Law requires that for a felony, coup d'etat in this
case, to fall under the exclusive jurisdiction of the Sandiganbayan, two requisites
must concur, namely: (1) that the public officer or employee occupies the position
corresponding to Salary Grade 27 or higher; and (2) that the crime is committed by
the public officer or employee in relation to his office. Applying the law to the case
at bar, the Majority found that although the first requirement has been met, the
second requirement is wanting. I disagree.
Following its definition, coup d'etat can only be committed by members of the
military or police or holding any public office or employment, with or without civilian
support. Article 134-A of the Revised Penal Code states:
Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a
swift attack accompanied by violence, intimidation, threat, strategy or
stealth, directed against duly constituted authorities of the Republic of the
Philippines, or any military camp or installation, communications network,
public utilities or other facilities needed for the exercise and continued
possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or
holding any public office or employment, with or without civilian support or
participation for the purpose of seizing or diminishing state power.
A coup consists mainly of the military personnel and public officers and employees
seizing the controlling levers of the state, which is then used to displace the
government from its control of the remainder. As defined, it is a swift attack directed
against the duly constituted authorities or vital facilities and installations to seize
state power. It is therefore inherent in coup d'etat that the crime be committed "in
relation to" the office of a public officer or employee. The violence, intimidation,
threat, strategy or stealth which are inherent in the crime can only be accomplished
by those who possess a degree of trust reposed on such person in that position by
the Republic of the Philippines. It is by exploiting this trust that the swift attack can
be made. Since the perpetrators take advantage of their official positions, it follows
that coup d'etat can be committed only through acts directly or intimately related to
the performance of official functions, and the same need not be proved since it
inheres in the very nature of the crime itself.
It is contended by public respondent that the crime of coup d'etat cannot be
committed "in relation" to petitioner's office, since the performance of legislative
functions does not include its commission as part of the job description. To
accommodate this reasoning would be to render erroneous this Court's ruling
in People v. Montejo2 that "although public office is not an element of the crime of
murder in [the] abstract," the facts in a particular case may show that ". . . the
offense therein charged is intimately connected with [the accuseds'] respective
offices and was perpetrated while they were in the performance, though improper
35

or irregular, of their official functions." Simply put, if murder can be committed

in the performance of official functions, so can the crime of coup d'etat.
The Ombudsman is wrong when he says that legislative function is only "to make
laws, and to alter and repeal them." The growing complexity of our society and
governmental structure has so revolutionized the powers and duties of the
legislative body such that its members are no longer confined to making laws. They
can perform such other functions, which are, strictly speaking, not within the ambit
of the traditional legislative powers, for instance, to canvass presidential elections,
give concurrence to treaties, to propose constitutional amendments as well as
oversight functions. As an incident thereto and in pursuance thereof, members of
Congress may deliver privilege speeches, interpellations, or simply inform and
educate the public in respect to certain proposed legislative measures.
The complaint alleges that the meeting on June 4, 2003 of the alleged coup plotters
involved a discussion on the issues and concerns within the framework of the
National Recovery Program (NRP), a bill which petitioner authored in the Senate.
The act of the petitioner in ventilating the ails of the society and extolling the merits
of the NRP is part of his duties as legislator not only to inform the public of his
legislative measures but also, as a component of the national leadership, to find
answers to the many problems of our society. One can see therefore that Senator
Honasan's acts were "in relation to his office."
It is true that not every crime committed by a high-ranking public officer falls within
the exclusive original jurisdiction of the Sandiganbayan. It is also true that there
is no public office or employment that includes the commission of a crime as part of
its job description. However, to follow this latter argument would mean that there
would be no crime falling under Section 4, paragraph (b) PD No. 1606, as amended.
This would be an undue truncation of the Sandiganbayan's exclusive original
jurisdiction and contrary to the plain language of the provision.
Only by a reasonable interpretation of the scope and breadth of the term "offense
committed in relation to [an accused's] office" in light of the broad powers and
functions of the office of Senator, can we subserve the very purpose for which the
Sandiganbayan and the Office of the Ombudsman were created.
The raison d' etre for the creation of the Office of the Ombudsman in the 1987
Constitution and for the grant of its broad investigative authority, is to insulate said
office from the long tentacles of officialdom that are able to penetrate judges' and
fiscals' offices, and others involved in the prosecution of erring public officials, and
through the exertion of official pressure and influence, quash, delay, or dismiss
investigations into malfeasances, and misfeasances committed by public officers. 3
In similar vein, the Constitution provides for the creation of the Sandiganbayan to
attain the highest norms of official conduct required of public officers and
employees. It is a special court that tries cases involving public officers and
employees that fall within specific salary levels. Thus, section 4 of the
Sandiganbayan Law makes it a requirement that for offenses to fall under the
exlusive jurisdiction of the Sandiganbayan, the public officer involved must occupy
a position equivalent to Salary Grade 27 or higher. This salary grade requirement is
36

not a product of whim or an empty expression of fancy, but a way to ensure that
offenses which spring from official abuse will be tried by a judicial body insulated
from official pressure and unsusceptible to the blandishments, influence and
intimidation from those who seek to subvert the ends of justice.
If we were to give our assent to respondent's restrictive interpretation of the term
"in relation to his office," we would be creating an awkward situation wherein a
powerful member of Congress will be investigated by the DOJ which is an adjunct of
the executive department, and tried by a regular court which is much vulnerable to
outside pressure. Contrarily, a more liberal approach would bring the case to be
investigated and tried by specialized Constitutional bodies and, thus ensure the
integrity of the judicial proceedings.
Second, the "primary jurisdiction" of the Office of the Ombudsman to conduct the
preliminary investigation of an offense within the exclusive original jurisdiction of
the Sandiganbayan operates as a mandate on the Office of the Ombudsman,
especially when the person under investigation is a member of Congress. The
Ombudsman's refusal to exercise such authority, relegating the conduct of the
preliminary investigation of I.S. No. 2003-1120 to the respondent Investigating Panel
appointed by the Department of Justice ("DOJ") under DOJ Department Order No.
279, s. 2003, is a dereliction of a duty imposed by no less than the Constitution.
Insofar as the investigation of said crimes is concerned, I submit that the same
belongs to the primary jurisdiction of the Ombudsman. R.A. No. 6770 or the
Ombudsman Act of 1989, empowers the Ombudsman to conduct the investigation
of cases involving illegal acts or omissions committed by any public officer or
employee. Section 15, paragraph (1) of the Ombudsman Act of 1989 provides:
SECTION 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
1. Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government,
the investigation of such cases; x x x.4
In Uy v. Sandiganbayan,5 the extent and scope of the jurisdiction of the Office of the
Ombudsman to conduct investigations was described as:
The power to investigate and to prosecute granted by law to the Ombudsman
is plenary and unqualified. It pertains to any act or omission of any public
officer or employee when such act or omission appears to be illegal, unjust,
improper or inefficient. The law does not make a distinction between cases
cognizable by the Sandiganbayan and those cognizable by regular courts. It
has been held that the clause "any illegal act or omission of any public

37

official" is broad enough to embrace any crime committed by a public officer

or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan, and Section 11 (4) granting the
Special Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan, should
not be construed as confining the scope of the investigatory and prosecutory
power of the Ombudsman to such cases.
The "primary jurisdiction" of the Office of the Ombudsman in cases cognizable by
the Sandiganbayan was reiterated in Laurel v. Desierto:6
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction
as authorizing the Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of such cases."
The grant of this authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees cognizable by
other courts. The exercise by the Ombudsman of his primary jurisdiction over
cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed
by public officers and employees. Indeed, it must be stressed that the powers
granted by the legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
"Primary Jurisdiction" usually refers to cases involving specialized disputes where
the practice is to refer the same to an administrative agency of special competence
in observance of the doctrine of primary jurisdiction. This Court has said that it
cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal before the question is resolved by the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate matters of fact,
and a uniformity of ruling is essential to comply with the premises of the regulatory
statute administered.7 The objective of the doctrine of primary jurisdiction is "to
guide a court in determining whether it should refrain from exercising its jurisdiction
until after an administrative agency has determined some question or some aspect
of some question arising in the proceeding before the court." 8 It applies where a
claim is originally cognizable in the courts and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, has been placed within the special competence of an administrative body;
in such case, the judicial process is suspended pending referral of such issues to the
administrative body for its view.9
Where the concurrent authority is vested in both the Department of Justice and the
Office of the Ombudsman, the doctrine of primary jurisdiction should operate to
restrain the Department of Justice from exercising its investigative authority if the
38

case will likely be cognizable by the Sandiganbayan. In such cases, the Office of the
Ombudsman should be the proper agency to conduct the preliminary investigation
over such an offense, it being vested with the specialized competence and
undoubted probity to conduct the investigation.
The urgent need to follow the doctrine is more heightened in this case where the
accused is a member of Congress. The DOJ is under the supervision and control of
the Office of the President; in effect, therefore, the investigation would be
conducted by the executive over a member of a co-equal branch of government. It
is precisely for this reason that the independent constitutional Office of the
Ombudsman should conduct the preliminary investigation. Senator Honasan is a
member of the political opposition. His right to a preliminary investigation by a fair
and uninfluenced body is sacred and should not be denied. As we stated in
the Uy case:
The prosecution of offenses committed by public officers and employees is
one of the most important functions of the Ombudsman. In passing RA 6770,
the Congress deliberately endowed the Ombudsman with such power to
make him a more active and effective agent of the people in ensuring
accountability n public office. A review of the development of our
Ombudsman laws reveals this intent.
These pronouncements are in harmony with the constitutional mandate of he Office
of the Ombudsman, as expressed in Article XI of the Constitution.
SECTION 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against
public officials or employees of the Government, or any agency, subdivision
or instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the
actions taken and the result thereof. (Underscoring supplied.)
SECTION 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission
of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient. x x x.
Coupled with these provisions, Section 13 of the Ombudsman Act of 1989 provides:
SECTION 13. Mandate. The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in any form or manner
against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote efficient service
by the Government to the people. (Underscoring supplied)

39

The Constitution and the Ombudsman Act of 1989 both mention, unequivocally, that
the Office of the Ombudsman has the duty and mandate to act on the complaints
filed against officers or employees of the Government. It is imperative that this duty
be exercised in order to make real the role of the Office of the Ombudsman as a
defender of the people's interest specially in cases like these which have partisan
political taint.
For the foregoing reasons, I vote to GRANT the petition.

DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
I am constrained to dissent from the majority opinion for the following reasons: (1) it
evades the consequence of the statutory definition of the crime of coup d'etat; (2) it
violates the principle of stare decisis without a clear explanation why the
established doctrine has to be re-examined and reversed; and (3) it trivializes the
importance of two constitutional offices the Ombudsman and the Senate and in
the process, petitioner's right to due process has been impaired.
I
It is an established principle that an act no matter how offensive, destructive, or
reprehensible, is not a crime unless it is defined, prohibited, and punished by law.
The prosecution and punishment of any criminal offense are necessarily
circumscribed by the specific provision of law which defines it.
Article 134-A of the Revised Penal Code defines coup d'etat, thus:
"Article 134-A. Coup d'etat. How committed. The crime of coup d'etat is a
swift attack accompanied by violence, intimidation, threat, strategy or
stealth, directed against duly constituted authorities of the Republic of the
Philippines, or any military camp or installation, communications networks,
public utilities or other facilities needed for the exercise and continued
possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or
holding any public office or employment with or without civilian support or
participation for the purpose of seizing or diminishing state power."
There is no question that Senator Honasan, herein petitioner, holds a high public
office. If he is charged with coup d'etat, it has to be in his capacity as a public officer
committing the alleged offense in relation to his public office.
The complaint filed with the Department of Justice alleges the events supposedly
constituting the crime of coup d'etat, thus:

40

1. On 04 June 2003, Senator Honasan presided over a meeting held

"somewhere in San Juan, Metro Manila."
2. After dinner, Senator Honasan, as presiding officer, "discussed the NRP
(National Recovery Program), the graft and corruption in the government,
including the military institutions, the judiciary, the executive department,
and the like."
3. "The discussion concluded that we must use force, violence and armed
struggle to achieve the vision of NRP. x x x Senator Honasan countered that
'we will never achieve reforms through the democratic processes because the
people who are in power will not give up their positions as they have their
vested interests to protect.' x x x Senator Honasan replied 'kung kaya nating
pumatay sa ating mga kalaban, kaya din nating pumatay sa mga
kasamahang magtataksil.' x x x."
4. In the course of the meeting, Senator Honasan presented the plan of action
to achieve the goals of the NRP, i.e., overthrow of the government under the
present leadership thru armed revolution and after which, a junta will be
constituted to run the new government.
5. The crime of coup d'etat was committed on 27 July 2003 by military
personnel who occupied Oakwood. Senator Honasan and various military
officers, one member of his staff, and several John Does and Jane Does were
involved in the Oakwood incident.
The above allegations determine whether or not petitioner committed the alleged
crime as a public officer "in relation to his office." If it was in relation to his office,
the crime falls under the exclusive original jurisdiction of the Sandiganbayan. It is
the Ombudsman who has the primary jurisdiction to investigate and prosecute
the complaint for coup d'etat, thus:
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the
Sandiganbayan as follows:
"SECTION 4. Jurisdiction. The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
"a. Violations of Republic No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade '27'
and higher, of the Compensations and Position Classification Act
of 1989 (Republic Act No. 67 58), specifically including:
41

(a) Provincial governors, vice-governors, members of the

Sangguniang Panlalawigan, and provincial treasurers ,
assessors, engineers, and other provincial department
heads;
(b) City mayors, vice-mayors, members of the
Sangguniang Panlungsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine Army and air force colonels, naval captains,
and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade
'27' and up under the Compensation and Position Classification
Act of 1989;
(3) Members of the judiciary without prejudice to the provisions
of the Constitution;
(4) Chairman and members of the Constitutional Commissions,
without prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade '27' or
higher under the Compensation and Position Classification Act of
1989.
"b. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees mentioned in Subsection a of this section in
relation to their office.
"c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986."

42

Section 15 of Republic Act 6770, or the Ombudsman Act of 1989, provides:

"1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and,
in the exercise of his primary jurisdiction, it may take over, at any stage, from
any investigatory agency of Government, the investigation of such cases; x x
x" (Emphasis supplied)
Under the above provisions, what determines the Sandiganbayan's jurisdiction is
the official position or rank of the offender, that is, whether he is one of those public
officers enumerated therein.
Petitioner, being a Senator, occupies a government position higher than Grade 27 of
the Compensation and Position Classification Act of 1989. In fact, he holds the third
highest position and rank in the Government. At the apex, the President stands
alone. At the second level, we have the Vice-President, Speaker of the House,
Senate President and Chief Justice. Clearly, he is embraced in the above provisions.
Following the doctrine of "primary jurisdiction," it is the Ombudsman who should
conduct the preliminary investigation of the charge of coup d'etat against petitioner.
The DOJ should refrain from exercising such function.
The crux of the jurisdiction of the DOJ lies in the meaning of "in relation to their
office."
The respondents start their discussion of "in relation to public office" with a peculiar
presentation. They contend that the duties of a Senator are to make laws, to
appropriate, to tax, to expropriate, to canvass presidential elections, to declare the
existence of a state war, to give concurrence to treaties and amnesties, to propose
constitutional amendments, to impeach, to investigate in aid of legislation, and to
determine the Senate rules of proceedings and discipline of its members. They
maintain that the "alleged acts done to overthrow the incumbent government and
authorities by arms and with violence" cannot be qualified as "acts reminiscent of
the discharge of petitioner's legislative duties as Senator." 1
The allegations in the complaint and in the pleadings of the DOJ, the Solicitor
General, and the Ombudsman (who is taking their side) charging petitioner
with coup d'etat show hat he was engaged in a discussion of his National Recovery
Program (NRP), corruption in government, and the need for reform. The NRP is a
summary of what he has introduced and intended to introduce into legislation by
Congress. There is no doubt, therefore, that the alleged coup d'etat was committed
in relation to the performance of his official duty as a Senator.
II
The ponencia is a departure or reversion from established doctrine. Under the
principle of stare decisis, the Court should, for the sake of certainty, apply a
43

conclusion reached in one case to decisions which follow, if the facts are
substantially similar. As stated in Santiago vs. Valenzuela2, stare decisi et non
quieta movere. Stand by the decisions and disturb not what is settled.
In Deloso vs. Domingo3, where the Governor of Zambales and his military and police
escorts ambushed the victims who were passing by in a car, we held that the
multiple murders were committed in relation to public office. In Cunanan vs. Arceo4,
the mayor ordered his co-accused to shoot the victims. We ruled that the murder
was in relation to public office. In Alarilla vs. Sandiganbayan5, the town mayor
aimed a gun and threatened to kill a councilor of the municipality during a public
hearing. We concluded that the grave threats were in relation to the mayor's office.
Following these precedents, I am convinced that petitioner's discourse on his
National Recovery Program is in relation to his office.
III
The respondents state that the DOJ is vested with jurisdiction to
conduct all investigations and prosecution of allcrimes. They cite PD 1275, as
amended by PD 1513, and the Revised Administrative Code of 1987 as the source of
this plenary power.
While the DOJ has a broad general jurisdiction over crimes found in the Revised
Penal Code and special laws, however, this jurisdiction is not plenary or total.
Whenever the Constitution or statute vests jurisdiction over the investigation and
prosecution of certain crimes in an office, the DOJ has no jurisdiction over those
crimes. In election offenses, the Constitution vests the power to investigate and
prosecute in the Commission on Elections. 6In crimes committed by public officers in
relation to their office, the Ombudsman is given by both the Constitution and the
statute the same power of investigation and prosecution. 7 These powers may not be
exercised by the DOJ.
The DOJ cannot pretend to have investigatory and prosecutorial powers above those
of the Ombudsman. The Ombudsman is a constitutional officer with a rank
equivalent to that of an Associate Justice of this Court. The respondent's Prosecution
Office investigates and prosecutes all kinds of offenses from petty crimes, like
vagrancy or theft, to more serious crimes, such as those found in the Revised Penal
Code. The Ombudsman, on the other hand, prosecutes offenses in relation to public
office committed by public officers with the rank and position classification of Grade
27 or higher. It is a special kind of jurisdiction which excludes general powers of
other prosecutory offices.
I agree with the petitioner that a becoming sense of courtesy, respect, and propriety
requires that the constitutional officer should conduct the preliminary investigation
and prosecution of the complaint against him and not a fifth assistant city
prosecutor or even a panel of prosecutors from the DOJ National Prosecution
Service.
I do not believe that a mere agreement, such as OMB-DOJ Joint Circular No. 95-001,
can fully transfer the prosecutory powers of the Ombudsman to the DOJ without
44

need for deputization in specific cases. As stated by the petitioner, the DOJ
cannot be given a roving commission or authority to investigate and prosecute
cases falling under the Ombudsman's powers anytime the DOJ pleases without any
special and explicit deputization. On this point, I agree with Justice Jose C. Vitug that
the Joint Circular must be understood as a mere working arrangement between the
Office of the Ombudsman and the DOJ that must not be meant to be such a blanket
delegation to the DOJ as to generally allow it to conduct preliminary investigation
over any case cognizable by the Ombudsman.
Petitioner further raises a due process question. He accuses the DOJ of bias,
partiality, and prejudgment. He states that he has absolutely no chance of being
cleared by the respondent DOJ panel because it has already decided, before any
presentation of proof, that he must be charged and arrested without bail.
As stated by the petitioner, there are precedents to the effect that where bias
exists, jurisdiction has to be assumed by a more objective office. In Panlilio vs.
Sandiganbayan,8 we recognized that the PCGG has the authority to investigate the
case, yet we ordered the transfer of the case to the Ombudsman because of the
PCGG's "marked bias" against the petitioner.
In Conjuangco vs. PCGG,9 we held that there is a denial of due process where the
PCGG showed "marked bias" in handling the investigation. In Salonga vs. Cruz
Pao,10 where the preliminary investigation was tainted by bias and partiality, we
emphasized the right of an accused to be free, not only from arbitrary arrest and
punishment but also from unwarranted and biased prosecution.
The petitioner's pleadings show the proofs of alleged bias. They may be
summarized as follows:
First, on July 27, 2003 when the Oakwood incident was just starting, DILG
Secretary Lina and National Security Adviser Roilo Golez went on a media
barrage accusing petitioner of complicity without a shred of evidence.
Second, petitioner was approached by Palace emissaries, Velasco, Defensor,
Tiglao, and Afable to help defuse the incident and ask mutineers to surrender.
Then the request was distorted to make it appear that he went there to save
his own skin.
Third, even before any charge was filed, officials of the DOJ were on an
almost daily media program prematurely proclaiming petitioner's guilt. How
can the DOJ conduct an impartial and fair investigation when it has already
found him guilty?
Fourth, petitioner was given five days to answer Matillano's complaint but
later on, it was shortened to three days.
Fifth, petitioner filed a 30 page Reply but the DOJ Order was issued at once,
or only after two days, or on Sept. 10, 2003. The Order did not discuss the
Reply, but perfunctorily glossed over and disregarded it.
45

The petitioner states that the DOJ is constitutionally and factually under the control
of the President. He argues that:
"No questionable prosecution of an opposition Senator who has declared
himself available for the Presidency would be initiated without the instigation,
encouragement or approval of officials at the highest levels of the
Administration. Justice requires that the Ombudsman, an independent
constitutional office, handle the investigation and prosecution of this case.
The DOJ cannot act fairly and independently in this case. In fact, all of the
actions the DOJ has taken so far have been marked by bias, hounding and
persecution.
And finally, the charges laid against Senator Honasan are unfounded
concoctions of fertile imaginations. The petitioner had no role in the Oakwood
mutiny except the quell and pacify the angry young men fighting for a just
cause. Inspiration perhaps, from his National Recovery Program, but no
marching orders whatsoever."
Prosecutors, like Caesar's wife, must be beyond suspicion. Where the test of the
cold neutrality required of them cannot be met, they must yield to another office
especially where their jurisdiction is under question. The tenacious insistence of
respondents in handling the investigation of the case and their unwillingness to
transfer it to the Ombudsman in the face of their questionable jurisdiction are
indications of marked bias.
WHEREFORE, I vote to GRANT the petition and to order the Department of Justice
to refrain from conducting preliminary investigation of the complaint for coup
d'etat against petitioner for lack of jurisdiction.
REPUBLIC OF THE PHILIPPINES, petitioner, vs. CLAUDE A. MILLER and
JUMRUS S. MILLER, respondents.
DECISION
PARDO, J.:
The Republic of the Philippines, through the Solicitor General, appealed
originally to the Court of Appeals from a decision of the Regional Trial Court, Branch
59, Angeles City, granting the petition of respondent spouses to adopt the minor
Michael Magno Madayag.
In its decision promulgated on April 17, 1996, the Court of Appeals certified the
case to the Supreme Court because the petition raised only questions of law.
By resolution adopted on September 23, 1996, we accepted the appeal. We
shall treat the appeal as one via certiorari from a decision of the Regional Trial Court

46

under the Supreme Court Circular 2-90, dated March 9, 1990, on pure questions of
law.
The facts are undisputed and may be related as follows:
On July 29, 1988, the spouses Claude A. Miller and Jumrus S. Miller, filed with
the Regional Trial Court, Branch 59, Angeles City, a verified petition to adopt the
minor Michael Magno Madayag.
The trial court scheduled the petition for hearing on September 9, 1988, at 9:00
in the morning. At the hearing, with the attendance of an assistant city fiscal of
Angeles City, in representation of the Solicitor General, respondents adduced
evidence showing that:
"Claude A. Miller, 38 years old and Jumrus S. Miller, 40 years of age, both American
citizens, are husband and wife, having been married on June 21, 1982.
They were childless and "do not expect to have sibling out of their union on account
of a medical problem of the wife."
Claude A. Miller was a member of the United States Air Force, as airman first class,
assigned at Clark Air Base since January 26, 1985.
"The family maintains their residence at Don Bonifacio Subdivision, Balibago,
Angeles City, since 1985."[1]
"The minor Michael Magno Madayag is the legitimate son of Marcelo S. Madayag, Jr.
and Zenaida Magno. Born on July 14, 1987, at San Fernando, La Union, the minor
has been in the custody of respondents since the first week of August 1987. Poverty
and deep concern for the future of their son prompted the natural parents who have
no visible means of livelihood to have their child adopted by respondents. They
executed affidavits giving their irrevocable consent to the adoption by
respondents."
The Department of Social Welfare and Development, through its Regional Office at
San Fernando, Pampanga, recommended approval of the petition on the basis of its
evaluation that respondents were morally, emotionally and financially fit to be
adoptive parents and that the adoption would be to the minor's best interest and
welfare."[2]
On May 12, 1989, the trial court rendered decision granting the petition for
adoption, the dispositive portion of which reads as follows:

47

"WHEREFORE, finding that petitioners possess all the qualifications and none of the
disqualifications for adoption, the instant petition is hereby Granted, and this Court
decrees the minor MICHAEL MAGNO MADAYAG freed from all obligation of obedience
and support with respect to natural parents and is hereby declared the child of the
herein petitioners by adoption. The minor's surname shall be changed from
"MADAYAG" to "MILLER", which is the surname of the herein petitioners." [3]
In due time, the Solicitor General, in behalf of the Republic, interposed an
appeal to the Court of Appeals. As heretofore stated, the Court of Appeals certified
the case to this Court.
The issue raised is whether the court may allow aliens to adopt a Filipino child
despite the prohibition under the Family Code, [4] effective on August 3, 1988[5] when
the petition for adoption was filed on July 29, 1988, under the provision of the Child
and Youth Welfare Code[6] which allowed aliens to adopt.
The issue is not new. This Court has ruled that an alien qualified to adopt under
the Child and Youth Welfare Code, which was in force at the time of the filing of the
petition, acquired a vested right which could not be affected by the subsequent
enactment of a new law disqualifying him. [7] 7
Consequently, the enactment of the Family Code, effective August 3, 1988, will
not impair the right of respondents who are aliens to adopt a Filipino child because
the right has become vested at the time of filing of the petition for adoption and
shall be governed by the law then in force. "A vested right is one whose existence,
effectivity and extent does not depend upon events foreign to the will of the
holder. The term expresses the concept of present fixed interest which in right
reason and natural justice should be protected against arbitrary State action, or an
innately just and imperative right which enlightened free society, sensitive to
inherent and irrefragable individual rights, cannot deny." [8] "Vested rights include not
only legal or equitable title to the enforcement of a demand, but also an exemption
from new obligations created after the right has vested." [9]
"As long as the petition for adoption was sufficient in form and substance in
accordance with the law in governance at the time it was filed, the court acquires
jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction
of the court is determined by the statute in force at the time of the commencement
of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it
attaches cannot be ousted by a subsequent happenings or events, although of a
character which would have prevented jurisdiction from attaching in the first
instance."[10]

48

Therefore, an alien who filed a petition for adoption before the effectivity of the
Family code, although denied the right to adopt under Art. 184 of said Code, may
continue with his petition under the law prevailing before the Family Code. [11]
"Adoption statutes, being humane and salutary, hold the interests and welfare
of the child to be of paramount consideration. They are designed to provide homes,
parental care and education for unfortunate, needy or orphaned children and give
them the protection of society and family in the person of the adopter, as well as
childless couples or persons to experience the joy of parenthood and give them
legally a child in the person of the adopted for the manifestation of their natural
parent instincts. Every reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the law." [12]
WHEREFORE, we hereby AFFIRM the appealed decision of the Regional Trial
Court, Branch 59, Angeles City, in SP. Proc. No. 3562.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Kapunan, and Ynares-Santiago, JJ., concur.
EDUARDO P. MANUEL, G.R. No. 165842
Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x

49

DECISION
CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2] of the Regional Trial
Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in
Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the
accusatory portion of which reads:

50

That on or about the 22nd day of April, 1996, in the City of

Baguio, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused EDUARDO P. MANUEL, being then previously
and legally married to RUBYLUS [GAA] and without the said marriage
having been legally dissolved, did then and there willfully, unlawfully
and feloniously contract a second marriage with TINA GANDALERAMANUEL, herein complainant, who does not know the existence of the
first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa].

CONTRARY TO LAW.

[3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to
Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal. [4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to another, they went to a
motel where, despite Tinas resistance, Eduardo succeeded in having his way with
her. Eduardo proposed marriage on several occasions, assuring her that he was
single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and
was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the
Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their marriage
contract that Eduardo was single.

51

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress Point,
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
and went to their house only twice or thrice a year. Tina was jobless, and whenever
she asked money from Eduardo, he would slap her. [6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
financial support.

Sometime in August 2001, Tina became curious and made inquiries from the
National Statistics Office (NSO) in Manila where she learned that Eduardo had been
previously married. She secured an NSO-certified copy of the marriage contract.
[7]

She was so embarrassed and humiliated when she learned that Eduardo was in

fact already married when they exchanged their own vows. [8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she
worked as a Guest Relations Officer (GRO). He fell in love with her and married her.
He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless
agreed to marry him. Their marital relationship was in order until this one time when
he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo
further testified that he declared he was single in his marriage contract with Tina
because he believed in good faith that his first marriage was invalid. He did not
know that he had to go to court to seek for the nullification of his first marriage
before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was charged
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married Tina believing that his
first marriage was no longer valid because he had not heard from Rubylus for more
than 20 years.

52

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant Tina Gandalera the
amount of P200,000.00 by way of moral damages, plus costs of suit. [9]

The trial court ruled that the prosecution was able to prove beyond reasonable
doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It
declared that Eduardos belief, that his first marriage had been dissolved because of
his first wifes 20-year absence, even if true, did not exculpate him from liability for
bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further
ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private complainant, he
did so in good faith and without any malicious intent. He maintained that at the
time that he married the private complainant, he was of the honest belief that his
first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a felony.
He was not motivated by malice in marrying the private complainant because he
did so only out of his overwhelming desire to have a fruitful marriage. He posited
that the trial court should have taken into account Article 390 of the New Civil Code.
To support his view, the appellant cited the rulings of this Court in United States v.
Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

53

The Office of the Solicitor General (OSG) averred that Eduardos defense of
good faith and reliance on the Courts ruling in United States v. Enriquez [13] were
misplaced; what is applicable is Article 41 of the Family Code, which amended
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,
[14]

the OSG further posited that as provided in Article 41 of the Family Code, there is

a need for a judicial declaration of presumptive death of the absent spouse to

enable the present spouse to marry. Even assuming that the first marriage was void,
the parties thereto should not be permitted to judge for themselves the nullity of
the marriage; the matter should be submitted to the proper court for resolution.
Moreover, the OSG maintained, the private complainants knowledge of the first
marriage would not afford any relief since bigamy is an offense against the State
and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the
trial court was erroneous and sought the affirmance of the decision appealed from
with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with
modification as to the penalty of the accused. It ruled that the prosecution was able
to prove all the elements of bigamy. Contrary to the contention of the appellant,
Article 41 of the Family Code should apply. Before Manuel could lawfully marry the
private complainant, there should have been a judicial declaration of Gaas
presumptive death as the absent spouse. The appellate court cited the rulings of
this Court in Mercado v. Tan[15] andDomingo v. Court of Appeals [16] to support its
ruling. The dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision

promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it
hereby reflects, that accused-appellant is sentenced to an
indeterminate penalty of two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to ten (10) years of prision
mayor as maximum. Said Decision is AFFIRMED in all other respects.

SO ORDERED.[17]
54

Eduardo, now the petitioner, filed the instant petition for review on certiorari,
insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY
PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE
WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED
FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of
the felony, i.e., that the marriage has not been legally dissolved or, in case his/her
spouse is absent, the absent spouse could not yet be presumed dead under the Civil
Code. He avers that when he married Gandalera in 1996, Gaa had been absent for
21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as
a matter of law. He points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the
second paragraph refers to the rule on legal presumption of death with respect to
succession.

55

The petitioner asserts that the presumptive death of the absent spouse arises
by operation of law upon the satisfaction of two requirements: the specified period
and the present spouses reasonable belief that the absentee is dead. He insists that
he was able to prove that he had not heard from his first wife since 1975 and that
he had no knowledge of her whereabouts or whether she was still alive; hence,
under Article 41 of the Family Code, the presumptive death of Gaa had arisen by
operation of law, as the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be acquitted of the crime of
bigamy.

The petitioner insists that except for the period of absences provided for in
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid
and effective. Nowhere under Article 390 of the Civil Code does it require that there
must first be a judicial declaration of death before the rule on presumptive death
would apply. He further asserts that contrary to the rulings of the trial and appellate
courts, the requirement of a judicial declaration of presumptive death under Article
41 of the Family Code is only a requirement for the validity of the subsequent or
second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding
moral damages in favor of the private complainant. The private complainant was a
GRO before he married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial support. He also
pointed out that she had an illicit relationship with a lover whom she brought to
their house.

In its comment on the petition, the OSG maintains that the decision of the CA
affirming the petitioners conviction is in accord with the law, jurisprudence and the
evidence on record. To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

56

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent marriage before
the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse

legtimamente disuelto el anterior, ser castigado con la pena de prision
mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical
tie of marriage established by law. [20] The phrase or before the absent spouse had
been declared presumptively dead by means of a judgment rendered in the proper
proceedings was incorporated in the Revised Penal Code because the drafters of the
law were of the impression that in consonance with the civil law which provides for
the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a
justification for bigamy.[21]

For the accused to be held guilty of bigamy, the prosecution is burdened to prove
the felony: (a) he/she has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second marriage or
subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged
second marriage, having all the essential requirements, would be valid were it not
for the subsistence of the first marriage.[23] Viada avers that a third element of the
crime is that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony bydolo.
[24]

On the other hand, Cuello Calon is of the view that there are only two elements
57

of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and
(2) the celebration of a second marriage. It does not matter whether the first
marriage is void or voidable because such marriages have juridical effects until
lawfully dissolved by a court of competent jurisdiction. [25] As the Court ruled
in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of
the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

58

In his commentary on the Revised Penal Code, Albert is of the same view as
Viada and declared that there are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of
the act.[28] He explained that:

This last element is not stated in Article 349, because it is undoubtedly

incorporated in the principle antedating all codes, and, constituting
one of the landmarks of our Penal Code, that, where there is no
willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act
shall be deemed not to constitute a crime. Thus, a person who
contracts a second marriage in the reasonable and well-founded belief
that his first wife is dead, because of the many years that have elapsed
since he has had any news of her whereabouts, in spite of his
endeavors to find her, cannot be deemed guilty of the crime of bigamy,
because there is no fraudulent intent which is one of the essential
elements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a
felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides
that there is deceit when the act is performed with deliberate intent. Indeed, a
felony cannot exist without intent. Since a felony by dolo is classified as an
intentional felony, it is deemed voluntary. [30] Although the words with malice do not
appear in Article 3 of the Revised Penal Code, such phrase is included in the word
voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act

without legal excuse or justification from which another suffers injury. [32] When the
act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been intentional. [33] Indeed,
it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such

59

presumption must prevail unless a reasonable doubt exists from a consideration of

the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence of
both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaa
in 1975, and such marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.[36] The prosecution also proved that the petitioner
married the private complainant in 1996, long after the effectivity of the Family
Code.

The petitioner is presumed to have acted with malice or evil intent when he
married the private complainant. As a general rule, mistake of fact or good faith of
the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis neminem excusat.

60

It was the burden of the petitioner to prove his defense that when he married
the private complainant in 1996, he was of the well-grounded belief that his first
wife was already dead, as he had not heard from her for more than 20 years since
1975. He should have adduced in evidence a decision of a competent court
declaring the presumptive death of his first wife as required by Article 349 of the
Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial
declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as
a consequence, he could not be held guilty of bigamy in such case. The petitioner,
however, failed to discharge his burden.

The phrase or before the absent spouse has been declared presumptively
dead by means of a judgment rendered on the proceedings in Article 349 of the
Revised Penal Code was not an aggroupment of empty or useless words. The
requirement for a judgment of the presumptive death of the absent spouse is for
the benefit of the spouse present, as protection from the pains and the
consequences of a second marriage, precisely because he/she could be charged
and convicted of bigamy if the defense of good faith based on mere testimony is
found incredible.

The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and
strengthen the family as a basic autonomous social institution. Marriage is a social
institution of the highest importance. Public policy, good morals and the interest of
society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.
[37]

The laws regulating civil marriages are necessary to serve the interest, safety,

good order, comfort or general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil marriage anchors an
ordered society by encouraging stable relationships over transient ones; it enhances
the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations to
61

each other and the State touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent parties and to
society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the
presumptive death of the absent spouse [38] after the lapse of the period provided for
under the law. One such means is the requirement of the declaration by a
competent court of the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, men readily believe what they wish to be true, is a
maxim of the old jurists. To sustain a second marriage and to vacate a first because
one of the parties believed the other to be dead would make the existence of the
marital relation determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective condition of individuals.
[39]

Only with such proof can marriage be treated as so dissolved as to permit second

marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution
of marriage dependent not only upon the personal belief of parties, but upon certain
objective facts easily capable of accurate judicial cognizance, [41] namely, a judgment
of the presumptive death of the absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his
acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or

not, the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.

62

Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

(1)

A person on board a vessel lost during a sea voyage, or

an aeroplane which is missing, who has not been heard of
for four years since the loss of the vessel or aeroplane;

(2)

A person in the armed forces who has taken part in war,

and has been missing for four years;

(3)

A person who has been in danger of death under other

circumstances and his existence has not been known for
four years.

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is created by law
and arises without any necessity of judicial declaration. [42] However, Article 41 of the
Family Code, which amended the foregoing rules on presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of

a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a wellfounded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Court for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance
of the absent spouse.[43]

With the effectivity of the Family Code, [44] the period of seven years under the
first paragraph of Article 390 of the Civil Code was reduced to four consecutive
63

years. Thus, before the spouse present may contract a subsequent marriage, he or
she must institute summary proceedings for the declaration of the presumptive
death of the absentee spouse, [45] without prejudice to the effect of the reappearance
of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a

subsequent bigamous marriage may exceptionally be considered valid,
the following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years, or
two years where there is danger of death under the circumstances
stated in Article 391 of the Civil Code at the time of disappearance; (b)
the spouse present has a well-founded belief that the absent spouse is
already dead; and (c) there is, unlike the old rule, a judicial declaration
of presumptive death of the absentee for which purpose the spouse
present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the
requirement of judicial intervention in subsequent marriages as so
provided in Article 41, in relation to Article 40, of the Family Code.

The Court rejects petitioners contention that the requirement of instituting a

petition for declaration of presumptive death under Article 41 of the Family Code is
designed merely to enable the spouse present to contract a valid second marriage
and not for the acquittal of one charged with bigamy. Such provision was designed
to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the
confusion spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
purposes of the marriage law, it is not necessary to have the former spouse
judicially declared an absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse
had been absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be living, that
64

such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage. [48] In In Re Szatraw,[49] the
Court declared that a judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven years, being a presumption juris
tantumonly, subject to contrary proof, cannot reach the stage of finality or become
final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a judicial decree declaring
a person presumptively dead because he or she had not been heard from in seven
years cannot become final and executory even after the lapse of the reglementary
period within which an appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for such a declaration is
useless, unnecessary, superfluous and of no benefit to the petitioner. The Court
stated that it should not waste its valuable time and be made to perform a
superfluous and meaningless act. [50] The Court also took note that a petition for a
declaration of the presumptive death of an absent spouse may even be made in
collusion with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the words
proper proceedings in Article 349 of the Revised Penal Code can only refer to those
authorized by law such as Articles 390 and 391 of the Civil Code which refer to the
administration or settlement of the estate of a deceased person. In Gue v. Republic
of the Philippines,[52] the Court rejected the contention of the petitioner therein that,
under Article 390 of the Civil Code, the courts are authorized to declare the
presumptive death of a person after an absence of seven years. The Court
reiterated its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that the provision of
Article 349 or before the absent spouse has been declared presumptively dead by
means of a judgment reached in the proper proceedings is erroneous and should be
considered as not written. He opined that such provision presupposes that, if the
prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. [53] A second
marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article
65

83 of the Civil Code are not present. [54] Former Senator Ambrosio Padilla was,
likewise, of the view that Article 349 seems to require judicial decree of dissolution
or judicial declaration of absence but even with such decree, a second marriage in
good faith will not constitute bigamy. He posits that a second marriage, if not illegal,
even if it be annullable, should not give rise to bigamy. [55] Former Justice Luis B.
Reyes, on the other hand, was of the view that in the case of an absent spouse who
could not yet be presumed dead according to the Civil Code, the spouse present
cannot be charged and convicted of bigamy in case he/she contracts a second
marriage.[56]

The Committee tasked to prepare the Family Code proposed the amendments
of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised
Penal Code, in that, in a case where a spouse is absent for the requisite period, the
present spouse may contract a subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to avoid being charged and
convicted of bigamy; the present spouse will have to adduce evidence that he had a
well-founded belief that the absent spouse was already dead. [57] Such judgment is
proof of the good faith of the present spouse who contracted a subsequent
marriage; thus, even if the present spouse is later charged with bigamy if the
absentee spouse reappears, he cannot be convicted of the crime. As explained by
former Justice Alicia Sempio-Diy:

Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of
presumptive death of the absent spouse in order not to be guilty of
bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that
for the purpose of the present spouse contracting a second marriage,
he or she must file a summary proceeding as provided in the Code for
the declaration of the presumptive death of the absentee, without
prejudice to the latters reappearance. This provision is intended to
protect the present spouse from a criminal prosecution for bigamy
under Art. 349 of the Revised Penal Code because with the judicial
declaration that the missing spouses presumptively dead, the good

66

faith of the present spouse in contracting a second marriage is already

established.[58]

67

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of

Justice) who wrote that things are now clarified. He says judicial declaration of
presumptive death is now authorized for purposes of remarriage. The present
spouse must institute a summary proceeding for declaration of presumptive death
of the absentee, where the ordinary rules of procedure in trial will not be followed.
Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge
finds it necessary for a full grasp of the facts. The judgment declaring an absentee
as presumptively dead is without prejudice to the effect of reappearance of the said
absentee.

Dean Pineda further states that before, the weight of authority is that the
clause before the absent spouse has been declared presumptively dead x x x should
be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new
law, there is a need to institute a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is bigamy. [59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent

authority on Criminal Law, in some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of presumptive death, which could
then be made only in the proceedings for the settlement of his estate. [60] Before
such declaration, it was held that the remarriage of the other spouse is bigamous
even if done in good faith. [61] Justice Regalado opined that there were contrary views
because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code,
which, however, appears to have been set to rest by Article 41 of the Family Code,
which requires a summary hearing for the declaration of presumptive death of the
absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may be
filed under Articles 239 to 247 of the same Code. [62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for
awarding moral damages in favor of the private complainant. The petitioner
68

maintains that moral damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts
that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an
award of moral damages for bigamy was disallowed. In any case, the petitioner
maintains, the private complainant failed to adduce evidence to prove moral
damages.

The appellate court awarded moral damages to the private complainant on

its finding that she adduced evidence to prove the same. The appellate court ruled
that while bigamy is not included in those cases enumerated in Article 2219 of the
Civil Code, it is not proscribed from awarding moral damages against the petitioner.
The appellate court ruled that it is not bound by the following ruling in People v.
Bondoc:

... Pero si en dichos asuntos se adjudicaron daos, ello se debi

indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas
autoriza la adjudicacin de daos morales en los delitos de estupro,
rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin
incluir en esta enumeracin el delito de bigamia. No existe, por
consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not bound by its
ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendants wrongful act or
omission.[65] An award for moral damages requires the confluence of the following
69

conditions: first, there must be an injury, whether physical, mental or psychological,

clearly sustained by the claimant;second, there must be culpable act or omission
factually established; third, the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant; and fourth, the award of
damages is predicated on any of the cases stated in Article 2219 or Article 2220 of
the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in

criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and
analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29,
30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused,

referred to in No. 3 of this article, may also recover moral damages.

70

The spouse, descendants, ascendants, and brothers and sisters

may bring the action mentioned in No. 9 of this article in the order
named.

Thus, the law does not intend that moral damages should be awarded in all cases
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury arising out of an act or omission of another, otherwise, there would not
have been any reason for the inclusion of specific acts in Article 2219 [67] and
analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of

the Civil Code in which the offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the petitioner is liable to the
private complainant for moral damages under Article 2219 in relation to Articles 19,
20 and 21 of the Civil Code.

According to Article 19, every person must, in the exercise of his rights and in
the performance of his act with justice, give everyone his due, and observe honesty
and good faith. This provision contains what is commonly referred to as the principle
of abuse of rights, and sets certain standards which must be observed not only in
the exercise of ones rights but also in the performance of ones duties. The
standards are the following: act with justice; give everyone his due; and observe
honesty and good faith. The elements for abuse of rights are: (a) there is a legal
right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or
injuring another.[69]

71

Article 20 speaks of the general sanctions of all other provisions of law which
do not especially provide for its own sanction. When a right is exercised in a manner
which does not conform to the standards set forth in the said provision and results
in damage to another, a legal wrong is thereby committed for which the wrongdoer
must be responsible.[70] If the provision does not provide a remedy for its violation,
an action for damages under either Article 20 or Article 21 of the Civil Code would
be proper. Article 20 provides that every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the latter for the same. On
the other hand, Article 21 provides that any person who willfully causes loss or
injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for damages. The latter provision is adopted to
remedy the countless gaps in the statutes which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury
should vouchsafe adequate legal remedy for that untold number of moral wrongs
which it is impossible for human foresight to prove for specifically in the statutes.
Whether or not the principle of abuse of rights has been violated resulting in
damages under Article 20 or Article 21 of the Civil Code or other applicable
provisions of law depends upon the circumstances of each case. [71]

In the present case, the petitioner courted the private complainant and proposed to
marry her. He assured her that he was single. He even brought his parents to the
house of the private complainant where he and his parents made the same
assurance that he was single. Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage that he was single. She
lived with the petitioner and dutifully performed her duties as his wife, believing all
the while that he was her lawful husband. For two years or so until the petitioner
heartlessly abandoned her, the private complainant had no inkling that he was
already married to another before they were married.

72

Thus, the private complainant was an innocent victim of the petitioners

chicanery and heartless deception, the fraud consisting not of a single act alone,
but a continuous series of acts. Day by day, he maintained the appearance of being
a lawful husband to the private complainant, who changed her status from a single
woman to a married woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental pain and humiliation,
being bound to a man who it turned out was not her lawful husband. [72]

The Court rules that the petitioners collective acts of fraud and deceit before,
during and after his marriage with the private complainant were willful, deliberate
and with malice and caused injury to the latter. That she did not sustain any
physical injuries is not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,[73] the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent

physical injuries, damages for shame, humiliation, and mental anguish
are not recoverable where the actor is simply negligent. See Prosser,
supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the
authorities all recognize that where the wrong is willful rather than
negligent, recovery may be had for the ordinary, natural, and
proximate consequences though they consist of shame, humiliation,
and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL
90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc.,
Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953);
Prosser, supra, at p. 38. Here the defendants conduct was not merely
negligent, but was willfully and maliciously wrongful. It was bound to
result in shame, humiliation, and mental anguish for the plaintiff, and
when such result did ensue the plaintiff became entitled not only to
compensatory but also to punitive damages. See Spiegel v. Evergreen
Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra.
CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517
(1957). The plaintiff testified that because of the defendants bigamous
marriage to her and the attendant publicity she not only was
embarrassed and ashamed to go out but couldnt sleep but couldnt eat,
had terrific headaches and lost quite a lot of weight. No just basis
appears for judicial interference with the jurys reasonable allowance of
$1,000 punitive damages on the first count. See Cabakov v. Thatcher,
37 N.J. Super 249, 117 A.2d 298 (App. Div. [74] 1955).

73

The Court thus declares that the petitioners acts are against public policy as they
undermine and subvert the family as a social institution, good morals and the
interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioners

perfidy,

she

is

not

barred

from

claiming

moral

damages.

Besides,

even

considerations of public policy would not prevent her from recovery. As held
in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another

to do an act which, in consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but which is in fact a
criminal offense, he has a right of action against the person so
inducing him for damages sustained by him in consequence of his
having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper
v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court
said that a false representation by the defendant that he was divorced
from his former wife, whereby the plaintiff was induced to marry him,
gave her a remedy in tort for deceit. It seems to have been assumed
that the fact that she had unintentionally violated the law or innocently
committed a crime by cohabiting with him would be no bar to the
action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by
the promise to give the fellowship and assistance of a wife to one who
was not her husband and to assume and act in a relation and condition
that proved to be false and ignominious. Damages for such an injury
were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and
Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of
action upon any transgression of the law by herself but upon the
defendants misrepresentation. The criminal relations which followed,
innocently on her part, were but one of the incidental results of the
defendants fraud for which damages may be assessed.

74

[7] Actions for deceit for fraudulently inducing a woman to enter

into the marriage relation have been maintained in other jurisdictions.
Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819;
Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37
N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33
L.R.A. 411. Considerations of public policy would not prevent recovery
where the circumstances are such that the plaintiff was conscious of no
moral turpitude, that her illegal action was induced solely by the
defendants misrepresentation, and that she does not base her cause of
action upon any transgression of the law by herself. Such
considerations distinguish this case from cases in which the court has
refused to lend its aid to the enforcement of a contract illegal on its
face or to one who has consciously and voluntarily become a party to
an illegal act upon which the cause of action is founded. Szadiwicz v.
Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958. [76]

Considering the attendant circumstances of the case, the Court finds the award
of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed

decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.
PHILIPPINE BANK OF COMMUNICATIONS, petitioner, vs. COMMISSIONER OF
INTERNAL REVENUE, COURT OF TAX APPEALS and COURT OF
APPEALS, respondents.
DECISION
QUISUMBING, J.:
This petition for review assails the Resolution [1] of the Court of Appeals dated
September 22, 1993, affirming the Decision[2] and Resolution[3] of the Court of Tax
Appeals which denied the claims of the petitioner for tax refund and tax credits,
and disposing as follows:

75

IN VIEW OF ALL THE FOREGOING, the instant petition for review is DENIED due
course. The Decision of the Court of Tax Appeals dated May 20, 1993 and its
resolution dated July 20, 1993, are hereby AFFIRMED in toto.
SO ORDERED.[4]
The Court of Tax Appeals earlier ruled as follows:
WHEREFORE, petitioners claim for refund/tax credit of overpaid income tax for 1985
in the amount of P5,299,749.95 is hereby denied for having been filed beyond the
reglementary period. The 1986 claim for refund amounting to P234,077.69 is
likewise denied since petitioner has opted and in all likelihood automatically
credited the same to the succeeding year. The petition for review is dismissed for
lack of merit.
SO ORDERED.[5]
The facts on record show the antecedent circumstances pertinent to this case.
Petitioner, Philippine Bank of Communications (PBCom), a commercial banking
corporation duly organized under Philippine laws, filed its quarterly income tax
returns for the first and second quarters of 1985, reported profits, and paid the total
income tax of P5,016,954.00. The taxes due were settled by applying PBComs tax
credit memos and accordingly, the Bureau of Internal Revenue (BIR) issued Tax
Debit Memo Nos. 0746-85 and 0747-85 for P3,401,701.00 and P1, 615,253.00,
respectively.
Subsequently, however, PBCom suffered losses so that when it filed its Annual
Income Tax Returns for the year-ended December 31, 1985, it declared a net loss
of P25,317,228.00, thereby showing no income tax liability. For the succeeding year,
ending December 31, 1986, the petitioner likewise reported a net loss
of P14,129,602.00, and thus declared no tax payable for the year.
But during these two years, PBCom earned rental income from leased
properties. The lessees withheld and remitted to the BIR withholding creditable
taxes of P282,795.50 in 1985 and P234,077.69 in 1986.
On August 7, 1987, petitioner requested the Commissioner of Internal Revenue,
among others, for a tax credit of P5,016,954.00 representing the overpayment of
taxes in the first and second quarters of 1985.
Thereafter, on July 25, 1988, petitioner filed a claim for refund of creditable
taxes withheld by their lessees from property rentals in 1985 for P282,795.50 and in
1986 for P234,077.69.
Pending the investigation of the respondent Commissioner of Internal Revenue,
petitioner instituted a Petition for Review on November 18, 1988 before the Court of
Tax Appeals (CTA). The petition was docketed as CTA Case No. 4309
entitled: Philippine Bank of Communications vs. Commissioner of Internal Revenue.
The losses petitioner incurred as per the summary of petitioners claims for
refund and tax credit for 1985 and 1986, filed before the Court of Tax Appeals, are
as follows:
76

1985

1986

Net Income (Loss)

(P25,317,228.00)

(P14,129,602.00)

Tax Due

NIL

NIL

Quarterly tax
Payments Made

5,016,954.00

---

Tax
Withheld
Source

Excess
Payments

at 282,795.50

Tax

234,077.69

P5,299,749.50*===
===========

P234,077.69===
===========

*CTAs decision reflects PBComs 1985 tax claim as P5,299,749.95. A forty-five

centavo difference was noted.
On May 20, 1993, the CTA rendered a decision which, as stated on the outset,
denied the request of petitioner for a tax refund or credit in the sum amount
of P5,299,749.95, on the ground that it was filed beyond the two-year reglementary
period provided for by law. The petitioners claim for refund in 1986 amounting
to P234,077.69 was likewise denied on the assumption that it was automatically
credited by PBCom against its tax payment in the succeeding year.
On June 22, 1993, petitioner filed a Motion for Reconsideration of the CTAs
decision but the same was denied due course for lack of merit. [6]
Thereafter, PBCom filed a petition for review of said decision and resolution of
the CTA with the Court of Appeals. However on September 22, 1993, the Court of
Appeals affirmed in toto the CTAs resolution dated July 20, 1993. Hence this petition
now before us.
The issues raised by the petitioner are:
I. Whether taxpayer PBCom -- which relied in good faith on the formal
assurances of BIR in RMC No. 7-85 and did not immediately file with the
CTA a petition for review asking for the refund/tax credit of its 1985-86
excess quarterly income tax payments -- can be prejudiced by the
subsequent BIR rejection, applied retroactively, of its assurances in RMC
No. 7-85 that the prescriptive period for the refund/tax credit of excess
quarterly income tax payments is not two years but ten (10). [7]

77

II. Whether the Court of Appeals seriously erred in affirming the CTA decision
which denied PBComs claim for the refund of P234,077.69 income tax
overpaid in 1986 on the mere speculation, without proof, that there were
taxes due in 1987 and that PBCom availed of tax-crediting that year. [8]
Simply stated, the main question is: Whether or not the Court of Appeals erred
in denying the plea for tax refund or tax credits on the ground of prescription,
despite petitioners reliance on RMC No. 7-85, changing the prescriptive period of
two years to ten years?
Petitioner argues that its claims for refund and tax credits are not yet barred by
prescription relying on the applicability of Revenue Memorandum Circular No. 7-85
issued on April 1, 1985. The circular states that overpaid income taxes are not
covered by the two-year prescriptive period under the tax Code and that taxpayers
may claim refund or tax credits for the excess quarterly income tax with the BIR
within ten (10) years under Article 1144 of the Civil Code. The pertinent portions of
the circular reads:
REVENUE MEMORANDUM CIRCULAR NO. 7-85
SUBJECT: PROCESSING OF REFUND OR TAX CREDIT OF EXCESS CORPORATE
INCOME TAX RESULTING FROM THE FILING OF THE FINAL
ADJUSTMENT RETURN
TO: All Internal Revenue Officers and Others Concerned
Sections 85 and 86 of the National Internal Revenue Code provide:
xxxxxxxxx
The foregoing provisions are implemented by Section 7 of Revenue Regulations Nos.
10-77 which provide:
xxxxxxxxx
It has been observed, however, that because of the excess tax payments,
corporations file claims for recovery of overpaid income tax with the Court of Tax
Appeals within the two-year period from the date of payment, in accordance with
Sections 292 and 295 of the National Internal Revenue Code. It is obvious that the
filing of the case in court is to preserve the judicial right of the corporation to claim
the refund or tax credit.
It should be noted, however, that this is not a case of erroneously or illegally paid
tax under the provisions of Sections 292 and 295 of the Tax Code.
In the above provision of the Regulations the corporation may request for the refund
of the overpaid income tax or claim for automatic tax credit. To insure prompt action
on corporate annual income tax returns showing refundable amounts arising from
overpaid quarterly income taxes, this Office has promulgated Revenue
Memorandum Order No. 32-76 dated June 11, 1976, containing the procedure in
78

processing said returns. Under these procedures, the returns are merely pre-audited
which consist mainly of checking mathematical accuracy of the figures of the
return. After which, the refund or tax credit is granted, and, this procedure was
adopted to facilitate immediate action on cases like this.
In this regard, therefore, there is no need to file petitions for review in the
Court of Tax Appeals in order to preserve the right to claim refund or tax
credit within the two-year period. As already stated, actions hereon by the
Bureau are immediate after only a cursory pre-audit of the income tax
returns. Moreover, a taxpayer may recover from the Bureau of Internal Revenue
excess income tax paid under the provisions of Section 86 of the Tax Code within 10
years from the date of payment considering that it is an obligation created by law
(Article 1144 of the Civil Code).[9] (Emphasis supplied.)
Petitioner argues that the government is barred from asserting a position
contrary to its declared circular if it would result to injustice to
taxpayers. Citing ABS-CBN
Broadcasting
Corporation
vs.
Court
of
Tax
Appeals[10] petitioner claims that rulings or circulars promulgated by the
Commissioner of Internal Revenue have no retroactive effect if it would be
prejudicial to taxpayers. In ABS-CBN case, the Court held that the government is
precluded from adopting a position inconsistent with one previously taken where
injustice would result therefrom or where there has been a misrepresentation to the
taxpayer.
Petitioner contends that Sec. 246 of the National Internal Revenue Code
explicitly provides for this rule as follows:
Sec. 246. Non-retroactivity of rulings-- Any revocation, modification or reversal of
any of the rules and regulations promulgated in accordance with the preceding
section or any of the rulings or circulars promulgated by the Commissioner shall not
be given retroactive application if the revocation, modification, or reversal will be
prejudicial to the taxpayers except in the following cases:
a) where the taxpayer deliberately misstates or omits material facts from his return
or in any document required of him by the Bureau of Internal Revenue;
b) where the facts subsequently gathered by the Bureau of Internal Revenue are
materially different from the facts on which the ruling is based;
c) where the taxpayer acted in bad faith.
Respondent Commissioner of Internal Revenue, through the Solicitor General,
argues that the two-year prescriptive period for filing tax cases in court concerning
income tax payments of Corporations is reckoned from the date of filing the Final
Adjusted Income Tax Return, which is generally done on April 15 following the close
of the calendar year. As precedents, respondent Commissioner cited cases which
adhered to this principle, to wit: ACCRA Investments Corp. vs. Court of Appeals, et
al.,[11] and Commissioner of Internal Revenue vs. TMX Sales, Inc., et al..
[12]
Respondent Commissioner also states that since the Final Adjusted Income Tax
Return of the petitioner for the taxable year 1985 was supposed to be filed on April
79

15, 1986, the latter had only until April 15, 1988 to seek relief from the
court.Further, respondent Commissioner stresses that when the petitioner filed the
case before the CTA on November 18, 1988, the same was filed beyond the time
fixed by law, and such failure is fatal to petitioners cause of action.
After a careful study of the records and applicable jurisprudence on the matter,
we find that, contrary to the petitioners contention, the relaxation of revenue
regulations by RMC 7-85 is not warranted as it disregards the two-year prescriptive
period set by law.
Basic is the principle that taxes are the lifeblood of the nation. The primary
purpose is to generate funds for the State to finance the needs of the citizenry and
to advance the common weal.[13] Due process of law under the Constitution does not
require judicial proceedings in tax cases. This must necessarily be so because it is
upon taxation that the government chiefly relies to obtain the means to carry on its
operations and it is of utmost importance that the modes adopted to enforce the
collection of taxes levied should be summary and interfered with as little as
possible.[14]
From the same perspective, claims for refund or tax credit should be exercised
within the time fixed by law because the BIR being an administrative body enforced
to collect taxes, its functions should not be unduly delayed or hampered by
incidental matters.
Section 230 of the National Internal Revenue Code (NIRC) of 1977 (now Sec.
229, NIRC of 1997) provides for the prescriptive period for filing a court proceeding
for the recovery of tax erroneously or illegally collected, viz.:
Sec. 230. Recovery of tax erroneously or illegally collected. -- No suit or proceeding
shall be maintained in any court for the recovery of any national internal revenue
tax hereafter alleged to have been erroneously or illegally assessed or collected, or
of any penalty claimed to have been collected without authority, or of any sum
alleged to have been excessive or in any manner wrongfully collected, until a claim
for refund or credit has been duly filed with the Commissioner; but such suit or
proceeding may be maintained, whether or not such tax, penalty, or sum has been
paid under protest or duress.
In any case, no such suit or proceeding shall be begun after the expiration of two
years from the date of payment of the tax or penalty regardless of any supervening
cause that may arise after payment; Provided however, That the Commissioner
may, even without a written claim therefor, refund or credit any tax, where on the
face of the return upon which payment was made, such payment appears clearly to
have been erroneously paid. (Italics supplied)
The rule states that the taxpayer may file a claim for refund or credit with the
Commissioner of Internal Revenue, within two (2) years after payment of tax, before
any suit in CTA is commenced. The two-year prescriptive period provided, should be
computed from the time of filing the Adjustment Return and final payment of the
tax for the year.
[15]

In Commissioner of Internal Revenue vs. Philippine American Life Insurance Co.,

this Court explained the application of Sec. 230 of 1977 NIRC, as follows:
80

Clearly, the prescriptive period of two years should commence to run only from the
time that the refund is ascertained, which can only be determined after a final
adjustment return is accomplished. In the present case, this date is April 16, 1984,
and two years from this date would be April 16, 1986. x x x As we have earlier said
in the TMX Sales case, Sections 68, [16] 69,[17] and 70[18] on Quarterly Corporate
Income Tax Payment and Section 321 should be considered in conjunction with it. [19]
When the Acting Commissioner of Internal Revenue issued RMC 7-85, changing
the prescriptive period of two years to ten years on claims of excess quarterly
income tax payments, such circular created a clear inconsistency with the provision
of Sec. 230 of 1977 NIRC. In so doing, the BIR did not simply interpret the law;
rather it legislated guidelines contrary to the statute passed by Congress.
It bears repeating that Revenue memorandum-circulars are considered
administrative rulings (in the sense of more specific and less general interpretations
of tax laws) which are issued from time to time by the Commissioner of Internal
Revenue. It is widely accepted that the interpretation placed upon a statute by the
executive officers, whose duty is to enforce it, is entitled to great respect by the
courts.Nevertheless, such interpretation is not conclusive and will be ignored if
judicially found to be erroneous.[20] Thus, courts will not countenance administrative
issuances that override, instead of remaining consistent and in harmony with, the
law they seek to apply and implement.[21]
In the case of People vs. Lim,[22] it was held that rules and regulations issued by
administrative officials to implement a law cannot go beyond the terms and
provisions of the latter.
Appellant contends that Section 2 of FAO No. 37-1 is void because it is not only
inconsistent with but is contrary to the provisions and spirit of Act. No. 4003 as
amended, because whereas the prohibition prescribed in said Fisheries Act was for
any single period of time not exceeding five years duration, FAO No. 37-1 fixed no
period, that is to say, it establishes an absolute ban for all time. This discrepancy
between Act No. 4003 and FAO No. 37-1 was probably due to an oversight on the
part of Secretary of Agriculture and Natural Resources. Of course, in case of
discrepancy, the basic Act prevails, for the reason that the regulation or rule issued
to implement a law cannot go beyond the terms and provisions of the latter. x x x
In this connection, the attention of the technical men in the offices of Department
Heads who draft rules and regulation is called to the importance and necessity of
closely following the terms and provisions of the law which they intended to
implement, this to avoid any possible misunderstanding or confusion as in the
present case.[23]
Further, fundamental is the rule that the State cannot be put in estoppel by the
mistakes or errors of its officials or agents. [24] As pointed out by the respondent
courts, the nullification of RMC No. 7-85 issued by the Acting Commissioner of
Internal Revenue is an administrative interpretation which is not in harmony with
Sec. 230 of 1977 NIRC, for being contrary to the express provision of a
statute. Hence, his interpretation could not be given weight for to do so would, in
effect, amend the statute.
As aptly stated by respondent Court of Appeals:
81

It is likewise argued that the Commissioner of Internal Revenue, after promulgating

RMC No. 7-85, is estopped by the principle of non-retroactivity of BIR rulings. Again
We do not agree. The Memorandum Circular, stating that a taxpayer may recover
the excess income tax paid within 10 years from date of payment because this is an
obligation created by law, was issued by the Acting Commissioner of Internal
Revenue. On the other hand, the decision, stating that the taxpayer should still file
a claim for a refund or tax credit and the corresponding petition for review within
the two-year prescription period, and that the lengthening of the period of limitation
on refund from two to ten years would be adverse to public policy and run counter
to the positive mandate of Sec. 230, NIRC, - was the ruling and judicial
interpretation of the Court of Tax Appeals. Estoppel has no application in the case at
bar because it was not the Commissioner of Internal Revenue who denied
petitioners claim of refund or tax credit. Rather, it was the Court of Tax Appeals who
denied (albeit correctly) the claim and in effect, ruled that the RMC No. 7-85 issued
by the Commissioner of Internal Revenue is an administrative interpretation which
is out of harmony with or contrary to the express provision of a statute (specifically
Sec. 230, NIRC), hence, cannot be given weight for to do so would in effect amend
the statute.[25]
Article 8 of the Civil Code[26] recognizes judicial decisions, applying or
interpreting statutes as part of the legal system of the country. But administrative
decisions do not enjoy that level of recognition.A memorandum-circular of a bureau
head could not operate to vest a taxpayer with a shield against judicial action. For
there are no vested rights to speak of respecting a wrong construction of the law by
the administrative officials and such wrong interpretation could not place the
Government in estoppel to correct or overrule the same.[27] Moreover, the nonretroactivity of rulings by the Commissioner of Internal Revenue is not applicable in
this case because the nullity of RMC No. 7-85 was declared by respondent courts
and not by the Commissioner of Internal Revenue. Lastly, it must be noted that, as
repeatedly held by this Court, a claim for refund is in the nature of a claim for
exemption and should be construed in strictissimi juris against the taxpayer.[28]
On the second issue, the petitioner alleges that the Court of Appeals seriously
erred in affirming CTAs decision denying its claim for refund of P 234,077.69 (tax
overpaid in 1986), based on mere speculation, without proof, that PBCom availed of
the automatic tax credit in 1987.
Sec. 69 of the 1977 NIRC [29] (now Sec. 76 of the 1997 NIRC) provides that any
excess of the total quarterly payments over the actual income tax computed in the
adjustment or final corporate income tax return, shall either (a) be refunded to the
corporation, or (b) may be credited against the estimated quarterly income tax
liabilities for the quarters of the succeeding taxable year.
The corporation must signify in its annual corporate adjustment return (by
marking the option box provided in the BIR form) its intention, whether to request
for a refund or claim for an automatic tax credit for the succeeding taxable year. To
ease the administration of tax collection, these remedies are in the alternative, and
the choice of one precludes the other.
As stated by respondent Court of Appeals:

82

Finally, as to the claimed refund of income tax over-paid in 1986 - the Court of Tax
Appeals, after examining the adjusted final corporate annual income tax return for
taxable year 1986, found out that petitioner opted to apply for automatic tax
credit. This was the basis used (vis-avis the fact that the 1987 annual corporate tax
return was not offered by the petitioner as evidence) by the CTA in concluding that
petitioner had indeed availed of and applied the automatic tax credit to the
succeeding year, hence it can no longer ask for refund, as to [sic] the two remedies
of refund and tax credit are alternative.[30]
That the petitioner opted for an automatic tax credit in accordance with Sec. 69
of the 1977 NIRC, as specified in its 1986 Final Adjusted Income Tax Return, is a
finding of fact which we must respect.Moreover, the 1987 annual corporate tax
return of the petitioner was not offered as evidence to controvert said fact. Thus, we
are bound by the findings of fact by respondent courts, there being no showing of
gross error or abuse on their part to disturb our reliance thereon. [31]
WHEREFORE, the petition is hereby DENIED. The decision of the Court of
Appeals appealed from is AFFIRMED, with COSTS against the petitioner.
SO ORDERED.
LORNA GUILLEN PESCA, petitioner, vs. ZOSIMO A. PESCA, respondent.
DECISION
VITUG, J.:
Submitted for review is the decision of the Court of Appeals, promulgated on 27
May 1998, in C.A. G.R. CV. No. 52374, reversing the decision of the Regional Trial
Court (RTC) of Caloocan City, Branch 130, which has declared the marriage between
petitioner and respondent to be null and void ab initio on the ground of
psychological incapacity on the part of respondent.
Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met sometime in
1975 while on board an inter-island vessel bound for Bacolod City. After a whirlwind
courtship, they got married on 03 March 1975. Initially, the young couple did not
live together as petitioner was still a student in college and respondent, a seaman,
had to leave the country on board an ocean-going vessel barely a month after the
marriage. Six months later, the young couple established their residence in Quezon
City until they were able to build their own house in Caloocan City where they finally
resided. It was blissful marriage for the couple during the two months of the year
that they could stay together when respondent was on vacation. The union begot
four children, 19-year old Ruhem, 17-year old Rez, 11-year old Ryan, and 9-year old
Richie.
It started in 1988, petitioner said, when she noticed that respondent surprisingly
showed signs of psychological incapacity to perform his marital covenant. His "true
83

color" of being an emotionally immature and irresponsible husband became

apparent. He was cruel and violent. He was a habitual drinker, staying with friends
daily from 4:00 o'clock in the afternoon until 1:00 o'clock in the morning.When
cautioned to stop or, to at least, minimize his drinking, respondent would beat, slap
and kick her. At one time, he chased petitioner with a loaded shotgun and
threatened to kill her in the presence of the children. The children themselves were
not spared from physical violence.
Finally, on 19 November 1992, petitioner and her children left the conjugal
abode to live in the house of her sister in Quezon City as they could no longer bear
his violent ways. Two months later, petitioner decided to forgive respondent, and
she returned home to give him a chance to change. But, to her dismay, things did
not so turn out as expected. Indeed, matters became worse.
On the morning of 22 March 1994, about eight oclock, respondent assaulted
petitioner for about half an hour in the presence of the children. She was battered
black and blue. She submitted herself to medical examination at the Quezon City
General Hospital, which diagnosed her injuries as contusions and abrasions.
Petitioner filed a complaint with the barangay authorities, and a case was filed
against respondent for slight physical injuries. He was convicted by the Metropolitan
Trial Court of Caloocan City and sentenced to eleven days of imprisonment.
This time, petitioner and her children left the conjugal home for good and
stayed with her sister. Eventually, they decided to rent an apartment. Petitioner
sued respondent before the Regional Trial Court for the declaration of nullity of their
marriage invoking psychological incapacity. Petitioner likewise sought the custody of
her minor children and prayed for support pendente lite.
Summons, together with a copy of the complaint, was served on respondent on
25 April 1994 by personal service by the sheriff. As respondent failed to file an
answer or to enter his appearance within the reglementary period, the trial court
ordered the city prosecutor to look into a possible collusion between the parties.
Prosecutor Rosa C. Reyes, on 03 August 1994, submitted her report to the effect
that she found no evidence to establish that there was collusion between the
parties.
On 11 January 1995, respondent belatedly filed, without leave of court, an
answer, and the same, although filed late, was admitted by the court. In his answer,
respondent admitted the fact of his marriage with petitioner and the birth of their
children. He also confirmed the veracity of Annex "A" of the complaint which listed
the conjugal property. Respondent vehemently denied, however, the allegation that
he was psychologically incapacitated.

84

On 15 November 1995, following hearings conducted by it, the trial court

rendered its decision declaring the marriage between petitioner and respondent to
be null and void ab initio on the basis of psychological incapacity on the part of
respondent and ordered the liquidation of the conjugal partnership.
Respondent appealed the above decision to the Court of Appeals, contending
that the trial court erred, particularly, in holding that there was legal basis to
declare the marriage null and void and in denying his motion to reopen the case.
The Court of Appeals reversed the decision of the trial court and declared the
marriage between petitioner and respondent valid and subsisting. The appellate
court said:
"Definitely the appellee has not established the following: That the appellant
showed signs of mental incapacity as would cause him to be truly incognitive of the
basic marital covenant, as so provided for in Article 68 of the Family Code; that the
incapacity is grave, has preceded the marriage and is incurable; that his incapacity
to meet his marital responsibility is because of a psychological, not physical illness;
that the root cause of the incapacity has been identified medically or clinically, and
has been proven by an expert; and that the incapacity is permanent and incurable
in nature.
The burden of proof to show the nullity of marriage lies in the plaintiff and any
doubt should be resolved in favor of the existence and continuation of the marriage
and against its dissolution and nullity." [1]
Petitioner, in her plea to this Court, would have the decision of the Court of
Appeals reversed on the thesis that the doctrine enunciated in Santos vs. Court of
Appeals,[2] promulgated on 14 January 1995, as well as the guidelines set out in
Republic vs. Court of Appeals and Molina, [3] promulgated on 13 February 1997,
should have no retroactive application and, on the assumption that
the Molina ruling could be applied retroactively, the guidelines therein outlined
should be taken to be merely advisory and not mandatory in nature. In any case,
petitioner argues, the application of the Santos and Molina dictashould warrant
only a remand of the case to the trial court for further proceedings and not its
dismissal.
Be that as it may, respondent submits, the appellate court did not err in its
assailed decision for there is absolutely no evidence that has been shown to prove
psychological incapacity on his part as the term has been so defined in Santos.
Indeed, there is no merit in the petition.

85

The term psychological incapacity, as a ground for the declaration of nullity of a

marriage under Article 36 of the Family Code, has been explained by the Court
in Santos and reiterated in Molina. The Court, in Santos, concluded:
"It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the
use of the phrase `psychological incapacity under Article 36 of the Code has not
been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances (cited in Fr. Artemio Balumad's `Void and
Voidable Marriages in the Family Code and their Parallels in Canon Law, quoting
form the Diagnostic Statistical Manuel of Mental Disorder by the American
Psychiatric Association; Edward Hudson's `Handbook II for Marriage Nullity
Cases). Article 36 of the Family Code cannot be taken and construed independently
of, but must stand in conjunction with, existing precepts in our law on
marriage. Thus correlated, `psychological incapacity should refer to no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity
and render help and support. There is hardly any doubt that the intendment of the
law has been to confine the meaning of `psychological incapacity to the most
serious cases of personality disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated."
The "doctrine of stare decisis," ordained in Article 8 of the Civil Code, expresses
that judicial decisions applying or interpreting the law shall form part of the legal
system of the Philippines. The rule follows the settled legal maxim legis interpretado
legis vim obtinet that the interpretation placed upon the written law by a competent
court has the force of law. [4] The interpretation or construction placed by the courts
establishes the contemporaneous legislative intent of the law. The latter as so
interpreted and construed would thus constitute a part of that law as of the date the
statute is enacted. It is only when a prior ruling of this Court finds itself later
overruled, and a different view is adopted, that the new doctrine may have to be
applied prospectively in favor of parties who have relied on the old doctrine and
have acted in good faith in accordance therewith [5] under the familiar rule of lex
prospicit, non respicit.
The phrase psychological incapacity, borrowed from Canon law, is an entirely
novel provision in our statute books, and, until the relatively recent enactment of
the Family Code, the concept has escaped jurisprudential attention. It is in Santos
when, for the first time, the Court has given life to the term. Molina, that followed,
has additionally provided procedural guidelines to assist the courts and the parties
86

in trying cases for annulment of marriages grounded

incapacity. Molina has strengthened, not overturned, Santos.

on

psychological

At all events, petitioner has utterly failed, both in her allegations in the
complaint and in her evidence, to make out a case of psychological incapacity on
the part of respondent, let alone at the time of solemnization of the contract, so as
to warrant a declaration of nullity of the marriage. Emotional immaturity and
irresponsibility, invoked by her, cannot be equated with psychological incapacity.
The Court reiterates its reminder that marriage is an inviolable social institution
and the foundation of the family[6] that the State cherishes and protects. While the
Court commisserates with petitioner in her unhappy marital relationship with
respondent, totally terminating that relationship, however, may not necessarily be
the fitting denouement to it. In these cases, the law has not quite given up, neither
should we.
WHEREFORE, the herein petition is DENIED. No costs.
SO ORDERED.
ATTY. PEDRO M. FERRER,

G.R. No. 165300

Petitioner,

Present:
- versus CARPIO, J., Chairperson,
BRION,
SPOUSES ALFREDO DIAZ

ABAD,

and IMELDA DIAZ,

DEL CASTILLO, and

REINA COMANDANTE and

PEREZ, JJ.

SPOUSES BIENVENIDO
PANGAN and ELIZABETH
PANGAN,

Promulgated:

Respondents.

April 23, 2010

x-------------------------------------------------------------------x

87

DECISION

DEL CASTILLO, J.:

The basic questions to be resolved in this case are: Is a waiver of hereditary rights
in favor of another executed by a future heir while the parents are still living valid? Is an
adverse claim annotated on the title of a property on the basis of such waiver likewise
valid and effective as to bind the subsequent owners and hold them liable to the
claimant?

This Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assails
the December 12, 2003 Decision[2] of the Court of Appeals (CA) in CA-G.R. CV No. 70888.
[3]
Said Decision modified the June 14, 2001 Summary Judgment[4] of the Regional Trial
Court (RTC) of Quezon City in Civil Case No. Q-99-38876 by holding respondents Spouses
Bienvenido and Elizabeth Pangan (the Pangans) not solidarily liable with the other
respondents, Spouses Alfredo and Imelda Diaz (the Diazes) and Reina
Comandante (Comandante), to petitioner Atty. Pedro M. Ferrer (Atty. Ferrer). Likewise
assailed is the CA Resolution[5] dated September 10, 2004 which denied petitioners as well
as respondents Spouses Diaz and Comandantes respective motions for reconsideration.

The parties respective versions of the factual antecedents are as follows:

Version of the Petitioner

Petitioner Atty. Ferrer claimed in his original Complaint [6] that on May 7, 1999, the
Diazes, as represented by their daughter Comandante, through a Special Power of
Attorney (SPA),[7] obtained from him a loan of P1,118,228.00. The loan was secured by a
Real Estate Mortgage Contract[8] by way of second mortgage over Transfer Certificate of
Title (TCT) No. RT-6604[9] and a Promissory Note[10] payable within six months or up
88

to November 7, 1999. Comandante also issued to petitioner postdated checks to secure

payment of said loan.

Petitioner further claimed that prior to this or on May 29, 1998, Comandante, for a
valuable consideration of P600,000.00, which amount formed part of the abovementioned
secured loan, executed in his favor an instrument entitled Waiver of Hereditary Rights and
Interests Over a Real Property (Still Undivided),[11] the pertinent portions of which read:
I, REINA D. COMANDANTE, of legal age, Filipino, married, with
residence and postal address at No. 6, Road 20, Project 8, Quezon City,
Metro Manila, Philippines, for a valuable consideration of SIX HUNDRED
THOUSAND PESOS (P600,000.00) which constitutes my legal obligation/loan
to Pedro M. Ferrer, likewise of legal age, Filipino, married to Erlinda B. Ferrer,
with residence and postal address at No. 9, Lot 4, Puerto Rico Street, Loyola
Grand Villas, Quezon City, Metro Manila, Philippines, by virtue of these
presents, do hereby WAIVE, and/or REPUDIATE all my hereditary rights and
interests as a legitimate heir/daughter of Sps. Alfredo T. Diaz and Imelda G.
Diaz in favor of said Pedro M. Ferrer, his heirs and assigns over a certain
parcel of land together with all the improvements found thereon and which
property is more particularly described as follows:

TRANSFER CERTIFICATE OF TITLE

NO. RT-6604 (82020) PR-18887

xxxx

and which property is titled and registered in the name of my parents

Alfredo T. Diaz and Imelda G. Diaz, as evidenced by Transfer Certificate of
Title No. RT 6604 (82020) PR-18887.

(sgd.)
REINA D. COMANDANTE
89

Affiant

On the basis of said waiver, petitioner executed an Affidavit of Adverse

Claim which he caused to be annotated at the back of TCT No. RT-6604 on May 26,
1999.
[12]

The Diazes, however, reneged on their obligation as the checks issued by

Comandante were dishonored upon presentment. Despite repeated demands, said
respondents still failed and refused to settle the loan. Thus, petitioner filed on September
29, 1999 a Complaint[13] for Collection of Sum of Money Secured by Real Estate Mortgage
Contract against the Diazes and Comandante docketed as Civil Case No. Q-99-38876 and
raffled to Branch 224 of RTC, Quezon City.

Petitioner twice amended his complaint. First, by including as an alternative relief

the Judicial Foreclosure of Mortgage[14] and, second, by impleading as additional
defendants the Pangans as the mortgaged property covered by TCT No. RT-6604 was
already transferred under their names in TCT No. N-209049. Petitioner prayed in his
second amended complaint that all the respondents be ordered to jointly and solidarily
pay him the sum of P1,118,228.00, exclusive of interests, and/or for the judicial
foreclosure of the property pursuant to the Real Estate Mortgage Contract.

Version of the Respondents

In her Answer[15] to petitioners original complaint, Comandante alleged that

petitioner and his wife were her fellow members in the Couples for Christ
Movement. Sometime in 1998, she sought the help of petitioner with regard to the
mortgage with a bank of her parents lot located at No. 6, Rd. 20, Project 8, Quezon
City and covered by TCT No. RT-6604. She also sought financial accommodations from the
couple on several occasions which totaled P500,000.00. Comandante, however, claimed
that these loans were secured by chattel mortgages over her taxi units in addition to
several postdated checks she issued in favor of petitioner.

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As she could not practically comply with her obligation, petitioner and his wife,
presented to Comandante sometime in May 1998 a document denominated as Waiver of
Hereditary Rights and Interests Over a Real Property (Still Undivided) pertaining to a
waiver of her hereditary share over her parents abovementioned property. Purportedly,
the execution of said waiver was to secure Comandantes loan with the couple which at
that time had already ballooned to P600,000.00 due to interests.

A year later, the couple again required Comandante to sign the following
documents: (1) a Real Estate Mortgage Contract over her parents property; and, (2) an
undated Promissory Note, both corresponding to the amount of P1,118,228.00, which
petitioner claimed to be the total amount of Comandantes monetary obligation to him
exclusive of charges and interests. Comandante alleged that she reminded petitioner that
she was not the registered owner of the subject property and that although her parents
granted her SPA, same only pertains to her authority to mortgage the property to banks
and other financial institutions and not to individuals. Petitioner nonetheless assured
Comandante that the SPA was also applicable to their transaction. As Comandante was
still hesitant, petitioner and his wife threatened to foreclose the formers taxi units and
present the postdated checks she issued to the bank for payment. For fear of losing her
taxi units which were the only source of her livelihood, Comandante was thus constrained
to sign the mortgage agreement as well as the promissory note. Petitioner, however, did
not furnish her with copies of said documents on the pretext that they still have to be
notarized, but, as can be gleaned from the records, the documents were never
notarized. Moreover, Comandante claimed that the SPA alluded to by petitioner in his
complaint was not the same SPA under which she thought she derived the authority to
execute the mortgage contract.

Comandante likewise alleged that on September 29, 1999 at 10:00 o clock in the
morning, she executed an Affidavit of Repudiation/Revocation of Waiver of Hereditary
Rights and Interests Over A (Still Undivided) Real Property,[16] which she caused to be
annotated on the title of the subject property with the Registry of Deeds of Quezon City on
the same day. Interestingly, petitioner filed his complaint later that day too.

By way of special and affirmative defenses, Comandante asserted in her Answer to

the amended complaint[17] that said complaint states no cause of action against her
because the Real Estate Mortgage Contract and the waiver referred to by petitioner in his
complaint were not duly, knowingly and validly executed by her; that the Waiver of
Hereditary Rights and Interests Over a Real Property (Still Undivided) is a useless
document as its execution is prohibited by Article 1347 of the Civil Code, [18] hence, it
cannot be the source of any right or obligation in petitioners favor; that the Real Estate
91

Mortgage was of doubtful validity as she executed the same without valid authority from
her parents; and, that the prayer for collection and/or judicial foreclosure was irregular as
petitioner cannot seek said remedies at the same time.

Apart from executing the affidavit of repudiation, Comandante also filed on October
4, 1999 a Petition for Cancellation of Adverse Claim (P.E. 2468) Under The Memorandum of
Encumbrances of TCT No. RT-6604 (82020) PR-18887[19] docketed as LRC Case No. Q12009 (99) and raffled to Branch 220 of RTC, Quezon City. Petitioner who was impleaded
as respondent therein moved for the consolidation of said case[20] with Civil Case No. Q-9938876. On June 24, 2000, Branch 220 of RTC, Quezon City ordered the consolidation of
LRC Case No. Q-12009 (99) with Civil Case No. Q-99-38876. Accordingly, the records of the
former case was forwarded to Branch 224.

For their part, the Diazes asserted that petitioner has no cause of action against
them. They claimed that they do not even know petitioner and that they did not execute
any SPA in favor of Comandante authorizing her to mortgage for the second time the
subject property. They also contested the due execution of the SPA as it was neither
authenticated before the Philippine Consulate in the United States nor notarized before a
notary public in the State of New York where the Diazes have been residing for 16
years. They claimed that they do not owe petitioner anything. The Diazes also pointed out
that the complaint merely refers to Comandantes personal obligation to petitioner with
which they had nothing to do. They thus prayed that the complaint against them be
dismissed.[21]

At the Pangans end, they alleged that they acquired the subject property by
purchase in good faith and for a consideration of P3,000,000.00 on November 11,
1999 from the Diazes through the latters daughter Comandante who was clothed with SPA
acknowledged before the Consul of New York. The Pangans immediately took actual
possession of the property without anyone complaining or protesting. Soon thereafter,
they were issued TCT No. N-209049 in lieu of TCT No. RT-6604 which was cancelled. [22]

However, on December 21, 1999, they were surprised upon being informed by
petitioner that the subject land had been mortgaged to him by the Diazes. Upon inquiry
from Comandante, the latter readily admitted that she has a personal loan with petitioner
for which the mortgage of the property in petitioners favor was executed. She admitted,
though, that her parents were not aware of such mortgage and that they did not authorize
her to enter into such contract. Comandante also informed the Pangans that the
92

signatures of her parents appearing on the SPA are fictitious and that it was petitioner who
prepared such document.

As affirmative defense, the Pangans asserted that the annotation of petitioners

adverse claim on TCT No. RT-6604 cannot impair their rights as new owners of the subject
property.They claimed that the Waiver of Hereditary Rights and Interests Over a Real
Property (Still Undivided) upon which petitioners adverse claim is anchored cannot be the
source of any right or interest over the property considering that it is null and void under
paragraph 2 of Article 1347 of the Civil Code.

Moreover, the Pangans asserted that the Real Estate Mortgage Contract cannot
bind them nor in any way impair their ownership of subject property because it was not
registered before the Register of Deeds.[23]

All the respondents interposed their respective counterclaims and prayed for moral
and exemplary damages and attorneys fees in varying amounts.

After the parties have submitted their respective pre-trial briefs, the Diazes filed on
March 29, 2001 a Motion for Summary Judgment [24] alleging that: first, since the
documents alluded to by petitioner in his complaint were defective, he was not entitled to
any legal right or relief; and, second, it was clear from the pleadings that it is Comandante
who has an outstanding obligation with petitioner which the latter never denied. With
these, the Diazes believed that there is no genuine issue as to any material fact against
them and, hence, they were entitled to summary judgment.

On May 7, 2001, petitioner also filed a Motion for Summary Judgment, [25] claiming
that his suit against the respondents is meritorious and well-founded and that same is
documented and supported by law and jurisprudence. He averred that his adverse claim
annotated at the back of TCT No. RT-6604, which was carried over in TCT No. 209049
under the names of the Pangans, is not merely anchored on the Waiver of Hereditary
Rights and Interests Over a Real Property (Still Undivided) executed by Comandante, but
also on the Real Estate Mortgage likewise executed by her in representation of her parents
and in favor of petitioner. Petitioner insisted that said adverse claim is not frivolous and
invalid and is registrable under Section 70 of Presidential Decree (PD) No. 1529. In fact,
the Registrar of Deeds of Quezon City had already determined the sufficiency and/or
93

validity of such registration by annotating said claim, and this, respondents failed to
question. Petitioner further averred that even before the sale and transfer to the Pangans
of the subject property, the latter were already aware of the existence of his adverse
claim. In view of these, petitioner prayed that his Motion for Summary Judgment be
granted.

Ruling of the Regional Trial Court

After the filing of the parties respective Oppositions to the said motions for
summary judgment, the trial court, in an Order dated May 31, 2001,[26] deemed both
motions for summary judgment submitted for resolution. Quoting substantially petitioners
allegations in his Motion for Summary Judgment, it thereafter rendered on June 14, 2001 a
Summary Judgment[27] in favor of petitioner, the dispositive portion of which reads:

WHEREFORE, premises considered, summary judgment is hereby

rendered in favor of plaintiff and against defendants by:

a)
ORDERING all defendants jointly and solidarily to pay
plaintiff the sum of ONE MILLION ONE HUNDRED EIGHTEEN THOUSAND
TWO HUNDRED TWENTY EIGHT PESOS (P1,118,228.00) which is blood
money of plaintiff;

b)
ORDERING the Honorable Registrar of Deeds of Quezon
City that the rights and interest of the plaintiff over subject property be
annotated at the back of T.C.T. No. N-209049;

c)
SENTENCING all defendants to pay plaintiffs expenses of
TEN THOUSAND PESOS (P10,000.00) and to pay the costs of suit.

IT IS SO ORDERED.[28]

94

The Pangans, the Diazes, and Comandante appealed to the CA.[29] The Pangans faulted the
trial court in holding them jointly and severally liable with the Diazes and Comandante for
the satisfaction of the latters personal obligation to petitioner in the total amount
of P1,118,228.00. The Diazes and Comandante, on the other hand, imputed error upon
the trial court in rendering summary judgment in favor of petitioner. They averred that
assuming the summary judgment was proper, the trial court should not have considered
the Real Estate Mortgage Contract and the Promissory Note as they were defective, as
well as petitioners frivolous and non-registrable adverse claim.

In its Decision[30] dated December 12, 2003, the CA declared Comandantes waiver of
hereditary rights null and void. However, it found the Real Estate Mortgage executed by
Comandante on behalf of her parents as binding between the parties thereto.

As regards the Pangans, the CA ruled that the mortgage contract was not binding upon
them as they were purchasers in good faith and for value. The property was free from the
mortgage encumbrance of petitioner when they acquired it as they only came to know of
the adverse claim through petitioners phone call which came right after the formers
acquisition of the property.The CA further ruled that as Comandantes waiver of hereditary
rights and interests upon which petitioners adverse claim was based is a nullity, it could
not be a source of any right in his favor.Hence, the Pangans were not bound to take notice
of such claim and are thus not liable to petitioner.

Noticeably, the appellate court did not rule on the propriety of the issuance of the
Summary Judgment as raised by the Diazes and Comandante. In the ultimate, the CA
merely modified the assailed Summary Judgment of the trial court by excluding the
Pangans among those solidarily liable to petitioner, in effect affirming in all other respects
the assailed summary judgment, viz:

WHEREFORE, foregoing premises considered, the Decision of the Regional

Trial Court of Quezon City, Branch 224 in Civil Case No. Q-99-38876 is
hereby MODIFIED, as follows:

95

1. Ordering defendants-appellants Comandante and Spouses Diaz to jointly

and severally pay plaintiff the sum of Php 1,118, 228.00; and

2. Ordering defendants-appellants Comandante and Spouses Diaz to jointly

and severally pay plaintiff the amount of Php10,000.00 plus cost of suit.

SO ORDERED.[31]

Petitioners Motion for Reconsideration[32] having been denied by the CA in its

Resolution[33] dated September 10, 2004, he now comes to us through this petition for
review oncertiorari insisting that the Pangans should, together with the other respondents,
be held solidarily liable to him for the amount of P1,118,228.00.

Our Ruling

The petition lacks merit.

Petitioner merely reiterates his contentions in the Motion for Summary Judgment he
filed before the trial court. He insists that his Adverse Claim annotated at the back of TCT
No. RT-6604 is not merely anchored on Comandantes Waiver of Hereditary Rights and
Interests Over A Real Property (Still Undivided) but also on her being the attorney-in-fact of
the Diazes when she executed the mortgage contract in favor of petitioner. He avers that
his adverse claim is not frivolous or invalid and is registrable as the Registrar of Deeds of
Quezon City even allowed its annotation. He also claims that even prior to the sale of
subject property to the Pangans, the latter already knew of his valid and existing adverse
claim thereon and are, therefore, not purchasers in good faith. Thus, petitioner maintains
that the Pangans should be held, together with the Diazes and Comandante, jointly and
severally liable to him in the total amount of P1,118,228.00.

96

Petitioners contentions are untenable.

The Affidavit of Adverse Claim executed by petitioner reads in part:

xxxx

1. That I am the Recipient/Benefactor of compulsory heirs

share over an undivided certain parcel of land together with all the
improvements found therein x x x as evidenced by Waiver of
Hereditary Rights and Interests Over A Real Property, executed by
REINA D. COMANDANTE (a compulsory/legitimate heir of Sps.
Alfredo T. Diaz and Imelda G. Diaz), x x x.

2. That in order to protect my interest over said property as

a Recipient/Benefactor, for the registered owners/parents might dispose
(of) and/or encumber the same in a fraudulent manner without my
knowledge and consent, for the owners duplicate title was not surrendered
to me, it is petitioned that this Affidavit of Adverse Claim be ANNOTATED at
the back of the said title particularly on the original copy of Transfer
Certificate of Title No. RT-6604 (82020) PR-18887 which is on file with the
Register of Deeds of Quezon City.

3. That I am executing this Affidavit in order to attest (to) the truth of

the foregoing facts and to petition the Honorable Registrar of Deeds, Quezon
City, to annotate this Affidavit of Adverse Claim at the back of the said title
particularly the original copy of Transfer Certificate of Title No. RT-6604
(82020) PR-18887 which is on file with the said office, so that my interest
as Recipient/Benefactor of the said property will be protected
especially the registered owner/parents, in a fraudulent manner might
dispose (of) and/or encumber the same without my knowledge and
consent. (Emphasis ours)

97

Clearly, petitioners Affidavit of Adverse Claim was based solely on the waiver of
hereditary interest executed by Comandante. This fact cannot be any clearer especially so
when the inscription of his adverse claim at the back of TCT No. RT-6604 reads as follows:

P.E. 2468/T-(82020)RT-6604 - - AFFIDAVIT OF ADVERSE CLAIM - Executed under oath by PEDRO M. FERRER, married to Erlinda B.
Ferrer, claiming among others that they have a claim, the interest
over said property as Recipient/Benefactor, by virtue of a waiver of
Hereditary Rights and Interest over a real property x x
x[34] (Emphasis ours)

Therefore, there is no basis for petitioners assertion that the adverse claim was also
anchored on the mortgage contract allegedly executed by Comandante on behalf of her
parents.

The questions next to be resolved are: Is Comandantes waiver of hereditary rights

valid? Is petitioners adverse claim based on such waiver likewise valid and effective?

We note at the outset that the validity of petitioners adverse claim should have
been determined by the trial court after the petition for cancellation of petitioners adverse
claim filed by Comandante was consolidated with Civil Case No. Q-99-38876. [35] This is in
consonance with Section 70 of PD 1529 which provides:

Section 70. Adverse Claim. Whoever claims any part or interest in

registered land adverse to the registered owner, arising subsequent to the
date of the original registration, may, if no other provision is made in this
Decree for registering the same, make a statement in writing setting forth
fully his alleged right or interest, and how or under whom acquired, a
reference to the number of the certificate of title of the registered owner, the
name of the registered owner, and a description of the land in which the
right or interest is claimed.

98

The statement shall be signed and sworn to, and shall state the
adverse claimants residence, and a place at which all notices may be served
upon him. This statement shall be entitled to registration as an adverse
claim on the certificate of title. The adverse claim shall be effective for a
period of thirty days from the date of registration. After the lapse of said
period, the annotation of adverse claim may be cancelled upon
filing of a verified petition therefor by the party in
interest: Provided, however, That after cancellation, no second adverse
claim based on the same ground shall be registered by the same claimant.

Before the lapse of thirty days aforesaid, any party in interest

may file a petition in the Court of First Instance where the land is
situated for the cancellation of the adverse claim, and the court
shall grant a speedy hearing upon the question of validity of such
adverse claim, and shall render judgment as may be just and
equitable. If the adverse claim is adjudged to be invalid, the
registration thereof shall be ordered cancelled. If, in any case, the
court, after notice and hearing, shall find that the adverse claim thus
registered was frivolous, it may fine the claimant in an amount not less than
one thousand pesos nor more than five thousand pesos, in its
discretion. Before the lapse of thirty days, the claimant may withdraw his
adverse claim by filing with the Register of Deeds a sworn petition to that
effect.(Emphasis ours)

Pursuant to the third paragraph of the afore-quoted provision, it has been held that
the validity or efficaciousness of an adverse claim may only be determined by the Court
upon petition by an interested party, in which event, the Court shall order the immediate
hearing thereof and make the proper adjudication as justice and equity may warrant. And,
it is only when such claim is found unmeritorious that the registration of the adverse claim
may be cancelled.[36]

As correctly pointed out by respondents, the records is bereft of any showing that
the trial court conducted any hearing on the matter. Instead, what the trial court did was
to include this material issue among those for which it has rendered its summary
judgment as shown by the following portion of the judgment:

99

x x x it will be NOTED that subject Adverse Claim annotated at the back of

Transfer Certificate of Title No. RT-6604 (82020) PR-18887, and carried over
to defendants-Sps. Pangans Title No. N-20909, is not merely anchored on
defendant Reina Comandantes Waiver of Hereditary Rights and Interest
Over a Real Property but also on her being the Attorney-In-Fact of the
previous registered owners/parents/defendants Sps. Alfredo and Imelda Diaz
about the Real Estate Mortgage Contract for a loan of P1,118,228.00 which
is a blood money of the plaintiff. Moreover, subject Adverse Claim in
LRC Case No. Q-12009 (99) is NOT frivolous and invalid and
consequently, REGISTRABLE by virtue of Section 110 of the Land
Registration Act (now Section 70 of Presidential Decree No.
1529). [37](Emphasis ours)

It does not escape our attention that the trial court merely echoed the claim of petitioner
that his adverse claim subject of LRC Case No. Q-12009 (99) is not frivolous, invalid and is
consequently registrable. We likewise lament the apparent lack of effort on the part of said
court to make even a short ratiocination as to how it came up with said conclusion. In fact,
what followed the above-quoted portion of the summary judgment are mere recitals of the
arguments raised by petitioner in his motion for summary judgment. And in the dispositive
portion, the trial court merely casually ordered that petitioners adverse claim be inscribed
at the back of the title of the Pangans. What is worse is that despite this glaring defect, the
CA manifestly overlooked the matter even if respondents vigorously raised the same
before it.
Be that as it may, respondents efforts of pointing out this flaw, which we find
significant, have not gone to naught as will be hereinafter discussed.

All the respondents contend that the Waiver of Hereditary Rights and Interest Over a Real
Property (Still Undivided) executed by Comandante is null and void for being violative of
Article 1347 of the Civil Code, hence, petitioners adverse claim which was based upon
such waiver is likewise void and cannot confer upon the latter any right or interest over
the property.

We agree with the respondents.

100

Pursuant to the second paragraph of Article 1347 of the Civil Code, no contract may be
entered into upon a future inheritance except in cases expressly authorized by law. For the
inheritance to be considered future, the succession must not have been opened at the
time of the contract. A contract may be classified as a contract upon future inheritance,
prohibited under the second paragraph of Article 1347, where the following requisites
concur:

(1)

That the succession has not yet been opened.

(2)

That the object of the contract forms part of the inheritance; and,

(3)

That the promissor has, with respect to the object, an expectancy

of a right which is purely hereditary in nature.[38]

In this case, there is no question that at the time of execution of

Comandantes Waiver of Hereditary Rights and Interest Over a Real Property (Still
Undivided), succession to either of her parents properties has not yet been opened since
both of them are still living. With respect to the other two requisites, both are likewise
present considering that the property subject matter of Comandantes waiver concededly
forms part of the properties that she expect to inherit from her parents upon their death
and, such expectancy of a right, as shown by the facts, is undoubtedly purely hereditary in
nature.
From the foregoing, it is clear that Comandante and petitioner entered into a
contract involving the formers future inheritance as embodied in the Waiver of Hereditary
Rights and Interest Over a Real Property (Still Undivided) executed by her in petitioners
favor.

In Taedo v. Court of Appeals,[39] we invalidated the contract of sale between Lazaro

Taedo and therein private respondents since the subject matter thereof was a one hectare
of whatever share the former shall have over Lot 191 of the cadastral survey
of Gerona, Province of Tarlac and covered by Title T-13829 of the Register of Deeds of

101

Tarlac. It constitutes a part of Taedos future inheritance from his parents, which cannot be
the source of any right nor the creator of any obligation between the parties.

Guided by the above discussions, we similarly declare in this case that the Waiver
of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by
Comandante in favor of petitioner as not valid and that same cannot be the source of any
right or create any obligation between them for being violative of the second paragraph of
Article 1347 of the Civil Code.

Anent the validity and effectivity of petitioners adverse claim, it is provided in

Section 70 of PD 1529, that it is necessary that the claimant has a right or interest in the
registered land adverse to the registered owner and that it must arise subsequent to
registration. Here, as no right or interest on the subject property flows from Comandantes
invalid waiver of hereditary rights upon petitioner, the latter is thus not entitled to the
registration of his adverse claim. Therefore, petitioners adverse claim is without any basis
and must consequently be adjudged invalid and ineffective and perforce be cancelled.

Albeit we have already resolved the issues raised by petitioner, we shall not stop here as
the Diazes and Comandante in their Comment[40] call our attention to the failure of the CA
to pass upon the issue of the propriety of the issuance by the trial court of the Summary
Judgment in favor of petitioner despite the fact that they have raised this issue before the
appellate court. They argue that summary judgment is proper only when there is clearly
no genuine issue as to any material fact in the action. Thus, where the defendant
presented defenses tendering factual issue which call for presentation of evidence, as
when he specifically denies the material allegations in the complaint, summary judgment
cannot be rendered.

The Diazes and Comandante then enumerate the genuine issues in the case which
they claim should have precluded the trial court from issuing a summary judgment in
petitioners favor.First, the execution of the SPA in favor of Comandante referred to by
petitioner in his complaint was never admitted by the Diazes. They assert that as such
fact is disputed, trial should have been conducted to determine the truth of the matter,
same being a genuine issue. Despite this, the trial court merely took the word of the
plaintiff and assumed that said document was indeed executed by them. Second,
although Comandante acknowledges that she has a personal obligation with petitioner,
she nevertheless, did not admit that it was in the amount of P1,118,228.00.Instead, she
claims only the amount of P500,000.00 or P600,000.00 (if inclusive of interest) as her
102

obligation. Moreover, the Diazes deny borrowing any money from petitioner and neither
did the Pangans owe him a single centavo. Thus, the true amount of the obligation due
the petitioner and how each of the respondents are responsible for such amount are
genuine issues which need formal presentation of evidence. Lastly, they aver that the trial
court ignored factual and material issues such as the lack of probative value of
Comandantes waiver of hereditary rights as well as of the SPA; the fact that Comandante
signed the mortgage contract and promissory note in her personal capacity; and, that all
such documents were prepared by petitioner who acted as a lawyer and the creditor of
Comandante at the same time.

Rule 35 of the Rules of Court provides for summary judgment, the pertinent
provisions of which are the following:

Section 1. Summary Judgment for claimant. A party seeking to

recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.

Section 2. Summary Judgment for the defending party. A party

against whom a claim, counterclaim or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as
to all or any part thereof.

Section 3. Motion and proceedings thereon. The motion shall be served at

least ten (10) days before the time specified for the hearing. The adverse
party may serve opposing affidavits, depositions, or admissions at least
three (3) days before the hearing. After the hearing, the judgment sought
shall be rendered forthwith if the pleadings, supporting affidavits,
depositions and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

103

As can be deduced from the above provisions, summary judgment is a procedural

devise resorted to in order to avoid long drawn out litigations and useless delays. When
the pleadings on file show that there are no genuine issues of facts to be tried, the Rules of
Court allows a party to obtain immediate relief by way of summary judgment. That is,
when the facts are not in dispute, the court is allowed to decide the case summarily by
applying the law to the material facts. Conversely, where the pleadings tender a genuine
issue, summary judgment is not proper. A genuine issue is such fact which requires the
presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.
[41]

Here, we find the existence of genuine issues which removes the case from the
coverage of summary judgment. The variance in the allegations of the parties in their
pleadings is evident.

Petitioner anchors his complaint for sum of money and/or judicial foreclosure on the
alleged real estate mortgage over the subject property allegedly entered into by
Comandante in behalf of her parents to secure payment of a loan amounting
to P1,118,228.00. To support this claim, petitioner attached to his complaint (1) the SPA
alleged to have been executed by the Diazes; (2) the Real Estate Mortgage Contract
pertaining to the amount of P1,118,228.00; and, (3) a Promissory Note.

Comandante, in her Answer to petitioners Amended Complaint, assailed the validity

and due execution of the abovementioned documents. She asserted that the same were
not duly, knowingly and validly executed by her and that it was petitioner who prepared all
of them. Also, although she admitted owing petitioner, same was not an absolute
admission as she limited herself to an obligation amounting only to P600,000.00 inclusive
of charges and interests. She likewise claimed that such obligation is her personal
obligation and not of her parents.

The Diazes, for their part, also denied that they executed the SPA authorizing their
daughter to mortgage their property to petitioner as well as having any obligation to the
latter.

Clearly, there are genuine issues in this case which require the presentation of
evidence. For one, it is necessary to ascertain in a full blown trial the validity and due
104

execution of the SPA, the Real Estate Mortgage and the Promissory Notes because the
determination of the following equally significant questions depends on them, to wit: (1)
Are the Diazes obligated to petitioner or is the obligation a purely personal obligation of
Comandante? and, (2) Is the sum of P1,118,228.00 as shown in the Real Estate Mortgage
and the Promissory Note, the amount which is really due the petitioner?

To stress, trial courts have limited authority to render summary judgments and may do so
only when there is clearly no genuine issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested, proceedings for summary judgment
cannot take the place of trial.[42] From the foregoing, it is apparent that the trial court
should have refrained from issuing the summary judgment but instead proceeded to
conduct a full blown trial of the case. In view of this, the present case should be remanded
to the trial court for further proceedings and proper disposition according to the rudiments
of a regular trial on the merits and not through an abbreviated termination of the case by
summary judgment.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals
dated December 12, 2003 insofar as it excluded the respondents Spouses Bienvenido
Pangan and Elizabeth Pangan from among those solidarily liable to petitioner Atty. Pedro
M. Ferrer, is AFFIRMED. The inscription of the adverse claim of petitioner Atty. Pedro M.
Ferrer on T.C.T. No. N-209049 is hereby ordered CANCELLED. Insofar as its other aspects
are concerned, the assailed Decision is SET ASIDE and VACATED. The case
is REMANDED to the Regional Trial Court of Quezon City, Branch 224 for further
proceedings in accordance with this Decision.
SO ORDERED.

G.R. No. 192383

December 4, 2013

ISABELO
C.
vs.
LUCILA C. DELA CRUZ, Respondent.

DELA

CRUZ, Petitioner,

DECISION
ABAD, J.:
This case deals with the right of a person to whom an immovable property has been
unconditionally given to demand its participation.
105

The Facts and the Case

Petitioner Isabelo C. Dela Cruz (Isabelo) claimed that in 1975 he and his sister,
respondent Lucila C. Dela Cruz and (Lucila) and Cornelia C. Dela Cruz (Cornelia),
bought on installment a 240-square meter land in Las Pias from Gatchalian Realty,
Inc. Isabelo and Cornelia paid the down payment and religiously paid the monthly
amortizations.1 On the following year, Isabelo constructed a residential house on the
subject lot.2
Because of Lucias plea for the siblings to help their cousin, Corazon L. Victoriano
(Corazon), who was in financial distress, Isabelo agreed to have the lot they bought
used as collateral for the loan that Corazon planned to secure from the Philippine
Veterans Bank. To make this posible, Lucila paid the P8,000.00 that they still owed
Gatchalian Realty, Inc. On January 18, 1979 the Register of Deeds issued Transfer
Certificate of Title (TCT) S-80735 in Lucilas name 3 and this was mortgaged for
Corazons benefit. But, since Corazon failed to pay her loan, the bank foreclosed on
the property on March 1, 1989 for P286,000.00. Lucila redeemed it on March 27,
1992.4
On October 7, 2002 Lucila executed an affidavit of waiver 5 relinquishing all her
share, interest, and participation to half of the lot to Isabelo and the other half to
her niece, Emelinda C. Dela Cruz (Emelinda). On even date, Isabelo and Emelinda
executed a Kasunduan6 acknowledging their respective rights in the property.
Claiming ownership of half of the subject property by virtue of Lucilas affidavit of
waiver, on August 22, 2005 Isabelo filed an action for partition before the Regional
Trial Court (RTC) of Las Pias City in SCA 05-0008, seeking the segregation of his
portion of the land and the issuance of the corresponding title in his name. But
Lucila countered that the property, including the house built on it, belonged to her
since she paid for the same out of her income as pawnshop general manager and
from selling jewelry.7
She claimed that her affidavit of waiver did not cede ownership of half of the
property to Isabelo since the affidavit made clear that her waiver would take effect
only if the problems that beset their family were resolved. Since this condition had
not been met, she had every right to revoke that waiver as in fact she did so on
September 24, 2004 in the Kasulatan ng Pagpawalang Bisa ng "Affidavit Waiver." 8
On February 7, 2008 the RTC rendered a Decision 9 denying Isabelos complaint for
lack of merit. It also ordered him to pay Lucila P50,000.00 as attorneys fees and to
bear the costs of suit.10
The RTC ruled that Lucilas ownership was evidenced by the tax declaration, the real
property tax payment order, and the title to the land in her name. Isabelos

106

testimony on cross-examination conclusively also showed that Lucila owned the

property.11
Isabelos contention that it was he and Cornelia who paid for the monthly
amortization of the property cannot be believed since Cornelia herself testified that
Lucila paid for all the amortizations on the land. 12
Further, the RTC held that Lucilas affidavit of waiver did not confer title over the
property on Isabelo considering that, absent an annotation on TCT S-80735, the
waiver cannot ripen into an adverse claim. More importantly, Lucila already
cancelled the waiver through the Kasulatan that she subsequently executed.13
The RTC was also unconvinced that the house belonged to Isabelo. It noted that the
receipts for the construction materials and survey plan that he presented did not
prove ownership. Recovery of property, not partition was the proper remedy. Isabelo
appealed to the Court of Appeals (CA) in CA-G.R. CV 90797. On December 18, 2009
the latter court rendered a Decision 14 affirming the RTC ruling that Isabelo failed to
established his right to half of the subject property as would entitle him to have the
same partitioned. But the CA deleted the award of attorneys fees and costs for
failure of Lucila to justify her claims and for the RTCs failure to state in its decision
the rationale for the awards. Isabelo moved for reconsideration but the CA denied
it.15
Issue Presented
The sole issue presented in this case is whether or not the CA erred in failing to rule
that Lucilas cession of half of the property to Isabelo through waiver did not have
the effect of making him part owner of the property with a right to demand
partition.
Ruling of the Court
In partition, the court must first determine the existence of co-ownership. The
action will not lie if the plaintiff has no proprietary interest in the subject property.
Indeed, the rules16 require him to set forth in his complaint the nature and extent of
his title to the property. It would be premature to order partition until the question of
ownership is first definitely resolved.17
At bottom, the question is: did Lucilas affidavit of waiver ceding to Isabelo half of
the subject property conveys to him a right of ownership over that half? The CA
agreed with the RTC that Lucilas affidavit of waiver did not vest any property right
to Isabelo since the condition she set in that affidavit had not been fulfilled. This
then gave Lucila the right in the meantime to rescind the waiver, something that
she eventually did. But, contrary to the position that the CA and the RTC had taken,
107

Lucilas waiver was absolute and contained no precondition. The pertinent portion of
the affidavit of waiver reads:
That to put everything in proper order, I hereby waive all my share, interest and
participation in so far as it refer to the one half portion (120 SQ. M.) of the aboveparcel of land, with and in favor of my brother ISABELO C. DELA CRUZ, of legal age,
married, Filipino and residing at Las Pinas City, and the other half portion (120 SQ.
M.) in favor of my niece, EMELINDA C. DELA CRUZ, also of legal age, single, Filipino
and residing at Sto. Rosario Hagonoy, Bulacan; x x x x 18
Evidently, Lucila would not have used the terms "to put everything in proper order, I
hereby waive" if her intent was to set a precondition to her waiver covering the
property, half to Isabelo and half to Emelinda. If that were her intention, she could
have stated, "subject to the condition that everything is put in proper order, I
hereby waive..." or something to that effect. When she instead said, "That to put
everything in proper order, I hereby waive my share, interest and participation" in
the two halves of the subject property in favor of Isabelo and Emelinda, Lucila
merely disclosed what motivated her in ceding the property to them. She wanted to
put everything in proper order, thus she was driven to make the waiver in their
favor. Lucila did not say, "to put everything in proper order, I promise to waive my
right" to the property, which is a future undertaking, one that is demandable only
when everything is put in proper order. But she instead said, "to put everything in
proper order, I hereby waive" etc. The phrase "hereby waive" means that Lucila
was, by executing the affidavit, already waiving her right to the property,
irreversibly divesting herself of her existing right to the same. After he and his coowner Emelinda accepted the donation, Isabelo became the owner of half of the
subject property having the right to demand its partition.
WHEREFORE, THE Court:
1. GRANTS the petition;
2. SETS ASIDE the Decision dated December 18, 2009 and resolution dates May 25,
2010 of the Court of Appeals in CA-G.R. CV 90797 as well as the Decision dated
February 7, 2008 of the Regional Trial Court of Las Pias in SCA 05-0008;
3. ORDERS the partition of the subject property between petitioner Isabelo C. Dela
Cruz and Emelinda C. Dela Cruz;
4. ORDERS the remand of the records of SCA 05-0008 to the Regional Trial Court of
Las Pias; and
5. DIRECTS the latter court to proceed with the partition proceedings in the case in
accordance with Section 2, Rule 69 of the Rules of Civil Procedure.
108

SO ORDERED.
HEIRS
OF
CIPRIANO
REYES:RICARDO REYES, DAYLINDA
REYES, BEATRIZ REYES, JULIAN
CUECO,
ESPERANSA
REYES,
VICTORINO REYES, AND JOVITO
REYES,

G.R. No. 138463

Present:

Petitioners,

QUISUMBING, J.,
CARPIO,

- versus -

Chairperson,

CARPIO MORALES,

JOSE
CALUMPANG,
GEOFFREY
CALUMPANG,
AGAPITO
AGALA,
LORENZO MANABAN, RESTITUTO
MANABAN, OLYMPIA MANABAN,
PELAGIA MANABAN AND FELIPE
CUECO,

TINGA, and
VELASCO, JR., JJ.

Respondents.

Promulgated:

October 30, 2006

x------------------------------------------------------------------------------------------------x

DECISION

109

VELASCO, JR., J.:

Say not you know another entirely,

til you have divided an inheritance with him.

Johann Kaspar Lavater

Can a party who lost rights of ownership in a parcel of land due to laches be allowed
to regain such ownership when one who benefited from the delay waives such
benefit? This is the core issue to be resolved from this Petition for Review on
Certiorari[1] that seeks to set aside the January 26, 1999 Decision [2] of the Court of
Appeals (CA) in CA-GR CV No. 54795 which overturned the April 2, 1996 Decision of
the Dumaguete City Regional Trial Court (RTC) in Civil Case No. 9975 declaring null
and void the December 27, 1972 Deed of Quitclaim executed by petitioners Jovito
Reyes and Victorino Reyes and ordering respondents to vacate Lot No. 3880 in
Tanjay, Negros Oriental, remove their houses from the said lot, and pay petitioners
attorneys
fees
of
PhP
10,000.00. Also
challenged
is
the March
25,
[3]
1999 Resolution which
denied
petitioners February
12,
1999Motion
for
[4]
Reconsideration.

The Facts

It is sad and tedious when relatives bicker over inheritancewhen the

differences could have been amicably settled and harmony prevail among
relatives. The instant case involves Lot No. 3880 of the Cadastral Survey of Tanjay,
Negros Oriental which has a land area of around 25,277 square meters, more or
less. Said lot was originally owned by a certain Isidro Reyes, who sired eight
children, viz: Victoriana Reyes Manaban, Telesfora Reyes Manaban, Leonardo Reyes,
Juan Reyes, Eduarda Reyes, Miguel Reyes, Eleuteria Reyes, and Hermogenes Reyes.

110

The protagonists are the descendants, specifically the grandchildren, of the

three eldest children of Isidro Reyes, namely, Victoriana, Telesfora and Leonardo. To
better understand the relation of the parties, it is apt to mention the lineal positions
of the pertinent heir-litigants whose names are emphasized for clarity and identity.

1. Daughter Victoriana Reyes Manaban had five children, namely: Antonia

Manaban Sta. Cruz, Emerencia Manaban Agala, Juana Manaban Aguilar, Lope
Manaban, and Arcadia Manaban Balsamo. a.) Granddaughter Emerencia Manaban
Agala had five children, namely: Agapito Agala, Cresencio Agala, Nicasia Agala,
Filomena Agala, Baldomera Manaban Alido, and Pelagia Manaban Cueco, the last
two being illegitimate children. b.) Granddaughter Antonia Manaban Sta. Cruz had
no issue. c.)Granddaughter Juana Manaban Aguilar had eight children,
namely: Fructuoso, Salvadora, Delfin, Rufina, Felomina, Ceferino, Lucia, and
Cipriano, all surnamed Aguilar. d.)Grandson Lope Manaban had seven children,
namely: Aniana, Lucas, Isidro, Genera, Abadias, Jose, and Gabriela, all surnamed
Manaban. e.) Granddaughter Arcadia Manaban Balsamo had seven children,
namely: Lucrecia, Bienvenida, Gregoria, Antonio, Moises, Marcela, and Maria, all
surnamed Balsamo. Of the grandchildren of Victoriana Reyes Manaban, Agapito
Agala and Pelagia Manaban Cueco, are among the respondents in the instant
case. Respondent Felipe Cueco was included among the litigants, being the
husband of Pelagia Manaban.

2. Daughter Telesfora Reyes Manaban had only one child, Valentin Manaban
who in turn had three children, namely: Olympia Manaban Mayormita, Restituto
Manaban, and Lorenzo Manaban, all of whom are among the respondents in the
instant case.

3. Son Leonardo Reyes had six children, namely: Higino Reyes, Policarpio
Reyes, Ines Reyes Calumpang, Exaltacion Reyes Agir, Honorata Reyes, and Sofia
Reyes. a.)Grandson
Higino
Reyes
had
six
children,
namely: Victorino, Cipriano, Luis, Ricardo, Jesus, and Daylinda, all surnamed
Reyes. b.) Grandson
Policarpio
Reyes
had
three
children,
namely: Beatriz, Guillermo, and Jovito, all surnamed Reyes. Most of the children of
Higino
and
Policarpio
Reyes
are
the
petitioners
in
the
instant
case. c.)Granddaughter Ines Reyes Calumpang on the other hand had five children,
namely: Jose, Pedring, Cesar, Zosima, and Angel, all surnamed Calumpang. Great111

grandson Jose Calumpang and his son, Geoffrey Calumpang, a great-greatgrandson

of
Isidro,
are
among
the
respondents
in
the
instant
case. d.) Granddaughter Exaltacion Reyes Agir had seven children, namely: Rafael
Agir, Remedios Agir, Cordova Agir Gabas, Natividad Agir, Rogelio Agir, Ramon Agir,
and Zenaida Agir Lopez.

The records do not show the heirs of granddaughters Honorata and Sofia
Reyes, the last two children of Leonardo Reyes. Likewise, the records do not
mention the heirs of the last five children of Isidro Reyes, namely: Juan, Eduarda,
Miguel, Eleuteria, and Hermogenes.

For clarity, a chart showing the family tree originating from Isidro Reyes is
provided as follows (with the parties names given emphasis):

112

113

114

115

With the foregoing perspective on the relational positions of the protagonists,

we move on to the factual antecedents:

Among Isidros children, it was Leonardo Reyes, in behalf of his seven (7)
siblings, who managed the properties of their father. In 1924, a cadastral survey
was conducted pursuant to Act No. 2259. Leonardo, through his representative,
Angel Calumpang, filed an answer in the cadastral court naming all eight children of
Isidro Reyes as claimants of the said lot.

However, on July 10, 1949, a certain Dominador Agir filed another claim over
the disputed lot, this time naming some grandchildren of Leonardo Reyes (greatgrandchildren of Isidro Reyes), which included most of the children of Higino and
Policarpio Reyes as claimants, namely: Victorino, Cipriano, Luis, Ricardo, and
Daylinda all surnamed Reyes, who are the children of Higino Reyes; and Beatriz,
Guillermo, and Jovito all surnamed Reyes, who are the children of Policarpio
Reyes. Subsequently, on July 19, 1949, a Decision was rendered in Cadastral Case
No. 12, G.L.R.O. Cad. Rec. No. 31 which covered four (4) lots, among which is Lot
No. 3880, whereby the Decision granted judicial confirmation of the imperfect title
of petitioners over said lot. Consequently, Original Certificate of Title (OCT) No. OV227 was issued on August 5, 1954 in the name of petitioners, namely: Victorino,

116

Cipriano, Luis, Ricardo, Jesus, Daylinda, Jovito, Guillermo, and Beatriz, all surnamed
Reyes.

The nine (9) registered co-owners, however, did not take actual possession of
the said lot, and it was Victorino and Cipriano Reyes who paid the land taxes. The
heirs of Telesfora Reyes Manaban and Victoriana Reyes Manaban (daughters of
Isidro Reyes) retained possession over a hectare portion of the said lot where they
built their houses and planted various crops and fruit bearing trees. Meanwhile,
sometime in 1968, Jose Calumpang, grandson of Leonardo Reyes and cousin of
petitioners, also took possession over a hectare of the said lot, planting it with
sugarcane. Thus, Jose Calumpang and his son Geoffrey continued to plant
sugarcane over almost a hectare of the said lot while the heirs of Telesfora Reyes
Manaban and Victoriana Reyes Manabanthe respondents Agalas and
Manabansoccupied the rest of the same lot which is about one hectare.

Sometime in 1972, respondent Agapito Agala (grandson of Victoriana Reyes

Manaban) was informed by his cousin Victorino Reyes, one of the petitioners and
registered co-owner of Lot No. 3880, that there was already a title over the said
lot. This prompted respondent Agapito Agala and the other heirs of Telesfora and
Victoriana to seek advice from a judge who suggested that they request the
registered co-owners to sign a quitclaim over the said lot.

A conference was allegedly held on December 27, 1972, where three (3) of
the registered co-ownersVictorino, Luis, and Jovito all surnamed Reyessigned a Deed
of Quitclaim,[5] where, for a consideration of one peso (P1.00), they agreed to
release, relinquish and quitclaim all their rights over the land in favor of the legal
heirs of the late Victoriana Reyes and Telesfora Reyes. [6]

The Deed of Quitclaim was annotated on the back of OCT No. OV-227.
Thereafter, respondent Agapito Agala had the then Police Constabulary (PC)
summon the other registered co-owners, namely: Cipriano, Ricardo, Daylinda,
Guillermo, and Beatriz, to sign another deed of quitclaim. But the latter allegedly
ignored the call, prompting the heirs of Victoriana and Telesfora Reyes to file on June
9, 1975 in Civil Case No. 6238, with the Dumaguete City RTC, Branch 40, a
117

Complaint for Reconveyance of Real Property, Cancellation of Certificate of Title and

Damages against the registered co-owners of the disputed lot who did not sign a
deed of quitclaim and Dominador Agir, who filed the amended answer in the
cadastral proceedings in 1949. On April 28, 1987, the trial court dismissed the
complaint and ruled in favor of the registered co-owners of Lot No. 3880. On appeal,
the CA upheld the trial court and affirmed the RTC November 29, 1989 Decision.
[7]
The CA Decision was not raised for review before this Court, thereby attaining
finality.

Consequently, on July 2, 1991, petitioners filed the instant civil case

for Recovery of Possession, Declaration of Non-existence of a Document, Quieting of
Title and Damages against Jose Calumpang, Geoffrey Calumpang, Agapito Agala,
Lorenzo Manaban, Heirs of Olympia Manaban, Pelagia Manaban, Felipe Cueco and
Heirs of Restituto Manaban (herein respondents) in Dumaguete City RTC. It was
docketed as Civil Case No. 9975 and raffled to RTC Branch 44.

In gist, petitioners, as registered owners of Lot No. 3880, alleged that by

tolerance they allowed respondents Jose and Geoffrey Calumpang to cultivate an
area of about one hectare of the said property; and also by tolerance allowed
respondents Manabans and Agalas to occupy another hectare portion of the same
lot. They further alleged that in December 1972, petitioners Victorino, Luis, and
Jovito Reyes got sick; and believing that they were bewitched by the occupants of
the said lot, they signed a Deed of Quitclaim, waiving all their rights and interests
over their respective shares in the disputed lot in favor of the heirs of Victoriana and
Telesfora Reyes; and that thereafter, the latter filed Civil Case No. 6238 in 1987,
which was dismissed by the Dumaguete City RTC.

During the hearing of the instant case, petitioners presented their sole
witness, Ricardo Reyes, who testified on the identity of OCT No. OV-227, the
character of its possession, existence, and the Decision in the prior Civil Case No.
6238;[8] and the estimated income of the disputed lot, and the expenses incurred in
pursuing the instant case.

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On the other hand, respondent-heirs of Victoriana and Telesfora Reyes

presented Lorenzo Manaban,[9] who testified on the relationship of respondents to
Victoriana and Telesfora Reyes; that they were in actual and adverse possession of
Lot No. 3880; and, the existence and due execution of the assailed Deed of
Quitclaim in their favor which was duly annotated on the back of OCT No. OV227. Respondents Jose and Geoffrey Calumpang did not participate in the trial
although they filed their answer.

Subsequently, the trial court rendered its judgment on April 2, 1996. The
dispositive portion reads:

WHEREFORE, this Court renders judgment declaring NULL and

VOID the Deed of Quitclaim dated December 27, 1972 signed by Jovito
and Victorino all surnamed Reyes. Ordering defendants to
vacate Lot No. 3880, Cadastral Survey of Tanjay and to remove their
house thereon; and to pay jointly and severally plaintiffs the sum of
P10, 000.00, by way of reimbursement for attorneys fees, and to pay
the costs.[10]

Believing that they were the legal and true owners of Lot No. 3880,
respondents interposed an appeal to the CA on June 27, 1996, which was docketed
as CA-G.R. CV No. 54795.

The Ruling of the Court of Appeals

For non-payment of the requisite docket fee, the appeal of respondent Jose
Calumpang was dismissed by the CA on December 19, 1997,[11] and a Partial Entry
of Judgment for Appellant Jose Calumpang Only [12] was issued on January 23, 1998.
119

However, the appeal filed by respondents Agalas and Manabans was found to
be meritorious, and on January 26, 1999, the CA reversed the Decision of the trial
court and dismissed Civil Case No. 9975. While it ruled that petitioners had a cause
of action to institute the case assailing the Deed of Quitclaim as its validity was not
disputed in Civil Case No. 6238, upon review of the evidence adduced, the CA found
that petitioners utterly failed to present evidence substantiating their allegation of
fraud and mistake in the execution of the assailed quitclaim. The CA reasoned out
that it was incumbent for petitioners to prove their allegations of fraud and mistake,
but they failed to overcome the presumptions that a person takes ordinary care of
ones concerns and that private transactions have been fair and regular.

Thus, the CA ruled that the trial court had no basis in fact and in law to
declare the Deed of Quitclaim null and void, and concluded that it remained valid
and binding to all the signatories. The rights and interests in the shares of Victorino,
Luis, and Jovito Reyes over Lot No. 3880 were deemed waived in favor of the heirs
of Victoriana and Telesfora Reyes (that is, respondents Agalas and Manabans) who
had the right to retain possession of the lot.

Petitioners registered a Motion for Reconsideration of the January 26,

1999 Decision of the CA, which was however turned down in its March 25,
1999 Resolution, as petitioners were unable to raise new substantial issues which
had not been duly considered in arriving at the challenged judgment.

Hence, the instant petition.

The Issues

In the instant petition, petitioner raises the following assignment of errors for
our consideration:

120

(a) In exercising jurisdiction over the appeal of the defendants

when in fact the issues are purely questions of law misfiled in the Court
of Appeals, which should have been filed directly to the Supreme Court
at that time;

(b) In reversing the RTC Decision dated April 2, 1993; and in

reversing its own resolution dated December 19, 1997;

(c) In declaring that the fraud and mistake in the execution of

the waiver was not substantiated, when in fact there is overwhelming
evidence of infirmity of the document as found by the trial court, which
should not be disturbed on appeal.

(d) In sweepingly dismissing the complaint, including the claim

against the Calumpang defendants, even as the latter did not adduce
any evidence in the trial court, and whose appeal had already been
dismissed by the CA Resolution dated December 19, 1997; and the
Calumpang defendants did not also appeal to the Supreme Court from
such dismissal.[13]

The Courts Ruling

The petition is partly meritorious.

First Assignment of Error:

There is a Question of Fact
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In the first assignment of error, petitioners argue that the appeal of the heirs
of Victoriana and Telesfora Reyes should have been filed before this Court and not in
the CA since it involves only pure questions of law, that is, whether their
counterclaims are barred by the judgment in Cadastral Case No. 12, LRC 311,
rendered by the Hon. Roman Ibaez, Judge of the CFI of Negros Oriental, which
involves the law on estoppel by judgment, and Sections 38, 39, and 47 of Act 496.

We disagree.

A question of law exists when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain set of facts; or when the issue does
not call for an examination of the probative value of the evidence presented, the
truth or falsehood of facts being admitted. A question of fact exists when the doubt
or difference arises as to the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the credibility of the witnesses,
the existence and relevancy of specific surrounding circumstances, as well as their
relation to each other and to the whole, and the probability of the situation. [14]

The appeal before the CA by respondent-heirs of Victoriana and Telesfora

Reyes clearly assails the trial courts decision, inter alia, on the ground of lack of
evidence and questions the factual findings of the trial court. This question is
undoubtedly one of fact, falling squarely within the exclusive appellate jurisdiction
of the Court of Appeals.[15]

The second issue that the CA erred in reversing the April 2, 1993 Decision of
the RTC and its resolution dated December 19, 1997 will be jointly discussed with
the fourth issue that the CA erred in dismissing the complaint including the claim
against the Calumpang defendants.

Third Assignment of Error:

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Question of Evidence

In the third assignment of error, petitioners strongly assert that overwhelming

evidence of infirmity of the document substantiated the fraud and mistake in the
execution of the questioned waiver or deed of quitclaim.

We are not persuaded.

Petitioners failed to adduce evidence

Petitioners admit the execution of the quitclaim by Victorino, Luis, and Jovito,
all surnamed Reyes; however, petitioners allege fraud and mistake in its
execution. But, as correctly held by the appellate court, petitioners failed to present
evidence in support of their allegation. Indeed, even a cursory glance at the records
reveals that no evidence was adduced substantiating petitioners allegation of fraud
and mistake in the execution of the assailed quitclaim, neither from the
documentary evidence formally offered [16] nor from the testimonial evidence of
petitioners sole witness, Ricardo Reyes, who testified on the identity of some
documents to prove ownership, the character of the possession of the subject lot,
and the existence of the Decision in Civil Case No. 6238.

Basic is the rule of actori incumbit onus probandi, or the burden of proof lies
with the plaintiff. Differently stated, upon the plaintiff in a civil case, the burden of
proof never parts.[17] In the case at bar, petitioners must therefore establish their
case by a preponderance of evidence, [18] that is, evidence that has greater weight,
or is more convincing than that which is offered in opposition to
it[19]which petitioners utterly failed to do so. Besides, it is an age-old rule in civil
cases that one who alleges a fact has the burden of proving it and a mere allegation
is not evidence.[20] Fraud is never presumed, but must be established by clear and
convincing evidence.[21] Thus, by admitting that Victorino, Luis, and Jovito, all
surnamed Reyes, indeed executed the Deed of Quitclaim coupled with the absence
of evidence substantiating fraud and mistake in its execution, we are constrained to
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uphold the appellate courts conclusion that the execution of the Deed of Quitclaim
was valid.

This finding is consonant with the findings of the trial court in the prior Civil
Case No. 6238,[22] as affirmed in CA-G.R. CV No. 14527,[23] that while respondents
Agalas and Manabans (the heirs of Victoriana and Telesfora Reyes) had lost their
equitable remedy in law on the ground of laches, yet the Deed of Quitclaim is
deemed valid and binding.

Equitable Rights Subsist Despite Laches

On the issue of the rights of the heirs of Victoriana and Telesfora Reyes being
barred by the indefeasibility of petitioners Torrens Title over subject lot, we
qualify. White it is true that the indefeasibility of petitioners title on the ground of
laches bars the rights or interests of the heirs of Victoriana and Telesfora Reyes over
the disputed lot, still, the indefeasible rights of a holder of a Torrens Title may be
waived in favor of another whose equitable rights may have been barred by laches.
In Soliva v. The Intestate Estate of Villalba, laches is defined as:
the failure or neglect, for an unreasonable and unexplained length of
time, to do that which by the exercise of due diligence could or should
have been done earlier. It is the negligence or omission to assert a
right within a reasonable period, warranting the presumption that the
party entitled to assert it has either abandoned or declined to assert it.
Under this time-honored doctrine, relief has been denied to
litigants who, by sleeping on their rights for an unreasonable
length of time either by negligence, folly or inattention have
allowed their claims to become stale. Vigilantibus, sed non
dormientibus, jura subveniunt. The laws aid the vigilant, not those who
slumber on their rights.[24] (Emphasis supplied and citations omitted.)

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Verily, laches serves to deprive a party guilty of it to any judicial remedies.

However, the equitable rights barred by laches still subsist and are not
otherwise extinguished. Thus, parties guilty of laches retains equitable rights albeit
in an empty manner as they cannot assert their rights judicially. However, such
equitable rights may be revived or activated by the waiver of those whose right has
ripened due to laches, and can be exercised to the extent of the right waived.

Equitable Rights Revived through Waiver

In the case at bar, petitioners title over Lot No. 3880 had become indefeasible
due to the laches of the heirs of Victoriana and Telesfora Reyes. However, like any
rights over immovable property, titleholders may convey, dispose, or encumber
their right or interest. Thus, through the waiver and quitclaim, the rights of the heirs
of Victoriana and Telesfora Reyes were acknowledged, revived, and activated to the
extent of the rights waived by titleholders Victorino, Luis, and Jovito Reyes. Clearly,
the quitclaim executed by titleholders Victorino, Luis, and Jovito Reyes waived and
conveyed their rights over the said lot in favor of the heirs of Victoriana and
Telesfora Reyes, whose equitable rights were barred by laches.

In this light, we note that both trial and appellate courts in Civil Case No.
6238 did not categorically pronounce that the heirs of Victoriana and Telesfora
Reyes had no rights over the disputed lot. Their pronouncements were to the effect
that whatever equitable rights the heirs of Victoriana and Telesfora Reyes may have
had over the subject lot had been barred by laches. Thus, the voluntary waiver of
Victorino, Luis, and Jovito Reyes revived and activated the equitable rights of the
heirs of Victoriana and Telesfora Reyes over Lot No. 3880. But such revived and

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activated rights over Lot No. 3880 correspond only to the extent of the rights of
Victorino, Luis, and Jovito Reyes waived in their favor.

The Quitclaim (Waiver) is Valid

The waiver is clear. The recent case of Valderama v. Macalde reiterated the
three (3) essential elements of a valid waiver, thus: (a) existence of a right; (b) athe
knowledge of the existence thereof; and, (c) an intention to relinquish such
right. [25] These elements are all present in the case at bar. The three (3) executors,
who were co-owners and titleholders of the said lot since 1954, were aware of their
rights, and executed the Deed of Quitclaim in clear and unambiguous language to
waive and relinquish their rights over Lot No. 3880 in favor of the heirs of Victoriana
and Telesfora Reyes. Thus, the existence of a valid waiver has been positively
demonstrated. Moreover, in People v. Bodoso, cited in Valderama, it was held that
the standard of a valid waiver requires that it not only must be voluntary, but must
be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences. [26] In the instant case, petitioners utterly
failed to adduce any evidence showing that the assailed quitclaim was done absent
such standard. Indeed, we note with approval the CAs apt application of the
presumption that a person takes ordinary care of his concerns and that private
transactions have been fair and regular.[27]

Waiver Complies with the Requisites of a Valid Contract

and the Formal Requisites to Convey Real Property

Petitioners argue that even if the conveyance or waiver was duly executed,
such is ineffective on the grounds of non-compliance with the requirements of
Article 1318 of the new Civil Code on the requisites of a contract, and that it cannot
be considered a donation for non-compliance with the formalities required by the
law on donation, for example, acceptance.

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The argument is bereft of merit.

The Deed of Quitclaim complies with the essential requisites of a contract

provided in Article 1318 of the Civil Code, viz: (a) consent of the parties; (b) object
certain that is the subject matter of the waiver and quitclaim; and, (c) the cause of
the waiver and quitclaim that is established. First, there is no doubt as to the
consent of the executing parties and the heirs of Victoriana and Telesfora
Reyes. Second, the object is the executors right over the subject land. And third, the
cause is certain, that is, the recognition by the executors of the rights of the heirs of
Victoriana and Telesfora Reyes over the disputed lot.

It likewise complies with Article 1358 (1) of the Civil Code which requires that
acts and contracts which have for their object the creation, transmission,
modification or extinguishments of real rights over immovable property must
appear in a public document. This is complied with, as the Deed of Quitclaim is a
public document having been acknowledged before a notary public. [28] Moreover,
the Deed of Quitclaim has been duly annotated in the original certificate of title
covering the subject lot.

Deed of Quitclaim not a donation

Petitioners contended that the Deed of Quitclaim is really a donation and thus
necessitates acceptance by respondents Agalas and Manabans. A purview of the
factual antecedents of the execution of the Deed of Quitclaim shows
otherwise. Victorino, Luis, and Jovito Reyes signed the Deed of Quitclaim to
relinquish their rights in recognition of respondents right over the said land and thus
conveyed their rights and interest in the quitclaim to respondents Agalas and
Manabans (the heirs of Victoriana and Telesfora Reyes).

It should be remembered that respondents Agalas and Manabans are the

heirs of Victoriana and Telesfora Reyes. Originally the rights and interests of
respondents over Lot No. 3880 were formally filed in 1924 in the cadastral
127

proceedings in the Cadastral Court. Leonardo Reyes instructed his representative to

file an answer asserting the ownership of said lot by the eight (8) children of Isidro
Reyes which includes Victoriana and Telesfora. However on July 10, 1949, another
claim was filed by Dominador Agir only in behalf of the children of Higino and
Policarpio Reyes, and excluded Victoriana and Telesfora Reyes. Thus, when OCT No.
OV-227 was issued, the respondents Agalas and Manabans, as heirs of Victoriana
and Telesfora, were excluded.

In this factual setting, respondents could have filed an action for

reconveyance to recover their shares in Lot No. 3880. However, instead of
instituting such a suit, respondents were able to convince Victorino, Luis, and Jovito,
all surnamed Reyes, to execute a Deed of Quitclaim restoring to them their
shares. Therefore, it is clear that the quitclaim is not a donation for the three (3)
ReyesesVictorino, Luis, and Jovitowho merely acknowledged the ownership of and
the better right over the said lot by the heirs of Victoriana and Telesfora
Reyes. Having acquired title over the property in 1954 to the exclusion of
respondents Agalas and Manabans, through the Deed of Quitclaim executed in
1972, the three (3) Reyeses merely acknowledged the legal rights of respondents
over their shares in the said lot. In fine, the Deed of Quitclaim, not being a donation,
no formal acceptance is needed from the Agalas and Manabans.

After resolving the validity of the Deed of Quitclaim and elucidating on why
the deed is not tantamount to a donation, we will now resolve what the heirs of
Victoriana and Telesfora Reyes are entitled to own and why they can
legally possess the disputed lot:
Heirs of Victoriana and Telesfora Reyes entitled to 1/3 of disputed lot

Through the Deed of Quitclaim, the heirs of Victoriana and Telesfora

Reyesrespondents Agalas and Manabans and their co-heirsare entitled to the
aggregate shares of Victorino, Luis, and Jovito Reyes over Lot No. 3880.

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OCT No. OV-227 shows that the said lot has a total area of around 25,277
square meters, more or less. The shares of the registered co-owners in the OCT are
given as follows:

[I]t is hereby decreed that [1] Victorino Reyes, single; [2]

Cipriano Reyes, single; [3] Luis Reyes, 19 years of age, single; [4]
Ricardo Reyes, 17 years of age, single; [5] Jesus Reyes, 11 years of
age; [6] Daylinda Reyes, 8 years of age; [7] Jovito Reyes, single; [8]
Guillermo Reyes, 19 years of age, single; and [9] Beatriz Reyes, 17
years of age, single; in the proportion of undivided 1/2 in equal shares
to the first six (6) named and the remaining 1/2 in undivided equal
shares, to the last three (3) named x x x

From the foregoing division of pro-indiviso shares, Victorinos share is 1/6 of

1/2 undivided share or 1/12 of the total area. Luis has the same share as Victorinos;
while Jovitos share is 1/3 of 1/2 undivided share or 2/12 [1/6] of the total area. Thus,
Victorino and Luis have equal shares of 2,106.417 square meters while Jovito has a
share of 4,212.833 square meters. Thus, the aggregate area of the shares of
Victorino, Luis, and Jovito is 8,425.667 square meters or 1/3 of the total land area of
subject lot, which will be passed on to the heirs of Victoriana and Telesfora
Reyesrespondents Agalas and Manabans, and their co-heirs, the Balsamos, Aguilars,
and Mayormitas.

Second and Fourth Issues:

Respondent Calumpangs barred by Civil Case No. 6238

We will now tackle both alleged assignments of errors as regards respondents

Calumpangs because both issues are closely related. In the second assignment of
error, petitioners, as registered owners, contend that they are in constructive
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possession of the disputed land and have the right to demand that respondent
Calumpangs, who are occupying the land, to vacate it. And, in the last assignment
of error, petitioners contend that the appellate court erred in dismissing the
complaint, including the claim against respondents Jose and Geoffrey Calumpang,
who did not contest the case in the trial court, aside from their joint answer and
whose appeal before the appellate court was dismissed with finality.

We agree with petitioners.

As mentioned above, petitioners title over Lot No. 3880, Tanjay Cadastre,
Original Certificate of Title No. OV-227 issued in their names sometime in 1954, had
become indefeasible pursuant to the trial courts Decision duly affirmed by the
appellate court in Civil Case No. 6238. Respondent Calumpangs apparently did not
adduce evidence to assert their rights over subject lot both in the prior Civil Case
No. 6238 and in the instant one. Be that as it may, the claim of respondent
Calumpangs over Lot No. 3880 had been conclusively denied in Civil Case No.
6238. Thus, whatever rights and interests respondents Jose and Geoffrey
Calumpang have had over Lot No. 3880 are barred by the Decision in Civil Case No.
6238. Moreover, the December 19, 1997 Resolution of the CA had become final and
executory. Consequently, having no rights over Lot No. 3880, there is no reason for
respondents Jose and Geoffrey Calumpang to continue occupying a portion of Lot
No. 3880.

WHEREFORE, the petition is partly GRANTED. The January 26, 1999

Decision and the March 25, 1999 Resolution of the Court of Appeals in CA-G.R. CV
No. 54795 are hereby SET ASIDE. Respondents Jose and Geoffrey Calumpang
are ORDERED to VACATE Lot No. 3880, REMOVE their houses from the said lot, if
any, and PAYpetitioners, jointly and severally, PhP 10,000.00 as attorneys fees. The
heirs of Victoriana and Telesfora Reyesamong whom are respondents Agalas and
Manabansare entitled to8,425.667 square meters of Lot No. 3880. The parties
are ORDERED to have Lot No. 3880 surveyed, and a subdivision plan prepared
showing the respective shares of the parties as basis for the issuance of separate
titles. The Register of Deeds of Tanjay, Negros Oriental is hereby ORDERED to issue
separate Transfer Certificates of Title based on the said survey plan; one title in the
name of the heirs of Victoriana and Telesfora Reyes over 8,425.667 square meters,
who will retain possession of such area only, and another title over the remaining
130

area of 16,851.333 square meters of Lot No. 3880 which shall be issued in the
names of Cipriano, Ricardo, Jesus, Daylinda, Guillermo, and Beatriz, all surnamed
Reyes, excluding Victorino, Luis, and Jovito Reyes, whose shares were conveyed to
the heirs of Victoriana and Telesfora Reyes.

No costs.

SO ORDERED.
G.R. No. 174727

August 12, 2013

ANTIPOLO INING (DECEASED), SURVIVED BY MANUEL VILLANUEVA,

TEODORA
VILLANUEVA-FRANCISCO,
CAMILO
FRANCISCO,
ADOLFO
FRANCISCO, LUCIMO FRANCISCO, JR., MILAGROS FRANCISCO, * CELEDONIO
FRANCISCO, HERMINIGILDO FRANCISCO; RAMON TRESVALLES, ROBERTO
TAJONERA, NATIVIDAD INING-IBEA (DECEASED) SURVIVED BY EDILBERTO
IBEA, JOSEFA IBEA, MARTHA IBEA, CARMEN IBEA, AMPARO IBEAFERNANDEZ, HENRY RUIZ, EUGENIO RUIZ AND PASTOR RUIZ; DOLORES
INING-RIMON (DECEASED) SURVIVED BY JESUS RIMON, CESARIA RIMON
GONZALES AND REMEDIOS RIMON CORDERO; AND PEDRO INING
(DECEASED) SURVIVED BY ELISA TAN INING (WIFE) AND PEDRO INING,
JR., PETITIONERS,
vs.
LEONARDO R. VEGA, SUBSTITUTED BY LOURDES VEGA, RESTONILO I. VEGA,
CRISPULO
M.
VEGA,
MILBUENA
VEGA-RESTITUTO,
AND
LENARD
VEGA, RESPONDENTS.
DECISION
DEL CASTILLO, J.:
One who is merely related by affinity to the decedent does not inherit from the
latter and cannot become a co-owner of the decedents property. Consequently, he
cannot effect a repudiation of the co-ownership of the estate that was formed
among the decedents heirs.
Assailed in this Petition for Review on Certiorari 1 are the March 14, 2006 Decision 2 of
the Court of Appeals (CA) in CA-G.R. CV No. 74687 and its September 7, 2006
Resolution3 denying petitioners Motion for Reconsideration. 4
Factual Antecedents
131

Leon Roldan (Leon), married to Rafaela Menez (Rafaela), is the owner of a 3,120square meter parcel of land (subject property) in Kalibo, Aklan covered by Original
Certificate of Title No. (24071) RO-630 5 (OCT RO-630). Leon and Rafaela died
without issue. Leon was survived by his siblings Romana Roldan (Romana) and
Gregoria Roldan Ining (Gregoria), who are now both deceased.
Romana was survived by her daughter Anunciacion Vega and grandson, herein
respondent Leonardo R. Vega (Leonardo) (also both deceased). Leonardo in turn is
survived by his wife Lourdes and children Restonilo I. Vega, Crispulo M. Vega,
Milbuena Vega-Restituto and Lenard Vega, the substituted respondents.
Gregoria, on the other hand, was survived by her six children: petitioners Natividad
Ining-Ibea (Natividad), Dolores Ining-Rimon (Dolores), Antipolo, and Pedro; Jose; and
Amando. Natividad is survived by Edilberto Ibea, Josefa Ibea, Martha Ibea, Carmen
Ibea, Amparo Ibea-Fernandez, Henry Ruiz and Pastor Ruiz. Dolores is survived by
Jesus Rimon, Cesaria Rimon Gonzales and Remedios Rimon Cordero. Antipolo is
survived by Manuel Villanueva, daughter Teodora Villanueva-Francisco (Teodora),
Camilo Francisco (Camilo), Adolfo Francisco (Adolfo), Lucimo Francisco, Jr. (Lucimo
Jr.), Milagros Francisco, Celedonio Francisco, and Herminigildo Francisco
(Herminigildo). Pedro is survived by his wife, Elisa Tan Ining and Pedro Ining, Jr.
Amando died without issue. As for Jose, it is not clear from the records if he was
made party to the proceedings, or if he is alive at all.
In short, herein petitioners, except for Ramon Tresvalles (Tresvalles) and Roberto
Tajonera (Tajonera), are Gregorias grandchildren or spouses thereof (Gregorias
heirs).
In 1997, acting on the claim that one-half of subject property belonged to him as
Romanas surviving heir, Leonardo filed with the Regional Trial Court (RTC) of Kalibo,
Aklan Civil Case No. 52756 for partition, recovery of ownership and possession, with
damages, against Gregorias heirs. In his Amended Complaint, 7 Leonardo alleged
that on several occasions, he demanded the partition of the property but Gregorias
heirs refused to heed his demands; that the matter reached the level of the Lupon
Tagapamayapa, which issued a certification to file a court action sometime in 1980;
that Gregorias heirs claimed sole ownership of the property; that portions of the
property were sold to Tresvalles and Tajonera, which portions must be collated and
included as part of the portion to be awarded to Gregorias heirs; that in 1979,
Lucimo Francisco, Sr. (Lucimo Sr.), husband of herein petitioner Teodora, illegally
claimed absolute ownership of the property and transferred in his name the tax
declaration covering the property; that from 1988, Lucimo Sr. and Teodora have
deprived him (Leonardo) of the fruits of the property estimated at P1,000.00 per
year; that as a result, he incurred expenses by way of attorneys fees and litigation
costs. Leonardo thus prayed that he be declared the owner of half of the subject
property; that the same be partitioned after collation and determination of the
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portion to which he is entitled; that Gregorias heirs be ordered to execute the

necessary documents or agreements; and that he (Leonardo) be awarded actual
damages in the amount of P1,000.00 per year from 1988, attorneys fees
of P50,000.00, and lawyers appearance fees of P500.00 per hearing.
In their Answer8 with counterclaim, Teodora, Camilo, Adolfo, Lucimo Jr. and
Herminigildo claimed that Leonardo had no cause of action against them; that they
have become the sole owners of the subject property through Lucimo Sr. who
acquired the same in good faith by sale from Juan Enriquez (Enriquez), who in turn
acquired the same from Leon, and Leonardo was aware of this fact; that they were
in continuous, actual, adverse, notorious and exclusive possession of the property
with a just title; that they have been paying the taxes on the property; that
Leonardos claim is barred by estoppel and laches; and that they have suffered
damages and were forced to litigate as a result of Leonardos malicious suit. They
prayed that Civil Case No. 5275 be dismissed; that Leonardo be declared to be
without any right to the property; that Leonardo be ordered to surrender the
certificate of title to the property; and that they be awarded P20,000.00 as moral
damages, P10,000.00 as temperate and nominal damages, P20,000.00 as
attorneys fees, and double costs.
The other Gregoria heirs, as well as Tresvalles and Tajonera were declared in
default.9
As agreed during pre-trial, the trial court commissioned Geodetic Engineer Rafael M.
Escabarte to identify the metes and bounds of the property. 10 The resulting
Commissioners Report and Sketch, 11 as well as the Supplementary Commissioners
Report,12 were duly approved by the parties. The parties then submitted the
following issues for resolution of the trial court:
Whether Leonardo is entitled to a share in Leons estate;
Whether Leon sold the subject property to Lucimo Sr.; and
Whether Leonardos claim has prescribed, or that he is barred by estoppel or
laches.13
In the meantime, Leonardo passed away and was duly substituted by his heirs, the
respondents herein.14
During the course of the proceedings, the following additional relevant facts came
to light:
1. In 1995, Leonardo filed against petitioners Civil Case No. 4983 for partition
with the RTC Kalibo, but the case was dismissed and referred to the Kalibo
133

Municipal Trial Court (MTC), where the case was docketed as Civil Case No.
1366. However, on March 4, 1997, the MTC dismissed Civil Case No. 1366 for
lack of jurisdiction and declared that only the RTC can take cognizance of the
partition case;15
2. The property was allegedly sold by Leon to Enriquez through an
unnotarized document dated April 4, 1943. 16 Enriquez in turn allegedly sold
the property to Lucimo Sr. on November 25, 1943 via another private sale
document;17
3. Petitioners were in sole possession of the property for more than 30 years,
while Leonardo acquired custody of OCT RO-630; 18
4. On February 9, 1979, Lucimo Sr. executed an Affidavit of Ownership of
Land19 claiming sole ownership of the property which he utilized to secure in
his name Tax Declaration No. 16414 (TD 16414) over the property and to
cancel Tax Declaration No. 20102 in Leons name; 20
5. Lucimo Sr. died in 1991; and
6. The property was partitioned among the petitioners, to the exclusion of
Leonardo.21
Ruling of the Regional Trial Court
On November 19, 2001, the trial court rendered a Decision, 22 which decreed as
follows:
WHEREFORE, premises considered, judgment is hereby rendered:
Dismissing the complaint on the ground that plaintiffs right of action has long
prescribed under Article 1141 of the New Civil Code;
Declaring Lot 1786 covered by OCT No. RO-630 (24071) to be the common property
of the heirs of Gregoria Roldan Ining and by virtue whereof, OCT No. RO-630
(24071) is ordered cancelled and the Register of Deeds of the Province of Aklan is
directed to issue a transfer certificate of title to the heirs of Natividad Ining, onefourth (1/4) share; Heirs of Dolores Ining, one-fourth (1/4) share; Heirs of Antipolo
Ining, one-fourth (1/4) share; and Heirs of Pedro Ining, one-fourth (1/4) share.
For lack of sufficient evidence, the counterclaim is ordered dismissed.
With cost against the plaintiffs.

134

SO ORDERED.23
The trial court found the April 4, 1943 and November 25, 1943 deeds of sale to be
spurious. It concluded that Leon never sold the property to Enriquez, and in turn,
Enriquez never sold the property to Lucimo Sr., hence, the subject property
remained part of Leons estate at the time of his death in 1962. Leons siblings,
Romana and Gregoria, thus inherited the subject property in equal shares. Leonardo
and the respondents are entitled to Romanas share as the latters successors.
However, the trial court held that Leonardo had only 30 years from Leons death in
1962 or up to 1992 within which to file the partition case. Since Leonardo
instituted the partition suit only in 1997, the same was already barred by
prescription. It held that under Article 1141 of the Civil Code, 24 an action for
partition and recovery of ownership and possession of a parcel of land is a real
action over immovable property which prescribes in 30 years. In addition, the trial
court held that for his long inaction, Leonardo was guilty of laches as well.
Consequently, the property should go to Gregorias heirs exclusively.
Respondents moved for reconsideration25 but the same was denied by the RTC in its
February 7, 2002 Order.26
Ruling of the Court of Appeals
Only respondents interposed an appeal with the CA. Docketed as CA-G.R. CV No.
74687, the appeal questioned the propriety of the trial courts dismissal of Civil
Case No. 5275, its application of Article 1141, and the award of the property to
Gregorias heirs exclusively.
On March 14, 2006, the CA issued the questioned Decision, 27 which contained the
following decretal portion:
IN LIGHT OF ALL THE FOREGOING, this appeal is GRANTED. The decision of the
Regional Trial Court, Br. 8, Kalibo, Aklan in Civil Case No. 5275 is REVERSED and SET
ASIDE. In lieu thereof, judgment is rendered as follows:
1. Declaring 1/2 portion of Lot 1786 as the share of the plaintiffs as
successors-in-interest of Romana Roldan;
2. Declaring 1/2 portion of Lot 1786 as the share of the defendants as
successors-in-interest of Gregoria Roldan Ining;
3. Ordering the defendants to deliver the possession of the portion described
in paragraphs 8 and 9 of the Commissioners Report (Supplementary) to the
herein plaintiffs;
135

4. Ordering the cancellation of OCT No. RO-630 (24071) in the name of Leon
Roldan and the Register of Deeds of Aklan is directed to issue transfer
certificates of title to the plaintiffs in accordance with paragraphs 8 and 9 of
the sketch plan as embodied in the Commissioners Report (Supplementary)
and the remaining portion thereof be adjudged to the defendants.
Other claims and counterclaims are dismissed.
Costs against the defendants-appellees.
SO ORDERED.28
The CA held that the trial courts declaration of nullity of the April 4, 1943 and
November 25, 1943 deeds of sale in favor of Enriquez and Lucimo Sr., respectively,
became final and was settled by petitioners failure to appeal the same. Proceeding
from the premise that no valid prior disposition of the property was made by its
owner Leon and that the property which remained part of his estate at the time of
his death passed on by succession to his two siblings, Romana and Gregoria,
which thus makes the parties herein who are Romanas and Gregorias heirs coowners of the property in equal shares, the appellate court held that only the issues
of prescription and laches were needed to be resolved.
The CA did not agree with the trial courts pronouncement that Leonardos action for
partition was barred by prescription. The CA declared that prescription began to run
not from Leons death in 1962, but from Lucimo Sr.s execution of the Affidavit of
Ownership of Land in 1979, which amounted to a repudiation of his co-ownership of
the property with Leonardo. Applying the fifth paragraph of Article 494 of the Civil
Code, which provides that "[n]o prescription shall run in favor of a co-owner or coheir against his co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership," the CA held that it was only when Lucimo Sr.
executed the Affidavit of Ownership of Land in 1979 and obtained a new tax
declaration over the property (TD 16414) solely in his name that a repudiation of his
co-ownership with Leonardo was made, which repudiation effectively commenced
the running of the 30-year prescriptive period under Article 1141.
The CA did not consider Lucimo Sr.s sole possession of the property for more than
30 years to the exclusion of Leonardo and the respondents as a valid repudiation of
the co-ownership either, stating that his exclusive possession of the property and
appropriation of its fruits even his continuous payment of the taxes thereon
while adverse as against strangers, may not be deemed so as against Leonardo in
the absence of clear and conclusive evidence to the effect that the latter was
ousted or deprived of his rights as co-owner with the intention of assuming
exclusive ownership over the property, and absent a showing that this was
effectively made known to Leonardo. Citing Bargayo v. Camumot 29 and Segura v.
136

Segura,30 the appellate court held that as a rule, possession by a co-owner will not
be presumed to be adverse to the other co-owners but will be held to benefit all,
and that a co-owner or co-heir is in possession of an inheritance pro-indiviso for
himself and in representation of his co-owners or co-heirs if he administers or takes
care of the rest thereof with the obligation to deliver the same to his co-owners or
co-heirs, as is the case of a depositary, lessee or trustee.
The CA added that the payment of taxes by Lucimo Sr. and the issuance of a new
tax declaration in his name do not prove ownership; they merely indicate a claim of
ownership. Moreover, petitioners act of partitioning the property among themselves
to the exclusion of Leonardo cannot affect the latter; nor may it be considered a
repudiation of the co-ownership as it has not been shown that the partition was
made known to Leonardo.
The CA held further that the principle of laches cannot apply as against Leonardo
and the respondents. It held that laches is controlled by equitable considerations
and it cannot be used to defeat justice or to perpetuate fraud; it cannot be utilized
to deprive the respondents of their rightful inheritance.
On the basis of the above pronouncements, the CA granted respondents prayer for
partition, directing that the manner of partitioning the property shall be governed
by the Commissioners Report and Sketch and the Supplementary Commissioners
Report which the parties did not contest.
Petitioners filed their Motion for Reconsideration 31 which the CA denied in its
assailed September 7, 2006 Resolution.32 Hence, the present Petition.
Issues
Petitioners raise the following arguments:
I
THE APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION IN
REVERSING THE DECISION OF THE TRIAL COURT ON THE GROUND THAT
LUCIMO FRANCISCO REPUDIATED THE CO-OWNERSHIP ONLY ON FEBRUARY 9,
1979.
II
THE APPELLATE COURT ERRED IN NOT UPHOLDING THE DECISION OF THE
TRIAL COURT DISMISSING THE COMPLAINT ON THE GROUND OF
PRESCRIPTION AND LACHES.33

137

Petitioners Arguments
Petitioners insist in their Petition and Reply34 that Lucimo Sr.s purchase of the
property in 1943 and his possession thereof amounted to a repudiation of the coownership, and that Leonardos admission and acknowledgment of Lucimo Sr.s
possession for such length of time operated to bestow upon petitioners as Lucimo
Sr.s successors-in-interest the benefits of acquisitive prescription which
proceeded from the repudiation.
Petitioners contend that Leonardos inaction from Lucimo Sr.s taking possession in
1943, up to 1995, when Leonardo filed Civil Case No. 4983 for partition with the RTC
Kalibo amounted to laches or neglect. They add that during the proceedings
before the Lupon Tagapamayapa in 1980, Leonardo was informed of Lucimo Sr.s
purchase of the property in 1943; this notwithstanding, Leonardo did not take action
then against Lucimo Sr. and did so only in 1995, when he filed Civil Case No. 4983
which was eventually dismissed and referred to the MTC. They argue that, all this
time, Leonardo did nothing while Lucimo Sr. occupied the property and claimed all
its fruits for himself.
Respondents Arguments
Respondents, on the other hand, argue in their Comment 35 that
For purposes of clarity, if [sic] is respectfully submitted that eighteen (18) legible
copies has [sic] not been filed in this case for consideration in banc [sic] and nine
(9) copies in cases heard before a division in that [sic] all copies of pleadings served
to the offices concern [sic] where said order [sic] was issued were not furnished two
(2) copies each in violation to [sic] the adverse parties [sic] to the clerk of court,
Regional Trial Court, Branch 8, Kalibo, Aklan, Philippines; to the Honorable Court of
Appeals so that No [sic] action shall be taken on such pleadings, briefs, memoranda,
motions, and other papers as fail [sic] to comply with the requisites set out in this
paragraph.
The foregoing is confirmed by affidavit of MERIDON F. OLANDESCA, the law
secretary of the Petitioner [sic] who sent [sic] by Registered mail to Court of
Appeals, Twentieth Division, Cebu City; to Counsel for Respondent [sic] and to the
Clerk of Court Supreme Court Manila [sic].
These will show that Petitioner has [sic] violated all the requirements of furnishing
two (2) copies each concerned party [sic] under the Rule of Courts [sic]. 36
Our Ruling
The Court denies the Petition.
138

The finding that Leon did not sell the property to Lucimo Sr. had long been settled
and had become final for failure of petitioners to appeal. Thus, the property
remained part of Leons estate.
One issue submitted for resolution by the parties to the trial court is whether Leon
sold the property to Lucimo Sr.1wphi1The trial court, examining the two deeds of
sale executed in favor of Enriquez and Lucimo Sr., found them to be spurious. It then
concluded that no such sale from Leon to Lucimo Sr. ever took place. Despite this
finding, petitioners did not appeal. Consequently, any doubts regarding this matter
should be considered settled. Thus, petitioners insistence on Lucimo Sr.s 1943
purchase of the property to reinforce their claim over the property must be ignored.
Since no transfer from Leon to Lucimo Sr. took place, the subject property clearly
remained part of Leons estate upon his passing in 1962.
Leon died without issue; his heirs are his siblings Romana and Gregoria.
Since Leon died without issue, his heirs are his siblings, Romana and Gregoria, who
thus inherited the property in equal shares. In turn, Romanas and Gregorias heirs
the parties herein became entitled to the property upon the sisters passing.
Under Article 777 of the Civil Code, the rights to the succession are transmitted
from the moment of death.
Gregorias and Romanas heirs are co-owners of the subject property.
Thus, having succeeded to the property as heirs of Gregoria and Romana,
petitioners and respondents became co-owners thereof. As co-owners, they may
use the property owned in common, provided they do so in accordance with the
purpose for which it is intended and in such a way as not to injure the interest of the
co-ownership or prevent the other co-owners from using it according to their
rights.37 They have the full ownership of their parts and of the fruits and benefits
pertaining thereto, and may alienate, assign or mortgage them, and even substitute
another person in their enjoyment, except when personal rights are involved. 38 Each
co-owner may demand at any time the partition of the thing owned in common,
insofar as his share is concerned. 39 Finally, no prescription shall run in favor of one
of the co-heirs against the others so long as he expressly or impliedly recognizes
the co-ownership.40
For prescription to set in, the repudiation must be done by a co-owner.
Time and again, it has been held that "a co-owner cannot acquire by prescription
the share of the other co-owners, absent any clear repudiation of the co-ownership.
In order that the title may prescribe in favor of a co-owner, the following requisites
must concur: (1) the co-owner has performed unequivocal acts of repudiation
amounting to an ouster of the other co-owners; (2) such positive acts of repudiation
139

have been made known to the other co-owners; and (3) the evidence thereof is
clear and convincing."41
From the foregoing pronouncements, it is clear that the trial court erred in reckoning
the prescriptive period within which Leonardo may seek partition from the death of
Leon in 1962. Article 1141 and Article 494 (fifth paragraph) provide that prescription
shall begin to run in favor of a co-owner and against the other co-owners only from
the time he positively renounces the co-ownership and makes known his
repudiation to the other co-owners.
Lucimo Sr. challenged Leonardos co-ownership of the property only sometime in
1979 and 1980, when the former executed the Affidavit of Ownership of Land,
obtained a new tax declaration exclusively in his name, and informed the latter
before the Lupon Tagapamayapa of his 1943 purchase of the property. These
apparent acts of repudiation were followed later on by Lucimo Sr.s act of
withholding Leonardos share in the fruits of the property, beginning in 1988, as
Leonardo himself claims in his Amended Complaint. Considering these facts, the CA
held that prescription began to run against Leonardo only in 1979 or even in 1980
when it has been made sufficiently clear to him that Lucimo Sr. has renounced the
co-ownership and has claimed sole ownership over the property. The CA thus
concluded that the filing of Civil Case No. 5275 in 1997, or just under 20 years
counted from 1979, is clearly within the period prescribed under Article 1141.
What escaped the trial and appellate courts notice, however, is that while it may be
argued that Lucimo Sr. performed acts that may be characterized as a repudiation
of the co-ownership, the fact is, he is not a co-owner of the property. Indeed, he is
not an heir of Gregoria; he is merely Antipolos son-in-law, being married to
Antipolos daughter Teodora. 42 Under the Family Code, family relations, which is the
primary basis for succession, exclude relations by affinity.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half blood.
In point of law, therefore, Lucimo Sr. is not a co-owner of the property; Teodora is.
Consequently, he cannot validly effect a repudiation of the co-ownership, which he
was never part of. For this reason, prescription did not run adversely against
Leonardo, and his right to seek a partition of the property has not been lost.
140

Likewise, petitioners argument that Leonardos admission and acknowledgment in

his pleadings that Lucimo Sr. was in possession of the property since 1943
should be taken against him, is unavailing. In 1943, Leon remained the rightful
owner of the land, and Lucimo Sr. knew this very well, being married to Teodora,
daughter of Antipolo, a nephew of Leon. More significantly, the property, which is
registered under the Torrens system and covered by OCT RO-630, is in Leons name.
Leons ownership ceased only in 1962, upon his death when the property passed on
to his heirs by operation of law.
In fine, since none of the co-owners made a valid repudiation of the existing coownership, Leonardo could seek partition of the property at any time.
WHEREFORE, the Petition is DENIED. The assailed March 14, 2006 Decision and the
September 7, 2006 Resolution of the Court of Appeals in CA-G.R. CV No. 74687are
AFFIRMED.
SO ORDERED.
MARIANO
Associate Justice
G.R. No. L-6622

C.

DEL

CASTILLO

July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE

BORJA, administrator-appellant,
vs.
JUAN DE BORJA, ET AL., oppositors-appellees.
E.
V.
Filamor
Juan de Borja for himself and co-appellees.

for

appellant.

FELIX, J.:
The case. Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are
legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or
1925, left a considerable amount of property. Intestate proceedings must have
followed, and the pre-war records of the case either burned, lost or destroyed during
the last war, because the record shows that in 1930 Quintin de Borja was already
the administrator of the Intestate Estate of Marcelo de Borja.
In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of
Francisco de Borja, was appointed and took over as administrator of the Estate.
Francisco de Borja, on the other hand, assumed his duties as executor of the will of
Quintin de Borja, but upon petition of the heirs of said deceased on the ground that
his interests were conflicting with that of his brother's estate he was later required
by the Court to resign as such executor and was succeeded by Rogelio Limaco, a
son-in-law of Quintin de Borja.
141

It also appears that on February 16, 1940, at the hearing set for the approval of the
statement of accounts of the late administrator of the Intestate Estate of Marcelo de
Borja, then being opposed by Francisco de Borja, the parties submitted an
agreement, which was approved by the Court (Exh. A). Said agreement, translated
into English, reads as follows:
1. All the accounts submitted and those that are to be submitted
corresponding to this year will be considered approved;
2. No heir shall claim anything of the harvests from the lands in Cainta that
came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva
Ecija;
3. That the amounts of money taken by each heir shall be considered as
deposited in conjunction with the other properties of the intestate and shall
form part of the mass without drawing any interest;
4. That it shall be understood as included in this mass the sum of twelve
thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid
of their own money as part of the price the lands and three thousand pesos
(P3,000) the price of the machinery for irrigation;
5. The right, interests or participation that the deceased Quintin de Borja has
or may have in Civil Case No. 6190 of the Court of First Instance of Nueva
Ecija, shall be likewise included in the total mass of the inheritance of the
Intestate;
6. Not only the lands in Tabuatin but also those in Cainta coming from the
now deceased Exequiel Ampil shall also from part of the total mass of the
inheritance of the Intestate of the late Marcelo de Borja;
7. Once the total of the inheritance of the intestate is made up as specified
before in this Agreement, partition thereof will be made as follows:
From the total mass shall be deducted in case or in kind, Twelve Thousand
Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da.
Crisanta de Borja in equal shares, and the rest shall be divided among the
four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da.
Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION)
The Intestate remained under the administration of Crisanto de Borja until the then
outbreak of the war. From then on and until the termination of the war, there was a
lull and state of inaction in Special proceeding No. 2414 of the Court of First
Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de
Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of
his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the
records of this case, the Court on December 11, 1945, ordered the reconstitution of
the same, requiring the administrator to submit his report and a copy of the project
of partition.
142

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for
the period ranging from March 1 to December 22, 1945, which according to the
heirs of Quintin de Borja were so inadequate and general that on February 28, 1946,
they filed a motion for specification. On April 30, 1946, they also filed their
opposition to said statement of accounts alleging that the income reported in said
statement was very much less than the true and actual income of the estate and
that the expenses appearing therein were exaggerated and/or not actually incurred,
and prayed that the statement of accounts submitted by the administrator be
disapproved.
The administrator later filed another report of his administration, dated August 9,
1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949,
showing a cash balance of P71.96, but with pending obligation amounting to
P35,415.
On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de
Borja, filed their opposition to the statement of accounts filed by the administrator
on the ground that same was not detailed enough to enable the interested parties
to verify the same; that they cannot understand why the Intestate could suffer any
loss considering that during the administration of the same by Quintin de Borja, the
Estate accumulated gains of more than P100,000 in the form of advances to the
heirs as well as cash balance; that they desired to examine the accounts of Dr.
Crisanto de Borja to verify the loss and therefore prayed that the administrator be
ordered to deposit with the Clerk of Court all books, receipts, accounts and other
papers pertaining to the Estate of Marcelo de Borja. This motion was answered by
the administrator contending that the Report referred to was already clear and
enough, the income as well as the expenditures being specified therein; that he had
to spend for the repairs of the properties of the Estate damaged during the
Japanese occupation; that the allegation that during the administration of Quintin de
Boria the Estate realized a profit of P100,000 was not true, because instead of gain
there was even a shortage in the funds although said administrator had collected all
his fees (honorarios) and commissions corresponding to the entire period of his
incumbency; that the obligations mentioned in said report will be liquidated before
the termination of the proceedings in the same manner as it is done in any other
intestate case; that he was willing to submit all the receipts of the accounts for the
examination of the interested parties before the Clerk or before the Court itself; that
this Intestate could be terminated, the project of partition having been allowed and
confirmed by the Supreme Court and that the Administrator was also desirous of
terminating it definitely for the benefit of all the parties.
On September 14, 1949, the administrator filed another statement of accounts
covering the period of from March 1, 1945, to July 31, 1949, which showed a cash
balance of P71.95, with pending obligations in the sum of P35,810.
The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their
opposition said statement of accounts and prayed the Court to disapprove the same
and to appoint an account to go over the books of the administrator and to submit a
report thereon as soon as possible. The heir Juliana de Borja also formally offered
her objection to the approval of the accounts submitted by the administrator and
prayed further that said administrator be required to submit a complete accounting
143

of his administration of the Estate from 1937 to 1949. On the other hand, Francisco
de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja,
submitted to the Court an agreement to relieve the administrator from accounting
for the period of the Japanese occupation; that as to the accounting from 1937 to
1941, they affirmed their conformity with the agreement entered into by all the
heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no
objection to the approval of the statement of accounts submitted by the
administrator covering of the years 1945 to 1949.
On December 6, 1949, the administrator, answered the opposition of the heir
Juliana de Borja, alleging that the corresponding statement of accounts for the years
1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court
before and during the Japanese occupation, but the records of the same were
destroyed in the Office of the Clerk of that Court during the liberation of the
province of Rizal, and his personal records were also lost during the Japanese
occupation, when his house was burned; that Judge Pea who was presiding over
the Court in 1945 impliedly denied the petition of heirs to require him to render an
accounting for the period from 1942 to the early part of 1945, for the reason that
whatever money obtained from the Estate during said period could not be made the
subject of any adjudication it having been declared fiat money and without value,
and ordered that the statement of accounts be presented only for the period
starting from March 1, 1945. The administrator further stated that he was anxious
to terminate this administration but some of the heirs had not yet complied with the
conditions imposed in the project of partition which was approved by the Supreme
Court; that in accordance with said partition agreement, Juliana de Borja must
deliver to the administrator all the jewelry, objects of value, utensils and other
personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue,
which said heir had kept and continued to retain in her possession; that the heirs of
Quintin de Borja should deliver to the administrator all the lands and a document
transferring in favor of the Intestate the two parcels of land with a total area of 71
hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession
of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which
were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of
partition; that as consequence of the said dispossession the heirs of Quintin de
Borja must deliver to the administrator the products of the 71 hectares of land in
Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else
render to the Court an accounting of the products of these properties from the time
they took possession of the same in 1937 to the present; that there was a pending
obligation amounting to P36,000 as of September 14, 1949, which the heirs should
pay before the properties adjudicated to them would be delivered. The Court,
however, ordered the administrator on December 10, 1949, to show and prove by
evidence why he should not be accounts the proceeds of his administration from
1937.
Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry
belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any
other personal belonging of said spouses, and signified her willingness to turn over
to the administrator the silver wares mentioned in Paragraph III of the project of
partition, which were the only property in her care, on the date that she would

144

expect the delivery to her of her share in the inheritance from her deceased
parents.
On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba
and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for
the delivery to them of their inheritance in the estate, tendering to the
administrator a document ceding and transferring to the latter all the rights,
interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of
First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition,
and expressing their willingness to put up a bond if required to do so by the Court,
and on July 18, 1950, the Court ordered the administrator to deliver to Marcela,
Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the
properties adjudicated to them in the Project of Partition dated February 8, 1944,
upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment
of such obligation as may be ordered by the Court after a hearing on the
controverted accounts of the administrator. The Court considered the fact that the
heirs had complied with the requirement imposed by the Project of Partition when
they tendered the document ceding and transferring the rights and interests of
Quintin de Borja in the aforementioned lands and expressed the necessity of
terminating the proceedings as soon as practicable, observing that the Estate had
been under administration for over twenty-five years already. The Court, however,
deferred action on the petition filed by the special administratrix of the Intestate
Estate of Juliana de Borja until after compliance with the conditions imposed by the
project of partition. But on July 20, 1950, apparently before the properties were
delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion
informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija,
produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan,
which were enjoyed by some heirs; that the administrator Crisanto de Borja had not
taken possession of the same for circumstances beyond his control; and that there
also existed the sum of P70,204 which the former administrator, Quintin de Borja,
received from properties that were redeemed, but which amount did not come into
the hands of the present, administrator because according to reliable information,
same was delivered to the heir Juliana de Borja who deposited it in her name at the
Philippine National Bank. It was, therefore prayed that the administrator be required
to exert the necessary effort to ascertain the identity of the person or persons who
were in possession of the same amount and of the value of the products of the
lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the
Intestate Estate.
On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then
deceased, filed an answer to the motion of these two heirs, denying the allegation
that said heir any product of the lands mentioned from Quintin de Borja, and
informed the Court that the Mayapyap property had always been in the possession
of Francisco de Borja himself and prayed the court that the administrator be
instructed to demand all the fruits and products of said property from Francisco de
Borja.
On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said
motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition
was superfluous because the present proceeding was only for the approval of the
145

statement of accounts filed by the administrator; that said motion was improper
because it was asking the Court to order the administrator to perform what he was
duty bound to do; and that said heirs were already barred or stopped from raising
that question in view of their absolute ratification of and assent to the statement of
accounts submitted by the administrator.
On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de
Borja in the project of Partition were finally delivered to the estate of said heir upon
the filing of a bond for P20,000. In that same order, the Court denied the
administrator's motion to reconsider the order of July 18, 1950, requiring him to
deliver to the heirs of Quintin de Borja the properties corresponding to them, on the
ground that there existed no sufficient reason to disturb said order. It also ruled that
as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain
properties allegedly belonging to the Intestate, said petition should properly be
considered to gather with the final accounts of the administrator.
The administrator raised the matter by certiorari to this Tribunal, which was,
docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming
the order complained of, finding that the Juan de Borja and sisters have complied
with the requirement imposed in the Project of Partition upon the tender of the
document of cession of rights and quit-claim executed by Marcela de Borja, the
administratrix of the Estate of Quintin de Borja, and holding that the reasons
advanced by the administrator in opposing the execution of the order of delivery
were trivial.
On August 27, 1951, the administrator filed his amended statement of accounts
covering the period from March 1, 1945, to July 31, 1949, which showed a cash
balance of P36,660. An additional statement of accounts filed on August 31, 1961
for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of
P5,851.17 and pending obligations in the amount of P6,165.03.
The heirs of Quintin de Borja again opposed the approval of the statements of
accounts charging the administrator with having failed to include the fruits which
the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but
as the other heirs seemed satisfied with the accounts presented by said
administrator and as their group was only one of the 4 heirs of Intestate Estate,
they prayed that the administrator be held liable for only P119,932.42 which was
1/4 of the amount alleged to have been omitted. On October 4, 1951, the
administrator filed a reply to said opposition containing a counterclaim for moral
damages against all the heirs of Quintin de Borja in the sum of P30,000 which was
admitted by the Court over the objection of the heirs of Quintin de Borja that the
said pleading was filed out of time.
The oppositors, the heirs of Quintin de Borja, then filed their answer to the
counterclaim denying the charges therein, but later served interrogatories on the
administrator relative to the averments of said counterclaim. Upon receipt of the
answer to said interrogatories specifying the acts upon which the claim for moral
damages was based, the oppositors filed an amended answer contending that
inasmuch as the acts, manifestations and pleadings referred to therein were
admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same
146

cannot be made the basis of a counterclaim, said lawyer not being a party to the
action, and furthermore, as the acts upon which the claim for moral damages were
based had been committed prior to the effectivity of the new Civil Code, the
provisions of said Code on moral damages could not be invoked. On January 15,
1952, the administrator filed an amended counterclaim including the counsel for the
oppositors as defendant.
There followed a momentary respite in the proceedings until another judge was
assigned to preside over said court to dispose of the old case pending therein. On
August 15, 1952, Judge Encarnacion issued an order denying admission to
administrator's amended counterclaim directed against the lawyer, Atty. Amador E.
Gomez, holding that a lawyer, not being a party to the action, cannot be made
answerable for counterclaims. Another order was also issued on the same date
dismissing the administrator's counterclaim for moral damages against the heirs of
Quintin de Borja and their counsel for the alleged defamatory acts, manifestation
and utterances, and stating that granting the same to be meritorious, yet it was a
strictly private controversy between said heirs and the administrator which would
not in any way affect the interest of the Intestate, and, therefore, not proper in an
intestate proceedings. The Court stressed that to allow the ventilation of such
personal controversies would further delay the proceedings in the case which had
already lagged for almost 30 years, a situation which the Court would not
countenance.
Having disposed of these pending incidents which arose out of the principal issue,
that is, the disputed statement of accounts submitted by the administrator, the
Court rendered judgment on September 5, 1952, ordering the administrator to
distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs
of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana
de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate
the sum of P900, said heirs was ordered to pay instead the 3 others the sum of
P146.05 each. After considering the testimonies of the witnesses presented by both
parties and the available records on hand, the Court found the administrator guilty
of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the
heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount
which the state lost, with legal interest from the date of the judgment. On the same
day, the Court also issued an order requiring the administrator to deliver to the
Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was
issued in the name of Quintin de Borja.
The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower
Court's orders of August 15, 1952, the decision of September 5, 1952, and the order
of even date, but when the Record on Appeal was finally approved, the Court
ordered the exclusion of the appeal from the order of September 5, 1952, requiring
the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the
Clerk of Court, after the oppositors had shown that during the hearing of that
incident, the parties agreed to abide by whatever resolution the Court would make
on the ownership of the funds covered by that deposit.
The issues. Reducing the issues to bare essentials, the questions left for our
determination are: (1) whether the counsel for a party in a case may be included as
147

a defendant in a counterclaim; (2) whether a claim for moral damages may be

entertained in a proceeding for the settlement of an estate; (3) what may be
considered as acts of maladministration and whether an administrator, as the one in
the case at bar, may be held accountable for any loss or damage that the estate
under his administration may incur by reason of his negligence, bad faith or acts of
maladministration; and (4) in the case at bar has the Intestate or any of the heirs
suffered any loss or damage by reason of the administrator's negligence, bad faith
or maladministration? If so, what is the amount of such loss or damage?
I. Section 1, Rule 10, of the Rules of Court defines a counterclaim as:
SECTION 1. Counterclaim Defined. A counterclaim is any claim, whether for
money or otherwise, which a party may have against the opposing party. A
counterclaim need not dismiss or defeat the recovery sought by the opposing
party, but may claim relief exceeding in amount or different in kind from that
sought by the opposing party's claim.
It is an elementary rule of procedure that a counterclaim is a relief available to a
party-defendant against the adverse party which may or may not be independent
from the main issue. There is no controversy in the case at bar, that the acts,
manifestations and actuations alleged to be defamatory and upon which the
counterclaim was based were done or prepared by counsel for oppositors; and the
administrator contends that as the very oppositors manifested that whatever civil
liability arising from acts, actuations, pleadings and manifestations attributable to
their lawyer is enforceable against said lawyer, the amended counterclaim was filed
against the latter not in his individual or personal capacity but as counsel for the
oppositors. It is his stand, therefore, that the lower erred in denying admission to
said pleading. We differ from the view taken by the administrator. The appearance
of a lawyer as counsel for a party and his participation in a case as such counsel
does not make him a party to the action. The fact that he represents the interests of
his client or that he acts in their behalf will not hold him liable for or make him
entitled to any award that the Court may adjudicate to the parties, other than his
professional fees. The principle that a counterclaim cannot be filed against persons
who are acting in representation of another such as trustees in their individual
capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742)
could be applied with more force and effect in the case of a counsel whose
participation in the action is merely confined to the preparation of the defense of his
client. Appellant, however, asserted that he filed the counterclaim against said
lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja.
But as we have already stated that the existence of a lawyer-client relationship does
not make the former a party to the action, even this allegation of appellant will not
alter the result We have arrived at.
Granting that the lawyer really employed intemperate language in the course of the
hearings or in the preparation of the pleadings filed in connection with this case, the
remedy against said counsel would be to have him cited for contempt of court or
take other administrative measures that may be proper in the case, but certainly
not a counterclaim for moral damages.

148

II. Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig
branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de
Borja. In taking cognizance of the case, the Court was clothed with a limited
jurisdiction which cannot expand to collateral matters not arising out of or in any
way related to the settlement and adjudication of the properties of the deceased,
for it is a settled rule that the jurisdiction of a probate court is limited and special
(Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule
and extend the jurisdiction of the probate court in respect to matters incidental and
collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should
be understood to comprehend only cases related to those powers specifically
allowed by the statutes. For it was even said that:
Probate proceedings are purely statutory and their functions limited to the
control of the property upon the death of its owner, and cannot extend to the
adjudication of collateral questions (Woesmes, The American Law of
Administration, Vol. I, p. 514, 662-663).
It was in the acknowledgment of its limited jurisdiction that the lower court
dismissed the administrator's counterclaim for moral damages against the
oppositors, particularly against Marcela de Borja who allegedly uttered derogatory
remarks intended to cast dishonor to said administrator sometime in 1950 or 1951,
his Honor's ground being that the court exercising limited jurisdiction cannot
entertain claims of this kind which should properly belong to a court general
jurisdiction. From what ever angle it may be looked at, a counterclaim for moral
damages demanded by an administrator against the heirs for alleged utterances,
pleadings and actuations made in the course of the proceeding, is an extraneous
matter in a testate or intestate proceedings. The injection into the action of
incidental questions entirely foreign in probate proceedings should not be
encouraged for to do otherwise would run counter to the clear intention of the law,
for it was held that:
The speedy settlement of the estate of deceased persons for the benefit of
the creditors and those entitled to the residue by way of inheritance or legacy
after the debts and expenses of administration have been paid, is the ruling
spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz.,
1871).
III. and IV. This appeal arose from the opposition of the heirs of Quintin de Borja
to the approval of the statements of accounts rendered by the administrator of the
Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should
have been accrued to the estate were unaccounted for, which charge the
administrator denied. After a protracted and extensive hearing on the matter, the
Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of
maladministration, held him liable for the payment to the oppositors, the heirs of
Quintin de Borja, of 1/4 of the unreported income which the estate should have
received. The evidence presented in the court below bear out the following facts:
(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551
in Azcarraga Street, Manila, situated in front of the Arranque market. Of this
149

property, the administrator reported to have received for the estate the following
rentals:

March
1945

to

Annual
monthl
y rental

Total
rentals

Period of time

December, P3,085.0 P51.42

0

January
1946

to

December, 4,980.00 69.17

January
1947

to

December, 8,330.00 115.70

January
1948

to

December, 9,000.00 125.00

January
1949

to

December, 8,840.00 122.77

January
1950

to

December,

184.16
6,060.00

Total

P40,295.
00

The oppositors, in disputing this record income, presented at the witness stand
Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole
of Door No. 1543 from 1945 to November 15, 1949, and who testified that he paid
rentals on said apartments as follows:
1945
Door
No.
(basement)

1541

150

Door No. 1543

February

P20.00

March

20.00

For 7 months at
P300

April

60.00

a month

P2,100.
00

May-December
800.00

Total

P900.0
0

1946
JanuaryDecember

P1,200. January00
December

P4,080.
00

January

P100.0 January
0

P380.0
0

February

100.00 February

380.00

March

180.00 March 1-15

190.00

April-December

1,140.0 March
0
December

1947

P1,820.
00

16- 4,085.0
0

P5,035.
00

1948

151

JanuaryDecember

P1,920. January00
December

P5,150.
00

P1,680. January00
December

P4,315.
00

1949
JanuaryNovember 15

From the testimony of said witness, it appears that from 1945 to November
15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the
basement of Door No. 1541. These figures were not controverted or disputed by the
administrator but claim that said tenant subleased the apartments occupied by
Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the
administrator, but to said Enriquez. The transcript of the testimony of this witness
really bolster this contention that Lauro Aguila talked with said Pedro Enriquez
when he leased the aforementioned apartments and admitted paying the rentals to
the latter and not to the administrator. It is interesting to note that Pedro Enriquez is
the same person who appeared to be the administrator's collector, duly authorized
to receive the rentals from this Azcarraga property and for which services, said
Enriquez received 5 per cent of the amount he might be able to collect as
commission. If we are to believe appellant's contention, aside from the commission
that Pedro Enriquez received he also sublet the apartments he was occupying at a
very much higher rate than that he actually paid the estate without the knowledge
of the administrator or with his approval. As the administrator also seemed to
possess that peculiar habit of giving little importance to bookkeeping methods, for
he never kept a ledger or book of entry for amounts received for the estate, We find
no record of the rentals the lessees of the other doors were paying. It was, however,
brought about at the hearing that the 6 doors of this building are of the same sizes
and construction and the lower Court based its computation of the amount this
property should have earned for the estate on the rental paid by Atty. Aguila for the
1 1/2 doors that he occupied. We see no excuse why the administrator could not
have taken cognizance of these rates and received the same for the benefit of the
estate he was administering, considering the fact that he used to make trips to
Manila usually once a month and for which he charged to the estate P8 as
transportation expenses for every trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received
P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the
lower Court held him accountable not only for the sum of P34,235 reported for the
period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of
P90,525 or a total of P124,760. The record shows, however that the upper floor of
Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390
a month for the use of an entire apartment from September to November, 1949,
and he also paid P160 for the use of the basement of an apartment (Door No. 1541),
the use, therefore, of said upper floor would cost P230 which should be deducted,
even if the computation of the lower Court would have to be followed.

152

There being no proper evidence to show that the administrator collected more
rentals than those reported by him, except in the instance already mentioned, We
are reluctant to bold him accountable in the amount for which he was held liable by
the lower Court, and We think that under the circumstances it would be more just to
add to the sum reported by the administrator as received by him as rents for 19451949 only, the difference between the sum reported as paid by Atty. Aguila and the
sum actually paid by the latter as rents of 1 1/2 of the apartments during the said
period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the
oppositors.
The record also shows that in July, 1950, the administrator delivered to the other
heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543
adjudicated to the oppositors remained under his administration. For the period
from January to June, 1950, that the entire property was still administered by him,
the administrator reported to have received for the 2 oppositors' apartments for
said period of six months at P168.33 a month, the sum of P1,010 which belongs to
the oppositors and should be taken from the amount reported by the administrator.
The lower Court computed at P40 a month the pre-war rental admittedly received
for every apartment, the income that said property would have earned from 1941 to
1944, or a total of P11,520, but as We have to exclude the period covered by the
Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the
administrator should pay to the oppositors for the year 1941.
(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with
an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the
spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the
Court of First Instance of said province, In virtue of the agreement entered into by
the heirs, this property was turned over by the estate of Quintin de Borja to the
intestate and formed part of the general mass of said estate. The report of the
administrator failed to disclose any return from this property alleging that he had
not taken possession of the same. He does not deny however that he knew of the
existence of this land but claimed that when he demanded the delivery of the
Certificate of Title covering this property, Rogelio Limaco, then administrator of the
estate of Quintin de Borja, refused to surrender the same and he did not take any
further action to recover the same.
To counteract the insinuation that the Estate of Quintin de Borja was in possession
of this property from 1940 to 1950, the oppositors presented several witnesses,
among them was an old man, Narciso Punzal, who testified that he knew both
Quintin and Francisco de Borja; that before the war or sometime in 1937, the former
administrator of the Intestate, Quintin de Borja, offered him the position of overseer
(encargado) of this land but he was notable to assume the same due to the death of
said administrator; that on July 7, 1951, herein appellant invited him to go to his
house in Pateros, Rizal, and while in said house, he was instructed by appellant to
testify in court next day that he was the overseer of the Mayapyap property for
Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes
of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin
de Borja and Rogelio Limaco were already dead. But as he knew that the facts on
which he was to testify were false, he went instead to the house of one of the
153

daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja,
accompanied him to the house of the counsel for said oppositors before whom his
sworn declaration was taken (Exh. 3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto
Mangulabnan, testified that they were some of the tenants of the Mayapyap
property; that they were paying their shares to the overseers of Francisco de Borja
and sometimes to his wife, which the administrator was not able to contradict, and
the lower Court found no reason why the administrator would fail to take possession
of this property considering that this was even the subject of the agreement of
February 16, 1940, executed by the heirs of the Intestate.
The lower Court, giving due credence to the testimonies of the witnesses for the
oppositors, computed the loss the estate suffered in the form of unreported income
from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000
from the remaining portion of the land not devoted to rice cultivation which was
being leased at P20 per hectare. Consequently, the Court held the administrator
liable to appellees in the sum of P17,750 which is 1/4 of the total amount which
should have accrued to the estate for this item.
But if We exclude the 3 years of occupation, the income for 7 years would be
P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not
developed to rice cultivation or a total of P48,700, 1/4 of which is P12,175 which We
hold the administrator liable to the oppositors.
(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the
Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo
de Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case,
we will just deal with that part called Junta. This property has an area of 1,345,
hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who
measured the same, 200 hectares were of cultivated rice fields and 100 hectares
dedicated to the planting of upland rice. It has also timberland and forest which
produce considerable amount of trees and firewoods. From the said property which
has an assessed value of P115,000 and for which the estates pay real estate tax of
P1,500 annually, the administrator reported the following:

Year

Income

Expenditure
(not
including
administrati
on's fees

1945........... P625.00 P1,310.42

1946............ 1,800.00 3,471.00

154

1947............ 2,550.00 2,912.91

.

1948............ 1,828.00 3,311.88

.

1949............ 3,204.50 4,792.09

.

1950............ 2,082.00 2,940.91

.

P12,089. P18,739.21
50

This statement was assailed by the oppositors and to substantiate their charge that
the administrator did not file the true income of the property, they presented
several witnesses who testified that there were about 200 tenants working therein;
that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay
per hectare; that in the years of 1943 and 1944, the Japanese were the ones who
collected their rentals, and that the estate could have received no less than 1,000
cavanes of palay yearly. After the administrator had presented witnesses to refute
the facts previously testified to by the witnesses for the oppositors, the Court held
that the report of the administrator did not contain the real income of the property
devoted to rice cultivation, which was fixed at 1,000 cavanes every year for
1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes
valued at P73,000. But as the administrator accounted for the sum of P11,155
collected from rice harvests and if to this amount we add the sum of P8,739.20 for
expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80,
of which will be P13,276.45 which the administrator is held liable to pay the heirs
of Quintin de Borja.
It was also proved during the hearing that the forest land of this property yields
considerable amount of marketable firewoods. Taking into consideration the
testimonies of witnesses for both parties, the Court arrived at the conclusion that
the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in
1945 and P4,200 in 1946 or a total of P8,300. As the report included only the
amount of P625, there was a balance of P7,675 in favor of the estate. The
155

oppositors were not able to present any proof of sales made after these years, if
there were any and the administrator was held accountable to the oppositors for
only P1,918.75.
(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22
hectares, 76 ares and 66 centares. Of this particular item, the administrator
reported an income of P12,104 from 1945 to 1951. The oppositors protested against
this report and presented witnesses to disprove the same.
Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the
land belonging to the Intestate, the 2 properties being separated only by a river. As
tenant of Juliana de Borja, he knew the tenants working on the property and also
knows that both lands are of the same class, and that an area accommodating one
cavan of seedlings yields at most 100 cavanes and 60 cavanes at the least. The
administrator failed to overcome this testimony. The lower Court considering the
facts testified to by this witness made a finding that the property belonging to this
Intestate was actually occupied by several persons accommodating 13 cavanes
of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of
palay, the whole area under cultivation would have yielded 810 cavanes a year and
under the 50-50 sharing system (which was testified by witness Javier), the estate
would have received no less than 405 cavanes every year. Now, for the period of 7
years from 1941 to 1950, excluding the 3 years of war the corresponding
earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from
the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued
at P24,300, or all in all P25,515. If from this amount the reported income of P12,104
is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the
administrator is held liable to pay to the oppositors.
(e) The records show that the administrator paid surcharges and penalties with a
total of P988.75 for his failure to pay on time the taxes imposed on the properties
under his administration. He advanced the reason that he lagged in the payment of
those tax obligations because of lack of cash balance for the estate. The oppositors,
however, presented evidence that on October 29, 1939, the administrator received
from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining
to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja.
Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948
and 1949, said property was sold at public auction and the administrator had to
redeem the same at P3,295.48, although the amount that should have been paid
was only P2,917.26. The estate therefore suffered a loss ofP378.22. Attributing
these surcharges and penalties to the negligence of the administrator, the lower
Court adjudged him liable to pay the oppositors of P1,366.97, the total loss
suffered by the Intestate, or P341.74.
(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including
that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties
burned therein was his safe containing P15,000 belonging to the estate under his
administration. The administrator contended that this loss was already proved to
the satisfaction of the Court who, approved the same by order of January 8, 1943,
purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the
genuineness of this order and presented on April 21, 1950, an expert witness who
156

conducted several tests to determine the probable age of the questioned document,
and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at
the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However,
another expert witness presented by the administrator contradicted this finding and
testified that this conclusion arrived at by expert witness Mr. Pedro Manzaares was
not supported by authorities and was merely the result of his own theory, as there
was no method yet discovered that would determine the age of a document, for
every document has its own reaction to different chemicals used in the tests. There
is, however, another fact that called the attention of the lower Court: the
administrator testified that the money and other papers delivered by Juliana de
Borja to him on October 29, 1939, were saved from said fire. The administrator
justified the existence of these valuables by asserting that these properties were
locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence
was not in his safe when his house, together with the safe, was burned. This line of
reasoning is really subject to doubt and the lower Court opined, that it runs counter
to the ordinary course of human behaviour for an administrator to leave in the
drawer of the "aparador" of Juliana de Borja the money and other documents
belonging to the estate under his administration, which delivery has receipted for,
rather than to keep it in his safe together with the alleged P15,000 also belonging to
the Intestate. The subsequent orders of Judge Platon also put the defense of
appellant to bad light, for on February 6, 1943, the Court required Crisanto de Borja
to appear before the Court of examination of the other heirs in connection with the
reported loss, and on March 1, 1943, authorized the lawyers for the other parties to
inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon
would still order the inspection of the safe if there was really an order approving the
loss of those P15,000. We must not forget, in this connection, that the records of
this case were burned and that at the time of the hearing of this incident in 1951,
Judge Platon was already dead. The lower Court also found no reason why the
administrator should keep in his such amount of money, for ordinary prudence
would dictate that as an administration funds that come into his possession in a
fiduciary capacity should not be mingled with his personal funds and should have
been deposited in the Bank in the name of the intestate. The administrator was held
responsible for this loss and ordered to pay thereof, or the sum of P3,750.
(g) Unauthorized expenditures
1. The report of the administrator contained certain sums amounting to P2,130 paid
to and receipted by Juanita V. Jarencio the administrator's wife, as his private
secretary. In explaining this item, the administrator alleged that he needed her
services to keep receipts and records for him, and that he did not secure first the
authorization from the court before making these disbursements because it was
merely a pure administrative function.
The keeping of receipts and retaining in his custody records connected with the
management of the properties under administration is a duty that properly belongs
to the administrator, necessary to support the statement of accounts that he is
obliged to submit to the court for approval. If ever his wife took charge of the
safekeeping of these receipts and for which she should be compensated, the same
should be taken from his fee. This disbursement was disallowed by the Court for

157

being unauthorized and the administrator required to pay the oppositors , thereof
or P532.50.
2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio
Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and
Herminigildo Macetas as forest-guards were found justified, although un authorized,
as they appear to be reasonable and necessary for the care and preservation of the
Intestate.
3. The lower Court disallowed as unjustified and unnecessary the expenses for
salaries paid to special policemen amounting to P1,509. Appellant contended that
he sought for the services of Macario Kamungol and others to act as special
policemen during harvest time because most of the workers tilting the Punta
property were not natives of Jalajala but of the neighboring towns and they were
likely to run away with the harvest without giving the share of the estate if they
were not policed. This kind of reasoning did not appear to be convincing to the trial
judge as the cause for such fear seemed to exist only in the imagination. Granting
that such kind of situation existed, the proper thing for the administrator to do
would have been to secure the previous authorization from the Court if he failed to
secure the help of the local police. He should be held liable for this unauthorized
expenditure and pay the heirs of Quintin de Borja thereof or P377.25.
4. From the year 1942 when his house was burned, the administrator and his family
took shelter at the house belonging to the Intestate known as "casa solariega"
which, in the Project of Partition was adjudicated to his father, Francisco de Borja.
This property, however, remained under his administration and for its repairs he
spent from 1945-1950, P1465,14, duly receipted.
None of these repairs appear to be extraordinary for the receipts were for nipa, for
carpenters and thatchers. Although it is true that Rule 85, section 2 provides that:
SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. An
executor or administrator shall maintain in tenant able repair the houses and
other structures and fences belonging to the estate, and deliver the same in
such repair to the heirs or devisees when directed so to do by the court.
yet considering that during his occupancy of the said "casa solariega" he was not
paying any rental at all, it is but reasonable that he should take care of the
expenses for the ordinary repair of said house. Appellant asserted that had he and
his family not occupied the same, they would have to pay someone to watch and
take care of said house. But this will not excuse him from this responsibility for the
disbursements he made in connection with the aforementioned repairs because
even if he stayed in another house, he would have had to pay rentals or else take
charge also of expenses for the repairs of his residence. The administrator should be
held liable to the oppositors in the amount of P366.28.
5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged
repairs on the rice mill in Pateros, also belonging to the Intestate. Of the
disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26,
158

L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on
the ground that they were all unsigned although some were dated. The lower Court,
however, made an oversight in including the sum of P150 covered by Exhibit L-26
which was duly signed by Claudio Reyes because this does not refer to the repair of
the rice-mill but for the roofing of the house and another building and shall be
allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which
added to the sum of P3,059 representing expenditures rejected as unauthorized to
wit:

Exhibit
59 .............

L- P500.0
0

Exhibit
60 .............

L-

Exhibit
61 .............

L-

Exhibit
62 .............

L-

Exhibit
63 .............

L-

Exhibit
2 .............

Q-

Yek Wing

616.00

Yek Wing

600.00

Yek Wing

840.00

Yek Wing

180.00

Yek Wing

scale
323.00 "Howe"

Total .................... P3,059.

..
00

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.
6. On the expenses for planting in the Cainta ricefields: In his statement of
accounts, appellant reported to have incurred a total expense of P5,977 for the
planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to
1950-51. It was proved that the prevailing sharing system in this part of the country
was on 50-50 basis. Appellant admitted that expenses for planting were advanced
by the estate and liquidated after each harvest. But the report, except for the
159

agricultural year 1950 contained nothing of the payments that the tenants should
have made. If the total expenses for said planting amounted to P5,977, thereof or
P2,988.50 should have been paid by the tenants as their share of such
expenditures, and as P965 was reported by the administrator as paid back in 1950,
there still remains a balance of P2,023.50 unaccounted for. For this shortage, the
administrator is responsible and should pay the oppositors thereof or P505.87.
7. On the transportation expenses of the administrator: It appears that from the
year 1945 to 1951, the administrator charged the estate with a total of P5,170 for
transportation expenses. The un receipted disbursements were correspondingly
itemized, a typical example of which is as follows:
1950
Gastos de viaje del administrador From
Pateros
To
Pasig ................

50
P4.00

x
=

P200.0
0

To
50
x
Manila ............... P10.00
=

P500.0
0

To
Cainta ................ 8 x P8.00 =

P64.00

To
5
x
Jalajala ............... P35.00
=

P175.0
0

P399.0
0

(Exhibit W-54).
From the report of the administrator, We are being made to believe that the
Intestate estate is a losing proposition and assuming arguendo that this is true, that
precarious financial condition which he, as administrator, should know, did not deter
Crisanto de Borja from charging to the depleted funds of the estate comparatively
big amounts for his transportation expenses. Appellant tried to justify these charges
by contending that he used his own car in making those trips to Manila, Pasig and
Cainta and a launch in visiting the properties in Jalajala, and they were for the
gasoline consumed. This rather unreasonable spending of the estate's fund
prompted the Court to observe that one will have to spend only P0.40 for
160

transportation in making a trip from Pateros to Manila and practically the same
amount in going to Pasig. From his report for 1949 alone, appellant made a total of
97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must
not forget that it was during this period that the administrator failed or refused to
take cognizance of the prevailing rentals of commercial places in Manila that caused
certain loss to the estate and for which he was accordingly held responsible. For the
reason that the alleged disbursements made for transportation expenses cannot be
said to be economical, the lower Court held that the administrator should be held
liable to the oppositors for thereof or the sum of P1,292.50, though We think that
this sum should still be reduced to P500.
8. Other expenses:
The administrator also ordered 40 booklets of printed contracts of lease in the name
of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3
parts one belonging to this Intestate and the other two parts to Francisco de Boria
and Bernardo de Borja, ordinarily the Intestate should only shoulder /3 of the said
expense, but as the tenants who testified during the hearing of the matter testified
that those printed forms were not being used, the Court adjudged the administrator
personally responsible for this amount. The records reveal, that this printed form
was not utilized because the tenants refused to sign any, and We can presume that
when the administrator ordered for the printing of the same, he did not foresee this
situation. As there is no showing that said printed contracts were used by another
and that they are still in the possession of the administrator which could be utilized
anytime, this disbursement may be allowed.
The report also contains a receipt of payment made to Mr. Severo Abellera in the
sum of P375 for his transportation expenses as one of the two commissioners who
prepared the Project of Partition. The oppositors were able to prove that on May 24,
1941, the Court authorized the administrator to withdraw from the funds of the
intestate the sum of P300 to defray the transportation expenses of the
commissioners. The administrator, however, alleged that he used this amount for
the payment of certain fees necessary in connection with the approval of the
proposed plan of the Azcarraga property which was then being processed in the City
Engineer's Office. From that testimony, it would seem that appellant could even go
to the extent of disobeying the order of the Court specifying for what purpose that
amount should be appropriated and took upon himself the task of judging for what it
will serve best. Since he was not able to show or prove that the money intended
and ordered by the Court to be paid for the transportation expenses of the
commissioners was spent for the benefit of the estate as claimed, the administrator
should be held responsible therefor and pay to the oppositors of P375 or the sum
of P93.75.
The records reveal that for the service of summons to the defendants in Civil Case
No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff
of the same province (Exhibit H-7). However, an item for P40 appeared to have
been paid to the Chief of Police on Jalajala allegedly for the service of the same
summons. Appellant claimed that as the defendants in said civil case lived in
remote barrios, the services of the Chief of Police as delegate or agent of the
Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of
161

police are deputy sheriffs ex-officio. The administrator was therefore ordered by the
lower Court to pay of said amount or P10 to the oppositors.
The administrator included in his Report the sum of P550 paid to Atty. Filamor for his
professional services rendered for the defense of the administrator in G.R. No. L4179, which was decided against him, with costs. The lower Court disallowed this
disbursement on the ground that this Court provided that the costs of that litigation
should not be borne by the estate but by the administrator himself, personally.
Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a
verified petition has been filed by the prevailing party, shall be awarded to said
party and will only include his fee and that of his attorney for their appearance
which shall not be more than P40; expenses for the printing and the copies of the
record on appeal; all lawful charges imposed by the Clerk of Court; fees for the
taking of depositions and other expenses connected with the appearance of
witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court
Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to
be chargeable personally against the administrator are not recoverable by the
latter, with more reason this item could not be charged against the Intestate.
Consequently, the administrator should pay the oppositors of the sum of P550 or
P137.50.
(e) The lower Court in its decision required appellant to pay the oppositors the sum
of P1,395 out of the funds still in the possession of the administrator.
In the statement of accounts submitted by the administrator, there appeared a cash
balance of P5,851.17 as of August 31, 1961. From this amount, the sum of
P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338,
both of the Philippine National Bank and in the name of Quintin de Borja, was
deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the
oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of
the amount of P810 to the estate of Juliana de Borja in his order of October 23,
1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the
Court of February 29, 1952, or a total of P3,632.32 after deducting the same from
the cash in the possession of the administrator, there will only be a remainder of
P134.98.
The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the
estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this
credit to the actual cash on hand, there will be a total of P1,034.98, , of which or
P258.74 properly belongs to the oppositors. However, as there is only a residue of
P134.98 in the hands of the administrator and dividing it among the 3 groups of
heirs who are not indebted to the Intestate, each group will receive P44.99, and
Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.
The lower Court ordered the administrator to deliver to the oppositors the amount
of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de
Borja, but as We have arrived at the computation that the three heirs not idebted to
the Intestate ought to receive P44.99 each out of the amount of P134.98, the
oppositors are entitled to the sum of P1,080.91 the amount deducted from them
162

as taxes but which the Court ordered to be returned to them plus P44.99 or a
total of P1,125.90. It appearing however, that ina Joint Motion dated November 27,
1952, duly approved by the Court, the parties agreed to fix the amount at
P1,125.58, as the amount due and said heirs have already received this amount in
satisfaction of this item, no other sum can be chargeable against the administrator.
(f) The probate Court also ordered the administrator to render an accounting of his
administration during the Japanese occupation on the ground that although
appellant maintained that whatever money he received during that period is
worthless, same having been declared without any value, yet during the early years
of the war, or during 1942-43, the Philippine peso was still in circulation, and articles
of prime necessity as rice and firewood commanded high prices and were paid with
jewels or other valuables.
But We must not forget that in his order of December 11, 1945, Judge Pea required
the administrator to render an accounting of his administration only from March 1,
1945, to December of the same year without ordering said administrator to include
therein the occupation period. Although the Court below mentioned the condition
then prevailing during the war-years, We cannot simply presume, in the absence of
proof to that effect, that the administrator received such valuables or properties for
the use or in exchange of any asset or produce of the Intestate, and in view of the
aforementioned order of Judge Pea, which We find no reason to disturb, We see no
practical reason for requiring appellant to account for those occupation years when
everything was affected by the abnormal conditions created by the war. The records
of the Philippine National Bank show that there was a current account jointly in the
names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of
P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and
We do not believe that the oppositors or any of the heirs would be interested in an
accounting for the purpose of dividing or distributing this deposit.
(g) On the sum of P13,294 for administrator's fees:
It is not disputed that the administrator set aside for himself and collected from the
estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a
year. There is no controversy as to the fact that this appropriated amount was taken
without the order or previous approval by the probate Court. Neither is there any
doubt that the administration of the Intestate estate by Crisanto de Borja is far from
satisfactory.
Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and
is entitled also to a certain amount as compensation for the work and services he
has rendered as such. Now, considering the extent and size of the estate, the
amount involved and the nature of the properties under administration, the amount
collected by the administrator for his compensation at P200 a month is not
unreasonable and should therefore be allowed.
It might be argued against this disbursement that the records are replete with
instances of highly irregular practices of the administrator, such as the pretended
ignorance of the necessity of a book or ledger or at least a list of chronological and
dated entries of money or produce the Intestate acquired and the amount of
163

disbursements made for the same properties; that admittedly he did not have even
a list of the names of the lessees to the properties under his administration, nor
even a list of those who owed back rentals, and although We certainly agree with
the probate Court in finding appellant guilty of acts of maladministration,
specifically in mixing the funds of the estate under his administration with his
personal funds instead of keeping a current account for the Intestate in his capacity
as administrator, We are of the opinion that despite these irregular practices for
which he was held already liable and made in some instances to reimburse the
Intestate for amounts that were not properly accounted for, his claim for
compensation as administrator's fees shall be as they are hereby allowed.
Recapitulation. Taking all the matters threshed herein together, the administrator
is held liable to pay to the heirs of Quintin de Borja the following:
Under Paragraphs III and IV:

(a) ............................................. P7,084

..................................
.27

(b) ............................................. 12,175

..................................
.00

(c) ............................................. 16,113

..................................
.95

(d) ............................................. 3,352.

..................................
75

(e) ............................................. 341.74

..................................

(f) .............................................. 3,750.

..................................
00

(g)
532.50
1 ................................................
.....................

377.25
164

2 ................................................
.....................

366.28
3 ................................................
.....................

869.92
4 ................................................
.....................

505.87
5 ................................................
.....................

500.00
6 ................................................
.....................

7-a

93.75
b ................................................
..................

10.00
c ................................................
..................

d ................................................ 137.50
...................

P46,21
0.00

165

In view of the foregoing, the decision appealed from is modified by reducing the
amount that the administrator was sentenced to pay the oppositors to the sum of
P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the
date of the decision appealed from, which is hereby affirmed in all other respects.
Without pronouncement as to costs. It is so ordered.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and
Endencia, JJ., concur.
REPUBLIC OF THE PHILIPPINES,

G.R. No. 154380

Petitioner,

Present:

Davide, Jr., C.J.,

- versus -

(Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.

CIPRIANO ORBECIDO III,

Respondent.

Promulgated:
October 5, 2005

x--------------------------------------------------x

DECISION
QUISUMBING, J.:

166

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

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the
United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage
was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady
Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son
Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized
as an American citizen.

167

Sometime in 2000, Cipriano learned from his son that his wife had obtained a
divorce decree and then married a certain Innocent Stanley. She, Stanley and her
child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry
invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed.
Finding merit in the petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG), sought reconsideration
but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF
THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not
applicable to the instant case because it only applies to a valid mixed marriage; that
is, a marriage celebrated between a Filipino citizen and an alien. The proper
remedy, according to the OSG, is to file a petition for annulment or for legal
separation.[5] Furthermore, the OSG argues there is no law that governs respondents
situation. The OSG posits that this is a matter of legislation and not of judicial
determination.[6]
For his part, respondent admits that Article 26 is not directly applicable to his case
but insists that when his naturalized alien wife obtained a divorce decree which
capacitated her to remarry, he is likewise capacitated by operation of law pursuant
to Section 12, Article II of the Constitution.[7]

168

At the outset, we note that the petition for authority to remarry filed before the trial
court actually constituted a petition for declaratory relief. In this connection, Section
1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed,

will, contract or other written instrument, or whose rights are affected
by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring
an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder.
...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are
adverse; (3) that the party seeking the relief has a legal interest in the controversy;
and (4) that the issue is ripe for judicial determination. [8]
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage
between two Filipino citizens where one later acquired alien citizenship, obtained a
divorce decree, and remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists on a declaration of
his capacity to remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial determination inasmuch as
when respondent remarries, litigation ensues and puts into question the validity of
his second marriage.
169

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family
Code apply to the case of respondent? Necessarily, we must dwell on how this
provision had come about in the first place, and what was the intent of the
legislators in its enactment?

Brief Historical Background

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

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

170

On its face, the foregoing provision does not appear to govern the situation
presented by the case at hand. It seems to apply only to cases where at the time of
the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was solemnized, the parties were
two Filipino citizens, but later on, the wife was naturalized as an American citizen
and subsequently obtained a divorce granting her capacity to remarry, and indeed
she remarried an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings [9] on the Family Code, the
Catholic Bishops Conference of the Philippines (CBCP) registered the following
objections to Paragraph 2 of Article 26:
1.

The rule is discriminatory. It discriminates against those

whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.

2.

This is the beginning of the recognition of the validity of

divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered to
be validly divorced here and can re-marry. We propose that this
be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)

Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the
intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member
of theCivil Code Revision Committee, is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse.

171

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case

of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a
Filipino citizen and a foreigner. The Court held therein that a divorce decree validly
obtained by the alien spouse is valid in the Philippines, and consequently, the
Filipino spouse is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration
of the marriage, the parties were Filipino citizens, but later on, one of them obtains
a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got
married. The wife became a naturalized American citizen in 1954 and obtained a
divorce in the same year. The Court therein hinted, by way of obiter dictum, that a
Filipino divorced by his naturalized foreign spouse is no longer married under
Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of
reason, we hold that Paragraph 2 of Article 26 should be interpreted to include
cases involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen
and obtains a divorce decree. The Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far as necessary the

172

letter of the law. A statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or intent. [12]
If we are to give meaning to the legislative intent to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce is no longer married to the Filipino spouse, then the instant case
must be deemed as coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1.

There is a valid marriage that has been celebrated

between a Filipino citizen and a foreigner; and

2.

A valid divorce is obtained abroad by the alien spouse

capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen,
there was still a valid marriage that has been celebrated between her and Cipriano.
As fate would have it, the naturalized alien wife subsequently obtained a valid
divorce capacitating her to remarry. Clearly, the twin requisites for the application of
Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced
Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the
Filipino spouse is to file either a petition for annulment or a petition for legal
separation. Annulment would be a long and tedious process, and in this particular
173

case, not even feasible, considering that the marriage of the parties appears to
have all the badges of validity. On the other hand, legal separation would not be a
sufficient remedy for it would not sever the marriage tie; hence, the legally
separated Filipino spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted
by respondent concerning the divorce decree and the naturalization of respondents
wife. It is settled rule that one who alleges a fact has the burden of proving it and
mere allegation is not evidence.[13]
Accordingly, for his plea to prosper, respondent herein must prove his allegation
that his wife was naturalized as an American citizen. Likewise, before a foreign
divorce decree can be recognized by our own courts, the party pleading it must
prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.[14] Such foreign law must also be proved as our courts cannot take
judicial notice of foreign laws. Like any other fact, such laws must be alleged and
proved.[15] Furthermore, respondent must also show that the divorce decree allows
his former wife to remarry as specifically required in Article 26. Otherwise, there
would be no evidence sufficient to declare that he is capacitated to enter into
another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the
Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to
allow a Filipino citizen, who has been divorced by a spouse who had acquired
foreign citizenship and remarried, also to remarry. However, considering that in the
present petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondents bare allegations that his wife, who was
naturalized as an American citizen, had obtained a divorce decree and had
174

remarried an American, that respondent is now capacitated to remarry. Such

declaration could only be made properly upon respondents submission of the
aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The
assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET
ASIDE.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-68470 October 8, 1985
ALICE
REYES
VAN
DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional
Trial Court of the National Capital Region Pasay City and RICHARD
UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to
set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case
No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said
case, and her Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while
private respondent is a citizen of the United States; that they were married in
Hongkong in 1972; that, after the marriage, they established their residence in the
Philippines; that they begot two children born on April 4, 1973 and December 18,
1975, respectively; that the parties were divorced in Nevada, United States, in
1982; and that petitioner has re-married also in Nevada, this time to Theodore Van
Dorn.

175

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.

176

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

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:

177

The purpose and effect of a decree of divorce from the bond of

matrimony by a court of competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in
the nature of a penalty. that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the bond of the
former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised jurisdiction over him,
and whose decision he does not repudiate, he is estopped by his own representation
before said Court from asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated against in her
own country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to
dismiss the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F.
LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.

178

What is before us is an appeal from the decision of the Court of

Appeals[1] modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga
City[2] declaring respondent Alicia F. Llorente (herinafter referred to as Alicia), as coowners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter
referred to as Lorenzo) may have acquired during the twenty-five (25) years that
they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United
States Navy from March 10, 1927 to September 30, 1957. [3]
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter
referred to as Paula) were married before a parish priest, Roman Catholic Church, in
Nabua, Camarines Sur.[4]
Before the outbreak of the Pacific War, Lorenzo departed for the United States
and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. [5]
On November 30, 1943, Lorenzo was admitted to United States citizenship and
Certificate of Naturalization No. 5579816 was issued in his favor by the United
States District Court, Southern District of New York. [6]
Upon the liberation of the Philippines by the American Forces in 1945,
Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he
visited the Philippines.[7] He discovered that his wife Paula was pregnant and was
living in and having an adulterous relationship with his brother, Ceferino Llorente. [8]
On December 4, 1945, Paula gave birth to a boy registered in the Office of the
Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child
was not legitimate and the line for the fathers name was left blank. [9]
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946,
the couple drew a written agreement to the effect that (1) all the family allowances
allotted by the United States Navy as part of Lorenzos salary and all other
obligations for Paulas daily maintenance and support would be suspended; (2) they
would dissolve their marital union in accordance with judicial proceedings; (3) they
would make a separate agreement regarding their conjugal property acquired
during their marital life; and (4) Lorenzo would not prosecute Paula for her
adulterous act since she voluntarily admitted her fault and agreed to separate from
Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was
witnessed by Paulas father and stepmother. The agreement was notarized by Notary
Public Pedro Osabel.[10]

179

Lorenzo returned to the United States and on November 16, 1951 filed for
divorce with the Superior Court of the State of California in and for the County of
San Diego. Paula was represented by counsel, John Riley, and actively participated
in the proceedings. On November 27, 1951, the Superior Court of the State of
California, for the County of San Diego found all factual allegations to be true and
issued an interlocutory judgment of divorce. [11]
On December 4, 1952, the divorce decree became final. [12]
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. [13] Apparently,
Alicia had no knowledge of the first marriage even if they resided in the same town
as Paula, who did not oppose the marriage or cohabitation. [14]
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.
Their twenty-five (25) year union produced three children, Raul, Luz and Beverly,
all surnamed Llorente.[16]
[15]

On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was
notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will,
Lorenzo bequeathed all his property to Alicia and their three children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential
house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines,
including ALL the personal properties and other movables or belongings that may
be found or existing therein;
(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children,
Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real
properties whatsoever and wheresoever located, specifically my real properties
located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua,
Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay
Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto
my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares,
my real properties located in Quezon City Philippines, and covered by Transfer
Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered
by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of
Deeds of the province of Rizal, Philippines;

180

(4) That their respective shares in the above-mentioned properties, whether real or
personal properties, shall not be disposed of, ceded, sold and conveyed to any other
persons, but could only be sold, ceded, conveyed and disposed of by and among
themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last
Will and Testament, and in her default or incapacity of the latter to act, any of my
children in the order of age, if of age;
(6) I hereby direct that the executor named herein or her lawful substitute should
served (sic) without bond;
(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions
heretofore executed, signed, or published, by me;
(8) It is my final wish and desire that if I die, no relatives of mine in any degree in
the Llorentes Side should ever bother and disturb in any manner whatsoever my
wife Alicia R. Fortunato and my children with respect to any real or personal
properties I gave and bequeathed respectively to each one of them by virtue of this
Last Will and Testament.[17]
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga,
Camarines Sur, a petition for the probate and allowance of his last will and
testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of
his estate.[18]
On January 18, 1984, the trial court denied the motion for the reason that the
testator Lorenzo was still alive.[19]
On January 24, 1984, finding that the will was duly executed, the trial court
admitted the will to probate.[20]
On June 11, 1985, before the proceedings could be terminated, Lorenzo died. [21]
On September 4, 1985, Paula filed with the same court a petition [22] for letters of
administration over Lorenzos estate in her favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in the conjugal property. [23]
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR755), a petition for the issuance of letters testamentary. [24]

181

On October 14, 1985, without terminating the testate proceedings, the trial
court gave due course to Paulas petition in Sp. Proc. No. IR-888. [25]
On November 6, 13 and 20, 1985, the order was published in the newspaper
Bicol Star.[26]
On May 18, 1987, the Regional Trial Court issued a joint decision, thus:
Wherefore, considering that this court has so found that the divorce decree granted
to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the
marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. This being so the petition of Alicia F. Llorente for the issuance of
letters testamentary is denied. Likewise, she is not entitled to receive any share
from the estate even if the will especially said so her relationship with Lorenzo
having gained the status of paramour which is under Art. 739 (1).
On the other hand, the court finds the petition of Paula Titular Llorente, meritorious,
and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March
13, 1981 as void and declares her entitled as conjugal partner and entitled to onehalf of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is
also entitled to one-third of the estate and then one-third should go to the
illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to
partition in equal shares and also entitled to the remaining free portion in equal
shares.
Petitioner, Paula Llorente is appointed legal administrator of the estate of the
deceased, Lorenzo Llorente. As such let the corresponding letters of administration
issue in her favor upon her filing a bond in the amount (sic) of P100,000.00
conditioned for her to make a return to the court within three (3) months a true and
complete inventory of all goods, chattels, rights, and credits, and estate which shall
at any time come to her possession or to the possession of any other person for her,
and from the proceeds to pay and discharge all debts, legacies and charges on the
same, or such dividends thereon as shall be decreed or required by this court; to
render a true and just account of her administration to the court within one (1) year,
and at any other time when required by the court and to perform all orders of this
court by her to be performed.
On the other matters prayed for in respective petitions for want of evidence could
not be granted.
SO ORDERED.[27]
In time, Alicia filed with the trial court a motion for reconsideration of the
aforequoted decision.[28]
182

On September 14, 1987, the trial court denied Alicias motion for reconsideration
but modified its earlier decision, stating that Raul and Luz Llorente are not children
legitimate or otherwise of Lorenzo since they were not legally adopted by him.
[29]
Amending its decision of May 18, 1987, the trial court declared Beverly Llorente
as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate
and one-third (1/3) of the free portion of the estate. [30]
On September 28, 1987, respondent appealed to the Court of Appeals. [31]
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with
modification the decision of the trial court in this wise:
WHEREFORE, the decision appealed from is hereby AFFIRMED with the
MODIFICATION that Alicia is declared as co-owner of whatever properties she and
the deceased may have acquired during the twenty-five (25) years of cohabitation.
SO ORDERED.[32]
On August 25, 1995, petitioner filed with the Court of Appeals a motion for
reconsideration of the decision. [33]
On March 21, 1996, the Court of Appeals,[34] denied the motion for lack of merit.
Hence, this petition.[35]
The Issue
Stripping the petition of its legalese and sorting through the various arguments
raised,[36] the issue is simple. Who are entitled to inherit from the late Lorenzo N.
Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case
to the trial court for ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long
before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3)
execution of his will; and (4) death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by
foreign law.
The Civil Code clearly provides:
183

Art. 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad.
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 succession, 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 wherein said property may be found.
(emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved.[37]
While the substance of the foreign law was pleaded, the Court of Appeals did
not admit the foreign law. The Court of Appeals and the trial court called to the fore
the renvoi doctrine, where the case was referred back to the law of the decedents
domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not
sufficiently proven, in the same breath it made the categorical, albeit equally
unproven statement that American law follows the domiciliary theory hence,
Philippine law applies when determining the validity of Lorenzos will. [38]
First, there is no such thing as one American law. The "national law" indicated
in Article 16 of the Civil Code cannot possibly apply to general American law. There
is no such law governing the validity of testamentary provisions in the United
States. Each State of the union has its own law applicable to its citizens and in force
only within the State. It can therefore refer to no other than the law of the State of
which the decedent was a resident. [39] Second, there is no showing that the
application of the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained
dispositions in favor of Alice, who in the trial courts opinion was a
mere paramour. The trial court threw the will out, leaving Alice, and her two
children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one
half (1/2) of whatever property she and Lorenzo acquired during their cohabitation,
applying Article 144 of the Civil Code of the Philippines.
184

The hasty application of Philippine law and the complete disregard of the will,
already probated as duly executed in accordance with the formalities of Philippine
law, is fatal, especially in light of the factual and legal circumstances here
obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.[40] we held that owing to the nationality principle
embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being considered contrary to our concept
of public policy and morality. In the same case, the Court ruled that aliens may
obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals,[41] that
once proven that respondent was no longer a Filipino citizen when he obtained the
divorce from petitioner, the ruling in Van Dorn would become applicable and
petitioner could very well lose her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized the divorce obtained by the
respondent in his country, the Federal Republic of Germany. There, we stated that
divorce and its legal effects may be recognized in the Philippines insofar as
respondent is concerned in view of the nationality principle in our civil law on the
status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed.[43] We hold that the divorce obtained by Lorenzo H. Llorente from his first
wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now,
the effects of this divorce (as to the succession to the estate of the decedent) are
matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution. (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his second wife and
children by her is glaringly shown in the will he executed. We do not wish to
185

frustrate his wishes, since he was a foreigner, not covered by our laws on family
rights and duties, status, condition and legal capacity. [44]
Whether the will is intrinsically valid and who shall inherit from Lorenzo are
issues best proved by foreign law which must be pleaded and proved. Whether the
will was executed in accordance with the formalities required is answered by
referring to Philippine law. In fact, the will was duly probated.
As a guide however, the trial court should note that whatever public policy or
good customs may be involved in our system of legitimes, Congress did not intend
to extend the same to the succession of foreign nationals. Congress specifically left
the amount of successional rights to the decedent's national law. [45]
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in
CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of divorce granted in favor of the deceased
Lorenzo N. Llorente by the Superior Court of the State of California in and for the
County of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of
the intrinsic validity of Lorenzo N. Llorentes will and determination of the parties
successional rights allowing proof of foreign law with instructions that the trial court
shall proceed with all deliberate dispatch to settle the estate of the deceased within
the framework of the Rules of Court.
No costs.
SO ORDERED.
G.R. No. 80116 June 30, 1989
IMELDA
MANALAYSAY
PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his
capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.

186

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign
absolute divorce, only to be followed by a criminal infidelity suit of the latter against
the former, provides Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married before
the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal
Republic of Germany. The marriage started auspiciously enough, and the couple
lived together for some time in Malate, Manila where their only child, Isabella Pilapil
Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony
eventuated in private respondent initiating a divorce proceeding against petitioner
in Germany before the Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been living apart since April,
1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch XXXII, on
January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of
the spouses. The custody of the child was granted to petitioner. The records show
that under German law said court was locally and internationally competent for the
divorce proceeding and that the dissolution of said marriage was legally founded on
and authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce
decree, private respondent filed two complaints for adultery before the City Fiscal of
Manila alleging that, while still married to said respondent, petitioner "had an affair
with a certain William Chia as early as 1982 and with yet another man named Jesus
Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the cases on the ground
of insufficiency of evidence. 5 However, upon review, the respondent city fiscal
approved a resolution, dated January 8, 1986, directing the filing of two complaints
187

for adultery against the petitioner. 6 The complaints were accordingly filed and were
eventually raffled to two branches of the Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the
respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil
and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge
Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking
that the aforesaid resolution of respondent fiscal be set aside and the cases against
her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in
Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State
Prosecutor, gave due course to both petitions and directed the respondent city fiscal
to inform the Department of Justice "if the accused have already been arraigned
and if not yet arraigned, to move to defer further proceedings" and to elevate the
entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment
and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo
Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand,
respondent judge merely reset the date of the arraignment in Criminal Case No. 8752435 to April 6, 1987. Before such scheduled date, petitioner moved for the
cancellation of the arraignment and for the suspension of proceedings in said
Criminal Case No. 87-52435 until after the resolution of the petition for review then
pending before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8, 1987. The same order also
directed the arraignment of both accused therein, that is, petitioner and William
Chia. The latter entered a plea of not guilty while the petitioner refused to be
arraigned. Such refusal of the petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and the former was ordered
detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the annulment
of the order of the lower court denying her motion to quash. The petition is
anchored on the main ground that the court is without jurisdiction "to try and decide
the charge of adultery, which is a private offense that cannot be prosecuted de
officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior
to his filing the criminal complaint." 15

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On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23,
1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for
review and, upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints against the
petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not
merely a formal, requirement. 18 While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint
which starts the prosecutory proceeding 19 and without which the court cannot
exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage
the person who can legally file the complaint should be the offended spouse, and
nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the offended party.
The so-called exclusive and successive rule in the prosecution of the first four
offenses above mentioned do not apply to adultery and concubinage. It is significant
that while the State, as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts
of lasciviousness, in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and concubinage. In other words,
only the offended spouse, and no other, is authorized by law to initiate the action
therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the
action, it necessarily follows that such initiator must have the status, capacity or
legal representation to do so at the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a
ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does
not mean that the same requirement and rationale would not apply.
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Understandably, it may not have been found necessary since criminal actions are
generally and fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de
oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action,
or to refrain therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might
prefer to suffer the outrage in silence rather than go through the scandal of a public
trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal
Code thus presupposes that the marital relationship is still subsisting at the time of
the institution of the criminal action for, adultery. This is a logical consequence since
the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring the action would be
determined by his status before or subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time
when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended
spouse must exist where a criminal prosecution can be commenced only by one
who in law can be categorized as possessed of such status. Stated differently and
with reference to the present case, the inquiry ;would be whether it is necessary in
the commencement of a criminal action for adultery that the marital bonds between
the complainant and the accused be unsevered and existing at the time of the
institution of the action by the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in
pari materia with ours, yields the rule that after a divorce has been decreed, the
innocent spouse no longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery. Where, however, proceedings
have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22

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In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the
complaint of the husband or wife.' Section 4932, Code. Though Loftus
was husband of defendant when the offense is said to have been
committed, he had ceased to be such when the prosecution was
begun; and appellant insists that his status was not such as to entitle
him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion
that the unoffending spouse must be such when the prosecution is
commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in
our jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the
person who initiates the adultery case must be an offended spouse, and by this is
meant that he is still married to the accused spouse, at the time of the filing of the
complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal
effects may be recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law on the matter of
status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was
granted by a United States court between Alice Van Dornja Filipina, and her
American husband, the latter filed a civil case in a trial court here alleging that her
business concern was conjugal property and praying that she be ordered to render
an accounting and that the plaintiff be granted the right to manage the business.
Rejecting his pretensions, this Court perspicuously demonstrated the error of such
stance, thus:
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. ...
It is true that owing to the nationality principle embodied in Article 15
of the Civil Code, only Philippine nationals are covered by the policy
against absolute divorces the same being considered contrary to our
concept of public policy and morality. However, aliens may obtain
191

divorces abroad, which may be recognized in the Philippines, provided

they are valid according to their national law. ...
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. ... 25
Under the same considerations and rationale, private respondent, being no longer
the husband of petitioner, had no legal standing to commence the adultery case
under the imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before
the decree of divorce for lack of knowledge, even if true, is of no legal significance
or consequence in this case. When said respondent initiated the divorce proceeding,
he obviously knew that there would no longer be a family nor marriage vows to
protect once a dissolution of the marriage is decreed. Neither would there be a
danger of introducing spurious heirs into the family, which is said to be one of the
reasons for the particular formulation of our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of. The severance of the marital
bond had the effect of dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the
same as Article 333 of the Revised Penal Code, which punished adultery "although
the marriage be afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear that she is entitled to have
her marriage contract declared null and void, until and unless she actually secures a
formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity
because such declaration that the marriage is void ab initio is equivalent to stating
that it never existed. There being no marriage from the beginning, any complaint for
adultery filed after said declaration of nullity would no longer have a leg to stand
on. Moreover, what was consequently contemplated and within the purview of the
decision in said case is the situation where the criminal action for adultery was
filed before the termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of
the marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore
cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case
reveals that the offended spouse therein had duly and seasonably filed a complaint
192

for adultery, although an issue was raised as to its sufficiency but which was
resolved in favor of the complainant. Said case did not involve a factual situation
akin to the one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET
ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 8752435 for lack of jurisdiction. The temporary restraining order issued in this case on
October 21, 1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly
authorized the woman to have sexual relations with others. A contrary ruling would
be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered
the absolute divorce between the American husband and his American wife as valid
and binding in the Philippines on the theory that their status and capacity are
governed by their National law, namely, American law. There is no decision yet of
the Supreme Court regarding the validity of such a divorce if one of the parties, say
an American, is married to a Filipino wife, for then two (2) different nationalities
would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as
valid insofar as the American husband is concerned but void insofar as the Filipino
wife is involved. This results in what he calls a "socially grotesque situation," where
193

a Filipino woman is still married to a man who is no longer her husband. It is the
opinion however, of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the absolute divorce will
be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury
to the people or residents of the forum. Consequently since to recognize the
absolute divorce as valid on the part of the husband would be injurious or prejudicial
to the Filipino wife whose marriage would be still valid under her national law, it
would seem that under our law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be considered void both with respect
to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite
the fact that the husband was an American can with a Filipino wife because in said
case the validity of the divorce insofar as the Filipino wife is concerned was NEVER
put in issue.

Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly
authorized the woman to have sexual relations with others. A contrary ruling would
be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered
the absolute divorce between the American husband and his American wife as valid
and binding in the Philippines on the theory that their status and capacity are
governed by their National law, namely, American law. There is no decision yet of
the Supreme Court regarding the validity of such a divorce if one of the parties, say
an American, is married to a Filipino wife, for then two (2) different nationalities
would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as
valid insofar as the American husband is concerned but void insofar as the Filipino
wife is involved. This results in what he calls a "socially grotesque situation," where
194

a Filipino woman is still married to a man who is no longer her husband. It is the
opinion however, of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the absolute divorce will
be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury
to the people or residents of the forum. Consequently since to recognize the
absolute divorce as valid on the part of the husband would be injurious or prejudicial
to the Filipino wife whose marriage would be still valid under her national law, it
would seem that under our law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be considered void both with respect
to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite
the fact that the husband was an American can with a Filipino wife because in said
case the validity of the divorce insofar as the Filipino wife is concerned was NEVER
put in issue.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK
A. RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction,
provided such decree is valid according to the national law of the
foreigner. However, the divorce decree and the governing personal law of the alien
spouse who obtained the divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgments; hence, like any other facts, both the divorce
decree and the national law of the alien must be alleged and proven according to
our law on evidence.

The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to
nullify the January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the
Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The
assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick
A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both
parties can now remarry under existing and applicable laws to any and/or both
parties.[3]
The assailed Order denied reconsideration of the above-quoted Decision.
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The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian
citizen, in Malabon, Rizal, on March 1, 1987. [4] They lived together as husband and
wife in Australia. On May 18, 1989, [5] a decree of divorce, purportedly dissolving the
marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
Certificate of Australian Citizenship issued by the Australian government.
[6]
Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our
Lady of Perpetual Help Church in Cabanatuan City. [7] In their application for a
marriage license, respondent was declared as single and Filipino. [8]
Starting October 22, 1995, petitioner and respondent lived separately without
prior judicial dissolution of their marriage. While the two were still in Australia, their
conjugal assets were divided on May 16, 1996, in accordance with their Statutory
Declarations secured in Australia. [9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage[10] in the court a quo, on the ground of bigamy -- respondent allegedly had
a prior subsisting marriage at the time he married her on January 12, 1994. She
claimed that she learned of respondents marriage to Editha Samson only in
November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to
petitioner his prior marriage and its subsequent dissolution. [11] He contended that
his first marriage to an Australian citizen had been validly dissolved by a divorce
decree obtained in Australia in 1989; [12] thus, he was legally capacitated to marry
petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the
suit for the declaration of nullity was pending -- respondent was able to secure a
divorce decree from a family court in Sydney, Australia because the marriage ha[d]
irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be dismissed on the
ground that it stated no cause of action. [14] The Office of the Solicitor General agreed
with respondent.[15] The court marked and admitted the documentary evidence of
both parties.[16] After they submitted their respective memoranda, the case was
submitted for resolution.[17]
Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce
issued in Australia was valid and recognized in the Philippines. It deemed the
marriage ended, but not on the basis of any defect in an essential element of the
marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it
based its Decision on the divorce decree obtained by respondent. The Australian
196

divorce had ended the marriage; thus, there was no more marital union to nullify or
annul.
Hence, this Petition.[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in Australia
by the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40,
52 and 53 of the Family Code as the applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our
courts.[19]
The Petition raises five issues, but for purposes of this Decision, we shall
concentrate on two pivotal ones: (1) whether the divorce between respondent and
Editha Samson was proven, and (2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our ruling on these two, there is no
more necessity to take up the rest.

The Courts Ruling

197

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent
and Editha Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the
divorce decree, like any other foreign judgment, may be given recognition in this
jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute
divorce and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family
Code, marriages solemnized abroad are governed by the law of the place where
they were celebrated (the lex loci celebrationis). In effect, the Code requires the
presentation of the foreign law to show the conformity of the marriage in question
to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points
for our discussion. Philippine law does not provide for absolute divorce; hence, our
courts cannot grant it.[21] A marriage between two Filipinos cannot be dissolved even
by a divorce obtained abroad, because of Articles 15 [22] and 17[23] of the Civil Code.
[24]
In mixed marriages involving a Filipino and a foreigner, Article 26 [25] of the Family
Code allows the former to contract a subsequent marriage in case the divorce is
validly obtained abroad by the alien spouse capacitating him or her to remarry. [26] A
divorce obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws. [27]
A comparison between marriage and divorce, as far as pleading and proof are
concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are
valid according to their national law. [28] Therefore, before a foreign divorce decree
can be recognized by our courts, the party pleading it must prove the divorce as a
fact and demonstrate its conformity to the foreign law allowing it. [29] Presentation
solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it
must first comply with the registration requirements under Articles 11, 13 and 52 of
the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil
registrar which shall specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;
198

xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a
public document -- a written official act of an Australian family court. Therefore, it
requires no further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and admitted
in evidence.[30] A divorce obtained abroad is proven by the divorce decree
itself. Indeed the best evidence of a judgment is the judgment itself. [31] The decree
purports to be a written act or record of an act of an official body or tribunal of a
foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document
may be proven as a public or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested [33] by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy must
be (a) accompanied by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to be an
authentic one issued by an Australian family court. [35] However, appearance is not
sufficient; compliance with the aforementioned rules on evidence must be
demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989
was submitted in evidence, counsel for petitioner objected, not to its admissibility,
but only to the fact that it had not been registered in the Local Civil Registry of
Cabanatuan City.[36] The trial court ruled that it was admissible, subject to
petitioners qualification.[37] Hence, it was admitted in evidence and accorded weight
by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia. [38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not
necessary; respondent was no longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.[39]Naturalization is the legal act of adopting
an alien and clothing him with the political and civil rights belonging to a citizen.
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[40]

Naturalized citizens, freed from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an Australian, respondent
severed his allegiance to the Philippines and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon
petitioner, because she is the party challenging the validity of a foreign
judgment. He contends that petitioner was satisfied with the original of the divorce
decree and was cognizant of the marital laws of Australia, because she had lived
and worked in that country for quite a long time. Besides, the Australian divorce law
is allegedly known by Philippine courts; thus, judges may take judicial notice of
foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the
existence of a fact or thing necessary in the prosecution or defense of an action.
[41]
In civil cases, plaintiffs have the burden of proving the material allegations of the
complaint when those are denied by the answer; and defendants have the burden
of proving the material allegations in their answer when they introduce new
matters.[42] Since the divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of
foreign laws.[43] Like any other facts, they must be alleged and proved. Australian
marital laws are not among those matters that judges are supposed to know by
reason of their judicial function. [44] The power of judicial notice must be exercised
with caution, and every reasonable doubt upon the subject should be resolved in
the negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce,
respondent was legally incapacitated to marry her in 1994. Hence, she concludes
that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly
admitted in evidence, adequately established his legal capacity to marry under
Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the
legal dissolution of a lawful union for a cause arising after marriage. But divorces
are of different types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the
marriage, while the second suspends it and leaves the bond in full force. [45]There is
no showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or
provisional judgment of divorce. It is in effect the same as a separation from bed
and board, although an absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is effected. [46]
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Even after the divorce becomes absolute, the court may under some foreign
statutes and practices, still restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from marrying again. The
court may allow a remarriage only after proof of good behavior. [47]
On its face, the herein Australian divorce decree contains a restriction that
reads:
1. A party to a marriage who marries again before this decree becomes
absolute (unless the other party has died) commits the offence of bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by respondent
may have been restricted. It did not absolutely establish his legal capacity to
remarry according to his national law. Hence, we find no basis for the ruling of the
trial court, which erroneously assumed that the Australian divorce ipso
facto restored respondents capacity to remarry despite the paucity of evidence on
this matter.
We also reject the claim of respondent that the divorce decree raises a
disputable presumption or presumptive evidence as to his civil status based on
Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has
been presented on the legal effects of the divorce decree obtained under Australian
laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of
the Family Code was not submitted together with the application for a marriage
license. According to her, its absence is proof that respondent did not have legal
capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by
the national law of the party concerned. The certificate mentioned in Article 21 of
the Family Code would have been sufficient to establish the legal capacity of
respondent, had he duly presented it in court. A duly authenticated and admitted
certificate is prima facie evidence of legal capacity to marry on the part of the alien
applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner. A review of the records before this Court shows that
only the following exhibits were presented before the lower court: (1) for petitioner:
(a) Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage Between Rederick A.
Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in
Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan
City Certification that no information of annulment between Rederick A. Recio and
Editha D. Samson was in its records; [54] and (e) Exhibit E Certificate of Australian
Citizenship of Rederick A. Recio; [55] (2) for respondent: (a) Exhibit 1 -- Amended
Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution of Marriage
in the Family Court of Australia; [57] (c) Exhibit 3 Certificate of Australian Citizenship
of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the
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Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of the

Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October
22, 1995.[60]
Based on the above records, we cannot conclude that respondent, who was then
a naturalized Australian citizen, was legally capacitated to marry petitioner on
January 12, 1994. We agree with petitioners contention that the court a quo erred in
finding that the divorce decree ipso facto clothed respondent with the legal capacity
to remarry without requiring him to adduce sufficient evidence to show the
Australian personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent
null and void on the ground of bigamy. After all, it may turn out that under
Australian law, he was really capacitated to marry petitioner as a direct result of the
divorce decree. Hence, we believe that the most judicious course is to remand this
case to the trial court to receive evidence, if any, which show petitioners legal
capacity to marry petitioner. Failing in that, then the court a quo may declare a
nullity of the parties marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both obtained in the
Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry petitioner; and failing in that,
of declaring the parties marriage void on the ground of bigamy, as above
discussed. No costs.
SO ORDERED.
G.R. No. L-19671

November 29, 1965

PASTOR
B.
TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I.
V.
Binamira
&
F.
B.
Jalandoni & Jarnir for defendants-appellees.

Barria

for

plaintiff-appellant.

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 plaintiffappellant, Pastor B. Tenchavez, for legal separation and one million pesos in
damages against his wife and parents-in-law, the defendants-appellees, Vicente,
Mamerto and Mena,1 all surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:

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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, exarmy 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
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by her parents from communicating with Pastor (Exh. "1-Escao"), but her letters
became less frequent as the days passed. As of June, 1948 the newlyweds were
already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis
Occidental, to escape from the scandal that her marriage stirred in Cebu society.
There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to
annul her marriage. She did not sign the petition (Exh. "B-5"). The case was
dismissed without prejudice because of her non-appearance at the hearing (Exh. "B4").
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.

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The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F.
Escao liable for damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of
Doa Mena Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to
the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the
plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the
defendant-appellee, Vicenta Escao, were validly married to each other, from the
standpoint of our civil law, is clearly established by the record before us. Both
parties were then above the age of majority, and otherwise qualified; and both
consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that
said priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and
the Ordinary, as required by Canon law, is irrelevant in our civil law, not only
because of the separation of Church and State but also because Act 3613 of the
Philippine Legislature (which was the marriage law in force at the time) expressly
provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal
capacity of the contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement,
and, therefore, not essential to give the marriage civil effects, 3 and this is
emphasized by section 27 of said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be
declared invalid because of the absence of one or several of the formal
requirements of this Act if, when it was performed, the spouses or one of
them believed in good faith that the person who solemnized the marriage
was actually empowered to do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their
marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim,
45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that
205

in the case at bar, doubts as to the authority of the solemnizing priest arose only
after the marriage, when Vicenta's parents consulted Father Reynes and the
archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that
her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was
under the undue influence of Pacita Noel, whom she charges to have been in
conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth
of that contention, and assuming that Vicenta's consent was vitiated by fraud and
undue influence, such vices did not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until annulled by a competent civil court.
This was never done, and admittedly, Vicenta's suit for annulment in the Court of
First Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez
and Vicenta Escao remained subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the wife sought and obtained
on 21 October 1950 from the Second Judicial District Court of Washoe County, State
of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the
time the divorce decree was issued, Vicenta Escao, like her husband, was still a
Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil
Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly
provided:
Laws relating to family rights and duties or to the status, condition and legal
capacity of persons are binding upon the citizens of the Philippines, even
though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo
ad vinculo matrimonii; and in fact does not even use that term, to further
emphasize its restrictive policy on the matter, in contrast to the preceding
legislation that admitted absolute divorce on grounds of adultery of the wife or
concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code
only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in
that case, it expressly prescribes that "the marriage bonds shall not be severed"
(Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign
decree of absolute divorce betiveen Filipino citizens could be a patent violation of
the declared public policy of the state, specially in view of the third paragraph of
Article 17 of the Civil Code that prescribes the following:

206

Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, policy and good customs, shall not be
rendered ineffective by laws or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees
would, in effect, give rise to an irritating and scandalous discrimination in favor of
wealthy citizens, to the detriment of those members of our polity whose means do
not permit them to sojourn abroad and obtain absolute divorces outside the
Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have
appeared in the Nevada divorce court. Primarily because the policy of our law
cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and
additionally, because the mere appearance of a non-resident consort cannot confer
jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escao's divorce and second marriage
are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez
must be declared to be existent and undissolved. It follows, likewise, that her refusal
to perform her wifely duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault, for which the husband
is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an
unsubstantiated charge of deceit nor an anonymous letter charging immorality
against the husband constitute, contrary to her claim, adequate excuse. Wherefore,
her marriage and cohabitation with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the
basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid
divorce are in accord with the previous doctrines and rulings of this court on the
subject, particularly those that were rendered under our laws prior to the approval
of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of
legal history, our statutes did not recognize divorces a vinculo before 1917, when
Act 2710 became effective; and the present Civil Code of the Philippines, in
disregarding absolute divorces, in effect merely reverted to the policies on the
subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of
1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the
decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in
that case:

207

As the divorce granted by the French Court must be ignored, it results that
the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905,
could not legalize their relations; and the circumstance that they afterwards
passed for husband and wife in Switzerland until her death is wholly without
legal significance. The claims of the very children to participate in the estate
of Samuel Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The children of
adulterous relations are wholly excluded. The word "descendants" as used in
Article 941 of the Civil Code cannot be interpreted to include illegitimates
born of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the
case at bar, the Gmur case is authority for the proposition that such union is
adulterous in this jurisdiction, and, therefore, justifies an action for legal separation
on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a
person (whether divorced or not) would depend on the territory where the question
arises. Anomalies of this kind are not new in the Philippines, and the answer to them
was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well
known to the members of the Legislature. It is the duty of the Courts to
enforce the laws of divorce as written by Legislature if they are constitutional.
Courts have no right to say that such laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao
and his wife, the late Doa Mena Escao, alienated the affections of their daughter
and influenced her conduct toward her husband are not supported by credible
evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward
him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's
own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec.
on App., pp. 270-274). In these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by his "impulsive
blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to
the Escao house to visit and court Vicenta, and the record shows nothing to prove
that he would not have been accepted to marry Vicente had he openly asked for her
hand, as good manners and breeding demanded. Even after learning of the
clandestine marriage, and despite their shock at such unexpected event, the
parents of Vicenta proposed and arranged that the marriage be recelebrated in
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strict conformity with the canons of their religion upon advice that the previous one
was canonically defective. If no recelebration of the marriage ceremony was had it
was not due to defendants Mamerto Escao and his wife, but to the refusal of
Vicenta to proceed with it. That the spouses Escao did not seek to compel or
induce their daughter to assent to the recelebration but respected her decision, or
that they abided by her resolve, does not constitute in law an alienation of
affections. Neither does the fact that Vicenta's parents sent her money while she
was in the United States; for it was natural that they should not wish their daughter
to live in penury even if they did not concur in her decision to divorce Tenchavez (27
Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and
abetted her original suit for annulment, or her subsequent divorce; she appears to
have acted independently, and being of age, she was entitled to judge what was
best for her and ask that her decisions be respected. Her parents, in so doing,
certainly cannot be charged with alienation of affections in the absence of malice or
unworthy motives, which have not been shown, good faith being always presumed
until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes
between the right of a parent to interest himself in the marital affairs of his
child and the absence of rights in a stranger to intermeddle in such affairs.
However, such distinction between the liability of parents and that of
strangers is only in regard to what will justify interference. A parent isliable
for alienation of affections resulting from his own malicious conduct, as where
he wrongfully entices his son or daughter to leave his or her spouse, but he is
not liable unless he acts maliciously, without justification and from unworthy
motives. He is not liable where he acts and advises his child in good faith with
respect to his child's marital relations in the interest of his child as he sees it,
the marriage of his child not terminating his right and liberty to interest
himself in, and be extremely solicitous for, his child's welfare and happiness,
even where his conduct and advice suggest or result in the separation of the
spouses or the obtaining of a divorce or annulment, or where he acts under
mistake or misinformation, or where his advice or interference are indiscreet
or unfortunate, although it has been held that the parent is liable for
consequences resulting from recklessness. He may in good faith take his child
into his home and afford him or her protection and support, so long as he has
not maliciously enticed his child away, or does not maliciously entice or cause
him or her to stay away, from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married daughter, but it is
equally applicable in the case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social
discrimination and with having exerted efforts and pressured her to seek annulment
209

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;

210

(4) That an action for alienation of affections against the parents of one consort
does not lie in the absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal
separation from defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant
Tenchavez the amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao
and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages
and attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P.
and Zaldivar, JJ., concur.
REPUBLIC OF THE PHILIPPINES,
Petitioner,

G.R. No. 152577

Present:

PUNO,
Chairman,
AUSTRIA-MARTINEZ,
- versus-

CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
Promulgated:

CRASUS L. IYOY,

September 21, 2005

R e s p o n d e n t.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

211

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,
petitioner Republic of the Philippines, represented by the Office of the Solicitor
General, prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CV
No. 62539, dated 30 July 2001,[1] affirming the Judgment of the Regional Trial Court
(RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998,
[2]

declaring the marriage between respondent Crasus L. Iyoy and Fely Ada Rosal-

Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines.

The proceedings before the RTC commenced with the filing of a Complaint [3] for
declaration of nullity of marriage by respondent Crasus on 25 March 1997.
According to the said Complaint, respondent Crasus married Fely on 16 December
1961 at Bradford Memorial Church, Jones Avenue, Cebu City. As a result of their
union, they had five children Crasus, Jr., Daphne, Debbie, Calvert, and Carlos who
are now all of legal ages. After the celebration of their marriage, respondent Crasus
discovered that Fely was hot-tempered, a nagger and extravagant. In 1984, Fely left
the Philippines for the United States of America (U.S.A.), leaving all of their five
children, the youngest then being only six years old, to the care of respondent
Crasus. Barely a year after Fely left for the U.S.A., respondent Crasus received a
letter from her requesting that he sign the enclosed divorce papers; he disregarded
the said request. Sometime in 1985, respondent Crasus learned, through the letters
sent by Fely to their children, that Fely got married to an American, with whom she
eventually had a child. In 1987, Fely came back to the Philippines with her American
family, staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother
212

to talk to Fely because he was afraid he might not be able to bear the sorrow and
the pain she had caused him. Fely returned to the Philippines several times more: in
1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain
operation of their fourth child, Calvert; and in 1995, for unknown reasons. Fely
continued to live with her American family in New Jersey, U.S.A. She had been
openly using the surname of her American husband in the Philippines and in the
U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she
was named as Mrs. Fely Ada Micklus. At the time the Complaint was filed, it had
been 13 years since Fely left and abandoned respondent Crasus, and there was no
more possibility of reconciliation between them. Respondent Crasus finally alleged
in his Complaint that Felys acts brought danger and dishonor to the family, and
clearly demonstrated her psychological incapacity to perform the essential
obligations of marriage. Such incapacity, being incurable and continuing, constitutes
a ground for declaration of nullity of marriage under Article 36, in relation to Articles
68, 70, and 72, of the Family Code of the Philippines.

Fely filed her Answer and Counterclaim [4] with the RTC on 05 June 1997. She
asserted therein that she was already an American citizen since 1988 and was now
married to Stephen Micklus. While she admitted being previously married to
respondent Crasus and having five children with him, Fely refuted the other
allegations made by respondent Crasus in his Complaint. She explained that she
was no more hot-tempered than any normal person, and she may had been
indignant at respondent Crasus on certain occasions but it was because of the
latters drunkenness, womanizing, and lack of sincere effort to find employment and
to contribute to the maintenance of their household. She could not have been
extravagant since the family hardly had enough money for basic needs. Indeed, Fely
left for abroad for financial reasons as respondent Crasus had no job and what she
was then earning as the sole breadwinner in the Philippines was insufficient to
213

support their family. Although she left all of her children with respondent Crasus,
she continued to provide financial support to them, as well as, to respondent
Crasus. Subsequently, Fely was able to bring her children to the U.S.A., except for
one, Calvert, who had to stay behind for medical reasons. While she did file for
divorce from respondent Crasus, she denied having herself sent a letter to
respondent Crasus requesting him to sign the enclosed divorce papers. After
securing a divorce from respondent Crasus, Fely married her American husband and
acquired American citizenship. She argued that her marriage to her American
husband was legal because now being an American citizen, her status shall be
governed by the law of her present nationality. Fely also pointed out that
respondent Crasus himself was presently living with another woman who bore him a
child. She also accused respondent Crasus of misusing the amount of P90,000.00
which she advanced to him to finance the brain operation of their son, Calvert. On
the basis of the foregoing, Fely also prayed that the RTC declare her marriage to
respondent Crasus null and void; and that respondent Crasus be ordered to pay to
Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary
damages, attorneys fees, and litigation expenses.

After respondent Crasus and Fely had filed their respective Pre-Trial Briefs, [5] the RTC
afforded both parties the opportunity to present their evidence. Petitioner Republic
participated in the trial through the Provincial Prosecutor of Cebu. [6]

Respondent Crasus submitted the following pieces of evidence in support of his

Complaint: (1) his own testimony on 08 September 1997, in which he essentially
reiterated the allegations in his Complaint; [7] (2) the Certification, dated 13 April

214

1989, by the Health Department of Cebu City, on the recording of the Marriage
Contract between respondent Crasus and Fely in the Register of Deeds, such
marriage celebration taking place on 16 December 1961; [8] and (3) the invitation to
the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American
husbands surname, Micklus.[9]

Felys counsel filed a Notice, [10] and, later on, a Motion,[11] to take the deposition of
witnesses, namely, Fely and her children, Crasus, Jr. and Daphne, upon written
interrogatories, before the consular officers of the Philippines in New York and
California, U.S.A, where the said witnesses reside. Despite the Orders [12] and
Commissions[13]issued by the RTC to the Philippine Consuls of New York and
California,

U.S.A.,

to

take

the

depositions

of

the

witnesses

upon

written

interrogatories, not a single deposition was ever submitted to the RTC. Taking into
account that it had been over a year since respondent Crasus had presented his
evidence and that Fely failed to exert effort to have the case progress, the RTC
issued an Order, dated 05 October 1998, [14] considering Fely to have waived her
right to present her evidence. The case was thus deemed submitted for decision.

Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the
marriage of respondent Crasus and Fely null and void ab initio, on the basis of the
following findings

The ground bearing defendants psychological incapacity

deserves a reasonable consideration. As observed, plaintiffs testimony
is decidedly credible. The Court finds that defendant had indeed
exhibited unmistakable signs of psychological incapacity to comply
with her marital duties such as striving for family unity, observing
fidelity, mutual love, respect, help and support. From the evidence
presented, plaintiff adequately established that the defendant
practically abandoned him. She obtained a divorce decree in the
United States of America and married another man and has establish
215

[sic] another family of her own. Plaintiff is in an anomalous situation,

wherein he is married to a wife who is already married to another man
in another country.

Defendants intolerable traits may not have been apparent or

manifest before the marriage, the FAMILY CODE nonetheless allows the
annulment of the marriage provided that these were eventually
manifested after the wedding. It appears to be the case in this
instance.

Certainly defendants posture being an irresponsible wife erringly

reveals her very low regard for that sacred and inviolable institution of
marriage which is the foundation of human society throughout the
civilized world. It is quite evident that the defendant is bereft of the
mind, will and heart to comply with her marital obligations, such
incapacity was already there at the time of the marriage in question is
shown by defendants own attitude towards her marriage to plaintiff.

In sum, the ground invoked by plaintiff which is defendants

psychological incapacity to comply with the essential marital
obligations which already existed at the time of the marriage in
question has been satisfactorily proven. The evidence in herein case
establishes the irresponsibility of defendant Fely Ada Rosal Iyoy, firmly.

Going over plaintiffs testimony which is decidedly credible, the

Court finds that the defendant had indeed exhibited unmistakable
signs of such psychological incapacity to comply with her marital
obligations. These are her excessive disposition to material things over
and above the marital stability. That such incapacity was already there
at the time of the marriage in question is shown by defendants own
attitude towards her marriage to plaintiff. And for these reasons there
is a legal ground to declare the marriage of plaintiff Crasus L. Iyoy and
defendant Fely Ada Rosal Iyoy null and void ab initio.[15]

216

Petitioner Republic, believing that the afore-quoted Judgment of the RTC was
contrary to law and evidence, filed an appeal with the Court of Appeals. The
appellate court, though, in its Decision, dated 30 July 2001, affirmed the appealed
Judgment of the RTC, finding no reversible error therein. It even offered additional
ratiocination for declaring the marriage between respondent Crasus and Fely null
and void, to wit

Defendant secured a divorce from plaintiff-appellee abroad, has

remarried, and is now permanently residing in the United States.
Plaintiff-appellee categorically stated this as one of his reasons for
seeking the declaration of nullity of their marriage

Article 26 of the Family Code provides:

Art. 26. All marriages solemnized outside the

Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as
such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.

WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN

AND A FOREIGNER IS VALIDLY CELEBRATED AND A
DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY
THE ALIEN SPOUSE CAPACITATING HIM OR HER TO
REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE
CAPACITY TO REMARRY UNDER PHILIPPINE LAW.

The rationale behind the second paragraph of the above-quoted

provision is to avoid the absurd and unjust situation of a Filipino citizen
still being married to his or her alien spouse, although the latter is no
longer married to the Filipino spouse because he or she has obtained a
divorce abroad. In the case at bench, the defendant has undoubtedly
acquired her American husbands citizenship and thus has become an
217

alien as well. This Court cannot see why the benefits of Art. 26
aforequoted can not be extended to a Filipino citizen whose spouse
eventually embraces another citizenship and thus becomes herself an
alien.

It would be the height of unfairness if, under these

circumstances, plaintiff would still be considered as married to
defendant, given her total incapacity to honor her marital covenants to
the former. To condemn plaintiff to remain shackled in a marriage that
in truth and in fact does not exist and to remain married to a spouse
who is incapacitated to discharge essential marital covenants, is verily
to condemn him to a perpetual disadvantage which this Court finds
abhorrent and will not countenance. Justice dictates that plaintiff be
given relief by affirming the trial courts declaration of the nullity of the
marriage of the parties.[16]

After the Court of Appeals, in a Resolution, dated 08 March 2002, [17] denied its
Motion for Reconsideration, petitioner Republic filed the instant Petition before this
Court, based on the following arguments/grounds

I. Abandonment by and sexual infidelity of respondents wife do

not per se constitute psychological incapacity.

II. The Court of Appeals has decided questions of substance not

in accord with law and jurisprudence considering that the Court of
Appeals committed serious errors of law in ruling that Article 26,
paragraph 2 of the Family Code is inapplicable to the case at bar. [18]

218

In his Comment[19] to the Petition, respondent Crasus maintained that Felys

psychological incapacity was clearly established after a full-blown trial, and that
paragraph 2 of Article 26 of the Family Code of the Philippines was indeed
applicable to the marriage of respondent Crasus and Fely, because the latter had
already become an American citizen. He further questioned the personality of
petitioner Republic, represented by the Office of the Solicitor General, to institute
the instant Petition, because Article 48 of the Family Code of the Philippines
authorizes the prosecuting attorney or fiscal assigned to the trial court, not the
Solicitor General, to intervene on behalf of the State, in proceedings for annulment
and declaration of nullity of marriages.

After having reviewed the records of this case and the applicable laws and
jurisprudence, this Court finds the instant Petition to be meritorious.

The totality of evidence presented during trial is insufficient to support

the finding of psychological incapacity of Fely.

219

Article 36, concededly one of the more controversial provisions of the Family
Code of the Philippines, reads

ART. 36. A marriage contracted by any party who, at the time of

the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.

Issues most commonly arise as to what constitutes psychological incapacity. In a

series of cases, this Court laid down guidelines for determining its existence.

In Santos v. Court of Appeals,[20] the term psychological incapacity was defined, thus

. . . [P]sychological incapacity should refer to no less than a mental

(not physical) incapacity that causes a party to be truly cognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has
been to confine the meaning of psychological incapacity to the most
serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. This psychological condition must exist at the time the
marriage is celebrated[21]

220

The psychological incapacity must be characterized by

(a)

Gravity It must be grave or serious such that the party would be

incapable of carrying out the ordinary duties required in a marriage;

(b)

Juridical Antecedence It must be rooted in the history of the party

antedating the marriage, although the overt manifestations may emerge only after
the marriage; and
(c)

Incurability It must be incurable or, even if it were otherwise, the

cure would be beyond the means of the party involved. [22]

More definitive guidelines in the interpretation and application of Article 36 of

the Family Code of the Philippines were handed down by this Court in Republic v.
Court of Appeals and Molina,[23] which, although quite lengthy, by its significance,
deserves to be reproduced below

(1) The burden of proof to show the nullity of the marriage

belongs to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its dissolution
and nullity. This is rooted in the fact that both our Constitution and our
laws cherish the validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family, recognizing it as
the foundation of the nation. It decrees marriage as legally inviolable,
thereby protecting it from dissolution at the whim of the parties. Both
the family and marriage are to be protected by the state.

The Family Code echoes this constitutional edict on marriage

and the family and emphasizes their permanence, inviolability and
solidarity.

221

(2) The root cause of the psychological incapacity must be (a)

medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be
psychological - not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court that
the parties, or one of them, was mentally or psychically ill to such an
extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so
as not to limit the application of the provision under the principle
of ejusdem generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully explained.
Expert evidence may be given by qualified psychiatrists and clinical
psychologists.

(3) The incapacity must be proven to be existing at the time of

the celebration of the marriage. The evidence must show that the
illness was existing when the parties exchanged their I do's. The
manifestation of the illness need not be perceivable at such time, but
the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or

clinically permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations,
not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job

(5) Such illness must be grave enough to bring about the

disability of the party to assume the essential obligations of marriage.
Thus, mild characteriological peculiarities, mood changes, occasional
emotional outbursts cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, not a refusal,
neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates the
person from really accepting and thereby complying with the
obligations essential to marriage.
222

(6) The essential marital obligations must be those embraced by

Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence and included in
the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not controlling
or decisive, should be given great respect by our courts

(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein
his reasons for his agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting attorney,
shall submit to the court such certification within fifteen (15) days from
the date the case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095.[24]

A later case, Marcos v. Marcos,[25] further clarified that there is no requirement

that the defendant/respondent spouse should be personally examined by a
physician or psychologist as a condition sine qua non for the declaration of nullity of
marriage based on psychological incapacity.

Such

psychological incapacity,

however, must be established by the totality of the evidence presented during the
trial.

223

Using the guidelines established by the afore-mentioned jurisprudence, this

Court finds that the totality of evidence presented by respondent Crasus failed
miserably to establish the alleged psychological incapacity of his wife Fely;
therefore, there is no basis for declaring their marriage null and void under Article
36 of the Family Code of the Philippines.

The only substantial evidence presented by respondent Crasus before the

RTC was his testimony, which can be easily put into question for being self-serving,
in the absence of any other corroborating evidence. He submitted only two other
pieces of evidence: (1) the Certification on the recording with the Register of Deeds
of the Marriage Contract between respondent Crasus and Fely, such marriage being
celebrated on 16 December 1961; and (2) the invitation to the wedding of Crasus,
Jr., their eldest son, in which Fely used her American husbands surname. Even
considering the admissions made by Fely herself in her Answer to respondent
Crasuss Complaint filed with the RTC, the evidence is not enough to convince this
Court that Fely had such a grave mental illness that prevented her from assuming
the essential obligations of marriage.

It is worthy to emphasize that Article 36 of the Family Code of the Philippines

contemplates downright incapacity or inability to take cognizance of and to assume
the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill
will, on the part of the errant spouse. [26] Irreconcilable differences, conflicting
personalities, emotional immaturity and irresponsibility, physical abuse, habitual

224

alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also

do not warrant a finding of psychological incapacity under the said Article. [27]

As has already been stressed by this Court in previous cases, Article 36 is not to be
confused with a divorce law that cuts the marital bond at the time the causes
therefore manifest themselves. It refers to a serious psychological illness afflicting a
party even before the celebration of marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and responsibilities of the
matrimonial bond one is about to assume.[28]

The evidence may have proven that Fely committed acts that hurt and embarrassed
respondent Crasus and the rest of the family. Her hot-temper, nagging, and
extravagance; her abandonment of respondent Crasus; her marriage to an
American; and even her flaunting of her American family and her American
surname, may indeed be manifestations of her alleged incapacity to comply with
her marital obligations; nonetheless, the root cause for such was not identified. If
the root cause of the incapacity was not identified, then it cannot be satisfactorily
established as a psychological or mental defect that is serious or grave; neither
could it be proven to be in existence at the time of celebration of the marriage; nor
that it is incurable. While the personal examination of Fely by a psychiatrist or
psychologist is no longer mandatory for the declaration of nullity of their marriage
under Article 36 of the Family Code of the Philippines, by virtue of this Courts ruling
in Marcos v. Marcos,[29] respondent Crasus must still have complied with the
requirement laid down in Republic v. Court of Appeals and Molina [30] that the root
225

cause of the incapacity be identified as a psychological illness and that its

incapacitating nature be fully explained.

In any case, any doubt shall be resolved in favor of the validity of the marriage.
[31]

No less than the Constitution of 1987 sets the policy to protect and strengthen

the family as the basic social institution and marriage as the foundation of the
family.[32]

II
Article 26, paragraph 2 of the Family Code of the Philippines is not
applicable to the case at bar.

According to Article 26, paragraph 2 of the Family Code of the Philippines

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
As it is worded, Article 26, paragraph 2, refers to a special situation wherein
one of the couple getting married is a Filipino citizen and the other a foreigner at
the time the marriage was celebrated. By its plain and literal interpretation,

226

the said provision cannot be applied to the case of respondent Crasus and
his wife Fely because at the time Fely obtained her divorce, she was still a
Filipino citizen. Although the exact date was not established, Fely herself admitted
in her Answer filed before the RTC that she obtained a divorce from respondent
Crasus sometime after she left for the United States in 1984, after which she
married her American husband in 1985. In the same Answer, she alleged that she
had been an American citizen since 1988. At the time she filed for divorce, Fely
was still a Filipino citizen, and pursuant to the nationality principle embodied in
Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws
on family rights and duties, status, condition, and legal capacity, even when she
was already living abroad. Philippine laws, then and even until now, do not allow
and recognize divorce between Filipino spouses. Thus, Fely could not have validly
obtained a divorce from respondent Crasus.

III
The Solicitor General is authorized to intervene, on behalf of the
Republic, in proceedings for annulment and declaration of nullity of
marriages.

Invoking Article 48 of the Family Code of the Philippines, respondent Crasus

argued that only the prosecuting attorney or fiscal assigned to the RTC may
intervene on behalf of the State in proceedings for annulment or declaration of

227

nullity of marriages; hence, the Office of the Solicitor General had no personality to
file the instant Petition on behalf of the State. Article 48 provides

ART. 48. In all cases of annulment or declaration of absolute

nullity of marriage, the Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.

That Article 48 does not expressly mention the Solicitor General does not bar him or
his Office from intervening in proceedings for annulment or declaration of nullity of
marriages. Executive Order No. 292, otherwise known as the Administrative Code of
1987, appoints the Solicitor General as the principal law officer and legal defender
of the Government.[33] His Office is tasked to represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. The
Office of the Solicitor General shall constitute the law office of the Government and,
as such, shall discharge duties requiring the services of lawyers. [34]

The intent of Article 48 of the Family Code of the Philippines is to ensure that the
interest of the State is represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion between the parties, or
the fabrication or suppression of evidence; and, bearing in mind that the Solicitor
228

General is the principal law officer and legal defender of the land, then his
intervention in such proceedings could only serve and contribute to the realization
of such intent, rather than thwart it.

Furthermore, the general rule is that only the Solicitor General is authorized to bring
or defend actions on behalf of the People or the Republic of the Philippines once the
case is brought before this Court or the Court of Appeals. [35] While it is the
prosecuting attorney or fiscal who actively participates, on behalf of the State, in a
proceeding for annulment or declaration of nullity of marriage before the RTC, the
Office of the Solicitor General takes over when the case is elevated to the Court of
Appeals or this Court. Since it shall be eventually responsible for taking the case to
the appellate courts when circumstances demand, then it is only reasonable and
practical that even while the proceeding is still being held before the RTC, the Office
of the Solicitor General can already exercise supervision and control over the
conduct of the prosecuting attorney or fiscal therein to better guarantee the
protection of the interests of the State.

In fact, this Court had already recognized and affirmed the role of the Solicitor
General in several cases for annulment and declaration of nullity of marriages that
were appealed before it, summarized as follows in the case of Ancheta v. Ancheta[36]

In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this
Court laid down the guidelines in the interpretation and application of
Art. 48 of the Family Code, one of which concerns the role of the
229

prosecuting attorney or fiscal and the Solicitor General to appear as

counsel for the State:

(8) The trial court must order the prosecuting

attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which
will be quoted in the decision, briefly stating therein his
reasons for his agreement or opposition, as the case may
be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the
case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095. [Id.,
at 213]

This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285

(2001)] reiterated its pronouncement in Republic v. Court of
Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State [37]

Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages, [38] which became effective on
15 March 2003, should dispel any other doubts of respondent Crasus as to the
authority of the Solicitor General to file the instant Petition on behalf of the State.
The Rule recognizes the authority of the Solicitor General to intervene and take part
in the proceedings for annulment and declaration of nullity of marriages before the

230

RTC and on appeal to higher courts. The pertinent provisions of the said Rule are
reproduced below

Sec. 5. Contents and form of petition.

(4) It shall be filed in six copies. The petitioner shall serve a copy
of the petition on the Office of the Solicitor General and the Office of
the City or Provincial Prosecutor, within five days from the date of its
filing and submit to the court proof of such service within the same
period.

Sec. 18. Memoranda. The court may require the parties and the
public prosecutor, in consultation with the Office of the Solicitor
General, to file their respective memoranda in support of their claims
within fifteen days from the date the trial is terminated. It may require
the Office of the Solicitor General to file its own memorandum if the
case is of significant interest to the State. No other pleadings or papers
may be submitted without leave of court. After the lapse of the period
herein provided, the case will be considered submitted for decision,
with or without the memoranda.

Sec. 19. Decision.

(2) The parties, including the Solicitor General and the public
prosecutor, shall be served with copies of the decision personally or by
registered mail. If the respondent summoned by publication failed to
231

appear in the action, the dispositive part of the decision shall be

published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen

days from notice to the parties. Entry of judgment shall be made if no
motion for reconsideration or new trial, or appeal is filed by any of the
parties, the public prosecutor, or the Solicitor General.

Sec. 20. Appeal.

(2) Notice of Appeal. An aggrieved party or the Solicitor General

may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of denial of the motion for reconsideration or new
trial. The appellant shall serve a copy of the notice of appeal on the
adverse parties.

Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC
and the Court of Appeals, and sustains the validity and existence of the marriage
between respondent Crasus and Fely. At most, Felys abandonment, sexual infidelity,
and bigamy, give respondent Crasus grounds to file for legal separation under
Article 55 of the Family Code of the Philippines, but not for declaration of nullity of
marriage under Article 36 of the same Code. While this Court commiserates with
respondent Crasus for being continuously shackled to what is now a hopeless and
232

loveless marriage, this is one of those situations where neither law nor society can
provide the specific answer to every individual problem. [39]

WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of
Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the
RTC of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is
REVERSED and SET ASIDE.
The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid
and subsisting.

SO ORDERED.
MARIA
REBECCA
BAYOT,
Petitioner,

MAKAPUGAY

G.R. No. 155635

Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

- versus THE
HONORABLE
COURT
OF
APPEALS and VICENTE MADRIGAL
BAYOT,
Respondents.
x-------------------------------------------x
MARIA
REBECCA
MAKAPUGAY
BAYOT,
Petitioner,

G.R. No. 163979

Promulgated:
November 7, 2008

- versus -

VICENTE MADRIGAL BAYOT,

Respondent.
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case

233

Before us are these two petitions interposed by petitioner Maria Rebecca

Makapugay Bayot impugning certain issuances handed out by the Court of Appeals
(CA) in CA-G.R. SP No. 68187.
In the first, a petition for certiorari [1] under Rule 65 and docketed as G.R. No.
155635, Rebecca assails and seeks to nullify the April 30, 2002 Resolution [2] of the
CA, as reiterated in another Resolution of September 2, 2002, [3] granting a writ of
preliminary injunction in favor of private respondent Vicente Madrigal Bayot staving
off the trial courts grant of support pendente lite to Rebecca.
The second, a petition for review under Rule 45, [4] docketed G.R. No.
163979, assails the March 25, 2004 Decision[5] of the CA, (1) dismissing Civil Case
No. 01-094, a suit for declaration of absolute nullity of marriage with application for
support commenced by Rebecca against Vicente before the Regional Trial Court
(RTC) in Muntinlupa City; and (2) setting aside certain orders and a resolution issued
by the RTC in the said case.
Per its Resolution of August 11, 2004, the Court ordered the consolidation of
both cases.
The Facts
Vicente and Rebecca were married on April 20, 1979 in Sanctuario de San
Jose, Greenhills, Mandaluyong City. On its face, the Marriage Certificate [6] identified
Rebecca, then 26 years old, to be an American citizen [7] born in Agaa, Guam, USA to
Cesar Tanchiong Makapugay, American, and Helen Corn Makapugay, American.
On November 27, 1982 in San Francisco, California, Rebecca gave birth to
Marie Josephine Alexandra or Alix. From then on, Vicente and Rebeccas marital
relationship seemed to have soured as the latter, sometime in 1996, initiated
divorce proceedings in the Dominican Republic. Before the Court of the First
Instance of the Judicial District of Santo Domingo, Rebecca personally appeared,
while Vicente was duly represented by counsel. On February 22, 1996, the
Dominican court issued Civil Decree No. 362/96,[8]ordering the dissolution of the
couples marriage and leaving them to remarry after completing the legal
requirements, but giving them joint custody and guardianship over Alix.Over a year
later, the same court would issue Civil Decree No. 406/97,[9] settling the couples
property relations pursuant to an Agreement [10] they executed on December 14,
1996. Said agreement specifically stated that the conjugal property which they
acquired during their marriage consist[s] only of the real property and all the
improvements and personal properties therein contained at 502 Acacia Avenue,
Alabang, Muntinlupa.[11]

Civil

Meanwhile, on March 14, 1996, or less than a month from the issuance of
Decree No. 362/96, Rebecca filed with the Makati City RTC a
234

petition[12] dated January 26, 1996, with attachments, for declaration of nullity of
marriage, docketed as Civil Case No. 96-378. Rebecca, however, later moved[13] and
secured approval[14] of the motion to withdraw the petition.
On May
29,
1996,
Rebecca
executed
an
Affidavit
of
[15]
Acknowledgment
stating under oath that she is an American citizen; that, since
1993, she and Vicente have been living separately; and that she is carrying a child
not of Vicente.
On March 21, 2001, Rebecca filed another petition, this time before the
Muntinlupa City RTC, for declaration of absolute nullity of marriage [16] on the ground
of Vicentes alleged psychological incapacity. Docketed as Civil Case No. 01-094 and
entitled as Maria Rebecca Makapugay Bayot v. Vicente Madrigal Bayot, the petition
was eventually raffled to Branch 256 of the court. In it, Rebecca also sought
the dissolution of the conjugal partnership of gains with application for
support pendente lite for her and Alix. Rebecca also prayed that Vicente be ordered
to pay a permanent monthly support for their daughter Alix in the amount of PhP
220,000.
On June 8, 2001, Vicente filed a Motion to Dismiss [17] on, inter alia, the
grounds of lack of cause of action and that the petition is barred by the prior
judgment of divorce.Earlier, on June 5, 2001, Rebecca filed and moved for the
allowance of her application for support pendente lite.
To the motion to dismiss, Rebecca interposed an opposition, insisting on her
Filipino citizenship, as affirmed by the Department of Justice (DOJ), and that,
therefore, there is no valid divorce to speak of.
Meanwhile, Vicente, who had in the interim contracted another marriage, and
Rebecca commenced several criminal complaints against each other. Specifically,
Vicente filed adultery and perjury complaints against Rebecca. Rebecca, on the
other hand, charged Vicente with bigamy and concubinage.
Ruling of the RTC on the Motion to Dismiss
and Motion for Support Pendente Lite
On August 8, 2001, the RTC issued an Order [18] denying Vicentes motion to
dismiss Civil Case No. 01-094 and granting Rebeccas application for
support pendente lite, disposing as follows:
Wherefore, premises considered, the Motion to Dismiss filed by
the respondent is DENIED. Petitioners Application in Support of the
235

Motion for Support Pendente Lite is hereby GRANTED. Respondent is

hereby ordered to remit the amount of TWO HUNDRED AND TWENTY
THOUSAND PESOS (Php 220,000.00) a month to Petitioner as support
for the duration of the proceedings relative to the instant Petition.
SO ORDERED.[19]

The RTC declared, among other things, that the divorce judgment invoked by
Vicente as bar to the petition for declaration of absolute nullity of marriage is a
matter of defense best taken up during actual trial. As to the grant of
support pendente lite, the trial court held that a mere allegation of adultery against
Rebecca does not operate to preclude her from receiving legal support.
Following the denial[20] of his motion for reconsideration of the above August
8, 2001 RTC order, Vicente went to the CA on a petition for certiorari, with a prayer
for the issuance of a temporary restraining order (TRO) and/or writ of preliminary
injunction.[21] His petition was docketed as CA-G.R. SP No. 68187.
Grant of Writ of Preliminary Injunction by the CA
On January 9, 2002, the CA issued the desired TRO. [22] On April 30, 2002, the
appellate court granted, via a Resolution, the issuance of a writ of preliminary
injunction, the decretal portion of which reads:
IN VIEW OF ALL THE FOREGOING, pending final resolution of the
petition at bar, let the Writ of Preliminary Injunction be ISSUED in this
case, enjoining the respondent court from implementing the assailed
Omnibus Order dated August 8, 2001 and the Order dated November
20, 2001, and from conducting further proceedings in Civil Case No.
01-094, upon the posting of an injunction bond in the amount of
P250,000.00.
SO ORDERED.[23]

Rebecca
moved[24] but
was
denied
reconsideration
of
the
aforementioned April 30, 2002 resolution. In the meantime, on May 20, 2002, the
preliminary injunctive writ[25] was issued. Rebecca also moved for reconsideration of
this issuance, but the CA, by Resolution dated September 2, 2002, denied her
motion.

236

The adverted CA resolutions of April 30, 2002 and September 2, 2002 are
presently being assailed in Rebeccas petition for certiorari, docketed under G.R.
No. 155635.
Ruling of the CA
Pending resolution of G.R. No. 155635, the CA, by a Decision dated March
25, 2004, effectively dismissed Civil Case No. 01-094, and set aside incidental
orders the RTC issued in relation to the case. The fallo of the presently assailed CA
Decision reads:
IN VIEW OF THE FOREGOING, the petition is GRANTED. The
Omnibus Order dated August 8, 2001 and the Order dated November
20,
2001
are REVERSED and SET
ASIDE and
a
new
one
entered DISMISSING Civil Case No. 01-094, for failure to state a cause
of action. No pronouncement as to costs.
SO ORDERED.[26]

To the CA, the RTC ought to have granted Vicentes motion to dismiss on the
basis of the following premises:
(1) As held in China Road and Bridge Corporation v. Court of Appeals, the
hypothetical-admission rule applies in determining whether a complaint or petition
states a cause of action.[27] Applying said rule in the light of the essential elements
of a cause of action,[28] Rebecca had no cause of action against Vicente for
declaration of nullity of marriage.
(2) Rebecca no longer had a legal right in this jurisdiction to have her
marriage with Vicente declared void, the union having previously been dissolved
on February 22, 1996 by the foreign divorce decree she personally secured as an
American citizen. Pursuant to the second paragraph of Article 26 of the Family Code,
such divorce restored Vicentes capacity to contract another marriage.
(3) Rebeccas contention about the nullity of a divorce, she being a Filipino
citizen at the time the foreign divorce decree was rendered, was dubious. Her
allegation as to her alleged Filipino citizenship was also doubtful as it was not shown
that her father, at the time of her birth, was still a Filipino citizen. The Certification
of Birth of Rebecca issued by the Government of Guam also did not indicate the
nationality of her father.
(4) Rebecca was estopped from denying her American citizenship, having
professed to have that nationality status and having made representations to that
237

effect during momentous events of her life, such as: (a) during her marriage; (b)
when she applied for divorce; and (c) when she applied for and eventually secured
an American passport on January 18, 1995, or a little over a year before she
initiated the first but later withdrawn petition for nullity of her marriage (Civil Case
No. 96-378) on March 14, 1996.
(5) Assuming that she had dual citizenship, being born of a purportedly
Filipino father in Guam, USA which follows the jus soli principle, Rebeccas
representation and assertion about being an American citizen when she secured her
foreign divorce precluded her from denying her citizenship and impugning the
validity of the divorce.
Rebecca seasonably filed a motion for reconsideration of the above Decision,
but this recourse was denied in the equally assailed June 4, 2004 Resolution.
[29]
Hence, Rebeccas Petition for Review on Certiorari under Rule 45, docketed
under G.R. No. 163979.
The Issues
In G.R. No. 155635, Rebecca raises four (4) assignments of errors as
grounds for the allowance of her petition, all of which converged on the proposition
that the CA erred in enjoining the implementation of the RTCs orders which would
have entitled her to support pending final resolution of Civil Case No. 01-094.
In G.R. No. 163979, Rebecca urges the reversal of the assailed CA decision
submitting as follows:
I
THE COURT OF APPEALS GRAVELY ERRED IN NOT MENTIONING AND
NOT TAKING INTO CONSIDERATION IN ITS APPRECIATION OF THE FACTS
THE FACT OF PETITIONERS FILIPINO CITIZENSHIP AS CATEGORICALLY
STATED AND ALLEGED IN HER PETITION BEFORE THE COURT A QUO.
II
THE COURT OF APPEALS GRAVELY ERRED IN RELYING ONLY ON
ANNEXES TO THE PETITION IN RESOLVING THE MATTERS BROUGHT
BEFORE IT.
III
THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO CONSIDER
THAT RESPONDENT IS ESTOPPED FROM CLAIMING THAT HIS MARRIAGE
TO PETITIONER HAD ALREADY BEEN DISSOLVED BY VIRTUE OF HIS
SUBSEQUENT AND CONCURRENT ACTS.
238

IV
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THERE WAS
ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT, MUCH LESS
A GRAVE ABUSE.[30]
We shall first address the petition in G.R. No. 163979, its outcome being
determinative of the success or failure of the petition in G.R. No. 155635.
Three legal premises need to be underscored at the outset. First, a divorce
obtained abroad by an alien married to a Philippine national may be recognized in
thePhilippines, provided the decree of divorce is valid according to the national law
of the foreigner.[31] Second, the reckoning point is not the citizenship of the divorcing
parties at birth or at the time of marriage, but their citizenship at the time a valid
divorce is obtained abroad. And third, an absolute divorce secured by a Filipino
married to another Filipino is contrary to our concept of public policy and morality
and shall not be recognized in this jurisdiction. [32]
Given the foregoing perspective, the determinative issue tendered in G.R. No.
155635, i.e., the propriety of the granting of the motion to dismiss by the appellate
court, resolves itself into the questions of: first, whether petitioner Rebecca was a
Filipino citizen at the time the divorce judgment was rendered in the Dominican
Republic on February 22, 1996; and second, whether the judgment of divorce is
valid and, if so, what are its consequent legal effects?
The Courts Ruling
The petition is bereft of merit.
Rebecca an American Citizen in the Purview of This Case
There can be no serious dispute that Rebecca, at the time she applied for and
obtained her divorce from Vicente, was an American citizen and remains to be one,
absent proof of an effective repudiation of such citizenship. The following are
compelling circumstances indicative of her American citizenship: (1) she was born in
Agaa, Guam, USA; (2) the principle of jus soli is followed in this American territory
granting American citizenship to those who are born there; and (3) she was, and
may still be, a holder of an American passport. [33]
And as aptly found by the CA, Rebecca had consistently professed, asserted,
and represented herself as an American citizen, particularly: (1) during her marriage
239

as shown in the marriage certificate; (2) in the birth certificate of Alix; and (3) when
she secured the divorce from the Dominican Republic. Mention may be made of the
Affidavit of Acknowledgment[34] in which she stated being an American citizen.
It is true that Rebecca had been issued by the Bureau of Immigration
(Bureau) of Identification (ID) Certificate No. RC 9778 and a Philippine Passport. On
its face, ID Certificate No. RC 9778 would tend to show that she has indeed been
recognized as a Filipino citizen. It cannot be over-emphasized, however, that such
recognition was given only on June 8, 2000 upon the affirmation by the Secretary of
Justice of Rebeccas recognition pursuant to the Order of Recognition issued by
Bureau Associate Commissioner Edgar L. Mendoza.
For clarity, we reproduce in full the contents of ID Certificate No. RC 9778:
To Whom It May Concern:
This is to certify that *MARIA REBECCA MAKAPUGAY
BAYOT* whose photograph and thumbprints are affixed hereto and
partially covered by the seal of this Office, and whose other particulars
are as follows:
Place of Birth: Guam, USA Date of Birth: March 5, 1953
Sex: female Civil Status: married Color of Hair: brown
Color of Eyes: brown Distinguishing marks on face: none
was r e c o g n i z e d as a citizen of the Philippines as per pursuant to
Article IV, Section 1, Paragraph 3 of the 1935 Constitution per order of
Recognition JBL 95-213 signed by Associate Commissioner Jose B.
Lopez dated October 6, 1995, and duly affirmed by Secretary of Justice
Artemio G. Tuquero in his 1st Indorsement dated June 8, 2000.
Issued for identification purposes only. NOT VALID for travel
purposes.
Given under my hand and seal this 11th day of October, 1995
(SGD) EDGAR L. MENDOZA
ASSO. COMMISSIONER
Official Receipt No. 5939988
issued at Manila
dated Oct. 10, 1995 for P 2,000
From the text of ID Certificate No. RC 9778, the following material facts and
dates may be deduced: (1) Bureau Associate Commissioner Jose B. Lopez issued the
Order of Recognition on October 6, 1995; (2) the 1st Indorsement of Secretary of
240

Justice Artemio G. Tuquero affirming Rebeccas recognition as a Filipino citizen was

issued on June 8, 2000 or almost five years from the date of the order of
recognition; and (3) ID Certificate No. RC 9778 was purportedly issued on October
11, 1995 after the payment of the PhP 2,000 fee on October 10, 1995 per OR No.
5939988.
What begs the question is, however, how the above certificate could have
been issued by the Bureau on October 11, 1995 when the Secretary of Justice
issued the required affirmation only on June 8, 2000. No explanation was given for
this patent aberration. There seems to be no error with the date of the issuance of
the 1st Indorsement by Secretary of Justice Tuquero as this Court takes judicial
notice that he was the Secretary of Justice from February 16, 2000 to January 22,
2001. There is, thus, a strong valid reason to conclude that the certificate in
question must be spurious.
Under extant immigration rules, applications for recognition of Filipino
citizenship require the affirmation by the DOJ of the Order of Recognition issued by
the Bureau.Under Executive Order No. 292, also known as the 1987 Administrative
Code, specifically in its Title III, Chapter 1, Sec. 3(6), it is the DOJ which is tasked to
provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens. Thus, the
confirmation by the DOJ of any Order of Recognition for Filipino citizenship issued by
the Bureau is required.
Pertinently, Bureau Law Instruction No. RBR-99-002 [35] on Recognition as a
Filipino Citizen clearly provides:
The Bureau [of Immigration] through its Records Section shall
automatically furnish the Department of Justice an official copy of its
Order of Recognition within 72 days from its date of approval by the
way of indorsement for confirmation of the Order by the Secretary of
Justice pursuant to Executive Order No. 292. No Identification
Certificate shall be issued before the date of confirmation by
the Secretary of Justice and any Identification Certificate issued by
the Bureau pursuant to an Order of Recognition shall prominently
indicate thereon the date of confirmation by the Secretary of
Justice. (Emphasis ours.)

Not lost on the Court is the acquisition by Rebecca of her Philippine passport
only on June 13, 2000, or five days after then Secretary of Justice Tuquero issued the
1stIndorsement confirming the order of recognition. It may be too much to attribute
to coincidence this unusual sequence of close events which, to us, clearly suggests
241

that prior to said affirmation or confirmation, Rebecca was not yet recognized as a
Filipino citizen. The same sequence would also imply that ID Certificate No. RC 9778
could not have been issued in 1995, as Bureau Law Instruction No. RBR-99-002
mandates that no identification certificate shall be issued before the date of
confirmation by the Secretary of Justice.Logically, therefore, the affirmation or
confirmation of Rebeccas recognition as a Filipino citizen through the
1st Indorsement issued only on June 8, 2000 by Secretary of Justice Tuquero
corresponds to the eventual issuance of Rebeccas passport a few days later, or on
June 13, 2000 to be exact.

When Divorce Was Granted Rebecca, She Was not a

Filipino Citizen and Was not Yet Recognized as One
The Court can assume hypothetically that Rebecca is now a Filipino
citizen. But from the foregoing disquisition, it is indubitable that Rebecca did not
have that status of, or at least was not yet recognized as, a Filipino citizen when she
secured the February 22, 1996 judgment of divorce from the Dominican Republic.
The Court notes and at this juncture wishes to point out that Rebecca
voluntarily withdrew her original petition for declaration of nullity (Civil Case No. 96378 of the Makati City RTC) obviously because she could not show proof of her
alleged Filipino citizenship then. In fact, a perusal of that petition shows that, while
bearing the dateJanuary 26, 1996, it was only filed with the RTC on March 14,
1996 or less than a month after Rebecca secured, on February 22, 1996, the foreign
divorce decree in question.Consequently, there was no mention about said divorce
in the petition. Significantly, the only documents appended as annexes to said
original petition were: the Vicente-Rebecca Marriage Contract (Annex A) and Birth
Certificate of Alix (Annex B). If indeed ID Certificate No. RC 9778 from the Bureau
was truly issued on October 11, 1995, is it not but logical to expect that this piece of
document be appended to form part of the petition, the question of her citizenship
being crucial to her case?
As may be noted, the petition for declaration of absolute nullity of marriage
under Civil Case No. 01-094, like the withdrawn first petition, also did not have the
ID Certificate from the Bureau as attachment. What were attached consisted of the
following material documents: Marriage Contract (Annex A) and Divorce Decree. It
was only through her Opposition (To Respondents Motion to Dismiss dated 31 May
2001)[36] did Rebecca attach as Annex C ID Certificate No. RC 9778.

242

At any rate, the CA was correct in holding that the RTC had sufficient basis to
dismiss the petition for declaration of absolute nullity of marriage as said petition,
taken together with Vicentes motion to dismiss and Rebeccas opposition to motion,
with their respective attachments, clearly made out a case of lack of cause of
action, which we will expound later.
Validity of Divorce Decree
Going to the second core issue, we find Civil Decree Nos. 362/96 and 406/97
valid.
First, at the time of the divorce, as above elucidated, Rebecca was still to be
recognized, assuming for argument that she was in fact later recognized, as a
Filipino citizen, but represented herself in public documents as an American citizen.
At the very least, she chose, before, during, and shortly after her divorce, her
American citizenship to govern her marital relationship. Second, she secured
personally said divorce as an American citizen, as is evident in the text of the Civil
Decrees, which pertinently declared:
IN THIS ACTION FOR DIVORCE in which the parties expressly submit to
the jurisdiction of this court, by reason of the existing incompatibility of
temperaments x x x. The parties MARIA REBECCA M. BAYOT, of United
States nationality, 42 years of age, married, domiciled and residing
at 502 Acacia Ave., Ayala Alabang, Muntin Lupa, Philippines, x x x,
who personally appeared before this court, accompanied by DR.
JUAN ESTEBAN OLIVERO, attorney, x x x and VICENTE MADRIGAL
BAYOT, of Philippine nationality, of 43 years of age, married and
domiciled and residing at 502 Acacia Ave., Ayala Alabang, Muntin Lupa,
Filipino, appeared before this court represented by DR. ALEJANDRO
TORRENS, attorney, x x x, revalidated by special power of attorney
given the 19th of February of 1996, signed before the Notary Public
Enrico L. Espanol of the City of Manila, duly legalized and authorizing
him to subscribe all the acts concerning this case. [37] (Emphasis ours.)

Third, being an American citizen, Rebecca was bound by the national laws of
the United States of America, a country which allows divorce. Fourth, the property
relations of Vicente and Rebecca were properly adjudicated through their
Agreement[38] executed on December 14, 1996 after Civil Decree No. 362/96 was
rendered on February 22, 1996, and duly affirmed by Civil Decree No. 406/97 issued
on March 4, 1997. Veritably, the foreign divorce secured by Rebecca was valid.

243

To be sure, the Court has taken stock of the holding in Garcia v. Recio that a
foreign divorce can be recognized here, provided the divorce decree is proven as a
fact and as valid under the national law of the alien spouse. [39] Be this as it may, the
fact that Rebecca was clearly an American citizen when she secured the divorce and
that divorce is recognized and allowed in any of the States of the Union, [40] the
presentation of a copy of foreign divorce decree duly authenticated by the foreign
court issuing said decree is, as here, sufficient.
It bears to stress that the existence of the divorce decree has not been
denied, but in fact admitted by both parties. And neither did they impeach the
jurisdiction of the divorce court nor challenge the validity of its proceedings on the
ground of collusion, fraud, or clear mistake of fact or law, albeit both appeared to
have the opportunity to do so. The same holds true with respect to the decree of
partition of their conjugal property. As this Court explained in Roehr v. Rodriguez:
Before our courts can give the effect of res judicata to a foreign
judgment [of divorce] x x x, it must be shown that the parties opposed
to the judgment had been given ample opportunity to do so on
grounds allowed under Rule 39, Section 50 of the Rules of Court (now
Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments.The effect of a judgment
of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment
is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment
may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or
fact.
It is essential that there should be an opportunity to challenge
the foreign judgment, in order for the court in this jurisdiction to
properly determine its efficacy. In this jurisdiction, our Rules of Court
clearly provide that with respect to actions in personam, as
distinguished from actions in rem, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim of a party
and, as such, is subject to proof to the contrary. [41]
As the records show, Rebecca, assisted by counsel, personally secured the
foreign divorce while Vicente was duly represented by his counsel, a certain Dr.
244

Alejandro Torrens, in said proceedings. As things stand, the foreign divorce decrees
rendered and issued by the Dominican Republic court are valid and, consequently,
bind both Rebecca and Vicente.
Finally, the fact that Rebecca may have been duly recognized as a Filipino
citizen by force of the June 8, 2000 affirmation by Secretary of Justice Tuquero of the
October 6, 1995 Bureau Order of Recognition will not, standing alone, work to nullify
or invalidate the foreign divorce secured by Rebecca as an American citizen on
February 22, 1996. For as we stressed at the outset, in determining whether or not a
divorce secured abroad would come within the pale of the countrys policy against
absolute divorce, the reckoning point is the citizenship of the parties at the time a
valid divorce is obtained.[42]
Legal Effects of the Valid Divorce
Given the validity and efficacy of divorce secured by Rebecca, the same shall
be given a res judicata effect in this jurisdiction. As an obvious result of the divorce
decree obtained, the marital vinculum between Rebecca and Vicente is considered
severed; they are both freed from the bond of matrimony. In plain language, Vicente
and Rebecca are no longer husband and wife to each other. As the divorce court
formally pronounced: [T]hat the marriage between MARIA REBECCA M. BAYOT and
VICENTE MADRIGAL BAYOT is hereby dissolved x x x leaving them free to
remarry after completing the legal requirements.[43]
Consequent to the dissolution of the marriage, Vicente could no longer be
subject to a husbands obligation under the Civil Code. He cannot, for instance, be
obliged to live with, observe respect and fidelity, and render support to Rebecca. [44]
The divorce decree in question also brings into play the second paragraph of
Art. 26 of the Family Code, providing as follows:
Art. 26. x x x x
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine
law. (As amended by E.O. 227)

In Republic v. Orbecido III, we spelled out the twin elements for the
applicability of the second paragraph of Art. 26, thus:
245

x x x [W]e state the twin elements for the application of

Paragraph 2 of Article 26 as follows:
1.
There is a valid marriage that has been celebrated between
a Filipino citizen and a foreigner; and
2.
A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at the
time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.[45]
Both elements obtain in the instant case. We need not belabor further the
fact of marriage of Vicente and Rebecca, their citizenship when they wed, and their
professed citizenship during the valid divorce proceedings.
Not to be overlooked of course is the fact that Civil Decree No. 406/97 and
the Agreement executed on December 14, 1996 bind both Rebecca and Vicente as
regards their property relations. The Agreement provided that the ex-couples
conjugal property consisted only their family home, thus:
9. That the parties stipulate that the conjugal property which
they acquired during their marriage consists only of the real
property and all the improvements and personal properties therein
contained at 502 Acacia Avenue, Ayala Alabang, Muntinlupa, covered
by TCT No. 168301 dated Feb. 7, 1990 issued by the Register of Deeds
of Makati, Metro Manila registered in the name of Vicente M. Bayot,
married to Rebecca M. Bayot, x x x.[46] (Emphasis ours.)

This property settlement embodied in the Agreement was affirmed by the

divorce court which, per its second divorce decree, Civil Decree No. 406/97 dated
March 4, 1997, ordered that, THIRD: That the agreement entered into between the
parties dated 14th day of December 1996 in Makati City, Philippines shall survive in
this Judgment of divorce by reference but not merged and that the parties are
hereby ordered and directed to comply with each and every provision of said
agreement.[47]
Rebecca has not repudiated the property settlement contained in the
Agreement. She is thus estopped by her representation before the divorce court
from asserting that her and Vicentes conjugal property was not limited to their
family home in Ayala Alabang.[48]
No Cause of Action in the Petition for Nullity of Marriage
246

Upon the foregoing disquisitions, it is abundantly clear to the Court that

Rebecca lacks, under the premises, cause of action. Philippine Bank of
Communications v. Trazoexplains the concept and elements of a cause of action,
thus:
A cause of action is an act or omission of one party in violation
of the legal right of the other. A motion to dismiss based on lack
of cause of action hypothetically admits the truth of the allegations in
the complaint. The allegations in a complaint are sufficient to
constitute a cause of action against the defendants if, hypothetically
admitting the facts alleged, the court can render a valid judgment
upon the same in accordance with the prayer therein. A cause of action
exists if the following elements are present, namely: (1) a right in
favor of the plaintiff by whatever means and under whatever law it
arises or is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of the defendant to
the plaintiff for which the latter may maintain an action for recovery of
damages.[49]

One thing is clear from a perusal of Rebeccas underlying petition before the
RTC, Vicentes motion to dismiss and Rebeccas opposition thereof, with the
documentary evidence attached therein: The petitioner lacks a cause of action for
declaration of nullity of marriage, a suit which presupposes the existence of a
marriage.
To sustain a motion to dismiss for lack of cause of action, the movant must
show that the claim for relief does not exist rather than that a claim has been
defectively stated or is ambiguous, indefinite, or uncertain. [50] With the valid foreign
divorce secured by Rebecca, there is no more marital tie binding her to
Vicente. There is in fine no more marriage to be dissolved or nullified.

The Court to be sure does not lose sight of the legal obligation of Vicente and
Rebecca to support the needs of their daughter, Alix. The records do not clearly
show how he had discharged his duty, albeit Rebecca alleged that the support given
had been insufficient. At any rate, we do note that Alix, having been born
on November 27, 1982, reached the majority age on November 27, 2000, or four
months before her mother initiated her petition for declaration of nullity. She would
now be 26 years old. Hence, the issue of back support, which allegedly had been
partly shouldered by Rebecca, is best litigated in a separate civil action for
247

reimbursement. In this way, the actual figure for the support of Alix can be proved
as well as the earning capacity of both Vicente and Rebecca. The trial court can thus
determine what Vicente owes, if any, considering that support includes provisions
until the child concerned shall have finished her education.
Upon the foregoing considerations, the Court no longer need to delve into the
issue tendered in G.R. No. 155635, that is, Rebeccas right to support pendente
lite. As it were, her entitlement to that kind of support hinges on the tenability of
her petition under Civil Case No. 01-094 for declaration of nullity of marriage. The
dismissal of Civil Case No. 01-094 by the CA veritably removed any legal anchorage
for, and effectively mooted, the claim for support pendente lite.
WHEREFORE, the petition for certiorari in G.R. No. 155635 is
hereby DISMISSED on the ground of mootness, while the petition for review in G.R.
No. 163979 is hereby DENIED for lack of merit. Accordingly, the March 25,
2004 Decision and June 4, 2004 Resolution of the CA in CA-G.R. SP No. 68187 are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 133743

February 6, 2007

EDGAR
SAN
vs.
FELICIDAD SAN LUIS, Respondent.

LUIS, Petitioner,

x ---------------------------------------------------- x
G.R. No. 134029

February 6, 2007

RODOLFO
SAN
LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February 4, 1998
Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set
aside the September 12, 1995 2 and January 31, 1996 3Resolutions of the Regional
Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998
Resolution 4 denying petitioners motion for reconsideration.

248

The instant case involves the settlement of the estate of Felicisimo T. San Luis
(Felicisimo), who was the former governor of the Province of Laguna. During his
lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia
Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila,
Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased
Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom
he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American
citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit,
State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting
Absolute Divorce and Awarding Child Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed
Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at
Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with
respondent but lived with her for 18 years from the time of their marriage up to his
death on December 18, 1992.
Thereafter, respondent sought the dissolution of their conjugal partnership assets
and the settlement of Felicisimos estate. On December 17, 1993, she filed a
petition for letters of administration 8 before the Regional Trial Court of Makati City,
docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the time of his
death, the decedent was residing at 100 San Juanico Street, New Alabang Village,
Alabang, Metro Manila; that the decedents surviving heirs are respondent as legal
spouse, his six children by his first marriage, and son by his second marriage; that
the decedent left real properties, both conjugal and exclusive, valued
at P30,304,178.00 more or less; that the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets be liquidated and that
letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by
his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and
failure to state a cause of action. Rodolfo claimed that the petition for letters of
administration should have been filed in the Province of Laguna because this was
Felicisimos place of residence prior to his death. He further claimed that respondent
has no legal personality to file the petition because she was only a mistress of
Felicisimo since the latter, at the time of his death, was still legally married to Merry
Lee.

249

On February 15, 1994, Linda invoked the same grounds and joined her brother
Rodolfo in seeking the dismissal 10 of the petition. On February 28, 1994, the trial
court issued an Order 11 denying the two motions to dismiss.
Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994
her opposition 12 thereto. She submitted documentary evidence showing that while
Felicisimo exercised the powers of his public office in Laguna, he regularly went
home to their house in New Alabang Village, Alabang, Metro Manila which they
bought sometime in 1982. Further, she presented the decree of absolute divorce
issued by the Family Court of the First Circuit, State of Hawaii to prove that the
marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed
that Felicisimo had the legal capacity to marry her by virtue of paragraph
2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo,
Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed
motions for reconsideration from the Order denying their motions to dismiss. 15 They
asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive
effect to validate respondents bigamous marriage with Felicisimo because this
would impair vested rights in derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed
a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the
case.
On October 24, 1994, the trial court issued an Order 17 denying the motions for
reconsideration. It ruled that respondent, as widow of the decedent, possessed the
legal standing to file the petition and that venue was properly laid. Meanwhile, the
motion for disqualification was deemed moot and academic 18 because then Acting
Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the
resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On
even date, Edgar also filed a motion for reconsideration 20 from the Order denying
their motion for reconsideration arguing that it does not state the facts and law on
which it was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for
inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective
position papers on the twin issues of venue and legal capacity of respondent to file
the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments
and evidence set forth in his previous motion for reconsideration as his position
250

paper. Respondent and Rodolfo filed their position papers on June 14,
20, 25 1995, respectively.

24

and June

On September 12, 1995, the trial court dismissed the petition for letters of
administration. It held that, at the time of his death, Felicisimo was the duly elected
governor and a resident of the Province of Laguna. Hence, the petition should have
been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent
was without legal capacity to file the petition for letters of administration because
her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the
decree of absolute divorce dissolving Felicisimos marriage to Merry Lee was not
valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also
ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied
because it would impair the vested rights of Felicisimos legitimate children.
Respondent moved for reconsideration 26 and for the disqualification
Arcangel but said motions were denied. 28

27

of Judge

Respondent appealed to the Court of Appeals which reversed and set aside the
orders of the trial court in its assailed Decision dated February 4, 1998, the
dispositive portion of which states:
WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are
hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24,
1994 are REINSTATED; and the records of the case is REMANDED to the trial court
for further proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the
term "place of residence" of the decedent, for purposes of fixing the venue of the
settlement of his estate, refers to the personal, actual or physical habitation, or
actual residence or place of abode of a person as distinguished from legal residence
or domicile. It noted that although Felicisimo discharged his functions as governor in
Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of
administration was properly filed in Makati City.
The Court of Appeals also held that Felicisimo had legal capacity to marry
respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in
Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage
between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of
absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a
result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a
subsequent marriage with respondent. Thus
With the well-known rule express mandate of paragraph 2, Article 26, of the Family
Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and
251

philosophy behind the enactment of E.O. No. 227, there is no justiciable reason to
sustain the individual view sweeping statement of Judge Arc[h]angel, that
"Article 26, par. 2 of the Family Code, contravenes the basic policy of our state
against divorce in any form whatsoever." Indeed, courts cannot deny what the law
grants. All that the courts should do is to give force and effect to the express
mandate of the law. The foreign divorce having been obtained by the Foreigner on
December 14, 1992,32 the Filipino divorcee, "shall x x x have capacity to remarry
under Philippine laws". For this reason, the marriage between the deceased and
petitioner should not be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as the surviving
spouse can institute the judicial proceeding for the settlement of the estate of the
deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for reconsideration
denied by the Court of Appeals.

34

which were

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition
which was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the
subject petition for letters of administration was improperly laid because at the time
of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that
pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban
City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return. They claim that a person
can only have one domicile at any given time. Since Felicisimo never changed his
domicile, the petition for letters of administration should have been filed in Sta.
Cruz, Laguna.
Petitioners also contend that respondents marriage to Felicisimo was void and
bigamous because it was performed during the subsistence of the latters marriage
to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively
applied because it would impair vested rights and ratify the void bigamous
marriage. As such, respondent cannot be considered the surviving wife of
Felicisimo; hence, she has no legal capacity to file the petition for letters of
administration.
The issues for resolution: (1) whether venue was properly laid, and (2) whether
respondent has legal capacity to file the subject petition for letters of
administration.
The petition lacks merit.
252

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of
administration of the estate of Felicisimo should be filed in the Regional Trial Court
of the province "in which he resides at the time of his death." In the case of Garcia
Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the
residence as contradistinguished from domicile of the decedent for purposes of
fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from
"legal residence or domicile." This term "resides," like the terms "residing" and
"residence," is elastic and should be interpreted in the light of the object or purpose
of the statute or rule in which it is employed. In the application of venue statutes
and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature
residence rather than domicile is the significant factor. Even where the statute uses
the word "domicile" still it is construed as meaning residence and not domicile in
the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term "inhabitant." In other
words, "resides" should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and actual stay thereat. In this
popular sense, the term means merely residence, that is, personal residence, not
legal residence or domicile. Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires bodily presence in that place
and also an intention to make it ones domicile. No particular length of time of
residence is required though; however, the residence must be more than
temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for purposes of fixing the
venue of the settlement of the estate of Felicisimo, is synonymous with "domicile."
The rulings in Nuval and Romualdez are inapplicable to the instant case because
they involve election cases. Needless to say, there is a distinction between
"residence" for purposes of election laws and "residence" for purposes of fixing the
venue of actions. In election cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent residence to which when absent,
one has the intention of returning. 42 However, for purposes of fixing venue under
the Rules of Court, the "residence" of a person is his personal, actual or physical
habitation, or actual residence or place of abode, which may not necessarily be his
legal residence or domicile provided he resides therein with continuity and
consistency. 43 Hence, it is possible that a person may have his residence in one
place and domicile in another.
In the instant case, while petitioners established that Felicisimo was domiciled in
Sta. Cruz, Laguna, respondent proved that he also maintained a residence in
Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted
253

in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the
deceased purchased the aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese General Hospital for the
period August to December 1992 indicating the address of Felicisimo at "100 San
Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of
membership of the deceased in the Ayala Alabang Village Association 46 and Ayala
Country Club, Inc., 47 letter-envelopes 48from 1988 to 1990 sent by the deceaseds
children to him at his Alabang address, and the deceaseds calling cards 49 stating
that his home/city address is at "100 San Juanico, Ayala Alabang Village,
Muntinlupa" while his office/provincial address is in "Provincial Capitol, Sta. Cruz,
Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa
for purposes of fixing the venue of the settlement of his estate. Consequently, the
subject petition for letters of administration was validly filed in the Regional Trial
Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject
petition was filed on December 17, 1993. At that time, Muntinlupa was still a
municipality and the branches of the Regional Trial Court of the National Capital
Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in
Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject
petition was validly filed before the Regional Trial Court of Makati City.
Anent the issue of respondent Felicidads legal personality to file the petition for
letters of administration, we must first resolve the issue of whether a Filipino who is
divorced by his alien spouse abroad may validly remarry under the Civil Code,
considering that Felicidads marriage to Felicisimo was solemnized on June 20, 1974,
or before the Family Code took effect on August 3, 1988. In resolving this issue, we
need not retroactively apply the provisions of the Family Code, particularly Art. 26,
par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in
the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and
his Filipino wife, which marriage was subsequently dissolved through a divorce
obtained abroad by the latter. Claiming that the divorce was not valid under
Philippine law, the alien spouse alleged that his interest in the properties from their
conjugal partnership should be protected. The Court, however, recognized the
validity of the divorce and held that the alien spouse had no interest in the
properties acquired by the Filipino wife after the divorce. Thus:
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:

254

"The purpose and effect of a decree of divorce from the bond of matrimony by a
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 petitioners
husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own countrys 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. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longer be considered married to the alien spouse. Further, she should not be
required to perform her marital duties and obligations. It held:
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. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court
recognized the validity of a divorce obtained abroad. In the said case, it was held
that the alien spouse is not a proper party in filing the adultery suit against his
Filipino wife. The Court stated that "the severance of the marital bond had the
effect of dissociating the former spouses from each other, hence the actuations of
one would not affect or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is
divorced
by
his
naturalized
foreign
spouse,
the
ruling
in Van
58
Dorn applies. Although decided on December 22, 1998, the divorce in the said
case was obtained in 1954 when the Civil Code provisions were still in effect.
The significance of the Van Dorn case to the development of limited recognition of
divorce in the Philippines cannot be denied. The ruling has long been interpreted as
severing marital ties between parties in a mixed marriage and capacitating the
Filipino spouse to remarry as a necessary consequence of upholding the validity of a
255

divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino
cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the
Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v.
Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and
legislative intent behind paragraph 2, Article 26 of the Family Code were discussed,
to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No.
209, otherwise known as the "Family Code," which took effect on August 3, 1988.
Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive
Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the
Family Code. A second paragraph was added to Article 26. As so amended, it now
provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law. (Emphasis supplied)
x
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent
of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the
Civil Code Revision Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no
longer married to the Filipino spouse.

256

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case

of Van Dorn v. Romillo, Jr. TheVan Dorn case involved a marriage between
a Filipino citizen and a foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is valid in the Philippines, and
consequently, the Filipino spouse is capacitated to remarry under
Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation where a
divorce is validly obtained abroad by the alien spouse. With the enactment of the
Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law
already established through judicial precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. 64 Marriage, being a mutual
and shared commitment between two parties, cannot possibly be productive of any
good to the society where one is considered released from the marital bond while
the other remains bound to it. Such is the state of affairs where the alien spouse
obtains a valid divorce abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is
void under Philippine law insofar as Filipinos are concerned. However, in light of this
Courts rulings in the cases discussed above, the Filipino spouse should not be
discriminated against in his own country if the ends of justice are to be served. 67 In
Alonzo v. Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its results; and likewise, we
may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the
law, the first concern of the judge should be to discover in its provisions the intent
of the lawmaker. Unquestionably, the law should never be interpreted in such a way
as to cause injustice as this is never within the legislative intent. An indispensable
part of that intent, in fact, for we presume the good motives of the legislature, is
to render justice.
Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. To be sure,
there are some laws that, while generally valid, may seem arbitrary when applied in
a particular case because of its peculiar circumstances. In such a situation, we are
not bound, because only of our nature and functions, to apply them just the same,
in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the
law as it is worded, yielding like robots to the literal command without regard to its
257

cause and consequence. "Courts are apt to err by sticking too closely to the words
of a law," so we are warned, by Justice Holmes again, "where these words import a
policy that goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined justice "as the constant and
perpetual wish to render every one his due." That wish continues to motivate this
Court when it assesses the facts and the law in every case brought to it for decision.
Justice is always an essential ingredient of its decisions. Thus when the facts
warrants, we interpret the law in a way that will render justice, presuming that it
was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. 69
Applying the above doctrine in the instant case, the divorce decree allegedly
obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have
vested Felicidad with the legal personality to file the present petition as Felicisimos
surviving spouse. However, the records show that there is insufficient evidence to
prove the validity of the divorce obtained by Merry Lee as well as the marriage of
respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the
Court laid down the specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due execution must be presented.
Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2)
a copy thereof attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office. 71
With regard to respondents marriage to Felicisimo allegedly solemnized in
California, U.S.A., she submitted photocopies of the Marriage Certificate and the
annotated text 72 of the Family Law Act of California which purportedly show that
their marriage was done in accordance with the said law. As stated
in Garcia, however, the Court cannot take judicial notice of foreign laws as they
must be alleged and proved. 73
Therefore, this case should be remanded to the trial court for further reception of
evidence on the divorce decree obtained by Merry Lee and the marriage of
respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject
258

petition for letters of administration, as she may be considered the co-owner of

Felicisimo as regards the properties that were acquired through their joint efforts
during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may
be granted to the surviving spouse of the decedent. However, Section 2, Rule 79
thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. A petition for letters of
administration must be filed by an interested person and must show, as far as
known to the petitioner: x x x.
An "interested person" has been defined as one who would be benefited by the
estate, such as an heir, or one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and not merely indirect or
contingent. 75
In the instant case, respondent would qualify as an interested person who has a
direct interest in the estate of Felicisimo by virtue of their cohabitation, the
existence of which was not denied by petitioners. If she proves the validity of the
divorce and Felicisimos capacity to remarry, but fails to prove that her marriage
with him was validly performed under the laws of the U.S.A., then she may be
considered as a co-owner under Article 144 76 of the Civil Code. This provision
governs the property relations between parties who live together as husband and
wife without the benefit of marriage, or their marriage is void from the beginning. It
provides that the property acquired by either or both of them through their work or
industry or their wages and salaries shall be governed by the rules on co-ownership.
In a co-ownership, it is not necessary that the property be acquired through their
joint labor, efforts and industry. Any property acquired during the union is prima
facie presumed to have been obtained through their joint efforts. Hence, the
portions belonging to the co-owners shall be presumed equal, unless the contrary is
proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce and the
marriage, the applicable provision would be Article 148 of the Family Code which
has filled the hiatus in Article 144 of the Civil Code by expressly regulating the
property relations of couples living together as husband and wife but are
incapacitated to marry. 78In Saguid v. Court of Appeals, 79 we held that even if the
cohabitation or the acquisition of property occurred before the Family Code took
effect, Article 148 governs. 80 The Court described the property regime under this
provision as follows:
The regime of limited co-ownership of property governing the union of parties who
are not legally capacitated to marry each other, but who nonetheless live together
259

as husband and wife, applies to properties acquired during said cohabitation in

proportion to their respective contributions. Co-ownership will only be up to the
extent of the proven actual contribution of money, property or industry. Absent
proof of the extent thereof, their contributions and corresponding shares shall be
presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue
of co-ownership of properties acquired by the parties to a bigamous marriage and
an adulterous relationship, respectively, we ruled that proof of actual contribution in
the acquisition of the property is essential. x x x
As in other civil cases, the burden of proof rests upon the party who, as determined
by the pleadings or the nature of the case, asserts an affirmative issue. Contentions
must be proved by competent evidence and reliance must be had on the strength of
the partys own evidence and not upon the weakness of the opponents defense. x x
x81
In view of the foregoing, we find that respondents legal capacity to file the subject
petition for letters of administration may arise from her status as the surviving wife
of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of
the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
reinstating and affirming the February 28, 1994 Order of the Regional Trial Court
which denied petitioners motion to dismiss and its October 24, 1994 Order which
dismissed petitioners motion for reconsideration is AFFIRMED. Let this case be
REMANDED to the trial court for further proceedings.
SO ORDERED.
CONSUELO
Associate Justice

YNARES-SANTIAGO

260

MEROPE
CATALAN,
Petitioner,

ENRIQUEZ

VDA.

DE

G. R. No. 183622
Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

- versus -

Promulgated:
LOUELLA A. CATALAN-LEE,
Respondent.

February 8, 2012

x--------------------------------------------------x
RESOLUTION
SERENO, J.:
Before us is a Petition for Review assailing the Court of Appeals (CA)
Decision[1] and Resolution[2] regarding the issuance of letters of administration of the
intestate estate of Orlando B. Catalan.
The facts are as follows:
Orlando B. Catalan was a naturalized American citizen. After allegedly
obtaining a divorce in the United States from his first wife, Felicitas Amor, he
contracted a second marriage with petitioner herein.
On 18 November 2004, Orlando died intestate in the Philippines.
Thereafter, on 28 February 2005, petitioner filed with the Regional Trial Court
(RTC) of Dagupan City a Petition for the issuance of letters of administration for her
appointment as administratrix of the intestate estate of Orlando. The case was
docketed as Special Proceedings (Spec. Proc.) No. 228.
On 3 March 2005, while Spec. Proc. No. 228 was pending, respondent Louella
A. Catalan-Lee, one of the children of Orlando from his first marriage, filed a similar
petition with the RTC docketed as Spec. Proc. No. 232.
The two cases were subsequently consolidated.

261

Petitioner prayed for the dismissal of Spec. Proc. No. 232 on the ground
of litis pendentia, considering that Spec. Proc. No. 228 covering the same estate
was already pending.
On the other hand, respondent alleged that petitioner was not considered an
interested person qualified to file a petition for the issuance of letters of
administration of the estate of Orlando. In support of her contention, respondent
alleged that a criminal case for bigamy was filed against petitioner before Branch
54 of the RTC of Alaminos, Pangasinan, and docketed as Crim. Case No. 2699-A.
Apparently, Felicitas Amor filed a Complaint for bigamy, alleging that
petitioner contracted a second marriage to Orlando despite having been married to
one Eusebio Bristol on 12 December 1959.
On 6 August 1998, the RTC had acquitted petitioner of bigamy. [3] The trial
court ruled that since the deceased was a divorced American citizen, and since that
divorce was not recognized under Philippine jurisdiction, the marriage between him
and petitioner was not valid.
Furthermore, it took note of the action for declaration of nullity then pending
action with the trial court in Dagupan City filed by Felicitas Amor against the
deceased and petitioner. It considered the pending action to be a prejudicial
question in determining the guilt of petitioner for the crime of bigamy.
Finally, the trial court found that, in the first place, petitioner had never been
married to Eusebio Bristol.
On 26 June 2006, Branch 70 of the RTC of Burgos, Pangasinan dismissed the
Petition for the issuance of letters of administration filed by petitioner and granted
that of private respondent. Contrary to its findings in Crim. Case No. 2699-A, the
RTC held that the marriage between petitioner and Eusebio Bristol was valid and
subsisting when she married Orlando. Without expounding, it reasoned further that
her acquittal in the previous bigamy case was fatal to her cause. Thus, the trial
court held that petitioner was not an interested party who may file a petition for the
issuance of letters of administration.[4]
After the subsequent denial of her Motion for Reconsideration, petitioner
elevated the matter to the Court of Appeals (CA) via her Petition for Certiorari,
alleging grave abuse of discretion on the part of the RTC in dismissing her Petition
for the issuance of letters of administration.
Petitioner reiterated before the CA that the Petition filed by respondent
should have been dismissed on the ground of litis pendentia. She also insisted that,
while a petition for letters of administration may have been filed by an uninterested
person, the defect was cured by the appearance of a real party-in-interest. Thus,
she insisted that, to determine who has a better right to administer the decedents

262

properties, the RTC should have first required the parties to present their evidence
before it ruled on the matter.
On 18 October 2007, the CA promulgated the assailed Decision. First, it held
that petitioner undertook the wrong remedy. She should have instead filed a petition
for review rather than a petition for certiorari. Nevertheless, since the Petition for
Certiorari was filed within the fifteen-day reglementary period for filing a petition for
review under Sec. 4 of Rule 43, the CA allowed the Petition and continued to decide
on the merits of the case. Thus, it ruled in this wise:
As to the issue of litis pendentia, we find it not applicable in the
case. For litis pendentia to be a ground for the dismissal of an action,
there must be: (a) identity of the parties or at least such as to
represent the same interest in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same
acts, and (c) the identity in the two cases should be such that the
judgment which may be rendered in one would, regardless of which
party is successful, amount to res judicata in the other. A petition for
letters of administration is a special proceeding. A special proceeding
is an application or proceeding to establish the status or right of a
party, or a particular fact. And, in contrast to an ordinary civil action, a
special proceeding involves no defendant or respondent. The only
party in this kind of proceeding is the petitioner of the applicant.
Considering its nature, a subsequent petition for letters of
administration can hardly be barred by a similar pending petition
involving the estate of the same decedent unless both petitions are
filed by the same person. In the case at bar, the petitioner was not a
party to the petition filed by the private respondent, in the same
manner that the latter was not made a party to the petition filed by the
former. The first element of litis pendentia is wanting. The contention
of the petitioner must perforce fail.
Moreover, to yield to the contention of the petitioner would
render nugatory the provision of the Rules requiring a petitioner for
letters of administration to be an interested party, inasmuch as any
person, for that matter, regardless of whether he has valid interest in
the estate sought to be administered, could be appointed as
administrator for as long as he files his petition ahead of any other
person, in derogation of the rights of those specifically mentioned in
the order of preference in the appointment of administrator under Rule
78, Section 6 of the Revised Rules of Court, which provides:
xxx xxx xxx
The petitioner, armed with a marriage certificate, filed her
petition for letters of administration. As a spouse, the petitioner would
have been preferred to administer the estate of Orlando B. Catalan.
However, a marriage certificate, like any other public document, is
only prima facie evidence of the facts stated therein. The fact that
the petitioner had been charged with bigamy and was
263

acquitted has not been disputed by the petitioner. Bigamy is an

illegal marriage committed by contracting a second or subsequent
marriage before the first marriage has been dissolved or before the
absent spouse has been declared presumptively dead by a judgment
rendered in a proper proceedings. The deduction of the trial court
that the acquittal of the petitioner in the said case negates the
validity of her subsequent marriage with Orlando B. Catalan
has not been disproved by her. There was not even an attempt
from the petitioner to deny the findings of the trial court. There
is therefore no basis for us to make a contrary finding. Thus, not being
an interested party and a stranger to the estate of Orlando B. Catalan,
the dismissal of her petition for letters of administration by the trial
court is in place.
xxx xxx xxx
WHEREFORE,
premises
considered,
the
petition
is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.[5] (Emphasis supplied)
Petitioner moved for a reconsideration of this Decision. [6] She alleged that the
reasoning of the CA was illogical in stating, on the one hand, that she was acquitted
of bigamy, while, on the other hand, still holding that her marriage with Orlando was
invalid. She insists that with her acquittal of the crime of bigamy, the marriage
enjoys the presumption of validity.
On 20 June 2008, the CA denied her motion.
Hence, this Petition.
At the outset, it seems that the RTC in the special proceedings failed to
appreciate the finding of the RTC in Crim. Case No. 2699-A that petitioner was never
married to Eusebio Bristol. Thus, the trial court concluded that, because petitioner
was acquitted of bigamy, it follows that the first marriage with Bristol still existed
and was valid. By failing to take note of the findings of fact on the nonexistence of
the marriage between petitioner and Bristol, both the RTC and CA held that
petitioner was not an interested party in the estate of Orlando.
Second, it is imperative to note that at the time the bigamy case in Crim.
Case No. 2699-A was dismissed, we had already ruled that under the principles of
comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign
nationality. This doctrine was established as early as 1985 in Van Dorn v. Romillo, Jr.
[7]
wherein we said:
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces[,] the same being considered contrary
to our concept of public policy and morality. However, aliens may
264

obtain divorces abroad, which may be recognized in the

Philippines, provided they are valid according to their national
law. 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. xxx
We reiterated this principle in Llorente v. Court of Appeals,[8] to wit:
In Van Dorn v. Romillo, Jr. we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces, the
same being considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens may obtain
divorces abroad, provided they are valid according to their
national law.
Citing this landmark case, the Court held in Quita v.
Court of Appeals, that once proven that respondent was no
longer a Filipino citizen when he obtained the divorce from
petitioner, the ruling in Van Dorn would become applicable and
petitioner could very well lose her right to inherit from him.
In Pilapil v. Ibay-Somera, we recognized the divorce obtained by
the respondent in his country, the Federal Republic of Germany. There,
we stated that divorce and its legal effects may be recognized
in the Philippines insofar as respondent is concerned in view of
the nationality principle in our civil law on the status of
persons.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed. We hold that the divorce obtained by
Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity. xxx
Nonetheless, the fact of divorce must still first be proven as we have
enunciated in Garcia v. Recio,[9] to wit:
Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the document must
first be presented and admitted in evidence. A divorce obtained abroad
is proven by the divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself. The decree purports to be a
written act or record of an act of an official body or tribunal of a foreign
country.
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official record of a
foreign country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a)
265

accompanied by a certificate issued by the proper diplomatic or

consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of
his office.
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family court.
However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City. The trial
court ruled that it was admissible, subject to petitioner's
qualification. Hence, it was admitted in evidence and accorded weight
by the judge. Indeed, petitioner's failure to object properly rendered
the divorce decree admissible as a written act of the Family Court of
Sydney, Australia.
Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer bound by
Philippine personal laws after he acquired Australian citizenship in
1992. Naturalization is the legal act of adopting an alien and clothing
him with the political and civil rights belonging to a citizen. Naturalized
citizens, freed from the protective cloak of their former states, don the
attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum
juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian
divorce law falls upon petitioner, because she is the party challenging
the validity of a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and was cognizant of
the marital laws of Australia, because she had lived and worked in that
country for quite a long time. Besides, the Australian divorce law is
allegedly known by Philippine courts; thus, judges may take judicial
notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the
party who alleges the existence of a fact or thing necessary in
the prosecution or defense of an action. In civil cases, plaintiffs
have the burden of proving the material allegations of the
complaint when those are denied by the answer; and
defendants have the burden of proving the material
allegations in their answer when they introduce new matters.
Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it
falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot
take judicial notice of foreign laws. Like any other facts, they
266

must be alleged and proved. Australian marital laws are not

among those matters that judges are supposed to know by
reason of their judicial function. The power of judicial notice
must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative. (Emphasis
supplied)
It appears that the trial court no longer required petitioner to prove the
validity of Orlandos divorce under the laws of the United States and the marriage
between petitioner and the deceased. Thus, there is a need to remand the
proceedings to the trial court for further reception of evidence to establish the fact
of divorce.
Should petitioner prove the validity of the divorce and the subsequent
marriage, she has the preferential right to be issued the letters of administration
over the estate. Otherwise, letters of administration may be issued to respondent,
who is undisputedly the daughter or next of kin of the deceased, in accordance with
Sec. 6 of Rule 78 of the Revised Rules of Court.
This is consistent with our ruling in San Luis v. San Luis,[10] in which we said:
Applying the above doctrine in the instant case, the divorce
decree allegedly obtained by Merry Lee which absolutely allowed
Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimo's surviving
spouse. However, the records show that there is insufficient
evidence to prove the validity of the divorce obtained by Merry
Lee as well as the marriage of respondent and Felicisimo under
the laws of the U.S.A. In Garcia v. Recio, the Court laid down the
specific guidelines for pleading and proving foreign law and divorce
judgments. It held that presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due execution must
be presented. Under Sections 24 and 25 of Rule 132, a writing or
document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of
his office.
With regard to respondent's marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of the
Marriage Certificate and the annotated text of the Family Law Act of
California which purportedly show that their marriage was done in
accordance with the said law. As stated in Garcia, however, the Court
cannot take judicial notice of foreign laws as they must be alleged and
proved.
267

Therefore, this case should be remanded to the trial

court for further reception of evidence on the divorce decree
obtained by Merry Lee and the marriage of respondent and
Felicisimo. (Emphasis supplied)
Thus, it is imperative for the trial court to first determine the validity of the
divorce to ascertain the rightful party to be issued the letters of administration over
the estate of Orlando B. Catalan.
WHEREFORE, premises considered, the Petition is hereby PARTIALLY
GRANTED. The Decision dated 18 October 2007 and the Resolution dated 20 June
2008 of the Court of Appeals are hereby REVERSED and SET ASIDE. Let this case
be REMANDED to Branch 70 of the Regional Trial Court of Burgos, Pangasinan for
further proceedings in accordance with this Decision.
SO ORDERED.
THIRD DIVISION

268

GERBERT R. CORPUZ,

G.R. No. 186571

Petitioner,
Present:

CARPIO MORALES, J., Chairperson,

BRION,
-

versus -

BERSAMIN,
*

ABAD, and

VILLARAMA, JR., JJ.

Promulgated:
DAISYLYN TIROL STO.
TOMAS
and The SOLICITOR GENERAL,

August 11, 2010

Respondents. -- x--------------------------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before the Court is a direct appeal from the decision [1] of the Regional Trial
Court (RTC) of Laoag City, Branch 11, elevated via a petition for review
on certiorari[2]under Rule 45 of the Rules of Court (present petition).
269

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired

Canadian citizenship through naturalization on November 29, 2000.[3] On January
18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a Filipina,
in Pasig City.[4] Due to work and other professional commitments, Gerbert left
for Canada soon after the wedding. He returned to the Philippines sometime in April
2005 to surprise Daisylyn, but was shocked to discover that his wife was having an
affair with another man. Hurt and disappointed, Gerbert returned to Canada and
filed
a
petition
for
divorce. The
Superior
Court
of
Justice, Windsor, Ontario, Canada granted Gerberts petition for divorce onDecember
8, 2005. The divorce decree took effect a month later, on January 8, 2006.[5]

Two years after the divorce, Gerbert has moved on and has found another
Filipina to love. Desirous of marrying his new Filipina fiance in the Philippines,
Gerbert went to the Pasig City Civil Registry Office and registered the Canadian
divorce decree on his and Daisylyns marriage certificate. Despite the registration of
the divorce decree, an official of the National Statistics Office (NSO) informed
Gerbert that the marriage between him and Daisylyn still subsists under Philippine
law; to be enforceable, the foreign divorce decree must first be judicially recognized
by a competent Philippine court, pursuant to NSO Circular No. 4, series of 1982. [6]

Accordingly, Gerbert filed a petition for judicial recognition of foreign

divorce and/or declaration of marriage as dissolved (petition) with the
RTC. Although summoned, Daisylyn did not file any responsive pleading but
submitted instead a notarized letter/manifestation to the trial court. She offered no
opposition to Gerberts petition and, in fact, alleged her desire to file a similar case
herself but was prevented by financial and personal circumstances. She, thus,
requested that she be considered as a party-in-interest with a similar prayer to
Gerberts.

In its October 30, 2008 decision,[7] the RTC denied Gerberts petition. The
RTC concluded that Gerbert was not the proper party to institute the action for
judicial recognition of the foreign divorce decree as he is a naturalized Canadian
citizen. It ruled that only the Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code, [8] in order for him or her to be
able to remarry under Philippine law. [9] Article 26 of the Family Code reads:

270

Art. 26. All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.

Where a marriage between a Filipino citizen and a

foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.

This conclusion, the RTC stated, is consistent with the legislative intent behind the
enactment of the second paragraph of Article 26 of the Family Code, as determined
by the Court in Republic v. Orbecido III;[10] the provision was enacted to avoid the
absurd situation where the Filipino spouse remains married to the alien spouse who,
after obtaining a divorce, is no longer married to the Filipino spouse. [11]

THE PETITION

From the RTCs ruling,[12] Gerbert filed the present petition.[13]

Gerbert asserts that his petition before the RTC is essentially for declaratory
relief, similar to that filed in Orbecido; he, thus, similarly asks for a determination of
his rights under the second paragraph of Article 26 of the Family Code. Taking into
account the rationale behind the second paragraph of Article 26 of the Family Code,
he contends that the provision applies as well to the benefit of the alien spouse. He
claims that the RTC ruling unduly stretched the doctrine in Orbecido by limiting the
standing to file the petition only to the Filipino spouse an interpretation he claims to
be contrary to the essence of the second paragraph of Article 26 of the Family
Code. He considers himself as a proper party, vested with sufficient legal interest, to
institute the case, as there is a possibility that he might be prosecuted for bigamy if
he marries his Filipina fiance in the Philippines since two marriage certificates,
involving him, would be on file with the Civil Registry Office. The Office of the

271

Solicitor General and Daisylyn, in their respective Comments, [14] both support
Gerberts position.

Essentially, the petition raises the issue of whether the second paragraph of
Article 26 of the Family Code extends to aliens the right to petition a court
of this jurisdiction for the recognition of a foreign divorce decree.
THE COURTS RULING

The alien spouse can claim no right

under the second paragraph of Article
26 of the Family Code as the
substantive right it establishes is in
favor of the Filipino spouse

The resolution of the issue requires a review of the legislative history and intent
behind the second paragraph of Article 26 of the Family Code.

The Family Code recognizes only two types of defective marriages void [15] and
voidable[16] marriages. In both cases, the basis for the judicial declaration of
absolute nullity or annulment of the marriage exists before or at the time of the
marriage. Divorce, on the other hand, contemplates the dissolution of the lawful
union for cause arising after the marriage.[17] Our family laws do not recognize
absolute divorce between Filipino citizens. [18]
Recognizing the reality that divorce is a possibility in marriages between a
Filipino and an alien, President Corazon C. Aquino, in the exercise of her legislative
powers under the Freedom Constitution,[19] enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording, as follows:

Art. 26. All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.

272

Where a marriage between a Filipino citizen and a

foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.

Through the second paragraph of Article 26 of the Family Code, EO 227 effectively
incorporated into the law this Courts holding in Van Dorn v. Romillo, Jr.[20] and Pilapil
v. Ibay-Somera.[21] In both cases, the Court refused to acknowledge the alien
spouses assertion of marital rights after a foreign courts divorce decree between
the alien and the Filipino. The Court, thus, recognized that the foreign divorce had
already severed the marital bond between the spouses. The Court reasoned in Van
Dorn v. Romillo that:

To maintain x x x that, under our laws, [the Filipino spouse]

has to be considered still married to [the alien spouse] and
still subject to a wife's obligations x x x cannot be just. [The
Filipino spouse] should not be obliged to live together with, observe
respect and fidelity, and render support to [the alien spouse]. 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.[22]

As the RTC correctly stated, the provision was included in the law to avoid the
absurd situation where the Filipino spouse remains married to the alien spouse who,
after obtaining a divorce, is no longer married to the Filipino spouse. [23] The
legislative intent is for the benefit of the Filipino spouse, by clarifying his or her
marital status, settling the doubts created by the divorce decree. Essentially, the
second paragraph of Article 26 of the Family Code provided the Filipino
spouse a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry. [24] Without the
second paragraph of Article 26 of the Family Code, the judicial recognition of the
foreign decree of divorce, whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding, would be of no significance to
the Filipino spouse since our laws do not recognize divorce as a mode of severing
the marital bond;[25] Article 17 of the Civil Code provides that the policy against
absolute divorces cannot be subverted by judgments promulgated in a foreign
273

country. The inclusion of the second paragraph in Article 26 of the Family Code
provides the direct exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his or her alien spouse.

Additionally, an action based on the second paragraph of Article 26 of the Family

Code is not limited to the recognition of the foreign divorce decree. If the court finds
that the decree capacitated the alien spouse to remarry, the courts can declare that
the Filipino spouse is likewise capacitated to contract another marriage. No court in
this jurisdiction, however, can make a similar declaration for the alien spouse (other
than that already established by the decree), whose status and legal capacity are
generally governed by his national law. [26]

Given the rationale and intent behind the enactment, and the purpose of the
second paragraph of Article 26 of the Family Code, the RTC was correct in limiting
the applicability of the provision for the benefit of the Filipino spouse. In other
words, only the Filipino spouse can invoke the second paragraph of Article 26 of the
Family Code; the alien spouse can claim no right under this provision.

The
foreign
divorce
decree
is
presumptive evidence of a right that
clothes the party with legal interest to
petition for its recognition in this
jurisdiction

We qualify our above conclusion i.e., that the second paragraph of Article 26
of the Family Code bestows no rights in favor of aliens with the complementary
statement that this conclusion is not sufficient basis to dismiss Gerberts petition
before the RTC. In other words, the unavailability of the second paragraph of Article
26 of the Family Code to aliens does not necessarily strip Gerbert of legal interest to
petition the RTC for the recognition of his foreign divorce decree. The foreign divorce
decree itself, after its authenticity and conformity with the aliens national law have
been duly proven according to our rules of evidence, serves as a presumptive
evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of
Court which provides for the effect of foreign judgments. This Section states:

274

SEC. 48. Effect of foreign judgments or final orders.The effect

of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as
follows:

(a)

In case of a judgment or final order upon a specific

thing, the judgment or final order is conclusive upon the
title of the thing; and

(b)

In case of a judgment or final order against a

person, the judgment or final order is presumptive
evidence of a right as between the parties and
their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by

evidence of a want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.

To our mind, direct involvement or being the subject of the foreign judgment is
sufficient to clothe a party with the requisite interest to institute an action before
our courts for the recognition of the foreign judgment. In a divorce situation, we
have declared, no less, that the divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce is valid according to his or her
national law.[27]

The starting point in any recognition of a foreign divorce judgment is the

acknowledgment that our courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, no sovereign is bound to give
effect within its dominion to a judgment rendered by a tribunal of another country.
[28]
This means that the foreign judgment and its authenticity must be proven as
facts under our rules on evidence, together with the aliens applicable national law
to show the effect of the judgment on the alien himself or herself. [29] The recognition
may be made in an action instituted specifically for the purpose or in another action

275

where a party invokes the foreign decree as an integral aspect of his claim or
defense.

In Gerberts case, since both the foreign divorce decree and the national law
of the alien, recognizing his or her capacity to obtain a divorce, purport to be official
acts of a sovereign authority, Section 24, Rule 132 of the Rules of Court comes into
play. This Section requires proof, either by (1) official publications or (2) copies
attested by the officer having legal custody of the documents. If the copies of
official records are not kept in the Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.

The records show that Gerbert attached to his petition a copy of the divorce
decree, as well as the required certificates proving its authenticity, [30] but failed to
include a copy of the Canadian law on divorce. [31] Under this situation, we can, at
this point, simply dismiss the petition for insufficiency of supporting evidence,
unless we deem it more appropriate to remand the case to the RTC to determine
whether the divorce decree is consistent with the Canadian divorce law.

We deem it more appropriate to take this latter course of action, given the
Article 26 interests that will be served and the Filipina wifes (Daisylyns) obvious
conformity with the petition. A remand, at the same time, will allow other interested
parties to oppose the foreign judgment and overcome a petitioners presumptive
evidence of a right by proving want of jurisdiction, want of notice to a party,
collusion, fraud, or clear mistake of law or fact. Needless to state, every precaution
must be taken to ensure conformity with our laws before a recognition is made, as
the foreign judgment, once recognized, shall have the effect of res
judicata[32] between the parties, as provided in Section 48, Rule 39 of the Rules of
Court.[33]

In fact, more than the principle of comity that is served by the practice of
reciprocal recognition of foreign judgments between nations, the res judicata effect
of the foreign judgments of divorce serves as the deeper basis for extending judicial
recognition and for considering the alien spouse bound by its terms. This same
effect, as discussed above, will not obtain for the Filipino spouse were it not for the
276

substantive rule that the second paragraph of Article 26 of the Family Code
provides.

Considerations beyond the recognition

of the foreign divorce decree
As a matter of housekeeping concern, we note that the Pasig City Civil
Registry Office has already recorded the divorce decree on Gerbert and
Daisylyns marriage certificate based on the mere presentation of the
decree.[34] We consider the recording to be legally improper; hence, the need to
draw attention of the bench and the bar to what had been done.

Article 407 of the Civil Code states that [a]cts, events and judicial decrees
concerning the civil status of persons shall be recorded in the civil register. The law
requires the entry in the civil registry of judicial decrees that produce legal
consequences touching upon a persons legal capacity and status, i.e., those
affecting all his personal qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not.[35]

A judgment of divorce is a judicial decree, although a foreign one, affecting a

persons legal capacity and status that must be recorded. In fact, Act No. 3753 or the
Law on Registry of Civil Status specifically requires the registration of divorce
decrees in the civil registry:

Sec. 1. Civil Register. A civil register is established for

recording the civil status of persons, in which shall be entered:

(a)

births;

(b) deaths;
(c)

marriages;

(d) annulments of marriages;

(e)

divorces;
277

(f)

legitimations;

(g) adoptions;
(h) acknowledgment of natural children;
(i)

naturalization; and

(j)

changes of name.

xxxx

Sec. 4. Civil Register Books. The local registrars shall keep and
preserve in their offices the following books, in which they shall,
respectively make the proper entries concerning the civil status of
persons:

(1) Birth and death register;

(2) Marriage register, in which shall be entered not only

the marriages solemnized but also divorces and dissolved
marriages.

(3) Legitimation, acknowledgment, adoption, change of name

and naturalization register.

But while the law requires the entry of the divorce decree in the civil registry, the
law and the submission of the decree by themselves do not ipso facto authorize the
decreesregistration. The law should be read in relation with the requirement of a
judicial recognition of the foreign judgment before it can be given res
judicata effect. In the context of the present case, no judicial order as yet exists
recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office
acted totally out of turn and without authority of law when it annotated the

278

Canadian divorce decree on Gerbert and Daisylyns marriage certificate, on the

strength alone of the foreign decree presented by Gerbert.

Evidently, the Pasig City Civil Registry Office was aware of the requirement of
a court recognition, as it cited NSO Circular No. 4, series of 1982, [36] and Department
of Justice Opinion No. 181, series of 1982[37] both of which required a final order from
a competent Philippine court before a foreign judgment, dissolving a marriage, can
be registered in the civil registry, but it, nonetheless, allowed the registration of the
decree. For being contrary to law, the registration of the foreign divorce decree
without the requisite judicial recognition is patently void and cannot produce any
legal effect.

Another point we wish to draw attention to is that the recognition that the
RTC may extend to the Canadian divorce decree does not, by itself, authorize
the cancellation of the entry in the civil registry. A petition for recognition of a
foreign judgment is not the proper proceeding, contemplated under the Rules of
Court, for the cancellation of entries in the civil registry.

Article 412 of the Civil Code declares that no entry in a civil register shall be
changed or corrected, without judicial order. The Rules of Court supplements Article
412 of the Civil Code by specifically providing for a special remedial proceeding by
which entries in the civil registry may be judicially cancelled or corrected. Rule 108
of the Rules of Court sets in detail the jurisdictional and procedural requirements
that must be complied with before a judgment, authorizing the cancellation or
correction, may be annotated in the civil registry. It also requires, among others,
that the verified petition must be filed with the RTC of the province where the
corresponding civil registry is located; [38] that the civil registrar and all persons who
have or claim any interest must be made parties to the proceedings; [39] and that the
time and place for hearing must be published in a newspaper of general circulation.
[40]
As these basic jurisdictional requirements have not been met in the present case,
we cannot consider the petition Gerbert filed with the RTC as one filed under Rule
108 of the Rules of Court.

We hasten to point out, however, that this ruling should not be construed as
requiring two separate proceedings for the registration of a foreign divorce decree
in the civil registry one for recognition of the foreign decree and another specifically
279

for cancellation of the entry under Rule 108 of the Rules of Court. The recognition of
the foreign divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or a particular fact. Moreover,
Rule 108 of the Rules of Court can serve as the appropriate adversarial
proceeding[41] by which the applicability of the foreign judgment can be measured
and tested in terms of jurisdictional infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.

WHEREFORE,
we GRANT the
petition
for
review
on certiorari,
and REVERSE the October
30,
2008 decision
of
the Regional Trial Court of Laoag City, Branch 11, as well as its February 17,
2009 order. We order the REMAND of the case to the trial court for further
proceedings in accordance with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.

SO ORDERED.

G.R. No. 142820

June 20, 2003

WOLFGANG
O.
ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge of Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion
allegedly committed by public respondent and (b) lack of jurisdiction of the regional
trial court, in matters that spring from a divorce decree obtained abroad by
petitioner.
In this special civil action for certiorari, petitioner assails (a) the order 1 dated
September 30, 1999 of public respondent Judge Josefina Guevara-Salonga, Presiding
Judge of Makati Regional Trial Court, 2 Branch 149, in Civil Case No. 96-1389 for
declaration of nullity of marriage, and (b) the order 3 dated March 31, 2000 denying
his motion for reconsideration. The assailed orders partially set aside the trial
courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues
relating to the property settlement of the spouses and the custody of their children.
280

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married

private respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in
Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981
in Tayasan, Negros Oriental. 4 Out of their union were born Carolynne and Alexandra
Kristine on November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition 5 for declaration of nullity of
marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997,
petitioner filed a motion to dismiss,6 but it was denied by the trial court in its
order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in
an order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition
for certiorari with the Court of Appeals. On November 27, 1998, the appellate court
denied the petition and remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance
of Hamburg-Blankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled
through Judge van Buiren of the Court of First Instance on the basis of the oral
proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil
Registrar of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
The litigation expenses shall be assumed by the Parties. 9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999
on the ground that the trial court had no jurisdiction over the subject matter of the
action or suit as a decree of divorce had already been promulgated dissolving the
marriage of petitioner and private respondent.

281

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners

motion to dismiss. Private respondent filed a Motion for Partial Reconsideration, with
a prayer that the case proceed for the purpose of determining the issues of custody
of children and the distribution of the properties between petitioner and private
respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was
filed by the petitioner on the ground that there is nothing to be done anymore in the
instant case as the marital tie between petitioner Wolfgang Roehr and respondent
Ma. Carmen D. Rodriguez had already been severed by the decree of divorce
promulgated by the Court of First Instance of Hamburg, Germany on December 16,
1997 and in view of the fact that said decree of divorce had already been
recognized by the RTC in its order of July 14, 1999, through the implementation of
the mandate of Article 26 of the Family Code, 10 endowing the petitioner with the
capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting
aside her order dated July 14, 1999 for the purpose of tackling the issues of
property relations of the spouses as well as support and custody of their children.
The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14,
1999 filed by petitioner thru counsel which was opposed by respondent and
considering that the second paragraph of Article 26 of the Family Code was
included as an amendment thru Executive Order 227, to avoid the absurd
situation of a Filipino as being still married to his or her alien spouse though
the latter is no longer married to the Filipino spouse because he/she had
obtained a divorce abroad which is recognized by his/her national law, and
considering further the effects of the termination of the marriage under
Article 43 in relation to Article 50 and 52 of the same Code, which include the
dissolution of the property relations of the spouses, and the support and
custody of their children, the Order dismissing this case is partially set aside
with respect to these matters which may be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was
denied by respondent judge in an order dated March 31, 2000. 12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion
on the part of respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant
case is not allowed by 1997 Rules of Civil Procedure. 13
282

2. Respondent Maria Carmen Rodriguez by her motion for Partial

Reconsideration had recognized and admitted the Divorce Decision obtained
by her ex-husband in Hamburg, Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no
conjugal assets alleged in the Petition for Annulment of Marriage and in the
Divorce petition, and the custody of the children had already been awarded
to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing
her order dated September 30, 1999, which partially modified her order
dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she
assumed and retained jurisdiction over the present case despite the fact that
petitioner has already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is
completely inconsistent with her previous order and is contrary to Section 3, Rule
16, Rules of Civil Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the
action or claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons
therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action
or claim, denying the motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order
dated July 14, 1999 because it had not yet attained finality, given the timely filing of
respondents motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules
of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court
may set aside the judgment or final order and grant a new trial, upon such
283

terms as may be just, or may deny the motion. If the court finds that
excessive damages have been awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such judgment or final order
accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under
this Rule appear to the court to affect the issues as to only a part, or less than
all of the matters in controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant reconsideration as to such issues
if severable without interfering with the judgment or final order upon the rest.
(Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of
a case that has not yet attained finality. Considering that private respondent filed a
motion for reconsideration within the reglementary period, the trial court's decision
of July 14, 1999 can still be modified. Moreover, in Saado v. Court of Appeals,16we
held that the court could modify or alter a judgment even after the same has
become executory whenever circumstances transpire rendering its decision unjust
and inequitable, as where certain facts and circumstances justifying or requiring
such modification or alteration transpired after the judgment has become final and
executory17 and when it becomes imperative in the higher interest of justice or
when supervening events warrant it. 18 In our view, there are even more compelling
reasons to do so when, as in this case, judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave
abuse of discretion when she partially set aside her order dated July 14, 1999,
despite the fact that petitioner has already obtained a divorce decree from the
Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that a divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided such decree is valid according to the national law of the
foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court
specifically recognized the validity of a divorce obtained by a German citizen in his
country, the Federal Republic of Germany. We held in Pilapil that a foreign divorce
and its legal effects may be recognized in the Philippines insofar as respondent is
concerned in view of the nationality principle in our civil law on the status of
persons.
In this case, the divorce decree issued by the German court dated December 16,
1997 has not been challenged by either of the parties. In fact, save for the issue of
parental custody, even the trial court recognized said decree to be valid and
binding, thereby endowing private respondent the capacity to remarry. Thus, the

284

present controversy mainly relates to the award of the custody of their two children,
Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are
recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care
and support of the children, must still be determined by our courts. 23 Before our
courts can give the effect of res judicata to a foreign judgment, such as the award of
custody to petitioner by the German court, it must be shown that the parties
opposed to the judgment had been given ample opportunity to do so on grounds
allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal
of a foreign country, having jurisdiction to pronounce the judgment is as
follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive
upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive
evidence of a right as between the parties and their successors in interest by
a subsequent title; but the judgment may be repelled by evidence of a want
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment,
in order for the court in this jurisdiction to properly determine its efficacy. In this
jurisdiction, our Rules of Court clearly provide that with respect to actions in
personam, as distinguished from actions in rem, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim of a party and, as such,
is subject to proof to the contrary. 24
In the present case, it cannot be said that private respondent was given the
opportunity to challenge the judgment of the German court so that there is basis for
declaring that judgment as res judicata with regard to the rights of petitioner to
have parental custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondents participation in
the proceedings in the German court, the records remain unclear. The divorce
decree itself states that neither has she commented on the proceedings 25 nor has
she given her opinion to the Social Services Office. 26 Unlike petitioner who was
represented by two lawyers, private respondent had no counsel to assist her in said
proceedings.27 More importantly, the divorce judgment was issued to petitioner by
virtue of the German Civil Code provision to the effect that when a couple lived
separately for three years, the marriage is deemed irrefutably dissolved. The decree
285

did not touch on the issue as to who the offending spouse was. Absent any finding
that private respondent is unfit to obtain custody of the children, the trial court was
correct in setting the issue for hearing to determine the issue of parental custody,
care, support and education mindful of the best interests of the children. This is in
consonance with the provision in the Child and Youth Welfare Code that the childs
welfare is always the paramount consideration in all questions concerning his care
and custody. 28
On the matter of property relations, petitioner asserts that public respondent
exceeded the bounds of her jurisdiction when she claimed cognizance of the issue
concerning property relations between petitioner and private respondent. Private
respondent herself has admitted in Par. 14 of her petition for declaration of nullity of
marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case,
that: "[p]etitioner and respondent have not acquired any conjugal or community
property nor have they incurred any debts during their marriage." 29 Herein
petitioner did not contest this averment. Basic is the rule that a court shall grant
relief warranted by the allegations and the proof. 30 Given the factual admission by
the parties in their pleadings that there is no property to be accounted for,
respondent judge has no basis to assert jurisdiction in this case to resolve a matter
no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue
regarding the custody of the two children born of the union between petitioner and
private respondent. Private respondent erred, however, in claiming cognizance to
settle the matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued
on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION.
We hereby declare that the trial court has jurisdiction over the issue between the
parties as to who has parental custody, including the care, support and education of
the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this
case be remanded promptly to the trial court for continuation of appropriate
proceedings. No pronouncement as to costs.
SO ORDERED.
HERALD BLACK DACASIN, G.R. No. 168785
Petitioner,
Present:
CARPIO, J., Chairperson,
BRION,
286

- versus - DEL CASTILLO,

ABAD, and
PEREZ, JJ.

SHARON DEL MUNDO DACASIN, Promulgated:

Respondent. February 5, 2010
x----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

For review[1]is a dismissal[2]of a suit to enforce a post-foreign divorce child custody

agreement for lack of jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo
Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one
daughter, Stephanie, born on 21 September 1995. In June 1999, respondent sought
and obtained from the Circuit Court, 19 th Judicial Circuit, Lake County, Illinois (Illinois
287

court) a divorce decree against petitioner. [3] In its ruling, the Illinois court dissolved
the marriage of petitioner and respondent, awarded to respondent sole custody of
Stephanie and retained jurisdiction over the case for enforcement purposes.

On 28 January 2002, petitioner and respondent executed in Manila a contract

(Agreement[4]) for the joint custody of Stephanie. The parties chose Philippine courts
as exclusive forum to adjudicate disputes arising from the Agreement. Respondent
undertook to obtain from the Illinois court an order relinquishing jurisdiction to
Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City,
Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation
of the Agreement, respondent exercised sole custody over Stephanie.

Respondent sought the dismissal of the complaint for, among others, lack of
jurisdiction because of the Illinois courts retention of jurisdiction to enforce the
divorce decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court sustained respondents motion and
dismissed the case for lack of jurisdiction. The trial court held that: (1) it is
precluded from taking cognizance over the suit considering the Illinois courts
retention of jurisdiction to enforce its divorce decree, including its order awarding
sole custody of Stephanie to respondent; (2) the divorce decree is binding on
petitioner following the nationality rule prevailing in this jurisdiction; [5]and (3) the
Agreement is void for contravening Article 2035, paragraph 5 of the Civil
Code[6]prohibiting compromise agreements on jurisdiction.[7]

Petitioner sought reconsideration, raising the new argument that the divorce decree
obtained by respondent is void. Thus, the divorce decree is no bar to the trial courts
exercise of jurisdiction over the case.

288

In its Order dated 23 June 2005, the trial court denied reconsideration, holding that
unlike in the case of respondent, the divorce decree is binding on petitioner under
the laws of his nationality.

Hence, this petition.

Petitioner submits the following alternative theories for the validity of the
Agreement to justify its enforcement by the trial court: (1) the Agreement novated
the valid divorce decree, modifying the terms of child custody from sole (maternal)
to joint;[8]or (2) the Agreement is independent of the divorce decree obtained by
respondent.

The Issue

The question is whether the trial court has jurisdiction to take cognizance of
petitioners suit and enforce the Agreement on the joint custody of the parties child.

The Ruling of the Court

The trial court has jurisdiction to entertain petitioners suit but not to enforce the
Agreement which is void. However, factual and equity considerations militate
against the dismissal of petitioners suit and call for the remand of the case to settle
the question of Stephanies custody.

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the time petitioner filed his
suit in the trial court, statutory law vests on Regional Trial Courts exclusive original
jurisdiction over civil actions incapable of pecuniary estimation. [9]An action for
specific performance, such as petitioners suit to enforce the Agreement on joint
289

child custody, belongs to this species of actions. [10]Thus, jurisdiction-wise, petitioner

went to the right court.

Indeed, the trial courts refusal to entertain petitioners suit was grounded not
on its lack of power to do so but on its thinking that the Illinois courts divorce decree
stripped it of jurisdiction. This conclusion is unfounded. What the Illinois court
retained was jurisdiction x x x for the purpose of enforcing all and sundry the
various provisions of [its] Judgment for Dissolution.[11]Petitioners suit seeks the
enforcement not of the various provisions of the divorce decree but of the postdivorce Agreement on joint child custody. Thus, the action lies beyond the zone of
the Illinois courts so-called retained jurisdiction.

Petitioners Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot enforce the Agreement which
is contrary to law.

In this jurisdiction, parties to a contract are free to stipulate the terms of

agreement subject to the minimum ban on stipulations contrary to law, morals,
good customs, public order, or public policy. [12]Otherwise, the contract is denied
legal existence, deemed inexistent and void from the beginning. [13]For lack of
relevant stipulation in the Agreement, these and other ancillary Philippine
substantive law serve as default parameters to test the validity of the Agreements
joint child custody stipulations. [14]
At the time the parties executed the Agreement on 28 January 2002, two facts are
undisputed: (1) Stephanie was under seven years old (having been born on 21
September 1995); and (2) petitioner and respondent were no longer married under
the laws of the United States because of the divorce decree. The relevant Philippine
law on child custody for spouses separated in fact or in law [15] (under the second
paragraph of Article 213 of the Family Code) is also undisputed: no child under
seven years of age shall be separated from the mother x x x. [16] (This statutory
awarding of sole parental custody[17]to the mother is mandatory,[18]grounded on
sound policy consideration,[19]subject only to a narrow exception not alleged to
obtain here.[20]) Clearly then, the Agreements object to establish a post-divorce joint
custody regime between respondent and petitioner over their child under seven
years old contravenes Philippine law.
290

The Agreement is not only void ab initio for being contrary to law, it has also
been repudiated by the mother when she refused to allow joint custody by the
father. The Agreement would be valid if the spouses have not divorced or separated
because the law provides for joint parental authority when spouses live together.
[21]
However, upon separation of the spouses, the mother takes sole custody under
the law if the child is below seven years old and any agreement to the contrary is
void. Thus, the law suspends the joint custody regime for (1) children under seven
of (2) separated or divorced spouses. Simply put, for a child within this age bracket
(and for commonsensical reasons), the law decides for the separated or
divorced parents how best to take care of the child and that is to give custody to the
separated mother. Indeed, the separated parents cannot contract away the
provision in the Family Code on the maternal custody of children below seven years
anymore than they can privately agree that a mother who is unemployed, immoral,
habitually drunk, drug addict, insane or afflicted with a communicable disease will
have sole custody of a child under seven as these are reasons deemed compelling
to precludethe application of the exclusive maternal custody regime under the
second paragraph of Article 213.[22]

It will not do to argue that the second paragraph of Article 213 of the Family
Code applies only to judicial custodial agreements based on its text that No child
under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise. To limit this provisions
enforceability to court sanctioned agreements while placing private agreements
beyond its reach is to sanction a double standard in custody regulation of children
under seven years old of separated parents. This effectively empowers separated
parents, by the simple expedient of avoiding the courts, to subvert a legislative
policy vesting to the separated mother sole custody of her children under seven
years of age to avoid a tragedy where a mother has seen her baby torn away from
her.[23]This ignores the legislative basis that [n]o man can sound the deep sorrows of
a mother who is deprived of her child of tender age. [24]

It could very well be that Article 213s bias favoring one separated parent
(mother) over the other (father) encourages paternal neglect, presumes incapacity
for joint parental custody, robs the parents of custodial options, or hijacks decisionmaking between the separated parents. [25]However, these are objections which
question the laws wisdom not its validity or uniform enforceability. The forum to air
and remedy these grievances is the legislature, not this Court. At any rate, the rules
291

seeming harshness or undesirability is tempered by ancillary agreements the

separated parents may wish to enter such as granting the father visitation and
other privileges. These arrangements are not inconsistent with the regime of sole
maternal custody under the second paragraph of Article 213 which merely grants to
the mother final authority on the care and custody of the minor under seven years
of age, in case of disagreements.

Further, the imposed custodial regime under the second paragraph of Article 213 is
limited in duration, lasting only until the childs seventh year. From the eighth year
until the childs emancipation, the law gives the separated parents freedom, subject
to the usual contractual limitations, to agree on custody regimes they see fit to
adopt. Lastly, even supposing that petitioner and respondent are not barred from
entering into the Agreement for the joint custody of Stephanie, respondent
repudiated the Agreement by asserting sole custody over Stephanie. Respondents
act effectively brought the parties back to ambit of the default custodial regime in
the second paragraph of Article 213 of the Family Code vesting on respondent sole
custody of Stephanie.

Nor can petitioner rely on the divorce decrees alleged invalidity - not because
the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law,
but because the divorce was obtained by his Filipino spouse [26]- to support the
Agreements enforceability. The argument that foreigners in this jurisdiction are not
bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo[27]settled the
matter by holding that an alien spouse of a Filipino is bound by a divorce decree
obtained abroad.[28]There, we dismissed the alien divorcees Philippine suit for
accounting of alleged post-divorce conjugal property and rejected his submission
that the foreign divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction in this wise:

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.

292

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their
national law. 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.

xxxx

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 petitioners
husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own countrys 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.
(Emphasis supplied)

We reiterated Van Dorn in Pilapil v. Ibay-Somera[29]to dismiss criminal complaints for

adultery filed by the alien divorcee (who obtained the foreign divorce decree)
against his former Filipino spouse because he no longer qualified as offended
spouse entitled to file the complaints under Philippine procedural rules. Thus, it
should be clear by now that a foreign divorce decree carries as much validity
against the alien divorcee in this jurisdiction as it does in the jurisdiction of the
aliens nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of Proceeding

Justify Remand

Instead of ordering the dismissal of petitioners suit, the logical end to its lack of
cause of action, we remand the case for the trial court to settle the question of
Stephanies custody. Stephanie is now nearly 15 years old, thus removing the case
outside of the ambit of the mandatory maternal custody regime under Article 213
293

and bringing it within coverage of the default standard on child custody proceedings
the best interest of the child.[30]As the question of custody is already before the trial
court and the childs parents, by executing the Agreement, initially showed
inclination to share custody, it is in the interest of swift and efficient rendition of
justice to allow the parties to take advantage of the courts jurisdiction, submit
evidence on the custodial arrangement best serving Stephanies interest, and let the
trial court render judgment. This disposition is consistent with the settled doctrine
that in child custody proceedings, equity may be invoked to serve the childs best
interest.[31]

WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of
the Regional Trial Court of Makati City, Branch 60. The case is REMANDED for
further proceedings consistent with this ruling.

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

SARMIENTO, J.:
In its resolution dated September 27, 1983, the respondent Intermediate Appellate
Court, 1 speaking through Justice Porfirio V, Sison, ordered, in part, the petitioners
to accept the sum of P5,600.00 from the private respondent as repurchase price of
the lots described in the "Compraventa" and, thereafter, to execute a Deed of
Repurchase to effect transfer over ownership over the same properties to the
private respondent.
This ruling was a complete reversal of the earlier decision, 2 dated June 28, 1.978,
penned by Justice Paras, of the Court of Appeals, in the same case, affirming the
trial court's dismissal of the private respondent's complaint.
294

The petitioners, feeling aggrieved and astonished by the complete turnaround of

the respondent court, come to Us with this petition for review by certiorari.
The antecedent facts are undisputed.
This case brings us back almost half a century ago, on March 21, 1941, when a
document entitled "Compraventa," written entirely in the Spanish language,
involving three parcels of land, was executed by the private respondent's
predecessors-in-interest, Vicente Santiago and his brother, Luis Santiago, in favor of
Cirilio Leal the deceased father of some of the petitioners, Pursuant to this
"Compraventa," the title over the three parcels of land in the name of the vendors
was cancelled and a new one was issued in the name of Cirilo Leal who immediately
took possession and exercised ownership over the said lands. When Cirilo died on
December 10, 1959, the subject lands were inherited by his six children, who are
among the petitioners, and who caused the consolidation and subdivision of the
properties among themselves.
Between the years 1960 and 1965, the properties were either mortgaged or leased
by the petitioners-children of Cirilo Leal to their co-petitioners.
Sometime before the agricultural year 1966-1967, Vicente Santiago approached the
petitioners and offered re- repurchase the subject properties. Petitioners, however,
refused the offer. Consequently, Vicente Santiago instituted a complaint for specific
performance before the then Court of First Instance of Quezon City on August 2,
1967.
All the trial, the court a quo rendered its decision,-dismissing the complaint on the
ground that the same was still premature considering that there was, as yet, no sale
nor any alienation equivalent to a sale. Not satisfied with this decision, the private
respondent appealed to the Court of Appeals and the latter, acting through the
Fourth Division and with Justice Edgardo Paras as ponente affirmed the decision of
the court a quo.
The petitioners seasonably filed a motion to amend the dispositive portion of the
decision so as to include an order for the cancellation of the annotations at the back
of the Transfer certificates of Title issued in their favor. The private respondent,-on
the other hand, filed a-timely motion for reconsideration of the above decision and
an opposition to petitioners' motion to amend. These incidents were not resolved
until then Court of Appeals was abolished and in lieu of which the Intermideate
Appellate Court was established In view of the said reorganization, case was
reassigned to the Fourth Civil in this cases Division.

295

Resolving the abovestated motion for reconsideration, the respondent court, in a

resolution penned by Justice Sison and promulgated on September 27, 1983, ruled,
as follows:
WHEREFORE, Our decision of June 28, 1978 is hereby reversed and set
aside and another one is rendered ordering: (1) defendants-appellees
surnamed Leal to accept the sum of P5,600.00 from plaintiff-appellant
(substituted by Salud M. Santiago) as repurchase price of the lots
described in the "Compraventa" of March 21, 1941, and thereafter to
execute a deed of repurchase sufficient in law to transfer ownership of
the properties to appellant Salud M. Santiago, the same to be done
within five (5) days from payment; (2) ordering the same defendants
Leals and defendant Clemente Samario to indemnify appellant in the
sum of P3,087.50 as rental for the year 1967-1968 and the same
amount every year thereafter; (3) ordering an the defendants jointly
and severally to pay the sum of Pl,500.00 as attorney's fees and other
expenses of litigation; and (4) ordering defendant Register of Deeds of
Rizal to cancel Transfer Certificate of Title No. 42535 in the names of
Vicente Santiago and Luis Santiago upon presentation of the deed of
sale herein ordered to be executed by the appellees in favor of Salud
M. Santiago and to issue thereof another Transfer Certificate of Title in
the name alone of Salud M. Santiago. No costs here and in the courts
(sic) below.
SO ORDERED.
Verily, the well-spring whence the present controversy arose is the abovementioned
"Compraventa," more particularly paragraph (b) thereof, to wit:
xxx xxx xxx
(b) En caso de venta, no podran vender a otros dichos tres lotes de
terreno sino al aqui vendedor Vicente Santiago, o los herederos o
sucesores de este por el niismo precio de CINCO MIL SEISCIENTOS
PESOS (P5,600.00) siempre y cuando estos ultimos pueden hacer la
compra. 3
xxx xxx xxx
which is now the subject of varying and conflicting interpretations.
xxx xxx xxx

296

It is admitted by both parties that the phrase "they shall not sell to others these
three lots but only to the seller Vicente Santiago or to his heirs or successors" is an
express prohibition against the sale of the lots described in the "Compraventa" to
third persons or strangers to the contract. However, while private respondent
naturally lauds the resolution of Justice Sison, which sustains the validity of this
prohibition, the petitioners, on the other hand, endorse the decision penned by
Justice Paras, which states, in part:
xxx xxx xxx
Finally, there is grave doubt re the validity of the ostensible resolutory
condition here, namely, the prohibition to sell the lots to persons other
than the vendor (appellant); uncertainly, a prohibition to alienate
should not exceed at most a period of twenty years, otherwise there
would be subversion of public policy, which naturally frowns on
unwarranted restrictions on the right of ownership. 4
xxx xxx xxx
We agree with the Paras ponencia.
Contracts are generally binding between the parties, their assigns and heirs;
however, under Art. 1255 of the Civil Code of Spain, which is applicable in this
instance, pacts, clauses, and conditions which are contrary to public order are null
and void, thus, without any binding effect.
Parenthetically, the equivalent provision in the Civil Code of the Philippines is that of
Art. 1306, which states: "That contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order, or public policy. Public order
signifies the public weal public policy. 5 Essentially, therefore, public order and
public policy mean one and the same thing. Public policy is simply the English
equivalent of "order publico" in Art. 1255 of the Civil Code of Spain. 6
One such condition which is contrary to public policy is the present prohibition to
self to third parties, because the same virtually amounts to a perpetual restriction
to the right of ownership, specifically the owner's right to freely dispose of his
properties. This, we hold that any such prohibition, indefinite and stated as to time,
so much so that it shall continue to be applicable even beyond the lifetime of the
original parties to the contract, is, without doubt, a nullity. In the light of this
pronouncement, we grant the petitioners' prayer for the cancellation of the
annotations of this prohibition at the back of their Transfer Certificates 'Title.

297

It will be noted, moreover, that the petitioners have never sold, or even attempted
to sell, the properties subject of the "Compraventa. "
We now come to what we believe is the very issue in this case which is, whether or
not under the aforequoted paragraph (b) of the "Compraventa" a right of
repurchase in favor of the private respondent exist.
The ruling of the Fourth Division (Justice Paras) is that the said stipulation does not
grant a right to repurchase. Contrarily, the resolution of the Fourth Civil Cases
Division (Justice P. V. Sison) interpreted the same provision as granting the right to
repurchase subject to a condition precedent.
Thus, the assailed Resolution, reversing the earlier decision of the same respondent
court, ruled
xxx xxx xxx
The all-importartant phrase "en caso de venta," must of necessity refer
to the sale of the properties either by Cirilo or his heirs to the Santiago
brothers themselves or to their heirs, including appellants Vicente
Santiago including appellants Vicente Santiago and Salud M Santiago,
for the same sum of P5,600.00, "siempre y cuando estos ultimos
pueden hacer la compra" (when the latter shall be able to buy it).
xxx xxx xxx
... We repeat, The words envision the situation contemplated by the
contracting parties themselves, the resale of the lots to their owners,
and NOT to a sale of the lots to third parties or strangers to the
contracts. ... 7
xxx xxx xxx
The law provides that for conventional redemption to take place, the vendor should
reserve, in no uncertain terms, the right to repurchase the thing sold. 8 Thus, the
right to redeem must be expressly stipulated in the contract of sale in order that it
may have legal existence.
In the case before us, we cannot and any express or implied grant of a right to
repurchase, nor can we infer, from any word or words in the questioned paragraph,
the existence of any such right. The interpretation in the resolution (Justice Sison) is
rather strained. The phrase "in case case" of should be construed to mean "should
the buyers wish to sell which is the plain and simple import of the words, and not
"the buyers should sell," which is clearly a contorted construction of the same
298

phrase. The resort to Article 1373 of the Civil Code of the Philippines is erroneous.
The subject phrase is patent and unambiguous, hence, it must not be given another
interpretation
But even assuming that such a right of repurchase is granted under the
"Compraventa," the petitioner correctly asserts that the same has already
prescribed. Under Art. 1508 of the Civil Code of Spain (Art,. 1606 of the Civil Code of
the Philippines), the right to redeem or repurchase, in the absence of an express
agreement as to time, shall last four years from the date of the contract. In this case
then, the right to repurchase, if it was at four guaranteed under in the
"Compraventa," should have been exercise within four years from March 21, 1941
(indubitably the date of execution of the contract), or at the latest in 1945.
In the respondent court's resolution, it is further ruled that the right to repurchase
was given birth by the condition precedent provided for in the phrase "siempre y
cuando estos ultimos pueden hacer la compra" (when the buyer has money to buy).
In other words, it is the respondent court's contention that the right may be
exercised only when the buyer has money to buy. If this were so, the second
paragraph of Article 1508 would apply there is agreement as to the time,
although it is indefinite, therefore, the right should be exercised within ten years,
because the law does not favor suspended ownership. Since the alleged right to
repurchase was attempted to be exercised by Vicente Santiago only in 1966, or 25
years from the date of the contract, the said right has undoubtedly expired.
WHEREFORE, in view of the foregoing, the Resolution dated September 27, 1983, of
the respondent court is SET ASIDE and the Decision promulgated on June 28, 1978
is hereby REINSTATED. The annotations of the prohibition to sell at the back of TCT
Nos. 138837, 138838, 138839, 138840, 138841, and 138842 are hereby ordered
CANCELLED. Costs against the private respondent.
SO ORDERED.
Yap (Chairman), Melencio-Herrera and Padilla, JJ., concur.
Paras, J., took no part.
G.R. No. L-15127

May 30, 1961

EMETERIO
vs.
ARELLANO UNIVERSITY, defendant-appellee.
G.A.S.
Sipin,
Jr.,
E. Voltaire Garcia for defendant-appellee.
299

CUI, plaintiff-appellant,

for

plaintiff-appellant.

CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of
Manila, absolving defendant Arellano University from plaintiff's complaint, with costs
against the plaintiff, and dismissing defendant's counter claim, for insufficiency of
proof thereon.
In the language of the decision appealed from:
The essential facts of this case are short and undisputed. As established by
the agreement of facts Exhibits X and by the respective oral and
documentary evidence introduced by the parties, it appears conclusive that
plaintiff, before the school year 1948-1949 took up preparatory law course in
the defendant University. After finishing his preparatory law course plaintiff
enrolled in the College of Law of the defendant from the school year 19481949. Plaintiff finished his law studies in the defendant university up to and
including the first semester of the fourth year. During all the school years in
which plaintiff was studying law in defendant law college, Francisco R.
Capistrano, brother of the mother of plaintiff, was the dean of the College of
Law and legal counsel of the defendant university. Plaintiff enrolled for the
last semester of his law studies in the defendant university but failed to pay
his tuition fees because his uncle Dean Francisco R. Capistrano having
severed his connection with defendant and having accepted the deanship
and chancellorship of the College of Law of Abad Santos University, plaintiff
left the defendant's law college and enrolled for the last semester of his
fourth year law in the college of law of the Abad Santos University graduating
from the college of law of the latter university. Plaintiff, during all the time he
was studying law in defendant university was awarded scholarship grants, for
scholastic merit, so that his semestral tuition fees were returned to him after
the ends of semester and when his scholarship grants were awarded to him.
The whole amount of tuition fees paid by plaintiff to defendant and refunded
to him by the latter from the first semester up to and including the first
semester of his last year in the college of law or the fourth year, is in total
P1,033.87. After graduating in law from Abad Santos University he applied to
take the bar examination. To secure permission to take the bar he needed the
transcripts of his records in defendant Arellano University. Plaintiff petitioned
the latter to issue to him the needed transcripts. The defendant refused until
after he had paid back the P1,033 87 which defendant refunded to him as
above stated. As he could not take the bar examination without those
transcripts, plaintiff paid to defendant the said sum under protest. This is the
sum which plaintiff seeks to recover from defendant in this case.
Before defendant awarded to plaintiff the scholarship grants as above stated,
he was made to sign the following contract covenant and agreement:
"In consideration of the scholarship granted to me by the University, I hereby
waive my right to transfer to another school without having refunded to the
University (defendant) the equivalent of my scholarship cash.

300

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued
Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to
"All heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show that
some schools offer full or partial scholarships to deserving students for
excellence in scholarship or for leadership in extra-curricular activities. Such
inducements to poor but gifted students should be encouraged. But to
stipulate the condition that such scholarships are good only if the students
concerned continue in the same school nullifies the principle of merit in the
award of these scholarships.
2. When students are given full or partial scholarships, it is understood that
such scholarships are merited and earned. The amount in tuition and other
fees corresponding to these scholarships should not be subsequently charged
to the recipient students when they decide to quit school or to transfer to
another institution. Scholarships should not be offered merely to attract and
keep students in a school.
3. Several complaints have actually been received from students who have
enjoyed scholarships, full or partial, to the effect that they could not transfer
to other schools since their credentials would not be released unless they
would pay the fees corresponding to the period of the scholarships. Where
the Bureau believes that the right of the student to transfer is being denied
on this ground, it reserves the right to authorize such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked the
Bureau of Private Schools to pass upon the issue on his right to secure the transcript
of his record in defendant University, without being required to refund the sum of
P1,033.87; that the Bureau of Private Schools upheld the position taken by the
plaintiff and so advised the defendant; and that, this notwithstanding, the latter
refused to issue said transcript of records, unless said refund were made, and even
recommended to said Bureau that it issue a written order directing the defendant to
release said transcript of record, "so that the case may be presented to the court for
judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and
did pay under protest, said sum of P1,033.87, in order that he could take the bar
examination in 1953. Subsequently, he brought this action for the recovery of said
amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000
as attorney's fees, and P500 as expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private
Schools, namely, that the provisions of its contract with plaintiff are valid and
binding and that the memorandum above-referred to is null and void. It, likewise,
set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees.
301

The issue in this case is whether the above quoted provision of the contract
between plaintiff and the defendant, whereby the former waived his right to transfer
to another school without refunding to the latter the equivalent of his scholarships
in cash, is valid or not. The lower court resolved this question in the affirmative,
upon the ground that the aforementioned memorandum of the Director of Private
Schools is not a law; that the provisions thereof are advisory, not mandatory in
nature; and that, although the contractual provision "may be unethical, yet it was
more unethical for plaintiff to quit studying with the defendant without good reasons
and simply because he wanted to follow the example of his uncle." Moreover,
defendant maintains in its brief that the aforementioned memorandum of the
Director of Private Schools is null and void because said officer had no authority to
issue it, and because it had been neither approved by the corresponding
department head nor published in the official gazette.
We do not deem it necessary or advisable to consider as the lower court did, the
question whether plaintiff had sufficient reasons or not to transfer from defendant
University to the Abad Santos University. The nature of the issue before us, and its
far reaching effects, transcend personal equations and demand a determination of
the case from a high impersonal plane. Neither do we deem it essential to pass
upon the validity of said Memorandum No. 38, for, regardless of the same, we are of
the opinion that the stipulation in question is contrary to public policy and, hence,
null and void. The aforesaid memorandum merely incorporates a sound principle of
public policy. As the Director of Private Schools correctly pointed, out in his letter,
Exhibit B, to the defendant,
There is one more point that merits refutation and that is whether or not the
contract entered into between Cui and Arellano University on September 10,
1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust
and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In
determining a public policy of the state, courts are limited to a consideration
of the Constitution, the judicial decisions, the statutes, and the practice of
government officers.' It might take more than a government bureau or office
to lay down or establish a public policy, as alleged in your communication,
but courts consider the practices of government officials as one of the four
factors in determining a public policy of the state. It has been consistently
held in America that under the principles relating to the doctrine of public
policy, as applied to the law of contracts, courts of justice will not recognize
or uphold a transaction which its object, operation, or tendency is calculated
to be prejudicial to the public welfare, to sound morality or to civic
honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere
64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood
clearly the real essence of scholarships and the motives which prompted this
office to issue Memorandum No. 38, s. 1949, it should have not entered into a
contract of waiver with Cui on September 10, 1951, which is a direct violation
of our Memorandum and an open challenge to the authority of the Director of
Private Schools because the contract was repugnant to sound morality and
civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp.
Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as against
public policy, a court must find that the contract as to consideration or the
thing to be done, contravenes some established interest of society, or
302

is inconsistent with sound policy and good morals or tends clearly to

undermine the security of individual rights. The policy enunciated in
Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in
recognition of merit not to keep outstanding students in school to bolster its
prestige. In the understanding of that university scholarships award is a
business scheme designed to increase the business potential of an education
institution. Thus conceived it is not only inconsistent with sound policy but
also good morals. But what is morals? Manresa has this definition. It is good
customs; those generally accepted principles of morality which have received
some kind of social and practical confirmation. The practice of awarding
scholarships to attract students and keep them in school is not good customs
nor has it received some kind of social and practical confirmation except in
some private institutions as in Arellano University. The University of the
Philippines which implements Section 5 of Article XIV of the Constitution with
reference to the giving of free scholarships to gifted children, does not require
scholars to reimburse the corresponding value of the scholarships if they
transfer to other schools. So also with the leading colleges and universities of
the United States after which our educational practices or policies are
patterned. In these institutions scholarships are granted not to attract and to
keep brilliant students in school for their propaganda mine but to reward
merit or help gifted students in whom society has an established interest or a
first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one shall
be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87,
with interest thereon at the legal rate from September 1, 1954, date of the
institution of this case, as well as the costs, and dismissing defendant's
counterclaim. It is so ordered.
G.R. No. 162580

January 27, 2006

ELMAR
O.
PEREZ, Petitioner,
vs.
COURT OF APPEALS, Fifth Division, TRISTAN A. CATINDIG and LILY GOMEZCATINDIG, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari and prohibition under Rule 65 of the Rules of Court assails
the July 25, 2003 Decision1of the Court of Appeals in CA-G.R. SP No. 74456 which set
aside and declared as null and void the September 30, 2002 Order 2 of the Regional
Trial Court of Quezon City, Branch 84, granting petitioners motion for leave to file
intervention and admitting the Complaint-in-Intervention 3 in Civil Case No. Q-0144847; and its January 23, 2004 Resolution4 denying the motion for reconsideration.

303

Private respondent Tristan A. Catindig married Lily Gomez Catindig 5 twice on May
16, 1968. The first marriage ceremony was celebrated at the Central Methodist
Church at T.M. Kalaw Street, Ermita, Manila while the second took place at the
Lourdes Catholic Church in La Loma, Quezon City. The marriage produced four
children.
Several years later, the couple encountered marital problems that they decided to
separate from each other. Upon advice of a mutual friend, they decided to obtain a
divorce from the Dominican Republic. Thus, on April 27, 1984, Tristan and Lily
executed a Special Power of Attorney addressed to the Judge of the First Civil Court
of San Cristobal, Dominican Republic, appointing an attorney-in-fact to institute a
divorce action under its laws. 6
Thereafter, on April 30, 1984, the private respondents filed a joint petition for
dissolution of conjugal partnership with the Regional Trial Court of Makati. On June
12, 1984, the civil court in the Dominican Republic ratified the divorce by mutual
consent of Tristan and Lily. Subsequently, on June 23, 1984, the Regional Trial Court
of Makati City, Branch 133, ordered the complete separation of properties between
Tristan and Lily.
On July 14, 1984, Tristan married petitioner Elmar O. Perez in the State of Virginia in
the United States7 and both lived as husband and wife until October 2001. Their
union produced one offspring.8
During their cohabitation, petitioner learned that the divorce decree issued by the
court in the Dominican Republic which "dissolved" the marriage between Tristan and
Lily was not recognized in the Philippines and that her marriage to Tristan was
deemed void under Philippine law. When she confronted Tristan about this, the latter
assured her that he would legalize their union after he obtains an annulment of his
marriage with Lily. Tristan further promised the petitioner that he would adopt their
son so that he would be entitled to an equal share in his estate as that of each of his
children with Lily.9
On August 13, 2001, Tristan filed a petition for the declaration of nullity of his
marriage to Lily with the Regional Trial Court of Quezon City, docketed as Case No.
Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to File Intervention 10 claiming that
she has a legal interest in the matter in litigation because she knows certain
information which might aid the trial court at a truthful, fair and just adjudication of
the annulment case, which the trial court granted on September 30, 2002.
Petitioners complaint-in-intervention was also ordered admitted.

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Tristan filed a petition for certiorari and prohibition with the Court of Appeals
seeking to annul the order dated September 30, 2002 of the trial court. The Court of
Appeals granted the petition and declared as null and void the September 30, 2002
Order of the trial court granting the motion for leave to file intervention and
admitting the complaint-in-intervention.
Petitioners motion for reconsideration was denied, hence this petition for certiorari
and prohibition filed under Rule 65 of the Rules of Court. Petitioner contends that
the Court of Appeals gravely abused its discretion in disregarding her legal interest
in the annulment case between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved party from a decision of the Court of
Appeals is a petition for review on certiorari under Rule 45 of the Rules of Court.
However, if the error subject of the recourse is one of jurisdiction, or the act
complained of was granted by a court with grave abuse of discretion amounting to
lack or excess of jurisdiction, as alleged in this case, the proper remedy is a petition
for certiorari under Rule 65 of the said Rules. 11 This is based on the premise that in
issuing the assailed decision and resolution, the Court of Appeals acted with grave
abuse of discretion, amounting to excess of lack of jurisdiction and there is no plain,
speedy and adequate remedy in the ordinary course of law. A remedy is considered
plain, speedy, and adequate if it will promptly relieve the petitioner from the
injurious effect of the judgment and the acts of the lower court. 12
It is therefore incumbent upon the petitioner to establish that the Court of Appeals
acted with grave abuse of discretion amounting to excess or lack of jurisdiction
when it promulgated the assailed decision and resolution.
We have previously ruled that grave abuse of discretion may arise when a lower
court or tribunal violates or contravenes the Constitution, the law or existing
jurisprudence. By grave abuse of discretion is meant, such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion
must be grave as where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of law. 13 The word "capricious," usually
used in tandem with the term "arbitrary," conveys the notion of willful and
unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear
showing of caprice and arbitrariness in the exercise of discretion is imperative. 14
The Rules of Court laid down the parameters before a person, not a party to a case
can intervene, thus:

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Who may intervene. A person who has a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors rights may be fully protected in
a separate proceeding.15
The requirements for intervention are: [a] legal interest in the matter in litigation;
and [b] consideration must be given as to whether the adjudication of the original
parties may be delayed or prejudiced, or whether the intervenors rights may be
protected in a separate proceeding or not. 16
Legal interest, which entitles a person to intervene, must be in the matter in
litigation and of such direct and immediate character that the intervenor will either
gain or lose by direct legal operation and effect of the judgment. 17 Such interest
must be actual, direct and material, and not simply contingent and expectant. 18
Petitioner claims that her status as the wife and companion of Tristan for 17 years
vests her with the requisite legal interest required of a would-be intervenor under
the Rules of Court.
Petitioners claim lacks merit. Under the law, petitioner was never the legal wife of
Tristan, hence her claim of legal interest has no basis.
When petitioner and Tristan married on July 14, 1984, Tristan was still lawfully
married to Lily. The divorce decree that Tristan and Lily obtained from the
Dominican Republic never dissolved the marriage bond between them. It is basic
that laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad.19 Regardless of where a citizen of the Philippines might be, he or she will be
governed by Philippine laws with respect to his or her family rights and duties, or to
his or her status, condition and legal capacity. Hence, if a Filipino regardless of
whether he or she was married here or abroad, initiates a petition abroad to obtain
an absolute divorce from spouse and eventually becomes successful in getting an
absolute divorce decree, the Philippines will not recognize such absolute divorce. 20
When Tristan and Lily married on May 18, 1968, their marriage was governed by the
provisions of the Civil Code 21 which took effect on August 30, 1950. In the case
of Tenchavez v. Escano22 we held:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the
effectivity of the present Civil Code (Rep. Act No. 386), is not entitled to recognition
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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. (Emphasis added)
Thus, petitioners claim that she is the wife of Tristan even if their marriage was
celebrated abroad lacks merit. Thus, petitioner never acquired the legal interest as
a wife upon which her motion for intervention is based.
Since petitioners motion for leave to file intervention was bereft of the
indispensable requirement of legal interest, the issuance by the trial court of the
order granting the same and admitting the complaint-in-intervention was attended
with grave abuse of discretion. Consequently, the Court of Appeals correctly set
aside and declared as null and void the said order.
WHEREFORE, the petition is DISMISSED. The assailed Decision dated July 25, 2003
and Resolution dated January 23, 2004 of the Court of Appeals in CA-G.R. SP No.
74456 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
CONSUELO YNARE
G.R. No. 195432

August 27, 2014

EDELINA
T.
vs.
DEPARTMENT OF FOREIGN AFFAIRS, Respondent.

ANDO, Petitioner,

DECISION
SERENO, CJ:
This is a Petition for Review under Rule 45 of the Rules of Court, seeking the
nullification of the Orders dated 14 January and 8 February 2011 issued by the
Regional Trial Court (R TC), Third Judicial Region, Branch 45, 1 City of San Fernando,
Pampanga, in Civil Case No. 137, which dismissed the Petition for Declaratory Relief
filed therein.
STATEMENT OF THE FACTS AND OF THE CASE
The pertinent facts of the case, as alleged by petitioner, are as follows:

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3. On 16 September 2001, petitioner married Yuichiro Kobayashi, a Japanese

National, in a civil wedding solemnized at Candaba, Pampanga. A copy of
their Certificate of Marriage is hereto attached as Annex 'A' and made an
integral part hereof.
4. On 16 September 2004, Yuichiro Kobayashi sought in Japan, and was
validly granted under Japaneselaws, a divorce in respect of his marriage with
petitioner. A copy of the Divorce Certificate duly issued by the ConsulateGeneral of Japan and duly authenticated by the Department of Foreign
Affairs, Manila, is heretoas Annex B and made an integral part hereof. 5.
Said Divorce Certificate was duly registered with the Office of the Civil
Registry of Manila. A copy of the Certification dated 28 October 2005 is
hereto attached as Annex C and made an integral part hereof.
6. Believing in good faith that said divorce capacitated her to remarry and
that by such she reverted to her single status, petitioner married Masatomi Y.
Ando on 13 September 2005 in a civil wedding celebrated in Sta. Ana,
Pampanga. A copy of their Certificate of Marriage is hereto attached as Annex
D and made an integral part hereof.
7. In the meantime, Yuichiro Kobayashi married Ryo Miken on 27 December
2005. A copy of the JapaneseFamily Registry Record of Kobayashi showing the
divorce he obtained and his remarriage with Ryo Miken, duly authenticated by
the Consulate-General of Japan and the Department of Foreign Affairs, Manila,
is hereto attached as Annex E and made an integral part hereof.
8. Recently, petitioner applied for the renewal of her Philippine passport to
indicate her surname withher husband Masatomi Y. Ando but she was told at
the Department of Foreign Affairs that the same cannot be issued to her until
she can prove bycompetent court decision that her marriage with her said
husband Masatomi Y. Ando is valid until otherwise declared.
xxxx
12. Prescinding from the foregoing, petitioners marriage with her said
husband Masatomi Y. Ando musttherefore be honored, considered and
declared valid, until otherwise declared by a competent court. Consequently,
and until then, petitioner therefore is and must be declared entitled to the
issuance of a Philippine passport under the name Edelina Ando y Tungol.
Hence, this petitioner pursuant to Rule 63 of the Rules of Court. 2
On 29 October 2010, petitioner filed with the RTC a Petition for Declaratory Relief,
which was later raffled off to Branch 46. She impleaded the Department of Foreign

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Affairs (DFA) as respondent and prayed for the following reliefs before the lower
court:
WHEREFORE, petitioner most respectfully prays of this Honorable Court that after
proper proceedings, judgment be rendered, as follows:
(a) declaring as valid and subsisting the marriage between petitioner Edelina
T. Ando and her husband Masatomi Y. Ando until otherwise declared by a
competent court;
(b) declaring petitioner entitled to the issuance of a Philippine Passport under
the name "Edelina Ando y Tungol"; and
(c) directing the Department ofForeign Affairs to honor petitioners marriage
to her husband Masatomi Y. Ando and to issue a Philippine Passport to
petitioner under the name "Edelina Ando y Tungol".
Petitioner prays for such other just and equitable reliefs. 3
On 15 November 2010, in an Order dismissing the Petition for want of cause and
action, as well as jurisdiction, the RTC held thus:
Records of the case would reveal that prior to petitioners marriage to Masatomi Y.
Ando, herein petitioner was married to Yuichiro Kobayashi, a Japanese National, in
Candaba, Pampanga, on September 16, 2001, and that though a divorce was
obtained and granted in Japan, with respect to the their (sic) marriage, there is no
showing that petitioner herein complied with the requirements set forth in Art. 13 of
the Family Code that is obtaining a judicial recognition of the foreign decree of
absolute divorce in our country.
It is therefore evident, under the foregoing circumstances, that herein petitioner
does not have any causeof action and/or is entitled to the reliefs prayed for under
Rule 63 of the Rules of Court. In the same vein, though there is other adequate
remedy available to the petitioner, such remedy is however beyond the authority
and jurisdiction of this court to act upon and grant, as it isonly the family court
which is vested with such authority and jurisdiction. 4
On 3 December 2010, petitioner filed an Ex ParteMotion for Reconsideration of the
Order dated 15 November 2010. In anOrder dated 14 December 2010, the RTC
granted the motion in this wise:
WHEREFORE, considering that the allegations and reliefs prayed for by the
petitioner in her petition and the instant Motion for Reconsideration falls within the
jurisdiction of the Special Family Court of this jurisdiction and for the interest
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ofsubstantial justice, the Order of the Court dated November 15, 2010 is hereby
reconsidered.
Let the record of this case be therefore referred back to the Office of the Clerk of
Court for proper endorsement to the Family Court of this jurisdiction for
appropriateaction and/or disposition. 5 Thereafter, the case was raffled to Branch 45
of the RTC. On 14 January 2011, the trial court dismissed the Petition anew on the
ground that petitioner had no cause of action. The Order reads thus:
The petition specifically admits that the marriage she seeks to be declared as valid
is already her second marriage, a bigamous marriage under Article 35(4) of the
Family Codeconsidering that the first one, though allegedly terminated by virtue of
the divorce obtained by Kobayashi, was never recognized by a Philippine court,
hence, petitioner is considered as still married to Kobayashi. Accordingly, the
second marriage with Ando cannot be honored and considered asvalid at this time.
Petitioners allegation of Sec. 2 (a) of A.M. No. 02-11-10-SC is misplaced. The fact
that no judicial declaration of nullity of her marriage with Ando was rendered does
not make the same valid because such declaration under Article 40 ofthe Family
Code is applicable onlyin case of re-marriage. More importantly, the absence of a
judicial declaration of nullity of marriage is not even a requisite to make a marriage
valid.
In view of the foregoing, the dismissal of this case is imperative. 6
On 1 February 2011,petitioner filed an Ex ParteMotion for Reconsideration of the
Order dated 14 January 2011. The motion was denied by the RTC in open court on 8
February2011, considering that neither the Office of the Solicitor General (OSG) nor
respondent was furnished with copies of the motion.
On 24 March 2011, petitioner filed the instant Petition for Review, raising the sole
issue of whether or not the RTC erred in ruling that she had no cause of action.
Petitioner argues that under A.M. No. 02-11-10-SC, or the Rule on the Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, it is solely
the wife or the husband who can file a petition for the declaration of the absolute
nullity of a void marriage. Thus, as the state is not even allowed to filea direct
petition for the declaration of the absolute nullity of a void marriage,with even more
reason can it not collaterally attack the validity of a marriage, as in a petition for
declaratory relief. Further, petitioner alleges that under the law, a marriage even
one that is void or voidable shall be deemed valid until declared otherwise in a
judicial proceeding.

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Petitioner also argues that assuming a court judgment recognizing a judicial decree
of divorce is required under Article 13 of the Family Code, noncompliance therewith
is a mere irregularity in the issuance of a marriage license. Any irregularity in the
formal requisites of marriage, such as with respect to the marriage license, shall
notaffect the legality of the marriage. Petitioner further claims that all the requisites
for a petition for declaratory relief have been complied with.
With respect to the failure to furnish a copy of the Ex ParteMotion for
Reconsideration to the OSG and the DFA, petitioner avers that at the time of the
filing, the RTC had yet to issue a summons to respondent; thus, it had yet to acquire
jurisdiction over them.
Thereafter, the DFA, through the OSG, filed a Comment on the Petition. The latter
raised the following arguments: (1) the Petition was improperly verified, as the
juratin the Verification thereof only stated that the affiant had exhibited "her
currentand valid proof of identity," which proof was not properly indicated, however;
(2) prior judicial recognition by a Philippine court of a divorce decree obtained by
the alien spouse is required before a Filipino spouse can remarry and be entitled to
the legal effects of remarriage; (3) petitioner failed to show that she had first
exhausted all available administrative remedies, such as appealing to the Secretary
of the DFA under Republic Act No. (R.A.) 8239, or the Philippine Passport Act of
1996, before resorting to the special civil action of declaratory relief; and (4)
petitioners Motion for Reconsideration before the RTC was a mere scrap of paper
and did not toll the running of the period to appeal. Hence, the RTC Order dated 14
January 2011 is now final.
On 29 November 2011, petitioner filed her Reply to the Comment, addressing the
issues raised therein.
THE COURTS RULING
The Court finds the Petition to be without merit.
First, with respect to her prayer tocompel the DFA to issue her passport, petitioner
incorrectly filed a petition for declaratory relief before the RTC. She should have first
appealed before the Secretary of Foreign Affairs, since her ultimate entreaty was
toquestion the DFAs refusal to issue a passport to her under her second husbands
name.
Under the Implementing Rules and Regulations (IRR) of R.A. 8239, which was
adopted on 25 February 1997, the following are the additional documentary
requirements before a married woman may obtain a passport under the name of
her spouse:

311

SECTION 2. The issuance of passports to married, divorced or widowed women shall

be made inaccordance with the following provisions:
a) In case of a woman who is married and who decides to adopt the surname
of her husband pursuant to Art. 370 of Republic Act No. 386, she must
present the original or certifiedtrue copy of her marriage contract, and one
photocopy thereof.
In addition thereto, a Filipino who contracts marriage in the Philippines to a
foreigner, shall be required to present a Certificate of Attendance in a
Guidance and Counselling Seminar conducted by the CFO when applying for a
passport for the first time.
b) In case of annulment of marriage, the applicant must present a certified
true copy of her annotated Marriage Contract or Certificate of Registration
and the Court Order effecting the annulment.
c) In case of a woman who was divorced by her alien husband, she must
present a certified true copy of the Divorce Decree duly authenticated by the
Philippine Embassy or consular post which has jurisdiction over the place
where the divorce is obtained or by the concerned foreign diplomatic or
consular mission in the Philippines.
When the divorcee is a Filipino Muslim, she must present a certified true copy of the
Divorce Decree or a certified true copy of the Certificate of Divorce from the
Shariah Court or the OCRG. d) In the event that marriage is dissolved by the death
of the husband, the applicant must present the original or certified true copy of the
Death Certificate of the husband or the Declaration of Presumptive Death by a Civil
or Shariah Court, in which case the applicant may choose to continue to use her
husbands surname or resume the use of her maiden surname. From the above
provisions, it is clear that for petitioner to obtain a copy of her passport under her
married name, all she needed to present were the following: (1) the original or
certified true copyof her marriage contract and one photocopy thereof; (2) a
Certificate of Attendance in a Guidance and Counseling Seminar, if applicable; and
(3) a certified true copy of the Divorce Decree duly authenticated by the Philippine
Embassy or consular post that has jurisdiction over the place where the divorce is
obtained or by the concerned foreign diplomatic or consular mission in the
Philippines.
In this case, petitioner was allegedly told that she would not be issued a Philippine
passport under her second husbands name.1wphi1 Should her application for a
passport be denied, the remedies available to her are provided in Section 9 of R.A.
8239, which reads thus:

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Sec. 9. Appeal. Any person who feels aggrieved as a result of the application of
this Act of the implementing rules and regulations issued by the Secretary shall
have the right to appeal to the Secretary of Foreign Affairs from whose decision
judicial review may be had to the Courts in due course.
The IRR further provides in detail:
ARTICLE
Appeal

10

In the event that an application for a passport is denied, or an existing one

cancelled or restricted, the applicant or holder thereof shall have the right to appeal
in writing to the Secretary within fifteen (15) days from notice of denial, cancellation
or restriction.
Clearly, she should have filed anappeal with the Secretary of the DFA in the event of
the denial of her application for a passport, after having complied with the
provisions of R.A. 8239. Petitioners argument that her application "cannot be said
to havebeen either denied, cancelled or restricted by [the DFA ], so as to make her
an aggrieved party entitled to appeal",7 as instead she "was merely told"8 that her
passport cannot be issued, does not persuade. The law provides a direct recourse
for petitioner in the event of the denial of her application.
Second, with respect to her prayer for the recognition of her second marriage as
valid, petitioner should have filed, instead, a petition for the judicial recognition of
her foreign divorce from her first husband.
In Garcia v. Recio,9 we ruled that a divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided the decree is valid according to the national
law of the foreigner. The presentation solely of the divorce decree is insufficient;
both the divorce decree and the governing personal law of the alien spouse who
obtained the divorce must be proven. Because our courts do not take judicial notice
of foreign laws and judgment, our law on evidence requires that both the divorce
decree and the national law of the alien must be alleged and proven and like any
other fact.10
While it has been ruled that a petition for the authority to remarry filed before a trial
court actually constitutes a petition for declaratory relief, 11 we are still unable to
grant the prayer of petitioner. As held by the RTC, there appears to be insufficient
proof or evidence presented on record of both the national law of her first husband,
Kobayashi, and of the validity of the divorce decree under that national
law.12 Hence, any declaration as to the validity of the divorce can only be made
upon her complete submission of evidence proving the divorce decree and the
national law of her alien spouse, in an action instituted in the proper forum.
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WHEREFORE, the instant Petition is DENIED without prejudice to petitioner's

recourse to the proper remedies available.
SO ORDERED.
G.R. No. 171914

July 23, 2014

SOLEDAD
L.
LAVADIA, Petitioner,
vs.
HEIRS OF JUAN LUCES LUNA, represented by GREGORIO Z. LUNA and
EUGENIA ZABALLERO-LUNA,Respondents.
DECISION
BERSAMIN, J.:
Divorce between Filipinos is void and ineffectual under the nationality rule adopted
by Philippine law. Hence, any settlement of property between the parties of the first
marriage involving Filipinos submitted as an incident of a divorce obtained in a
foreign country lacks competent judicial approval, and cannot be enforceable
against the assets of the husband who contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty. Juan Luces Luna, appeals the
adverse decision promulgated on November 11, 2005, 1 whereby the Court of
Appeals (CA) affirmed with modification the decision rendered on August 27, 2001
by the Regional Trial Court (RTC), Branch 138, in Makati City. 2 The CA thereby denied
her right in the 25/100 pro indiviso share of the husband in a condominium unit, and
in the law books of the husband acquired during the second marriage.
Antecedents
The antecedent facts were summarized by the CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a name partner in the prestigious law
firm Sycip, Salazar, Luna, Manalo, Hernandez & Feliciano Law Offices at that time
when he was living with his first wife, herein intervenor-appellant Eugenia ZaballeroLuna (EUGENIA), whom he initially married ina civil ceremony conducted by the
Justice of the Peace of Paraaque, Rizal on September 10, 1947 and later
solemnized in a church ceremony at the Pro-Cathedral in San Miguel, Bulacan on
September 12, 1948. In ATTY. LUNAs marriage to EUGENIA, they begot seven (7)
children, namely: Regina Maria L. Nadal, Juan Luis Luna, Araceli Victoria L. Arellano,
Ana Maria L. Tabunda, Gregorio Macario Luna, Carolina Linda L. Tapia, and Cesar
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Antonio Luna. After almost two (2) decades of marriage, ATTY. LUNA and EUGENIA
eventually agreed to live apart from each other in February 1966 and agreed to
separation of property, to which end, they entered into a written agreement entitled
"AGREEMENT FOR SEPARATION AND PROPERTY SETTLEMENT" dated November 12,
1975, whereby they agreed to live separately and to dissolve and liquidate their
conjugal partnership of property.
On January 12, 1976, ATTY. LUNA obtained a divorce decree of his marriage with
EUGENIA from the Civil and Commercial Chamber of the First Circumscription of the
Court of First Instance of Sto. Domingo, Dominican Republic. Also in Sto.Domingo,
Dominican Republic, on the same date, ATTY. LUNA contracted another marriage,
this time with SOLEDAD. Thereafter, ATTY. LUNA and SOLEDAD returned to the
Philippines and lived together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new law firm named: Luna, Puruganan,
Sison and Ongkiko (LUPSICON) where ATTY. LUNA was the managing partner.
On February 14, 1978, LUPSICON through ATTY. LUNA purchased from Tandang Sora
Development Corporation the 6th Floor of Kalaw-Ledesma Condominium
Project(condominium unit) at Gamboa St., Makati City, consisting of 517.52 square
meters, for P1,449,056.00, to be paid on installment basis for 36months starting on
April 15, 1978. Said condominium unit was to be usedas law office of LUPSICON.
After full payment, the Deed of Absolute Sale over the condominium unit was
executed on July 15, 1983, and CCT No. 4779 was issued on August 10, 1983, which
was registered bearing the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (46/100); MARIO E. ONGKIKO,
married to Sonia P.G. Ongkiko (25/100); GREGORIO R. PURUGANAN, married to Paz
A. Puruganan (17/100); and TERESITA CRUZ SISON, married to Antonio J.M. Sison
(12/100) x x x" Subsequently, 8/100 share of ATTY. LUNA and 17/100 share of Atty.
Gregorio R. Puruganan in the condominium unit was sold to Atty. Mario E. Ongkiko,
for which a new CCT No. 21761 was issued on February 7, 1992 in the following
names:
"JUAN LUCES LUNA, married to Soledad L. Luna (38/100); MARIO E. ONGKIKO,
married to Sonia P.G. Ongkiko (50/100); TERESITA CRUZ SISON, married to Antonio
J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the condominium unit was
partitioned by the partners but the same was still registered in common under CCT
No. 21716. The parties stipulated that the interest of ATTY. LUNA over the
condominium unit would be 25/100 share. ATTY. LUNA thereafter established and
headed another law firm with Atty. Renato G. Dela Cruzand used a portion of the

315

office condominium unit as their office. The said law firm lasted until the death of
ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the condominium unit including the
lawbooks, office furniture and equipment found therein were taken over by Gregorio
Z. Luna, ATTY. LUNAs son of the first marriage. Gregorio Z. Luna thenleased out the
25/100 portion of the condominium unit belonging to his father to Atty. Renato G. De
la Cruz who established his own law firm named Renato G. De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the condominium unit as well as the
law books, office furniture and equipment became the subject of the complaint filed
by SOLEDAD against the heirs of ATTY. JUAN with the RTC of Makati City, Branch 138,
on September 10, 1999, docketed as Civil Case No. 99-1644. The complaint alleged
that the subject properties were acquired during the existence of the marriage
between ATTY. LUNA and SOLEDAD through their joint efforts that since they had no
children, SOLEDAD became co-owner of the said properties upon the death of ATTY.
LUNA to the extent of pro-indiviso share consisting of her share in the said
properties plus her share in the net estate of ATTY. LUNA which was bequeathed
to her in the latters last will and testament; and thatthe heirs of ATTY. LUNA through
Gregorio Z. Luna excluded SOLEDAD from her share in the subject properties. The
complaint prayed that SOLEDAD be declared the owner of the portion of the
subject properties;that the same be partitioned; that an accounting of the rentals on
the condominium unit pertaining to the share of SOLEDAD be conducted; that a
receiver be appointed to preserve ad administer the subject properties;and that the
heirs of ATTY. LUNA be ordered to pay attorneys feesand costs of the suit to
SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision after trial upon the
aforementioned facts,4 disposing thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium unit located at the
SIXTH FLOOR of the KALAW LEDESMA CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) SQUARE METERS is adjudged to have been acquired
by Juan Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under any other concept over the
condominium unit, hence the entry in Condominium Certificate of Title No.
21761 of the Registry of Deeds of Makati with respect to the civil status of

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Juan Luces Luna should be changed from "JUAN LUCES LUNA married to
Soledad L. Luna" to "JUAN LUCES LUNA married to Eugenia Zaballero Luna";
(c) Plaintiff is declared to be the owner of the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and Federal Supreme Court Reports
found in the condominium unit and defendants are ordered to deliver them to
the plaintiff as soon as appropriate arrangements have been madefor
transport and storage.
No pronouncement as to costs.
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following errors to the RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT THE CONDOMINIUM UNIT WAS
ACQUIRED THRU THE SOLE INDUSTRY OF ATTY. JUAN LUCES LUNA;
II. THE LOWER COURT ERRED IN RULING THAT PLAINTIFFAPPELLANT DID NOT
CONTRIBUTE MONEY FOR THE ACQUISITION OF THE CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING CREDENCE TO PORTIONS OF THE
TESTIMONY OF GREGORIO LUNA, WHO HAS NO ACTUAL KNOWLEDGE OF THE
ACQUISITION OF THE UNIT, BUT IGNORED OTHER PORTIONS OF HIS
TESTIMONY FAVORABLE TO THE PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING SIGNIFICANCE TO THE FACT
THAT THE CONJUGAL PARTNERSHIP BETWEEN LUNA AND INTERVENORAPPELLANT WAS ALREADY DISSOLVED AND LIQUIDATED PRIOR TO THE UNION
OF PLAINTIFF-APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE
ABSENCE OF THE DISPOSITION OF THE CONDOMINIUM UNIT IN THE
HOLOGRAPHIC WILL OF THE PLAINTIFF-APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE
FACTTHAT THE NAME OF PLAINTIFF-APPELLANT DID NOT APPEAR IN THE DEED
OF ABSOLUTE SALE EXECUTED BY TANDANG SORA DEVELOPMENT
CORPORATION OVER THE CONDOMINIUM UNIT;

317

VII. THE LOWER COURT ERRED IN RULING THAT NEITHER ARTICLE 148 OF THE
FAMILYCODE NOR ARTICLE 144 OF THE CIVIL CODE OF THE PHILIPPINES ARE
APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE OF ACTION
OF THE INTERVENOR-APPELLANT HAS BEEN BARRED BY PESCRIPTION AND
LACHES; and
IX. THE LOWER COURT ERRED IN NOT EXPUNGING/DISMISSING THE
INTERVENTION FOR FAILURE OF INTERVENOR-APPELLANT TO PAY FILING FEE. 7
In contrast, the respondents attributedthe following errors to the trial court, to wit:
I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN FOREIGN LAW
BOOKS IN THE LAW OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE USE OF
PLAINTIFFS MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT PLAINTIFF PROVED BY
PREPONDERANCE OF EVIDENCE (HER CLAIM OVER) THE SPECIFIED FOREIGN
LAW BOOKS FOUND IN ATTY. LUNAS LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT HOLDING THAT, ASSUMING PLAINTIFF
PAID FOR THE SAID FOREIGN LAW BOOKS, THE RIGHT TO RECOVER THEM
HAD PRESCRIBED AND BARRED BY LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its assailed modified decision, 9 holding
and ruling:
EUGENIA, the first wife, was the legitimate wife of ATTY. LUNA until the latters death
on July 12, 1997. The absolute divorce decree obtained by ATTY. LUNA inthe
Dominican Republic did not terminate his prior marriage with EUGENIA because
foreign divorce between Filipino citizens is not recognized in our jurisdiction. x x x 10
xxxx
WHEREFORE, premises considered, the assailed August 27, 2001 Decision of the
RTC of MakatiCity, Branch 138, is hereby MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium unit at the SIXTH
FLOOR of the KALAW LEDESMA CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) (sic) SQUARE METERS is hereby adjudged to
defendants-appellants, the heirs of Juan Luces Luna and Eugenia ZaballeroLuna (first marriage), having been acquired from the sole funds and sole
318

industry of Juan Luces Luna while marriage of Juan Luces Luna and Eugenia
Zaballero-Luna (first marriage) was still subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as owner or under any
other concept over the condominium unit, hence the entry in Condominium
Certificate of Title No. 21761 of the Registry of Deeds ofMakati with respect to
the civil status of Juan Luces Luna should be changed from "JUAN LUCES LUNA
married to Soledad L. Luna" to "JUAN LUCES LUNA married to Eugenia
Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces Luna and Eugenia
Zaballero-Luna(first marriage) are hereby declared to be the owner of the
books Corpus Juris, Fletcher on Corporation, American Jurisprudence and
Federal Supreme Court Reports found in the condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the petitioners motion for reconsideration. 13
Issues
In this appeal, the petitioner avers in her petition for review on certiorarithat:
A. The Honorable Court of Appeals erred in ruling that the Agreement for
Separation and Property Settlement executed by Luna and Respondent
Eugenia was unenforceable; hence, their conjugal partnership was not
dissolved and liquidated;
B. The Honorable Court of Appeals erred in not recognizing the Dominican
Republic courts approval of the Agreement;
C. The Honorable Court of Appeals erred in ruling that Petitioner failed to
adduce sufficient proof of actual contribution to the acquisition of purchase of
the subjectcondominium unit; and
D. The Honorable Court of Appeals erred in ruling that Petitioner was not
entitled to the subject law books.14
The decisive question to be resolved is who among the contending parties should be
entitled to the 25/100 pro indivisoshare in the condominium unit; and to the law
books (i.e., Corpus Juris, Fletcher on Corporation, American Jurisprudence and
Federal Supreme Court Reports).
319

The resolution of the decisive question requires the Court to ascertain the law that
should determine, firstly, whether the divorce between Atty. Luna and Eugenia
Zaballero-Luna (Eugenia) had validly dissolved the first marriage; and, secondly,
whether the second marriage entered into by the late Atty. Luna and the petitioner
entitled the latter to any rights in property. Ruling of the Court
We affirm the modified decision of the CA.
1.
Atty.
Lunas
first
subsisted up to the time of his death

marriage

with

Eugenia

The first marriage between Atty. Luna and Eugenia, both Filipinos, was solemnized in
the Philippines on September 10, 1947. The law in force at the time of the
solemnization was the Spanish Civil Code, which adopted the nationality rule. The
Civil Codecontinued to follow the nationality rule, to the effect that Philippine laws
relating to family rights and duties, or to the status, condition and legal capacity of
persons were binding upon citizens of the Philippines, although living
abroad.15 Pursuant to the nationality rule, Philippine laws governed thiscase by
virtue of bothAtty. Luna and Eugenio having remained Filipinos until the death of
Atty. Luna on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on September 10, 1947 until
the present, absolute divorce between Filipino spouses has not been recognized in
the Philippines. The non-recognition of absolute divorce between Filipinos has
remained even under the Family Code, 16 even if either or both of the spouses are
residing abroad.17 Indeed, the only two types of defective marital unions under our
laws have beenthe void and the voidable marriages. As such, the remedies against
such defective marriages have been limited to the declaration of nullity ofthe
marriage and the annulment of the marriage.
It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo
in the Dominican Republic issued the Divorce Decree dissolving the first marriage of
Atty. Luna and Eugenia.18 Conformably with the nationality rule, however, the
divorce, even if voluntarily obtained abroad, did not dissolve the marriage between
Atty. Luna and Eugenia, which subsisted up to the time of his death on July 12,
1997. This finding conforms to the Constitution, which characterizes marriage as an
inviolable social institution,19 and regards it as a special contract of permanent
union between a man and a woman for the establishment of a conjugal and family
life.20 The non-recognition of absolute divorce in the Philippines is a manifestation of
the respect for the sanctity of the marital union especially among Filipino citizens. It
affirms that the extinguishment of a valid marriage must be grounded only upon the
death of either spouse, or upon a ground expressly provided bylaw. For as long as
this public policy on marriage between Filipinos exists, no divorce decree dissolving

320

the marriage between them can ever be given legal or judicial recognition and
enforcement in this jurisdiction.
2.
The
Agreement
for
was void for lack of court approval

Separation

and

Property

Settlement

The petitioner insists that the Agreement for Separation and Property Settlement
(Agreement) that the late Atty. Luna and Eugenia had entered into and executed in
connection with the divorce proceedings before the CFI of Sto. Domingo in the
Dominican Republic to dissolve and liquidate their conjugal partnership was
enforceable against Eugenia. Hence, the CA committed reversible error in decreeing
otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not entered into any marriage
settlement prior to their marriage on September 10, 1947, the system of relative
community or conjugal partnership of gains governed their property relations. This
is because the Spanish Civil Code, the law then in force at the time of their
marriage, did not specify the property regime of the spouses in the event that they
had not entered into any marriage settlement before or at the time of the marriage.
Article 119 of the Civil Codeclearly so provides, to wit:
Article 119. The future spouses may in the marriage settlements agree upon
absolute or relative community of property, or upon complete separation of
property, or upon any other regime. In the absence of marriage settlements, or
when the same are void, the system of relative community or conjugal partnership
of gains as established in this Code, shall govern the property relations between
husband and wife.
Article 142 of the Civil Codehas defined a conjugal partnership of gains thusly:
Article 142. By means of the conjugal partnership of gains the husband and wife
place in a common fund the fruits of their separate property and the income from
their work or industry, and divide equally, upon the dissolution of the marriage or of
the partnership, the net gains or benefits obtained indiscriminately by either spouse
during the marriage.
The conjugal partnership of gains subsists until terminated for any of various causes
of termination enumerated in Article 175 of the Civil Code, viz:
Article 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
321

(2) When there is a decree of legal separation;

(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191.
The mere execution of the Agreement by Atty. Luna and Eugenia did not per
sedissolve and liquidate their conjugal partnership of gains. The approval of the
Agreement by a competent court was still required under Article 190 and Article 191
of the Civil Code, as follows:
Article 190. In the absence of an express declaration in the marriage settlements,
the separation of property between spouses during the marriage shall not take
place save in virtue of a judicial order. (1432a)
Article 191. The husband or the wife may ask for the separation of property, and it
shall be decreed when the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction, or has been declared absent, or when legal
separation has been granted.
xxxx
The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the creditors of the
husband and of the wife, as well as of the conjugal partnership shall be notified of
any petition for judicialapproval or the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear atthe hearing to safeguard his
interests. Upon approval of the petition for dissolution of the conjugal partnership,
the court shall take such measures as may protect the creditors and other third
persons.
After dissolution of the conjugal partnership, the provisions of articles 214 and 215
shall apply. The provisions of this Code concerning the effect of partition stated in
articles 498 to 501 shall be applicable. (1433a)
But was not the approval of the Agreement by the CFI of Sto. Domingo in the
Dominican Republic sufficient in dissolving and liquidating the conjugal partnership
of gains between the late Atty. Luna and Eugenia?
The query is answered in the negative. There is no question that the approval took
place only as an incident ofthe action for divorce instituted by Atty. Luna and
Eugenia, for, indeed, the justifications for their execution of the Agreement were
identical to the grounds raised in the action for divorce. 21 With the divorce not being
itself valid and enforceable under Philippine law for being contrary to Philippine
322

public policy and public law, the approval of the Agreement was not also legally
valid and enforceable under Philippine law. Consequently, the conjugal partnership
of gains of Atty. Luna and Eugenia subsisted in the lifetime of their marriage.
3.
Atty.
Lunas
marriage
with
was
void;
properties
acquired
were governed by the rules on co-ownership

Soledad,
during

being
their

bigamous,
marriage

What law governed the property relations of the second marriage between Atty.
Luna and Soledad?
The CA expressly declared that Atty. Lunas subsequent marriage to Soledad on
January 12, 1976 was void for being bigamous, 22 on the ground that the marriage
between Atty. Luna and Eugenia had not been dissolved by the Divorce Decree
rendered by the CFI of Sto. Domingo in the Dominican Republic but had subsisted
until the death of Atty. Luna on July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous, polygamous, or incestuous are
void. Article 71 of the Civil Codeclearly states:
Article 71. All marriages performed outside the Philippines in accordance with the
laws in force in the country where they were performed, and valid there as such,
shall also be valid in this country, except bigamous, polygamous, or incestuous
marriages as determined by Philippine law.
Bigamy is an illegal marriage committed by contracting a second or subsequent
marriage before the first marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in
the proper proceedings.23 A bigamous marriage is considered void ab initio. 24
Due to the second marriage between Atty. Luna and the petitioner being void ab
initioby virtue of its being bigamous, the properties acquired during the bigamous
marriage were governed by the rules on co-ownership, conformably with Article 144
of the Civil Code, viz:
Article 144. When a man and a woman live together as husband and wife, but they
are not married, ortheir marriage is void from the beginning, the property acquired
by eitheror both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership carried the burden of proof to
confirm such fact.1wphi1 To establish co-ownership, therefore, it became
323

imperative for the petitioner to offer proof of her actual contributions in the
acquisition of property. Her mere allegation of co-ownership, without sufficient and
competent evidence, would warrant no relief in her favor. As the Court explained in
Saguid v. Court of Appeals:25
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue
of co-ownership ofproperties acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof of actual contribution in
the acquisition of the property is essential. The claim of co-ownership of the
petitioners therein who were parties to the bigamous and adulterousunion is without
basis because they failed to substantiate their allegation that they contributed
money in the purchase of the disputed properties. Also in Adriano v. Court of
Appeals, we ruled that the fact that the controverted property was titled in the
name of the parties to an adulterous relationship is not sufficient proof of
coownership absent evidence of actual contribution in the acquisition of the
property.
As in other civil cases, the burden of proof rests upon the party who, as determined
by the pleadings or the nature of the case, asserts an affirmative issue. Contentions
must be proved by competent evidence and reliance must be had on the strength of
the partys own evidence and not upon the weakness of the opponents defense.
This applies with more vigor where, as in the instant case, the plaintiff was allowed
to present evidence ex parte.1wphi1 The plaintiff is not automatically entitled to
the relief prayed for. The law gives the defendantsome measure of protection as the
plaintiff must still prove the allegations in the complaint. Favorable relief can be
granted only after the court isconvinced that the facts proven by the plaintiff
warrant such relief. Indeed, the party alleging a fact has the burden of proving it and
a mereallegation is not evidence.26
The petitioner asserts herein that she sufficiently proved her actual contributions in
the purchase of the condominium unit in the aggregate amount of at
least P306,572.00, consisting in direct contributions ofP159,072.00, and in repaying
the loans Atty. Luna had obtained from Premex Financing and Banco Filipino
totaling P146,825.30;27 and that such aggregate contributions of P306,572.00
corresponded to almost the entire share of Atty. Luna in the purchase of the
condominium unit amounting to P362,264.00 of the units purchase price
of P1,449,056.00.28 The petitioner further asserts that the lawbooks were paid for
solely out of her personal funds, proof of which Atty. Luna had even sent her a
"thank you" note;29 that she had the financial capacity to make the contributions
and purchases; and that Atty. Luna could not acquire the properties on his own due
to the meagerness of the income derived from his law practice.
Did the petitioner discharge her burden of proof on the co-ownership?

324

In resolving the question, the CA entirely debunked the petitioners assertions on

her actual contributions through the following findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of evidence that her own
independent funds were used to buy the law office condominium and the law books
subject matter in contentionin this case proof that was required for Article 144 of
the New Civil Code and Article 148 of the Family Code to apply as to cases where
properties were acquired by a man and a woman living together as husband and
wife but not married, or under a marriage which was void ab initio. Under Article
144 of the New Civil Code, the rules on co-ownership would govern. But this was not
readily applicable to many situations and thus it created a void at first because it
applied only if the parties were not in any way incapacitated or were without
impediment to marry each other (for it would be absurd to create a co-ownership
where there still exists a prior conjugal partnership or absolute community between
the man and his lawful wife). This void was filled upon adoption of the Family Code.
Article 148 provided that: only the property acquired by both of the parties through
their actual joint contribution of money, property or industry shall be owned in
common and in proportion to their respective contributions. Such contributions and
corresponding shares were prima faciepresumed to be equal. However, for this
presumption to arise, proof of actual contribution was required. The same rule and
presumption was to apply to joint deposits of money and evidence of credit. If one
of the parties was validly married to another, his or her share in the co-ownership
accrued to the absolute community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith was not validly married to another, his
or her share shall be forfeited in the manner provided in the last paragraph of the
Article 147. The rules on forfeiture applied even if both parties were in bad faith. Coownership was the exception while conjugal partnership of gains was the strict rule
whereby marriage was an inviolable social institution and divorce decrees are not
recognized in the Philippines, as was held by the Supreme Court in the case of
Tenchavez vs. Escao, G.R. No. L-19671, November 29, 1965, 15 SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in the condominium unit, SOLEDAD
failed to prove that she made an actual contribution to purchase the said property.
She failed to establish that the four (4) checks that she presented were indeed used
for the acquisition of the share of ATTY. LUNA in the condominium unit. This was
aptly explained in the Decision of the trial court, viz.:
"x x x The first check, Exhibit "M" for P55,000.00 payable to Atty. Teresita Cruz Sison
was issued on January 27, 1977, which was thirteen (13) months before the
Memorandum of Agreement, Exhibit "7" was signed. Another check issued on April
29, 1978 in the amount of P97,588.89, Exhibit "P" was payable to Banco Filipino.
According to the plaintiff, thiswas in payment of the loan of Atty. Luna. The third
325

check which was for P49,236.00 payable to PREMEX was dated May 19, 1979, also
for payment of the loan of Atty. Luna. The fourth check, Exhibit "M", forP4,072.00
was dated December 17, 1980. None of the foregoing prove that the amounts
delivered by plaintiff to the payees were for the acquisition of the subject
condominium unit. The connection was simply not established. x x x"
SOLEDADs claim that she made a cash contribution of P100,000.00 is
unsubstantiated. Clearly, there is no basis for SOLEDADs claim of co-ownership
over the 25/100 portion of the condominium unit and the trial court correctly found
that the same was acquired through the sole industry of ATTY. LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9", covering the condominium unit was in the
name of Atty. Luna, together with his partners in the law firm. The name of the
plaintiff does not appear as vendee or as the spouse of Atty. Luna. The same was
acquired for the use of the Law firm of Atty. Luna. The loans from Allied Banking
Corporation and Far East Bank and Trust Company were loans of Atty. Luna and his
partners and plaintiff does not have evidence to show that she paid for them fully or
partially. x x x"
The fact that CCT No. 4779 and subsequently, CCT No. 21761 were in the name of
"JUAN LUCES LUNA, married to Soledad L. Luna" was no proof that SOLEDAD was a
co-owner of the condominium unit. Acquisition of title and registration thereof are
two different acts. It is well settled that registration does not confer title but merely
confirms one already existing. The phrase "married to" preceding "Soledad L. Luna"
is merely descriptive of the civil status of ATTY. LUNA.
SOLEDAD, the second wife, was not even a lawyer. So it is but logical that SOLEDAD
had no participation in the law firm or in the purchase of books for the law firm.
SOLEDAD failed to prove that she had anything to contribute and that she actually
purchased or paid for the law office amortization and for the law books. It is more
logical to presume that it was ATTY. LUNA who bought the law office space and the
law books from his earnings from his practice of law rather than embarrassingly beg
or ask from SOLEDAD money for use of the law firm that he headed. 30
The Court upholds the foregoing findings and conclusions by the CA both because
they were substantiated by the records and because we have not been shown any
reason to revisit and undo them. Indeed, the petitioner, as the party claiming the
co-ownership, did not discharge her burden of proof. Her mere allegations on her
contributions, not being evidence,31 did not serve the purpose. In contrast, given the
subsistence of the first marriage between Atty. Luna and Eugenia, the presumption
that Atty. Luna acquired the properties out of his own personal funds and effort
remained. It should then be justly concluded that the properties in litislegally
pertained to their conjugal partnership of gains as of the time of his death.
Consequently, the sole ownership of the 25/100 pro indivisoshare of Atty. Luna in
326

the condominium unit, and of the lawbooks pertained to the respondents as the
lawful heirs of Atty. Luna.
WHEREFORE, the Court AFFIRMS the decision promulgated on November 11, 2005;
and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
G.R. No. L-16749

January 31, 1963

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
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

heir-appellees.

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. Christensen. The will was executed in Manila on March 5, 1951
and contains the following provisions:
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

327

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. L-11483-84 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.

328

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.
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.
329

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.
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
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.)
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
330

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 mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
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.
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
331

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

332

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-go-round, but those who have
accepted the renvoitheory 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 choice-of-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.
333

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 socalled 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-oflaws 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)

334

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

xxx

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:
(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.
(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 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.
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
335

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.
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 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
336

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.
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..
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.
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., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
337

Quijano
and
Arroyo
for
heirs-appellees
W.
J.
R.
Balonkita
for
appellee
People's
Bank
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

S.
&

Bellis,
Trust

et
al.
Company.

BENGZON, J.P., J.:

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
The facts of the case are as follows:
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.
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
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 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 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.

338

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.
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. 3 Appellants' 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
339

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,
340

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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitionerappellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross,
Lawrence
and
Camus and Delgado for appellee.

Selph

for

appellant.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this
case.

341

The judicial administrator of this estate filed a scheme of partition. Andre Brimo,
one of the brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order approving
the partition; (4) the approval of the purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of said business; and (5) the
declaration that the Turkish laws are impertinent to this cause, and the failure not to
postpone the approval of the scheme of partition and the delivery of the deceased's
business to Pietro Lanza until the receipt of the depositions requested in reference
to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts
into effect the provisions of Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they are void as being in
violation or article 10 of the Civil Code which, among other things, provides the
following:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law of
the person whose succession is in question, whatever may be the nature of
the property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions
are not in accordance with the Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the matter, and in the absence of
evidence on such laws, they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on
this point; so much so that he assigns as an error of the court in not having deferred
the approval of the scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample opportunity to introduce
competent evidence, we find no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary dispositions in question
342

which, not being contrary to our laws in force, must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the
herein appellant as a legatee, inasmuch as he is one of the persons designated as
such in will, it must be taken into consideration that such exclusion is based on the
last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free
choice, nor by nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the Philippine
islands, requesting all of my relatives to respect this wish, otherwise, I annul
and cancel beforehand whatever disposition found in this will favorable to the
person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the
instituted legatees must respect the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to
comply with it, as the herein oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is prevented from receiving his
legacy.
The fact is, however, that the said condition is void, being contrary to law, for article
792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's
national law when, according to article 10 of the civil Code above quoted, such
national law of the testator is the one to govern his testamentary dispositions.

343

Said condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and
consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which
shall govern it, and to the condition imposed upon the legatees, is null and void,
being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary to the
testator's national law.
Therefore, the orders appealed from are modified and it is directed that the
distribution of this estate be made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and the scheme of partition
submitted by the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
So ordered.
G.R. No. L-2935

March 23, 1909

THE
GOVERNMENT
OF
THE
PHILIPPINE
vs.
GEORGE I. FRANK, defendant-appellant.
Bishop
and
O'Brien
Attorney-General Wilfley for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of September, 1905. The
defendant appealed. On the 12th day of October, 1905, the appellant filed his
printed bill of exceptions with the clerk of the Supreme Court. On the 5th day of
December, 1905, the appellant filed his brief with the clerk of the Supreme Court.
On the 19th day of January, 1906, the Attorney-General filed his brief in said cause.
Nothing further was done in said cause until on or about the 30th day of January,
1909, when the respective parties were requested by this court to prosecute the
appeal under the penalty of having the same dismissed for failure so to do;
whereupon the appellant, by petition, had the caused placed upon the calendar and
the same was heard on the 2d day of February, 1909.
The facts from the record appear to be as follows:

344

First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state
of Illinois, in the United States, the defendant, through a respective of the Insular
Government of the Philippine Islands, entered into a contract for a period of two
years with the plaintiff, by which the defendant was to receive a salary of 1,200
dollars per year as a stenographer in the service of the said plaintiff, and in addition
thereto was to be paid in advance the expenses incurred in traveling from the said
city of Chicago to Manila, and one-half salary during said period of travel.
Second. Said contract contained a provision that in case of a violation of its terms
on the part of the defendant, he should become liable to the plaintiff for the amount
expended by the Government by way of expenses incurred in traveling from
Chicago to Manila and one-half salary paid during such period.
Third. The defendant entered upon the performance of his contract upon the 30th
day of April, 1903, and was paid half-salary from that date until June 4, 1903, the
date of his arrival in the Philippine Islands.
Fourth. That on the 11th day of February, 1904, the defendant left the service of the
plaintiff and refused to make further compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the
Court of First Instance of the city of Manila to recover from the defendant the sum of
269.23 dollars, which amount the plaintiff claimed had been paid to the defendant
as expenses incurred in traveling from Chicago to Manila, and as half salary for the
period consumed in travel.
Sixth. It was expressly agreed between the parties to said contract that Laws No. 80
and No. 224 should constitute a part of said contract.
To the complaint of the plaintiff the defendant filed a general denial and a special
defense, alleging in his special defense that the Government of the Philippine
Islands had amended Laws No. 80 and No. 224 and had thereby materially altered
the said contract, and also that he was a minor at the time the contract was entered
into and was therefore not responsible under the law.
To the special defense of the defendant the plaintiff filed a demurrer, which
demurrer the court sustained.
Upon the issue thus presented, and after hearing the evidence adduced during the
trial of the cause, the lower court rendered a judgment against the defendant and in
favor of the plaintiff for the sum of 265.90 dollars. The lower court found that at the
time the defendant quit the service of the plaintiff there was due him from the said
plaintiff the sum of 3.33 dollars, leaving a balance due the plaintiff in the sum of

345

265.90 dollars. From this judgment the defendant appealed and made the following
assignments of error:
1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.
2. The court erred in rendering judgment against the defendant on the facts.
With reference to the above assignments of error, it may be said that the mere fact
that the legislative department of the Government of the Philippine Islands had
amended said Acts No. 80 and No. 224 by the Acts No. 643 and No. 1040 did not
have the effect of changing the terms of the contract made between the plaintiff
and the defendant. The legislative department of the Government is expressly
prohibited by section 5 of the Act of Congress of 1902 from altering or changing the
terms of the contract. The right which the defendant had acquired by virtue of Acts
No. 80 and No. 224 had not been changed in any respect by the fact that said laws
had been amended. These acts, constituting the terms of the contract, still
constituted a part of said contract and were enforceable in favor of the defendant.
The defendant alleged in his special defense that he was a minor and therefore the
contract could not be enforced against him. The record discloses that, at the time
the contract was entered into in the State of Illinois, he was an adult under the laws
of that State and had full authority to contract. The plaintiff [the defendant] claims
that, by reason of the fact that, under the laws of the Philippine Islands at the time
the contract was made, male persons in said Islands did not reach their majority
until they had attained the age of 23 years, he was not liable under said contract,
contending that the laws of the Philippine Islands governed. It is not disputed
upon the contrary the fact is admitted that at the time and place of the making of
the contract in question the defendant had full capacity to make the same. No rule
is better settled in law than that matters bearing upon the execution, interpretation
and validity of a contract are determined by the law of the place where the contract
is made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters connected with
its performance are regulated by the law prevailing at the place of performance.
Matters respecting a remedy, such as the bringing of suit, admissibility of evidence,
and statutes of limitations, depend upon the law of the place where the suit is
brought. (Idem.)
The defendant's claim that he was an adult when he left Chicago but was a minor
when he arrived at Manila; that he was an adult at the time he made the contract
but was a minor at the time the plaintiff attempted to enforce the contract, more
than a year later, is not tenable.
Our conclusions with reference to the first above assignment of error are, therefore:

346

First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms
of the contract in question; and
Second. The plaintiff [defendant] being fully qualified to enter into the contract at
the place and time the contract was made, he can not plead infancy as a defense at
the place where the contract is being enforced.
We believe that the above conclusions also dispose of the second assignment of
error.
For the reasons above stated, the judgment of the lower court is affirmed, with
costs.
Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.
G.R. No. 193707, December 10, 2014
NORMA A. DEL SOCORRO, FOR AND IN BEHALF OF HER MINOR CHILD
RODERIGO NORJO VAN WILSEM, Petitioner, v. ERNST JOHAN BRINKMAN VAN
WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Orders 1 dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of Cebu City (RTCCebu), which dismissed the criminal case entitled People of the Philippines v. Ernst
Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for
violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence
Against
Women
and
Their
Children
Act
of
2004.
The

following

facts

are

culled

from

the

records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990. 2 On January 19, 1994, they
were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the
filing
of
the
instant
petition
was
sixteen
(16)
years
of
age. 3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce
Decree issued by the appropriate Court of Holland. 4 At that time, their son was only
eighteen (18) months old.5Thereafter, petitioner and her son came home to the
Philippines.6
According to petitioner, respondent made a promise to provide monthly support to
their son in the amount of Two Hundred Fifty (250) Guildene (which is equivalent to
Php17,500.00 more or less).7 However, since the arrival of petitioner and her son in
347

the

Philippines,

respondent

never

gave

support

to

the

son,

Roderigo. 8

Not long thereafter, respondent came to the Philippines and remarried in

Pinamungahan, Cebu, and since then, have been residing thereat. 9 Respondent and
his new wife established a business known as Paree Catering, located at Barangay
Tajao, Municipality of Pinamungahan, Cebu City. 10 To date, all the parties, including
their
son,
Roderigo,
are
presently
living
in
Cebu
City. 11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter. 12
Because of the foregoing circumstances, petitioner filed a complaint-affidavit with
the Provincial Prosecutor of Cebu City against respondent for violation of Section 5,
paragraph E(2) of R.A. No. 9262 for the latters unjust refusal to support his minor
child with petitioner.13 Respondent submitted his counter-affidavit thereto, to which
petitioner also submitted her reply-affidavit. 14 Thereafter, the Provincial Prosecutor
of Cebu City issued a Resolution recommending the filing of an information for the
crime
charged
against
herein
respondent.
The information, which was filed with the RTC-Cebu and raffled to Branch 20
thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and deliberately deprive, refuse and still continue to deprive his son
RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial support
legally
due
him,
resulting
in
economic
abuse
to
the
victim.
CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure
Order against respondent.16 Consequently, respondent was arrested and,
subsequently,
posted
bail.17
Petitioner also filed a Motion/Application of Permanent Protection Order to which
respondent filed his Opposition. 18 Pending the resolution thereof, respondent was
arraigned.19
Subsequently, without the RTC-Cebu having resolved the application of the
protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of
jurisdiction over the offense charged; and (2) prescription of the crime charged. 20
On February 19, 2010, the RTC-Cebu issued the herein assailed Order, 21 dismissing
the instant criminal case against respondent on the ground that the facts charged in
the information do not constitute an offense with respect to the respondent who is
an alien, the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged in the information do not
constitute an offense with respect to the accused, he being an alien, and
348

accordingly,

orders

this

case

DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his
provisional
liberty
is
hereby
cancelled
(sic)
and
ordered
released.
SO ORDERED.
Cebu

City,

Philippines,

February

19,

2010. 22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating

respondents obligation to support their child under Article 195 23 of the Family Code,
thus, failure to do so makes him liable under R.A. No. 9262 which equally applies to
all persons in the Philippines who are obliged to support their minor children
regardless
of
the
obligors
nationality. 24
On September 1, 2010, the lower court issued an Order 25 denying petitioners
Motion for Reconsideration and reiterating its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash of those advanced
earlier in the memorandum of the prosecution. Thus, the court hereby reiterates its
ruling that since the accused is a foreign national he is not subject to our national
law (The Family Code) in regard to a parents duty and obligation to give support to
his child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged
failure to support his child. Unless it is conclusively established that R.A. 9262
applies to a foreigner who fails to give support to his child, notwithstanding that he
is not bound by our domestic law which mandates a parent to give such support, it
is the considered opinion of the court that no prima facie case exists against the
accused
herein,
hence,
the
case
should
be
dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.
SO ORDERED.
Cebu

City,

Philippines,

September

1,

2010. 26

Hence, the present Petition for Review on Certiorari raising the following issues:
1. Whether or not a foreign national has an obligation to support his minor child
under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under R.A. No.
9262 for his unjustified failure to support his minor child. 27
At the outset, let it be emphasized that We are taking cognizance of the instant
petition despite the fact that the same was directly lodged with the Supreme Court,
consistent with the ruling in Republic v. Sunvar Realty Development
Corporation,28 which lays down the instances when a ruling of the trial court may be
brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:
349

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45
Petition with this Court, in case only questions of law are raised or involved.
This latter situation was one that petitioners found themselves in when they filed
the
instant
Petition
to
raise
only
questions
of
law.
In Republic v. Malabanan, the Court clarified the three modes of appeal from
decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under
Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in
the exercise of its original jurisdiction; (2) by a petition for review under Rule 42,
whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court
under Rule 45. The first mode of appeal is taken to the [Court of Appeals] on
questions of fact or mixed questions of fact and law. The second mode of appeal is
brought to the CA on questions of fact, of law, or mixed questions of fact and
law. The third mode of appeal is elevated to the Supreme Court only on
questions
of
law.
(Emphasis
supplied)
There is a question of law when the issue does not call for an examination of the
probative value of the evidence presented or of the truth or falsehood of the facts
being admitted, and the doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must rest solely on what the
law provides on the given set of circumstances. 29
Indeed, the issues submitted to us for resolution involve questions of law the
response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e., whether or not a foreign national has an obligation to support
his minor child under Philippine law; and whether or not he can be held criminally
liable under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel question
of law concerning the liability of a foreign national who allegedly commits acts and
omissions punishable under special criminal laws, specifically in relation to family
rights and duties. The inimitability of the factual milieu of the present case,
therefore, deserves a definitive ruling by this Court, which will eventually serve as a
guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of
the courts. Thus, in the present case, considerations of efficiency and economy in
the administration of justice should prevail over the observance of the hierarchy of
courts.
Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless,
we
do
not
fully
agree
with
petitioners
contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is
imperative
that
the
legal
obligation
to
support
exists.
Petitioner invokes Article 19530 of the Family Code, which provides the parents
obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family
Code,31 respondent is not excused from complying with his obligation to support his
350

minor

child

with

petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis
presented by petitioner that she, as well as her minor son, are entitled to financial
support.32 Respondent also added that by reason of the Divorce Decree, he is not
obligated
to
petitioner
for
any
financial
support. 33
On this point, we agree with respondent that petitioner cannot rely on Article
19534 of the New Civil Code in demanding support from respondent, who is a foreign
citizen, since Article 1535 of the New Civil Code stresses the principle of nationality.
In other words, insofar as Philippine laws are concerned, specifically the provisions
of the Family Code on support, the same only applies to Filipino citizens. By analogy,
the same principle applies to foreigners such that they are governed by their
national
law
with
respect
to
family
rights
and
duties. 36
The obligation to give support to a child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland or the Netherlands, we agree
with the RTC-Cebu that he is subject to the laws of his country, not to Philippine law,
as to whether he is obliged to give support to his child, as well as the consequences
of
his
failure
to
do
so.37
In the case of Vivo v. Cloribel,38 the Court held that
Furthermore, being still aliens, they are not in position to invoke the
provisions of the Civil Code of the Philippines, for that Code cleaves to the
principle that family rights and duties are governed by their personal law,
i.e., the laws of the nation to which they belong even when staying in a foreign
country (cf. Civil Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is not obliged to support
petitioners son under Article 195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioners son altogether.
In international law, the party who wants to have a foreign law applied to a dispute
or case has the burden of proving the foreign law. 40 In the present case, respondent
hastily concludes that being a national of the Netherlands, he is governed by such
laws on the matter of provision of and capacity to support. 41 While respondent
pleaded the laws of the Netherlands in advancing his position that he is not obliged
to
support
his
son,
he
never
proved
the
same.
It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their child
(either before, during or after the issuance of a divorce decree), because Llorente v.
Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved. 43

351

In view of respondents failure to prove the national law of the Netherlands in his
favor, the doctrine of processual presumption shall govern. Under this doctrine, if
the foreign law involved is not properly pleaded and proved, our courts will presume
that the foreign law is the same as our local or domestic or internal law. 44 Thus,
since the law of the Netherlands as regards the obligation to support has not been
properly pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their children and
penalizing
the
non-compliance
therewith.
Moreover, while in Pilapil v. Ibay-Somera',45 the Court held that a divorce obtained in
a foreign land as well as its legal effects may be recognized in the Philippines in
view of the nationality principle on the matter of status of persons, the Divorce
Covenant presented by respondent does not completely show that he is not liable to
give support to his son after the divorce decree was issued. Emphasis is placed on
petitioners allegation that under the second page of the aforesaid covenant,
respondents obligation to support his child is specifically stated, 46 which was not
disputed
by
respondent.
We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or that
such obligation is not punishable by law, said law would still not find applicability, in
light of the ruling in Bank of America, NT and SA v. American Realty
Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of
Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said
foreign
law
would
still
not
find
applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound
and established public policy of the forum, the said foreign law, judgment
or
order
shall
not
be
applied.
Additionally, 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.
The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
If two or more suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a ground for the
dismissal of the others.
Moreover, foreign law should not be applied when its application would
work undeniable injustice to the citizens or residents of the forum. To give
justice is the most important function of law; hence, a law, or judgment or contract
that is obviously unjust negates the fundamental principles of Conflict of Laws. 48
352

Applying the foregoing, even if the laws of the Netherlands neither enforce a
parents obligation to support his child nor penalize the non-compliance therewith,
such obligation is still duly enforceable in the Philippines because it would be of
great injustice to the child to be denied of financial support when the latter is
entitled
thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer liable
to support his former wife, in consonance with the ruling in San Luis v. San Luis,49 to
wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longer be considered married to the alien spouse. Further, she should not be
required
to
perform
her
marital
duties
and
obligations.
It
held:
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. (Emphasis added)50
Based on the foregoing legal precepts, we find that respondent may be made liable
under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give
support to petitioners son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of the
following acts:chanroblesvirtuallawlibrary
x
x
x
x
(e) Attempting to compel or compelling the woman or her child to engage in
conduct which the woman or her child has the right to desist from or desist from
conduct which the woman or her child has the right to engage in, or attempting to
restrict or restricting the woman's or her child's freedom of movement or conduct
by force or threat of force, physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or child. This shall include, but not
limited to, the following acts committed with the purpose or effect of controlling or
restricting
the
woman's
or
her
child's
movement
or
conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children of
financial support legally due her or her family , or deliberately providing the
woman's
children
insufficient
financial
support;
x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman
353

or her child, including, but not limited to, repeated verbal and emotional abuse,
anddenial of financial support or custody of minor children of access to the
woman's child/children.51
Under the aforesaid special law, the deprivation or denial of financial support to the
child is considered an act of violence against women and children.
In addition, considering that respondent is currently living in the Philippines, we find
strength in petitioners claim that the Territoriality Principle in criminal law, in
relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that:[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations. On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to support
his child with petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our courts have territorial
jurisdiction over the offense charged against respondent. It is likewise irrefutable
that jurisdiction over the respondent was acquired upon his arrest.
Finally, we do not agree with respondents argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in the
instant case, the criminal liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:
SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe
in ten (10) years.
The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262
is a continuing offense,53 which started in 1995 but is still ongoing at present.
Accordingly, the crime charged in the instant case has clearly not prescribed.
Given, however, that the issue on whether respondent has provided support to
petitioners child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby remand
the determination of this issue to the RTC-Cebu which has jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are
hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to
conduct
further
proceedings
based
on
the
merits
of
the
case.
SO ORDERED.
SOLEDAD CARPIO, petitioner, vs. LEONORA A. VALMONTE, respondent.
DECISION
TINGA, J.:
354

Assailed in the instant petition for review is the Decision of the Court of Appeals
in C.A.-G.R. CV No. 69537,[1] promulgated on 17 January 2002. [2] The appellate court
reversed the trial courts decision denying respondents claim for damages against
petitioner and ordered the latter to pay moral damages to the former in the amount
of P100,000.00.
Respondent Leonora Valmonte is a wedding coordinator. Michelle del Rosario
and Jon Sierra engaged her services for their church wedding on 10 October
1996. At about 4:30 p.m. on that day, Valmonte went to the Manila Hotel where the
bride and her family were billeted. When she arrived at Suite 326-A, several persons
were already there including the bride, the brides parents and relatives, the makeup artist and his assistant, the official photographers, and the fashion
designer. Among those present was petitioner Soledad Carpio, an aunt of the bride
who was preparing to dress up for the occasion.
After reporting to the bride, Valmonte went out of the suite carrying the items
needed for the wedding rites and the gifts from the principal sponsors. She
proceeded to the Maynila Restaurant where the reception was to be held. She paid
the suppliers, gave the meal allowance to the band, and went back to the
suite. Upon entering the suite, Valmonte noticed the people staring at her. It was at
this juncture that petitioner allegedly uttered the following words to Valmonte: Ikaw
lang ang lumabas ng kwarto, nasaan ang dala mong bag? Saan ka pumunta? Ikaw
lang and lumabas ng kwarto, ikaw ang kumuha. Petitioner then ordered one of the
ladies to search Valmontes bag. It turned out that after Valmonte left the room to
attend to her duties, petitioner discovered that the pieces of jewelry which she
placed inside the comfort room in a paper bag were lost. The jewelry pieces consist
of two (2) diamond rings, one (1) set of diamond earrings, bracelet and necklace
with a total value of about one million pesos. The hotel security was called in to help
in the search. The bags and personal belongings of all the people inside the room
were searched. Valmonte was allegedly bodily searched, interrogated and trailed by
a security guard throughout the evening. Later, police officers arrived and
interviewed all persons who had access to the suite and fingerprinted them
including Valmonte. During all the time Valmonte was being interrogated by the
police officers, petitioner kept on saying the words Siya lang ang lumabas ng
kwarto. Valmontes car which was parked at the hotel premises was also searched
but the search yielded nothing.
A few days after the incident, petitioner received a letter from Valmonte
demanding a formal letter of apology which she wanted to be circulated to the
newlyweds relatives and guests to redeem her smeared reputation as a result of
petitioners imputations against her. Petitioner did not respond to the letter. Thus, on
20 February 1997, Valmonte filed a suit for damages against her before the Regional
Trial Court (RTC) of Pasig City, Branch 268. In her complaint, Valmonte prayed that

355

petitioner be ordered to pay actual, moral and exemplary damages, as well as

attorneys fees.
Responding to the complaint, petitioner denied having uttered words or done
any act to confront or single out Valmonte during the investigation and claimed that
everything that transpired after the theft incident was purely a police matter in
which she had no participation. Petitioner prayed for the dismissal of the complaint
and for the court to adjudge Valmonte liable on her counterclaim.
The trial court rendered its Decision on 21 August 2000, dismissing Valmontes
complaint for damages. It ruled that when petitioner sought investigation for the
loss of her jewelry, she was merely exercising her right and if damage results from a
person exercising his legal right, it is damnum absque injuria. It added that no proof
was presented by Valmonte to show that petitioner acted maliciously and in bad
faith in pointing to her as the culprit. The court said that Valmonte failed to show
that she suffered serious anxiety, moral shock, social humiliation, or that her
reputation was besmirched due to petitioners wrongful act.
Respondent appealed to the Court of Appeals alleging that the trial court erred
in finding that petitioner did not slander her good name and reputation and in
disregarding the evidence she presented.
The Court of Appeals ruled differently. It opined that Valmonte has clearly
established that she was singled out by petitioner as the one responsible for the
loss of her jewelry. It cited the testimony of Serena Manding, corroborating
Valmontes claim that petitioner confronted her and uttered words to the effect that
she was the only one who went out of the room and that she was the one who took
the jewelry. The appellate court held that Valmontes claim for damages is not
predicated on the fact that she was subjected to body search and interrogation by
the police but rather petitioners act of publicly accusing her of taking the missing
jewelry. It categorized petitioners utterance defamatory considering that it imputed
upon Valmonte the crime of theft. The court concluded that petitioners verbal
assault upon Valmonte was done with malice and in bad faith since it was made in
the presence of many people without any solid proof except petitioners
suspicion. Such unfounded accusation entitles Valmonte to an award of moral
damages in the amount of P100,000.00 for she was publicly humiliated, deeply
insulted, and embarrassed. However, the court found no sufficient evidence to
justify the award of actual damages.
Hence, this petition.
Petitioner contends that the appellate courts conclusion that she publicly
humiliated respondent does not conform to the evidence presented. She adds that

356

even on the assumption that she uttered the words complained of, it was not shown
that she did so with malice and in bad faith.
In essence, petitioner would want this Court to review the factual conclusions
reached by the appellate court. The cardinal rule adhered to in this jurisdiction is
that a petition for review must raise only questions of law, [3] and judicial review
under Rule 45 does not extend to an evaluation of the sufficiency of evidence unless
there is a showing that the findings complained of are totally devoid of support in
the record or that they are so glaringly erroneous as to constitute serious abuse of
discretion.[4] This Court, while not a trier of facts, may review the evidence in order
to arrive at the correct factual conclusion based on the record especially so when
the findings of fact of the Court of Appeals are at variance with those of the trial
court, or when the inference drawn by the Court of Appeals from the facts is
manifestly mistaken.[5]
Contrary to the trial courts finding, we find sufficient evidence on record tending
to prove that petitioners imputations against respondent was made with malice and
in bad faith.
Petitioners testimony was shorn of substance and consists mainly of
denials. She claimed not to have uttered the words imputing the crime of theft to
respondent or to have mentioned the latters name to the authorities as the one
responsible for the loss of her jewelry. Well-settled is the rule that denials, if
unsubstantiated by clear and convincing evidence, are negative and self-serving
which merit no weight in law and cannot be given greater evidentiary value over the
testimony of credible witnesses who testify on affirmative matters. [6]
Respondent, however, has successfully refuted petitioners testimony. Quite
credibly, she has narrated in great detail her distressing experience on that fateful
day. She testified as to how rudely she was treated by petitioner right after she
returned to the room. Petitioner immediately confronted her and uttered the
words Ikaw lang ang lumabas ng kwarto. Nasaan ang dala mong bag?
Saan ka pumunta? Ikaw ang kumuha. Thereafter, her body was searched including
her bag and her car. Worse, during the reception, she was once more asked by the
hotel security to go to the ladies room and she was again bodily searched. [7]
Serea Manding, a make-up artist, corroborated respondents testimony. She
testified that petitioner confronted respondent in the presence of all the people
inside the suite accusing her of being the only one who went out of the comfort
room before the loss of the jewelry. Manding added that respondent was
embarrassed because everybody else in the room thought she was a thief. [8] If only
to debunk petitioners assertion that she did not utter the accusatory remarks in
question publicly and with malice, Mandings testimony on the point deserves to be
reproduced. Thus,
357

Q After that what did she do?

A Then Leo came out from the other room she said, she is (sic) the one I
only saw from the comfort room.
Q Now, what exact word (sic) were said by Mrs. Carpio on that matter?
A She said siya lang yung nakita kong galing sa C.R.
Q And who was Mrs. Carpio or the defendant referring to?
A Leo Valmonte.
Q Did she say anything else, the defendant?
A Her jewelry were lost and Leo was the only one she saw in the C.R. After
that she get (sic) the paper bag then the jewelry were already gone.
Q Did she confront the plaintiff Mrs. Valmonte regarding that fact?
A Yes.
Q What did the defendant Mrs. Carpio tell the plaintiff, Mrs. Valmonte?
A Ikaw yung nakita ko sa C.R. nawawala yung alahas ko.
Q When the defendant Mrs. Carpio said that to plaintiff Mrs. Valmonte were
there other people inside the room?
A Yes, sir.
Q Were they able to hear what Mrs. Carpio said to Mrs. Valmonte?
A Yes, sir.
Q What was your thinking at that time that Mrs. Carpio said that to Mrs.
Valmonte?
A Nakakahiya kasi akala ng iba doon na talagang magnanakaw siya. Kasi
marami na kaming nandodoon, dumating na yung couturier pati yung
video man and we sir.
Q Who was the person you [were] alleging na nakakahiya whose (sic) being
accused or being somebody who stole those item of jewelry?
358

A Nakakahiya para kay Leo kasi pinagbibintangan siya. Sa dami namin doon
siya yung napagbintangan.
Q And who is Leo, what is her full name?
A Leo Valmonte.
Q Did the defendant tell this matter to other people inside the room?
A Yes, the mother of the bride.
Q And who else did she talk to?
A The father of the bride also.
Q And what did the defendant tell the mother regarding this matter?
A Nawawala yung alahas ko. Sabi naman nung mother baka naman hindi mo
dala tignan mo munang mabuti.
Q Who was that other person that she talked to?
A Father of the bride.[9]
Significantly, petitioners counsel elected not to pursue her cross-examination of the
witness on this point following her terse and firm declaration that she remembered
petitioners exact defamatory words in answer to the counsels question. [10]
Jaime Papio, Security Supervisor at Manila Hotel, likewise contradicted
petitioners allegation that she did not suspect or mention the name of respondent
as her suspect in the loss of the jewelry. [11]
To warrant recovery of damages, there must be both a right of action, for a
wrong inflicted by the defendant, and the damage resulting therefrom to the
plaintiff. Wrong without damage, or damage without wrong, does not constitute a
cause of action.[12]
In the sphere of our law on human relations, the victim of a wrongful act or
omission, whether done willfully or negligently, is not left without any remedy or
recourse to obtain relief for the damage or injury he sustained. Incorporated into our
civil law are not only principles of equity but also universal moral precepts which are
designed to indicate certain norms that spring from the fountain of good conscience
and which are meant to serve as guides for human conduct. [13] First of these
fundamental precepts is the principle commonly known as abuse of rights under
359

Article 19 of the Civil Code. It provides that 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. To find the existence of an abuse of right, the
following elements must be present: (1) there is a legal right or duty; (2) which is
exercised in bad faith; (3) for the sole intent or prejudicing or injuring another.
[14]
When a right is exercised in a manner which discards these norms resulting in
damage to another, a legal wrong is committed for which the actor can be held
accountable.[15] One is not allowed to exercise his right in a manner which would
cause unnecessary prejudice to another or if he would thereby offend morals or
good customs. Thus, a person should be protected only when he acts in the
legitimate exercise of his right, that is when he acts with prudence and good faith;
but not when he acts with negligence or abuse. [16]
Complementing the principle of abuse of rights are the provisions of Articles 20
and 21 of the Civil Code which read, thus:
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals or good customs or public policy shall compensate the latter for
the damage.
The foregoing rules provide the legal bedrock for the award of damages to a
party who suffers damage whenever one commits an act in violation of some legal
provision, or an act which though not constituting a transgression of positive law,
nevertheless violates certain rudimentary rights of the party aggrieved.
In the case at bar, petitioners verbal reproach against respondent was certainly
uncalled for considering that by her own account nobody knew that she brought
such kind and amount of jewelry inside the paper bag. [17] This being the case, she
had no right to attack respondent with her innuendos which were not merely
inquisitive but outrightly accusatory. By openly accusing respondent as the only
person who went out of the room before the loss of the jewelry in the presence of all
the guests therein, and ordering that she be immediately bodily searched, petitioner
virtually branded respondent as the thief. True, petitioner had the right to ascertain
the identity of the malefactor, but to malign respondent without an iota of proof that
she was the one who actually stole the jewelry is an act which, by any standard or
principle of law is impermissible. Petitioner had willfully caused injury to respondent
in a manner which is contrary to morals and good customs. Her firmness and
resolve to find her missing jewelry cannot justify her acts toward respondent. She
did not act with justice and good faith for apparently, she had no other purpose in
mind but to prejudice respondent. Certainly, petitioner transgressed the provisions
of Article 19 in relation to Article 21 for which she should be held accountable.
360

Owing to the rule that great weight and even finality is given to factual
conclusions of the Court of Appeals which affirm those of the trial court, [18] we
sustain the findings of the trial court and the appellate court that respondents claim
for actual damages has not been substantiated with satisfactory evidence during
the trial and must therefore be denied. To be recoverable, actual damages must be
duly proved with reasonable degree of certainty and the courts cannot rely on
speculation, conjecture or guesswork.[19]
Respondent, however, is clearly entitled to an award of moral damages. Moral
damages may be awarded whenever the defendants wrongful act or omission is the
proximate cause of the plaintiffs physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury[20] in the cases specified or analogous to those provided in Article
2219 of the Civil Code.[21] Though no proof of pecuniary loss is necessary in order
that moral damages may be adjudicated, courts are mandated to take into account
all the circumstances obtaining in the case and assess damages according to their
discretion.[22] Worthy of note is that moral damages are not awarded to penalize the
defendant,[23] or to enrich a complainant, but to enable the latter to obtain means,
diversions or amusements that will serve to alleviate the moral suffering he has
undergone, by reason of defendants culpable action. In any case, award of moral
damages must be proportionate to the sufferings inflicted. [24]
Based on the foregoing jurisprudential pronouncements, we rule that the
appellate court did not err in awarding moral damages. Considering respondents
social standing, and the fact that her profession is based primarily on trust reposed
in her by her clients, the seriousness of the imputations made by petitioner has
greatly tarnished her reputation and will in one way or the other, affect her future
dealings with her clients, the award of P100,000.00 as moral damages appears to
be a fair and reasonable assessment of respondents damages.
WHEREFORE, the instant Petition is DENIED. Costs against petitioner.
SO ORDERED.
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO
REYES, a.k.a. AMAY BISAYA, respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden
(Hotel Nikko)[1] and Ruby Lim assail the Decision[2] of the Court of Appeals dated 26
November 2001 reversing the Decision [3] of the Regional Trial Court (RTC) of Quezon
361

City, Branch 104, as well as the Resolution[4] of the Court of Appeals dated 09 July
2002 which denied petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under
the human relations provisions of the New Civil Code. Plaintiff thereat (respondent
herein) Roberto Reyes, more popularly known by the screen name Amay Bisaya,
alleged that at around 6:00 oclock in the evening of 13 October 1994, while he was
having coffee at the lobby of Hotel Nikko, [5] he was spotted by his friend of several
years, Dr. Violeta Filart, who then approached him. [6] Mrs. Filart invited him to join
her in a party at the hotels penthouse in celebration of the natal day of the hotels
manager, Mr. Masakazu Tsuruoka.[7] Mr. Reyes asked if she could vouch for him for
which she replied: of course. [8] Mr. Reyes then went up with the party of Dr. Filart
carrying the basket of fruits which was the latters present for the celebrant. [9] At the
penthouse, they first had their picture taken with the celebrant after which Mr.
Reyes sat with the party of Dr. Filart. [10]After a couple of hours, when the buffet
dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great shock,
shame and embarrassment, he was stopped by petitioner herein, Ruby Lim, who
claimed to speak for Hotel Nikko as Executive Secretary thereof. [11] In a loud voice
and within the presence and hearing of the other guests who were making a queue
at the buffet table, Ruby Lim told him to leave the party (huwag ka nang kumain,
hindi ka imbitado, bumaba ka na lang).[12] Mr. Reyes tried to explain that he was
invited by Dr. Filart. [13] Dr. Filart, who was within hearing distance, however,
completely ignored him thus adding to his shame and humiliation. [14] Not long after,
while he was still recovering from the traumatic experience, a Makati policeman
approached and asked him to step out of the hotel. [15] Like a common criminal, he
was escorted out of the party by the policeman. [16] Claiming damages, Mr. Reyes
asked for One Million Pesos actual damages, One Million Pesos moral and/or
exemplary damages and Two Hundred Thousand Pesos attorneys fees. [17]
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but
not under the ignominious circumstance painted by the latter. Ms. Lim narrated that
she was the Hotels Executive Secretary for the past twenty (20) years. [18] One of her
functions included organizing the birthday party of the hotels former General
Manager, Mr. Tsuruoka.[19] The year 1994 was no different. For Mr. Tsuruokas party,
Ms. Lim generated an exclusive guest list and extended invitations accordingly.
[20]
The guest list was limited to approximately sixty (60) of Mr. Tsuruokas closest
friends and some hotel employees and that Mr. Reyes was not one of those invited.
[21]
At the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink.
[22]
Mindful of Mr. Tsuruokas wishes to keep the party intimate, Ms. Lim approached
Mr. Boy Miller, the captain waiter, to inquire as to the presence of Mr. Reyes who
was not invited.[23] Mr. Miller replied that he saw Mr. Reyes with the group of Dr.
Filart.[24] As Dr. Filart was engaged in conversation with another guest and as Ms.
Lim did not want to interrupt, she inquired instead from the sister of Dr. Filart, Ms.
Zenaida Fruto, who told her that Dr. Filart did not invite Mr. Reyes. [25] Ms. Lim then
362

requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not invited. [26] Mr.
Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that
Mr. Reyes did not want to leave. [27] When Ms. Lim turned around, she saw Mr. Reyes
conversing with a Captain Batung whom she later approached. [28] Believing that
Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the
same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the
party as he was not invited.[29] Still, Mr. Reyes lingered. When Ms. Lim spotted Mr.
Reyes by the buffet table, she decided to speak to him herself as there were no
other guests in the immediate vicinity.[30] However, as Mr. Reyes was already helping
himself to the food, she decided to wait. [31] When Mr. Reyes went to a corner and
started to eat, Ms. Lim approached him and said: alam ninyo, hindo ho kayo dapat
nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at
pagkatapos kung pwede lang po umalis na kayo.[32] She then turned around trusting
that Mr. Reyes would show enough decency to leave, but to her surprise, he began
screaming and making a big scene, and even threatened to dump food on her. [33]
Dr. Violeta Filart, the third defendant in the complaint before the lower court,
also gave her version of the story to the effect that she never invited Mr. Reyes to
the party.[34] According to her, it was Mr. Reyes who volunteered to carry the basket
of fruits intended for the celebrant as he was likewise going to take the elevator, not
to the penthouse but to Altitude 49.[35] When they reached the penthouse, she
reminded Mr. Reyes to go down as he was not properly dressed and was not invited.
[36]
All the while, she thought that Mr. Reyes already left the place, but she later saw
him at the bar talking to Col. Batung.[37] Then there was a commotion and she saw
Mr. Reyes shouting.[38] She ignored Mr. Reyes. [39] She was embarrassed and did not
want the celebrant to think that she invited him. [40]
After trial on the merits, the court a quo dismissed the complaint,[41] giving more
credence to the testimony of Ms. Lim that she was discreet in asking Mr. Reyes to
leave the party. The trial court likewise ratiocinated that Mr. Reyes assumed the risk
of being thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr.
Tsuruoka, the birthday celebrant. He assumed the risk of being asked to leave for
attending a party to which he was not invited by the host. Damages are pecuniary
consequences which the law imposes for the breach of some duty or the violation of
some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby
Lim because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436).
He knew that it was not the party of defendant Violeta Filart even if she allowed him
to join her and took responsibility for his attendance at the party. His action against
defendants Nikko Hotel and Ruby Lim must therefore fail. [42]

363

On appeal, the Court of Appeals reversed the ruling of the trial court as it found
more commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to
leave in a loud voice within hearing distance of several guests:
In putting appellant in a very embarrassing situation, telling him that he should not
finish his food and to leave the place within the hearing distance of other guests is
an act which is contrary to morals, good customs . . ., for which appellees should
compensate the appellant for the damage suffered by the latter as a consequence
therefore (Art. 21, New Civil Code). The liability arises from the acts which are in
themselves legal or not prohibited, but contrary to morals or good customs.
Conversely, even in the exercise of a formal right, [one] cannot with impunity
intentionally cause damage to another in a manner contrary to morals or good
customs.[43]
The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching
several people to inquire into the presence of Mr. Reyes exposed the latter to
ridicule and was uncalled for as she should have approached Dr. Filart first and both
of them should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee
Lim was to approach appellee Mrs. Filart and together they should have told
appellant Reyes in private that the latter should leave the party as the celebrant
only wanted close friends around. It is necessary that Mrs. Filart be the one to
approach appellant because it was she who invited appellant in that occasion. Were
it not for Mrs. Filarts invitation, appellant could not have suffered such humiliation.
For that, appellee Filart is equally liable.
...
The acts of [appellee] Lim are causes of action which are predicated upon mere
rudeness or lack of consideration of one person, which calls not only protection of
human dignity but respect of such dignity. Under Article 20 of the Civil Code, every
person who violates this duty becomes liable for damages, especially if said acts
were attended by malice or bad faith. Bad faith does not simply connote bad
judgment or simple negligence. It imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach of a known duty to some motive
or interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al.,
309 SCRA 603).[44]
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr.
Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary damages in the
amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the
amount of Two Hundred Thousand Pesos (P200,000); and (3) attorneys fees in the
amount of Ten Thousand Pesos (P10,000). [45] On motion for reconsideration, the
364

Court of Appeals affirmed its earlier decision as the argument raised in the motion
had been amply discussed and passed upon in the decision sought to be
reconsidered.[46]
Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the
Court of Appeals seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY
ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR.
FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA COULD NOT HAVE
SUFFERED SUCH HUMILIATION, WERE IT NOT FOR DR. FILARTS INVITATION
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS
POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS
PRESENTED IN THIS REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS BRIEF,
THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti
non fit injuria, they cannot be made liable for damages as respondent Reyes
assumed the risk of being asked to leave (and being embarrassed and humiliated in
the process) as he was a gate-crasher.
The doctrine of volenti non fit injuria (to which a person assents is not esteemed
in law as injury[47]) refers to self-inflicted injury [48] or to the consent to injury [49] which
precludes the recovery of damages by one who has knowingly and voluntarily
exposed himself to danger, even if he is not negligent in doing so. [50] As formulated
365

by petitioners, however, this doctrine does not find application to the case at bar
because even if respondent Reyes assumed the risk of being asked to leave the
party, petitioners, under Articles 19 and 21 of the New Civil Code, were still under
obligation to treat him fairly in order not to expose him to unnecessary ridicule and
shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking
Roberto Reyes, a.k.a. Amay Bisaya, to leave the party where he was not invited by
the celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil
Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as
her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable
conclusions concerning the same facts and evidence of the case, this Court is left
without choice but to use its latent power to review such findings of facts. Indeed,
the general rule is that we are not a trier of facts as our jurisdiction is limited to
reviewing and revising errors of law. [51] One of the exceptions to this general rule,
however, obtains herein as the findings of the Court of Appeals are contrary to
those of the trial court. [52] The lower court ruled that Ms. Lim did not abuse her right
to ask Mr. Reyes to leave the party as she talked to him politely and discreetly. The
appellate court, on the other hand, held that Ms. Lim is liable for damages as she
needlessly embarrassed Mr. Reyes by telling him not to finish his food and to leave
the place within hearing distance of the other guests. Both courts, however, were in
agreement that it was Dr. Filarts invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower courts
findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel, [53] for-invitationonly, thrown for the hotels former Manager, a Japanese national. Then came a
person who was clearly uninvited (by the celebrant) [54] and who could not just
disappear into the crowd as his face is known by many, being an actor. While he
was already spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was aware of his
presence. Ms. Lim, mindful of the celebrants instruction to keep the party intimate,
would naturally want to get rid of the gate-crasher in the most hush-hush manner in
order not to call attention to a glitch in an otherwise seamless affair and, in the
process, risk the displeasure of the celebrant, her former boss. To unnecessarily call
attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lims
ability to follow the instructions of the celebrant to invite only his close friends and
366

some of the hotels personnel. Mr. Reyes, upon whom the burden rests to prove that
indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any
satisfactory explanation why Ms. Lim would do that and risk ruining a formal and
intimate affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly
sealed his fate by admitting that when Ms. Lim talked to him, she was very close.
Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you
were at the buffet table? How close was she when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and she
shouted?
A: Yes. She said, wag kang kumain, hindi ka imbitado dito, bumaba ka na
lang.
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many. [55]
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes
and expose him to ridicule and shame, it is highly unlikely that she would shout at
him from a very close distance. Ms. Lim having been in the hotel business for
twenty years wherein being polite and discreet are virtues to be emulated, the
testimony of Mr. Reyes that she acted to the contrary does not inspire belief and is
indeed incredible. Thus, the lower court was correct in observing that
Considering the closeness of defendant Lim to plaintiff when the request for the
latter to leave the party was made such that they nearly kissed each other, the
request was meant to be heard by him only and there could have been no intention
on her part to cause embarrassment to him. It was plaintiffs reaction to the request
that must have made the other guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to
take him out.[56]
Moreover, another problem with Mr. Reyess version of the story is that it is
unsupported. It is a basic rule in civil cases that he who alleges proves. Mr. Reyes,
however, had not presented any witness to back his story up. All his witnesses

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Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr.
Filart who invited him to the party. [57]
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to
which he was not invited, cannot be made liable to pay for damages under Articles
19 and 21 of the Civil Code. Necessarily, neither can her employer, Hotel Nikko, be
held liable as its liability springs from that of its employee. [58]
Article 19, known to contain what is commonly referred to as the principle of
abuse of rights,[59] is not a panacea for all human hurts and social grievances. Article
19 states:
Art. 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good
faith.
Elsewhere, we explained that 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 responsible.
[60]
The object of this article, therefore, is to set certain standards which must be
observed not only in the exercise of ones rights but also in the performance of ones
duties.[61] These standards are the following: act with justice, give everyone his due
and observe honesty and good faith.[62] Its antithesis, necessarily, is any act
evincing bad faith or intent to injure. Its elements are the following: (1) There is a
legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another. [63] When Article 19 is violated, an action for damages
is proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages
arising from a violation of law [64] which does not obtain herein as Ms. Lim was
perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand,
states:
Art. 21. Any person who willfully 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.
Article 21[65] refers to acts contra bonus mores and has the following elements: (1)
There is an act which is legal; (2) but which is contrary to morals, good custom,
public order, or public policy; and (3) it is done with intent to injure.[66]
A common theme runs through Articles 19 and 21, [67] and that is, the act
complained of must be intentional.[68]
As applied to herein case and as earlier discussed, Mr. Reyes has not shown that
Ms. Lim was driven by animosity against him. These two people did not know each
368

other personally before the evening of 13 October 1994, thus, Mr. Reyes had
nothing to offer for an explanation for Ms. Lims alleged abusive conduct except the
statement that Ms. Lim, being single at 44 years old, had a very strong bias and
prejudice against (Mr. Reyes) possibly influenced by her associates in her work at
the hotel with foreign businessmen. [69] The lameness of this argument need not be
belabored. Suffice it to say that a complaint based on Articles 19 and 21 of the Civil
Code must necessarily fail if it has nothing to recommend it but innuendos and
conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was
likewise acceptable and humane under the circumstances. In this regard, we cannot
put our imprimatur on the appellate courts declaration that Ms. Lims act of
personally approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed
she invited Mr. Reyes) gave rise to a cause of action predicated upon mere rudeness
or lack of consideration of one person, which calls not only protection of human
dignity but respect of such dignity. [70] Without proof of any ill-motive on her part, Ms.
Lims act of by-passing Mrs. Filart cannot amount to abusive conduct especially
because she did inquire from Mrs. Filarts companion who told her that Mrs. Filart did
not invite Mr. Reyes.[71] If at all, Ms. Lim is guilty only of bad judgment which, if done
with good intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim
and Hotel Nikko be made answerable for exemplary damages [72] especially for the
reason stated by the Court of Appeals. The Court of Appeals held
Not a few of the rich people treat the poor with contempt because of the latters
lowly station in life. This has to be limited somewhere. In a democracy, such a limit
must be established. Social equality is not sought by the legal provisions under
consideration, but due regard for decency and propriety (Code Commission, pp. 3334). And by way of example or correction for public good and to avert further
commission of such acts, exemplary damages should be imposed upon appellees. [73]
The fundamental fallacy in the above-quoted findings is that it runs counter with the
very facts of the case and the evidence on hand. It is not disputed that at the time
of the incident in question, Mr. Reyes was an actor of long standing; a co-host of a
radio program over DZRH; a Board Member of the Music Singer Composer (MUSICO)
chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime
Watch; and 1992 official candidate of the KBL Party for Governor of Bohol; and an
awardee of a number of humanitarian organizations of the Philippines. [74] During his
direct examination on rebuttal, Mr. Reyes stressed that he had income [75] and
nowhere did he say otherwise. On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim.
Consequently, the conclusion reached by the appellate court cannot withstand
scrutiny as it is without basis.
369

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage
which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate right
done within the bounds of propriety and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko
Hotel Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26
November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104,
dated 26 April 1999 is hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. 160689

March 26, 2014

RAUL
H.
SESBREO, Petitioner,
vs.
HONORABLE COURT OF APPEALS, JUAN I. COROMINA (SUBSTITUTED BY
ANITA COROMINA, ELIZABETH COROMINA and ROSIEMARIE COROMINA),
VICENTE E. GARCIA (SUBSTITUTED BY EDGAR JOHN GARCIA), FELIPE
CONSTANTINO, RONALD ARCILLA, NORBETO ABELLANA, DEMETRIO
BALICHA, ANGELITA LHUILLIER, JOSE E. GARCIA, AND VISA YAN ELECTRIC
COMPANY (VECO), Respondents.
DECISION
BERSAMIN, J.:
This case concerns the claim for damages of petitioner Raul H. Sesbreo founded on
abuse of rights. Sesbreo accused the violation of contract (VOC) inspection team
dispatched by the Visayan Electric Company (VECO) to check his electric meter with
conducting an unreasonable search in his residential premises. But the Regional
Trial Court (RTC), Branch 13, in Cebu City rendered judgment on August 19, 1994
dismissing the claim;1 and the Court of Appeals (CA) affirmed the dismissal on
March 10, 2003.2
Hence, this appeal by Sesbreo.
Antecedents
At the time material to the petition, VECO was a public utility corporation organized
and existing under the laws of the Philippines. VECO engaged in the sale and
distribution of electricity within Metropolitan Cebu. Sesbreo was one of VECOs
customers under the metered service contract they had entered into on March 2,
1982.3Respondent Vicente E. Garcia was VECOs President, General Manager and
370

Chairman of its Board of Directors. Respondent Jose E. Garcia was VECOs VicePresident, Treasurer and a Member of its Board of Directors. Respondent Angelita
Lhuillier was another Member of VECOs Board of Directors. Respondent Juan
Coromina was VECOs Assistant Treasurer, while respondent Norberto Abellana was
the Head of VECOs Billing Section whose main function was to compute back
billings of customers found to have violated their contracts.
To ensure that its electric meters were properly functioning, and that none of it
meters had been tampered with, VECO employed respondents Engr. Felipe
Constantino
and
Ronald
Arcilla
as
violation
of
contract
(VOC)
4
inspectors. Respondent Sgt. Demetrio Balicha, who belonged to the 341st
Constabulary Company, Cebu Metropolitan Command, Camp Sotero Cabahug, Cebu
City, accompanied and escorted the VOC inspectors during their inspection of the
households of its customers on May 11, 1989 pursuant to a mission order issued to
him.5
The CA summarized the antecedent facts as follows:
x x x. Reduced to its essentials, however, the facts of this case are actually simple
enough, although the voluminous records might indicate otherwise. It all has to do
with an incident that occurred at around 4:00 oclock in the afternoon of May 11,
1989. On that day, the Violation of Contracts (VOC) Team of defendants-appellees
Constantino and Arcilla and their PC escort, Balicha, conducted a routine inspection
of the houses at La Paloma Village, Labangon, Cebu City, including that of plaintiffappellant Sesbreo, for illegal connections, meter tampering, seals, conduit pipes,
jumpers, wiring connections, and meter installations. After Bebe Baledio, plaintiffappellant Sesbreos maid, unlocked the gate, they inspected the electric meter
and found that it had been turned upside down. Defendant-appellant Arcilla took
photographs of the upturned electric meter. With Chuchie Garcia, Peter Sesbreo
and one of the maids present, they removed said meter and replaced it with a new
one. At that time, plaintiff-appellant Sesbreo was in his office and no one called to
inform him of the inspection. The VOC Team then asked for and received Chuchie
Garcias permission to enter the house itself to examine the kind and number of
appliances and light fixtures in the household and determine its electrical load.
Afterwards, Chuchie Garcia signed the Inspection Division Report, which showed the
condition of the electric meter on May 11, 1989 when the VOC Team inspected it,
with notice that it would be subjected to a laboratory test. She also signed a Load
Survey Sheet that showed the electrical load of plaintiff-appellant Sesbreo.
But according to plaintiff-appellant Sesbreo there was nothing routine or proper at
all with what the VOC Team did on May 11, 1989 in his house. Their entry to his
house and the surrounding premises was effected without his permission and over
the objections of his maids. They threatened, forced or coerced their way into his
house. They unscrewed the electric meter, turned it upside down and took
371

photographs thereof. They then replaced it with a new electric meter. They searched
the house and its rooms without his permission or a search warrant. They forced a
visitor to sign two documents, making her appear to be his representative or agent.
Afterwards, he found that some of his personal effects were missing, apparently
stolen by the VOC Team when they searched the house. 6
Judgment of the RTC
On August 19, 1994, the RTC rendered judgment dismissing the complaint. 7 It did
not accord credence to the testimonies of Sesbreos witnesses, Bebe Baledio, his
housemaid, and Roberto Lopez, a part-time salesman, due to inconsistencies on
material points in their respective testimonies. It observed that Baledio could not
make up her mind as to whether Sesbreos children were in the house when the
VOC inspection team detached and replaced the electric meter. Likewise, it
considered unbelievable that Lopez should hear the exchanges between
Constantino, Arcilla and Balicha, on one hand, and Baledio, on the other,
considering that Lopez could not even hear the conversation between two persons
six feet away from where he was seated during the simulation done in court, the
same distance he supposedly had from the gate of Sesbreos house during the
incident. It pointed out that Lopezs presence at the gate during the incident was
even contradicted by his own testimony indicating that an elderly woman had
opened the gate for the VECO personnel, because it was Baledio, a lady in her 20s,
who had repeatedly stated on her direct and cross examinations that she had let the
VECO personnel in. It concluded that for Lopez to do nothing at all upon seeing a
person being threatened by another in the manner he described was simply
contrary to human experience.
In contrast, the RTC believed the evidence of the respondents showing that the VOC
inspection team had found the electric meter in Sesbreos residence turned upside
down to prevent the accurate registering of the electricity consumption of the
household, causing them to detach and replace the meter. It held as unbelievable
that the team forcibly entered the house through threats and intimidation; that they
themselves turned the electric meter upside down in order to incriminate him for
theft of electricity, because the fact that the team and Sesbreo had not known
each other before then rendered it unlikely for the team to fabricate charges against
him; and that Sesbreos non-presentation of Chuchie Garcia left her allegation of
her being forced to sign the two documents by the team unsubstantiated.
Decision of the CA
Sesbreo appealed, but the CA affirmed the RTC on March 10, 2003, 8 holding thusly:
x x x. plaintiff-appellant Sesbreos account is simply too implausible or far-fetched
to be believed. For one thing, the inspection on his household was just one of many
372

others that the VOC Team had conducted in that subdivision. Yet, none but plaintiffappellant Sesbreo complained of the alleged acts of the VOC Team. Considering
that there is no proof that they also perpetrated the same illegal acts on other
customers in the guise of conducting a Violation of Contracts inspection, plaintiffappellant Sesbreo likewise failed to show why he alone was singled out. It is also
difficult to believe that the VOC Team would be brazen enough to want to
antagonize a person such as plaintiff-appellant Sesbreo. There is no evidence that
the VOC Team harbored any evil motive or grudge against plaintiff-appellant
Sesbreo, who is a total stranger to them. Until he came along, they did not have
any prior criminal records to speak of, or at least, no evidence thereof was
presented. It is equally difficult to believe that their superiors would authorize or
condone their alleged illegal acts. Especially so since there is no indication that prior
to the incident on May 11, 1989, there was already bad blood or animosity between
plaintiff-appellant Sesbreo and defendant appellees to warrant such a malevolent
response. In fact, since availing of defendant-appellee VECOs power services, the
relationship between them appears to have been uneventful.
It becomes all the more apparent that the charges stemming from the May 11, 1989
incident were fabricated when taken together with the lower courts evaluation of
the alleged theft of plaintiff-appellant Sesbreos personal effects. It stated that on
August 8, 1989, plaintiff-appellant Sesbreo wrote the barangay captain of Punta
Princesa and accused Chuchie Garcia and Victoria Villarta alias Victoria Rocamora of
theft of some of his things that earlier he claimed had been stolen by members of
the VOC Team. When he was confronted with these facts, plaintiff-appellant
Sesbreo further claimed that the items allegedly stolen by Chuchie Garcia were
part of the loot taken by defendants-appellees Constantino and Arcilla. Yet not once
did plaintiff-appellant Sesbreo or any of his witnesses mention that a conspiracy
existed between these people. Clearly, much like his other allegations, it is nothing
more than an afterthought by plaintiff-appellant Sesbreo.
All in all, the allegations against defendants-appellees appear to be nothing more
than a put-on to save face. For the simple truth is that the inspection exposed
plaintiff-appellant Sesbreo as a likely cheat and thief.
xxxx
Neither is this Court swayed by the testimonies of Baledio and Lopez.1wphi1 The
lower court rightly described their testimonies as fraught by discrepancies and
inconsistencies on material points and even called Lopez a perjured witness. On the
other hand, it is odd that plaintiff-appellant Sesbreo chose not to present the
witness whose testimony was very crucial. But even though Chuchie Garcia never
testified, her absence speaks volumes. Whereas plaintiff-appellant Sesbreo
claimed that the VOC Team forced her to sign two documents that made her appear
to be his authorized agent or representative, the latter claimed otherwise and that
373

she also gave them permission to enter and search the house. The person most
qualified to refute the VOC Teams claim is Chuchie Garcia herself. It is axiomatic
that he who asserts a fact or claim must prove it. He cannot transfer that burden to
the person against whom he asserts such fact or claim. When certain evidence is
suppressed, the presumption is that it will adversely affect the cause of the party
suppressing it, should it come to light. x x x 9
Upon denial of his motion for reconsideration, 10 Sesbreo appealed.
Issue
Was Sesbreo entitled to recover damages for abuse of rights?
Ruling
The appeal has no merit.
Sesbreos main contention is that the inspection of his residence by the VOC team
was an unreasonable search for being carried out without a warrant and for being
allegedly done with malice or bad faith.
Before dealing with the contention, we have to note that two distinct portions of
Sesbreos residence were inspected by the VOS team the garage where the
electric meter was installed, and the main premises where the four bedrooms, living
rooms, dining room and kitchen were located.
Anent the inspection of the garage where the meter was installed, the respondents
assert that the VOC team had the continuing authority from Sesbreo as the
consumer to enter his premises at all reasonable hours to conduct an inspection of
the meter without being liable for trespass to dwelling. The authority emanated
from paragraph 9 of the metered service contract entered into between VECO and
each of its consumers, which provided as follows:
9. The CONSUMER agrees to allow properly authorized employees or
representatives of the COMPANY to enter his premises at all reasonable hours
without being liable to trespass to dwelling for the purpose of inspecting, installing,
reading, removing, testing, replacing or otherwise disposing of its property, and/or
removing the COMPANYS property in the event of the termination of the contract
for any cause.11
Sesbreo contends, however, that paragraph 9 did not give Constantino, Arcilla and
Balicha the blanket authority to enter at will because the only property VECO owned
in his premises was the meter; hence, Constantino and Arcilla should enter only the
garage. He denies that they had the right to enter the main portion of the house
374

and inspect the various rooms and the appliances therein because those were not
the properties of VECO. He posits that Balicha, who was not an employee of VECO,
had no authority whatsoever to enter his house and conduct a search. He concludes
that their search was unreasonable, and entitled him to damages in light of their
admission that they had entered and inspected his premises without a search
warrant.12
We do not accept Sesbreos conclusion.1avvphi1 Paragraph 9 clothed the entire
VOC team with unquestioned authority to enter the garage to inspect the meter.
The members of the team obviously met the conditions imposed by paragraph 9 for
an authorized entry. Firstly, their entry had the objective of conducting the routine
inspection of the meter.13 Secondly, the entry and inspection were confined to the
garage where the meter was installed.14Thirdly, the entry was effected at around 4
oclock p.m., a reasonable hour. 15 And, fourthly, the persons who inspected the
meter were duly authorized for the purpose by VECO.
Although Balicha was not himself an employee of VECO, 16 his participation was to
render police assistance to ensure the personal security of Constantino and Arcilla
during the inspection, rendering him a necessary part of the team as an authorized
representative. Under the circumstances, he was authorized to enter considering
that paragraph 9 expressly extended such authority to "properly authorized
employees or representatives" of VECO.
It is true, as Sesbreo urges, that paragraph 9 did not cover the entry into the main
premises of the residence. Did this necessarily mean that any entry by the VOS
team into the main premises required a search warrant to be first secured?
Sesbreo insists so, citing Section 2, Article III of the 1987 Constitution, the clause
guaranteeing the right of every individual against unreasonable searches and
seizures, viz:
Section 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
He states that a violation of this constitutional guaranty rendered VECO and its VOS
team liable to him for damages by virtue of Article 32 (9) of the Civil Code, which
pertinently provides:

375

Article 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
xxxx
(9) The right to be secured in ones person, house, papers, and effects against
unreasonable searches and seizures;
x x x x.
Sesbreos insistence has no legal and factual basis.
The constitutional guaranty against unlawful searches and seizures is intended as a
restraint against the Government and its agents tasked with law enforcement. It is
to be invoked only to ensure freedom from arbitrary and unreasonable exercise of
State power. The Court has made this clear in its pronouncements, including that
made in People v. Marti,17 viz:
If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search is
made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of
police authorities, the right against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the law enforcers, is involved. In
sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit
of alleged unlawful intrusion by the government. 18
It is worth noting that the VOC inspectors decided to enter the main premises only
after finding the meter of Sesbreo turned upside down, hanging and its disc not
rotating. Their doing so would enable them to determine the unbilled electricity
consumed by his household. The circumstances justified their decision, and their
inspection of the main premises was a continuation of the authorized entry. There
was no question then that their ability to determine the unbilled electricity called for
them to see for themselves the usage of electricity inside. Not being agents of the
State, they did not have to first obtain a search warrant to do so.
Balichas presence participation in the entry did not make the inspection a search
by an agent of the State within the ambit of the guaranty. As already mentioned,
Balicha was part of the team by virtue of his mission order authorizing him to assist
and escort the team during its routine inspection. 19 Consequently, the entry into the

376

main premises of the house by the VOC team did not constitute a violation of the
guaranty.
Our holding could be different had Sesbreo persuasively demonstrated the
intervention of malice or bad faith on the part of Constantino and Arcilla during their
inspection of the main premises, or any excessiveness committed by them in the
course of the inspection. But Sesbreo did not. On the other hand, the CA correctly
observed that the inspection did not zero in on Sesbreos residence because the
other houses within the area were similarly subjected to the routine
inspection.20 This, we think, eliminated any notion of malice or bad faith.
Clearly, Sesbreo did not establish his claim for damages if the respondents were
not guilty of abuse of rights. To stress, the concept of abuse of rights prescribes that
a person should not use his right unjustly or in bad faith; otherwise, he may be
liable to another who suffers injury. The rationale for the concept is to present some
basic principles to be followed for the rightful relationship between human beings
and the stability of social order. 21Moreover, according to a commentator, 22 "the
exercise of right ends when the right disappears, and it disappears when it is
abused, especially to the prejudice of others[;] [i]t cannot be said that a person
exercises a right when he unnecessarily prejudices another." Article 19 of the Civil
Code23 sets the standards to be observed in the exercise of ones rights and in the
performance of ones duties, namely: (a) to act with justice; (b) to give everyone his
due; and (c) to observe honesty and good faith. The law thereby recognizes the
primordial limitation on all rights that in the exercise of the rights, the standards
under Article 19 must be observed.24
Although the act is not illegal, liability for damages may arise should there be an
abuse of rights, like when the act is performed without prudence or in bad faith. In
order that liability may attach under the concept of abuse of rights, the following
elements must be present, to wit: (a) the existence of a legal right or duty, (b)
which is exercised in bad faith, and (c) for the sole intent of prejudicing or injuring
another.25 There is no hard and fast rule that can be applied to ascertain whether or
not the principle of abuse of rights is to be invoked. The resolution of the issue
depends on the circumstances of each case.
Sesbreo asserts that he did not authorize Baledio or Chuchie Garcia to let anyone
enter his residence in his absence; and that Baledio herself confirmed that the
members of the VOC team had intimidated her into letting them in.
The assertion of Sesbreo is improper for consideration in this appeal.1wphi1 The
RTC and the CA unanimously found the testimonies of Sesbreos witnesses
implausible because of inconsistencies on material points; and even declared that
the non-presentation of Garcia as a witness was odd if not suspect. Considering that
such findings related to the credibility of the witnesses and their testimonies, the
377

Court cannot review and undo them now because it is not a trier of facts, and is not
also tasked to analyze or weigh evidence all over again. 26 Verily, a review that may
tend to supplant the findings of the trial court that had the first-hand opportunity to
observe the demeanor of the witnesses themselves should be undertaken by the
Court with prudent hesitation. Only when Sesbreo could make a clear showing of
abuse in their appreciation of the evidence and records by the trial and the
appellate courts should the Court do the unusual review of the factual findings of
the trial and appellate courts.27 Alas, that showing was not made here.
Nor should the Court hold that Sesbreo was denied due process by the refusal of
the trial judge to inhibit from the case. Although the trial judge had issued an order
for his voluntary inhibition, he still rendered the judgment in the end in compliance
with the instruction of the Executive Judge, whose exercise of her administrative
authority on the matter of the inhibition should be respected. 28 In this connection,
we find to be apt the following observation of the CA, to wit:
x x x. Both Judge Paredes and Judge Priscila Agana serve the Regional Trial Court
and are therefore of co-equal rank. The latter has no authority to reverse or modify
the orders of Judge Paredes. But in ordering Judge Paredes to continue hearing the
case, Judge Agana did not violate their co-equal status or unilaterally increased her
jurisdiction. It is merely part of her administrative responsibilities as Executive Judge
of the Regional Trial Court of Cebu City, of which Judge Paredes is also a member. 29
Lastly, the Court finds nothing wrong if the writer of the decision in the CA refused
to inhibit from participating in the resolution of the motion for reconsideration filed
by Sesbrefio. The motion for her inhibition was grounded on suspicion of her bias
and prejudice,30 but suspicion of bias and prejudice were not enough grounds for
inhibition.31
Suffice it to say that the records are bereft of any indication that even suggested
that the Associate Justices of the CA who participated in the promulgation of the
decision were tainted with bias against him.
WHEREFORE, the Court DENIES the pet1t1on for review on certiorari; AFFIRMS the
decision promulgated on March 10, 2003; and DIRECTS the petitioner to pay the
costs of suit.
SO ORDERED.
TITUS B. VILLANUEVA, G.R. No. 180764
Petitioner,
Present:
Carpio, J., Chairperson,
- versus - Brion,
Del Castillo,
378

Abad, and
Perez, JJ.
EMMA M. ROSQUETA,
Respondent. Promulgated:
January 19, 2010
x --------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:

This case is about the right to recover damages for alleged abuse of right
committed by a superior public officer in preventing a subordinate from doing her
assigned task and being officially recognized for it.
The Facts and the Case
Respondent Emma M. Rosqueta (Rosqueta), formerly Deputy Commissioner of
the Revenue Collection and Monitoring Group of the Bureau of Customs (the
Bureau), tendered her courtesy resignation from that post on January 23, 2001,
shortly after President Gloria Macapagal-Arroyo assumed office. But five months
later on June 5, 2001, she withdrew her resignation, claiming that she enjoyed
security of tenure and that she had resigned against her will on orders of her
superior.[1]
Meantime, on July 13, 2001 President Arroyo appointed Gil Valera (Valera) to
respondent Rosquetas position. Challenging such appointment, Rosqueta filed a
petition for prohibition, quo warranto, and injunction against petitioner Titus B.
Villanueva (Villanueva), then Commissioner of Customs, the Secretary of Finance,
and Valera with the Regional Trial Court [2] (RTC) of Manila in Civil Case 01101539. On August 27, 2001 the RTC issued a temporary restraining order (TRO),
enjoining Villanueva and the Finance Secretary [3] from implementing Valeras
appointment. On August 28, 2001 the trial court superseded the TRO with a writ of
preliminary injunction.[4]
Petitioner Villanueva, Valera, and the Secretary of Finance challenged the
injunction order before the Court of Appeals (CA) in CA-G.R. SP 66070. On
September 14, 2001 the CA issued its own TRO, enjoining the implementation of the
RTCs injunction order. But the TRO lapsed after 60 days and the CA eventually
dismissed the petition before it.

379

On November 22, 2001 while the preliminary injunction in the quo

warranto case was again in force, petitioner Villanueva issued Customs
Memorandum Order 40-2001, authorizing Valera to exercise the powers and
functions of the Deputy Commissioner.
During the Bureaus celebration of its centennial anniversary in February
2002, its special Panorama magazine edition featured all the customs deputy
commissioners, except respondent Rosqueta. The souvenir program, authorized by
the Bureaus Steering Committee headed by petitioner Villanueva to be issued on
the occasion, had a space where Rosquetas picture was supposed to be but it
instead stated that her position was under litigation. Meanwhile, the
commemorative billboard displayed at the Bureaus main gate included Valeras
picture but not Rosquetas.
On February 28, 2002 respondent Rosqueta filed a complaint [5] for damages
before the RTC of Quezon City against petitioner Villanueva in Civil Case Q-0246256, alleging that the latter maliciously excluded her from the centennial
anniversary memorabilia. Further, she claimed that he prevented her from
performing her duties as Deputy Commissioner, withheld her salaries, and refused
to act on her leave applications. Thus, she asked the RTC to award
her P1,000,000.00 in moral damages, P500,000.00 in exemplary damages,
and P300,000.00 in attorneys fees and costs of suit.
But the RTC dismissed[6] respondent Rosquetas complaint, stating that
petitioner Villanueva committed no wrong and incurred no omission that entitled her
to damages.The RTC found that Villanueva had validly and legally replaced her as
Deputy Commissioner seven months before the Bureaus centennial anniversary.
But the CA reversed the RTCs decision, [7] holding instead that petitioner
Villanuevas refusal to comply with the preliminary injunction order issued in the quo
warrantocase earned for Rosqueta the right to recover moral damages from him.
[8]
Citing the abuse of right principle, the RTC said that Villanueva acted maliciously
when he prevented Rosqueta from performing her duties, deprived her of salaries
and leaves, and denied her official recognition as Deputy Commissioner by
excluding her from the centennial anniversary memorabilia. Thus, the appellate
court ordered Villanueva to pay P500,000.00 in moral damages, P200,000.00 in
exemplary damages and P100,000.00 in attorneys fees and litigation
expenses. With the denial of his motion for reconsideration, Villanueva filed this
petition for review on certiorari under Rule 45.
The Issue Presented
380

The key issue presented in this case is whether or not the CA erred in holding
petitioner Villanueva liable in damages to respondent Rosqueta for ignoring the
preliminary injunction order that the RTC issued in the quo warranto case (Civil Case
01-101539), thus denying her of the right to do her job as Deputy Commissioner of
the Bureau and to be officially recognized as such public officer.
The Courts Ruling
Under the abuse of right principle found in Article 19 of the Civil Code, [9] a
person must, in the exercise of his legal right or duty, act in good faith. He would be
liable if he instead acts in bad faith, with intent to prejudice
another. Complementing this principle are Articles 20 [10] and 21[11] of the Civil Code
which grant the latter indemnity for the injury he suffers because of such abuse of
right or duty.[12]
Petitioner Villanueva claims that he merely acted on advice of the Office of
the Solicitor General (OSG) when he allowed Valera to assume the office as Deputy
Commissioner since respondent Rosqueta held the position merely in a temporary
capacity and since she lacked the Career Executive Service eligibility required for
the job.
But petitioner Villanueva cannot seek shelter in the alleged advice that the
OSG gave him. Surely, a government official of his rank must know that a
preliminary injunction order issued by a court of law had to be obeyed, especially
since the question of Valeras right to replace respondent Rosqueta had not yet been
properly resolved.
That petitioner Villanueva ignored the injunction shows bad faith and intent to
spite Rosqueta who remained in the eyes of the law the Deputy Commissioner. His
exclusion of her from the centennial anniversary memorabilia was not an honest
mistake by any reckoning. Indeed, he withheld her salary and prevented her from
assuming the duties of the position. As the Court said in Amonoy v. Spouses
Gutierrez,[13] a partys refusal to abide by a court order enjoining him from doing an
act, otherwise lawful, constitutes an abuse and an unlawful exercise of right.
That respondent Rosqueta was later appointed Deputy Commissioner for
another division of the Bureau is immaterial. While such appointment, when
accepted, rendered the quo warranto case moot and academic, it did not have the
effect of wiping out the injuries she suffered on account of petitioner Villanuevas
treatment of her. The damage suit is an independent action.
381

The CA correctly awarded moral damages to respondent Rosqueta. Such

damages may be awarded when the defendants transgression is the immediate
cause of the plaintiffs anguish[14] in the cases specified in Article 2219[15] of the Civil
Code.[16]
Here, respondent Rosquetas colleagues and friends testified that she suffered
severe anxiety on account of the speculation over her employment status. [17] She
had to endure being referred to as a squatter in her workplace. She had to face
inquiries from family and friends about her exclusion from the Bureaus centennial
anniversary memorabilia. She did not have to endure all these affronts and the
angst and depression they produced had Villanueva abided in good faith by the
courts order in her favor.Clearly, she is entitled to moral damages.
The Court, however, finds the award of P500,000.00 excessive. As it held
in Philippine Commercial International Bank v. Alejandro,[18] moral damages are not
a bonanza. They are given to ease the defendants grief and suffering. Moral
damages should reasonably approximate the extent of hurt caused and the gravity
of the wrong done.Here, that would be P200,000.00.
The Court affirms the grant of exemplary damages by way of example or
correction for the public good but, in line with the same reasoning, reduces it
to P50,000.00.Finally, the Court affirms the award of attorneys fees and litigation
expenses but reduces it to P50,000.00.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of
the Court of Appeals dated April 30, 2007 in CA-G.R. CV 85931
with MODIFICATIONin that petitioner Titus B. Villanueva is ORDERED to pay
respondent
Emma
M.
Rosqueta
the
sum
of P200,000.00 in
moral
damages, P50,000.00 in exemplary damages, andP50,000.00 in attorneys fees and
litigation expenses.
SO ORDERED.
G.R. No. 175822

October 23, 2013

CALIFORNIA CLOTHING INC. and

vs.
SHIRLEY G. QUIONES, Respondent.

MICHELLE

DECISION

382

S.

YBAEZ, Petitioners,

PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the ; Rules of Court
are the Court of Appeals Decision 1 dated August 3, 2006 and Resolution 2 dated
November 14, 2006 in CA-G.R. CV No. 80309. The assailed decision reversed and
set aside the June 20, 2003 Decision 3 of the Regional Trial Court of Cebu City (RTC),
Branch 58, in Civil Case No. CEB-26984; while the assailed resolution denied the
motion for reconsideration filed by petitioner Michelle Ybaez (Ybaez).
The facts of the case, as culled from the records, are as follows:
On July 25, 2001, respondent Shirley G. Quiones, a Reservation Ticketing Agent of
Cebu Pacific Air in Lapu Lapu City, went inside the Guess USA Boutique at the
second floor of Robinsons Department Store (Robinsons) in Cebu City. She fitted
four items: two jeans, a blouse and a shorts, then decided to purchase the black
jeans worth P2,098.00.4 Respondent allegedly paid to the cashier evidenced by a
receipt5 issued by the store.6
While she was walking through the skywalk connecting Robinsons and Mercury
Drug Store (Mercury) where she was heading next, a Guess employee approached
and informed her that she failed to pay the item she got. She, however, insisted
that she paid and showed the employee the receipt issued in her favor. 7 She then
suggested that they talk about it at the Cebu Pacific Office located at the basement
of the mall. She first went to Mercury then met the Guess employees as agreed
upon.8
When she arrived at the Cebu Pacific Office, the Guess employees allegedly
subjected her to humiliation in front of the clients of Cebu Pacific and repeatedly
demanded payment for the black jeans. 9 They supposedly even searched her wallet
to check how much money she had, followed by another argument. Respondent,
thereafter, went home.10
On the same day, the Guess employees allegedly gave a letter to the Director of
Cebu Pacific Air narrating the incident, but the latter refused to receive it as it did
not concern the office and the same took place while respondent was off
duty.11 Another letter was allegedly prepared and was supposed to be sent to the
Cebu Pacific Office in Robinsons, but the latter again refused to receive
it.12 Respondent also claimed that the Human Resource Department (HRD) of
Robinsons was furnished said letter and the latter in fact conducted an
investigation for purposes of canceling respondents Robinsons credit card.
Respondent further claimed that she was not given a copy of said damaging
letter.13 With the above experience, respondent claimed to have suffered physical
anxiety, sleepless nights, mental anguish, fright, serious apprehension, besmirched
reputation, moral shock and social humiliation. 14 She thus filed the Complaint for
383

Damages15 before the RTC against petitioners California Clothing, Inc. (California
Clothing), Excelsis Villagonzalo (Villagonzalo), Imelda Hawayon (Hawayon) and
Ybaez. She demanded the payment of moral, nominal, and exemplary damages,
plus attorneys fees and litigation expenses. 16
In their Answer,17 petitioners and the other defendants admitted the issuance of the
receipt of payment. They claimed, however, that instead of the cashier (Hawayon)
issuing the official receipt, it was the invoicer (Villagonzalo) who did it manually.
They explained that there was miscommunication between the employees at that
time because prior to the issuance of the receipt, Villagonzalo asked Hawayon " Ok
na ?," and the latter replied " Ok na ," which the former believed to mean that the
item has already been paid.18 Realizing the mistake, Villagonzalo rushed outside to
look for respondent and when he saw the latter, he invited her to go back to the
shop to make clarifications as to whether or not payment was indeed made.
Instead, however, of going back to the shop, respondent suggested that they meet
at the Cebu Pacific Office. Villagonzalo, Hawayon and Ybaez thus went to the
agreed venue where they talked to respondent. 19 They pointed out that it appeared
in their conversation that respondent could not recall whom she gave the
payment.20 They emphasized that they were gentle and polite in talking to
respondent and it was the latter who was arrogant in answering their questions. 21As
counterclaim, petitioners and the other defendants sought the payment of moral
and exemplary damages, plus attorneys fees and litigation expenses. 22
On June 20, 2003, the RTC rendered a Decision dismissing both the complaint and
counterclaim of the parties. From the evidence presented, the trial court concluded
that the petitioners and the other defendants believed in good faith that respondent
failed to make payment. Considering that no motive to fabricate a lie could be
attributed to the Guess employees, the court held that when they demanded
payment from respondent, they merely exercised a right under the honest belief
that no payment was made. The RTC likewise did not find it damaging for
respondent when the confrontation took place in front of Cebu Pacific clients,
because it was respondent herself who put herself in that situation by choosing the
venue for discussion. As to the letter sent to Cebu Pacific Air, the trial court also did
not take it against the Guess employees, because they merely asked for assistance
and not to embarrass or humiliate respondent. In other words, the RTC found no
evidence to prove bad faith on the part of the Guess employees to warrant the
award of damages.23
On appeal, the CA reversed and set aside the RTC decision, the dispositive portion
of which reads:
WHEREFORE, the instant appeal is GRANTED. The decision of the Regional Trial
Court of Cebu City, Branch 58, in Civil Case No. CEB-26984 (for: Damages) is hereby
REVERSED and SET ASIDE. Defendants Michelle Ybaez and California Clothing, Inc.
384

are hereby ordered to pay plaintiff-appellant Shirley G. Quiones jointly and

solidarily moral damages in the amount of Fifty Thousand Pesos (P50,000.00) and
attorneys fees in the amount of Twenty Thousand Pesos (P20,000.00).
SO ORDERED.24
While agreeing with the trial court that the Guess employees were in good faith
when they confronted respondent inside the Cebu Pacific Office about the alleged
non-payment, the CA, however, found preponderance of evidence showing that they
acted in bad faith in sending the demand letter to respondents employer. It found
respondents possession of both the official receipt and the subject black jeans as
evidence of payment.25Contrary to the findings of the RTC, the CA opined that the
letter addressed to Cebu Pacifics director was sent to respondents employer not
merely to ask for assistance for the collection of the disputed payment but to
subject her to ridicule, humiliation and similar injury such that she would be
pressured to pay.26 Considering that Guess already started its investigation on the
incident, there was a taint of bad faith and malice when it dragged respondents
employer who was not privy to the transaction. This is especially true in this case
since the purported letter contained not only a narrative of the incident but
accusations as to the alleged acts of respondent in trying to evade payment. 27 The
appellate court thus held that petitioners are guilty of abuse of right entitling
respondent to collect moral damages and attorneys fees. Petitioner California
Clothing Inc. was made liable for its failure to exercise extraordinary diligence in the
hiring and selection of its employees; while Ybaezs liability stemmed from her act
of signing the demand letter sent to respondents employer. In view of Hawayon and
Villagonzalos good faith, however, they were exonerated from liability. 28
Ybaez moved for the reconsideration29 of the aforesaid decision, but the same was
denied in the assailed November 14, 2006 CA Resolution.
Petitioners now come before the Court in this petition for review on certiorari under
Rule 45 of the Rules of Court based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE LETTER SENT TO
THE CEBU PACIFIC OFFICE WAS MADE TO SUBJECT HEREIN RESPONDENT TO
RIDICULE, HUMILIATION AND SIMILAR INJURY.
II.
THE HONORABLE COURT OF APPEALS ERRED IN AWARDING MORAL DAMAGES AND
ATTORNEYS FEES.30

385

The petition is without merit.

Respondents complaint against petitioners stemmed from the principle of abuse of
rights provided for in the Civil Code on the chapter of human relations. Respondent
cried foul when petitioners allegedly embarrassed her when they insisted that she
did not pay for the black jeans she purchased from their shop despite the evidence
of payment which is the official receipt issued by the shop. The issuance of the
receipt notwithstanding, petitioners had the right to verify from respondent whether
she indeed made payment if they had reason to believe that she did not. However,
the exercise of such right is not without limitations. Any abuse in the exercise of
such right and in the performance of duty causing damage or injury to another is
actionable under the Civil Code. The Courts pronouncement in Carpio v.
Valmonte31 is noteworthy:
In the sphere of our law on human relations, the victim of a wrongful act or
omission, whether done willfully or negligently, is not left without any remedy or
recourse to obtain relief for the damage or injury he sustained. Incorporated into our
civil law are not only principles of equity but also universal moral precepts which are
designed to indicate certain norms that spring from the fountain of good conscience
and which are meant to serve as guides for human conduct. First of these
fundamental precepts is the principle commonly known as "abuse of rights" under
Article 19 of the Civil Code. It provides that " 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."x x x 32The elements of abuse of rights are
as follows: (1) there is a legal right or duty; (2) which is exercised in bad faith; (3)
for the sole intent of prejudicing or injuring another. 33
In this case, petitioners claimed that there was a miscommunication between the
cashier and the invoicer leading to the erroneous issuance of the receipt to
respondent. When they realized the mistake, they made a cash count and
discovered that the amount which is equivalent to the price of the black jeans was
missing. They, thus, concluded that it was respondent who failed to make such
payment. It was, therefore, within their right to verify from respondent whether she
indeed paid or not and collect from her if she did not. However, the question now is
whether such right was exercised in good faith or they went overboard giving
respondent a cause of action against them.
Under the abuse of rights principle found in Article 19 of the Civil Code, a person
must, in the exercise of legal right or duty, act in good faith. He would be liable if he
instead acted in bad faith, with intent to prejudice another. 34 Good faith refers to the
state of mind which is manifested by the acts of the individual concerned. It consists
of the intention to abstain from taking an unconscionable and unscrupulous
advantage of another.35Malice or bad faith, on the other hand, implies a conscious

386

and intentional design to do a wrongful act for a dishonest purpose or moral

obliquity.36
Initially, there was nothing wrong with petitioners asking respondent whether she
paid or not. The Guess employees were able to talk to respondent at the Cebu
Pacific Office. The confrontation started well, but it eventually turned sour when
voices were raised by both parties. As aptly held by both the RTC and the CA, such
was the natural consequence of two parties with conflicting views insisting on their
respective beliefs. Considering, however, that respondent was in possession of the
item purchased from the shop, together with the official receipt of payment issued
by petitioners, the latter cannot insist that no such payment was made on the basis
of a mere speculation. Their claim should have been proven by substantial evidence
in the proper forum.
It is evident from the circumstances of the case that petitioners went overboard and
tried to force respondent to pay the amount they were demanding. In the guise of
asking for assistance, petitioners even sent a demand letter to respondents
employer not only informing it of the incident but obviously imputing bad acts on
the part of respondent.1wphi1 Petitioners claimed that after receiving the receipt
of payment and the item purchased, respondent "was noted to hurriedly left (sic)
the store." They also accused respondent that she was not completely being honest
when she was asked about the circumstances of payment, thus:
x x x After receiving the OR and the item, Ms. Gutierrez was noted to hurriedly left
(sic) the store. x x x
When I asked her about to whom she gave the money, she gave out a blank
expression and told me, "I cant remember." Then I asked her how much money she
gave, she answered, "P2,100; 2 pcs 1,000 and 1 pc 100 bill." Then I told her that
that would (sic) impossible since we have no such denomination in our cash fund at
that moment. Finally, I asked her if how much change and if she received change
from the cashier, she then answered, "I dont remember." After asking these simple
questions, I am very certain that she is not completely being honest about this. In
fact, we invited her to come to our boutique to clear these matters but she
vehemently refused saying that shes in a hurry and very busy. 37
Clearly, these statements are outrightly accusatory. Petitioners accused respondent
that not only did she fail to pay for the jeans she purchased but that she
deliberately took the same without paying for it and later hurriedly left the shop to
evade payment. These accusations were made despite the issuance of the receipt
of payment and the release of the item purchased. There was, likewise, no showing
that respondent had the intention to evade payment. Contrary to petitioners claim,
respondent was not in a rush in leaving the shop or the mall. This is evidenced by

387

the fact that the Guess employees did not have a hard time looking for her when
they realized the supposed non-payment.
It can be inferred from the foregoing that in sending the demand letter to
respondents employer, petitioners intended not only to ask for assistance in
collecting the disputed amount but to tarnish respondents reputation in the eyes of
her employer. To malign respondent without substantial evidence and despite the
latters possession of enough evidence in her favor, is clearly impermissible. A
person should not use his right unjustly or contrary to honesty and good faith,
otherwise, he opens himself to liability.38
The exercise of a right must be in accordance with the purpose for which it was
established and must not be excessive or unduly harsh. 39 In this case, petitioners
obviously abused their rights.
Complementing the principle of abuse of rights are the provisions of Articles 20 and
2 of the Civil Code which read: 40
Article 20. Every person who, contrary to law, willfully or negligently causes damage
to another, shall indemnify the latter for the same.
Article 21. Any person who willfully causes loss or injury to another in a manner that
is contrary to morals or good customs, or public policy shall compensate the latter
for the damage.
In view of the foregoing, respondent is entitled to an award of moral damages and
attorney s fees. Moral damages may be awarded whenever the defendant s
wrongful act or omission is the proximate cause of the plaintiffs physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury in the cases specified or analogous
to those provided in Article 2219 of the Civil Code. 41 Moral damages are not a
bonanza. They are given to ease the defendant s grief and suffering. They should,
thus, reasonably approximate the extent of hurt caused and the gravity of the
wrong done.42 They are awarded not to enrich the complainant but to enable the
latter to obtain means, diversions, or amusements that will serve to alleviate the
moral suffering he has undergone. 43 We find that the amount ofP50,000.00 as moral
damages awarded by the CA is reasonable under the circumstances. Considering
that respondent was compelled to litigate to protect her interest, attorney s fees in
the amount of ofP20,000.00 is likewise just and proper.
WHEREFORE, premises considered, the petition is DENIED for lack of merit. The
Court of Appeals Decision dated August 3, 2006 and Resolution dated November 14,
2006 in CA-G.R. CV No. 80309, are AFFIRMED.

388

SO ORDERED.
G.R. No. 160708

October 16, 2009

PATROCINIA
RAVINA
AND
WILFREDO
RAVINA, Petitioners,
vs.
MARY ANN P. VILLA ABRILLE, for herself and in behalf of INGRID D'LYN P.
VILLA ABRILLE, INGREMARK D'WIGHT VILLA ABRILLE, INGRESOLL DIELS
VILLA ABRILLE AND INGRELYN DYAN VILLA ABRILLE,Respondents.
DECISION
QUISUMBING, Acting C.J.:
For review are the Decision1 dated February 21, 2002 and the Resolution 2 dated
October 7, 2003 of the Court of Appeals in CA-G.R. CV No. 54560. The appellate
court modified the Decision3 dated September 26, 1995 of the Regional Trial Court
(RTC) of Davao City, Branch 15.
Simply stated, the facts as found by the Court of Appeals 4 are as follows:
Respondent Mary Ann Pasaol Villa Abrille and Pedro Villa Abrille are husband and
wife. They have four children, who are also parties to the instant case and are
represented by their mother, Mary Ann.
In 1982, the spouses acquired a 555-square meter parcel of land denominated as
Lot 7, located at Kamuning Street, Juna Subdivision, Matina, Davao City, and
covered by Transfer Certificate of Title (TCT) No. T-88674 in their names. Said lot is
adjacent to a parcel of land which Pedro acquired when he was still single and which
is registered solely in his name under TCT No. T-26471.
Through their joint efforts and the proceeds of a loan from the Development Bank of
the Philippines (DBP), the spouses built a house on Lot 7 and Pedros lot. The house
was finished in the early 1980s but the spouses continuously made improvements,
including a poultry house and an annex.
In 1991, Pedro got a mistress and began to neglect his family. Mary Ann was forced
to sell or mortgage their movables to support the family and the studies of her
children. By himself, Pedro offered to sell the house and the two lots to herein
petitioners, Patrocinia and Wilfredo Ravina. Mary Ann objected and notified the
petitioners of her objections, but Pedro nonetheless sold the house and the two lots
without Mary Anns consent, as evidenced by a Deed of Sale 5 dated June 21, 1991. It
appears on the said deed that Mary Ann did not sign on top of her name.

389

On July 5, 1991 while Mary Ann was outside the house and the four children were in
school, Pedro together with armed members of the Civilian Armed Forces
Geographical Unit (CAFGU) and acting in connivance with petitioners 6 began
transferring all their belongings from the house to an apartment.
When Mary Ann and her daughter Ingrid Villa Abrille came home, they were stopped
from entering it. They waited outside the gate until evening under the rain. They
sought help from the Talomo Police Station, but police authorities refused to
intervene, saying that it was a family matter. Mary Ann alleged that the incident
caused stress, tension and anxiety to her children, so much so that one flunked at
school. Thus, respondents Mary Ann and her children filed a complaint for
Annulment of Sale, Specific Performance, Damages and Attorneys Fees with
Preliminary Mandatory Injunction7 against Pedro and herein petitioners (the Ravinas)
in the RTC of Davao City.
During the trial, Pedro declared that the house was built with his own money.
Petitioner Patrocinia Ravina testified that they bought the house and lot from Pedro,
and that her husband, petitioner Wilfredo Ravina, examined the titles when they
bought the property.
On September 26, 1995, the trial court ruled in favor of herein respondent Mary Ann
P. Villa Abrille as follows:
WHEREFORE, judgment is rendered as follows:
1. The sale of lot 8 covered by TCT No. 26471 by defendant Pedro Abrille
appearing in the Deed of Sale marked as Exh. "E" is void as to one half or
277.5 square meters representing the share of plaintiff Mary Villa Abrille.
2. That sale of Lot 7 covered by TCT No. [88674] by defendant Pedro Villa
Abrille in the Deed of Sale (Exh. "A") is valid as to one half or 277.5 square
meters of the 555 square meters as one half belongs to defendant Pedro
Abrille but it is void as to the other half or 277.5 square meters as it belongs
to plaintiff Mary Abrille who did not sell her share nor give her consent to the
sale.
3. That sale of the house mentioned in the Deed of Sale (Exh. "A") is valid as
far as the one half of the house representing the share of defendant Pedro
Abrille is concerned but void as to the other half which is the share of plaintiff
Mary Abrille because she did not give her consent/sign the said sale.
4. The defendants shall jointly pay the plaintiffs.

390

4. A. Seventeen Thousand Pesos (P17,000.00) representing the value

of the movables and belonging[s] that were lost when unknown men
unceremoniously and without their knowledge and consent removed
their movables from their house and brought them to an apartment.
4. B. One Hundred Thousand Pesos (P 100,000.00) to plaintiff Mary
Abrille as moral damages.
4. C. Fifty Thousand Pesos (P50,000.00) to each of the four children as
moral damages, namely:
a) Ingrid Villa Abrille Fifty Thousand Pesos (P50,000.00), b) Ingremark
Villa Abrille Fifty Thousand Pesos (P50,000.00), c) Ingresoll Villa
Abrille Fifty Thousand Pesos (P50,000.00) and d) Ingrelyn Villa Abrille
Fifty Thousand Pesos (P50,000.00).
5. Ten Thousand Pesos (P10,000.00) as exemplary damages by way of
example and correction for the public good.
6. The costs of suit.8
On appeal, the Court of Appeals modified the decision, thus:
WHEREFORE, the appealed judgment is hereby MODIFIED as follows:
1. The sale of lot covered by TCT No. 26471 in favor of defendants spouses
Wilfredo and Patrocinia Ravina is declared valid.
2. The sale of lot covered by TCT No. 88674 in favor of said defendants
spouses Ravina, together with the house thereon, is declared null and void.
3.
Defendant
Pedro
Abrille
is
ordered
to return the value of the consideration for the lot covered by TCT No. 88674
and the house thereon to co-defendants spouses Ravina.
4. Defendants spouses Ravina [a]re ordered to reconvey the lot and house
covered by TCT No. 88674 in favor of spouses Pedro and Mary Villa Abrille and
to deliver possession to them.
5. Plaintiffs are given the option to exercise their rights under Article [450] of
the New Civil Code with respect to the improvements introduced by
defendant spouses Ravina.

391

6. Defendants Pedro Villa Abrille and spouses Ravina are ordered to pay
jointly and severally the plaintiffs as follows:
a) One Hundred Thousand Pesos (P100,000.00) to plaintiff Mary Villa
Abrille as moral damages.
b) Fifty Thousand Pesos (P50,000.00) as moral damages to each of the
four children, namely: Ingrid Villa Abrille, Ingremark Villa Abrille,
Ingresoll Villa Abrille and Ingrelyn Villa Abrille.
c) Ten Thousand (P10,000.00) as exemplary damages by way of
example and correction for the public good.
SO ORDERED.9
Their Motion for Reconsideration having been denied, petitioners filed this petition.
Petitioners argue that:
I.
THE COURT OF APPEALS ERRED WHEN IT DECLARED x x x THE SALE OF LOT
COVERED BY TCT NO. 88674 IN FAVOR OF SPOUSES RAVINA, TOGETHER WITH THE
HOUSE THEREON, AS NULL AND VOID SINCE IT IS CLEARLY CONTRARY TO LAW AND
EVIDENCE.
II.
THE COURT OF APPEALS ERRED WHEN IT RULED THAT PETITIONERS PATROCIN[I]A
RAVINA AND WILFREDO RAVINA ARE NOT INNOCENT PURCHASERS FOR VALUE, THE
SAME BEING CONTRARY TO LAW AND EVIDENCE.
III.
THE COURT OF APPEALS ERRED WHEN IT RULED THAT PETITIONERS PATROCIN[I]A
RAVINA AND WILFREDO RAVINA ARE LIABLE FOR DAMAGES, THE SAME BEING
CONTRARY TO LAW AND EVIDENCE.10
In essence, petitioners assail the appellate courts declaration that the sale to them
by Pedro of the lot covered by TCT No. T-88674 is null and void. However, in
addressing this issue, it is imperative to determine: (1) whether the subject property
covered by TCT No. T-88674 is an exclusive property of Pedro or conjugal property,
and (2) whether its sale by Pedro was valid considering the absence of Mary Anns
consent.

392

Petitioners assert that the subject lot covered by TCT No. T-88674 was the exclusive
property of Pedro having been acquired by him through barter or exchange. 11 They
allege that the subject lot was acquired by Pedro with the proceeds of the sale of
one of his exclusive properties. Allegedly, Pedro and his sister Carmelita initially
agreed to exchange their exclusive lots covered by TCT No. T-26479 and TCT No. T26472, respectively. Later, however, Pedro sold the lot covered by TCT No. T-26472
to one Francisca Teh Ting and purchased the property of Carmelita using the
proceeds of the sale. A new title, TCT No. T-88674, was issued thereafter. Thus,
petitioners insist that the subject lot remains to be an exclusive property of Pedro as
it was acquired or purchased through the exclusive funds or money of the latter.
We are not persuaded. Article 160 of the New Civil Code provides, "All property of
the marriage is presumed to belong to the conjugal partnership, unless it be proved
that it pertains exclusively to the husband or to the wife."
There is no issue with regard to the lot covered by TCT No. T-26471, which was an
exclusive property of Pedro, having been acquired by him before his marriage to
Mary Ann. However, the lot covered by TCT No. T-88674 was acquired in 1982
during the marriage of Pedro and Mary Ann. No evidence was adduced to show that
the subject property was acquired through exchange or barter. The presumption of
the conjugal nature of the property subsists in the absence of clear, satisfactory and
convincing evidence to overcome said presumption or to prove that the subject
property is exclusively owned by Pedro. 12 Petitioners bare assertion would not
suffice to overcome the presumption that TCT No. T-88674, acquired during the
marriage of Pedro and Mary Ann, is conjugal. Likewise, the house built thereon is
conjugal property, having been constructed through the joint efforts of the spouses,
who had even obtained a loan from DBP to construct the house.1avvphi1
Significantly, a sale or encumbrance of conjugal property concluded after the
effectivity of the Family Code on August 3, 1988, is governed by Article 124 of the
same Code that now treats such a disposition to be void if done (a) without the
consent of both the husband and the wife, or (b) in case of one spouses inability,
the authority of the court. Article 124 of the Family Code, the governing law at the
time the assailed sale was contracted, is explicit:
ART. 124. The administration and enjoyment of the conjugal partnership property
shall belong to both spouses jointly. In case of disagreement, the husbands decision
shall prevail, subject to recourse to the court by the wife for proper remedy which
must be availed of within five years from the date of the contract implementing
such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in
the administration of the conjugal properties, the other spouse may assume sole
powers of administration. These powers do not include the powers of disposition or
393

encumbrance which must have the authority of the court or the written consent of
the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may
be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors.
(Emphasis supplied.)
The particular provision in the New Civil Code giving the wife ten (10) years to annul
the alienation or encumbrance was not carried over to the Family Code. It is thus
clear that alienation or encumbrance of the conjugal partnership property by the
husband without the consent of the wife is null and void.
Hence, just like the rule in absolute community of property, if the husband, without
knowledge and consent of the wife, sells conjugal property, such sale is void. If the
sale was with the knowledge but without the approval of the wife, thereby resulting
in a disagreement, such sale is annullable at the instance of the wife who is given
five (5) years from the date the contract implementing the decision of the husband
to institute the case.13
Here, respondent Mary Ann timely filed the action for annulment of sale within five
(5) years from the date of sale and execution of the deed. However, her action to
annul the sale pertains only to the conjugal house and lot and does not include the
lot covered by TCT No. T-26471, a property exclusively belonging to Pedro and which
he can dispose of freely without Mary Anns consent.
On the second assignment of error, petitioners contend that they are buyers in good
faith.14 Accordingly, they need not inquire whether the lot was purchased by money
exclusively belonging to Pedro or of the common fund of the spouses and may rely
on the certificates of title.
The contention is bereft of merit. As correctly held by the Court of Appeals, a
purchaser in good faith is one who buys the property of another without notice that
some other person has a right to, or interest in, such property and pays a full and
fair price for the same at the time of such purchase, or before he has notice of the
claim or interest of some other person in the property. 15 To establish his status as a
buyer for value in good faith, a person dealing with land registered in the name of
and occupied by the seller need only show that he relied on the face of the sellers
certificate of title. But for a person dealing with land registered in the name of and
occupied by the seller whose capacity to sell is restricted, such as by Articles 166
and 173 of the Civil Code or Article 124 of the Family Code, he must show that he
inquired into the latters capacity to sell in order to establish himself as a buyer for
value in good faith.161avvphi1

394

In the present case, the property is registered in the name of Pedro and his wife,
Mary Ann. Petitioners cannot deny knowledge that during the time of the sale in
1991, Pedro was married to Mary Ann. However, Mary Anns conformity did not
appear in the deed. Even assuming that petitioners believed in good faith that the
subject property is the exclusive property of Pedro, they were apprised by Mary
Anns lawyer of her objection to the sale and yet they still proceeded to purchase
the property without Mary Anns written consent. Moreover, the respondents were
the ones in actual, visible and public possession of the property at the time the
transaction was being made. Thus, at the time of sale, petitioners knew that Mary
Ann has a right to or interest in the subject properties and yet they failed to obtain
her conformity to the deed of sale. Hence, petitioners cannot now invoke the
protection accorded to purchasers in good faith.
Now, if a voidable contract is annulled, the restoration of what has been given is
proper. The relationship between the parties in any contract even if subsequently
annulled must always be characterized and punctuated by good faith and fair
dealing.17 Hence, in consonance with justice and equity and the salutary principle of
non-enrichment at anothers expense, we sustain the appellate courts order
directing Pedro to return to petitioner spouses the value of the consideration for the
lot covered by TCT No. T-88674 and the house thereon.
However, this court rules that petitioners cannot claim reimbursements for
improvements they introduced after their good faith had ceased. As correctly found
by the Court of Appeals, petitioner Patrocinia Ravina made improvements and
renovations on the house and lot at the time when the complaint against them was
filed. Ravina continued introducing improvements during the pendency of the
action.18
Thus, Article 449 of the New Civil Code is applicable. It provides that, "(h)e who
builds, plants or sows in bad faith on the land of another, loses what is built, planted
or sown without right to indemnity." 19
On the last issue, petitioners claim that the decision awarding damages to
respondents is not supported by the evidence on record. 20
The claim is erroneous to say the least. The manner by which respondent and her
children were removed from the family home deserves our condemnation. On July 5,
1991, while respondent was out and her children were in school, Pedro Villa Abrille
acting in connivance with the petitioners 21 surreptitiously transferred all their
personal belongings to another place. The respondents then were not allowed to
enter their rightful home or family abode despite their impassioned pleas.
Firmly established in our civil law is the doctrine that: "Every person must, in the
exercise of his rights and in the performance of his duties, act with justice, give
395

everyone his due, and observe honesty and good faith." 22 When a right is exercised
in a manner that does not conform with such norms and results in damages to
another, a legal wrong is thereby committed for which the wrong doer must be held
responsible. Similarly, any person who willfully 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 damages caused.23 It is patent in this case that petitioners alleged
acts fall short of these established civil law standards.
WHEREFORE, we deny the instant petition for lack of merit. The Decision dated
February 21, 2002 and the Resolution dated October 7, 2003 of the Court of Appeals
in CA-G.R. CV No. 54560 are AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. 179736

June 26, 2013

SPOUSES
BILL
AND
VICTORIA
HING, Petitioners,
vs.
ALEXANDER CHOACHUY, SR. and ALLAN CHOACHUY, Respondents.
DECISION
DEL CASTILLO, J.:
"The concept of liberty would be emasculated if it does not likewise compel respect
for one's personality as a unique individual whose claim to privacy and noninterference demands respect."1
This Petition for Review on Certiorari 2 under Rule 45 of the Rules of Court assails the
July 10, 2007 Decision3and the September 11, 2007 Resolution 4 of the Court of
Appeals (CA) in CA-G.R. CEB-SP No. 01473.
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional
Trial Court (RTC) of Mandaue City a Complaint 5 for Injunction and Damages with
prayer for issuance of a Writ of Preliminary Mandatory Injunction/Temporary
Restraining Order (TRO), docketed as Civil Case MAN-5223 and raffled to Branch 28,
against respondents Alexander Choachuy, Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in Barangay
396

Basak, City of Mandaue, Cebu; 6 that respondents are the owners of Aldo
Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to
the property of petitioners;7 that respondents constructed an auto-repair shop
building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case
against petitioners for Injunction and Damages with Writ of Preliminary
Injunction/TRO, docketed as Civil Case No. MAN-5125; 8 that in that case, Aldo
claimed that petitioners were constructing a fence without a valid permit and that
the said construction would destroy the wall of its building, which is adjacent to
petitioners property;9 that the court, in that case, denied Aldos application for
preliminary injunction for failure to substantiate its allegations; 10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up and
installed on the building of Aldo Goodyear Servitec two video surveillance cameras
facing petitioners property;11 that respondents, through their employees and
without the consent of petitioners, also took pictures of petitioners on-going
construction;12 and that the acts of respondents violate petitioners right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove the video
surveillance cameras and enjoined from conducting illegal surveillance. 14
In their Answer with Counterclaim, 15 respondents claimed that they did not install
the video surveillance cameras, 16 nor did they order their employees to take
pictures of petitioners construction. 17 They also clarified that they are not the
owners of Aldo but are mere stockholders.18
Ruling of the Regional Trial Court
On October 18, 2005, the RTC issued an Order 19 granting the application for a TRO.
The dispositive portion of the said Order reads:
WHEREFORE, the application for a Temporary Restraining Order or a Writ of
Preliminary Injunction is granted. Upon the filing and approval of a bond by
petitioners, which the Court sets at P50,000.00, let a Writ of Preliminary Injunction
issue against the respondents Alexander Choachuy, Sr. and Allan Choachuy. They
are hereby directed to immediately remove the revolving camera that they installed
at the left side of their building overlooking the side of petitioners lot and to
transfer and operate it elsewhere at the back where petitioners property can no
longer be viewed within a distance of about 2-3 meters from the left corner of Aldo
Servitec, facing the road.
IT IS SO ORDERED.20
Respondents moved for a reconsideration 21 but the RTC denied the same in its
Order22 dated February 6, 2006.23 Thus:

397

WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of merit.
Issue a Writ of Preliminary Injunction in consonance with the Order dated 18
October 2005.
IT IS SO ORDERED.24
Aggrieved, respondents filed with the CA a Petition for Certiorari 25 under Rule 65 of
the Rules of Court with application for a TRO and/or Writ of Preliminary Injunction.
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision 26 granting the Petition for Certiorari. The
CA ruled that the Writ of Preliminary Injunction was issued with grave abuse of
discretion because petitioners failed to show a clear and unmistakable right to an
injunctive writ.27 The CA explained that the right to privacy of residence under
Article 26(1) of the Civil Code was not violated since the property subject of the
controversy is not used as a residence. 28 The CA alsosaid that since respondents are
not the owners of the building, they could not have installed video surveillance
cameras.29 They are mere stockholders of Aldo, which has a separate juridical
personality.30 Thus, they are not the proper parties.31 The fallo reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us
GRANTING the petition filed in this case. The assailed orders dated October 18,
2005 and February 6, 2006 issued by the respondent judge are hereby ANNULLED
and SET ASIDE.
SO ORDERED.32
Issues
Hence, this recourse by petitioners arguing that:
I.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET
ASIDE THE ORDERS OF THE RTC DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006
HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE OF DISCRETION.
II.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT PETITIONER
SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION ON
THE GROUND THAT THERE IS NO VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL
RIGHT TO PRIVACY DESPITE THE FACTUAL FINDINGS OF THE RTC, WHICH
398

RESPONDENTS CHOACHUY FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED

SURVEILLANCE CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE
PRIVATE ACTIVITIES OF PETITIONER SPOUSES HING, THEIR CHILDREN AND
EMPLOYEES.
III.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE
OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO
SUE RESPONDENTS CHOACHUY CONSTITUTES A PURPORTEDLY UNWARRANTED
PIERCING OF THE CORPORATE VEIL.
IV.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS
FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION FOR
RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENTS CHOACHUY AND
GAVE X X X THEM DUE COURSE AND CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is a violation of petitioners
right to privacy, and (2) whether respondents are the proper parties to this suit.
Petitioners Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents installation of a stationary camera directly facing
petitioners property and a revolving camera covering a significant portion of the
same property constitutes a violation of petitioners right to privacy. 34 Petitioners
cite Article 26(1) of the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains to the privacy of
anothers residence, petitioners opine that it includes business offices, citing
Professor Arturo M. Tolentino.36 Thus, even assuming arguendo that petitioners
property is used for business, it is still covered by the said provision. 37
As to whether respondents are the proper parties to implead in this case, petitioners
claim that respondents and Aldo are one and the same, and that respondents only
want to hide behind Aldos corporate fiction. 38 They point out that if respondents are
not the real owners of the building, where the video surveillance cameras were
installed, then they had no business consenting to the ocular inspection conducted
by the court.39
Respondents Arguments

399

Respondents, on the other hand, echo the ruling of the CA that petitioners cannot
invoke their right to privacy since the property involved is not used as a
residence.40 Respondents maintain that they had nothing to do with the installation
of the video surveillance cameras as these were installed by Aldo, the registered
owner of the building,41 as additional security for its building.42 Hence, they were
wrongfully impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our Constitution 44 and in our laws. It is defined as
"the right to be free from unwarranted exploitation of ones person or from intrusion
into ones private activities in such a way as to cause humiliation to a persons
ordinary sensibilities."45 It is the right of an individual "to be free from unwarranted
publicity, or to live without unwarranted interference by the public in matters in
which the public is not necessarily concerned." 46 Simply put, the right to privacy is
"the right to be let alone."47
The Bill of Rights guarantees the peoples right to privacy and protects them against
the States abuse of power. In this regard, the State recognizes the right of the
people to be secure in their houses. No one, not even the State, except "in case of
overriding social need and then only under the stringent procedural safeguards,"
can disturb them in the privacy of their homes. 48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded
therefrom and only certain individuals
are allowed to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individuals right to
privacy and provides a legal remedy against abuses that may be committed against
him by other individuals. It states:
Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though

400

they may not constitute a criminal offense, shall produce a cause of action for
damages, prevention and other relief:
(1) Prying into the privacy of anothers residence;
xxxx
This provision recognizes that a mans house is his castle, where his right to privacy
cannot be denied or even restricted by others. It includes "any act of intrusion into,
peeping or peering inquisitively into the residence of another without the consent of
the latter."49 The phrase "prying into the privacy of anothers residence," however,
does not mean that only the residence is entitled to privacy. As elucidated by Civil
law expert Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy of anothers residence." This
does not mean, however, that only the residence is entitled to privacy, because the
law covers also "similar acts." A business office is entitled to the same privacy when
the public is excluded therefrom and only such individuals as are allowed to enter
may come in. x x x50 (Emphasis supplied)
Thus, an individuals right to privacy under Article 26(1) of the Civil Code should not
be confined to his house or residence as it may extend to places where he has the
right to exclude the public or deny them access. The phrase "prying into the privacy
of anothers residence," therefore, covers places, locations, or even situations which
an individual considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. The CA, therefore, erred in
limiting the application of Article 26(1) of the Civil Code only to residences.
The
privacy"
whether
to privacy.

"reasonable
test
is
there
is
a

expectation
used
to
violation
of

of
determine
the
right

In ascertaining whether there is a violation of the right to privacy, courts use the
"reasonable expectation of privacy" test. This test determines whether a person has
a reasonable expectation of privacy and whether the expectation has been
violated.51 In Ople v. Torres,52 we enunciated that "the reasonableness of a persons
expectation of privacy depends on a two-part test: (1) whether, by his conduct, the
individual has exhibited an expectation of privacy; and (2) this expectation is one
that society recognizes as reasonable." Customs, community norms, and practices
may, therefore, limit or extend an individuals "reasonable expectation of
privacy."53 Hence, the reasonableness of a persons expectation of privacy must be
determined on a case-to-case basis since it depends on the factual circumstances
surrounding the case.54
401

In this day and age, video surveillance cameras are installed practically everywhere
for the protection and safety of everyone. The installation of these cameras,
however, should not cover places where there is reasonable expectation of privacy,
unless the consent of the individual, whose right to privacy would be affected, was
obtained. Nor should these cameras be used to pry into the privacy of anothers
residence or business office as it would be no different from eavesdropping, which is
a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for Preliminary Injunction, ruled
that:
After careful consideration, there is basis to grant the application for a temporary
restraining order. The operation by respondents of a revolving camera, even if it
were mounted on their building, violated the right of privacy of petitioners, who are
the owners of the adjacent lot. The camera does not only focus on respondents
property or the roof of the factory at the back (Aldo Development and Resources,
Inc.) but it actually spans through a good portion of the land of petitioners.
Based on the ocular inspection, the Court understands why petitioner Hing was so
unyielding in asserting that the revolving camera was set up deliberately to monitor
the on[-]going construction in his property. The monitor showed only a portion of the
roof of the factory of Aldo. If the purpose of respondents in setting up a camera at
the back is to secure the building and factory premises, then the camera should
revolve only towards their properties at the back. Respondents camera cannot be
made to extend the view to petitioners lot. To allow the respondents to do that over
the objection of the petitioners would violate the right of petitioners as property
owners. "The owner of a thing cannot make use thereof in such a manner as to
injure the rights of a third person." 55
The RTC, thus, considered that petitioners have a "reasonable expectation of
privacy" in their property, whether they use it as a business office or as a residence
and that the installation of video surveillance cameras directly facing petitioners
property or covering a significant portion thereof, without their consent, is a clear
violation of their right to privacy. As we see then, the issuance of a preliminary
injunction was justified. We need not belabor that the issuance of a preliminary
injunction is discretionary on the part of the court taking cognizance of the case and
should not be interfered with, unless there is grave abuse of discretion committed
by the court.56 Here, there is no indication of any grave abuse of discretion. Hence,
the CA erred in finding that petitioners are not entitled to an injunctive writ.
This brings us to the next question: whether respondents are the proper parties to
this suit.

402

A
real
party
defendant
is
one
who
has
a
correlative
legal
obligation
to
redress
a
wrong
done
to
the
plaintiff
by
reason
of
the
defendant's
act
or
omission
which
had
violated
the
legal
right
of
the
former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest. A real party-in-interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party-in-interest.
A real party defendant is "one who has a correlative legal obligation to redress a
wrong done to the plaintiff by reason of the defendants act or omission which had
violated the legal right of the former." 57
In ruling that respondents are not the proper parties, the CA reasoned that since
they do not own the building, they could not have installed the video surveillance
cameras.58 Such reasoning, however, is erroneous. The fact that respondents are
not the registered owners of the building does not automatically mean that they did
not cause the installation of the video surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used against
petitioners in another case.59 During the hearing of the application for Preliminary
Injunction, petitioner Bill testified that when respondents installed the video
surveillance cameras, he immediately broached his concerns but they did not seem
to care,60 and thus, he reported the matter to the barangay for mediation, and
eventually, filed a Complaint against respondents before the RTC. 61 He also
admitted that as early as 1998 there has already been a dispute between his family
and the Choachuy family concerning the boundaries of their respective
properties.62 With these factual circumstances in mind, we believe that respondents
are the proper parties to be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from its
stockholders, records show that it is a family-owned corporation managed by the
Choachuy family.63
Also quite telling is the fact that respondents, notwithstanding their claim that they
are not owners of the building, allowed the court to enter the compound of Aldo and
conduct an ocular inspection. The counsel for respondents even toured Judge
Marilyn Lagura-Yap inside the building and answered all her questions regarding the
403

set-up and installation of the video surveillance cameras. 64 And when respondents
moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of
the arguments they raised is that Aldo would suffer damages if the video
surveillance cameras are removed and transferred. 65 Noticeably, in these instances,
the personalities of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion that respondents are
merely using the corporate fiction of Aldo as a shield to protect themselves from
this suit. In view of the foregoing, we find that respondents are the proper parties to
this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007 and
the Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP
No. 01473 are hereby REVERSED and SET ASIDE. The Orders dated October 18,2005
and February 6, 200[6] of Branch 28 of the Regional Trial Court of Mandaue City in
Civil Case No. MAN-5223 are hereby REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. 175540

April 7, 2014

DR.
FILOTEO
vs.
ZENAIDA MAGUD-LOGMAO, Respondent.

A.

ALANO, Petitioner,

DECISION
PERALTA, J.:
This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of
Court praying that the Decision 1of the Court of Appeals (CA), dated March 31, 2006,
adjudging petitioner liable for damages, and the Resolution 2dated November 22,
2006, denying petitioner's motion for reconsideration thereof, be reversed and set
aside.
The CA's narration of facts is accurate, to wit:
Plaintiff-appellee Zenaida Magud-Logmao is the mother of deceased Arnelito
Logmao. Defendant-appellant Dr. Filoteo Alano is the Executive Director of the
National Kidney Institute (NKI).
At around 9:50 in the evening of March 1, 1988, Arnelito Logmao, then eighteen
(18) years old, was brought to the East Avenue Medical Center (EAMC) in Quezon
City by two sidewalk vendors, who allegedly saw the former fall from the overpass
404

near the Farmers Market in Cubao, Quezon City. The patients data sheet identified
the patient as Angelito Lugmoso of Boni Avenue, Mandaluyong. However, the
clinical abstract prepared by Dr. Paterno F. Cabrera, the surgical resident on-duty at
the Emergency Room of EAMC, stated that the patient is Angelito [Logmao].
Dr. Cabrera reported that [Logmao] was drowsy with alcoholic breath, was conscious
and coherent; that the skull x-ray showed no fracture; that at around 4:00 oclock in
the morning of March 2, 1988, [Logmao] developed generalized seizures and was
managed by the neuro-surgery resident on-duty; that the condition of [Logmao]
progressively deteriorated and he was intubated and ambu-bagging support was
provided; that admission to the Intensive Care Unit (ICU) and mechanical ventilator
support became necessary, but there was no vacancy at the ICU and all the
ventilator units were being used by other patients; that a resident physician of NKI,
who was rotating at EAMC, suggested that [Logmao] be transferred to NKI; and that
after arrangements were made, [Logmao] was transferred to NKI at 10:10 in the
morning.
At the NKI, the name Angelito [Logmao] was recorded as Angelito Lugmoso.
Lugmoso was immediately attended to and given the necessary medical treatment.
As Lugmoso had no relatives around, Jennifer B. Misa, Transplant Coordinator, was
asked to locate his family by enlisting police and media assistance. Dr. Enrique T.
Ona, Chairman of the Department of Surgery, observed that the severity of the
brain injury of Lugmoso manifested symptoms of brain death. He requested the
Laboratory Section to conduct a tissue typing and tissue cross-matching
examination, so that should Lugmoso expire despite the necessary medical care
and management and he would be found to be a suitable organ donor and his
family would consent to organ donation, the organs thus donated could be detached
and transplanted promptly to any compatible beneficiary.
Jennifer Misa verified on the same day, March 2, 1988, from EAMC the identity of
Lugmoso and, upon her request, she was furnished by EAMC a copy of the patients
date sheet which bears the name Angelito Lugmoso, with address at Boni Avenue,
Mandaluyong. She then contacted several radio and television stations to request
for air time for the purpose of locating the family of Angelito Lugmoso of Boni
Avenue, Mandaluyong, who was confined at NKI for severe head injury after
allegedly falling from the Cubao overpass, as well as Police Station No. 5, Eastern
Police District, whose area of jurisdiction includes Boni Avenue, Mandaluyong, for
assistance in locating the relatives of Angelito Lugmoso. Certifications were issued
by Channel 4, ABS-CBN and GMA attesting that the request made by the NKI on
March 2, 1988 to air its appeal to locate the family and relatives of Angelito
Lugmoso of Boni Avenue, Mandaluyong was accommodated. A Certification was
likewise issued by Police Station No. 5, Eastern Police District, Mandaluyong
attesting to the fact that on March 2, 1988, at about 6:00 p.m., Jennifer Misa

405

requested for assistance to immediately locate the family and relatives of Angelito
Lugmoso and that she followed up her request until March 9, 1988.
On March 3, 1988, at about 7:00 oclock in the morning, Dr. Ona was informed that
Lugmoso had been pronounced brain dead by Dr. Abdias V. Aquino, a neurologist,
and by Dr. Antonio Rafael, a neurosurgeon and attending physician of Lugmoso, and
that a repeat electroencephalogram (EEG) was in progress to confirm the diagnosis
of brain death. Two hours later, Dr. Ona was informed that the EEG recording
exhibited a flat tracing, thereby confirming that Lugmoso was brain dead. Upon
learning that Lugmoso was a suitable organ donor and that some NKI patients
awaiting organ donation had blood and tissue types compatible with Lugmoso, Dr.
Ona inquired from Jennifer Misa whether the relatives of Lugmoso had been located
so that the necessary consent for organ donation could be obtained. As the
extensive search for the relatives of Lugmoso yielded no positive result and time
being of the essence in the success of organ transplantation, Dr. Ona requested Dr.
Filoteo A. Alano, Executive Director of NKI, to authorize the removal of specific
organs from the body of Lugmoso for transplantation purposes. Dr. Ona likewise
instructed Dr. Rose Marie Rosete-Liquete to secure permission for the planned organ
retrieval and transplantation from the Medico-Legal Office of the National Bureau of
Investigation (NBI), on the assumption that the incident which lead to the brain
injury and death of Lugmoso was a medico legal case.
On March 3, 1988, Dr. Alano issued to Dr. Ona a Memorandum, which reads as
follows:
This is in connection with the use of the human organs or any portion or portions of
the human body of the deceased patient, identified as a certain Mr. Angelito
Lugmoso who was brought to the National Kidney Institute on March 2, 1988 from
the East Avenue Medical Center.
As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in
the morning due to craniocerebral injury. Please make certain that your Department
has exerted all reasonable efforts to locate the relatives or next of kin of the said
deceased patient such as appeal through the radios and television as well as
through police and other government agencies and that the NBI [Medico-Legal]
Section has been notified and is aware of the case.
If all the above has been complied with, in accordance with the provisions of
Republic Act No. 349 as amended and P.D. 856, permission and/or authority is
hereby given to the Department of Surgery to retrieve and remove the kidneys,
pancreas, liver and heart of the said deceased patient and to transplant the said
organs to any compatible patient who maybe in need of said organs to live and
survive.

406

A Certification dated March 10, 1988 was issued by Dr. Maximo Reyes, Medico-Legal
Officer of the NBI, stating that he received a telephone call from Dr. Liquete on
March 3, 1988 at 9:15 a.m. regarding the case of Lugmoso, who was declared brain
dead; that despite efforts to locate the latters relatives, no one responded; that Dr.
Liquete sought from him a second opinion for organ retrieval for donation purposes
even in the absence of consent from the family of the deceased; and that he
verbally agreed to organ retrieval.
At 3:45 in the afternoon of March 3, 1988, a medical team, composed of Dr. Enrique
Ona, as principal surgeon, Drs. Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete,
Aurea Ambrosio, Ludivino de Guzman, Mary Litonjua, Jaime Velasquez, Ricardo
Fernando, and Myrna Mendoza, removed the heart, kidneys, pancreas, liver and
spleen of Lugmoso. The medical team then transplanted a kidney and the pancreas
of Lugmoso to Lee Tan Hoc and the other kidney of Lugmoso to Alexis Ambustan.
The transplant operation was completed at around 11:00 oclock in the evening of
March 3, 1988.
On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort
(CORE) program of NKI, made arrangements with La Funeraria Oro for the
embalmment of the cadaver of Lugmoso good for a period of fifteen (15) days to
afford NKI more time to continue searching for the relatives of the latter. On the
same day, Roberto Ortega, Funeral Consultant of La Funeraria Oro, sent a request
for autopsy to the NBI. The Autopsy Report and Certification of Post-Mortem
Examination issued by the NBI stated that the cause of death of Lugmoso was
intracranial hemorrhage secondary to skull fracture.
On March 11, 1988, the NKI issued a press release announcing its successful double
organ transplantation. Aida Doromal, a cousin of plaintiff, heard the news aired on
television that the donor was an eighteen (18) year old boy whose remains were at
La Funeraria Oro in Quezon City. As the name of the donor sounded like Arnelito
Logmao, Aida informed plaintiff of the news report.
It appears that on March 3, 1988, Arlen Logmao, a brother of Arnelito, who was then
a resident of 17-C San Pedro Street, Mandaluyong, reported to Police Station No. 5,
Eastern Police District, Mandaluyong that the latter did not return home after seeing
a movie in Cubao, Quezon City, as evidenced by a Certification issued by said
Station; and that the relatives of Arnelito were likewise informed that the latter was
missing. Upon receiving the news from Aida, plaintiff and her other children went to
La Funeraria Oro, where they saw Arnelito inside a cheap casket.
On April 29, 1988, plaintiff filed with the court a quo a complaint for damages
against Dr. Emmanuel Lenon, Taurean Protectors Agency, represented by its
Proprietor, Celso Santiago, National Kidney Institute, represented by its Director, Dr.
Filoteo A. Alano, Jennifer Misa, Dr. Maximo Reyes, Dr. Enrique T. Ona, Dr. Manuel
407

Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-Liquete, Dr. Aurea Z. Ambrosio, Dr.
Ludivino de Guzman, Dr. Mary Litonjua, Dr. Jaime Velasquez, Dr. Ricardo Fernando,
Dr. Myrna Mendoza, Lee Tan Koc, Alexis Ambustan, Dr. Antonio R. Paraiso, La
Funeraria Oro, Inc., represented by its President, German E. Ortega, Roberto Ortega
alias Bobby Ortega, Dr. Mariano B. Cueva, Jr., John Doe, Peter Doe, and Alex Doe in
connection with the death of her son Arnelito. Plaintiff alleged that defendants
conspired to remove the organs of Arnelito while the latter was still alive and that
they concealed his true identity.
On January 17, 2000, the court a quo rendered judgment finding only Dr. Filoteo
Alano liable for damages to plaintiff and dismissing the complaint against the other
defendants for lack of legal basis. 3
After finding petitioner liable for a quasi-delict, the Regional Trial Court of Quezon
City (RTC) ordered petitioner to pay respondent P188,740.90 as actual
damages; P500,000.00
as
moral
damages; P500,000.00
as
exemplary
damages; P300,000.00 as attorney's fees; and costs of suit. Petitioner appealed to
the CA.
On March 31, 2006, the CA issued its Decision, the dispositive portion of which
reads as follows:
WHEREFORE, the Decision appealed from is AFFIRMED, with MODIFICATION by
DELETING the award ofP188,740.90 as actual damages and REDUCING the award of
moral damages to P250,000.00, the award of exemplary damages to P200,000.00
and the award of attorney's fees to P100,000.00.
SO ORDERED.4
Petitioner then elevated the matter to this Court via a petition for review on
certiorari, where the following issues are presented for resolution:
A. WHETHER THE COURT OF APPEALS DISREGARDED EXISTING
JURISPRUDENCE PRONOUNCED BY THIS HONORABLE SUPREME COURT IN
HOLDING PETITIONER DR. FILOTEO ALANO LIABLE FOR MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES DESPITE THE FACT THAT THE
ACT OF THE PETITIONER IS NOT THE PROXIMATE CAUSE NOR IS THERE ANY
FINDING THAT THE ACT OF THE PETITIONER WAS THE PROXIMATE CAUSE OF
THE INJURY OR DAMAGE ALLEGEDLY SUSTAINED BY RESPONDENT ZENAIDA
MAGUD-LOGMAO.
B. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN REFUSING AND/OR
FAILING TO DECLARE THAT PETITIONER DR. ALANO ACTED IN GOOD FAITH
AND PURSUANT TO LAW WHEN HE ISSUED THE AUTHORIZATION TO REMOVE
408

AND RETRIEVE THE ORGANS OF ANGELITO LUGMOSO (LATER IDENTIFIED TO

BE IN FACT ARNELITO LOGMAO) CONSIDERING THAT NO NEGLIGENCE CAN BE
ATTRIBUTED OR IMPUTED ON HIM IN HIS PERFORMANCE OF AN ACT
MANDATED BY LAW.
C. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AWARDING
RESPONDENT ZENAIDA MAGUD-LOGMAO MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY'S FEES THAT ARE NOT IN ACCORDANCE WITH AND ARE
CONTRARY TO ESTABLISHED JURISPRUDENCE.5
The first two issues boil down to the question of whether respondent's sufferings
were brought about by petitioner's alleged negligence in granting authorization for
the removal or retrieval of the internal organs of respondent's son who had been
declared brain dead.
Petitioner maintains that when he gave authorization for the removal of some of the
internal organs to be transplanted to other patients, he did so in accordance with
the letter of the law, Republic Act (R.A.) No. 349, as amended by Presidential Decree
(P.D.) 856, i.e., giving his subordinates instructions to exert all reasonable efforts to
locate the relatives or next of kin of respondent's son. In fact, announcements were
made through radio and television, the assistance of police authorities was sought,
and the NBI Medico-Legal Section was notified. Thus, petitioner insists that he
should not be held responsible for any damage allegedly suffered by respondent
due to the death of her son and the removal of her sons internal organs for
transplant purposes.
The appellate court affirmed the trial court's finding that there was negligence on
petitioner's part when he failed to ensure that reasonable time had elapsed to
locate the relatives of the deceased before giving the authorization to remove said
deceased's internal organs for transplant purposes. However, a close examination of
the records of this case would reveal that this case falls under one of the exceptions
to the general rule that factual findings of the trial court, when affirmed by the
appellate court, are binding on this Court. There are some important circumstances
that the lower courts failed to consider in ascertaining whether it was the actions of
petitioner that brought about the sufferings of respondent. 6
The Memorandum dated March 3, 1988 issued by petitioner, stated thus:
As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in
the morning due to craniocerebral injury. Please make certain that your Department
has exerted all reasonable efforts to locate the relatives or next-of-kin of the said
deceased patient, such as appeal through the radios and television, as well as
through police and other government agencies and that the NBI [Medico-Legal]
Section has been notified and is aware of the case.
409

If all the above has been complied with, in accordance with the provisions of
Republic Act No. 349 as amended and P.D. 856, permission and/or authority is
hereby given to the Department of Surgery to retrieve and remove the kidneys,
pancreas, liver and heart of the said deceased patient and to transplant the said
organs to any compatible patient who maybe in need of said organs to live and
survive.7
A careful reading of the above shows that petitioner instructed his subordinates to
"make certain" that "all reasonable efforts" are exerted to locate the patient's next
of kin, even enumerating ways in which to ensure that notices of the death of the
patient would reach said relatives. It also clearly stated that permission or
authorization to retrieve and remove the internal organs of the deceased was being
given ONLY IF the provisions of the applicable law had been complied with. Such
instructions reveal that petitioner acted prudently by directing his subordinates to
exhaust all reasonable means of locating the relatives of the deceased. He could not
have made his directives any clearer. He even specifically mentioned that
permission is only being granted IF the Department of Surgery has complied with all
the requirements of the law. Verily, petitioner could not have been faulted for
having full confidence in the ability of the doctors in the Department of Surgery to
comprehend the instructions, obeying all his directives, and acting only in
accordance with the requirements of the law.
Furthermore, as found by the lower courts from the records of the case, the doctors
and personnel of NKI disseminated notices of the death of respondent's son to the
media and sought the assistance of the appropriate police authorities as early as
March 2, 1988, even before petitioner issued the Memorandum. Prior to performing
the procedure for retrieval of the deceased's internal organs, the doctors concerned
also the sought the opinion and approval of the Medico-Legal Officer of the NBI.
Thus, there can be no cavil that petitioner employed reasonable means to
disseminate notifications intended to reach the relatives of the deceased. The only
question that remains pertains to the sufficiency of time allowed for notices to reach
the relatives of the deceased.
If respondent failed to immediately receive notice of her son's death because the
notices did not properly state the name or identity of the deceased, fault cannot be
laid at petitioner's door. The trial and appellate courts found that it was the EAMC,
who had the opportunity to ascertain the name of the deceased, who recorded the
wrong information regarding the deceased's identity to NKI. The NKI could not have
obtained the information about his name from the patient, because as found by the
lower courts, the deceased was already unconscious by the time he was brought to
the NKI.

410

Ultimately, it is respondent's failure to adduce adequate evidence that doomed this

case.1wphi1 As stated in Otero v. Tan,8 "[i]n civil cases, it is a basic rule that the
party making allegations has the burden of proving them by a preponderance of
evidence. The parties must rely on the strength of their own evidence and not upon
the weakness of the defense offered by their opponent." 9 Here, there is to proof
that, indeed, the period of around 24 hours from the time notices were
disseminated, cannot be considered as reasonable under the circumstances. They
failed to present any expert witness to prove that given the medical technology and
knowledge at that time in the 1980's, the doctors could or should have waited
longer before harvesting the internal organs for transplantation.
Verily, the Court cannot, in conscience, agree with the lower court. Finding
petitioner liable for damages is improper. It should be emphasized that the internal
organs of the deceased were removed only after he had been declared brain dead;
thus, the emotional pain suffered by respondent due to the death of her son cannot
in any way be attributed to petitioner. Neither can the Court find evidence on record
to show that respondent's emotional suffering at the sight of the pitiful state in
which she found her son's lifeless body be categorically attributed to petitioner's
conduct.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated
March 31, 2006, is REVERSED and SET ASIDE. The complaint against petitioner is
hereby DISMISSED.
SO ORDERED.
G.R. No. L-19671

July 26, 1966

PASTOR
B.
TENCHAVEZ, plaintiff
vs.
VICENTA F. ESCAO, ET AL., defendants and appellees.

and

appellant,

Isabelo V. Binamira, Filemon B. Barria and Crispin D. Baizas and Associates for
appellants.
Vicente L. Faelnar for appellee Mamerto Escao and Mena F. Escao.
Jalandoni
and
Jamir
for
appellee
Vicenta
F.
Escao
Norberto J. Quisumbing for intervenor Russel Leo Moran.
RESOLUTION
REYES, J.B.L., J.:
Not satisfied with the decision of this Court, promulgated on 29 November 1965, in
the above-entitled case, plaintiff-appellant Pastor B. Tenchavez and defendant411

appellee Vicenta F. Escao, respectively, move for its reconsideration; in addition,

Russell Leo Moran, whom said defendant married in the United States, has filed,
upon leave previously granted, a memorandum in intervention.
Movant Tenchavez poses the novel theory that Mamerto and Mina Escao are
undeserving of an award for damages because they are guilty of contributory
negligence in failing to take up proper and timely measures to dissuade their
daughter Vicenta from leaving her husband Tenchavez obtaining a foreign divorce
and marrying another man (Moran). This theory cannot be considered: first, because
this was not raised in the court below; second, there is no evidence to support it;
third, it contradicts plaintiff's previous theory of alienation of affections in that
contributory negligence involves an omission to perform an act while alienation of
affection involves the performance of a positive act.
The prayer of appellant Tenchavez in his motion for reconsideration to increase the
damages against Vicenta (P25,000 for damages and attorney's fees were awarded
to Tenchavez in the decision) should, likewise, be denied, all factors and
circumstances in the case having been duly considered in the main decision.
In seeking a reexamination of the decision, defendant-appellee Vicenta Escao, in
turn, urges a comparison between the two marriages, stating, in plainer terms, that
the Tenchavez-Escano marriage was no more than a ceremony, and a faulty one at
that, while the Moran-Escao marriage fits the concept of a marriage as a social
institution because publicly contracted, recognized by both civil and ecclesiastical
authorities, and blessed by three children. She concludes that, since the second
marriage is the better one, it deserves the laws recognition and protection over the
other. This is a dangerous proposition: it legalizes a continuing polygamy by
permitting a spouse to just drop at pleasure her consort for another in as many
jurisdictions as would grant divorce on the excuse that the new marriage is better
than the previous one; and, instead of fitting the concept of marriage as a social
institution, the proposition altogether does away with the social aspects of marriage
in favor of its being a matter of private contract and personal adventure.
The said appellee claims that state recognition should be accorded the Church's
disavowal of her marriage with Tenchavez. On this point, our main decision limited
itself to the statement, "On 10 September 1954, Vicenta sought papal dispensation
of her marriage (Exh. P-2)", without stating that papal dispensation was actually
granted, the reason being that Vicenta's claim that dispensation was granted was
not indubitable, and her counsel, during the trial in the lower court, did not make
good his promise to submit the document evidencing the papal dispensation; in
fact, no such document appears on record. The Church's disavowal of the marriage,
not being sufficiently established, it cannot be considered. Vicenta's belated appeal
to Canon law, after she had sought and failed to obtain annulment in the civil
courts, and after she had flaunted its principles by obtaining absolute divorce, does
412

not, and can not, sound convincing. Particularly when account is taken of the
circumstances that she obtained the Nevada divorce in 1950 and only sought
ecclesiastical release from her marriage to Tenchavez in 1954.
The award of moral damages against Vicenta Escao is assailed on the ground that
her refusal to perform her wifely duties, her denial of consortium and desertion of
her husband are not included in the enumeration of cases where moral damages
may lie. The argument is untenable. The acts of Vicenta (up to and including her
divorce, for grounds not countenanced by our law, which was hers at the time)
constitute a wilful infliction of injury upon plaintiff's feelings in a manner "contrary
to morals, good customs or public policy" (Civ. Code, Art. 21) for which Article 2219
(10) authorizes an award of moral damages. Neither the case of Ventanilla vs.
Centeno, L-14333, 28 January 1961 (which was a suit filed by a client against his
lawyer for failure to perfect an appeal on time), nor the case of Malonzo vs. Galang,
L-13851, 27 July 1960 (wherein the precise ruling was that moral damages may not
be recovered for a clearly unfounded civil action or proceeding), now invoked by the
said defendant-appellee, is in point.
It is also argued that, by the award of moral damages, an additional effect of legal
separation has been added to Article 106. Appellee obviously mistakes our grant of
damages as an effect of legal separation. It was plain in the decision that the
damages attached to her wrongful acts under the codal article (Article 2176)
expressly cited.
Appellee-movant commits a similar mistake by citing Arroyo vs. Arroyo, 42 Phil. 54,
and Ramirez-Cuaderno vs. Cuaderno, L-20043, 28 November 1964, to support her
argument that moral
damages did not attach to her failure to
render consortium because the sanction therefor is spontaneous mutual affection,
and not any legal mandate or court order. The Arroyo case did rule that "it is not
within the province of courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other", but it referred to
physically coercive means, the Court declaring that
We are disinclined to sanction the doctrine that an order, enforcible by
process of contempt, may be entered to compel prostitution of the purely
personal right of consortism. (Cas cit., p. 60) (Emphasis supplied)
But economic sanctions are not held in our law to be incompatible with the respect
accorded to individual liberty in civil cases. Thus, a consort who unjustifiably deserts
the conjugal abode can be denied support (Art. 178, Civil Code of the Phil.). And
where the wealth of the deserting spouse renders this remedy illusory, there is no
cogent reason why the court may not award damage as it may in cases of breach of
other obligations to do intuitu personae even if in private relations physical coercion
be barred under the old maxim "Nemo potest precise cogi and factum".
413

For analogous reasons, the arguments advanced against the award of attorney's
fees must be rejected as devoid of merit.
Contrary to intervenor Moran's contention, the decision did not impair appellee's
constitutional liberty of abode and freedom of locomotion, as, in fact, Vicenta
Escao did exercise these rights, and even abused them by stating in her
application for a passport that she was "single", the better to facilitate her flight
from the wrongs she had committed against her husband. The right of a citizen to
transfer to a foreign country and seek divorce in a diverse forum is one thing, and
the recognition to be accorded to the divorce decree thus obtained is quite another;
and the two should not be confused.
Intervenor reiterates that recognition of Vicenta's divorce in Nevada is a more
enlightened view. The argument should be addressed in the legislature. As the case
presently stands, the public policy of this forum is clearly adverse to such
recognition, as was extensively discussed in the decision. The principle is wellestablished, in private international law, that foreign decrees cannot be enforced or
recognized if they contravene public policy (Nussbaum, Principles of Private
International Law, p. 232).
It is thoroughly established as a broad general rule that foreign law or rights based
therein will not be given effect or enforced if opposed to the settled public policy of
the forum. (15 C.J.S. 853)
SEC. 6. Limitations. In the recognition and enforcement of foreign laws the
Courts are slow to overrule the positive law of the forum, and they will never
give effect to a foreign law where to do so would prejudice the state's own
rights or the rights of its citizens or where the enforcement of the foreign law
would contravene the positive policy of the law of the forum whether or not
that policy is reflected in statutory enactments. (11 Am. Jur., 300-301).
A judgment affecting the status of persons, such as a decree confirming or
dissolving a marriage, is recognized as valid in every country, unless contrary
to the policy of its own law. Cottington's Case, 2 Swan St. 326, note; Roach
vs. Garvan, I Ves St. 157; Harvey vs. Farnie, LR 8 App. Cas. 43; Cheely vs.
Clayton, 110 U.S. 701 [28:298]. (Hilton vs. Guyot 159 U.S. 113, 167; 40 L. Ed.
95, 110) (Emphasis supplied)
It is, therefore, error for the intervenor to ask that "private international law
rather than Philippine civil law should decide the instant case", as if the two
branches of the law contradicted one another.
In a consolidated paper (intervenor's rejoinder and appellee Vicenta Escao's
supplemental motion for reconsideration), the issue is raised that "the Supreme
414

Court cannot reverse the decision of the lower court dismissing the complaint nor
sentence Vicenta Escao to pay damages, without resolving the question of lack of
jurisdiction over her person".
A resolution by the Supreme Court of the issue of jurisdiction over the person of
appellee Vicenta Escao, and which was disallowed by the court below, was
unnecessary because the matter was not properly brought to us for resolution,
either on appeal or by special remedy which could have been availed of by the
appellee when the lower court, on 1 June 1957, overruled her challenge to its
jurisdiction. Neither was the alleged error of the lower court put in issue in her brief
as appellee, as it was incumbent upon her to do (Relativo vs. Castro, 76 Phil. 563;
Lucero vs. De Guzman, 45 Phil. 852). Not affecting the jurisdiction over the subject
matter, the court properly ignored the point (Rev. Rule 51, section 7).
SEC. 7. Questions that may be decided. No error which does not affect the
jurisdiction over the subject matter will be considered unless stated in the
assignment of errors and properly argued in the brief, save as the court, at its
option, may notice plain errors not specified, and also clerical errors.
At any rate,
... .When, however, the action against the non-resident defendant affects the
personal status of the plaintiff, as, for instance, an action for separation or for
annulment of marriage, ..., Philippine courts may validly try and decide the
case, because, then, they have jurisdiction over the res, and in that event
their jurisdiction over the person of the non-resident defendant is not
essential. The res is the personal status of the plaintiff domiciled in the
Philippines, ... . (1 Moran 411, 1963 Ed., citing Mabanag vs. Gallemore, 81
Phil. 254)
The award of damages, in the present case, was merely incidental to the petition for
legal separation. For all these reasons, and because she filed a counterclaim against
plaintiff (Rec. App. pp. 205-206), Vicenta should be deemed to have withdrawn the
objection to the lower court's jurisdiction over her person, even though she had
stated in the counterclaim that she was not waiving her special defense of lack of
jurisdiction.1wph1.t
It is urged that the actions for legal separation and for quasi-delict have prescribed:
the first, because it was not filed within one year from and after the date on which
the plaintiff became cognizant of the cause; and, the second, because it was not
filed within four years since the Tenchavez-Escao marriage in 1948.
The argument on both points is untenable.

415

The action for legal separation was filed on 31 May 1956. Although in a letter, under
date of 10 December 1954, the Department of Foreign Affairs informed plaintiff
Tenchavez that "According to information, she (appellee) secured a decree of
divorce on October 21, 1950 ... and married an American citizen, Russel Leo Moran,
on September 13, 1954", there is no satisfactory and convincing evidence as to the
time when plaintiff Tenchavez, received the said letter; nor was she duty-bound to
act immediately upon hearsay information. Since prescription is an affirmative
defense, the burden lay on the defendant to clearly prove it, and her proof on it was
inadequate.
On the argument about the action on tort having prescribed, the basis thereof is
erroneous: the marriage was not the cause of appellee's wrongful conduct. Her
denial of cohabitation, refusal to render consortium and desertion of her husband
started right after their wedding but such wrongs have continued ever since. She
never stopped her wrongdoings to her husband, so that the period of limitation has
never been completed.
Finally, we see no point in discussing the question of appellee Escao's criminal
intent, since nothing in the main decision was designed or intended to prejudge or
rule on the criminal aspect of the case, if any, or any of its constituent elements. It
is to be noted that in this civil case only a preponderance of evidence is required,
and not proof beyond reasonable doubt. While much could be said as to the
circumstances surrounding the divorce of the appellee, we prefer to abstain from so
doing in order not to influence in any way the criminal case, should any be
instituted.
For the reasons above cited, all motions for reconsideration are hereby denied.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar and
Sanchez, JJ., concur.
R E S O L UT I O N
September 14, 1966
REYES, J.B.L., J.:
Their first motion for reconsideration having been denied, Vicenta Escao and
Russel Leo Moran, through counsel, have filed a second motion for reconsideration.
It is first averred that this Court's decision contradicts the doctrine laid down
in Banco Espaol Filipino vs. Palanca, 37 Phil. 921, that in proceedings in rem or
quasi in rem the relief must be confined to the res, and the Court cannot lawfully
render a personal judgment.
416

Movant's own quotation from that decision demonstrates the diffirence in the facts
between the case at bar and the authority cited. For their own excerpt shows that
the rule now invoked was laid down for instances where the defendant never
submitted to the jurisdiction of our courts. We said then:
If, however, the defendant is a non-resident, and remaining beyond the range
of the personal process of the court refuses to come in voluntarily, the court
never acquires jurisdiction over the person at all. ... (Cas. Cit. p. 930)
The defendant Palanca, in 37 Phil. 921, so much refused to come in voluntarily that
he was declared in default. Was this the case of Vicenta Escao? The records show
on their face that it was not. While she objected to the jurisdiction of the Court over
her person, she also filed an answer with a counterclaim asking for an award of
damages against plaintiff-appellant Tenchavez. Instead of "refusing to come in
voluntarily", as Palanca did (in 37 Phil. 921), Escao took the offensive and asked
the Court for a remedy, a judgment against her opponent; and this after the court
below overruled her objection that she was not within its jurisdiction. In asking the
Court for affirmative relief, Escao submitted to its jurisdiction. In the United States,
whence our adjective law finds its sources, the Federal Supreme Court has rules
(Merchant's Heat & Light Co. vs. Clow & Sons, 204 U.S. 286, 51 Law Ed. 488):
We assume that the defendant lost no rights by pleading to the merits, as
required, after saving its rights.Harkness vs. Hyde, 98 U.S. 476, 25 L. ed.
237; Southern P. Co. vs. Denton, 146 U.S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep.
44. But by setting up its counterclaim the defendant became a plaintiff in its
turn, invoked the jurisdiction of the court in same action, and, by invoking,
submitted to it. It is true that the counterclaim seems to have arisen wholly
out of the same transaction that the plaintiff sued upon, and so to have been
in recoupment rather than in set-off proper. But, even at common law, since
the doctrine has been developed, a demand in recoupment is recognized as a
cross demand, as distinguished from a defense. Therefore, although there has
been a difference of opinion as to whether a defendant, by pleading it, is
concluded by the judgment from bringing a subsequent suit for the residue of
his claim a judgment in his favor being impossible at common law, the
authorities agree that he is not concluded by the judgment if he does not
plead his cross demand, and that whether he shall do so or not is left wholly
to his choice. Davis vs. Hedges, L.R. 6 Q.B. 687; Mondel vs. Steel, 8 Mees. &
W. 858, 872; O'Connor vs. Varney, 10 Gray, 231.This single fact shows that
the defendant, if he elects to sue upon his claim in the action against him,
assumes the position of an actor and must take the consequence. The right
to do so is of modern growth, and is merely a convenience that saves
bringing another suit, not a necessity of the defense. (Emphasis supplied)

417

The reason for the rule is manifest. The courts can not look with favor upon a party
adopting not merely inconsistent, but actually contradictory, positions in one and
the same suit, claiming that a court has no jurisdiction to render judgment against
it, but has such jurisdiction to give to give a decision in its favor (Dailey vs.
Kennedy, 64 Mich. 208, 31 N.W. 125; Harvey vs. Bishop, 171 Okla. 497, 43 Pac. 2d,
48; Haverstick vs. Southern P. Co. (Calif.) 37 Pac. 2d, 146).
Another reason, equally valid, is that if such defendant shall ask for any relief
other than that addressed to his plea, he is seeking to gain an
unconscionable advantage over his adversary, whereby, if the determination
be in his favor, he may avail himself of it while if it be against him, he may
fall back upon his plea of lack of jurisdiction of the person. (Olcese vs.
Justice's Court, 156 Calif. 82, 103 Pac. 318).
True, Escao made a reservation of her former plea when she fled her counterclaim;
but such reservation did not remove the obnoxious contradictory positions she
assumed.
Secondly, appellee Vicente Escao not only adopted inconsistently positions in the
court below but abandoned all pretense that court's lack of jurisdiction over her
person upon appeal to this Court. She made no reference whatever to that question
in her brief as appellee. Coupled with her previous demand for affirmative relief,
Vicente's silence on appeal only confirms her waiver of the point. Her excuse it that,
the lower court having ruled in her favor, she could not very well assign as error the
overruling of her plea of non-jurisdiction. That excuse is unserviceable; for this Court
has repeatedly held (and it is now well settled) that an appellee can make counter
assignments of error for the purpose of sustaining the appealed judgement, altho it
is not allowed to ask that the same be reversed or modified (Bunge Corp. vs.
Camenforte Co., 91 Phil. 861, and cases cited therein; Cabrera vs. Provincial
Treasurer of Tayabas, 75 Phil. 780; Pineda & Ampil vs. Bartolome, 95 Phil. 930; David
vs. De la Cruz, L-11656, April 18, 1958). Having failed to do so, this Court had every
reason to consider the issue of jurisdiction abandoned, and appellee's belated
attempts to resurrect it, by alleging an imaginary error on our part, are pointless
and vain. The same thing can be said of her effort to escape the jurisdiction she had
invoked in her counterclaim by not appealing its rejection by the trial court. At most,
it amounts to equivocal conduct that can not revive the inconsistent claim of nonjurisdiction, abandoned by her seeking affirmative relief.
Wherefore, the second motion for reconsideration is denied.
OSE

V. LAGON, petitioner, vs. HONORABLE

MENANDRO V. LAPUZ, respondents.

DECISION
418

COURT

OF

APPEALS

and

CORONA, J.:
On June 23, 1982, petitioner Jose Lagon purchased from the estate of Bai Tonina
Sepi, through an intestate court, [1] two parcels of land located at Tacurong, Sultan
Kudarat. A few months after the sale, private respondent Menandro Lapuz filed a
complaint for torts and damages against petitioner before the Regional Trial Court
(RTC) of Sultan Kudarat.
In the complaint, private respondent, as then plaintiff, claimed that he entered
into a contract of lease with the late Bai Tonina Sepi Mengelen Guiabar over three
parcels of land (the property) in Sultan Kudarat, Maguindanao beginning 1964. One
of the provisions agreed upon was for private respondent to put up commercial
buildings which would, in turn, be leased to new tenants. The rentals to be paid by
those tenants would answer for the rent private respondent was obligated to pay
Bai Tonina Sepi for the lease of the land. In 1974, the lease contract ended but since
the construction of the commercial buildings had yet to be completed, the lease
contract was allegedly renewed.
When Bai Tonina Sepi died, private respondent started remitting his rent to the
court-appointed administrator of her estate. But when the administrator advised
him to stop collecting rentals from the tenants of the buildings he constructed, he
discovered that petitioner, representing himself as the new owner of the property,
had been collecting rentals from the tenants. He thus filed a complaint against the
latter, accusing petitioner of inducing the heirs of Bai Tonina Sepi to sell the
property to him, thereby violating his leasehold rights over it.
In his answer to the complaint, petitioner denied that he induced the heirs of Bai
Tonina to sell the property to him, contending that the heirs were in dire need of
money to pay off the obligations of the deceased. He also denied interfering with
private respondents leasehold rights as there was no lease contract covering the
property when he purchased it; that his personal investigation and inquiry revealed
no claims or encumbrances on the subject lots.
Petitioner claimed that before he bought the property, he went to Atty. Benjamin
Fajardo, the lawyer who allegedly notarized the lease contract between private
respondent and Bai Tonina Sepi, to verify if the parties indeed renewed the lease
contract after it expired in 1974. Petitioner averred that Atty. Fajardo showed him
four copies of the lease renewal but these were all unsigned. To refute the existence
of a lease contract, petitioner presented in court a certification from the Office of
the Clerk of Court confirming that no record of any lease contract notarized by Atty.
Fajardo had been entered into their files. Petitioner added that he only learned of
the alleged lease contract when he was informed that private respondent was
collecting rent from the tenants of the building.

419

Finding the complaint for tortuous interference to be unwarranted, petitioner

filed his counterclaim and prayed for the payment of actual and moral damages.
On July 29, 1986, the court a quo found for private respondent (plaintiff below):
ACCORDINGLY, judgment is hereby rendered in favor of the plaintiff:
1.

Declaring the Contract of Lease executed by Bai Tonina Sepi

Mangelen Guiabar in favor of the plaintiff on November 6, 1974 (Exh.
A and A-1) over Lot No. 6395, Pls-73. Lot No 6396. Pls.-73. Lot No.
6399. 3ls-73, and Lot no.9777-A. CSD-11-000076-D (Lot No. 3-A.
40124), all situated along Ledesma St., Tacurong, Sultan Kudarat,
which document was notarized by Atty. Benjamin S. Fajardo, Sr. and
entered into his notarial register as Doc. No. 619. Page No. 24. Book
No. II. Series of 1974, to be authentic and genuine and as such valid
and binding for a period of ten (10) years specified thereon from
November 1, 1974 up to October 31, 1984;

2.

Declaring the plaintiff as the lawful owner of the commercial

buildings found on the aforesaid lots and he is entitled to their
possession and the collection (of rentals) of the said commercial
buildings within the period covered by this Contract of Lease in his
favor;

3.

Ordering the defendant to pay to the plaintiff the following:

a)

Rentals of the commercial buildings on the lots covered by the

Contract of Lease in favor of the plaintiff for the period from
October 1, 1978 up to October 31, 1984, including accrued
interests in the total amount of Five Hundred Six Thousand Eight
Hundred Five Pesos and Fifty Six Centavos (P506, 850.56), the
same to continue to bear interest at the legal rate of 12% per
annum until the whole amount is fully paid by the defendant to the
plaintiff;

b)

Moral damages in the amount of One Million Sixty Two Thousand

Five Hundred Pesos (P1,062,500.00);

c)

Actual or compensatory damages in the amount of Three

Hundred Twelve Thousand Five Hundred Pesos (P312, 500.00);

d)

Exemplary or corrective damages in the amount of One Hundred

Eighty Thousand Five Hundred Pesos (P187,500.00)

420

e)

Temperate or moderate damages in the amount of Sixty Two

Thousand Five Hundred Pesos (P62,500.00);

f)

Nominal damages in the amount of Sixty Two Thousand Five

Hundred Pesos (P62,500.00);

g)

Attorneys fees in the amount of One Hundred Twenty Five

Thousand Pesos (P125,000.00);

h)

Expenses of litigation in the amount of Sixty Two Thousand Five

Hundred Pesos (P62,500.00);

i)

Interest on the moral damages, actual or compensatory

damages temperate or moderate damages, nominal damages,
attorneys fees and expenses of litigation in the amounts as
specified hereinabove from May 24, 1982 up to June 27, 1986, in
the total amount of Nine Hundred Thousand Pesos (P900,000.00);
all of which will continue to bear interests at a legal rate of 12%
per annum until the whole amounts are fully paid by the
defendants to the plaintiffs;

4.

For failure of the defendant to deposit with this Court all the rentals
he had collected from the thirteen (13) tenants or occupants of the
commercial buildings in question, the plaintiff is hereby restored to
the possession of his commercial buildings for a period of seventythree (73) months which is the equivalent of the total period for which
he was prevented from collecting the rentals from the tenants or
occupants of his commercial buildings from October 1, 1978 up to
October 31, 1984, and for this purpose a Writ of Preliminary Injunction
is hereby issued, but the plaintiff is likewise ordered to pay to the
defendant the monthly rental of Seven Hundred Pesos (P700.00)
every end of the month for the entire period of seventy three (73)
months. This portion of the judgment should be considered as a mere
alternative should the defendant fail to pay the amount of Five
Hundred Five Pesos and Fifty Six Centavos (P506,805.56) hereinabove
specified;

5.

Dismissing the counterclaim interposed by the defendant for lack

of merit;

6.

With costs against the defendant. [2]

421

Petitioner appealed the judgment to the Court of Appeals. [3] In a decision dated
January 31, 1995,[4] the appellate court modified the assailed judgment of the trial
court as follows:
a)
The award for moral damages, compensatory
damages, exemplary damages, temperate or moderate damages, and
nominal damages as well as expenses of litigation in the amount
ofP62,500.00 and interests under paragraph 3-a(a), (b), (c), (d), (e), (f),
(g), (h), and (i) are deleted;
b)
to P30,000.00;

The

award

for

attorneys

fees

c)

Paragraphs 1,2,5 and 6 are AFFIRMED;

is

reduced

d)
Additionally, the defendant is hereby ordered to pay
to the plaintiff by way of actual damages the sum of P178,425.00
representing the amount of rentals he collected from the period of
October 1978 to August 1983, and minus the amount of P42,700.00
representing rentals due the defendant computed at P700.00 per month
for the period from August 1978 to August 1983, with interest thereon at
the rate until the same is fully paid;
e)

Paragraph 4 is deleted.[5]

Before the appellate court, petitioner disclaimed knowledge of any lease

contract between the late Bai Tonina Sepi and private respondent. On the other
hand, private respondent insisted that it was impossible for petitioner not to know
about the contract since the latter was aware that he was collecting rentals from
the tenants of the building. While the appellate court disbelieved the contentions of
both parties, it nevertheless held that, for petitioner to become liable for damages,
he must have known of the lease contract and must have also acted with malice or
bad faith when he bought the subject parcels of land.
Via this petition for review, petitioner cites the following reasons why the Court
should rule in his favor:
1. The Honorable Court of Appeals seriously erred in holding that petitioner
is liable for interference of contractual relation under Article 1314 of the
New Civil Code;
2. The Honorable Court of Appeals erred in not holding that private
respondent is precluded from recovering, if at all, because of laches;

422

3. The Honorable Court of Appeals erred in holding petitioner liable for

actual damages and attorneys fees, and;
4. The Honorable Court of Appeals erred in dismissing petitioners
counterclaims.[6]
Article 1314 of the Civil Code provides that any third person who induces
another to violate his contract shall be liable for damages to the other contracting
party. The tort recognized in that provision is known as interference with contractual
relations.[7] The interference is penalized because it violates the property rights of a
party in a contract to reap the benefits that should result therefrom. [8]
The core issue here is whether the purchase by petitioner of the subject
property, during the supposed existence of private respondents lease contract with
the late Bai Tonina Sepi, constituted tortuous interference for which petitioner
should be held liable for damages.
The Court, in the case of So Ping Bun v. Court of Appeals,[9] laid down the
elements of tortuous interference with contractual relations: (a) existence of a valid
contract; (b) knowledge on the part of the third person of the existence of the
contract and (c) interference of the third person without legal justification or excuse.
In that case, petitioner So Ping Bun occupied the premises which the corporation of
his grandfather was leasing from private respondent, without the knowledge and
permission of the corporation. The corporation, prevented from using the premises
for its business, sued So Ping Bun for tortuous interference.
As regards the first element, the existence of a valid contract must be duly
established. To prove this, private respondent presented in court a notarized copy of
the purported lease renewal.[10] While the contract appeared as duly notarized, the
notarization thereof, however, only proved its due execution and delivery but not
the veracity of its contents. Nonetheless, after undergoing the rigid scrutiny of
petitioners counsel and after the trial court declared it to be valid and subsisting,
the notarized copy of the lease contract presented in court appeared to be
incontestable proof that private respondent and the late Bai Tonina Sepi actually
renewed their lease contract. Settled is the rule that until overcome by clear, strong
and convincing evidence, a notarized document continues to be prima facie
evidence of the facts that gave rise to its execution and delivery. [11]
The second element, on the other hand, requires that there be knowledge on
the part of the interferer that the contract exists. Knowledge of the subsistence of
the contract is an essential element to state a cause of action for tortuous
interference.[12] A defendant in such a case cannot be made liable for interfering
with a contract he is unaware of. [13] While it is not necessary to prove actual
knowledge, he must nonetheless be aware of the facts which, if followed by a
423

reasonable inquiry, will lead to a complete disclosure of the contractual relations

and rights of the parties in the contract.[14]
In this case, petitioner claims that he had no knowledge of the lease contract.
His sellers (the heirs of Bai Tonina Sepi) likewise allegedly did not inform him of any
existing lease contract.
After a careful perusal of the records, we find the contention of petitioner
meritorious. He conducted his own personal investigation and inquiry, and
unearthed no suspicious circumstance that would have made a cautious man probe
deeper and watch out for any conflicting claim over the property. An examination of
the entire propertys title bore no indication of the leasehold interest of private
respondent. Even the registry of property had no record of the same. [15]
Assuming ex gratia argumenti that petitioner knew of the contract, such
knowledge alone was not sufficient to make him liable for tortuous interference.
Which brings us to the third element. According to our ruling in So Ping Bun,
petitioner may be held liable only when there was no legal justification or excuse for
his action[16] or when his conduct was stirred by a wrongful motive. To sustain a case
for tortuous interference, the defendant must have acted with malice [17] or must
have been driven by purely impious reasons to injure the plaintiff. In other words,
his act of interference cannot be justified. [18]
Furthermore, the records do not support the allegation of private respondent
that petitioner induced the heirs of Bai Tonina Sepi to sell the property to him. The
word induce refers to situations where a person causes another to choose one
course of conduct by persuasion or intimidation. [19] The records show that the
decision of the heirs of the late Bai Tonina Sepi to sell the property was completely
of their own volition and that petitioner did absolutely nothing to influence their
judgment. Private respondent himself did not proffer any evidence to support his
claim. In short, even assuming that private respondent was able to prove the
renewal of his lease contract with Bai Tonina Sepi, the fact was that he was unable
to prove malice or bad faith on the part of petitioner in purchasing the property.
Therefore, the claim of tortuous interference was never established.
In So Ping Bun, the Court discussed whether interference can be justified at all if
the interferer acts for the sole purpose of furthering a personal financial interest,
but without malice or bad faith. As the Court explained it:
x x x, as a general rule, justification for interfering with the business relations of
another exists where the actors motive is to benefit himself. Such justification does
not exist where the actors motive is to cause harm to the other. Added to this, some
authorities believe that it is not necessary that the interferers interest outweigh that
of the party whose rights are invaded, and that an individual acts under an
424

economic interest that is substantial, not merely de minimis, such that wrongful and
malicious motives are negatived, for he acts in self-protection. Moreover,
justification for protecting ones financial position should not be made to depend on
a comparison of his economic interest in the subject matter with that of the others.
It is sufficient if the impetus of his conduct lies in a proper business interest rather
than in wrongful motives.[20]
The foregoing disquisition applies squarely to the case at bar. In our view,
petitioners purchase of the subject property was merely an advancement of his
financial or economic interests, absent any proof that he was enthused by improper
motives. In the very early case of Gilchrist v. Cuddy, [21] the Court declared that a
person is not a malicious interferer if his conduct is impelled by a proper business
interest. In other words, a financial or profit motivation will not necessarily make a
person an officious interferer liable for damages as long as there is no malice or bad
faith involved.
In sum, we rule that, inasmuch as not all three elements to hold petitioner liable
for tortuous interference are present, petitioner cannot be made to answer for
private respondents losses.
This case is one of damnun absque injuria or damage without injury. Injury is the
legal invasion of a legal right while damage is the hurt, loss or harm which results
from the injury.[22] In BPI Express Card Corporation v. Court of Appeals ,,[23] the Court
turned down the claim for damages of a cardholder whose credit card had been
cancelled by petitioner corporation after several defaults in payment. We held there
that there can be damage without injury where the loss or harm is not the result of
a violation of a legal duty. In that instance, the consequences must be borne by the
injured person alone since the law affords no remedy for damages resulting from an
act which does not amount to legal injury or wrong. [24] Indeed, lack of malice in the
conduct complained of precludes recovery of damages. [25]
With respect to the attorneys fees awarded by the appellate court to private
respondent, we rule that it cannot be recovered under the circumstances. According
to Article 2208 of the Civil Code, attorneys fees may be awarded only when it has
been stipulated upon or under the instances provided therein. [26] Likewise, being in
the concept of actual damages, the award for attorneys fees must have clear,
factual and legal bases[27] which, in this case, do not exist.
Regarding the dismissal of petitioners counterclaim for actual and moral
damages, the appellate court affirmed the assailed order of the trial court because
it found no basis to grant the amount of damages prayed for by petitioner. We find
no reason to reverse the trial court and the Court of Appeals. Actual damages are
those awarded in satisfaction of, or in recompense for, loss or injury sustained. To be
recoverable, they must not only be capable of proof but must actually be proved
425

with a reasonable degree of certainty. [28] Petitioner was unable to prove that he
suffered loss or injury, hence, his claim for actual damages must fail. Moreover,
petitioners prayer for moral damages was not warranted as moral damages should
result from the wrongful act of a person. The worries and anxieties suffered by a
party hailed to court litigation are not compensable. [29]
With the foregoing discussion, we no longer deem it necessary to delve into the
issue of laches.
WHEREFORE, premises considered, the petition is hereby GRANTED. The
assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE.
No costs.
SO ORDERED.
G.R. No. L-23482

August 30, 1968

ALFONSO
LACSON, petitioner,
vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.
----------------------------G.R. No. L-23767

August 30, 1968

CARMEN
SAN
vs.
ALFONSO LACSON, defendant-appellee.

JOSE-LACSON, plaintiff-appellant,

----------------------------G.R. No. L-24259

August 30, 1968

ALFONSO
LACSON, petitioner-appellee,
vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.
Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San JoseLacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J.:

426

These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties
pose a common fundamental issue the resolution of which will necessarily and
inescapably resolve all the other issues. Thus their joinder in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San
Jose-Lacson (hereinafter referred to as the respondent spouse) were married on
February 14, 1953. To them were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara
Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March
12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic
Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their
children as well as support for them and herself.
However, the spouses, thru the assistance of their respective attorneys, succeeded
in reaching an amicable settlement respecting custody of the children, support, and
separation of property. On April 27, 1963 they filed a joint petition dated April 21,
1963, docketed as special proceeding 6978 of the Court of First Instance of Negros
Occidental (hereinafter referred to as the CFI).
The important and pertinent portions of the petition, embodying their amicable
settlement, read as follows:
3. Petitioners have separated last January 9, 1963 when petitioner Carmen
San Jose-Lacson left their conjugal home at the Santa Clara Subdivision,
Bacolod City, did not return, and decided to reside in Manila.
4. Petitioners have mutually agreed upon the dissolution of their conjugal
partnership subject to judicial approval as required by Article 191 of the Civil
Code of the Philippines the particular terms and conditions of their mutual
agreement being as follows:
(a) There will be separation of property petitioner Carmen San JoseLacson hereby waiving any and all claims for a share in property that
may be held by petitioner Alfonso Lacson since they have acquired no
property of any consequence.
(b) Hereafter, each of them shall own, dispose of, possess, administer
and enjoy such separate estate as they may acquire without the
consent of the other and all earnings from any profession, business or
industry as may be derived by each petitioner shall belong to that
petitioner exclusively.
427

(c) The custody of the two elder children named Enrique and Maria
Teresa shall be awarded to petitioner Alfonso Lacson and the custody
of the younger children named Gerrard and Ramon shall be awarded to
petitioner Carmen San Jose-Lacson.
(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San JoseLacson a monthly allowance of P300.00 for the support of the children
in her custody.
(e) Each petitioner shall have reciprocal rights of visitation of the
children in the custody of the other at their respective residences and,
during the summer months, the two children in the custody of each
petitioner shall be given to the other except that, for this year's
summer months, all four children shall be delivered to and remain with
petitioner Carmen San Jose-Lacson until June 15, 1963 on which
date, she shall return the two elder children Enrique and Maria Teresa
to petitioner Alfonso Lacson this judgment of course being subject to
enforcement by execution writ and contempt.
5. Petitioners have no creditors.
WHEREFORE, they respectfully pray that notice of this petition be given to
creditors and third parties pursuant to Article 191 of the Civil Code of the
Philippines and thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of their conjugal partnership and for
separation of property, except that the Court shall immediately approve the
terms set out in paragraph 4 above and embody the same in a judgment
immediately binding on the parties hereto to the end that any noncompliance or violation of its terms by one party shall entitle the other to
enforcement by execution writ and contempt even though the proceedings as
to creditors have not been terminated.".
Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F.
Fernandez, presiding) issued an order on April 27, 1963, rendering judgment
(hereinafter referred to as the compromise judgment) approving and
incorporating in toto their compromise agreement. In compliance with paragraph 4
(e) of their mutual agreement (par. 3[e] of the compromise judgment), the
petitioner spouse delivered all the four children to the respondent spouse and
remitted money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she
alleged that she "entered into and signed the ... Joint Petition as the only means by
which she could have immediate custody of the ... minor children who are all below
the age of 7," and thereafter prayed that she "be considered relieved of the ...
428

agreement pertaining to the custody and visitation of her minor children ... and that
since all the children are now in her custody, the said custody in her favor be
confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said
motion and moved to dismiss the complaint based, among other things, on the
grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued an order
which sustained the petitioner spouse's plea of bar by prior judgment and lis
pendens, and dismissed the case. After the denial of her motion for reconsideration,
the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No.
32608-R) wherein she raised, among others, the issue of validity or legality of the
compromise agreement in connection only with the custody of their minor children.
On October 14, 1964 the Court of Appeals certified the said appeal to the Supreme
Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court
below no evidence, testimonial or documentary, presented only a question of
law pends resolution in the appeal." .
The respondent spouse likewise filed a motion dated May 15, 1963 for
reconsideration of the compromise judgment dated April 27, 1963 rendered in
special proceeding 6978 of the CFI, wherein she also alleged, among others, that
she entered into the joint petition as the only means by which she could have
immediate custody of her minor children, and thereafter prayed the CFI to
reconsider its judgment pertaining to the custody and visitation of her minor
children and to relieve her from the said agreement. The petitioner spouse opposed
the said motion and, on June 1, 1963, filed a motion for execution of the
compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin,
presiding), in its order dated June 22, 1963, denied the respondent spouse's motion
for reconsideration, granted the petitioner spouse's motion for execution, and
ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said
children [i.e., to return the two older children Enrique and Maria Teresa in
accordance with her agreement with Alfonso Lacson] to the special sheriff on or
before June 29, 1963, she may be held for contempt pursuant to the provisions of
Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From
the aforesaid compromise judgment dated April 27, 1963 and execution order dated
June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals
(CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her
agreement with the petitioner spouse respecting custody of their children. On
February 11, 1965 the Court of Appeals also certified the said appeal to the
Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced
before the trial court and ... appellant did not specifically ask to be allowed to
present evidence on her behalf." .
The respondent spouse also instituted certiorari proceedings before the Court of
Appeals (CA-G.R. No. 32384R), now the subject of an appeal by certiorari to this
Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she
averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and
429

acted in excess of jurisdiction in ordering the immediate execution of the

compromise judgment in its order of June 22, 1963, thus in effect depriving her of
the right to appeal. She prayed for (1) the issuance of a writ of preliminary
injunction enjoining the respondents therein and any person acting under them
from enforcing, by contempt proceedings and other means, the writ of execution
issued pursuant to the order of the respondent Judge Querubin dated June 22, 1963
in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the
compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and
(3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As
prayed for, the Court of Appeals issued ex parte a writ of preliminary injunction
enjoining the enforcement of the order dated June 22, 1963 for execution of the
compromise judgment rendered in special proceeding 6978. The petitioner spouse
filed an urgent motion dated July 5, 1963 for the dissolution of the writ of
preliminary injunction ex parte which urgent motion was denied by the Court of
Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his
answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said
certiorari case (CA-G.R. No. 32384-R) its decision granting the petition
for certiorari and declaring null and void both (a) the compromise judgment dated
April 27, 1963 in so far as it relates to the custody and right of visitation over the
two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for
execution of said judgment. The petitioner spouse moved to reconsider, but his
motion for reconsideration was denied by the Court of Appeals in its resolution
dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated
July 31, 1964, the petitioner spouse interposed an appeal to this Court, as
abovestated, and assigned the following errors:
(1) The Court of Appeals erred in annulling thru certiorari the lower court's
order of execution of the compromise judgment.
(2) The Court of Appeals erred in resolving in the certiorari case the issue of
the legality of the compromise judgment which is involved in two appeals,
instead of the issue of grave abuse of discretion in ordering its execution.
(3) The Court of Appeals erred in ruling that the compromise agreement upon
which the judgment is based violates article 363 of the Civil
Code. 1wph1.t
As heretofore adverted, the aforecited three appeals converge on one focal issue:
whether the compromise agreement entered into by the parties and the judgment
of the CFI grounded on the said agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the CFI grounded on
the said agreement are valid with respect to the separation of property of the
spouses and the dissolution of the conjugal partnership.
430

The law allows separation of property of the spouses and the dissolution of their
conjugal partnership provided judicial sanction is secured beforehand. Thus the new
Civil Code provides:
In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take
place save in virtue of a judicial order. (Art. 190, emphasis supplied)
The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the creditors
of the husband and of the wife, as well as of the conjugal partnership, shall
be notified of any petition for judicial approval of the voluntary dissolution of
the conjugal partnership, so that any such creditors may appear at the
hearing to safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall take such measures as
may protect the creditors and other third persons. (Art. 191, par. 4, emphasis
supplied).
In the case at bar, the spouses obtained judicial imprimatur of their separation of
property and the dissolution of their conjugal partnership. It does not appeal that
they have creditors who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been separated in fact for at least five
years - the wife's residence being in Manila, and the husband's in the conjugal home
in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened
between them, the propriety of severing their financial and proprietary interests is
manifest.
Besides, this Court cannot constrain the spouses to live together, as
[I]t is not within the province of the courts of this country to attempt to
compel one of the spouses to cohabit with, and render conjugal rights to, the
other. .. At best such an order can be effective for no other purpose than to
compel the spouse to live under the same roof; and the experience of those
countries where the courts of justice have assumed to compel the
cohabitation of married couple shows that the policy of the practice is
extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).
However, in so approving the regime of separation of property of the spouses and
the dissolution of their conjugal partnership, this Court does not thereby accord
recognition to nor legalize the de facto separation of the spouses, which again in the
language of Arroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and
fraught with grave danger to all concerned." We would like to douse the momentary
seething emotions of couples who, at the slightest ruffling of domestic tranquility
431

brought about by "mere austerity of temper, petulance of manners, rudeness of

language, a want of civil attention and accommodation, even occasional sallies of
passion" without more would be minded to separate from each other. In this
jurisdiction, the husband and the wife are obliged to live together, observe mutual
respect and fidelity, and render mutual help and support (art. 109, new Civil Code).
There is, therefore, virtue in making it as difficult as possible for married couples
impelled by no better cause than their whims and caprices to abandon each
other's company.
'... For though in particular cases the repugnance of the law to dissolve the
obligations of matrimonial cohabitation may operate with great severity upon
individuals, yet it must be carefully remembered that the general happiness
of the married life is secured by its indissolubility. When people understand
that they must live together, except for a very few reasons known to the law,
they learn to soften by mutual accommodation that yoke which they know
they cannot shake off; they become good husbands and good wives from the
necessity of remaining husbands and wives; for necessity is a powerful
master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag.
Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp.
58-59).
We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which first acquired jurisdiction over the
matter of custody and support of the children. The complaint docketed as civil case
E-00030 in the JDRC was filed by the respondent spouse on March 12, 1963,
whereas the joint petition of the parties docketed as special proceeding 6978 in the
CFI was filed on April 27, 1963. However, when the respondent spouse signed the
joint petition on the same matter of custody and support of the children and filed
the same with the CFI of Negros Occidental, she in effect abandoned her action in
the JDRC. The petitioner spouse who could have raised the issue of lis pendens in
abatement of the case filed in the CFI, but did not do so - had the right, therefore, to
cite the decision of the CFI and to ask for the dismissal of the action filed by the
respondent spouse in the JDRC, on the grounds of res judicata and lis pendens. And
the JDRC acted correctly and justifiably in dismissing the case for custody and
support of the children based on those grounds. For it is no defense against the
dismissal of the action that the case before the CFI was filed later than the action
before the JDRC, considering:.
... [T]hat the Rules do not require as a ground for dismissal of a complaint
that there is a prior pending action. They provide only that there is a pending
action, not a pending prior action. 1

432

We agree with the Court of Appeals, however, that the CFI erred in depriving the
mother, the respondent spouse, of the custody of the two older children (both then
below the age of 7).
The Civil Code specifically commands in the second sentence of its article 363 that
"No mother shall be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure." The rationale of this new
provision was explained by the Code Commission thus:
The general rule is recommended in order to avoid many a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for "compelling reasons" for the good of the
child: those cases must indeed be rare, if the mother's heart is not to be
unduly hurt. If she has erred, as in cases of adultery, the penalty of
imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the situation." (Report of
the Code Commission, p. 12).
The use of the word shall2 in article 363 of the Civil Code, coupled with the
observations made by the Code Commission in respect to the said legal provision,
underscores its mandatory character. It prohibits in no uncertain: terms the
separation of a mother and her child below seven years, unless such separation is
grounded upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two
older children who were 6 and 5 years old, respectively, to the father, in effect
sought to separate them from their mother. To that extent therefore, it was null and
void because clearly violative of article 363 of the Civil Code.
Neither does the said award of custody fall within the exception because the record
is bereft of any compelling reason to support the lower court's order depriving the
wife of her minor children's company. True, the CFI stated in its order dated June 22,
1963, denying the respondent spouse's motion for reconsideration of its order dated
April 27, 1963, that .
... If the parties have agreed to file a joint petition, it was because they
wanted to avoid the exposure of the bitter truths which serve as succulent
morsel for scandal mongers and idle gossipers and to save their children from
embarrassment and inferiority complex which may inevitably stain their lives.
..

433

If the parties agreed to submit the matter of custody of the minor children to the
Court for incorporation in the final judgment, they purposely suppressed the
"compelling reasons for such measure" from appearing in the public records. This is
for the sake and for the welfare of the minor children.".
But the foregoing statement is at best a mere hint that there were compelling
reasons. The lower court's order is eloquently silent on what these compelling
reasons are. Needless to state, courts cannot proceed on mere insinuations; they
must be confronted with facts before they can properly adjudicate.
It might be argued and correctly that since five years have elapsed since the
filing of these cases in 1963, the ages of the four children should now be as follows:
Enrique 11, Maria Teresa 10, Gerrard 9, and Ramon 5. Therefore, the
issue regarding the award of the custody of Enrique and Maria Teresa to the
petitioner spouse has become moot and academic. The passage of time has
removed the prop which supports the respondent spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement regarding the
custody of the children. 1wph1.t
Article 356 of the new Civil Code provides:
Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical,
moral and intellectual development.
It is clear that the abovequoted legal provision grants to every child rights which are
not and should not be dependent solely on the wishes, much less the whims and
caprices, of his parents. His welfare should not be subject to the parents' say-so or
mutual agreement alone. Where, as in this case, the parents are already separated
in fact, the courts must step in to determine in whose custody the child can better
be assured the right granted to him by law. The need, therefore, to present
evidence regarding this matter, becomes imperative. A careful scrutiny of the
records reveals that no such evidence was introduced in the CFI. This latter court
relied merely on the mutual agreement of the spouses-parents. To be sure, this was
not a sufficient basis to determine the fitness of each parent to be the custodian of
the children.
434

Besides, at least one of the children Enrique, the eldest is now eleven years of
age and should be given the choice of the parent he wishes to live with. This is the
clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter alia:
... When husband and wife are divorced or living separately and apart from
each other, and the question as to the care, custody, and control of a child or
children of their marriage is brought before a Court of First Instance by
petition or as an incident to any other proceeding, the court, upon hearing
testimony as may be pertinent, shall award the care, custody and control of
each such child as will be for its best interestpermitting the child to choose
which parent it prefers to live with if it be over ten years of age, unless the
parent so chosen be unfit to take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity, or poverty... (Emphasis
supplied).
One last point regarding the matter of support for the children assuming that the
custody of any or more of the children will be finally awarded to the mother.
Although the spouses have agreed upon the monthly support of P150 to be given by
the petitioner spouse for each child, still this Court must speak out its mind on the
insufficiency of this amount. We, take judicial notice of the devaluation of the peso
in 1962 and the steady skyrocketing of prices of all commodities, goods, and
services, not to mention the fact that all the children are already of school age. We
believe, therefore, that the CFI may increase this amount of P150 according to the
needs of each child.
With the view that we take of this case, we find it unnecessary to pass upon the
other errors assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31,
1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482),
and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic
Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is
hereby remanded to the Court of First Instance of Negros Occidental for further
proceedings, in accordance with this decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando, JJ., took no part.
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
[G.R. No. 139808. May 12, 2000]

435

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER,

ILUSORIO, petitioners,
vs. COURT
OF
APPEALS
and
ILUSORIO, respondents.

and SYLVIA
ERLINDA
K.

DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her in
conjugal bliss? The answer is no. Marital rights including coverture and living in
conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention, [1] or
by which the rightful custody of a person is withheld from the one entitled thereto.
[2]
Slx
"Habeas corpus is a writ directed to the person detaining another, commanding him
to produce the body of the prisoner at a designated time and place, with the day
and cause of his capture and detention, to do, submit to, and receive whatsoever
the court or judge awarding the writ shall consider in that behalf." [3]
It is a high prerogative, common-law writ, of ancient origin, the great object of
which is the liberation of those who may be imprisoned without sufficient cause. [4] It
is issued when one is deprived of liberty or is wrongfully prevented from exercising
legal custody over another person.[5]
The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of
Appeals and its resolution [8] dismissing the application for habeas corpus to have
the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as
the wife.
On the other hand, the petition of Potenciano Ilusorio [9] is to annul that portion of
the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her
husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation
rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property valued
at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the
Board and President of Baguio Country Club.

436

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and
lived together for a period of thirty (30) years. In 1972, they separated from bed
and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium,
Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio
Country Club when he was in Baguio City. On the other hand, Erlinda lived in
Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age
55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta
(age 48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he stayed
with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and
Erlinda (Lin), alleged that during this time, their mother gave Potenciano an
overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by
his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a
petition[10] for guardianship over the person and property of Potenciano Ilusorio due
to the latters advanced age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium,
Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas
corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that
respondents[11] refused petitioners demands to see and visit her husband and
prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is
hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioners
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or anywhere
in its place, his guards and Potenciano Ilusorios staff especially Ms.
Aurora Montemayor to allow visitation rights to Potenciano Ilusorios
wife, Erlinda Ilusorio and all her children, notwithstanding any list
limiting visitors thereof, under penalty of contempt in case of violation
of refusal thereof; xxx
437

"(2) ORDERING that the writ of habeas corpus previously issued be

recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint or
detention of the subject of the petition.
"SO ORDERED."[12]
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention,[13] or by which the rightful custody of a person is withheld
from the one entitled thereto. It is available where a person continues to be
unlawfully denied of one or more of his constitutional freedoms, where there is
denial of due process, where the restraints are not merely involuntary but are
unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.[14] It is devised as a speedy and effectual remedy to relieve persons from
unlawful restraint, as the best and only sufficient defense of personal freedom.
[15]
Jksm
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint, and to relieve a person therefrom if such restraint is
illegal.[16]
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. [17] The illegal restraint of liberty must
be actual and effective, not merely nominal or moral. [18]
The evidence shows that there was no actual and effective detention or deprivation
of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The
fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication
does not necessarily render him mentally incapacitated. Soundness of mind does
not hinge on age or medical condition but on the capacity of the individual to
discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request
the administrator of the Cleveland Condominium not to allow his wife and other
children from seeing or visiting him. He made it clear that he did not object to
seeing them.

438

As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that
he was of sound and alert mind, having answered all the relevant questions to the
satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices. In this
case, the crucial choices revolve on his residence and the people he opts to see or
live with. The choices he made may not appeal to some of his family members but
these are choices which exclusively belong to Potenciano. He made it clear before
the Court of Appeals that he was not prevented from leaving his house or seeing
people. With that declaration, and absent any true restraint on his liberty, we have
no reason to reverse the findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio
may not be the subject of visitation rights against his free choice. Otherwise, we will
deprive him of his right to privacy. Needless to say, this will run against his
fundamental constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights in a
petition for habeas corpus where Erlinda never even prayed for such right. The
ruling is not consistent with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that the
same shall be enforced under penalty of contempt in case of violation or refusal to
comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of a
parent to visit a minor child but the right of a wife to visit a husband. In case the
husband refuses to see his wife for private reasons, he is at liberty to do so without
threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his
wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried
out by sheriffs or by any other mesne process. That is a matter beyond judicial
authority and is best left to the man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of
merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the
Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio.
No costs.
SO ORDERED.

439

G.R. No. 11263

November 2, 1916

ELOISA
GOITIA
DE
LA
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo
Gutierrez
Repide
and
Sanz, Opisso and Luzuriaga for appellee.

CAMARA, plaintiff-appellant,

Felix

Socias

for

appellant.

TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal
domicile. From a judgment sustaining the defendant's demurrer upon the ground
that the facts alleged in the complaint do not state a cause of action, followed by an
order dismissing the case after the plaintiff declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot
be compelled to support the plaintiff, except in his own house, unless it be by virtue
of a judicial decree granting her a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and
immediately thereafter established their residence at 115 Calle San Marcelino,
where they lived together for about a month, when the plaintiff returned to the
home of her parents. The pertinent allegations of the complaint are as follows:
That the defendant, one month after he had contracted marriage with the
plaintiff, demanded of her that she perform unchaste and lascivious acts on
his genital organs; that the plaintiff spurned the obscene demands of the
defendant and refused to perform any act other than legal and valid
cohabitation; that the defendant, since that date had continually on other
successive dates, made similar lewd and indecorous demands on his wife, the
plaintiff, who always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word and deed
and inflict injuries upon her lips, her face and different parts of her body; and
that, as the plaintiff was unable by any means to induce the defendant to
desist from his repugnant desires and cease from maltreating her, she was
obliged to leave the conjugal abode and take refuge in the home of her
parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the
solemnities established by General Orders No. 68, in so far as its civil effects are
concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep.,
440

480, citing article 1261 of Civil Code.) Upon the termination of the marriage
ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs.
Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of
an ordinary contract. But it is something more than a mere contract. It is a new
relation, the rights, duties, and obligations of which rest not upon the agreement of
the parties but upon the general law which defines and prescribes those rights,
duties, and obligations .Marriage is an institution, in the maintenance of which in its
purity the public is deeply interested. It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any contract they may make .The
reciprocal rights arising from this relation, so long as it continues, are such as the
law determines from time to time, and none other. When the legal existence of the
parties is merged into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the benefit of society
as well as the parties. And when the object of a marriage is defeated by rendering
its continuance intolerable to one of the parties and productive of no possible good
to the community, relief in some way should be obtainable. With these principles to
guide us, we will inquire into the status of the law touching and governing the
question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands
(Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil
Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands
by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44,
45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually
assist each other.
ART. 45. The husband must live with and protect his wife. (The second
paragraph deals with the management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when
he charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for
just cause relieve her from this duty when the husband removes his
residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the
whole extent specified in the preceding article.
1. The consorts.
441

xxx

xxx

xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy
it, either by paying the pension that may be fixed or by receiving and
maintaining in his own home the person having the right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support
shall cease. The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the
duties and obligations of the spouses. The spouses must be faithful to, assist, and
support each other. The husband must live with and protect his wife. The wife must
obey and live with her husband and follow him when he changes his domicile or
residence, except when he removes to a foreign country. But the husband who is
obliged to support his wife may, at his option, do so by paying her a fixed pension or
by receiving and maintaining her in his own home. May the husband, on account of
his conduct toward his wife, lose this option and be compelled to pay the pension?
Is the rule established by article 149 of the Civil Code absolute? The supreme court
of Spain in its decision of December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in its
decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the
option which article 149 grants the person, obliged to furnish subsistence,
between paying the pension fixed or receiving and keeping in his own house
the party who is entitled to the same, is not so absolute as to prevent cases
being considered wherein, either because this right would be opposed to the
exercise of a preferential right or because of the existence of some justifiable
cause morally opposed to the removal of the party enjoying the maintenance,
the right of selection must be understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise to this
appeal was whether there was any reason to prevent the exercise of the
option granted by article 149 of the Civil Code to the person obliged to
furnish subsistence, to receive and maintain in his own house the one who is
entitled to receive it; and inasmuch as nothing has been alleged or discussed
with regard to the parental authority of Pedro Alcantara Calvo, which he ha
not exercised, and it having been set forth that the natural father simply
claims his child for the purpose of thus better attending to her maintenance,
no action having been taken by him toward providing the support until, owing
to such negligence, the mother was obliged to demand it; it is seen that
these circumstances, together with the fact of the marriage of Pedro
Alcantara, and that it would be difficult for the mother to maintain relations
with her daughter, all constitute an impediment of such a nature as to
prevent the exercise of the option in the present case, without prejudice to
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such decision as may be deemed proper with regard to the other questions
previously cited in respect to which no opinion should be expressed at this
time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil.
Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil
Code "is not absolute." but it is insisted that there existed a preexisting or
preferential right in each of these cases which was opposed to the removal of the
one entitled to support. It is true that in the first the person claiming the option was
the natural father of the child and had married a woman other than the child's
mother, and in the second the right to support had already been established by a
final judgment in a criminal case. Notwithstanding these facts the two cases clearly
established the proposition that the option given by article 149 of the Civil Code
may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the
supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as
a result of certain business reverses and in order no to prejudice his wife, conferred
upon her powers to administer and dispose of her property. When she left him he
gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts
receivable, and the key to the safe in which he kept a large amount of jewels, thus
depriving himself of all his possessions and being reduced in consequence to want.
Subsequently he instituted this civil action against his wife, who was then living in
opulence, for support and the revocation of the powers heretofore granted in
reference to the administration and disposal of her property. In her answer the wife
claimed that the plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by her were
bilateral and could not be canceled by the plaintiff. From a judgment in favor of the
plaintiff the defendant wife appealed to the Audencia Territorialwherein, after due
trial, judgment was rendered in her favor dismissing the action upon the merits. The
plaintiff appealed to the supreme court and that high tribunal, in affirming the
judgment of the Audencia Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing that the
spouses are mutually obliged to provide each other with support, cannot but
be subordinate to the other provisions of said Code which regulates the
family organization and the duties of spouses not legally separated, among
which duties are those of their living together and mutually helping each
other, as provided in article 56 of the aforementioned code; and taking this
for granted, the obligation of the spouse who has property to furnish support
to the one who has no property and is in need of it for subsistence, is to be
understood as limited to the case where, in accordance with law, their
separation has been decreed, either temporarily or finally and this case, with
respect to the husband, cannot occur until a judgment of divorce is rendered,
443

since, until then, if he is culpable, he is not deprived of the management of

his wife's property and of the product of the other property belonging to the
conjugal partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it
would allow married persons to disregard the marriage bond and separate
from each other of their own free will, thus establishing, contrary to the legal
provision contained in said article 56 of the Civil Code, a legal status entirely
incompatible with the nature and effects of marriage in disregard of the
duties inherent therein and disturbing the unity of the family, in opposition to
what the law, in conformity with good morals, has established; and.
Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo
are not legally separated, it is their duty to live together and afford each
other help and support; and for this reason, it cannot be held that the former
has need of support from his wife so that he may live apart from her without
the conjugal abode where it is his place to be, nor of her conferring power
upon him to dispose even of the fruits of her property in order therewith to
pay the matrimonial expenses and, consequently, those of his own support
without need of going to his wife; wherefore the judgment appealed from,
denying the petition of D. Ramon Benso for support, has not violated the
articles of the Civil Code and the doctrine invoked in the assignments of error
1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite
clearly that the spouses separated voluntarily in accordance with an agreement
previously made. At least there are strong indications to this effect, for the court
says, "should the doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each other of their own
free will." If this be the true basis upon which the supreme court of Spain rested its
decision, then the doctrine therein enunciated would not be controlling in cases
where one of the spouses was compelled to leave the conjugal abode by the other
or where the husband voluntarily abandons such abode and the wife seeks to force
him to furnish support. That this is true appears from the decision of the same high
tribunal, dated October 16, 1903. In this case the wife brought an action for support
against her husband who had willfully and voluntarily abandoned the conjugal
abode without any cause whatever. The supreme court, reversing the judgment
absolving the defendant upon the ground that no action for divorce, etc., had been
instituted, said:
In the case at bar, it has been proven that it was Don Teodoro Exposito who
left the conjugal abode, although he claims, without however proving his
contention, that the person responsible for this situation was his wife, as she
turned him out of the house. From this state of affairs it results that it is the
444

wife who is party abandoned, the husband not having prosecuted any action
to keep her in his company and he therefore finds himself, as long as he
consents to the situation, under the ineluctable obligation to support his wife
in fulfillment of the natural duty sanctioned in article 56 of the Code in
relation with paragraph 1 of article 143. In not so holding, the trial court, on
the mistaken ground that for the fulfillment of this duty the situation or
relation of the spouses should be regulated in the manner it indicates, has
made the errors of law assigned in the first three grounds alleged, because
the nature of the duty of affording mutual support is compatible and
enforcible in all situations, so long as the needy spouse does not create any
illicit situation of the court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its
decision of November 3, 1905, and if the court did hold, as contended by counsel
for the defendant in the case under consideration, that neither spouse can be
compelled to support the other outside of the conjugal abode, unless it be by virtue
of a final judgment granting the injured one a divorce or separation from the other,
still such doctrine or holding would not necessarily control in this jurisdiction for the
reason that the substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the
Peninsula are not in force in the Philippine Islands. The law governing the duties and
obligations of husband and wife in this country are articles 44 to 78 of the Law of
Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
Civil Code, various causes for divorce, such as adultery on the part of the wife in
every case and on the part of the husband when public scandal or disgrace of the
wife results therefrom; personal violence actually inflicted or grave insults: violence
exercised by the husband toward the wife in order to force her to change her
religion; the proposal of the husband to prostitute his wife; the attempts of the
husband or wife to corrupt their sons or to prostitute their daughters; the
connivance in their corruption or prostitution; and the condemnation of a spouse to
perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce
is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and
absolute doctrine was announced by this court in the case just cited after an
exhaustive examination of the entire subject. Although the case was appealed to
the Supreme Court of the United States and the judgment rendered by this court
was there reversed, the reversal did not affect in any way or weaken the doctrine in
reference to adultery being the only ground for a divorce. And since the decision
was promulgated by this court in that case in December, 1903, no change or
modification of the rule has been announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to
granting divorce or separation, as it necessitates a determination of the question
whether the wife has a good and sufficient cause for living separate from her
445

husband; and, consequently, if a court lacks power to decree a divorce, as in the

instant case, power to grant a separate maintenance must also be lacking. The
weakness of this argument lies in the assumption that the power to grant support in
a separate action is dependent upon a power to grant a divorce. That the one is not
dependent upon the other is apparent from the very nature of the marital
obligations of the spouses. The mere act of marriage creates an obligation on the
part of the husband to support his wife. This obligation is founded not so much on
the express or implied terms of the contract of marriage as on the natural and legal
duty of the husband; an obligation, the enforcement of which is of such vital
concern to the state itself that the laws will not permit him to terminate it by his
own wrongful acts in driving his wife to seek protection in the parental home. A
judgment for separate maintenance is not due and payable either as damages or as
a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment
calling for the performance of a duty made specific by the mandate of the
sovereign. This is done from necessity and with a view to preserve the public peace
and the purity of the wife; as where the husband makes so base demands upon his
wife and indulges in the habit of assaulting her. The pro tanto separation resulting
from a decree for separate support is not an impeachment of that public policy by
which marriage is regarded as so sacred and inviolable in its nature; it is merely a
stronger policy overruling a weaker one; and except in so far only as such
separation is tolerated as a means of preserving the public peace and morals may
be considered, it does not in any respect whatever impair the marriage contract or
for any purpose place the wife in the situation of a feme sole.
The foregoing are the grounds upon which our short opinion and order for judgment,
heretofore filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.
G.R. No. 97336 February 19, 1993
GASHEM
SHOOKAT
BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

446

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
447

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
448

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
449

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 CA-G.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
450

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 defendantappellant'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, defendant-appellant 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
451

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
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

452

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 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
(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

453

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
454

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 Anglo-American 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
455

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 inducement and the woman must
yield because of the promise or other inducement. If she
456

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

457

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
wasseduction, 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
458

doctrine laid down in Batarra 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.

459

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
In Mangayao vs. Lasud,

37

We declared:

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 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. L-20089

December 26, 1964

BEATRIZ
P.
vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni
&
Jamir
Samson S. Alcantara for plaintiff-appellee.

WASSMER, plaintiff-appellee,

for

defendant-appellant.

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.

460

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
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED
APOLOGIZE MAMA PAPA LOVE .

RETURNING

VERY

SOON

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.

461

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 (L-14733, 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.

462

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., 78). 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.
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.
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.

463

PREMISES CONSIDERED, with the above-indicated modification, the lower court's

judgment is hereby affirmed, with costs.
G.R. No. L-14628

September 30, 1960

FRANCISCO
HERMOSISIMA, petitioner,
vs.
THE HON. COURT OF APPEALS, ET AL., respondents.
Regino
Hermosisima
F.P. Gabriel, Jr. for respondents.

for

petitioner.

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 alimonypendente 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:

464

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
465

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.
466

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

Maryland
1945

pp.
1759

Nevada
1943

p.
Maine
1941

pp.
140

New
Hampshire
1941

p.
California
1939

p.
Massachusetts
1938

p.
Indiana
1936

p.
Michigan
1935

p.
New
York
Pennsylvania p. 450

1344
1762
75
141
223
1245
326
1009
201
1935

The Commission perhaps though that it has followed the more progression
trend in legislation when it provided for breach of promise to marry suits. But
it is clear that the creation of such causes of action at a time when so many
States, in consequence of years of experience are doing away with them,
may well prove to be a step in the wrong direction. (Congressional Record,
Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.)
The views thus expressed were accepted by both houses of Congress. In the light of
the clear and manifest intent of our law making body not to sanction actions for
breach of promise to marry, the award of moral damages made by the lower courts
is, accordingly, untenable. The Court of Appeals said award:
Moreover, it appearing that because of defendant-appellant's seduction
power, plaintiff-appellee, overwhelmed by her love for him finally yielded to
his sexual desires in spite of her age and self-control, she being a woman
after all, we hold that said defendant-appellant is liable for seduction and,
467

therefore, moral damages may be recovered from him under the provision of
Article 2219, paragraph 3, of the new Civil Code.
Apart from the fact that the general tenor of said Article 2219, particularly the
paragraphs preceding and those following the one cited by the Court of Appeals,
and the language used in said paragraph strongly indicates that the "seduction"
therein contemplated is the crime punished as such in Article as such in Article 337
and 338 of the Revised Penal Code, which admittedly does not exist in the present
case, we find ourselves unable to say that petitioner is morally guilty of seduction,
not only because he is approximately ten (10) years younger than the complainant
who around thirty-six (36) years of age, and as highly enlightened as a former
high school teacher and a life insurance agent are supposed to be when she
became intimate with petitioner, then a mere apprentice pilot, but, also, because,
the court of first instance found that, complainant "surrendered herself" to
petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by
having a fruit of their engagement even before they had the benefit of clergy."
The court of first instance sentenced petitioner to pay the following: (1) a monthly
pension of P30.00 for the support of the child: (2) P4,500, representing the income
that complainant had allegedly failed to earn during her pregnancy and shortly after
the birth of the child, as actual and compensation damages; (3) P5,000, as moral
damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the
second item the sum of P1,114.25 consisting of P144.20, for hospitalization and
medical attendance, in connection with the parturiation, and the balance
representing expenses incurred to support the child and increased the moral
damages to P7,000.00.
With the elimination of this award for damages, the decision of the Court of Appeals
is hereby affirmed, therefore, in all other respects, without special pronouncement
as to cost in this instance. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista
G.R. No. 161188

June 13, 2008

Heirs of PURISIMA NALA, represented by their attorney-in-fact EFEGENIA

DIGNA
DUYAN, petitioners,
vs.
ARTEMIO CABANSAG, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:

468

This is a petition for review under Rule 45 of the Rules of Court assailing the Court of
Appeals (CA) Decision1dated December 19, 2002 and Resolution 2 dated October 28,
2003, dismissing petitioners' appeal and affirming with modification the Regional
Trial Court (RTC) Decision dated August 10, 1994 rendered in Civil Case No. Q-9110541.
The facts of the case are as follows:
Artemio Cabansag (respondent) filed Civil Case No. Q-91-10541 for damages in
October 1991. According to respondent, he bought a 50-square meter property from
spouses Eugenio Gomez, Jr. and Felisa Duyan Gomez on July 23, 1990. Said property
is part of a 400-square meter lot registered in the name of the Gomez spouses. In
October 1991, he received a demand letter from Atty. Alexander del Prado (Atty. Del
Prado), in behalf of Purisima Nala (Nala), asking for the payment of rentals from
1987 to 1991 until he leaves the premises, as said property is owned by Nala, failing
which criminal and civil actions will be filed against him. Another demand letter was
sent on May 14, 1991. Because of such demands, respondent suffered damages and
was constrained to file the case against Nala and Atty. Del Prado. 3
Atty. Del Prado claimed that he sent the demand letters in good faith and that he
was merely acting in behalf of his client, Nala, who disputed respondent's claim of
ownership. Nala alleged that said property is part of an 800-square meter property
owned by her late husband, Eulogio Duyan, which was subsequently divided into
two parts. The 400-square meter property was conveyed to spouses Gomez in a
fictitious deed of sale, with the agreement that it will be merely held by them in
trust for the Duyan's children. Said property is covered by Transfer Certificate of
Title (TCT) No. 281115 in the name of spouses Gomez. Nala also claimed that
respondent is only renting the property which he occupies. 4
After trial, the RTC of Quezon City, Branch 93, rendered its Decision on August 10,
1994, in favor of respondent. The dispositive portion of the Decision provides:
WHEREFORE, premises considered, by preponderance of evidence, the Court
finds in favor of the plaintiff and hereby orders the defendants, jointly and
severally, to pay plaintiff the following:
1. P150,000.00 by way of moral damages;
2. P30,000.00 by way of exemplary damages;
3. P20,000.00 as and for reasonable attorney's fees and other litigation
expenses; and
4. to pay the costs.
469

SO ORDERED.5
Nala and Atty. Del Prado appealed to the CA. The herein assailed CA Decision dated
December 19, 2002 affirmed the RTC Decision with modification, thus:
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED.
The assailed decision of the Regional Trial Court, Branch 93, Quezon City, in
Civil Case No. Q-91-10541 is heretofore AFFIRMED with MODIFICATION.
Defendants-appellants are ordered to pay, jointly and severally, plaintiffappellee the amount of P30,000.00 by way of moral damages. It is further
ordered to pay him exemplary damages in the amount of P10,000.00
and P10,000.00, attorney's fees.
SO ORDERED.6
In affirming the RTC Decision, the CA took note of the Decision dated September 5,
1994 rendered by the RTC of Quezon City, Branch 80, dismissing Civil Case No. 918821, an action for reconveyance of real property and cancellation of TCT No.
281115 with damages, filed by Nala against spouses Gomez. 7
Hence, herein petition by the heirs of Nala (petitioners) 8 with the following
assignment of errors:
a) Respondent Court of Appeals erred in not considering the right of Purisima
Nala to assert her rights and interest over the property.
b) Respondent Court of Appeals erred in not considering the Decision
rendered by the Court of Appeals in the case for reconveyance which upheld
the rights and interest of Purisima Nala and her children over a certain parcel
of land, a portion of which is subject of the present case.
c) Respondent Court of Appeals erred in awarding damages and attorney's
fees without any basis.9
Atty. Del Prado filed a motion for extension of time to file his separate petition but it
was denied by the Court per its Resolution dated January 19, 2004 issued in G.R. No.
160829.
Petitioners argue that their predecessor-in-interest had every right to protect and
assert her interests over the property. Nala had no knowledge that the property was
sold by spouses Gomez to respondent when the demand letters were sent. What
she was aware of was the fact that spouses Gomez were managing the rentals on
the property by virtue of the implied trust created between them and Eulogio
Duyan. When spouses Gomez failed to remit the rentals and claimed ownership of
470

the property, it was then that Nala decided to procure the services of legal counsel
to protect their rights over the property.
Petitioners also contend that it was error for the CA to take note of the RTC Decision
in Civil Case No. 91-8821 without further noting that the CA had already reversed
and set aside said RTC Decision and ordered reconveyance of the property to Nala
and her children in a Decision dated March 8, 2000 rendered in CA-G.R. CV No.
49163. Petitioners also argue that respondent did not substantiate his claim for
damages.
Preliminarily, the Court notes that both the RTC and the CA failed to indicate the
particular provision of law under which it held petitioners liable for damages.
Nevertheless, based on the allegations in respondent's complaint, it may be
gathered that the basis for his claim for damages is Article 19 of the Civil Code,
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.
The foregoing provision sets the standards which may be observed not only in the
exercise of one's rights but also in the performance of one's duties. 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 a right, though by itself legal because
recognized or granted by law as such, may nevertheless become the source of
some illegality. A person should be protected only when he acts in the legitimate
exercise of his right; that is, when he acts with prudence and in good faith, but not
when he acts with negligence or abuse. There is an abuse of right when it is
exercised only for the purpose of prejudicing or injuring another. The exercise of a
right must be in accordance with the purpose for which it was established, and must
not be excessive or unduly harsh; there must be no intention to injure another. [10]
In order to be liable for damages under the abuse of rights principle, the following
requisites must concur: (a) the existence of a legal right or duty; (b) which is
exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. 11
It should be stressed that malice or bad faith is at the core of Article 19 of the Civil
Code. Good faith is presumed, and he who alleges bad faith has the duty to prove
the same.12 Bad faith, on the other hand, does not simply connote bad judgment to
simple negligence, dishonest purpose or some moral obloquy and conscious doing
of a wrong, or a breach of known duty due to some motives or interest or ill will that
partakes of the nature of fraud. Malice connotes ill will or spite and speaks not in
response to duty. It implies an intention to do ulterior and unjustifiable harm. 13
471

In the present case, there is nothing on record which will prove that Nala and her
counsel, Atty. Del Prado, acted in bad faith or malice in sending the demand letters
to respondent. In the first place, there was ground for Nala's actions since she
believed that the property was owned by her husband Eulogio Duyan and that
respondent was illegally occupying the same. She had no knowledge that spouses
Gomez violated the trust imposed on them by Eulogio and surreptitiously sold a
portion of the property to respondent. It was only after respondent filed the
case for damages against Nala that she learned of such sale. The bare fact
that respondent claims ownership over the property does not give rise to the
conclusion that the sending of the demand letters by Nala was done in bad faith.
Absent any evidence presented by respondent, bad faith or malice could not be
attributed to petitioner since Nala was only trying to protect their interests over the
property.
Moreover, respondent failed to show that Nala and Atty. Del Prado's acts were done
with the sole intention of prejudicing and injuring him. It may be true that
respondent suffered mental anguish, serious anxiety and sleepless nights when he
received the demand letters; however, there is a material distinction between
damages and injury. Injury is the legal invasion of a legal right while damage is the
hurt, loss or harm which results from the injury. 14 Thus, there can be damage
without injury in those instances in which the loss or harm was not the result of a
violation of a legal duty. In such cases, the consequences must be borne by the
injured person alone; the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. These situations are often
called damnum absque injuria.15
Nala was acting well within her rights when she instructed Atty. Del Prado to send
the demand letters. She had to take all the necessary legal steps to enforce her
legal/equitable rights over the property occupied by respondent. One who makes
use of his own legal right does no injury. 16 Thus, whatever damages are suffered by
respondent should be borne solely by him.
Nala's acts in protecting her rights over the property find further solid ground in the
fact that the property has already been ordered reconveyed to her and her heirs. In
its Decision dated March 8, 2000 in CA-G.R. CV No. 49163, the CA reversed and set
aside the RTC's Decision and ordered the reconveyance of the property to
petitioners, and TCT No. 281115 was declared canceled. Said CA Decision was
affirmed by this Court in its Decision dated March 18, 2005 in G.R. No. 144148,
which became final and executory on July 27, 2005.
WHEREFORE, the petition is GRANTED. The Decision dated December 19, 2002
and Resolution dated October 28, 2003 rendered by the Court of Appeals in CA-G.R.
CV No. 48580 are NULLIFIED. Civil Case No. Q-91-10541 is DISMISSED for lack of
merit.
472

Costs against respondent.

SO ORDERED.
G.R. No. L-18630

December 17, 1966

APOLONIO
TANJANCO, petitioner,
vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.
P.
Carreon
and
G.
O.
Antonio V. Bonoan for respondents.

Veneracion,

Jr.

for

petitioner.

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

Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an
order of the Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing
appellant's action for support and damages.
The essential allegations of the complaint are to the effect that, from December,
1957, the defendant (appellee herein), Apolonio Tanjanco, courted the plaintiff,
Araceli Santos, both being of adult age; that "defendant expressed and professed
his undying love and affection for plaintiff who also in due time reciprocated the
tender feelings"; that in consideration of defendant's promise of marriage plaintiff
consented and acceded to defendant's pleas for carnal knowledge; that regularly
until December 1959, through his protestations of love and promises of marriage,
defendant succeeded in having carnal access to plaintiff, as a result of which the
latter conceived a child; that due to her pregnant condition, to avoid
embarrassment and social humiliation, plaintiff had to resign her job as secretary in
IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby
plaintiff became unable to support herself and her baby; that due to defendant's
refusal to marry plaintiff, as promised, the latter suffered mental anguish,
besmirched reputation, wounded feelings, moral shock, and social humiliation. The
prayer was for a decree compelling the defendant to recognize the unborn child that
plaintiff was bearing; to pay her not less than P430.00 a month for her support and
that of her baby, plus P100,000.00 in moral and exemplary damages, plus
P10,000.00 attorney's fees.
Upon defendant's motion to dismiss, the court of first instance dismissed the
complaint for failure to state a cause of action.
Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately
decided the case, holding with the lower court that no cause of action was shown to
compel recognition of a child as yet unborn, nor for its support, but decreed that the
473

complaint did state a cause of action for damages, premised on Article 21 of the
Civil Code of the Philippines, prescribing as follows:
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 Court of Appeals, therefore, entered judgment setting aside the dismissal and
directing the court of origin to proceed with the case.
Defendant, in turn, appealed to this Court, pleading that actions for breach of a
promise to marry are not permissible in this jurisdiction, and invoking the rulings of
this Court in Estopa vs. Piansay, L-14733, September 30, 1960; Hermosisima vs.
Court of Appeals, L-14628, January 29, 1962; and De Jesus vs. SyQuia, 58 Phil. 886.
We find this appeal meritorious.
In holding that the complaint stated a cause of action for damages, under Article 21
above mentioned, the Court of Appeals relied upon and quoted from the
memorandum submitted by the Code Commission to the Legislature in 1949 to
support the original draft of the Civil Code. Referring to Article 23 of the draft (now
Article 21 of the Code), the Commission stated:
But the Code Commission has 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 eighteen 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 her
family have suffered incalculable moral damage, she and her parents cannot
bring any action for damages. But under the proposed article, she and her
parents would have such a right of action.

474

The Court of Appeals seems to have overlooked that the example set forth in the
Code Commission's memorandum refers to a tort upon a minor who has
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
inducement and 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 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 recover.
Accordingly it is not seduction where the willingness arises out of sexual
desire or 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)
Bearing these principles in mind, let us examine the complaint. The material
allegations there are as follows:
I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman,
Quezon City, while defendant is also of legal age, single and residing at 525
Padre Faura, Manila, where he may be served with summons;
II. That the plaintiff and the defendant became acquainted with each other
sometime in December, 1957 and soon thereafter, the defendant started
visiting and courting the plaintiff;

475

III. That the defendant's visits were regular and frequent and in due time the
defendant expressed and professed his undying love and affection for the
plaintiff who also in due time reciprocated the tender feelings;
IV. That in the course of their engagement, the plaintiff and the defendant as
are wont of young people in love had frequent outings and dates, became
very close and intimate to each other and sometime in July, 1958, in
consideration of the defendant's promises of marriage, the plaintiff consented
and acceded to the former's earnest and repeated pleas to have carnal
knowledge with him;
V. That subsequent thereto and regularly until about July, 1959 except for a
short period in December, 1958 when the defendant was out of the country,
the defendant through his protestations of love and promises of marriage
succeeded in having carnal knowledge with the plaintiff;
VI. That as a result of their intimate relationship, the plaintiff started
conceiving which was confirmed by a doctor sometime in July, 1959;
VII. That upon being certain of her pregnant condition, the plaintiff informed
the defendant and pleaded with him to make good his promises of marriage,
but instead of honoring his promises and righting his wrong, the defendant
stopped and refrained from seeing the plaintiff since about July, 1959 has not
visited the plaintiff and to all intents and purposes has broken their
engagement and his promises.
Over and above the partisan allegations, the facts stand out that for one whole
year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained
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 chart all sexual relations upon finding that defendant did not intend
to fulfill his promises. 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.
Of course, the dismissal must be understood as without prejudice to whatever
actions may correspond to the child of the plaintiff against the defendant-appellant,
if any. On that point, this Court makes no pronouncement, since the child's own
rights are not here involved.

476

FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed,
and that of the Court of First Instance is affirmed. No costs.
G.R. No. L-16439

July 20, 1961

ANTONIO
GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano
H.
A.P. Salvador for respondents.

de

Joya

for

petitioner.

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 two-month
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

477

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 thespes 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,
478

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.
The dissenting Justices of the Court of Appeals have aptly remarked that:
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
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.
The decision appealed from is reversed, and the complaint ordered dismissed.
Without costs.
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.

479

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion,
J., took
no
part.
De Leon, J., took no part.
CONTINENTAL
MANUFACTURING
CORPORATION,

STEEL
G.R. No. 182836

Petitioner,

Present:

- versus -

HON. ACCREDITED VOLUNTARY

ARBITRATOR ALLAN S. MONTAO
and
NAGKAKAISANG
MANGGAGAWA
NG
CENTRO
STEEL
CORPORATIONSOLIDARITY OF UNIONS IN THE
PHILIPPINES
FOR
EMPOWERMENT AND REFORMS
(NMCSC-SUPER),

CARPIO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Respondents.

Promulgated:

October 13, 2009

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480

DECISION

CHICO-NAZARIO, J.:

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:

ARTICLE X: LEAVE OF ABSENCE

xxxx

Section 2. BEREAVEMENT LEAVEThe 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:

481

2.1 Within Metro Manila up to Marilao, Bulacan - 7 days

2.2 Provincial/Outside Metro Manila - 11 days

xxxx

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

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]

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 38thweek 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]

482

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 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

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
the dependent 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.

483

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
adependent, 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.
484

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
485

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:

[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]
486

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 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]

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.

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
487

applied. Only one with juridical personality can die and a dead fetus never acquired
a juridical personality.

We are not persuaded.

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 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.
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.

488

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, thenchild 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
489

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.

490

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 38-39 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:

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.

In Philippine Telegraph & Telephone Corporation v. NLRC [183

SCRA 451 (1990)], we categorically stated that:

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.

Likewise, in Terminal Facilities and Services Corporation v.

NLRC [199 SCRA 265 (1991)], we declared:

491

Any doubt concerning the rights of labor should be

resolved in its favor pursuant to the social justice policy.

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 CA-G.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.

SO ORDERED.
G.R. No. L-12105

January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST

CO., executor-appellee,
vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA
BOHANAN, oppositors-appellants.
Jose
D.
Cortes
Ohnick, Velilla and Balonkita for appellee.

for

appellants.

LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San
Jose, presiding, dismissing the objections filed by Magdalena C. Bohanan, Mary
Bohanan and Edward Bohanan to the project of partition submitted by the executor
and approving the said project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo,
presiding, admitted to probate a last will and testament of C. O. Bohanan, executed
by him on April 23, 1944 in Manila. In the said order, the court made the following
findings:
According to the evidence of the opponents the testator was born in
Nebraska and therefore a citizen of that state, or at least a citizen of
492

California where some of his properties are located. This contention in

untenable. Notwithstanding the long residence of the decedent in the
Philippines, his stay here was merely temporary, and he continued and
remained to be a citizen of the United States and of the state of his pertinent
residence to spend the rest of his days in that state. His permanent residence
or domicile in the United States depended upon his personal intent or desire,
and he selected Nevada as his homicide and therefore at the time of his
death, he was a citizen of that state. Nobody can choose his domicile or
permanent residence for him. That is his exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time of
his death a citizen of the United States and of the State of Nevada and
declares that his will and testament, Exhibit A, is fully in accordance with the
laws of the state of Nevada and admits the same to probate. Accordingly, the
Philippine Trust Company, named as the executor of the will, is hereby
appointed to such executor and upon the filing of a bond in the sum of
P10,000.00, let letters testamentary be issued and after taking the prescribed
oath, it may enter upon the execution and performance of its trust. (pp. 2627, R.O.A.).
It does not appear that the order granting probate was ever questions on appeal.
The executor filed a project of partition dated January 24, 1956, making, in
accordance with the provisions of the will, the following adjudications: (1) one-half
of the residuary estate, to the Farmers and Merchants National Bank of Los Angeles,
California, U.S.A. in trust only for the benefit of testator's grandson Edward George
Bohanan, which consists of several mining companies; (2) the other half of the
residuary estate to the testator's brother, F.L. Bohanan, and his sister, Mrs. M. B.
Galbraith, share and share alike. This consist in the same amount of cash and of
shares of mining stock similar to those given to testator's grandson; (3) legacies of
P6,000 each to his (testator) son, Edward Gilbert Bohana, and his daughter, Mary
Lydia Bohanan, to be paid in three yearly installments; (4) legacies to Clara Daen, in
the amount of P10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and
Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting
administration expenses) of P211,639.33 in cash, the testator gave his grandson
P90,819.67 and one-half of all shares of stock of several mining companies and to
his brother and sister the same amount. To his children he gave a legacy of only
P6,000 each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children question the validity of the
testamentary provisions disposing of the estate in the manner above indicated,
claiming that they have been deprived of the legitimate that the laws of the form
concede to them.
493

The first question refers to the share that the wife of the testator, Magdalena C.
Bohanan, should be entitled to received. The will has not given her any share in the
estate left by the testator. It is argued that it was error for the trial court to have
recognized the Reno divorce secured by the testator from his Filipino wife
Magdalena C. Bohanan, and that said divorce should be declared a nullity in this
jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz.,
(Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil.,
855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to recognize the
claim of the widow on the ground that the laws of Nevada, of which the deceased
was a citizen, allow him to dispose of all of his properties without requiring him to
leave any portion of his estate to his wife. Section 9905 of Nevada Compiled Laws of
1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last will,
dispose of all his or her estate, real and personal, the same being chargeable
with the payment of the testator's debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a
share in the testator's estafa had already been passed upon adversely against her
in an order dated June 19, 1955, (pp. 155-159, Vol II Records, Court of First
Instance), which had become final, as Magdalena C. Bohanan does not appear to
have appealed therefrom to question its validity. On December 16, 1953, the said
former wife filed a motion to withdraw the sum of P20,000 from the funds of the
estate, chargeable against her share in the conjugal property, (See pp. 294-297, Vol.
I, Record, Court of First Instance), and the court in its said error found that there
exists no community property owned by the decedent and his former wife at the
time the decree of divorce was issued. As already and Magdalena C. Bohanan may
no longer question the fact contained therein, i.e. that there was no community
property acquired by the testator and Magdalena C. Bohanan during their
converture.
Moreover, the court below had found that the testator and Magdalena C. Bohanan
were married on January 30, 1909, and that divorce was granted to him on May 20,
1922; that sometime in 1925, Magdalena C. Bohanan married Carl Aaron and this
marriage was subsisting at the time of the death of the testator. Since no right to
share in the inheritance in favor of a divorced wife exists in the State of Nevada and
since the court below had already found that there was no conjugal property
between the testator and Magdalena C. Bohanan, the latter can now have no longer
claim to pay portion of the estate left by the testator.
The most important issue is the claim of the testator's children, Edward and Mary
Lydia, who had received legacies in the amount of P6,000 each only, and, therefore,
have not been given their shares in the estate which, in accordance with the laws of
the forum, should be two-thirds of the estate left by the testator. Is the failure old
494

the testator to give his children two-thirds of the estate left by him at the time of his
death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in
1944, expressly provides that successional rights to personal property are to be
earned by the national law of the person whose succession is in question. Says the
law on this point:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the extent of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be the nature of the
property and the country in which it is found. (par. 2, Art. 10, old Civil Code,
which is the same as par. 2 Art. 16, new Civil Code.)
In the proceedings for the probate of the will, it was found out and it was decided
that the testator was a citizen of the State of Nevada because he had selected this
as his domicile and his permanent residence. (See Decision dated April 24,
1950, supra). So the question at issue is whether the estementary dispositions,
especially hose for the children which are short of the legitime given them by the
Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada
allow a testator to dispose of all his properties by will (Sec. 9905, Complied Nevada
Laws of 1925, supra). It does not appear that at time of the hearing of the project of
partition, the above-quoted provision was introduced in evidence, as it was the
executor's duly to do. The law of Nevada, being a foreign law can only be proved in
our courts in the form and manner provided for by our Rules, which are as follows:
SEC. 41. Proof of public or official record. An official record or an entry
therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy tested by the officer having the legal custody
of he record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. . . . (Rule
123).
We have, however, consulted the records of the case in the court below and we
have found that during the hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially
Section 9905, Compiled Nevada Laws. was introduced in evidence by appellant's
(herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44,
Records, Court of First Instance). Again said laws presented by the counsel for the
executor and admitted by the Court as Exhibit "B" during the hearing of the case on
January 23, 1950 before Judge Rafael Amparo (se Records, Court of First Instance,
Vol. 1).

495

In addition, the other appellants, children of the testator, do not dispute the abovequoted provision of the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial
notice of by us, without proof of such law having been offered at the hearing of the
project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary
dispositions are to be governed by the national law of the testator, and as it has
been decided and it is not disputed that the national law of the testator is that of
the State of Nevada, already indicated above, which allows a testator to dispose of
all his property according to his will, as in the case at bar, the order of the court
approving the project of partition made in accordance with the testamentary
provisions, must be, as it is hereby affirmed, with costs against appellants.
Paras, Bengzon, C.J., Padilla,
Barrera, J., concurs in the result.
G.R. No. 139868

Bautista

Angelo

and

Endencia,

JJ., concur.

June 8, 2006

ALONZO
Q.
vs.
CANDELARIA GUERSEY-DALAYGON, Respondent.

ANCHETA, Petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Spouses Audrey ONeill (Audrey) and W. Richard Guersey (Richard) were American
citizens who have resided in the Philippines for 30 years. They have an adopted
daughter, Kyle Guersey Hill (Kyle). On July 29, 1979, Audrey died, leaving a will. In it,
she bequeathed her entire estate to Richard, who was also designated as
executor.1 The will was admitted to probate before the Orphans Court of Baltimore,
Maryland, U.S.A, which named James N. Phillips as executor due to Richards
renunciation of his appointment. 2 The court also named Atty. Alonzo Q. Ancheta
(petitioner) of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices as ancillary
administrator.3
In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with whom he
has two children, namely, Kimberly and Kevin.
On October 12, 1982, Audreys will was also admitted to probate by the then Court
of First Instance of Rizal, Branch 25, Seventh Judicial District, Pasig, in Special
Proceeding No. 9625.4 As administrator of Audreys estate in the Philippines,
496

petitioner filed an inventory and appraisal of the following properties: (1) Audreys
conjugal share in real estate with improvements located at 28 Pili Avenue, Forbes
Park, Makati, Metro Manila, valued atP764,865.00 (Makati property); (2) a current
account in Audreys name with a cash balance of P12,417.97; and (3) 64,444 shares
of stock in A/G Interiors, Inc. worth P64,444.00.5
On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his entire
estate to respondent, save for his rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle. 6 The will was also admitted to probate by the Orphans
Court of Ann Arundel, Maryland, U.S.A, and James N. Phillips was likewise appointed
as executor, who in turn, designated Atty. William Quasha or any member of the
Quasha Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary administrator.
Richards will was then submitted for probate before the Regional Trial Court of
Makati, Branch 138, docketed as Special Proceeding No. M-888. 7 Atty. Quasha was
appointed as ancillary administrator on July 24, 1986. 8
On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a motion to
declare Richard and Kyle as heirs of Audrey. 9 Petitioner also filed on October 23,
1987, a project of partition of Audreys estate, with Richard being apportioned the
undivided interest in the Makati property, 48.333 shares in A/G Interiors, Inc.,
andP9,313.48 from the Citibank current account; and Kyle, the undivided interest
in the Makati property, 16,111 shares in A/G Interiors, Inc., and P3,104.49 in cash.10
The motion and project of partition was granted and approved by the trial court in
its Order dated February 12, 1988.11 The trial court also issued an Order on April 7,
1988, directing the Register of Deeds of Makati to cancel TCT No. 69792 in the name
of Richard and to issue a new title in the joint names of the Estate of W. Richard
Guersey ( undivided interest) and Kyle ( undivided interest); directing the
Secretary of A/G Interiors, Inc. to transfer 48.333 shares to the Estate of W. Richard
Guersey and 16.111 shares to Kyle; and directing the Citibank to release the
amount of P12,417.97 to the ancillary administrator for distribution to the heirs. 12
Consequently, the Register of Deeds of Makati issued on June 23, 1988, TCT No.
155823 in the names of the Estate of W. Richard Guersey and Kyle. 13
Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also filed a
project of partition wherein 2/5of Richards undivided interest in the Makati
property was allocated to respondent, while 3/5 thereof were allocated to Richards
three children. This was opposed by respondent on the ground that under the law of
the State of Maryland, "a legacy passes to the legatee the entire interest of
the testator in the property subject of the legacy."14 Since Richard left his
entire estate to respondent, except for his rights and interests over the A/G

497

Interiors, Inc, shares, then his entire undivided interest in the Makati property
should be given to respondent.
The trial court found merit in respondents opposition, and in its Order dated
December 6, 1991, disapproved the project of partition insofar as it affects the
Makati property. The trial court also adjudicated Richards entire undivided
interest in the Makati property to respondent.15
On October 20, 1993, respondent filed with the Court of Appeals (CA) an amended
complaint for the annulment of the trial courts Orders dated February 12, 1988 and
April 7, 1988, issued in Special Proceeding No. 9625. 16Respondent contended that
petitioner willfully breached his fiduciary duty when he disregarded the laws of the
State of Maryland on the distribution of Audreys estate in accordance with her will.
Respondent argued that since Audrey devised her entire estate to Richard, then the
Makati property should be wholly adjudicated to him, and not merely thereof, and
since Richard left his entire estate, except for his rights and interests over the A/G
Interiors, Inc., to respondent, then the entire Makati property should now pertain to
respondent.
Petitioner filed his Answer denying respondents allegations. Petitioner contended
that he acted in good faith in submitting the project of partition before the trial
court in Special Proceeding No. 9625, as he had no knowledge of the State of
Marylands laws on testate and intestate succession. Petitioner alleged that he
believed that it is to the "best interests of the surviving children that Philippine law
be applied as they would receive their just shares." Petitioner also alleged that the
orders sought to be annulled are already final and executory, and cannot be set
aside.
On March 18, 1999, the CA rendered the assailed Decision annulling the trial courts
Orders dated February 12, 1988 and April 7, 1988, in Special Proceeding No.
9625.17 The dispositive portion of the assailed Decision provides:
WHEREFORE, the assailed Orders of February 12, 1998 and April 7, 1988 are hereby
ANNULLED and, in lieu thereof, a new one is entered ordering:
(a) The adjudication of the entire estate of Audrey ONeill Guersey in favor of
the estate of W. Richard Guersey; and
(b) The cancellation of Transfer Certificate of Title No. 15583 of the Makati
City Registry and the issuance of a new title in the name of the estate of W.
Richard Guersey.
SO ORDERED.18

498

Petitioner filed a motion for reconsideration, but this was denied by the CA per
Resolution dated August 27, 1999.19
Hence, the herein petition for review on certiorari under Rule 45 of the Rules of
Court alleging that the CA gravely erred in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN SPECIAL
PROCEEDINGS NO. 9625 "IN THE MATTER OF THE PETITION FOR PROBATE OF
THE WILL OF THE DECEASED AUDREY GUERSEY, ALONZO Q. ANCHETA,
ANCILLARY ADMINISTRATOR", ARE VALID AND BINDING AND HAVE LONG
BECOME FINAL AND HAVE BEEN FULLY IMPLEMENTED AND EXECUTED AND
CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD FAITH, DID NOT
COMMIT FRAUD, EITHER EXTRINSIC OR INTRINSIC, IN THE PERFORMANCE OF
HIS DUTIES AS ANCILLARY ADMINISTRATOR OF AUDREY ONEIL GUERSEYS
ESTATE IN THE PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN PROCURING SAID ORDERS. 20
Petitioner reiterates his arguments before the CA that the Orders dated February 12,
1988 and April 7, 1988 can no longer be annulled because it is a final judgment,
which is "conclusive upon the administration as to all matters involved in such
judgment or order, and will determine for all time and in all courts, as far as the
parties to the proceedings are concerned, all matters therein determined," and the
same has already been executed.21
Petitioner also contends that that he acted in good faith in performing his duties as
an ancillary administrator. He maintains that at the time of the filing of the project
of partition, he was not aware of the relevant laws of the State of Maryland, such
that the partition was made in accordance with Philippine laws. Petitioner also
imputes knowledge on the part of respondent with regard to the terms of Aubreys
will, stating that as early as 1984, he already apprised respondent of the contents of
the will and how the estate will be divided. 22
Respondent argues that petitioners breach of his fiduciary duty as ancillary
administrator of Aubreys estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the express terms of Aubreys will,
and his denial of knowledge of the laws of Maryland cannot stand because
petitioner is a senior partner in a prestigious law firm and it was his duty to know
the relevant laws.
Respondent also states that she was not able to file any opposition to the project of
partition because she was not a party thereto and she learned of the provision of
Aubreys will bequeathing entirely her estate to Richard only after Atty. Ancheta
499

filed a project of partition in Special Proceeding No. M-888 for the settlement of
Richards estate.
A decree of distribution of the estate of a deceased person vests the title to the land
of the estate in the distributees, which, if erroneous may be corrected by a timely
appeal. Once it becomes final, its binding effect is like any other judgment in
rem.23 However, in exceptional cases, a final decree of distribution of the estate may
be set aside for lack of jurisdiction or fraud. 24 Further, in Ramon v. Ortuzar,25 the
Court ruled that a party interested in a probate proceeding may have a final
liquidation set aside when he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable to negligence. 26
The petition for annulment was filed before the CA on October 20, 1993, before the
issuance of the 1997 Rules of Civil Procedure; hence, the applicable law is Batas
Pambansa Blg. 129 (B.P. 129) or the Judiciary Reorganization Act of 1980. An
annulment of judgment filed under B.P. 129 may be based on the ground that a
judgment is void for want of jurisdiction or that the judgment was obtained by
extrinsic fraud.27 For fraud to become a basis for annulment of judgment, it has to
be extrinsic or actual,28 and must be brought within four years from the discovery of
the fraud.29
In the present case, respondent alleged extrinsic fraud as basis for the annulment of
the RTC Orders dated February 12, 1988 and April 7, 1988. The CA found merit in
respondents cause and found that petitioners failure to follow the terms of
Audreys will, despite the latters declaration of good faith, amounted to extrinsic
fraud. The CA ruled that under Article 16 of the Civil Code, it is the national law of
the decedent that is applicable, hence, petitioner should have distributed Aubreys
estate in accordance with the terms of her will. The CA also found that petitioner
was prompted to distribute Audreys estate in accordance with Philippine laws in
order to equally benefit Audrey and Richard Guerseys adopted daughter, Kyle
Guersey Hill.
Petitioner contends that respondents cause of action had already prescribed
because as early as 1984, respondent was already well aware of the terms of
Audreys will,30 and the complaint was filed only in 1993. Respondent, on the other
hand, justified her lack of immediate action by saying that she had no opportunity
to question petitioners acts since she was not a party to Special Proceeding No.
9625, and it was only after Atty. Ancheta filed the project of partition in Special
Proceeding No. M-888, reducing her inheritance in the estate of Richard that she
was prompted to seek another counsel to protect her interest. 31
It should be pointed out that the prescriptive period for annulment of judgment
based on extrinsic fraud commences to run from the discovery of the fraud or
fraudulent act/s. Respondents knowledge of the terms of Audreys will is
500

immaterial in this case since it is not the fraud complained of. Rather, it is
petitioners failure to introduce in evidence the pertinent law of the State of
Maryland that is the fraudulent act, or in this case, omission, alleged to have been
committed against respondent, and therefore, the four-year period should be
counted from the time of respondents discovery thereof.
Records bear the fact that the filing of the project of partition of Richards estate,
the opposition thereto, and the order of the trial court disallowing the project of
partition in Special Proceeding No. M-888 were all done in 1991. 32 Respondent
cannot be faulted for letting the assailed orders to lapse into finality since it was
only through Special Proceeding No. M-888 that she came to comprehend the
ramifications of petitioners acts. Obviously, respondent had no other recourse
under the circumstances but to file the annulment case. Since the action for
annulment was filed in 1993, clearly, the same has not yet prescribed.
Fraud takes on different shapes and faces. In Cosmic Lumber Corporation v. Court of
Appeals,33 the Court stated that "man in his ingenuity and fertile imagination will
always contrive new schemes to fool the unwary."
There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg. 129, where
it is one the effect of which prevents a party from hearing a trial, or real contest, or
from presenting all of his case to the court, or where it operates upon matters, not
pertaining to the judgment itself, but to the manner in which it was procured so that
there is not a fair submission of the controversy. In other words, extrinsic fraud
refers to any fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the defeated party has been
prevented from exhibiting fully his side of the case by fraud or deception practiced
on him by his opponent. Fraud is extrinsic where the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception practiced on him by
his opponent, as by keeping him away from court, a false promise of a compromise;
or where the defendant never had any knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an attorney fraudulently or without
authority connives at his defeat; these and similar cases which show that there has
never been a real contest in the trial or hearing of the case are reasons for which a
new suit may be sustained to set aside and annul the former judgment and open
the case for a new and fair hearing.34
The overriding consideration when extrinsic fraud is alleged is that the fraudulent
scheme of the prevailing litigant prevented a party from having his day in court. 35
Petitioner is the ancillary administrator of Audreys estate. As such, he occupies a
position of the highest trust and confidence, and he is required to exercise
reasonable diligence and act in entire good faith in the performance of that trust.
Although he is not a guarantor or insurer of the safety of the estate nor is he
501

expected to be infallible, yet the same degree of prudence, care and judgment
which a person of a fair average capacity and ability exercises in similar
transactions of his own, serves as the standard by which his conduct is to be
judged.36
Petitioners failure to proficiently manage the distribution of Audreys estate
according to the terms of her will and as dictated by the applicable law amounted to
extrinsic fraud. Hence the CA Decision annulling the RTC Orders dated February 12,
1988 and April 7, 1988, must be upheld.
It is undisputed that Audrey Guersey was an American citizen domiciled in
Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625, it
was shown, among others, that at the time of Audreys death, she was residing in
the Philippines but is domiciled in Maryland, U.S.A.; her Last Will and Testament
dated August 18, 1972 was executed and probated before the Orphans Court in
Baltimore, Maryland, U.S.A., which was duly authenticated and certified by the
Register of Wills of Baltimore City and attested by the Chief Judge of said court; the
will was admitted by the Orphans Court of Baltimore City on September 7, 1979;
and the will was authenticated by the Secretary of State of Maryland and the Vice
Consul of the Philippine Embassy.
Being a foreign national, the intrinsic validity of Audreys will, especially with regard
as to who are her heirs, is governed by her national law, i.e., the law of the State of
Maryland, as provided in Article 16 of the Civil Code, to wit:
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 succession, 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 wherein said
property may be found. (Emphasis supplied)
Article 1039 of the Civil Code further provides that "capacity to succeed is governed
by the law of the nation of the decedent."
As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance of Will
Proved Outside the Philippines and Administration of Estate Thereunder, states:
SEC. 4. Estate, how administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all the estate of the
502

testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so
far as such will may operate upon it; and the residue, if any, shall be disposed
of as is provided by law in cases of estates in the Philippines belonging to persons
who are inhabitants of another state or country. (Emphasis supplied)
While foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them; 37 however, petitioner, as ancillary
administrator of Audreys estate, was duty-bound to introduce in evidence the
pertinent law of the State of Maryland.38
Petitioner admitted that he failed to introduce in evidence the law of the State of
Maryland on Estates and Trusts, and merely relied on the presumption that such law
is the same as the Philippine law on wills and succession. Thus, the trial court
peremptorily applied Philippine laws and totally disregarded the terms of Audreys
will. The obvious result was that there was no fair submission of the case before the
trial court or a judicious appreciation of the evidence presented.
Petitioner insists that his application of Philippine laws was made in good faith. The
Court cannot accept petitioners protestation. How can petitioner honestly presume
that Philippine laws apply when as early as the reprobate of Audreys will before the
trial court in 1982, it was already brought to fore that Audrey was a U.S. citizen,
domiciled in the State of Maryland. As asserted by respondent, petitioner is a senior
partner in a prestigious law firm, with a "big legal staff and a large library." 39 He had
all the legal resources to determine the applicable law. It was incumbent upon him
to exercise his functions as ancillary administrator with reasonable diligence, and to
discharge the trust reposed on him faithfully. Unfortunately, petitioner failed to
perform his fiduciary duties.
Moreover, whether his omission was intentional or not, the fact remains that the
trial court failed to consider said law when it issued the assailed RTC Orders dated
February 12, 1988 and April 7, 1988, declaring Richard and Kyle as Audreys heirs,
and distributing Audreys estate according to the project of partition submitted by
petitioner. This eventually prejudiced respondent and deprived her of her full
successional right to the Makati property.
In GSIS v. Bengson Commercial Bldgs., Inc., 40 the Court held that when the rule that
the negligence or mistake of counsel binds the client deserts its proper office as an
aid to justice and becomes a great hindrance and chief enemy, its rigors must be
relaxed to admit exceptions thereto and to prevent a miscarriage of justice, and the
court has the power to except a particular case from the operation of the rule
whenever the purposes of justice require it.

503

The CA aptly noted that petitioner was remiss in his responsibilities as ancillary
administrator of Audreys estate. The CA likewise observed that the distribution
made by petitioner was prompted by his concern over Kyle, whom petitioner
believed should equally benefit from the Makati property. The CA correctly stated,
which the Court adopts, thus:
In claiming good faith in the performance of his duties and responsibilities,
defendant Alonzo H. Ancheta invokes the principle which presumes the law of the
forum to be the same as the foreign law (Beam vs. Yatco, 82 Phil. 30, 38) in the
absence of evidence adduced to prove the latter law (Slade Perkins vs. Perkins, 57
Phil. 205, 210). In defending his actions in the light of the foregoing principle,
however, it appears that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute the subject estate in
accordance with the will of Audrey ONeill Guersey. Considering the principle
established under Article 16 of the Civil Code of the Philippines, as well as the
citizenship and the avowed domicile of the decedent, it goes without saying that the
defendant was also duty-bound to prove the pertinent laws of Maryland on the
matter.
The record reveals, however, that no clear effort was made to prove the national
law of Audrey ONeill Guersey during the proceedings before the court a quo. While
there is claim of good faith in distributing the subject estate in accordance with the
Philippine laws, the defendant appears to put his actuations in a different light as
indicated in a portion of his direct examination, to wit:
xxx
It would seem, therefore, that the eventual distribution of the estate of Audrey
ONeill Guersey was prompted by defendant Alonzo H. Anchetas concern that the
subject realty equally benefit the plaintiffs adopted daughter Kyle Guersey.
Well-intentioned though it may be, defendant Alonzo H. Anchetas action appears to
have breached his duties and responsibilities as ancillary administrator of the
subject estate. While such breach of duty admittedly cannot be considered
extrinsic fraud under ordinary circumstances, the fiduciary nature of the
said defendants position, as well as the resultant frustration of the
decedents last will, combine to create a circumstance that is tantamount
to extrinsic fraud. Defendant Alonzo H. Anchetas omission to prove the national
laws of the decedent and to follow the latters last will, in sum, resulted in the
procurement of the subject orders without a fair submission of the real issues
involved in the case.41 (Emphasis supplied)
This is not a simple case of error of judgment or grave abuse of discretion, but a
total disregard of the law as a result of petitioners abject failure to discharge his
504

fiduciary duties. It does not rest upon petitioners pleasure as to which law should
be made applicable under the circumstances. His onus is clear. Respondent was
thus excluded from enjoying full rights to the Makati property through no fault or
negligence of her own, as petitioners omission was beyond her control. She was in
no position to analyze the legal implications of petitioners omission and it was
belatedly that she realized the adverse consequence of the same. The end result
was a miscarriage of justice. In cases like this, the courts have the legal and moral
duty to provide judicial aid to parties who are deprived of their rights. 42
The trial court in its Order dated December 6, 1991 in Special Proceeding No. M-888
noted the law of the State of Maryland on Estates and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the Public General
Laws of Maryland on Estates and Trusts, "all property of a decedent shall be subject
to the estate of decedents law, and upon his death shall pass directly to the
personal representative, who shall hold the legal title for administration and
distribution," while Section 4-408 expressly provides that "unless a contrary intent is
expressly indicated in the will, a legacy passes to the legatee the entire interest of
the testator in the property which is the subject of the legacy". Section 7-101, Title
7, Sub-Title 1, on the other hand, declares that "a personal representative is a
fiduciary" and as such he is "under the general duty to settle and distribute the
estate of the decedent in accordance with the terms of the will and the estate of
decedents law as expeditiously and with as little sacrifice of value as is reasonable
under the circumstances".43
In her will, Audrey devised to Richard her entire estate, consisting of the following:
(1) Audreys conjugal share in the Makati property; (2) the cash amount
of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors, Inc.
worth P64,444.00. All these properties passed on to Richard upon Audreys death.
Meanwhile, Richard, in his will, bequeathed his entire estate to respondent, except
for his rights and interests over the A/G Interiors, Inc. shares, which he left to Kyle.
When Richard subsequently died, the entire Makati property should have then
passed on to respondent. This, of course, assumes the proposition that the law of
the State of Maryland which allows "a legacy to pass to the legatee the entire estate
of the testator in the property which is the subject of the legacy," was sufficiently
proven in Special Proceeding No. 9625. Nevertheless, the Court may take judicial
notice thereof in view of the ruling in Bohanan v. Bohanan. 44 Therein, the Court took
judicial notice of the law of Nevada despite failure to prove the same. The Court
held, viz.:
We have, however, consulted the records of the case in the court below and we
have found that during the hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially
Section 9905, Compiled Nevada Laws, was introduced in evidence by appellants'
505

(herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records,
Court of First Instance). Again said law was presented by the counsel for the
executor and admitted by the Court as Exhibit "B" during the hearing of the case on
January 23, 1950 before Judge Rafael Amparo (see Records, Court of First Instance,
Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the abovequoted provision of the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial
notice of by us, without proof of such law having been offered at the hearing of the
project of partition.
In this case, given that the pertinent law of the State of Maryland has been brought
to record before the CA, and the trial court in Special Proceeding No. M-888
appropriately took note of the same in disapproving the proposed project of
partition of Richards estate, not to mention that petitioner or any other interested
person for that matter, does not dispute the existence or validity of said law, then
Audreys and Richards estate should be distributed according to their respective
wills, and not according to the project of partition submitted by petitioner.
Consequently, the entire Makati property belongs to respondent.
Decades ago, Justice
Manarang,45 wrote:

Moreland,

in

his

dissenting

opinion

in

Santos

v.

A will is the testator speaking after death. Its provisions have substantially the same
force and effect in the probate court as if the testator stood before the court in full
life making the declarations by word of mouth as they appear in the will. That was
the special purpose of the law in the creation of the instrument known as the last
will and testament. Men wished to speak after they were dead and the law, by the
creation of that instrument, permitted them to do so x x x All doubts must be
resolved in favor of the testator's having meant just what he said.
Honorable as it seems, petitioners motive in equitably distributing Audreys estate
cannot prevail over Audreys and Richards wishes. As stated in Bellis v. Bellis: 46
x x x 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.47

506

Before concluding, the Court notes the fact that Audrey and Richard Guersey were
American citizens who owned real property in the Philippines, although records do
not show when and how the Guerseys acquired the Makati property.
Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the privilege to acquire
and exploit lands of the public domain, and other natural resources of the
Philippines, and to operate public utilities, were reserved to Filipinos and entities
owned or controlled by them. In Republic v. Quasha,48 the Court clarified that the
Parity Rights Amendment of 1946, which re-opened to American citizens and
business enterprises the right in the acquisition of lands of the public domain, the
disposition, exploitation, development and utilization of natural resources of the
Philippines, does not include the acquisition or exploitation of private agricultural
lands. The prohibition against acquisition of private lands by aliens was carried on to
the 1973 Constitution under Article XIV, Section 14, with the exception of private
lands acquired by hereditary succession and when the transfer was made to a
former natural-born citizen, as provided in Section 15, Article XIV. As it now stands,
Article XII, Sections 7 and 8 of the 1986 Constitution explicitly prohibits non-Filipinos
from acquiring or holding title to private lands or to lands of the public domain,
except only by way of legal succession or if the acquisition was made by a former
natural-born citizen.
In any case, the Court has also ruled that if land is invalidly transferred to an alien
who subsequently becomes a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title of the transferee is rendered
valid.49 In this case, since the Makati property had already passed on to respondent
who is a Filipino, then whatever flaw, if any, that attended the acquisition by the
Guerseys of the Makati property is now inconsequential, as the objective of the
constitutional provision to keep our lands in Filipino hands has been achieved.
WHEREFORE, the petition is denied. The Decision dated March 18, 1999 and the
Resolution dated August 27, 1999 of the Court of Appeals are AFFIRMED.
Petitioner is ADMONISHED to be more circumspect in the performance of his duties
as an official of the court.
No pronouncement as to costs.
SO ORDERED.
LAURO G. VIZCONDE, petitioner, vs., COURT OF APPEALS, REGIONAL TRIAL
COURT,
Branch
120,
Caloocan
City,
and
RAMON
G.
NICOLAS,respondents.
DECISION
507

FRANCISCO, J.:
Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two
children, viz., Carmela and Jennifer. Petitioners wife, Estrellita, is one of the five
siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of
Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and
Ricardo Nicolas, an incompetent.Antonio predeceased his parents and is now
survived by his widow, Zenaida, and their four children.
On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area
of 10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property)
covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos
(P135,000.00), evidenced by a Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan
ng Titulo TCT NO. T-36734.[1] In view thereof, TCT No. V-554 covering the Valenzuela
property was issued to Estrellita. [2] On March 30, 1990, Estrellita sold the Valenzuela
property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four
Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00).[3] In June of the
same year, Estrellita bought from Premiere Homes, Inc., a parcel of land with
improvements situated at Vinzon St., BF Homes, Paraaque (hereafter Paraaque
property) using a portion of the proceeds was used in buying a car while the
balance was deposited in a bank.
The following year an unfortunate event in petitioners life occurred. Estrellita
and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an
incident popularly known as the Vizconde Massacre. The findings of the
investigation conducted by the NBI reveal that Estrellita died ahead of her
daughters.[4] Accordingly, Carmela, Jennifer and herein petitioner succeeded
Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left
as the sole heir of his daughters. Nevertheless, petitioner entered into an ExtraJudicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver
of Shares,[5] with Rafael and Salud, Estrellitas parents. The extra-judicial settlement
provided for the division of the properties of Estrellita and her two daughters
between petitioner and spouses Rafael and Salud. The properties include bank
deposits, a car and the Paraaque property. The total value of the deposits deducting
the funeral and other related expenses in the burial of Estrellita, Carmela and
Jennifer, amounts to Three Million Pesos (P3,000,000.00).[6] The settlement gave fifty
percent (50%) of the total amount of the bank deposits of Estrellita and her
daughters to Rafael, except Saving Account No. 104-111211-0 under the name of
Jennifer which involves a token amount. The other fifty percent (50%) was allotted
to petitioner. The Paraaque property and the car were also given to petitioner with
Rafael and Salud waiving all theirclaims, rights, ownership and participation as
heirs[7] in the said properties.

508

On November 18, 1992, Rafael died. To settle Rafaels estate, Teresita instituted
an intestate estate proceeding [8] docketed as Sp. Proc. No. C-1679, with Branch 120
of the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon,
Ricardo and the wife (Zenaida) and children of Antonio. Teresita prayed to be
appointed Special Administratrix of Rafaels estate. Additionally, she sought to be
appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent
brother. Herein private respondent Ramon filed an opposition [9]dated March 24,
1993, praying to be appointed instead as Salud and Ricardos guardian. Barely three
weeks passed, Ramon filed another opposition [10] alleging, among others, that
Estrellita was given the Valenzuela property by Rafael which she sold for not les
than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded
for courts intervention to determine the legality and validity of the intervivos
distribution made by deceased Rafael to his children, [11] Estrellita included. On May
12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699, entitled
InMatter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas and
averred that their legitime should come from the collation of all the properties
distributed to his children by Rafael during his lifetime. [12] Ramon stated that herein
petitioner is one of Rafaels children by right of representation as the widower of
deceased legitimate daughter of Estrellita. [13]
In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as
the Guardian of Salud and Ricardo while Teresita, in turn, was appointed as the
Special Administratrix of Rafaels estate. The courts Order did not include petitioner
in the slate of Rafaels heirs. [14] Neither was the Paraaque property listed in its list of
properties to be included in the estate. [15]Subsequently, the RTC in an Order dated
January 5, 1994, removed Ramon as Salud and Ricardos guardian for selling his
wards property without the courts knowledge and permission. [16]
Sometime on January 13, 1994, the RTC released an Order giving petitioner ten
(10) days x x x within which to file any appropriate petition or motion related to the
pending petition insofar as the case is concerned and to file any opposition to any
pending motion that has been filed by both the counsels for Ramon Nicolas and
Teresita de Leon. In response, petitioner filed a Manifestation, dated January 19,
1994, stressing tha the was neither a compulsory heir nor an intestate heir of Rafael
and he has no interest to participate in the proceedings. The RTC noted said
Manifestation in its Order dated February 2, 1994. [17] Despite the Manifestation,
Ramon, through a motion dated February 14, 1994, moved to include petitioner in
the intestate estate proceeding and asked that the Paraaque property, as well as
the car and the balance of the proceeds of the sale of the Valenzuela property, be
collated.[18] Acting on Ramons motion, the trial court on March 10, 1994 granted the
same in an Order which pertinently reads as follows:
xxxxxxxxx

509

On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case

and considering the comment on hi Manifestation, the same is hereby granted. [19]
xxxxxxxxx
Petitioner filed its motion for reconsideration of the aforesaid Order which
Ramon opposed.[20] On August 12, 1994, the RTC rendered an Order denying
petitioners motion for reconsideration. It provides:
xxxxxxxxx
The centerpoint of oppositor-applicants argument is that spouses Vizconde were
then financially incapable of having purchased or acquired for a valuable
consideration the property at Valenzuela from the deceased Rafael
Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael
Nicolas in the latters ancestral home. In fact, as the argument further goes, said
spouses were dependent for support on the deceased Rafael Nicolas. And Lauro
Vizconde left for the United States in, de-facto separation, from the family for
sometime and returned to the Philippines only after the occurrence of violent deaths
of Estrellita and her two daughters.
To dispute the contention that the spouses Vizconde were financially incapable to
buy the property from the late Rafael Nicolas, Lauro Vizconde claims that they have
been engaged in business venture such as taxi business, canteen concessions and
garment manufacturing. However, no competent evidence has been submitted to
indubitably support the business undertakings adverted to.
In fine, there is no sufficient evidence to show that the acquisition of the property
from Rafael Nicolas was for a valuable consideration.
Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her
father was gratuitous and the subject property in Paraaque which was purchased
out of the proceeds of the said transfer of property by the deceased Rafael Nicolas
in favor of Estrellita, is subject to collation.
WHEREFORE, the motion for reconsideration is hereby DENIED. [21] (Underscoring
added)
Petitioner filed a petition for certiorari and prohibition with respondent Court of
Appeals. In its decision of December 14, 1994, respondent Court of
Appeals[22] denied the petition stressing that the RTC correctly adjudicated the
question on the title of the Valenzuela property as the jurisdiction of the probate
court extends to matters incidental and collateral to the exercise of its recognized
powers in handling the settlement of the estate of the deceased (Cf.: Sec. 1, Rule
510

90, Revised Rules of Court).[23] Dissatisfied, petitioner filed the instant petition for
review oncertiorari. Finding prima facie merit, the Court on December 4, 1995, gave
due course to the petition and required the parties to submit their respective
memoranda.
The core issue hinges on the validity of the probate courts Order, which
respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela
property from Rafael to Estrellita and declaring the Paraaque property as subject to
collation.
The appeal is well taken.
Basic principles of collation need to be emphasized at the outset. Article 1061 of
the Civil Code speaks of collation. It states:
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must
bring into the mass of the estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the
legitime of each heir, and in the account of the partition.
Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator. [24] Collation is only required of
compulsory heirs succeeding with other compulsory heirs and involves property or
rights received by donation or gratuitous title during the lifetime of the decedent.
[25]
The purpose for it is presumed that the intention of the testator or predecessor in
interest in making a donation or gratuitous transfer to a forced heir is to give him
something in advance on account of his share in the estate, and that the
predecessors will is to treat all his heirs equally, in the absence of any expression to
the contrary.[26] Collation does not impose any lien on the property or the subject
matter of collationable donation. What is brought to collation is not the property
donated itself, but rather the value of such property at the time it was donated,
[27]
the rationale being that the donation is a real alienation which conveys
ownership upon its acceptance, hence any increase in value or any deterioration or
loss thereof is for the account of the heir or donee. [28]
The attendant facts herein do no make a case of collation. We find that the
probate court, as well as respondent Court of Appeals, committed reversible errors.
First: The probate court erred in ordering the inclusion of petitioner in the intestate
estate proceeding. Petitioner, a son-in-law of Rafael, is one of Rafaels compulsory
heirs. Article 887 of the Civil Code is clear on this point:
511

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
(2) In default of the following, legitimate parents and ascendants, with respect to
their legitimate children and ascendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
With respect to Rafaels estate, therefore, petitioner who was not even shown to be
a creditor of Rafael is considered a third person or a stranger. [29] As such, petitioner
may not be dragged into the intestate estate proceeding. Neither may he be
permitted or allowed to intervene as he has no personality or interest in the said
proceeding,[30] which petitioner correctly argued in his manifestation. [31]
Second: As a rule, the probate court may pass upon and determine the title or
ownership of a property which may or may not be included in the estate
proceedings.[32] Such determination is provisional in character and is subject to final
decision in a separate action to resolve title. [33] In the case at bench, however, we
note that the probate court went beyond the scope of its jurisdiction when it
proceeded to determine the validity of the sale of the Valenzuela property between
Rafael and Estrellita and ruled that the transfer of the subject property between the
concerned parties was gratuitous. The interpretation of the deed and the true intent
of the contracting parties, as well as the presence or absence of consideration, are
matter outside the probate courts jurisdiction. These issues should be ventilated in
an appropriate action. We reiterate:
x x x we are of the opinion and so hold, that a court which takes cognizance of
testate or intestate proceedings has power and jurisdiction to determine whether or
not the properties included therein or excluded therefrom belong prima facie to the
deceased, although such a determination is not final or ultimate in nature, and
512

without prejudice to the right of the interested parties, in a proper action, to raise
the question bearing on the ownership or existence of the right or credit. [34]
Third: The order of the probate court subjecting the Paraaque property to
collation is premature. Records indicate that the intestate estate proceedings is still
in its initiatory stage. We find nothing herein to indicate that the legitimate of any of
Rafaels heirs has been impaired to warrant collation. We thus advert to our ruling
in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit:
We are of the opinion that this contention is untenable. In accordance with the
provisions of article 1035[35] of the Civil Code, it was the duty of the plaintiffs to
allege and prove that the donations received by the defendants were inofficious in
whole or in part and prejudiced the legitimate or hereditary portion to which they
are entitled. In the absence of evidence to that effect, the collation sought is
untenable for lack of ground or basis therefor.
Fourth: Even on the assumption that collation is appropriate in this case the
probate court, nonetheless, made a reversible error in ordering collation of the
Paraaque property. We note that what was transferred to Estrellita, by way of a deed
of sale, is the Valenzuela property. The Paraaque property which Estrellita acquired
by using the proceeds of the sale of the Valenzuela property does not become
collationable simply by reason thereof. Indeed collation of the Paraaque property
has no statutory basis.[36] The order of the probate court presupposes that the
Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records
indicate, however, that the Paraaque property was conveyed for and in
consideration ofP900,000.00,[37] by Premier Homes, Inc., to Estrellita. Rafael, the
decedent, has no participation therein, and petitioner who inherited and is now the
present owner of the Paraaque property is not one of Rafaels heirs. Thus, the
probate courts order of collation against petitioner is unwarranted for the obligation
to collate is lodged with Estrellita, the heir, and not to herein petitioner who does
not have any interest in Rafaels estate. As it stands, collation of the Paraaque
property is improper for, to repeat, collation covers only properties gratuitously
given by the decedent during his lifetime to his compulsory heirs which fact does
not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public
instrument, voluntarily and willfully waived any claims, rights, ownership and
participation as heir[38] in the Paraaque property.
Fifth: Finally, it is futile for the probate court to ascertain whether or not the
Valenzuela property may be brought to collation. Estrellita, it should be stressed,
died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount
more than the value of the Valenzuela property. [39] Hence, even assuming that the
Valenzuela property may be collated collation may not be allowed as the value of
the Valenzuela property has long been returned to the estate of Rafael. Therefore,

513

any determination by the probate court on the matter serves no valid and binding
purpose.
WHEREFORE, the decision of the Court of Appeals appealed from is hereby
REVERSED AND SET ASIDE.
SO ORDERED.
G.R. No. L-17014

August 11, 1921

MARIANO
B.
ARROYO, plaintiff-appellant,
vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.
Fisher
&
Powell & Hill for appellee.

DeWitt

for

appellant.

STREET, J.:
Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of
wedlock by marriage in the year 1910, and since that date, with a few short
intervals of separation, they have lived together as man and wife in the city of Iloilo
until July 4, 1920, when the wife went away from their common home with the
intention of living thenceforth separate from her husband. After efforts had been
made by the husband without avail to induce her to resume marital relations, this
action was initiated by him to compel her to return to the matrimonial home and
live with him as a dutiful wife. The defendant answered, admitting the fact of
marriage, and that she had left her husband's home without his consent; but she
averred by way of defense and cross-complaint that she had been compelled to
leave by cruel treatment on the part of her husband. Accordingly she in turn prayed
for affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the
conjugal partnership; (3) and an allowance for counsel fees and permanent separate
maintenance. Upon hearing the cause the lower court gave judgment in favor of the
defendant, authorizing her to live apart from her husband, granting her alimony at
the rate of P400 per month, and directing that the plaintiff should pay to the
defendant's attorney the sum of P1,000 for his services to defendant in the trial of
the case. The plaintiff thereupon removed the case with the usual formalities by
appeal to this court.
The trial judge, upon consideration of the evidence before him, reached the
conclusion that the husband was more to blame than his wife and that his continued
ill-treatment of her furnished sufficient justification for her abandonment of the
conjugal home and the permanent breaking off of marital relations with him. We
have carefully examined and weighed every line of the proof, and are of the opinion
514

that the conclusion stated is wholly untenable. The evidence shows that the wife is
afflicted with a disposition of jealousy towards her husband in an aggravated
degree; and to his cause are chiefly traceable without a doubt the many miseries
that have attended their married life. In view of the decision which we are to
pronounce nothing will be said in this opinion which will make the resumption of
married relations more difficult to them or serve as a reminder to either of the
mistakes of the past; and we prefer to record the fact that so far as the proof in this
record shows neither of the spouses has at any time been guilty of conjugal
infidelity, or has given just cause to the other to suspect illicit relations with any
person. The tales of cruelty on the part of the husband towards the wife, which are
the basis of the cross-action, are in our opinion no more than highly colored versions
of personal wrangles in which the spouses have allowed themselves from time to
time to become involved and would have little significance apart from the morbid
condition exhibited by the wife. The judgment must therefore be recorded that the
abandonment by her of the marital home was without sufficient justification in fact.
In examining the legal questions involved, it will be found convenient to dispose first
of the defendant's cross-complaint. To begin with, the obligation which the law
imposes on the husband to maintain the wife is a duty universally recognized in civil
society and is clearly expressed in articles 142 and 143 of the Civil code. The
enforcement of this obligation by the wife against the husband is not conditioned
upon the procurance of a divorce by her, nor even upon the existence of a cause for
divorce. Accordingly it had been determined that where the wife is forced to leave
the matrimonial abode and to live apart from her husband, she can, in this
jurisdiction, compel him to make provision for her separate maintenance
(Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the
expenses, including attorney's fees, necessarily incurred in enforcing such
obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests
of both parties as well as of society at large require that the courts should move
with caution in enforcing the duty to provide for the separate maintenance of the
wife, for this step involves a recognition of the de facto separation of the spouses
a state which is abnormal and fraught with grave danger to all concerned. From this
consideration it follows that provision should not be made for separate maintenance
in favor of the wife unless it appears that the continued cohabitation of the pair has
become impossible and separation necessary from the fault of the husband.
In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the
eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the
wife separate from the husband will only be sustained when the reasons for it are
imperative (47 Mich., 151). That imperative necessity is the only ground on which
such a proceeding can be maintained also appears from the decision in
Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial
divorces have never been procurable on any ground, the Supreme court fully
recognizes the right of the wife to have provision for separate maintenance, where
515

it is impossible for her to continue safely to cohabit with her husband; but the same
court has more than once rejected the petition of the wife for separate maintenance
where it appeared that the husband's alleged cruelty or ill-treatment was provoked
by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.],
197; 16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq. [S. Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the judgment of the English
Ecclesiastical Court in a case where cruelty on the part of the husband was relied
upon to secure a divorce for the wife, made use of the following eloquent words,
which are perhaps even more applicable in a proceeding for separate maintenance
in a jurisdiction where, as here, a divorce cannot be obtained except on the single
ground of adultery and this, too, after the conviction of the guilty spouse in a
criminal prosecution for that crime. Said he:
That the duty of cohabitation is released by the cruelty of one of the parties is
admitted, but the question occurs, What is cruelty? . . .
What merely wounds the mental feelings is in few cases to be admitted
where they are not accompanied with bodily injury, either actual or menaced.
Mere austerity of temper, petulance of manners, rudeness of language, a
want of civil attention and accommodation, even occasional sallies of
passion, if they do not threaten bodily harm, do not amount to legal cruelty:
they are high moral offenses in the marriage-state undoubtedly, not innocent
surely in any state of life, but still they are not that cruelty against which the
law can relieve. Under such misconduct of either of the parties, for it may
exist on the one side as well as on the other, the suffering party must bear in
some degree the consequences of an injudicious connection; must subdue by
decent resistance or by prudent conciliation; and if this cannot be done, both
must suffer in silence. . . .
The humanity of the court has been loudly and repeatedly invoked. Humanity
is the second virtue of courts, but undoubtedly the first is justice. If it were a
question of humanity simply, and of humanity which confined its views
merely to the happiness of the present parties, it would be a question easily
decided upon first impressions. Every body must feel a wish to sever those
who wish to live separate from each other, who cannot live together with any
degree of harmony, and consequently with any degree of happiness; but my
situation does not allow me to indulge the feelings, much less the first
feelings of an individual. The law has said that married persons shall not be
legally separated upon the mere disinclination of one or both to cohabit
together. . . .
To vindicate the policy of the law is no necessary part of the office of a judge;
but if it were, it would not be difficult to show that the law in this respect has
516

acted with its usual wisdom and humanity with that true wisdom, and that
real humanity, that regards the general interests of mankind. For though in
particular cases the repugnance of the law to dissolve the obligations of
matrimonial cohabitation may operate with great severity upon individual,
yet it must be carefully remembered that the general happiness of the
married life is secured by its indissolubility. When people understand that
they must live together, except for a very few reasons known to the law, they
learn to soften by mutual accommodation that yoke which they know cannot
shake off; they become good husbands and good wives form the necessity of
remaining husbands and wives; for necessity is a powerful master in teaching
the duties which it imposes. . . . In this case, as in many others, the
happiness of some individuals must be sacrificed to the greater and more
general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)
In the light of the considerations stated, it is obvious that the cross-complaint is not
well founded and none of the relief sought therein can be granted.
The same considerations that require the dismissal of the cross-complaint
conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit
his right to the marital society of his wife and that she is under an obligation, both
moral and legal, to return to the common home and cohabit with him. The only
question which here arises is as to the character and extent of the relief which may
be properly conceded to him by judicial decree.
The action is one by which the plaintiff seeks the restitution of conjugal rights; and it
is supposed in the petitory part of the complaint that he is entitled to a permanent
mandatory injunction requiring the defendant to return to the conjugal home and
live with him as a wife according to the precepts of law and morality. Of course if
such a decree were entered, in unqualified terms, the defendant would be liable to
attachment for contempt, in case she should refuse to obey it; and, so far as the
present writer is aware, the question is raised for the first time in this jurisdiction
whether it is competent for the court to make such an order.
Upon examination of the authorities we are convinced that it is not within the
province of the courts of this country to attempt to compel one of the spouses to
cohabit with, and render conjugal rights to, the other. Of course where the property
rights of one of the pair are invaled, an action for restitution of such rights can be
maintained. But we are disinclined to sanction the doctrine that an order, enforcible
by process of contempt, may be entered to compel the restitution of the purely
personal rights of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and the
experience of these countries where the court of justice have assumed to compel
the cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for
517

the restitution of conjugal rights at the instance of either husband or wife; and if the
facts were found to warrant it that court would make a mandatory decree,
enforcible by process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and
in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed
his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree for the
restitution of conjugal rights in England, could be obtained by the injured spouse,
but could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a decree for the restitution of
conjugal rights can still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical payment of a stipend in
the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we
can discover, has ever attempted to make a peremptory order requiring one of the
spouses to live with the other; and that was in a case where a wife was ordered to
follow and live with her husband, who had changed his domicile to the City of New
Orleans. The decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea
of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.)
In a decision of January 2, 1909, the supreme court of Spain appears to have
affirmed an order of the Audencia Territorial de Valladolid requiring a wife to return
to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to
deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in respect to the use and control
of her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.
We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the
unconditional and absolute order for the return of the wife to the marital domicile,
which is sought in the petitory part of the complaint; though he is, without doubt,
entitled to a judicial declaration that his wife has presented herself without
sufficient cause and that it is her duty to return.
518

Therefore, reversing the judgment appealed from, in respect both to the original
complaint and the cross-bill, it is declared that Dolores Vasquez de Arroyo has
absented herself from the marital home without sufficient cause; and she is
admonished that it is her duty to return. The plaintiff is absolved from the crosscomplaint, without special pronouncement as to costs of either instance. So
ordered.
Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ., concur.
MARIO J. MENDEZONA and TERESITA M. MENDEZONA, LUIS J. MENDEZONA
and MARICAR L. MENDEZONA and TERESITA ADAD VDA. DE
MENDEZONA, petitioners,
vs. JULIO
H.
OZAMIZ,
ROBERTO
J.
MONTALVAN, JOSE MA. OZAMIZ, CARMEN H. OZAMIZ, PAZ O.
MONTALVAN, MA. TERESA O.F. ZARRAGA, CARLOS O. FORTICH, JOSE
LUIS O. ROS, PAULITA O. RODRIGUEZ, and LOURDES O.
LON, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision[1] and the
Resolution[2] of the Court of Appeals dated July 27, 1998 and May 19, 2000,
respectively, in CA-G.R. CV No. 39752 which reversed and set aside the
Decision[3] dated September 23, 1992 rendered in favor of the petitioners by the
Regional Trial Court (RTC) of Cebu City, Branch 6 in Civil Case No. CEB-10766.
Civil Case No. CEB-10766 is a suit for quieting of title. It was instituted
on September
25,
1991 by
petitioner
spouses
Mario
[4]
J. Mendezona and Teresita M. Mendezona as initial plaintiffs, and in the amended
complaint filed on October 7, 1991, herein co-petitioner spouses Luis
J. Mendezona and Maricar L. Mendezona and Teresita Adad Vda.
de Mendezonajoined as co-plaintiffs.[5]
In their complaint, the petitioners, as plaintiffs therein, alleged that petitioner
spouses Mario J. Mendezona and Teresita M. Mendezona, petitioner spouses Luis
J. Mendezona andMaricar L. Mendezona,
and
petitioner Teresita Adad Vda.
de Mendezona own a parcel of land each in the Banilad Estate, Lahug, Cebu City
with almost similar areas of 3,462 square meters, 3,466 square meters and 3,468
square meters, covered and described in Transfer Certificate of Title (TCT) Nos.
116834, 116835, and 116836 respectively, of the Registry of Deeds of Cebu City.[6]
The petitioners ultimately traced their titles of ownership over their respective
properties from a notarized Deed of Absolute Sale [7] dated April 28, 1989 executed in
519

their favor by Carmen Ozamiz for and in consideration of the sum of One Million
Forty Thousand Pesos (P1,040,000.00).
The petitioners initiated the suit to remove a cloud on their said respective titles
caused by the inscription thereon of a notice of lis pendens, which came about as a
result of an incident in Special Proceeding No. 1250 of the RTC of Oroquieta City.
Special Proceeding No. 1250 is a proceeding for guardianship over the person and
properties of Carmen Ozamiz initiated by the respondents Julio H. Ozamiz, Jose
Ma. Ozamiz, Carmen H. Ozamiz,[8] Paz O. Montalvan, Ma. Teresa O.F. Zarraga, Carlos
O. Fortich, Jose Luis O. Ros, Paulita O. Rodriguez andLourdes O. Lon.[9]
It appears that on January 15, 1991, the respondents instituted the petition for
guardianship with the Regional Trial Court of Oroquieta City, alleging therein that
Carmen Ozamiz, then 86 years old, after an illness in July 1987, had become
disoriented and could not recognize most of her friends; that she could no longer
take care of herself nor manage her properties by reason of her failing health, weak
mind and absent-mindedness. Mario Mendezona and Luis Mendezona, herein
petitioners who are nephews of Carmen Ozamiz, and Pilar Mendezona, a sister of
Carmen Ozamiz, filed an opposition to the guardianship petition.
In the course of the guardianship proceeding, the petitioners and
the oppositors thereto agreed that Carmen Ozamiz needed a guardian over her
person and her properties, and thus respondent Paz O. Montalvan was designated
as guardian over the person of Carmen Ozamiz while petitioner Mario J. Mendezona,
respondents Roberto J. Montalvan and Julio H. Ozamizwere designated as joint
guardians over the properties of the said ward.
As guardians, respondents Roberto J. Montalvan and Julio H. Ozamiz filed on
August 6, 1991 with the guardianship court their inventories and Accounts, [10] listing
therein CarmenOzamizs properties, cash, shares of stock, vehicles and fixed assets,
including a 10,396 square meter property known as the Lahug property.
Said Lahug property is the same property covered by the Deed of Absolute Sale
dated April 28, 1989 executed by Carmen Ozamiz in favor of the petitioners.
Respondents Roberto J. Montalvan and Julio H. Ozamiz caused the inscription on the
titles of petitioners a notice of lis pendens,[11] regarding Special Proceeding No.
1250, thus giving rise to the suit for quieting of title, Civil Case No. CEB-10766, filed
by herein petitioners.
In their Answer[12] in Civil Case No. CEB-10766 the respondents opposed the
petitioners claim of ownership of the Lahug property and alleged that the titles
issued in the petitioners names are defective and illegal, and the ownership of the
said property was acquired in bad faith and without value inasmuch as the
consideration for the sale is grossly inadequate and unconscionable. Respondents
further alleged that at the time of the sale on April 28, 1989 Carmen Ozamiz was
520

already ailing and not in full possession of her mental faculties; and that her
properties having been placed in administration, she was in effect incapacitated to
contract with petitioners.
The issues for resolution were delimited in the pre-trial to: (a) the propriety of
recourse to quieting of title; (b) the validity or nullity of the Deed of Absolute Sale
dated April 28, 1989 executed by Carmen Ozamiz in favor of herein petitioners; (c)
whether the titles over the subject parcel of land in plaintiffs names be maintained
or should they be cancelled and the subject parcels of land reconveyed; and (d)
damages and attorneys fees.[13]
Trial on the merits ensued with the parties presenting evidence to prove their
respective
allegations.
Petitioners
Mario Mendezona, Teresita Adad Vda.
de Mendezona and LuisMendezona, as plaintiffs therein, testified on the
circumstances surrounding the sale. Carmencita Cedeno and Martin Yungco,
instrumental witnesses to the Deed of Absolute Sale datedApril 28, 1989, and, Atty.
Asuncion Bernades, the notary public who notarized the said document, testified
that on the day of execution of the said contract that Carmen Ozamiz was of sound
mind and that she voluntarily and knowingly executed the said deed of sale.
For the defendants, the testimonies of respondent Paz O. Montalvan, a sister of
Carmen Ozamiz; Concepcion Agac-ac, an assistant of Carmen Ozamiz; respondent
Julio Ozamiz; Carolina Lagura, a househelper of Carmen Ozamiz; Joselito Gunio, an
appraiser of land; Nelfa Perdido, a part-time bookkeeper of Carmen Ozamiz, and the
deposition of Dr. Faith Go, physician of Carmen Ozamiz, were offered in evidence.
The
petitioners
presented
as
rebuttal
witnesses
petitioners
Mario Mendezona and Luis Mendezona, to rebut the testimony of respondent Julio
H. Ozamiz; and, Dr. William Buot, a doctor of neurology to rebut aspects of the
deposition of Dr. Faith Go on the mental capacity of Carmen Ozamiz at the time of
the sale.
During the trial, the trial court found that the following facts have been duly
established:[14]
(1) On April 28, 1989, Carmen Ozamiz sold to her nephews, Mario, Antonio and Luis,
all surnamed Mendezona, three (3) parcels of residential land in Cebu City, per a
Deed of Absolute Sale (Exh. D) for a consideration of P1,040,000.00, in which deed
the usufructuary rights were reserved during her lifetime.
(2) The three parcels of land were subsequently transferred to the names of the
three vendees per TCTs Nos. 108729, 108730 and 108731 (Exhs. J, K & L,
respectively). A partition agreement was entered into by the three vendees (Exh. 3)
and the parcels of land are now titled in the names of the plaintiffs.
521

Mario Mendezona TCT No. 116834 (Exh. A);

Luis Mendezona TCT No. 116835 (Exh. B);
Antonio Mendezona TCT No. 116836 (Exh. C);
(3) The reservation of the usufructuary rights to the vendor Carmen Ozamiz during
her
lifetime
was
confirmed
by
the
plaintiffs-spouses
Mario Mendezona and Teresita Moraza and
plaintiffs
spouses
LuisMendezona and Maricar Longa in a sworn statement (Exh. I) executed
on October 15, 1990, which was duly annotated on the titles of the property;
(4) The capital gains tax was paid (Exh. H) on May 5, 1989 and a certificate (Exh. H1) was issued by the Bureau of Internal Revenue authorizing the Register of Deeds
to transfer the property to the vendees;
(5) A petition for guardianship over the person and properties of
Carmen Ozamiz (Exh. E) was filed by all the defendants, (except the defendant
Roberto Montalvan) on January 15, 1991 with the Regional Trial Court
of Oroquieta City, denominated as Spec. Proc. No. 1250 and subsequently, an
Inventories and Accounts (Exh. F) was filed by court-appointed guardians
Roberto Montalvan and Julio Ozamiz, in which the property was listed (Exh. F-1) and
a Notice of Lis Pendens was filed with the Register of Deeds of Cebu City on August
13, 1991 by said joint guardians. Plaintiff Mario Mendezona, as another joint
guardian over Carmen Ozamiz, filed his opposition (Exh. R) to the Inventories and
Accounts, with the Oroquieta Court as to the inclusion of the property (Exh.R-1).
(6) Prior
to
his
death,
the
deceased
husband
of
plaintiff Teresita Adad Mendezona was granted a General Power of Attorney (Exh. 1)
by Carmen Ozamiz on March 23, 1988 and after his demise, CarmenOzamiz granted
Mario Mendezona a General Power of Attorney (Exh. 2.) on August 11, 1990. Both
powers of attorney relate to the administration of the property, subject of this
action, in Cebu City.
On September 23, 1992 the trial court rendered its decision in favor of the
petitioners, the dispositive portion of which reads, to wit:
Wherefore, premises considered, the Court is of the opinion and so declares that:
1. The property described in the complaint was sold, with reservation
of usufructuary rights by Carmen Ozamiz to the plaintiffs under a valid contract,
voluntarily and deliberately entered into while she was of sound mind, for sufficient
and good consideration, and without fraud, force, undue influence or intimidation
having been exercised upon her, and consequently, the Court orders the defendants
522

herein to acknowledge and recognize the plaintiffs title to the aforecited property
and to refrain from further clouding the same;
2. That the one-third (1/3) share erroneously titled to Antonio Mendezona should be
titled in the name of Teresita Adad vda. de Mendezona as her paraphernal property
and the Register of Deeds of Cebu City is hereby ordered to do so;
3. The Notice of Lis Pendens affecting the property should be eliminated from the
record and the Register of Deeds of Cebu City is ordered to expunge the same.
No pronouncement as to costs.
SO ORDERED.
On appeal to the Court of Appeals, the appellate court reversed the factual
findings of the trial court and ruled that the Deed of Absolute Sale dated April 28,
1989 was a simulated contract since the petitioners failed to prove that the
consideration was actually paid, and, furthermore, that at the time of the execution
of the contract the mental faculties of CarmenOzamiz were already seriously
impaired. Thus, the appellate court declared that the Deed of Absolute Sale of April
28, 1989 is null and void. It ordered the cancellation of the certificates of title issued
in the petitioners names and directed the issuance of new certificates of title in
favor of Carmen Ozamiz or her estate.
Petitioners filed a motion for reconsideration of the decision of the appellate
court. Subsequent thereto, the petitioners filed a motion for a new trial and/or for
reception of evidence. They contended, among other things, that the appellate
court totally ignored the testimony of Judge Teodorico Durias regarding the mental
condition of Carmen Ozamiz a month before the execution of the Deed of Absolute
Sale in question. The said testimony was taken in the Special Proceeding No. 1250
in
the Regional Trial Court of Oroquieta City.
However,
Judge Duriaswas
not
presented
as
a
witness
in
Civil
Case
No.
CEB-10766
in
the Regional Trial Court of Cebu City.
Petitioners
alleged
that
Judge Duriass testimony is a newly-discovered evidence which could not have been
discovered prior to the trial in the court below by the exercise of due diligence.
The appellate court denied both motions in its Resolution dated May 19, 2000.
Hence, the instant petition anchored on the following grounds: [15]
I.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE APRIL 28, 1989 DEED
OF ABSOLUTE SALE WAS A SIMULATED CONTRACT.

523

A.
THE COURT OF APPEALS GRAVELY ERRED IN IGNORING THE STATUTORY
PRESUMPTIONS OF ACTUAL AND SUFFICIENT CONSIDERATION FOR, AND OF THE
REGULARITY AND TRUTHFULNESS OF, THE NOTARIZED DEED OF ABSOLUTE SALE.
B.
THE COURT OF APPEALS GRAVELY ERRED IN IMPOSING ON THE PETITIONERS THE
BURDEN OF PROVING PAYMENT, AND IN REFUSING TO RECOGNIZE AND RULE THAT
IT WAS THE RESPONDENTS - AS THE PARTIES ASSAILING THE DEED OF
ABSOLUTE SALE - WHO HAD FAILED TO DISCHARGE THEIR BURDEN OF PROVING
THAT THERE WAS NO CONSIDERATION FOR THE TRANSACTION.
C.
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO RECEIVE IN EVIDENCE
THE THREE (3) CHECKS, WHICH PROVED BEYOND ANY DOUBT THAT THE PURCHASE
PRICE FOR THE LAHUG PROPERTY HAD BEEN PAID TO CARMEN OZAMIZ, AFTER
ASKING FOR THEM AND HAVING THEM PRESENTED TO IT IN OPEN COURT, THUS
COOPERATING WITH RESPONDENTS EFFORTS TO SUPPRESS THE CHECKS (WHICH
THE COURT ITSELF AND RESPONDENTS CHALLENGED PETITIONERS TO PRODUCE).
II.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT CARMEN OZAMIZS
MENTAL FACULTIES WERE SERIOUSLY IMPAIRED WHEN SHE EXECUTED THE DEED OF
ABSOLUTE SALE ON APRIL 28, 1989.
A.
THE COURT OF APPEALS GRAVELY ERRED IN IGNORING THE STATUTORY
PRESUMPTION THAT CARMEN OZAMIZ WAS OF SOUND MIND AND HAD THE
REQUISITE CAPACITY TO CONTRACT WHEN SHE EXECUTED THE DEED OF ABSOLUTE
SALE, AND IN REFUSING TO RULE THAT IT WAS THE RESPONDENTS - AS THE
PARTIES ALLEGING MENTAL INCAPACITY- WHO HAD FAILED TO DISCHARGE THEIR
BURDEN OF REBUTTING THAT PRESUMPTION.
B.
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO ACCEPT AND GIVE DUE
AND PREPONDERANT WEIGHT TO UNREFUTED EVIDENCE, INCLUDING THE
UNREFUTED TESTIMONIES OF THE INSTRUMENTAL WITNESSES AND OF THE NOTARY

524

PUBLIC, THAT CARMEN OZAMIZ EXECUTED THE DEED OF ABSOLUTE SALE FREELY,
VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY.
C.
THE COURT OF APPEALS GRAVELY ERRED IN GIVING WEIGHT TO THE HEARSAY
TESTIMONY OF DR. FAITH GO ON THE MENTAL CONDITION OF CARMEN OZAMIZ ON
THE DATE SHE EXECUTED THE DEED OF ABSOLUTE SALE.
D.
THE COURT OF APPEALS GRAVELY ERRED IN IGNORING, AND IN REFUSING TO
RECEIVE IN EVIDENCE, JUDGE TEODORICO DURIASS TESTIMONY (THAT CARMEN
OZAMIZ WAS OF SOUND MIND WHEN SHE EXECUTED ANOTHER CONTRACT BARELY
A MONTH BEFORE SHE EXECUTED THE DEED OF ABSOLUTE SALE) ON THE GROUND
THAT THATTESTIMONY WAS FORGOTTEN EVIDENCE.
We shall first rule on the issue of whether to consider the testimony of
Judge Durias as newly discovered evidence. A motion for new trial upon the ground
of newly discovered evidence is properly granted only where there is concurrence of
the following requisites, namely: (a) the evidence had been discovered after trial;
(b) the evidence could not have been discovered and produced during trial even
with the exercise of reasonable diligence; and (c) the evidence is material and not
merely corroborative, cumulative or impeaching and is of such weight that if
admitted, would probably alter the result. All three (3) requisites must characterize
the evidence sought to be introduced at the new trial.
We find that the requirement of reasonable diligence has not been met by the
petitioners. As early as the pre-trial of the case at bar, the name of Judge Durias has
already cropped up as a possible witness for the defendants, herein respondents.
That the respondents chose not to present him is not an indicia per se of
suppression of evidence, since a party in a civil case is free to choose who to
present as his witness. Neither can Judge Durias testimony in another case be
considered as newly discovered evidence since the facts to be testified to by
JudgeDurias which were existing before and during the trial, could have been
presented by the petitioners at the trial below. [16] The testimony of Judge Durias has
been in existence waiting only to be elicited from him by questioning. [17]
It has been held that a lack of diligence is exhibited where the newly discovered
evidence was necessary or proper under the pleadings, and its existence must have
occurred to the party in the course of the preparation of the case, but no effort was
made to secure it; there is a failure to make inquiry of persons who were likely to
know the facts in question, especially where information was not sought from coparties; there is a failure to seek evidence available through public records; there is
525

a failure to discover evidence that is within the control of the complaining party;
there is a failure to follow leads contained in other evidence; and, there is a failure
to
utilize
available
discovery
procedures. [18] Thus,
the
testimony
of
Judge Duriascannot be considered as newly discovered evidence to warrant a new
trial.
In this petition at bench, herein petitioners essentially take exception to two (2)
main factual findings of the appellate court, namely, (a) that the notarized Deed of
Absolute Sale datedApril 28, 1989 was a simulated contract, and (b) that
Carmen Ozamizs mental faculties were seriously impaired when she executed the
said contract on April 28, 1989. The petitioners allege that both conclusions are
contrary or opposed to well-recognized statutory presumptions of regularity enjoyed
by a notarized document and that a contracting party to a notarized contract is of
sound and disposing mind when she executes the contract.
The respondents posit a different view. They contend that clear and convincing
evidence refuted the presumptions on regularity of execution of the Deed of
Absolute Sale and existence of consideration thereof. Relying upon the testimonies
of Paz O. Montalvan, Concepcion Agac-ac, Carolina Lagura and Dr. Faith Go, they
aver that they were able to show that CarmenOzamiz was already physically and
mentally incapacitated since the latter part of 1987 and could not have executed
the
said
Deed
of
Absolute
Sale
on April
28,
1989 covering
the
disputedLahug property. They also alleged that no error is ascribable to the
appellate court for not considering the allegedly rehearsed testimonies of the
instrumental witnesses and the notary public.
Factual findings of the appellate court are generally conclusive on this Court
which is not a trier of facts. It is not the function of the Supreme Court to analyze or
weigh evidence all over again. However, this rule is not without exception. If there is
a showing that the appellate courts findings of facts complained of are totally
devoid of support in the record or that they are so glaringly erroneous as to
constitute grave abuse of discretion, this Court must discard such erroneous
findings of facts.[19] We find that the exception applies in the case at bench.
Simulation is defined as the declaration of a fictitious will, deliberately made by
agreement of the parties, in order to produce, for the purposes of deception, the
appearances of a juridical act which does not exist or is different from what that
which was really executed. [20] The requisites of simulation are: (a) an outward
declaration of will different from the will of the parties; (b) the false appearance
must have been intended by mutual agreement; and (c) the purpose is to deceive
third persons.[21] None of these were clearly shown to exist in the case at bar.
Contrary to the erroneous conclusions of the appellate court, a simulated
contract cannot be inferred from the mere non-production of the checks. It was not
526

the burden of the petitioners to prove so. It is significant to note that the Deed of
Absolute Sale dated April 28, 1989 is a notarized document duly acknowledged
before a notary public. As such, it has in its favor the presumption of regularity, and
it carries the evidentiary weight conferred upon it with respect to its due
execution. It is admissible in evidence without further proof of its authenticity and is
entitled to full faith and credit upon its face. [22]
Payment is not merely presumed from the fact that the notarized Deed of
Absolute Sale dated April 28, 1989 has gone through the regular procedure as
evidenced by the transfer certificates of title issued in petitioners names by the
Register of Deeds. In other words, whosoever alleges the fraud or invalidity of a
notarized document has the burden of proving the same by evidence that is clear,
convincing, and more than merely preponderant. [23] Therefore, with this wellrecognized statutory presumption, the burden fell upon the respondents to prove
their allegations attacking the validity and due execution of the said Deed of
Absolute Sale. Respondents failed to discharge that burden; hence, the presumption
in favor of the said deed stands. But more importantly, that notarized deed shows
on its face that the consideration of One Million Forty Thousand Pesos
(P1,040,000.00) was acknowledged to have been received by Carmen Ozamiz.
Simulation cannot be inferred from the alleged absence of payment based on
the
testimonies
of Concepcion Agac-ac,
assistant
of
Carmen Ozamiz,
and Nelfa Perdido, part-time bookkeeper of Carmen Ozamiz. The testimonies of
these two (2) witnesses are unreliable and inconsistent.
While Concepcion Agac-ac testified that she was aware of all the transactions of
Carmen Ozamiz, she also admitted that not all income of Carmen Ozamiz passed
through her since Antonio Mendezona, as appointed administrator, directly reported
to Carmen Ozamiz.[24] With respect to Nelfa Perdido, she testified that most of the
transactions that she recorded refer only to rental income and expenses, and the
amounts thereof were reported to her by Concepcion Agac-ac only, not by
Carmen Ozamiz. She does not record deposits or withdrawals in the bank accounts
of Carmen Ozamiz.[25] Their testimonies hardly deserve any credit and, hence, the
appellate court misplaced reliance thereon.
Considering that Carmen Ozamiz acknowledged, on the face of the notarized
deed, that she received the consideration at One Million Forty Thousand Pesos
(P1,040,000.00), the appellate court should not have placed too much emphasis on
the checks, the presentation of which is not really necessary. Besides, the burden to
prove alleged non-payment of the consideration of the sale was on the respondents,
not on the petitioners. Also, between its conclusion based on inconsistent oral
testimonies and a duly notarized document that enjoys presumption of regularity,
the appellate court should have given more weight to the latter. Spoken words could

527

be notoriously unreliable as against a written document that speaks a uniform

language.[26]
Furthermore, the appellate court erred in ruling that at the time of the execution
of the Deed of Absolute Sale on April 28, 1989 the mental faculties of
Carmen Ozamiz were already seriously impaired.[27] It placed too much reliance upon
the testimonies of the respondents witnesses. However, after a thorough scrutiny of
the transcripts of the testimonies of the witnesses, we find that the respondents
core witnesses all made sweeping statements which failed to show the true state of
mind of Carmen Ozamiz at the time of the execution of the disputed document. The
testimonies of the respondents witnesses on the mental capacity of
Carmen Ozamiz are far from being clear and convincing, to say the least.
Carolina Lagura, a househelper of Carmen Ozamiz, testified that when
Carmen Ozamiz was confronted by Paz O. Montalvan in January 1989 with the sale
of the Lahug property, Carmen Ozamiz denied the same. She testified that
Carmen Ozamiz understood the question then.[28] However, this declaration is
inconsistent with her (Carolinas) statement that since 1988 Carmen Ozamiz could
not fully understand the things around her, that she was physically fit but mentally
could not carry a conversation or recognize persons who visited her. [29]Furthermore,
the disputed sale occurred on April 28, 1989 or three (3) months after this alleged
confrontation in January 1989. This inconsistency was not explained by the
respondents.
The revelation of Dr. Faith Go did not also shed light on the mental capacity of
Carmen Ozamiz on the relevant day - April 28, 1989 when the Deed of Absolute Sale
was executed and notarized. At best, she merely revealed that Carmen Ozamiz was
suffering from certain infirmities in her body and at times, she was forgetful, but
there was no categorical statement that Carmen Ozamiz succumbed to what the
respondents suggest as her alleged second childhood as early as 1987. The
petitioners rebuttal witness, Dr. William Buot, a doctor of neurology, testified that no
conclusion of mental incapacity at the time the said deed was executed can be
inferred from Dr. Faith Gos clinical notes nor can such fact be deduced from the
mere prescription of a medication for episodic memory loss.
It has been held that a person is not incapacitated to contract merely because
of advanced years or by reason of physical infirmities. Only when such age or
infirmities impair her mental faculties to such extent as to prevent her from
properly, intelligently, and fairly protecting her property rights, is she considered
incapacitated.[30] The respondents utterly failed to show adequate proof that at the
time of the sale on April 28, 1989 Carmen Ozamiz had allegedly lost control of her
mental faculties.

528

We note that the respondents sought to impugn only one document, namely,
the Deed of Absolute Sale dated April 28, 1989, executed by Carmen Ozamiz.
However, there are nine (9) other important documents that were, signed by
Carmen Ozamiz either before or after April 28, 1989 which were not assailed by the
respondents.[31] Such is contrary to their assertion of complete incapacity of
Carmen Ozamiz to handle her affairs since 1987. We agree with the trial courts
assessment that it is unfair for the [respondents] to claim soundness of mind of
Carmen Ozamiz when it benefits them and otherwise when it disadvantages them.
[32]
A person is presumed to be of sound mind at any particular time and the
condition is presumed to continue to exist, in the absence of proof to the contrary.
[33]
Competency and freedom from undue influence, shown to have existed in the
other acts done or contracts executed, are presumed to continue until the contrary
is shown.[34]
All the foregoing considered, we find the instant petition to be meritorious and
the same should be granted.
WHEREFORE, the instant petition is hereby GRANTED and the assailed Decision
and Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. The
Decision datedSeptember 23, 1992 of the Regional Trial Court of Cebu City, Branch
6, in Civil Case No. CEB-10766 is REINSTATED. No pronouncement as to costs.
SO ORDERED.
MARRIAGE
RODOLFO
G.
NAVARRO, complainant,
DOMAGTOY, respondent.

vs. JUDGE

HERNANDO

C.

DECISION
ROMERO, J.:
The complainant in this administrative case is the Municipal Mayor of Dapa,
Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two
specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando
Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency in
office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding
between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the
groom is merely separated from his first wife.

529

Second, it is alleged that he performed a marriage ceremony between Floriano

Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on
October 27, 1994.Respondent judge holds office and has jurisdiction in the
Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding
was solemnized at the respondent judge's residence in the municipality of Dapa,
which does not fall within his jurisdictional area of the municipalities of Sta. Monica
and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa,
Surigao del Norte.
In his letter-comment to the Office of the Court Administrator, respondent judge
avers that the office and name of the Municipal Mayor of Dapa have been used by
someone else, who, as the mayor's "lackey," is overly concerned with his actuations
both as judge and as a private person. The same person had earlier filed
Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on
September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon
v. Judge Hernando C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from
his act of having solemnized the marriage between Gaspar Tagadan, a married man
separated from his wife, and Arlyn F. Borga by stating that he merely relied on the
Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact
that Mr. Tagadan and his first wife have not seen each other for almost seven years.
[1]
With respect to the second charge, he maintains that in solemnizing the marriage
between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the
Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent
member of the judiciary within the court's jurisdiction; and that Article 8 thereof
applies to the case in question.
The complaint was not referred, as is usual, for investigation, since the
pleadings submitted were considered sufficient for a resolution of the case. [2]
Since the countercharges of sinister motives and fraud on the part of
complainant have not been sufficiently proven, they will not be dwelt upon. The acts
complained of and respondent judge's answer thereto will suffice and can be
objectively assessed by themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and
Arlyn Borga states that Tagadan's civil status is "separated." Despite this
declaration, the wedding ceremony was solemnized by respondent judge. He
presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio
Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal
Trial Judge of Basey, Samar.[3] The affidavit was not issued by the latter judge, as
claimed by respondent judge, but merely acknowledged before him.In their
affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly
530

married to Ida D. Pearanda in September 1983; that after thirteen years of

cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling
in Valencia, Bukidnon and that she has not returned nor been heard of for almost
seven years, thereby giving rise to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is
sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to
proceed with the marriage ceremony. We do not agree.
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Articles 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent spouse."
(Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact,
the law is clear and simple. Even if the spouse present has a well-founded belief
that the absent spouse was already dead, a summary proceeding for the declaration
of presumptive death is necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely incorporated into the Family Code
to discourage subsequent marriages where it is not proven that the previous
marriage has been dissolved or a missing spouse is factually or presumptively dead,
in accordance with pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for
the declaration of his first wife's presumptive death. Absent this judicial declaration,
he remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was
manifest error on the part of respondent judge to have accepted the joint affidavit
submitted by the groom. Such neglect or ignorance of the law has resulted in a
bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The
following marriage shall be void from the beginning: (4) Those bigamous x x x
marriages not falling under Article 41."

531

The second issue involves the solemnization of a marriage ceremony outside

the court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:
"Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
x x x x x x xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in
open court, in the church, chapel or temple, or in the office of the consul-general,
consul or vice-consul, as the case may be, and not elsewhere, except in cases of
marriages contracted on the point of death or in remote places in
accordance with Article 29 of this Code, or where both parties request the
solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn statement
to that effect."
Respondent judge points to Article 8 and its exceptions as the justifications for
his having solemnized the marriage between Floriano Sumaylo and Gemma del
Rosario outside of his court's jurisdiction. As the aforequoted provision states, a
marriage can be held outside of the judge's chambers or courtroom only in the
following instances: (1) at the point of death, (2) in remote places in accordance
with Article 29 or (3) upon request of both parties in writing in a sworn statement to
this effect. There is no pretense that either Sumaylo or del Rosario was at the point
of death or in a remote place. Moreover, the written request presented addressed to
the respondent judge was made by only one party, Gemma del Rosario. [4]
More importantly, the elementary principle underlying this provision is the
authority of the solemnizing judge. Under Article 3, one of the formal requisites of
marriage is the "authority of the solemnizing officer." Under Article 7, marriage may
be solemnized by, among others, "any incumbent member of the judiciary within
the court's jurisdiction." Article 8, which is a directory provision, refers only to the
venue of the marriage ceremony and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding provision. Non-compliance herewith
will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to marry the
faithful, is authorized to do so only within the area of the diocese or place allowed
by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction
over the entire Philippines to solemnize marriages, regardless of the venue, as long
as the requisites of the law are complied with. However, judges who are appointed
to specific jurisdictions, may officiate in weddings only within said areas and not
beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there
532

is a resultant irregularity in the formal requisite laid down in Article 3, which while it
may not affect the validity of the marriage, may subject the officiating official to
administrative liability.[5]
Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta.
Monica and Burgos, he was not clothed with authority to solemnize a marriage in
the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions
therein as grounds for the exercise of his misplaced authority, respondent judge
again demonstrated a lack of understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the
law. The legal principles applicable in the cases brought to our attention are
elementary and uncomplicated, prompting us to conclude that respondent's failure
to apply them is due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least,
proficient in the law they are sworn to apply, more than the ordinary laymen. They
should be skilled and competent in understanding and applying the law. It is
imperative that they be conversant with basic legal principles like the ones involved
in instant case.[6] It is not too much to expect them to know and apply the law
intelligently.[7] Otherwise, the system of justice rests on a shaky foundation indeed,
compounded by the errors committed by those not learned in the law.While
magistrates may at times make mistakes in judgment, for which they are not
penalized, the respondent judge exhibited ignorance of elementary provisions of
law, in an area which has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous
and void, there being a subsisting marriage between Gaspar Tagadan and Ida
Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the
Court, a six-month suspension and a stern warning that a repetition of the same or
similar acts will be dealt with more severely. Considering that one of the marriages
in question resulted in a bigamous union and therefore void, and the other lacked
the necessary authority of respondent judge, the Court adopts said
recommendation. Respondent is advised to be more circumspect in applying the law
and to cultivate a deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is
hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that
a repetition of the same or similar acts will be dealt with more severely.
SO ORDERED.

533

G.R. No. 150758

February 18, 2004

VERONICO
vs.
THE HONORABLE COURT OF APPEALS, respondent.

TENEBRO, petitioner

DECISION
YNARES-SANTIAGO, J.:
We are called on to decide the novel issue concerning the effect of the judicial
declaration of the nullity of a second or subsequent marriage, on the ground of
psychological incapacity, on an individuals criminal liability for bigamy. We hold
that the subsequent judicial declaration of nullity of marriage on the ground of
psychological incapacity does not retroact to the date of the celebration of the
marriage insofar as the Philippines penal laws are concerned. As such, an individual
who contracts a second or subsequent marriage during the subsistence of a valid
marriage is criminally liable for bigamy, notwithstanding the subsequent declaration
that the second marriage is void ab initio on the ground of psychological incapacity.
Petitioner in this case, Veronico Tenebro, contracted marriage with private
complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo
B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived
together continuously and without interruption until the latter part of 1991, when
Tenebro informed Ancajas that he had been previously married to a certain Hilda
Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a
marriage contract between him and Villareyes. Invoking this previous marriage,
petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating
that he was going to cohabit with Villareyes. 1
On January 25, 1993, petitioner contracted yet another marriage, this one with a
certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of
Cebu City, Branch 15.2 When Ancajas learned of this third marriage, she verified
from Villareyes whether the latter was indeed married to petitioner. In a handwritten
letter,3Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her
husband.
Ancajas thereafter filed a complaint for bigamy against petitioner. 4 The
Information,5 which was docketed as Criminal Case No. 013095-L, reads:
That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within
the jurisdiction of this Honorable Court, the aforenamed accused, having been
previously united in lawful marriage with Hilda Villareyes, and without the said
marriage having been legally dissolved, did then and there willfully, unlawfully and
534

feloniously contract a second marriage with LETICIA ANCAJAS, which second or

subsequent marriage of the accused has all the essential requisites for validity were
it not for the subsisting first marriage.
CONTRARY TO LAW.
When arraigned, petitioner entered a plea of "not guilty". 6
During the trial, petitioner admitted having cohabited with Villareyes from 19841988, with whom he sired two children. However, he denied that he and Villareyes
were validly married to each other, claiming that no marriage ceremony took place
to solemnize their union.7 He alleged that he signed a marriage contract merely to
enable her to get the allotment from his office in connection with his work as a
seaman.8 He further testified that he requested his brother to verify from the Civil
Register in Manila whether there was any marriage at all between him and
Villareyes, but there was no record of said marriage. 9
On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54,
rendered a decision finding the accused guilty beyond reasonable doubt of the
crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to
four (4) years and two (2) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum. 10 On appeal, the Court of
Appeals affirmed the decision of the trial court. Petitioners motion for
reconsideration was denied for lack of merit.
Hence, the instant petition for review on the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS
CORRECTIBLE IN THIS APPEAL WHEN IT AFFIRMED THE DECISION OF THE
HONORABLE COURT A QUOCONVICTING THE ACCUSED FOR (sic) THE CRIME
OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND
INSUFFICIENCY OF EVIDENCE.
II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF
BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE
ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID
AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT. 11
After a careful review of the evidence on record, we find no cogent reason to disturb
the assailed judgment.
Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy
are:

535

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites for
validity.12
Petitioners assignment of errors presents a two-tiered defense, in which he (1)
denies the existence of his first marriage to Villareyes, and (2) argues that the
declaration of the nullity of the second marriage on the ground of psychological
incapacity, which is an alleged indicator that his marriage to Ancajas lacks the
essential requisites for validity, retroacts to the date on which the second marriage
was celebrated.13 Hence, petitioner argues that all four of the elements of the crime
of bigamy are absent, and prays for his acquittal. 14
Petitioners defense must fail on both counts.
First, the prosecution presented sufficient evidence, both documentary and oral, to
prove the existence of the first marriage between petitioner and Villareyes.
Documentary evidence presented was in the form of: (1) a copy of a marriage
contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen
on the document, was solemnized at the Manila City Hall before Rev. Julieto Torres, a
Minister of the Gospel, and certified to by the Office of the Civil Registrar of
Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994,
informing Ancajas that Villareyes and Tenebro were legally married. 16
To assail the veracity of the marriage contract, petitioner presented (1) a
certification issued by the National Statistics Office dated October 7, 1995; 17 and (2)
a certification issued by the City Civil Registry of Manila, dated February 3,
1997.18 Both these documents attest that the respective issuing offices have no
record of a marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes
on November 10, 1986.
To our mind, the documents presented by the defense cannot adequately assail the
marriage contract, which in itself would already have been sufficient to establish the
existence of a marriage between Tenebro and Villareyes.
All three of these documents fall in the category of public documents, and the Rules
of Court provisions relevant to public documents are applicable to all. Pertinent to
the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows:
536

Sec. 7. Evidence admissible when original document is a public record. When the
original of a document is in the custody of a public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in
custody thereof (Emphasis ours).
This being the case, the certified copy of the marriage contract, issued by a public
officer in custody thereof, was admissible as the best evidence of its contents. The
marriage contract plainly indicates that a marriage was celebrated between
petitioner and Villareyes on November 10, 1986, and it should be accorded the full
faith and credence given to public documents.
Moreover, an examination of the wordings of the certification issued by the National
Statistics Office on October 7, 1995 and that issued by the City Civil Registry of
Manila on February 3, 1997 would plainly show that neither document attests as a
positive fact that there was no marriage celebrated between Veronico B. Tenebro
and Hilda B. Villareyes on November 10, 1986. Rather, the documents merely attest
that the respective issuing offices have no record of such a marriage. Documentary
evidence as to the absence of a record is quite different from documentary evidence
as to the absence of a marriage ceremony, or documentary evidence as to the
invalidity of the marriage between Tenebro and Villareyes.
The marriage contract presented by the prosecution serves as positive evidence as
to the existence of the marriage between Tenebro and Villareyes, which should be
given greater credence than documents testifying merely as to absence of any
record of the marriage, especially considering that there is absolutely no
requirement in the law that a marriage contract needs to be submitted to the civil
registrar as a condition precedent for the validity of a marriage. The mere fact that
no record of a marriage exists does not invalidate the marriage, provided all
requisites for its validity are present. 19 There is no evidence presented by the
defense that would indicate that the marriage between Tenebro and Villareyes
lacked any requisite for validity, apart from the self-serving testimony of the
accused himself. Balanced against this testimony are Villareyes letter, Ancajas
testimony that petitioner informed her of the existence of the valid first marriage,
and petitioners own conduct, which would all tend to indicate that the first
marriage had all the requisites for validity.
Finally, although the accused claims that he took steps to verify the non-existence
of the first marriage to Villareyes by requesting his brother to validate such
purported non-existence, it is significant to note that the certifications issued by the
National Statistics Office and the City Civil Registry of Manila are dated October 7,
1995 and February 3, 1997, respectively. Both documents, therefore, are dated after
the accuseds marriage to his second wife, private respondent in this case.

537

As such, this Court rules that there was sufficient evidence presented by the
prosecution to prove the first and second requisites for the crime of bigamy.
The second tier of petitioners defense hinges on the effects of the subsequent
judicial declaration20 of the nullity of the second marriage on the ground of
psychological incapacity.
Petitioner argues that this subsequent judicial declaration retroacts to the date of
the celebration of the marriage to Ancajas. As such, he argues that, since his
marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy
was not committed.21
This argument is not impressed with merit.
Petitioner makes much of the judicial declaration of the nullity of the second
marriage on the ground of psychological incapacity, invoking Article 36 of the Family
Code. What petitioner fails to realize is that a declaration of the nullity of the second
marriage on the ground of psychological incapacity is of absolutely no moment
insofar as the States penal laws are concerned.
As a second or subsequent marriage contracted during the subsistence of
petitioners valid marriage to Villareyes, petitioners marriage to Ancajas would be
null and void ab initio completely regardless of petitioners psychological capacity or
incapacity.22 Since a marriage contracted during the subsistence of a valid marriage
is automatically void, the nullity of this second marriage is not per se an argument
for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the
Revised Penal Code criminalizes "any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings". A plain reading of the law, therefore,
would indicate that the provision penalizes the mere act of contracting a second or
a subsequent marriage during the subsistence of a valid marriage.
Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990,
during the subsistence of the valid first marriage, the crime of bigamy had already
been consummated. To our mind, there is no cogent reason for distinguishing
between a subsequent marriage that is null and void purely because it is a second
or subsequent marriage, and a subsequent marriage that is null and void on the
ground of psychological incapacity, at least insofar as criminal liability for bigamy is
concerned. The States penal laws protecting the institution of marriage are in
recognition of the sacrosanct character of this special contract between spouses,
and punish an individuals deliberate disregard of the permanent character of the
special bond between spouses, which petitioner has undoubtedly done.

538

Moreover, the declaration of the nullity of the second marriage on the ground of
psychological incapacity is not an indicator that petitioners marriage to Ancajas
lacks the essential requisites for validity. The requisites for the validity of a marriage
are classified by the Family Code into essential (legal capacity of the contracting
parties and their consent freely given in the presence of the solemnizing
officer)23 and formal (authority of the solemnizing officer, marriage license, and
marriage ceremony wherein the parties personally declare their agreement to marry
before the solemnizing officer in the presence of at least two witnesses). 24 Under
Article 5 of the Family Code, any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles 37 25 and 3826 may
contract marriage.27
In this case, all the essential and formal requisites for the validity of marriage were
satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they
voluntarily contracted the second marriage with the required license before Judge
Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at
least two witnesses.
Although the judicial declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration of the marriage
insofar as the vinculum between the spouses is concerned, it is significant to note
that said marriage is not without legal effects. Among these effects is that children
conceived or born before the judgment of absolute nullity of the marriage shall be
considered legitimate.28 There is therefore a recognition written into the law itself
that such a marriage, although void ab initio, may still produce legal consequences.
Among these legal consequences is incurring criminal liability for bigamy. To hold
otherwise would render the States penal laws on bigamy completely nugatory, and
allow individuals to deliberately ensure that each marital contract be flawed in some
manner, and to thus escape the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the promise of futurity and
commitment.
As such, we rule that the third and fourth requisites for the crime of bigamy are
present in this case, and affirm the judgment of the Court of Appeals.
As a final point, we note that based on the evidence on record, petitioner contracted
marriage a third time, while his marriages to Villareyes and Ancajas were both still
subsisting. Although this is irrelevant in the determination of the accuseds guilt for
purposes of this particular case, the act of the accused displays a deliberate
disregard for the sanctity of marriage, and the State does not look kindly on such
activities. Marriage is a special contract, the key characteristic of which is its
permanence. When an individual manifests a deliberate pattern of flouting the
foundation of the States basic social institution, the States criminal laws on bigamy
step in.
539

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime
of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to
twelve (12) years. There being neither aggravating nor mitigating circumstance, the
same shall be imposed in its medium period. Applying the Indeterminate Sentence
Law, petitioner shall be entitled to a minimum term, to be taken from the penalty
next lower in degree, i.e., prision correccional which has a duration of six (6) months
and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the
decision of the trial court which sentenced petitioner to suffer an indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED.
The assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting
petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the
indeterminate penalty of four (4) years and two (2) months of prision correccional,
as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, is
AFFIRMED in toto.
SO ORDERED.

540

REPUBLIC
PHILIPPINES,

OF

THE
G.R. No. 175581

Petitioner,

- versus -

JOSE A. DAYOT,
Respondent.
x------------------x
FELISA TECSON-DAYOT,
Petitioner,
G.R. No. 179474

Present:

AUSTRIA-MARTINEZ, J.,

- versus -

Acting Chairperson,
TINGA,*
CHICO-NAZARIO,
VELASCO,** and
REYES, JJ.
JOSE A. DAYOT,
Respondent.

Promulgated:

541

March 28, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before us are two consolidated petitions. G.R. No. 175581 and G.R. No.
179474 are Petitions for Review under Rule 45 of the Rules of Court filed by the
Republic of the Philippines and Felisa Tecson-Dayot (Felisa), respectively, both
challenging the Amended Decision[1] of the Court of Appeals, dated 7 November

542

2006, in CA-G.R. CV No. 68759, which declared the marriage between Jose Dayot
(Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa were married
at the Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza. [2] In
lieu of a marriage license, Jose and Felisa executed a sworn affidavit, [3] also dated 24
November 1986, attesting that both of them had attained the age of maturity, and
that being unmarried, they had lived together as husband and wife for at least five
years.

On 7 July 1993, Jose filed a Complaint [4] for Annulment and/or Declaration of
Nullity of Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He
contended that his marriage with Felisa was a sham, as no marriage ceremony was
celebrated between the parties; that he did not execute the sworn affidavit stating
that he and Felisa had lived as husband and wife for at least five years; and that his
consent to the marriage was secured through fraud.

In his Complaint, Jose gave his version of the events which led to his filing of
the same. According to Jose, he was introduced to Felisa in 1986. Immediately
thereafter, he came to live as a boarder in Felisas house, the latter being his
landlady. Some three weeks later, Felisa requested him to accompany her to
the Pasay City Hall, ostensibly so she could claim a package sent to her by her
brother from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged signal from
Felisa, a man bearing three folded pieces of paper approached them. They were told
that Jose needed to sign the papers so that the package could be released to
Felisa. He initially refused to do so. However, Felisa cajoled him, and told him that
his refusal could get both of them killed by her brother who had learned about their
relationship. Reluctantly, he signed the pieces of paper, and gave them to the man
who immediately left. It was in February 1987 when he discovered that he had
contracted marriage with Felisa. He alleged that he saw a piece of paper lying on
top of the table at the sala of Felisas house. When he perused the same, he
discovered that it was a copy of his marriage contract with Felisa. When he
confronted Felisa, the latter feigned ignorance.

In opposing the Complaint, Felisa denied Joses allegations and defended the
validity of their marriage. She declared that they had maintained their relationship
as man and wife absent the legality of marriage in the early part of 1980, but that
she had deferred contracting marriage with him on account of their age difference.
543

[5]

In her pre-trial brief, Felisa expounded that while her marriage to Jose was
subsisting, the latter contracted marriage with a certain Rufina Pascual (Rufina)
on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy against
Jose. Subsequently, she filed an administrative complaint against Jose with the
Office of the Ombudsman, since Jose and Rufina were both employees of the
National Statistics and Coordinating Board. [6] The Ombudsman found Jose
administratively liable for disgraceful and immoral conduct, and meted out to him
the penalty of suspension from service for one year without emolument. [7]

On 26 July 2000, the RTC rendered a Decision [8] dismissing the Complaint. It
disposed:

WHEREFORE, after a careful evaluation and analysis of the

evidence presented by both parties, this Court finds and so holds that
the
[C]omplaint
does
not
deserve
a
favorable
consideration. Accordingly, the above-entitled case is hereby ordered
DISMISSED with costs against [Jose].[9]

The RTC ruled that from the testimonies and evidence presented, the
marriage celebrated between Jose and Felisa on 24 November 1986 was valid. It
dismissed Joses version of the story as implausible, and rationalized that:

Any person in his right frame of mind would easily suspect any
attempt to make him or her sign a blank sheet of paper. [Jose] could
have already detected that something was amiss, unusual, as they
were at Pasay City Hall to get a package for [Felisa] but it [was] he who
was made to sign the pieces of paper for the release of the said
package. Another indirect suggestion that could have put him on guard
was the fact that, by his own admission, [Felisa] told him that her
brother would kill them if he will not sign the papers. And yet it took
him, more or less, three months to discover that the pieces of paper
that he signed was [sic] purportedly the marriage contract. [Jose] does
not seem to be that ignorant, as perceived by this Court, to be taken in
for a ride by [Felisa.]

544

[Joses] claim that he did not consent to the marriage was belied
by the fact that he acknowledged Felisa Tecson as his wife when he
wrote [Felisas] name in the duly notarized statement of assets and
liabilities he filled up on May 12, 1988, one year after he discovered
the marriage contract he is now claiming to be sham and false. [Jose],
again, in his company I.D., wrote the name of [Felisa] as the person to
be contacted in case of emergency. This Court does not believe that
the only reason why her name was written in his company I.D. was
because he was residing there then. This is just but a lame excuse
because if he really considers her not his lawfully wedded wife, he
would have written instead the name of his sister.

When [Joses] sister was put into the witness stand, under oath,
she testified that she signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25, November 29,
1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on
November 29, 1996), and when she was asked by the Honorable Court
if indeed she believed that Felisa Tecson was really chosen by her
brother she answered yes.The testimony of his sister all the more
belied his claim that his consent was procured through fraud. [10]

Moreover, on the matter of fraud, the RTC ruled that Joses action had
prescribed. It cited Article 87[11] of the New Civil Code which requires that the action
for annulment of marriage must be commenced by the injured party within four
years after the discovery of the fraud. Thus:

That granting even for the sake of argument that his consent
was obtained by [Felisa] through fraud, trickery and machinations, he
could have filed an annulment or declaration of nullity of marriage at
the earliest possible opportunity, the time when he discovered the
alleged sham and false marriage contract. [Jose] did not take any
action to void the marriage at the earliest instance. x x x.[12]

545

Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court
of Appeals. In a Decision dated 11 August 2005, the Court of Appeals found the
appeal to be without merit. The dispositive portion of the appellate courts Decision
reads:

WHEREFORE, the Decision appealed from is AFFIRMED. [13]

The Court of Appeals applied the Civil Code to the marriage between Jose and
Felisa as it was solemnized prior to the effectivity of the Family Code. The appellate
court observed that the circumstances constituting fraud as a ground for annulment
of marriage under Article 86[14] of the Civil Code did not exist in the marriage
between the parties.Further, it ruled that the action for annulment of marriage on
the ground of fraud was filed beyond the prescriptive period provided by law. The
Court of Appeals struck down Joses appeal in the following manner:

Nonetheless, even if we consider that fraud or intimidation was

employed on Jose in giving his consent to the marriage, the action for
the annulment thereof had already prescribed. Article 87 (4) and (5) of
the Civil Code provides that the action for annulment of marriage on
the ground that the consent of a party was obtained by fraud, force or
intimidation must be commenced by said party within four (4) years
after the discovery of the fraud and within four (4) years from the time
the force or intimidation ceased. Inasmuch as the fraud was allegedly
discovered by Jose in February, 1987 then he had only until February,
1991 within which to file an action for annulment of
marriage. However, it was only on July 7, 1993 that Jose filed the
complaint for annulment of his marriage to Felisa. [15]

Likewise, the Court of Appeals did not accept Joses assertion that his
marriage to Felisa was void ab initio for lack of a marriage license. It ruled that the
marriage was solemnized under Article 76 [16] of the Civil Code as one of exceptional
character, with the parties executing an affidavit of marriage between man and
woman who have lived together as husband and wife for at least five years. The
Court of Appeals concluded that the falsity in the affidavit to the effect that Jose and
Felisa had lived together as husband and wife for the period required by Article 76
546

did not affect the validity of the marriage, seeing that the solemnizing officer was
misled by the statements contained therein. In this manner, the Court of Appeals
gave credence to the good-faith reliance of the solemnizing officer over the falsity
of the affidavit. The appellate court further noted that on the dorsal side of said
affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he
took steps to ascertain the ages and other qualifications of the contracting parties
and found no legal impediment to their marriage. Finally, the Court of Appeals
dismissed Joses argument that neither he nor Felisa was a member of the sect to
which Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article
56[17] of the Civil Code did not require that either one of the contracting parties to
the marriage must belong to the solemnizing officers church or religious sect. The
prescription was established only in Article 7 [18] of the Family Code which does not
govern the parties marriage.

Differing with the ruling of the Court of Appeals, Jose filed a Motion for
Reconsideration thereof. His central opposition was that the requisites for the proper
application of the exemption from a marriage license under Article 76 of the Civil
Code were not fully attendant in the case at bar. In particular, Jose cited the legal
condition that the man and the woman must have been living together as husband
and wife for at least five years before the marriage. Essentially, he maintained that
the affidavit of marital cohabitation executed by him and Felisa was false.

The Court of Appeals granted Joses Motion for Reconsideration and reversed itself.
Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of
which reads:

WHEREFORE,
the
Decision
dated August
11,
2005 is RECALLED and SET ASIDE and another one entered declaring
the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay
City.[19]

In its Amended Decision, the Court of Appeals relied on the ruling of this
Court in Nial v. Bayadog,[20] and reasoned that:
547

In Nial v. Bayadog, where the contracting parties to a marriage

solemnized without a marriage license on the basis of their affidavit
that they had attained the age of majority, that being unmarried, they
had lived together for at least five (5) years and that they desired to
marry each other, the Supreme Court ruled as follows:

x x x In other words, the five-year common-law cohabitation

period, which is counted back from the date of celebration of marriage,
should be a period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken. Otherwise,
if that continuous 5-year cohabitation is computed without any
distinction as to whether the parties were capacitated to marry each
other during the entire five years, then the law would be sanctioning
immorality and encouraging parties to have common law relationships
and placing them on the same footing with those who lived faithfully
with their spouse. Marriage being a special relationship must be
respected as such and its requirements must be strictly observed. The
presumption that a man and a woman deporting themselves as
husband and wife is based on the approximation of the requirements of
the law. The parties should not be afforded any excuse to not comply
with every single requirement and later use the same missing element
as a pre-conceived escape ground to nullify their marriage. There
should be no exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the exception. It should
be noted that a license is required in order to notify the public that two
persons are about to be united in matrimony and that anyone who is
aware or has knowledge of any impediment to the union of the two
shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage

solemnized without a marriage license, save marriages of exceptional
character, shall be void from the beginning. Inasmuch as the marriage
between Jose and Felisa is not covered by the exception to the
requirement of a marriage license, it is, therefore, void ab
initio because of the absence of a marriage license. [21]

548

Felisa sought reconsideration of the Amended Decision, but to no avail. The

appellate court rendered a Resolution[22] dated 10 May 2007, denying Felisas
motion.

Meanwhile, the Republic of the Philippines, through the Office of the Solicitor
General (OSG), filed a Petition for Review before this Court in G.R. No. 175581,
praying that the Court of Appeals Amended Decision dated 7 November 2006 be
reversed and set aside for lack of merit, and that the marriage between Jose and
Felisa be declared valid and subsisting. Felisa filed a separate Petition for Review,
docketed as G.R. No. 179474, similarly assailing the appellate courts Amended
Decision. On 1 August 2007, this Court resolved to consolidate the two Petitions in
the interest of uniformity of the Court rulings in similar cases brought before it for
resolution.[23]

The Republic of the Philippines propounds the following arguments for the
allowance of its Petition, to wit:

RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE

VALIDITY OF HIS MARRIAGE TO FELISA.

II

RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND
SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT
CONDUCT.

III

549

RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS

MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.[24]

Correlative to the above, Felisa submits that the Court of Appeals

misapplied Nial.[25] She differentiates the case at bar from Nial by reasoning that one
of the parties therein had an existing prior marriage, a circumstance which does not
obtain in her cohabitation with Jose. Finally, Felisa adduces that Jose only sought the
annulment of their marriage after a criminal case for bigamy and an administrative
case had been filed against him in order to avoid liability. Felisa surmises that the
declaration of nullity of their marriage would exonerate Jose from any liability.

For our resolution is the validity of the marriage between Jose and Felisa. To
reach a considered ruling on the issue, we shall jointly tackle the related arguments
vented bypetitioners Republic of the Philippines and Felisa.

The Republic of the Philippines asserts that several circumstances give rise to
the presumption that a valid marriage exists between Jose and Felisa. For her part,
Felisa echoes the claim that any doubt should be resolved in favor of the validity of
the marriage by citing this Courts ruling in Hernandez v. Court of Appeals.[26] To
buttress its assertion, the Republic points to the affidavit executed by Jose and
Felisa, dated 24 November 1986, attesting that they have lived together as husband
and wife for at least five years, which they used in lieu of a marriage license. It is
the Republics position that the falsity of the statements in the affidavit does not
affect the validity of the marriage, as the essential and formal requisites were
complied with; and the solemnizing officer was not required to investigate as to
whether the said affidavit was legally obtained. The Republic opines that as a
marriage under a license is not invalidated by the fact that the license was
wrongfully obtained, so must a marriage not be invalidated by the fact that the
parties incorporated a fabricated statement in their affidavit that they cohabited as
husband and wife for at least five years. In addition, the Republic posits that the
parties marriage contract states that their marriage was solemnized under Article
76 of the Civil Code. It also bears the signature of the parties and their witnesses,
and must be considered a primary evidence of marriage. To further fortify its
Petition, the Republic adduces the following documents: (1) Joses notarized
Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisas
name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay
550

Chairman 192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had
lived together as husband and wife in said barangay; and (3) Joses company ID
card, dated 2 May 1988, indicating Felisas name as his wife.

The first assignment of error compels this Court to rule on the issue of the
effect of a false affidavit under Article 76 of the Civil Code. A survey of the
prevailing rules is in order.

It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24
November 1986, prior to the effectivity of the Family Code. Accordingly, the Civil
Code governs their union. Article 53 of the Civil Code spells out the essential
requisites of marriage as a contract:

ART. 53. No marriage shall be solemnized unless all these requisites

are complied with:

(1)

Legal capacity of the contracting parties;

(2) Their consent, freely given;

(3) Authority of the person performing the marriage; and

(4) A marriage license, except in

exceptional character. (Emphasis ours.)

marriage

of

Article 58[27] makes explicit that no marriage shall be solemnized without a

license first being issued by the local civil registrar of the municipality where either
contracting party habitually resides, save marriages of an exceptional character
authorized by the Civil Code, but not those under Article 75. [28] Article 80(3)[29] of the
Civil Code makes it clear that a marriage performed without the corresponding
551

marriage license is void, this being nothing more than the legitimate consequence
flowing from the fact that the license is the essence of the marriage contract. [30] This
is in stark contrast to the old Marriage Law,[31] whereby the absence of a marriage
license did not make the marriage void. The rationale for the compulsory character
of a marriage license under the Civil Code is that it is the authority granted by the
State to the contracting parties, after the proper government official has inquired
into their capacity to contract marriage.[32]

Under the Civil Code, marriages of exceptional character are covered by

Chapter 2, Title III, comprising Articles 72 to 79. To wit, these marriages are: (1)
marriages inarticulo mortis or at the point of death during peace or war, (2)
marriages in remote places, (2) consular marriages, [33] (3) ratification of marital
cohabitation, (4) religious ratification of a civil marriage, (5) Mohammedan or pagan
marriages, and (6) mixed marriages.[34]

The instant case pertains to a ratification of marital cohabitation under Article

76 of the Civil Code, which provides:

ART. 76. No marriage license shall be necessary when a man and a

woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five
years, desire to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by law
to administer oaths. The official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.

The reason for the law,[35] as espoused by the Code Commission, is that the
publicity attending a marriage license may discourage such persons who have lived
in a state of cohabitation from legalizing their status. [36]

It is not contested herein that the marriage of Jose and Felisa was performed
without a marriage license. In lieu thereof, they executed an affidavit declaring that
552

they have attained the age of maturity; that being unmarried, they have lived
together as husband and wife for at least five years; and that because of this union,
they desire to marry each other. [37] One of the central issues in the Petition at bar is
thus: whether the falsity of an affidavit of marital cohabitation, where the parties
have in truth fallen short of the minimum five-year requirement, effectively renders
the marriage void ab initio for lack of a marriage license.

We answer in the affirmative.

Marriages of exceptional character are, doubtless, the exceptions to the rule

on the indispensability of the formal requisite of a marriage license. Under the rules
of statutory construction, exceptions, as a general rule, should be strictly [38] but
reasonably construed.[39] They extend only so far as their language fairly warrants,
and all doubts should be resolved in favor of the general provisions rather than the
exception.[40] Where a general rule is established by statute with exceptions, the
court will not curtail the former or add to the latter by implication. [41] For the
exception in Article 76 to apply, it is a sine qua non thereto that the man and the
woman must have attained the age of majority, and that, being unmarried, they
have lived together as husband and wife for at least five years.

A strict but reasonable construction of Article 76 leaves us with no other

expediency but to read the law as it is plainly written. The exception of a marriage
license under Article 76 applies only to those who have lived together as husband
and wife for at least five years and desire to marry each other. The Civil Code, in no
ambiguous terms, places a minimum period requirement of five years of
cohabitation. No other reading of the law can be had, since the language of Article
76 is precise. The minimum requisite of five years of cohabitation is an
indispensability carved in the language of the law. For a marriage celebrated under
Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in
the law not as a directory requirement, but as one that partakes of a mandatory
character. It is worthy to mention that Article 76 also prescribes that the contracting
parties shall state the requisite facts[42] in an affidavit before any person authorized
by law to administer oaths; and that the official, priest or minister who solemnized
the marriage shall also state in an affidavit that he took steps to ascertain the ages
and other qualifications of the contracting parties and that he found no legal
impediment to the marriage.

553

It is indubitably established that Jose and Felisa have not lived together for
five years at the time they executed their sworn affidavit and contracted
marriage. The Republic admitted that Jose and Felisa started living together only in
June 1986, or barely five months before the celebration of their marriage. [43] The
Court of Appeals also noted Felisas testimony that Jose was introduced to her by her
neighbor, Teresita Perwel, sometime in February or March 1986 after the EDSA
Revolution.[44] The appellate court also cited Felisas own testimony that it was only
in June 1986 when Jose commenced to live in her house. [45]

Moreover, it is noteworthy that the question as to whether they satisfied the

minimum five-year requisite is factual in nature. A question of fact arises when
there is a need to decide on the truth or falsehood of the alleged facts. [46] Under
Rule 45, factual findings are ordinarily not subject to this Courts review. [47] It is
already well-settled that:

The general rule is that the findings of facts of the Court of Appeals are
binding on this Court. A recognized exception to this rule is when the
Court of Appeals and the trial court, or in this case the administrative
body, make contradictory findings. However, the exception does not
apply in every instance that the Court of Appeals and the trial court or
administrative body disagree. The factual findings of the Court of
Appeals remain conclusive on this Court if such findings are supported
by the record or based on substantial evidence. [48]

Therefore, the falsity of the affidavit dated 24 November 1986, executed by

Jose and Felisa to exempt them from the requirement of a marriage license, is
beyond question.

We cannot accept the insistence of the Republic that the falsity of the
statements in the parties affidavit will not affect the validity of marriage, since all
the essential and formal requisites were complied with. The argument deserves
scant merit. Patently, it cannot be denied that the marriage between Jose and Felisa
was celebrated without the formal requisite of a marriage license. Neither did Jose
and Felisa meet the explicit legal requirement in Article 76, that they should have

554

lived together as husband and wife for at least five years, so as to be excepted from
the requirement of a marriage license.

Anent petitioners reliance on the presumption of marriage, this Court holds

that the same finds no applicability to the case at bar. Essentially, when we speak of
a presumption of marriage, it is with reference to the prima facie presumption that a
man and a woman deporting themselves as husband and wife have entered into a
lawful contract of marriage.[49] Restated more explicitly, persons dwelling together in
apparent matrimony are presumed, in the absence of any counter-presumption or
evidence special to the case, to be in fact married. [50] The present case does not
involve an apparent marriage to which the presumption still needs to be
applied. There is no question that Jose and Felisa actually entered into a contract of
marriage on 24 November 1986, hence, compelling Jose to institute a Complaint for
Annulment and/or Declaration of Nullity of Marriage, which spawned the instant
consolidated Petitions.

In the same vein, the declaration of the Civil Code [51] that every intendment of
law or fact leans towards the validity of marriage will not salvage the parties
marriage, and extricate them from the effect of a violation of the law. The marriage
of Jose and Felisa was entered into without the requisite marriage license or
compliance with the stringent requirements of a marriage under exceptional
circumstance. The solemnization of a marriage without prior license is a clear
violation of the law and would lead or could be used, at least, for the perpetration of
fraud against innocent and unwary parties, which was one of the evils that the law
sought to prevent by making a prior license a prerequisite for a valid marriage.
[52]
The protection of marriage as a sacred institution requires not just the defense of
a true and genuine union but the exposure of an invalid one as well. [53] To permit a
false affidavit to take the place of a marriage license is to allow an abject
circumvention of the law. If this Court is to protect the fabric of the institution of
marriage, we must be wary of deceptive schemes that violate the legal measures
set forth in our laws.

Similarly, we are not impressed by the ratiocination of the Republic that as a

marriage under a license is not invalidated by the fact that the license was
wrongfully obtained, so must a marriage not be invalidated by a fabricated
statement that the parties have cohabited for at least five years as required by
law. The contrast is flagrant. The former is with reference to an irregularity of the
555

marriage license, and not to the absence of one. Here, there is no marriage license
at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the
period of Jose and Felisas cohabitation, which would have qualified their marriage as
an exception to the requirement for a marriage license, cannot be a mere
irregularity, for it refers to a quintessential fact that the law precisely required to be
deposed and attested to by the parties under oath. If the essential matter in the
sworn affidavit is a lie, then it is but a mere scrap of paper, without force and
effect. Hence, it is as if there was no affidavit at all.

In its second assignment of error, the Republic puts forth the argument that
based on equity, Jose should be denied relief because he perpetrated the
fabrication, and cannot thereby profit from his wrongdoing. This is a misplaced
invocation. It must be stated that equity finds no room for application where there is
a law.[54] There is a law on the ratification of marital cohabitation, which is set in
precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are
consistent that the declaration of nullity of the parties marriage is without prejudice
to their criminal liability.[55]

The Republic further avers in its third assignment of error that Jose is deemed
estopped from assailing the legality of his marriage for lack of a marriage license. It
is claimed that Jose and Felisa had lived together from 1986 to 1990,
notwithstanding Joses subsequent marriage to Rufina Pascual on 31 August 1990,
and that it took Jose seven years before he sought the declaration of nullity; hence,
estoppel had set in.

This is erroneous. An action for nullity of marriage is imprescriptible. [56] Jose

and Felisas marriage was celebrated sans a marriage license. No other conclusion
can be reached except that it is void ab initio. In this case, the right to impugn a
void marriage does not prescribe, and may be raised any time.

Lastly, to settle all doubts, jurisprudence has laid down the rule that the fiveyear common-law cohabitation period under Article 76 means a five-year period
computed back from the date of celebration of marriage, and refers to a period of
legal union had it not been for the absence of a marriage. [57] It covers the years
immediately preceding the day of the marriage, characterized by exclusivity -

556

meaning no third party was involved at any time within the five years - and
continuity that is unbroken.[58]

WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court
of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the
marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio, is AFFIRMED, without
prejudice to their criminal liability, if any. No costs.

SO ORDERED.
ENGRACE NIAL for Herself and as Guardian ad Litem of the minors
BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners,
vs. NORMA BAYADOG, respondent. Ncmmis
DECISION
YNARES_SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of nullity of his
marriage after his death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their
marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her
death on April 24, 1985. One year and 8 months thereafter or on December 11,
1986, Pepito and respondent Norma Badayog got married without any marriage
license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11,
1986 stating that they had lived together as husband and wife for at least five years
and were thus exempt from securing a marriage license. On February 19, 1997,
Pepito died in a car accident. After their fathers death, petitioners filed a petition for
declaration of nullity of the marriage of Pepito to Norma alleging that the said
marriage was void for lack of a marriage license. The case was filed under the
assumption that the validity or invalidity of the second marriage would affect
petitioners successional rights. Norma filed a motion to dismiss on the ground that
petitioners have no cause of action since they are not among the persons who could
file an action for "annulment of marriage" under Article 47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch
59, dismissed the petition after finding that the Family Code is "rather silent,
obscure, insufficient" to resolve the following issues:

557

(1) Whether or not plaintiffs have a cause of action against defendant

in asking for the declaration of the nullity of marriage of their deceased
father, Pepito G. Nial, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Nial is already dead;
(2) Whether or not the second marriage of plaintiffs deceased father
with defendant is null and void ab initio;
(3) Whether or not plaintiffs are estopped from assailing the validity of
the second marriage after it was dissolved due to their fathers death. [1]
Thus, the lower court ruled that petitioners should have filed the action to declare
null and void their fathers marriage to respondent before his death, applying by
analogy Article 47 of the Family Code which enumerates the time and the persons
who could initiate an action for annulment of marriage. [2] Hence, this petition for
review with this Court grounded on a pure question of law. Scnc m
This petition was originally dismissed for non-compliance with Section 11, Rule 13 of
the 1997 Rules of Civil Procedure, and because "the verification failed to state the
basis of petitioners averment that the allegations in the petition are true and
correct." It was thus treated as an unsigned pleading which produces no legal effect
under Section 3, Rule 7, of the 1997 Rules. [3]However, upon motion of petitioners,
this Court reconsidered the dismissal and reinstated the petition for review. [4]
The two marriages involved herein having been solemnized prior to the effectivity of
the Family Code (FC), the applicable law to determine their validity is the Civil Code
which was the law in effect at the time of their celebration. [5] A valid marriage
license is a requisite of marriage under Article 53 of the Civil Code, [6] the absence of
which renders the marriage void ab initiopursuant to Article 80(3)[7] in relation to
Article 58.[8] The requirement and issuance of marriage license is the States
demonstration of its involvement and participation in every marriage, in the
maintenance of which the general public is interested. [9] This interest proceeds from
the constitutional mandate that the State recognizes the sanctity of family life and
of affording protection to the family as a basic "autonomous social
institution."[10] Specifically, the Constitution considers marriage as an "inviolable
social institution," and is the foundation of family life which shall be protected by
the State.[11] This is why the Family Code considers marriage as "a special contract
of permanent union"[12] and case law considers it "not just an adventure but a
lifetime commitment."[13]
However, there are several instances recognized by the Civil Code wherein a
marriage license is dispensed with, one of which is that provided in Article 76,
[14]
referring to the marriage of a man and a woman who have lived together and
exclusively with each other as husband and wife for a continuous and unbroken
558

period of at least five years before the marriage. The rationale why no license is
required in such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a
valid marriage due to the publication of every applicants name for a marriage
license. The publicity attending the marriage license may discourage such persons
from legitimizing their status.[15] To preserve peace in the family, avoid the peeping
and suspicious eye of public exposure and contain the source of gossip arising from
the publication of their names, the law deemed it wise to preserve their privacy and
exempt them from that requirement. Sdaa miso
There is no dispute that the marriage of petitioners father to respondent Norma was
celebrated without any marriage license. In lieu thereof, they executed an affidavit
stating that "they have attained the age of majority, and, being unmarried, have
lived together as husband and wife for at least five years, and that we now desire to
marry each other."[16] The only issue that needs to be resolved pertains to what
nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant
the counting of the five year period in order to exempt the future spouses from
securing a marriage license. Should it be a cohabitation wherein both parties are
capacitated to marry each other during the entire five-year continuous period or
should it be a cohabitation wherein both parties have lived together and exclusively
with each other as husband and wife during the entire five-year continuous period
regardless of whether there is a legal impediment to their being lawfully married,
which impediment may have either disappeared or intervened sometime during the
cohabitation period?
Working on the assumption that Pepito and Norma have lived together as husband
and wife for five years without the benefit of marriage, that five-year period should
be computed on the basis of a cohabitation as "husband and wife" where the only
missing factor is the special contract of marriage to validate the union. In other
words, the five-year common-law cohabitation period, which is counted back from
the date of celebration of marriage, should be a period of legal union had it not
been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without any distinction as to whether
the parties were capacitated to marry each other during the entire five years, then
the law would be sanctioning immorality and encouraging parties to have common
law relationships and placing them on the same footing with those who lived
faithfully with their spouse. Marriage being a special relationship must be respected
as such and its requirements must be strictly observed. The presumption that a
man and a woman deporting themselves as husband and wife is based on the
approximation of the requirements of the law. The parties should not be afforded
any excuse to not comply with every single requirement and later use the same
559

missing element as a pre-conceived escape ground to nullify their marriage. There

should be no exemption from securing a marriage license unless the circumstances
clearly fall within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be united in
matrimony and that anyone who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local civil registrar. [17] The Civil Code
provides:
Article 63: "x x x. This notice shall request all persons having
knowledge of any impediment to the marriage to advice the local civil
registrar thereof. x x x."
Article 64: "Upon being advised of any alleged impediment to the
marriage, the local civil registrar shall forthwith make an investigation,
examining persons under oath. x x x"Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the
local civil registrar thereof. x x x."
Article 18 reads in part: "x x x. In case of any impediment known to the
local civil registrar or brought to his attention, he shall note down the
particulars thereof and his findings thereon in the application for a
marriage license. x x x."
This is the same reason why our civil laws, past or present, absolutely prohibited the
concurrence of multiple marriages by the same person during the same period.
Thus, any marriage subsequently contracted during the lifetime of the first spouse
shall be illegal and void,[18] subject only to the exception in cases of absence or
where the prior marriage was dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of two or more marriages and the
having of extramarital affairs are considered felonies, i.e., bigamy and concubinage
and adultery.[19] The law sanctions monogamy.
In this case, at the time of Pepito and respondents marriage, it cannot be said that
they have lived with each other as husband and wife for at least five years prior to
their wedding day. From the time Pepitos first marriage was dissolved to the time of
his marriage with respondent, only about twenty months had elapsed. Even
assuming that Pepito and his first wife had separated in fact, and thereafter both
Pepito and respondent had started living with each other that has already lasted for
five years, the fact remains that their five-year period cohabitation was not the
cohabitation contemplated by law. It should be in the nature of a perfect union that
560

is valid under the law but rendered imperfect only by the absence of the marriage
contract. Pepito had a subsisting marriage at the time when he started cohabiting
with respondent. It is immaterial that when they lived with each other, Pepito had
already been separated in fact from his lawful spouse. The subsistence of the
marriage even where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either spouse with any third
party as being one as "husband and wife". Scs daad
Having determined that the second marriage involved in this case is not covered by
the exception to the requirement of a marriage license, it is void ab initio because of
the absence of such element.
The next issue to be resolved is: do petitioners have the personality to file a petition
to declare their fathers marriage void after his death?
Contrary to respondent judges ruling, Article 47 of the Family Code [20] cannot be
applied even by analogy to petitions for declaration of nullity of marriage. The
second ground for annulment of marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment suit "at any time before the death of
either party" is inapplicable. Article 47 pertains to the grounds, periods and persons
who can file an annulment suit, not a suit for declaration of nullity of marriage. The
Code is silent as to who can file a petition to declare the nullity of a marriage.
Voidable and void marriages are not identical. A marriage that is annulable is valid
until otherwise declared by the court; whereas a marriage that is void ab initio is
considered as having never to have taken place [21] and cannot be the source of
rights. The first can be generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding while a void marriage can be
attacked collaterally. Consequently, void marriages can be questioned even after
the death of either party but voidable marriages can be assailed only during the
lifetime of the parties and not after death of either, in which case the parties and
their offspring will be left as if the marriage had been perfectly valid. [22] That is why
the action or defense for nullity is imprescriptible, unlike voidable marriages where
the action prescribes. Only the parties to a voidable marriage can assail it but any
proper interested party may attack a void marriage. Void marriages have no legal
effects except those declared by law concerning the properties of the alleged
spouses, regarding co-ownership or ownership through actual joint contribution,
[23]
and its effect on the children born to such void marriages as provided in Article
50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family
Code. On the contrary, the property regime governing voidable marriages is
generally conjugal partnership and the children conceived before its annulment are
legitimate. Sup rema

561

Contrary to the trial courts ruling, the death of petitioners father extinguished the
alleged marital bond between him and respondent. The conclusion is erroneous and
proceeds from a wrong premise that there was a marriage bond that was dissolved
between the two. It should be noted that their marriage was void hence it is
deemed as if it never existed at all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is necessary in
order to establish the nullity of a marriage. [24] "A void marriage does not require a
judicial decree to restore the parties to their original rights or to make the marriage
void but though no sentence of avoidance be absolutely necessary, yet as well for
the sake of good order of society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be ascertained and declared by
the decree of a court of competent jurisdiction." [25] "Under ordinary circumstances,
the effect of a void marriage, so far as concerns the conferring of legal rights upon
the parties, is as though no marriage had ever taken place. And therefore, being
good for no legal purpose, its invalidity can be maintained in any proceeding in
which the fact of marriage may be material, either direct or collateral, in any civil
court between any parties at any time, whether before or after the death of either
or both the husband and the wife, and upon mere proof of the facts rendering such
marriage void, it will be disregarded or treated as non-existent by the courts." It is
not like a voidable marriage which cannot be collaterally attacked except in direct
proceeding instituted during the lifetime of the parties so that on the death of
either, the marriage cannot be impeached, and is made good ab initio.[26] But Article
40 of the Family Code expressly provides that there must be a judicial declaration of
the nullity of a previous marriage, though void, before a party can enter into a
second marriage[27] and such absolute nullity can be based only on a final judgment
to that effect.[28] For the same reason, the law makes either the action or defense for
the declaration of absolute nullity of marriage imprescriptible. [29] Corollarily, if the
death of either party would extinguish the cause of action or the ground for
defense, then the same cannot be considered imprescriptible. Juris
However, other than for purposes of remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may
pass upon the validity of marriage even in a suit not directly instituted to question
the same so long as it is essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose is other than to
remarry. The clause "on the basis of a final judgment declaring such previous
marriage void" in Article 40 of the Family Code connotes that such final judgment
need not be obtained only for purpose of remarriage.

562

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial
Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED
and SET ASIDE. The said case is ordered REINSTATED.
SO ORDERED.
G.R. No. 167684

July 31, 2006

JAIME
vs.
CARMELITA N. CARDENAS, respondent.

O.SEVILLA, petitioner,

DECISION
CHICO-NAZARIO, J.:
This Petition for Review on Certiorari seeks the reversal of the Decision1 of the Court
of Appeals in CA-G.R. CV No. 74416 dated 20 December 2004 which set aside the
Decision2 of the Regional Trial Court (RTC) of Makati City, in Civil Case No. 94-1285
dated 25 January 2002.
In a Complaint3 dated 28 March 1994 filed by Jaime O. Sevilla before the RTC, he
claimed that on 19 May 1969, through machinations, duress and intimidation
employed upon him by Carmelita N. Cardenas and the latter's father, retired Colonel
Jose Cardenas of the Armed forces of the Philippines, he and Carmelita went to the
City Hall of Manila and they were introduced to a certain Reverend Cirilo D.
Gonzales, a supposed Minister of the Gospel. On the said date, the father of
Carmelita caused him and Carmelita to sign a marriage contract before the said
Minister of the Gospel. According to Jaime, he never applied for a marriage license
for his supposed marriage to Carmelita and never did they obtain any marriage
license from any Civil Registry, consequently, no marriage license was presented to
the solemnizing officer.
For her part, Carmelita refuted these allegations of Jaime, and claims that she and
Jaime were married civilly on 19 May 1969, 4 and in a church ceremony thereafter on
31 May 19695 at the Most Holy Redeemer Parish in Quezon City. Both marriages
were registered with the local civil registry of Manila and the National Statistics
Office. He is estopped from invoking the lack of marriage license after having been
married to her for 25 years.
The trial court made the following findings:
In support of his complaint, plaintiff [Jaime] testified that on May 19, 1969, he
and defendant [Carmelita] appeared before a certain Rev. Cirilo D. Gonzales,
563

a Minister of the Gospel, at the city hall in Manila where they executed a
Marriage Contract (Exh. "A") in civil rites. A certain Godofredo Occena who,
plaintiff alleged, was an aide of defendant's father accompanied them, and
who, together with another person, stood as witness to the civil wedding.
That although marriage license no. 2770792 allegedly issued in San Juan,
Rizal on May 19, 1969 was indicated in the marriage contract, the same was
fictitious for he never applied for any marriage license, (Ibid., p. 11). Upon
verifications made by him through his lawyer, Atty. Jose M. Abola, with the
Civil Registry of San Juan, a Certification dated March 11, 1994 (Exh. "E") was
issued by Rafael D. Aliscad, Jr., Local Civil Registrar of San Juan, that "no
marriage license no. 2770792 was ever issued by said office." On May 31,
1969, he and defendant were again wed, this time in church rites, before
Monsignor Juan Velasco at the Most Holy Redeemer Parish Church in Brixton
Hills, Quezon City, where they executed another marriage contract (Exh. "F")
with the same marriage license no. 2770792 used and indicated. Preparations
and expenses for the church wedding and reception were jointly shared by his
and defendant's parents. After the church wedding, he and defendant resided
in his house at Brixton Hills until their first son, Jose Gabriel, was born in
March 1970. As his parents continued to support him financially, he and
defendant lived in Spain for some time, for his medical studies. Eventually,
their marital relationship turned bad because it became difficult for him to be
married he being a medical student at that time. They started living apart in
1976, but they underwent family counseling before they eventually separated
in 1978. It was during this time when defendant's second son was born whose
paternity plaintiff questioned. Plaintiff obtained a divorce decree against
defendant in the United States in 1981 and later secured a judicial separation
of their conjugal partnership in 1983.
Atty. Jose M. Abola, then counsel for the plaintiff, himself manifested that
when his service was engaged by plaintiff, and after the latter narrated to
him the circumstances of his marriage, he made inquiries with the Office of
Civil Registry of San Juan where the supposed marriage license was obtained
and with the Church of the Most Holy Redeemer Parish where the religious
wedding ceremony was celebrated. His request letters dated March 3, 1994
(Exh. "J"), March 7, 1994 (Exh. "L"), March 9, 1994 (Exh. "M") and March 11,
1994 (Exh. "K") were all sent to and received by the Civil Registrar of San
Juan, who in reply thereto, issued Certifications dated March 4, 1994 (Exh.
"I"), and March 11, 1994 (Exh. "E") and September 20, 1994 (Exh. "C"), that
"no marriage license no. 2770792 was ever issued by that office." Upon his
inquiry, the Holy Redeemer Parish Church issued him a certified copy of the
marriage contract of plaintiff and defendant (Exh. "F") and a Certificate of
Marriage dated April 11, 1994 (Exh. "G"), wherein it noted that it was a
"purely religious ceremony, having been civilly married on May 19, 1969 at

564

the City Hall, Manila, under Marriage License No. 2770792 issued at San Juan,
Rizal on May 19, 1969."
Perlita Mercader, Registration Officer III of the Local Registry of San Juan,
identified the Certificates dated March 4, 1994, March 11, 1994 and
September 20, 1994 issued by Rafael Aliscad, Jr., the Local Civil Registrar, and
testified that their office failed to locate the book wherein marriage license
no. 2770792 may have been registered (TSN, 8-6-96, p. 5).
Defendant Carmelita Cardenas testified that she and plaintiff had a steady
romantic relationship after they met and were introduced to each other in
October 1968. A model, she was compelled by her family to join the Mutya ng
Pilipinas beauty pageant when plaintiff who was afraid to lose her, asked her
to run away with him to Baguio. Because she loved plaintiff, she turned back
on her family and decided to follow plaintiff in Baguio. When they came back
to Manila, she and plaintiff proceeded to the latter's home in Brixton Hills
where plaintiff's mother, Mrs. Sevilla, told her not to worry. Her parents were
hostile when they learned of the elopement, but Mrs. Sevilla convinced them
that she will take care of everything, and promised to support plaintiff and
defendant. As plaintiff was still fearful he may lose her, he asked her to marry
him in civil rites, without the knowledge of her family, more so her father
(TSN, 5-28-98, p. 4) on May 19, 1969, before a minister and where she was
made to sign documents. After the civil wedding, they had lunch and later
each went home separately. On May 31, 1969, they had the church wedding,
which the Sevilla family alone prepared and arranged, since defendant's
mother just came from hospital. Her family did not participate in the wedding
preparations. Defendant further stated that there was no sexual
consummation during their honeymoon and that it was after two months
when they finally had sex. She learned from Dr. Escudero, plaintiff's physician
and one of their wedding sponsors that plaintiff was undergoing psychiatric
therapy since age 12 (TSN, 11-2-98, p. 15) for some traumatic problem
compounded by his drug habit. She found out plaintiff has unusual sexual
behavior by his obsession over her knees of which he would take endless
pictures of. Moreover, plaintiff preferred to have sex with her in between the
knees which she called "intrafemural sex," while real sex between them was
far and between like 8 months, hence, abnormal. During their marriage,
plaintiff exhibited weird sexual behavior which defendant attributed to
plaintiff's drug addiction (TSN, 11-5-98, pp. 5-8). A compulsive liar, plaintiff
has a bad temper who breaks things when he had tantrums. Plaintiff took
drugs like amphetamines, benzedrine and the like, "speed" drugs that kept
him from sleep and then would take barbiturates or downers, like "mogadon."
Defendant tried very hard to keep plaintiff away from drugs but failed as it
has become a habit to him. They had no fixed home since they often moved
and partly lived in Spain for about four and a half years, and during all those
565

times, her mother-in-law would send some financial support on and off, while
defendant worked as an English teacher. Plaintiff, who was supposed to be
studying, did nothing. Their marriage became unbearable, as plaintiff
physically and verbally abused her, and this led to a break up in their
marriage. Later, she learned that plaintiff married one Angela Garcia in 1991
in the United States.
Jose Cardenas, father of defendant, testified that he was not aware of the civil
wedding of his daughter with the plaintiff; that his daughter and grandson
came to stay with him after they returned home from Spain and have lived
with him and his wife ever since. His grandsons practically grew up under his
care and guidance, and he has supported his daughter's expenses for
medicines and hospital confinements (Exhs. "9" and "10").
Victoria Cardenas Navarro, defendant's sister, testified and corroborated that
it was plaintiff's family that attended to all the preparations and
arrangements for the church wedding of her sister with plaintiff, and that she
didn't know that the couple wed in civil rites some time prior to the church
wedding. She also stated that she and her parents were still civil with the
plaintiff inspite of the marital differences between plaintiff and defendant.
As adverse witness for the defendant, plaintiff testified that because of
irreconcilable differences with defendant and in order for them to live their
own lives, they agreed to divorce each other; that when he applied for and
obtained a divorce decree in the United States on June 14, 1983 (Exh. "13"),
it was with the knowledge and consent of defendant who in fact authorized a
certain Atty. Quisumbing to represent her (TSN, 12-7-2000, p. 21). During his
adverse testimony, plaintiff identified a recent certification dated July 25,
2000 (Exh. "EE") issued by the Local Civil Registrar of San Juan, that the
marriage license no. 2770792, the same marriage license appearing in the
marriage contract (Exh. "A"), is inexistent, thus appears to be fictitious. 6
In its Decision dated 25 January 2002, declaring the nullity of the marriage of the
parties, the trial court made the following justifications:
Thus, being one of the essential requisites for the validity of the marriage, the
lack or absence of a license renders the marriage void ab initio. It was shown
under the various certifications (Exhs. "I", "E", and "C") earlier issued by the
office of the Local Civil Registrar of the Municipality of San Juan, and the more
recent one issued on July 25, 2000 (Exh. "EE") that no marriage license no.
2770792 was ever issued by that office, hence, the marriage license no.
2770792 appearing on the marriage contracts executed on May 19, 1969
(Exh. "A") and on May 31, 1969 (Exh. "F") was fictitious. Such a certification

566

enjoys probative value under the rules on evidence, particularly Section 28,
Rule 132 of the Rules of Court, x x x.
xxxx
WHEREFORE, the Court hereby declares the civil marriage between Jaime O.
Sevilla and Carmelita N. Cardenas solemnized by Rev. Cirilo D. Gonzales at
the Manila City Hall on May 19, 1969 as well as their contract of marriage
solemnized under religious rites by Rev. Juan B. Velasco at the Holy Redeemer
Parish on May 31, 1969, NULL and VOID for lack of the requisite marriage
license. Let the marriage contract of the parties under Registry No. 601 (e-69)
of the registry book of the Local Civil Registry of Manila be cancelled.
Let copies of this Decision be duly recorded in the proper civil and property
registries in accordance with Article 52 of the Family Code. Likewise, let a
copy hereof be forwarded the Office of the Solicitor General for its record and
information.7
Carmelita filed an appeal with the Court of Appeals. In a Decision dated 20
December 2004, the Court of Appeals disagreed with the trial court and held:
In People v. De Guzman (G.R. No. 106025, February 9, 1994), the Supreme
Court explained that: "The presumption of regularity of official acts may be
rebutted by affirmative evidence of irregularity or failure to perform a
duty. The presumption, however, prevails until it is overcome by no less than
clear and convincing evidence to the contrary. Thus, unless the presumption
is rebutted, it becomes conclusive."
In this case, We note that a certain Perlita Mercader of the local civil
registry of San Juan testified that they"failed to locate the book wherein
marriage license no. 2770792 is registered," for the reason that "the
employee handling is already retired." With said testimony We cannot
therefore just presume that the marriage license specified in the parties'
marriage contract was not issued for in the end the failure of the office of the
local civil registrar of San Juan to produce a copy of the marriage license was
attributable not to the fact that no such marriage license was issued but
rather, because it "failed to locate the book wherein marriage license no.
2770792 is registered." Simply put, if the pertinent book were available for
scrutiny, there is a strong possibility that it would have contained an entry on
marriage license no. 2720792.
xxxx

567

Indeed, this Court is not prepared to annul the parties' marriage on the basis
of a mere perception of plaintiff that his union with defendant is defective
with respect to an essential requisite of a marriage contract, a perception
that ultimately was not substantiated with facts on record. 8
Jaime filed a Motion for Reconsideration dated 6 January 2005 which the Court of
Appeals denied in a Resolution dated 6 April 2005.
This denial gave rise to the present Petition filed by Jaime.
He raises the following issues for Resolution.
1. Whether or not a valid marriage license was issued in accordance with law
to the parties herein prior to the celebration of the marriages in question;
2. Whether or not the Court of Appeals correctly applied and relied on the
presumption of regularity of officials acts, particularly the issuance of a
marriage license, arising solely from the contents of the marriage contracts in
question which show on their face that a marriage license was purportedly
issued by the Local Civil Registry of San Juan, Metro Manila, and
3. Whether or not respondent could validly invoke/rely upon the presumption
of validity of a marriage arising from the admitted "fact of marriage." 9
At the core of this controversy is the determination of whether or not the
certifications from the Local Civil Registrar of San Juan stating that no Marriage
License No. 2770792 as appearing in the marriage contract of the parties was
issued, are sufficient to declare their marriage as null and void ab initio.
We agree with the Court of Appeals and rule in the negative.
Pertinent provisions of the Civil Code which was the law in force at the time of the
marriage of the parties are Articles 53,10 5811 and 80.12
Based on the foregoing provisions, a marriage license is an essential requisite for
the validity of marriage. The marriage between Carmelita and Jaime is of no
exception.
At first glance, this case can very well be easily dismissed as one involving a
marriage that is null and void on the ground of absence of a marriage license based
on the certifications issued by the Local Civil Registar of San Juan. As ruled by this
Court in the case of Cario v. Cario13:

568

[A]s certified by the Local Civil Registrar of San Juan, Metro Manila, their office
has no record of such marriage license. In Republic v. Court of Appeals, the
Court held that such a certification is adequate to prove the non-issuance of a
marriage license. Absent any circumstance of suspicion, as in the present
case, the certification issued by the local civil registrar enjoys probative
value, he being the officer charged under the law to keep a record of all date
relative to the issuance of a marriage license.
Such being the case, the presumed validity of the marriage of petitioner and
the deceased has been sufficiently overcome. It then became the burden of
petitioner to prove that their marriage is valid and that they secured the
required marriage license. Although she was declared in default before the
trial court, petitioner could have squarely met the issue and explained the
absence of a marriage license in her pleadings before the Court of Appeals
and this Court. But petitioner conveniently avoided the issue and chose to
refrain from pursuing an argument that will put her case in jeopardy. Hence,
the presumed validity of their marriage cannot stand.
It is beyond cavil, therefore, that the marriage between petitioner Susan
Nicdao and the deceased, having been solemnized without the necessary
marriage license, and not being one of the marriages exempt from the
marriage license requirement, is undoubtedly void ab initio.
The foregoing Decision giving probative value to the certifications issued by the
Local Civil Registrar should be read in line with the decision in the earlier case
of Republic v. Court of Appeals,14 where it was held that:
The above Rule authorized the custodian of documents to certify that
despite diligent search, a particular document does not exist in his
office or that a particular entry of a specified tenor was not to be
found in a register. As custodians of public documents, civil registrars are
public officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses,
including the names of the applicants, the date the marriage license was
issued and such other relevant data. (Emphasis supplied.)
Thus, the certification to be issued by the Local Civil Registrar must categorically
state that the document does not exist in his office or the particular entry could not
be found in the register despite diligent search. Such certification shall be sufficient
proof of lack or absence of record as stated in Section 28, Rule 132 of the Rules of
Court:
SEC. 28. Proof of lack of record. a written statement signed by an officer
having the custody of an official record or by his deputy that after diligent
569

search, no record or entry of a specified tenor is found to exist in the records

of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry.
We shall now proceed to scrutinize whether the certifications by the Local Civil
Registrar of San Juan in connection with Marriage License No. 2770792 complied
with the foregoing requirements and deserved to be accorded probative value.
The first Certification15 issued by the Local Civil Registrar of San Juan, Metro Manila,
was dated 11 March 1994. It reads:
TO WHOM IT MAY CONCERN:
No Marriage License Number 2770792 were (sic) ever issued by this Office.
With regards (sic) to Marriage License Number 2880792, 16 we exert all effort
but we cannot find the said number.
Hope and understand our loaded work cannot give you our full force locating
the above problem.
San Juan, Metro Manila
March 11, 1994
(SGD)RAFAEL
D.
ALISCAD,
Local Civil Registrar

JR.

The second certification17 was dated 20 September 1994 and provides:

TO WHOM IT MAY CONCERN:
This is to certify that no marriage license Number 2770792 were ever issued
by this Office with regards to Marriage License Number 2880792, we exert all
effort but we cannot find the said number.
Hope and understand our loaded work cannot give you our full force locating
the above problem.
San Juan, Metro Manila
September 20, 1994
(SGD)RAFAEL
570

D.

ALISCAD,

JR.

Local Civil Registrar

The third Certification,18 issued on 25 July 2000, states:
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office, no Marriage
License Application was filed and no Marriage License No. 2770792 allegedly
dated May 19, 1969 was issued by this Office to MR. JAIME O. SEVILLA and
MS. CARMELITA CARDENAS-SEVILLA.
This is to further certify that the said application and license do not exist in
our Local Civil Registry Index and, therefore, appear to be fictitious.
This certification is being issued upon the request of the interested party for
whatever legal intent it may serve.
San Juan, Metro Manila
July 25, 2000
(SGD)RAFAEL
D.
ALISCAD,
Local Civil Registrar

JR.

Note that the first two certifications bear the statement that "hope and understand
our loaded work cannot give you our full force locating the above problem." It could
be easily implied from the said statement that the Office of the Local Civil Registrar
could not exert its best efforts to locate and determine the existence of Marriage
License No. 2770792 due to its "loaded work." Likewise, both certifications failed to
state with absolute certainty whether or not such license was issued.
This implication is confirmed in the testimony of the representative from the Office
of the Local Civil Registrar of San Juan, Ms. Perlita Mercader, who stated that they
cannot locate the logbook due to the fact that the person in charge of the said
logbook had already retired. Further, the testimony of the said person was not
presented in evidence. It does not appear on record that the former custodian of the
logbook was deceased or missing, or that his testimony could not be secured. This
belies the claim that all efforts to locate the logbook or prove the material contents
therein, had been exerted.
As testified to by Perlita Mercader:

571

Q Under the subpoena duces tecum, you were required to bring to this Court
among other things the register of application of/or (sic) for marriage licenses
received by the Office of the :Local Civil Registrar of San Juan, Province of
Rizal, from January 19, 1969 to May 1969. Did you bring with you those
records?
A I brought may 19, 1969, sir.
Q Is that the book requested of you under no. 3 of the request for subpoena?
A Meron pang January. I forgot, January . . .
Q Did you bring that with you?
A No, sir.
Q Why not?
A I cannot locate the book. This is the only book.
Q Will you please state if this is the register of marriage of marriage
applications that your office maintains as required by the manual of the office
of the Local Civil Registrar?
COURT
May I see that book and the portion marked by the witness.
xxxx
COURT
Why don't you ask her direct question whether marriage license
2880792 is the number issued by their office while with respect to
license no. 2770792 the office of the Local Civil Registrar of San Juan is
very definite about it it was never issued. Then ask him how about no.
2880792 if the same was ever issued by their office. Did you ask this
2887092, but you could not find the record? But for the moment you
cannot locate the books? Which is which now, was this issued or not?
A The employee handling it is already retired, sir.19
Given the documentary and testimonial evidence to the effect that utmost efforts
were not exerted to locate the logbook where Marriage License No. 2770792 may
572

have been entered, the presumption of regularity of performance of official function

by the Local Civil Registrar in issuing the certifications, is effectively rebutted.
According to Section 3(m),20 Rule 131 of the Rules of Court, the presumption that
official duty has been regularly performed is among the disputable presumptions.
In one case, it was held:
A disputable presumption has been defined as a species of evidence that
may be accepted and acted on where there is no other evidence to uphold
the contention for which it stands, or one which may be overcome by other
evidence. One such disputable/rebuttable presumption is that an official act
or duty has been regularly performed. x x x. 21
The presumption of regularity of official acts may be rebutted by affirmative
evidence of irregularity or failure to perform a duty. 22
The presumption of regularity of performance of official duty is disputable and can
be overcome by other evidence as in the case at bar where the presumption has
been effectively defeated by the tenor of the first and second certifications.
Moreover, the absence of the logbook is not conclusive proof of non-issuance of
Marriage License No. 2770792. It can also mean, as we believed true in the case at
bar, that the logbook just cannot be found. In the absence of showing of diligent
efforts to search for the said logbook, we cannot easily accept that absence of the
same also means non-existence or falsity of entries therein.
Finally, the rule is settled that every intendment of the law or fact leans toward the
validity of the marriage, the indissolubility of the marriage bonds. 23 The courts look
upon this presumption with great favor. It is not to be lightly repelled; on the
contrary, the presumption is of great weight. 24
The Court is mindful of the policy of the 1987 Constitution to protect and strengthen
the family as the basic autonomous social institution and marriage as the
foundation of the family. Thus, any doubt should be resolved in favor of the validity
of the marriage.25
The parties have comported themselves as husband and wife and lived together for
several years producing two offsprings,26 now adults themselves. It took Jaime
several years before he filed the petition for declaration of nullity. Admittedly, he
married another individual sometime in 1991. 27 We are not ready to reward
petitioner by declaring the nullity of his marriage and give him his freedom and in
the process allow him to profit from his own deceit and perfidy. 28

573

Our Constitution is committed to the policy of strengthening the family as a basic

social institution. Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the State is vitally interested. The State
can find no stronger anchor than on good, solid and happy families. The break-up of
families weakens our social and moral fabric; hence, their preservation is not the
concern of the family members alone.29
"The basis of human society throughout the civilized world is x x x marriage.
Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent matrimony are presumed, in the
absence of any counterpresumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of society, and if the parties
were not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law. A presumption established by our Code of
Civil Procedure is `that a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage.' Semper praesumitur pro
matrimonio Always presume marriage."30
This jurisprudential attitude towards marriage is based on the prima
facie presumption that a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage. 31
By our failure to come to the succor of Jaime, we are not trifling with his emotion or
deepest
sentiments.
As
we
have
said
in Carating-Siayngco
v.
32
Siayngco, regrettably, there are situations like this one, where neither law nor
society can provide the specific answers to every individual problem.
WHEREFORE, premises considered, the instant Petition is DENIED. The Decision of
the Court of Appeals dated 20 December 2004 and the Resolution dated 6 April
2005 are AFFIRMED. Costs against the petitioner.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.
G.R. No. 183896

January 30, 2013

SYED
AZHAR
vs.
GLORIA GOO ABBAS, Respondent.

ABBAS, Petitioner,

DECISION
574

VELASCO, JR., J.:

This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, questioning the Decision1 of the Court of Appeals (CA) dated March 11,
2008 in CA-G.R. CV No. 86760, which reversed the Decision 2 in Civil Case No. 030382-CFM dated October 5, 2005 of the Regional Trial Court (RTC), Branch 109,
Pasay City, and the CA Resolution dated July 24, 2008, denying petitioner's Motion
for Reconsideration of the CA Decision.
The present case stems from a petition filed by petitioner Syed Azhar Abbas (Syed)
for the declaration of nullity of his marriage to Gloria Goo-Abbas (Gloria) with the
RTC of Pasay City, docketed as Civil Case No. 03-0382-CFM, and raffled to RTC
Branch 109. Syed alleged the absence of a marriage license, as provided for in
Article 4, Chapter I, Title 1 of Executive Order No. 269, otherwise known as the
Family Code of the Philippines, as a ground for the annulment of his marriage to
Gloria.
In the Marriage Contract3 of Gloria and Syed, it is stated that Marriage License No.
9969967, issued at Carmona, Cavite on January 8, 1993, was presented to the
solemnizing officer. It is this information that is crucial to the resolution of this case.
At the trial court, Syed, a Pakistani citizen, testified that he met Gloria, a Filipino
citizen, in Taiwan in 1991, and they were married on August 9, 1992 at the Taipei
Mosque in Taiwan.4 He arrived in the Philippines in December of 1992. On January 9,
1993, at around 5 oclock in the afternoon, he was at his mother-in-laws residence,
located at 2676 F. Muoz St., Malate, Manila, when his mother-in-law arrived with
two men. He testified that he was told that he was going to undergo some
ceremony, one of the requirements for his stay in the Philippines, but was not told
of the nature of said ceremony. During the ceremony he and Gloria signed a
document. He claimed that he did not know that the ceremony was a marriage until
Gloria told him later. He further testified that he did not go to Carmona, Cavite to
apply for a marriage license, and that he had never resided in that area. In July of
2003, he went to the Office of the Civil Registrar of Carmona, Cavite, to check on
their marriage license, and was asked to show a copy of their marriage contract
wherein the marriage license number could be found. 5 The Municipal Civil Registrar,
Leodivinia C. Encarnacion, issued a certification on July 11, 2003 to the effect that
the marriage license number appearing in the marriage contract he submitted,
Marriage License No. 9969967, was the number of another marriage license issued
to a certain Arlindo Getalado and Myra Mabilangan. 6 Said certification reads as
follows:
11 July 2003
TO WHOM IT MAY CONCERN:
575

This is to certify as per Registry Records of Marriage License filed in this office,
Marriage License No. 9969967 was issued in favor of MR. ARLINDO GETALADO and
MISS MYRA MABILANGAN on January 19, 1993.
No Marriage License appear [sic] to have been issued to MR. SYED AZHAR ABBAS
and MISS GLORIA F. GOO on January 8, 1993.
This certification is being issued to Mr. Syed Azhar Abbas for whatever legal purpose
or intents it may serve.7
On cross-examination, Syed testified that Gloria had filed bigamy cases against him
in 2001 and 2002, and that he had gone to the Municipal Civil Registrar of Carmona,
Cavite to get certification on whether or not there was a marriage license on advice
of his counsel.8
Petitioner also presented Norberto Bagsic (Bagsic), an employee of the Municipal
Civil Registrar of Carmona, Cavite. Bagsic appeared under a letter of authority from
the Municipal Civil Registrar of Carmona, Cavite, and brought documents pertaining
to Marriage License No. 9969967, which was issued to Arlindo Getalado and Myra
Mabilangan on January 20, 1993.9
Bagsic testified that their office issues serial numbers for marriage licenses and that
the numbers are issued chronologically.10 He testified that the certification dated
July 11, 2003, was issued and signed by Leodivina Encarnacion, Registrar of the
Municipality of Carmona, Cavite, certifying that Marriage License No. 9969967 was
issued for Arlindo Getalado and Myra Mabilangan on January 19, 1993, and that
their office had not issued any other license of the same serial number, namely
9969967, to any other person.11
For her part, Gloria testified on her own behalf, and presented Reverend Mario Dauz,
Atty. Lorenzo Sanchez, Felicitas Goo and May Ann Ceriola.
Reverend Mario Dauz (Rev. Dauz) testified that he was a minister of the Gospel and
a barangay captain, and that he is authorized to solemnize marriages within the
Philippines.12 He testified that he solemnized the marriage of Syed Azhar Abbas and
Gloria Goo at the residence of the bride on January 9, 1993. 13 He stated that the
witnesses were Atty. Lorenzo Sanchez (Atty. Sanchez) and Mary Ann Ceriola. 14 He
testified that he had been solemnizing marriages since 1982, and that he is familiar
with the requirements.15 Rev. Dauz further testified that Atty. Sanchez gave him the
marriage license the day before the actual wedding, and that the marriage contract
was prepared by his secretary. 16 After the solemnization of the marriage, it was
registered with the Local Civil Registrar of Manila, and Rev. Dauz submitted the
marriage contract and copy of the marriage license with that office. 17

576

Atty. Sanchez testified that he was asked to be the sponsor of the wedding of Syed
Abbas and Gloria Goo by the mother of the bride, Felicitas Goo. 18 He testified that he
requested a certain Qualin to secure the marriage license for the couple, and that
this Qualin secured the license and gave the same to him on January 8, 1993. 19He
further testified that he did not know where the marriage license was obtained. 20 He
attended the wedding ceremony on January 9, 1993, signed the marriage contract
as sponsor, and witnessed the signing of the marriage contract by the couple, the
solemnizing officer and the other witness, Mary Ann Ceriola. 21
Felicitas Goo testified that Gloria Goo is her daughter and Syed Azhar Abbas is her
son-in-law, and that she was present at the wedding ceremony held on January 9,
1993 at her house.22 She testified that she sought the help of Atty. Sanchez at the
Manila City Hall in securing the marriage license, and that a week before the
marriage was to take place, a male person went to their house with the application
for marriage license.23 Three days later, the same person went back to their house,
showed her the marriage license before returning it to Atty. Sanchez who then gave
it to Rev. Dauz, the solemnizing officer. 24 She further testified that she did not read
all of the contents of the marriage license, and that she was told that the marriage
license was obtained from Carmona. 25 She also testified that a bigamy case had
been filed by Gloria against Syed at the Regional Trial Court of Manila, evidenced by
an information for Bigamy dated January 10, 2003, pending before Branch 47 of the
Regional Trial Court of Manila.26
As to Mary Ann Ceriolas testimony, the counsels for both parties stipulated that: (a)
she is one of the sponsors at the wedding of Gloria Goo and Syed Abbas on January
9, 1993; (b) she was seen in the wedding photos and she could identify all the
persons depicted in said photos; and (c) her testimony corroborates that of Felicitas
Goo and Atty. Sanchez.
The respondent, Gloria, testified that Syed is her husband, and presented the
marriage contract bearing their signatures as proof. 27 She and her mother sought
the help of Atty. Sanchez in securing a marriage license, and asked him to be one of
the sponsors. A certain Qualin went to their house and said that he will get the
marriage license for them, and after several days returned with an application for
marriage license for them to sign, which she and Syed did. After Qualin returned
with the marriage license, they gave the license to Atty. Sanchez who gave it to Rev.
Dauz, the solemnizing officer. Gloria testified that she and Syed were married on
January 9, 1993 at their residence.28
Gloria further testified that she has a daughter with Syed, born on June 15, 1993. 29
Gloria also testified that she filed a bigamy case against Syed, who had married a
certain Maria Corazon Buenaventura during the existence of the previous marriage,

577

and that the case was docketed as Criminal Case No. 02A-03408, with the RTC of
Manila.30
Gloria stated that she and Syed had already been married on August 9, 1992 in
Taiwan, but that she did not know if said marriage had been celebrated under
Muslim rites, because the one who celebrated their marriage was Chinese, and
those around them at the time were Chinese. 31
The Ruling of the RTC
In its October 5, 2005 Decision, the Pasay City RTC held that no valid marriage
license was issued by the Municipal Civil Registrar of Carmona, Cavite in favor of
Gloria and Syed, as Marriage License No. 9969967 had been issued to Arlindo
Getalado and Myra Mabilangan, and the Municipal Civil Registrar of Carmona, Cavite
had certified that no marriage license had been issued for Gloria and Syed. 32 It also
took into account the fact that neither party was a resident of Carmona, Cavite, the
place where Marriage License No. 9969967 was issued, in violation of Article 9 of
the Family Code.33 As the marriage was not one of those exempt from the license
requirement, and that the lack of a valid marriage license is an absence of a formal
requisite, the marriage of Gloria and Syed on January 9, 1993 was void ab initio.
The dispositive portion of the Decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the petitioner, and against
the respondent declaring as follows:
1. The marriage on January 9, 1993 between petitioner Syed Azhar Abbas and
respondent Gloria Goo-Abbas is hereby annulled;
2. Terminating the community of property relations between the petitioner
and the respondent even if no property was acquired during their
cohabitation by reason of the nullity of the marriage of the parties.
3. The Local Civil Registrar of Manila and the Civil Registrar General, National
Statistics Office, are hereby ordered to cancel from their respective civil
registries the marriage contracted by petitioner Syed Azhar Abbas and
respondent Gloria Goo-Abbas on January 9, 1993 in Manila.
SO ORDERED.34
Gloria filed a Motion for Reconsideration dated November 7, 2005, but the RTC
denied the same, prompting her to appeal the questioned decision to the Court of
Appeals.

578

The Ruling of the CA

In her appeal to the CA, Gloria submitted the following assignment of errors:
I
THE LOWER COURT ERRED IN DECLARING THE MARRIAGE BETWEEN THE
PETITIONER AND RESPONDENT AS NULL AND VOID DUE TO THE ABSENCE OF
A MARRIAGE LICENSE DESPITE EVIDENCE CLEARLY SHOWING THAT THERE
WAS ONE.
II
THE LOWER COURT ERRED IN NOT CONSIDERING, AS A REQUISITE OF A VALID
MARRIAGE, THE OVERWHELMING EVIDENCE SHOWING THAT A MARRIAGE
CEREMONY TOOK PLACE WITH THE APPEARANCE OF THE CONTRACTING
PARTIES BEFORE THE SOLEMNIZING OFFICER AND THEIR PERSONAL
DECLARATION THAT THEY TOOK EACH OTHER AS HUSBAND AND WIFE IN THE
PRESENCE OF NOT LESS THAN TWO WITNESSES OF LEGAL AGE.
III
THE LOWER COURT ERRED IN NOT RULING ON THE ISSUE OF ESTOPPEL BY
LACHES ON THE PART OF THE PETITIONER, AN ISSUE TIMELY RAISED IN THE
COURT BELOW.35
The CA gave credence to Glorias arguments, and granted her appeal. It held that
the certification of the Municipal Civil Registrar failed to categorically state that a
diligent search for the marriage license of Gloria and Syed was conducted, and thus
held that said certification could not be accorded probative value. 36 The CA ruled
that there was sufficient testimonial and documentary evidence that Gloria and
Syed had been validly married and that there was compliance with all the requisites
laid down by law.37
It gave weight to the fact that Syed had admitted to having signed the marriage
contract. The CA also considered that the parties had comported themselves as
husband and wife, and that Syed only instituted his petition after Gloria had filed a
case against him for bigamy.38
The dispositive portion of the CA Decision reads as follows:
WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated 05
October 2005 and Order dated 27 January 2006 of the Regional Trial Court of Pasay
City, Branch 109, in Civil Case No. 03-0382-CFM are REVERSED and SET ASIDE and
579

the Petition for Declaration of Nullity of Marriage is DISMISSED. The marriage

between Shed [sic] Azhar Abbas and Gloria Goo Abbas contracted on 09 January
1993 remains valid and subsisting. No costs.
SO ORDERED.39
Syed then filed a Motion for Reconsideration dated April 1, 2008 40 but the same was
denied by the CA in a Resolution dated July 24, 2008. 41
Hence, this petition.
Grounds in Support of Petition
I
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW
IN CITING REPUBLIC VS. COURT OF APPEALS AS THE SAME IS DIAMETRICALLY
INCONSISTENT AND CONTRARY TO THE COURTS OWN FINDINGS AND
CONCLUSIONS IN THIS CASE.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REVERSING AND
SETTING ASIDE, WITHOUT ANY FACTUAL AND LEGAL BASIS, THE DECISION OF
THE REGIONAL TRIAL COURT GRANTING THE PETITION FOR DECLARATION OF
NULLITY OF MARRIAGE.42
The Ruling of this Court
The petition is meritorious.
As the marriage of Gloria and Syed was solemnized on January 9, 1993, Executive
Order No. 209, or the Family Code of the Philippines, is the applicable law. The
pertinent provisions that would apply to this particular case are Articles 3, 4 and
35(3), which read as follows:
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of
this Title; and

580

(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.
Art. 4. The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall render the marriage voidable as
provided in Article 45.
An irregularity in the formal requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.
Art. 35. The following marriages shall be void from the beginning:
xxxx
(3) Those solemnized without a license, except those covered by the preceding
Chapter.
There is no issue with the essential requisites under Art. 2 of the Family Code, nor
with the formal requisites of the authority of the solemnizing officer and the conduct
of the marriage ceremony. Nor is the marriage one that is exempt from the
requirement of a valid marriage license under Chapter 2, Title I of the Family Code.
The resolution of this case, thus, hinges on whether or not a valid marriage license
had been issued for the couple. The RTC held that no valid marriage license had
been issued. The CA held that there was a valid marriage license.
We find the RTC to be correct in this instance.
Respondent Gloria failed to present the actual marriage license, or a copy thereof,
and relied on the marriage contract as well as the testimonies of her witnesses to
prove the existence of said license. To prove that no such license was issued, Syed
turned to the office of the Municipal Civil Registrar of Carmona, Cavite which had
allegedly issued said license. It was there that he requested certification that no
such license was issued. In the case of Republic v. Court of Appeals 43 such
certification was allowed, as permitted by Sec. 29, Rule 132 of the Rules of Court,
which reads:
SEC. 28. Proof of lack of record. A written statement signed by an officer having
the custody of an official record or by his deputy that after diligent search, no record
or entry of a specified tenor is found to exist in the records of his office,
581

accompanied by a certificate as above provided, is admissible as evidence that the

records of his office contain no such record or entry.
In the case of Republic, in allowing the certification of the Civil Registrar of Pasig to
prove the non-issuance of a marriage license, the Court held:
The above Rule authorized the custodian of the documents to certify that despite
diligent search, a particular document does not exist in his office or that a particular
entry of a specified tenor was not to be found in a register. As custodians of public
documents, civil registrars are public officers charged with the duty, inter alia, of
maintaining a register book where they are required to enter all applications for
marriage licenses, including the names of the applicants, the date the marriage
license was issued and such other relevant data. 44
The Court held in that case that the certification issued by the civil registrar enjoyed
probative value, as his duty was to maintain records of data relative to the issuance
of a marriage license.
The Municipal Civil Registrar of Carmona, Cavite, where the marriage license of
Gloria and Syed was allegedly issued, issued a certification to the effect that no
such marriage license for Gloria and Syed was issued, and that the serial number of
the marriage license pertained to another couple, Arlindo Getalado and Myra
Mabilangan. A certified machine copy of Marriage License No. 9969967 was
presented, which was issued in Carmona, Cavite, and indeed, the names of Gloria
and Syed do not appear in the document.
In reversing the RTC, the CA focused on the wording of the certification, stating that
it did not comply with Section 28, Rule 132 of the Rules of Court.
The CA deduced that from the absence of the words "despite diligent search" in the
certification, and since the certification used stated that no marriage license
appears to have been issued, no diligent search had been conducted and thus the
certification could not be given probative value.
To justify that deduction, the CA cited the case of Republic v. Court of Appeals. 45 It is
worth noting that in that particular case, the Court, in sustaining the finding of the
lower court that a marriage license was lacking, relied on the Certification issued by
the Civil Registrar of Pasig, which merely stated that the alleged marriage license
could not be located as the same did not appear in their records. Nowhere in the
Certification was it categorically stated that the officer involved conducted a diligent
search, nor is a categorical declaration absolutely necessary for Sec. 28, Rule 132 of
the Rules of Court to apply.

582

Under Sec. 3(m), Rule 131 of the Rules of Court, it is a disputable presumption that
an official duty has been regularly performed, absent contradiction or other
evidence to the contrary. We held, "The presumption of regularity of official acts
may be rebutted by affirmative evidence of irregularity or failure to perform a
duty."46 No such affirmative evidence was shown that the Municipal Civil Registrar
was lax in performing her duty of checking the records of their office, thus the
presumption must stand. In fact, proof does exist of a diligent search having been
conducted, as Marriage License No. 996967 was indeed located and submitted to
the court. The fact that the names in said license do not correspond to those of
Gloria and Syed does not overturn the presumption that the registrar conducted a
diligent search of the records of her office.
It is telling that Gloria failed to present their marriage license or a copy thereof to
the court. She failed to explain why the marriage license was secured in Carmona,
Cavite, a location where, admittedly, neither party resided. She took no pains to
apply for the license, so she is not the best witness to testify to the validity and
existence of said license. Neither could the other witnesses she presented prove the
existence of the marriage license, as none of them applied for the license in
Carmona, Cavite. Her mother, Felicitas Goo, could not even testify as to the
contents of the license, having admitted to not reading all of its contents. Atty.
Sanchez, one of the sponsors, whom Gloria and Felicitas Goo approached for
assistance in securing the license, admitted not knowing where the license came
from. The task of applying for the license was delegated to a certain Qualin, who
could have testified as to how the license was secured and thus impeached the
certification of the Municipal Civil Registrar as well as the testimony of her
representative. As Gloria failed to present this Qualin, the certification of the
Municipal Civil Registrar still enjoys probative value.
It is also noted that the solemnizing officer testified that the marriage contract and
a copy of the marriage license were submitted to the Local Civil Registrar of Manila.
Thus, a copy of the marriage license could have simply been secured from that
office and submitted to the court. However, Gloria inexplicably failed to do so,
further weakening her claim that there was a valid marriage license issued for her
and Syed.
In the case of Cario v. Cario, 47 following the case of Republic, 48 it was held that the
certification of the Local Civil Registrar that their office had no record of a marriage
license was adequate to prove the non-issuance of said license. The case of Cario
further held that the presumed validity of the marriage of the parties had been
overcome, and that it became the burden of the party alleging a valid marriage to
prove that the marriage was valid, and that the required marriage license had been
secured.49 Gloria has failed to discharge that burden, and the only conclusion that
can be reached is that no valid marriage license was issued. It cannot be said that
there was a simple irregularity in the marriage license that would not affect the
583

validity of the marriage, as no license was presented by the respondent. No

marriage license was proven to have been issued to Gloria and Syed, based on the
certification of the Municipal Civil Registrar of Carmona, Cavite and Glorias failure
to produce a copy of the alleged marriage license.
To bolster its ruling, the CA cited other evidence to support its conclusion that Gloria
and Syed were validly married. To quote the CA:
Moreover, the record is replete with evidence, testimonial and documentary, that
appellant and appellee have been validly married and there was compliance with all
the requisites laid down by law. Both parties are legally capacitated to marry. A
certificate of legal capacity was even issued by the Embassy of Pakistan in favor of
appellee. The parties herein gave their consent freely. Appellee admitted that the
signature above his name in the marriage contract was his. Several pictures were
presented showing appellant and appellee, before the solemnizing officer, the
witnesses and other members of appellants family, taken during the marriage
ceremony, as well as in the restaurant where the lunch was held after the marriage
ceremony. Most telling of all is Exhibit "5-C" which shows appellee signing the
Marriage Contract.
xxxx
The parties have comported themselves as husband and wife and has [sic] one
offspring, Aliea Fatima Goo Abbas, who was born on 15 June 1993. It took appellee
more than ten (10) years before he filed on 01 August 2003 his Petition for
Declaration of Nullity of Marriage under Article 4 of the Family Code. We take
serious note that said Petition appears to have been instituted by him only after an
Information for Bigamy (Exhibit "1") dated 10 January 2003 was filed against him for
contracting a second or subsequent marriage with one Ma. Corazon (Maryam) T.
Buenaventura. We are not ready to reward (appellee) by declaring the nullity of his
marriage and give him his freedom and in the process allow him to profit from his
own deceit and perfidy.50
All the evidence cited by the CA to show that a wedding ceremony was conducted
and a marriage contract was signed does not operate to cure the absence of a valid
marriage license. Article 4 of the Family Code is clear when it says, "The absence of
any of the essential or formal requisites shall render the marriage void ab initio,
except as stated in Article 35(2)." Article 35(3) of the Family Code also provides that
a marriage solemnized without a license is void from the beginning, except those
exempt from the license requirement under Articles 27 to 34, Chapter 2, Title I of
the same Code.51 Again, this marriage cannot be characterized as among the
exemptions, and thus, having been solemnized without a marriage license, is void
ab initio.1wphi1

584

As to the motive of Syed in seeking to annul his marriage to Gloria, it may well be
that his motives are less than pure, that he seeks to evade a bigamy suit. Be that as
it may, the same does not make up for the failure of the respondent to prove that
they had a valid marriage license, given the weight of evidence presented by
petitioner. The lack of a valid marriage license cannot be attributed to him, as it was
Gloria who took steps to procure the same. The law must be applied. As the
marriage license, a formal requisite, is clearly absent, the marriage of Gloria and
Syed is void ab initio.
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed
Decision dated March 11, 2008 and Resolution dated July 24, 2008 of the Court of
Appeals in CA-G.R. CV No. 86760 are hereby REVERSED and SET ASIDE. The
Decision of the Regional Trial Court, Branch 109, Pasay City dated October 5, 2005
in Civil Case No. 03-0382-CFM annulling the marriage of petitioner with respondent
on January 9, 1993 is hereby REINSTATED.
No costs.
SO ORDERED.
G.R. No. 132529. February 2, 2001
SUSAN
NICDAO
vs.
SUSAN YEE CARIO, respondent.

CARIO, petitioner,

DECISION
YNARES-SANTIAGO, J.:
The issue for resolution in the case at bar hinges on the validity of the two
marriages contracted by the deceased SPO4 Santiago S. Cario, whose death
benefits is now the subject of the controversy between the two Susans whom he
married. 1wphi1.nt
Before this Court is a petition for review on certiorari seeking to set aside the
decision 1 of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in
toto the decision 2 of the Regional Trial Court of Quezon City, Branch 87, in Civil Case
No. Q-93-18632.
During the lifetime of the late SPO4 Santiago S. Cario, he contracted two
marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cario
(hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely,
Sahlee and Sandee Cario; and the second was on November 10, 1992, with
585

respondent Susan Yee Cario (hereafter referred to as Susan Yee), with whom he
had no children in their almost ten year cohabitation starting way back in 1982.
In 1988, SPO4 Santiago S. Cario became ill and bedridden due to diabetes
complicated by pulmonary tuberculosis. He passed away on November 23, 1992,
under the care of Susan Yee, who spent for his medical and burial expenses. Both
petitioner and respondent filed claims for monetary benefits and financial
assistance pertaining to the deceased from various government agencies. Petitioner
Susan Nicdao was able to collect a total of P146,000.00 from MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig, 3 while respondent Susan Yee received a
total of P21,000.00 from GSIS Life, Burial (GSIS) and burial (SSS). 4
On December 14, 1993, respondent Susan Yee filed the instant case for collection of
sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner be
ordered to return to her at least one-half of the one hundred forty-six thousand
pesos (P146,000.00) collectively denominated as death benefits which she
(petitioner) received from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.
Despite service of summons, petitioner failed to file her answer, prompting the trial
court to declare her in default.
Respondent Susan Yee admitted that her marriage to the deceased took place
during the subsistence of, and without first obtaining a judicial declaration of nullity
of, the marriage between petitioner and the deceased. She, however, claimed that
she had no knowledge of the previous marriage and that she became aware of it
only at the funeral of the deceased, where she met petitioner who introduced
herself as the wife of the deceased. To bolster her action for collection of sum of
money, respondent contended that the marriage of petitioner and the deceased is
void ab initio because the same was solemnized without the required marriage
license. In support thereof, respondent presented: 1) the marriage certificate of the
deceased and the petitioner which bears no marriage license number; 5 and 2) a
certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro
Manila, which reads
This is to certify that this Office has no record of marriage license of the spouses
SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on
June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of
Marriage License number from the records of this archives.
This certification is issued upon the request of Mrs. Susan Yee Cario for whatever
legal purpose it may serve. 6
On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding
as follows:

586

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of
P73,000.00, half of the amount which was paid to her in the form of death benefits
arising from the death of SPO4 Santiago S. Cario, plus attorneys fees in the
amount of P5,000.00, and costs of suit.
IT IS SO ORDERED. 7
On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the
decision of the trial court. Hence, the instant petition, contending that:
I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR.
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN
THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF
THE FAMILY CODE.
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE
CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED
AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void. Meaning, where the absolute nullity of a
previous marriage is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law, for said projected marriage to be free
from legal infirmity, is a final judgment declaring the previous marriage
void. 9 However, for purposes other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. For other purposes, such as but not limited
to the determination of heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for that matter, the court
may pass upon the validity of marriage even after the death of the parties thereto,
and even in a suit not directly instituted to question the validity of said marriage, so
long as it is essential to the determination of the case. 10 In such instances, evidence
must be adduced, testimonial or documentary, to prove the existence of grounds
rendering such a previous marriage an absolute nullity. These need not be limited

587

solely to an earlier final judgment of a court declaring such previous marriage

void. 11
It is clear therefore that the Court is clothed with sufficient authority to pass upon
the validity of the two marriages in this case, as the same is essential to the
determination of who is rightfully entitled to the subject death benefits of the
deceased.
Under the Civil Code, which was the law in force when the marriage of petitioner
Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is
a requisite of marriage, 12 and the absence thereof, subject to certain
exceptions, 13 renders the marriage void ab initio. 14
In the case at bar, there is no question that the marriage of petitioner and the
deceased does not fall within the marriages exempt from the license requirement. A
marriage license, therefore, was indispensable to the validity of their marriage. This
notwithstanding, the records reveal that the marriage contract of petitioner and the
deceased bears no marriage license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has no record of such marriage
license. In Republic v. Court of Appeals, 15 the Court held that such a certification is
adequate to prove the non-issuance of a marriage license. Absent any circumstance
of suspicion, as in the present case, the certification issued by the local civil
registrar enjoys probative value, he being the officer charged under the law to keep
a record of all data relative to the issuance of a marriage license.
Such being the case, the presumed validity of the marriage of petitioner and the
deceased has been sufficiently overcome. It then became the burden of petitioner
to prove that their marriage is valid and that they secured the required marriage
license. Although she was declared in default before the trial court, petitioner could
have squarely met the issue and explained the absence of a marriage license in her
pleadings before the Court of Appeals and this Court. But petitioner conveniently
avoided the issue and chose to refrain from pursuing an argument that will put her
case in jeopardy. Hence, the presumed validity of their marriage cannot stand.
It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and
the deceased, having been solemnized without the necessary marriage license, and
not being one of the marriages exempt from the marriage license requirement, is
undoubtedly void ab initio.
It does not follow from the foregoing disquisition, however, that since the marriage
of petitioner and the deceased is declared void ab initio, the death benefits under
scrutiny would now be awarded to respondent Susan Yee. To reiterate, under Article
40 of the Family Code, for purposes of remarriage, there must first be a prior judicial

588

declaration of the nullity of a previous marriage, though void, before a party can
enter into a second marriage, otherwise, the second marriage would also be void.
Accordingly, the declaration in the instant case of nullity of the previous marriage of
the deceased and petitioner Susan Nicdao does not validate the second marriage of
the deceased with respondent Susan Yee. The fact remains that their marriage was
solemnized without first obtaining a judicial decree declaring the marriage of
petitioner Susan Nicdao and the deceased void. Hence, the marriage of respondent
Susan Yee and the deceased is, likewise, void ab initio.
One of the effects of the declaration of nullity of marriage is the separation of the
property of the spouses according to the applicable property regime. 16 Considering
that the two marriages are void ab initio, the applicable property regime would not
be absolute community or conjugal partnership of property, but rather, be governed
by the provisions of Articles 147 and 148 of the Family Code on Property Regime of
Unions Without Marriage.
Under Article 148 of the Family Code, which refers to the property regime of
bigamous marriages, adulterous relationships, relationships in a state of concubine,
relationships where both man and woman are married to other persons, multiple
alliances of the same married man, 17 ... [O]nly the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions ...
In this property regime, the properties acquired by the parties through their actual
joint contribution shall belong to the co-ownership. Wages and salaries earned by
each party belong to him or her exclusively. Then too, contributions in the form of
care of the home, children and household, or spiritual or moral inspiration, are
excluded in this regime. 18
Considering that the marriage of respondent Susan Yee and the deceased is a
bigamous marriage, having been solemnized during the subsistence of a previous
marriage then presumed to be valid (between petitioner and the deceased), the
application of Article 148 is therefore in order.
The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.],
NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations,
incentives and benefits from governmental agencies earned by the deceased as a
police officer. Unless respondent Susan Yee presents proof to the contrary, it could
not be said that she contributed money, property or industry in the acquisition of
these monetary benefits. Hence, they are not owned in common by respondent and
the deceased, but belong to the deceased alone and respondent has no right
589

whatsoever to claim the same. By intestate succession, the said death benefits of
the deceased shall pass to his legal heirs. And, respondent, not being the legal wife
of the deceased is not one of them.
As to the property regime of petitioner Susan Nicdao and the deceased, Article 147
of the Family Code governs. This article applies to unions of parties who are legally
capacitated and not barred by any impediment to contract marriage, but whose
marriage is nonetheless void for other reasons, like the absence of a marriage
license. Article 147 of the Family Code reads Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be owned by them in equal
shares and the property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the formers
efforts consisted in the care and maintenance of the family and of the household.
xxx
When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation.
In contrast to Article 148, under the foregoing article, wages and salaries earned by
either party during the cohabitation shall be owned by the parties in equal shares
and will be divided equally between them, even if only one party earned the wages
and the other did not contribute thereto. 19 Conformably, even if the disputed death
benefits were earned by the deceased alone as a government employee, Article
147 creates a co-ownership in respect thereto, entitling the petitioner to share onehalf thereof. As there is no allegation of bad faith in the present case, both parties of
the first marriage are presumed to be in good faith. Thus, one-half of the subject
death benefits under scrutiny shall go to the petitioner as her share in the
property regime, and the other half pertaining to the deceased shall pass by,
intestate succession, to his legal heirs, namely, his children with Susan Nicdao.
590

In affirming the decision of the trial court, the Court of Appeals relied on the case
of Vda. de Consuegra v. Government Service Insurance System, 20 where the Court
awarded one-half of the retirement benefits of the deceased to the first wife and the
other half, to the second wife, holding that:
... [S]ince the defendants first marriage has not been dissolved or declared void
the conjugal partnership established by that marriage has not ceased. Nor has the
first wife lost or relinquished her status as putative heir of her husband under the
new Civil Code, entitled to share in his estate upon his death should she survive
him. Consequently, whether as conjugal partner in a still subsisting marriage or as
such putative heir she has an interest in the husbands share in the property here in
dispute.... And with respect to the right of the second wife, this Court observed
that although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial
declaration of such nullity. And inasmuch as the conjugal partnership formed by the
second marriage was dissolved before judicial declaration of its nullity, [t]he only
just and equitable solution in this case would be to recognize the right of the second
wife to her share of one-half in the property acquired by her and her husband, and
consider the other half as pertaining to the conjugal partnership of the first
marriage. 21
It should be stressed, however, that the aforecited decision is premised on the rule
which requires a prior and separate judicial declaration of nullity of marriage. This is
the reason why in the said case, the Court determined the rights of the parties in
accordance with their existing property regime.
In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the
Family Code, clarified that a prior and separate declaration of nullity of a marriage is
an all important condition precedent only for purposes of remarriage. That is, if a
party who is previously married wishes to contract a second marriage, he or she has
to obtain first a judicial decree declaring the first marriage void, before he or she
could contract said second marriage, otherwise the second marriage would be void.
The same rule applies even if the first marriage is patently void because the parties
are not free to determine for themselves the validity or invalidity or their marriage.
However, for purposes other than to remarry, like for filing a case for collection of
sum of money anchored on a marriage claimed to be valid, no prior and separate
judicial declaration of nullity is necessary. All that a party has to do is to present
evidence, testimonial or documentary, that would prove that the marriage from
which his or her rights flow is in fact valid. Thereupon, the court, if material to the
determination of the issues before it, will rule on the status of the marriage involved
and proceed to determine the rights of the parties in accordance with the applicable
laws and jurisprudence. Thus, in Nial v. Bayadog, 23 the Court explained:

591

[T]he court may pass upon the validity of marriage even in a suit not directly
instituted to question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case. When such
need arises, a final judgment of declaration of nullity is necessary even if the
purpose is other than to remarry. The clause on the basis of a final judgment
declaring such previous marriage void in Article 40 of the Family Code connoted
that such final judgment need not be obtained only for purpose of remarriage.
WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in
CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court of
Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus
attorneys fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The
complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement as
to costs.1wphi1.nt
SO ORDERED.
G.R. No. 103047 September 2, 1994
REPUBLIC
OF
THE
PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

PUNO, J.:
The case at bench originated from a petition filed by private respondent Angelina M.
Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of
nullity of her marriage to Edwin F. Cardenas. 1 As ground therefor, Castro claims that
no marriage license was ever issued to them prior to the solemnization of their
marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently,
he was declared in default. Trial proceeded in his absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil
ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The
marriage was celebrated without the knowledge of Castro's parents. Defendant
Cardenas personally attended to the processing of the documents required for the
592

celebration of the marriage, including the procurement of the marriage, license. In

fact, the marriage contract itself states that marriage license no. 3196182 was
issued in the name of the contracting parties on June 24, 1970 in Pasig, Metro
Manila.
The couple did not immediately live together as husband and wife since the
marriage was unknown to Castro's parents. Thus, it was only in March 1971, when
Castro discovered she was pregnant, that the couple decided to live together.
However, their cohabitation lasted only for four (4) months. Thereafter, the couple
parted ways. On October 19, 1971, Castro gave birth. The baby was adopted by
Castro's brother, with the consent of Cardenas.
The baby is now in the United States. Desiring to follow her daughter, Castro
wanted to put in order her marital status before leaving for the States. She thus
consulted a lawyer, Atty. Frumencio E. Pulgar, regarding the possible annulment of
her marriage. Through her lawyer's efforts, they discovered that there was no
marriage license issued to Cardenas prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil Register
of Pasig, Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA M.
CASTRO who were allegedly married in the Pasay City Court on June
21,
1970
under
an
alleged
(s)upportive marriage
license
no. 3196182 allegedly issued in the municipality on June 20, 1970
cannot be located as said license no. 3196182 does not appear from
our records.
Issued upon request of Mr. Ed Atanacio.
(Sgd)
CENO
NA D.
QUINT
OS
Senior
Civil
Regist
ry
Officer
593

Castro testified that she did not go to the civil registrar of Pasig on or before June
24, 1970 in order to apply for a license. Neither did she sign any application
therefor. She affixed her signature only on the marriage contract on June 24, 1970 in
Pasay City.
The trial court denied the petition. 2 It held that the above certification was
inadequate to establish the alleged non-issuance of a marriage license prior to the
celebration of the marriage between the parties. It ruled that the "inability of the
certifying official to locate the marriage license is not conclusive to show that there
was no marriage license issued."
Unsatisfied with the decision, Castro appealed to respondent appellate court. She
insisted that the certification from the local civil registrar sufficiently established the
absence of a marriage license.
As stated earlier, respondent appellate court reversed the Decision of the trial
court. 3 It declared the marriage between the contracting parties null and void and
directed the Civil Registrar of Pasig to cancel the subject marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate court erred
when it ruled that the certification issued by the civil registrar that marriage license
no. 3196182 was not in their record adequately proved that no such license was
ever issued. Petitioner also faults the respondent court for relying on the selfserving and uncorroborated testimony of private respondent Castro that she had no
part in the procurement of the subject marriage license. Petitioner thus insists that
the certification and the uncorroborated testimony of private respondent are
insufficient to overthrow the legal presumption regarding the validity of a marriage.
Petitioner also points that in declaring the marriage between the parties as null and
void, respondent appellate court disregarded the presumption that the solemnizing
officer, Judge Pablo M. Malvar, regularly performed his duties when he attested in
the marriage contract that marriage license no. 3196182 was duly presented to him
before the solemnization of the subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the documentary
and testimonial evidence presented by private respondent are sufficient to establish
that no marriage license was issued by the Civil Registrar of Pasig prior to the
celebration of the marriage of private respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
594

At the time the subject marriage was solemnized on June 24, 1970, the law
governing marital relations was the New Civil Code. The law 4 provides that no
marriage shall be solemnized without a marriage license first issued by a local civil
registrar. Being one of the essential requisites of a valid marriage, absence of a
license would render the marriage voidab initio. 5
Petitioner posits that the certification of the local civil registrar of due search and
inability to find a record or entry to the effect that marriage license no. 3196182
was issued to the parties is not adequate to prove its non-issuance.
We hold otherwise. The presentation of such certification in court is sanctioned by
Section 29, Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. A written statement signed by an
officer having custody of an official record or by his deputy, that after
diligent search, no record or entry of a specified tenor is found to exist
in the records of his office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his office
contain no such record or entry.
The above Rule authorized the custodian of documents to certify that despite
diligent search, a particular document does not exist in his office or that a particular
entry of a specified tenor was not to be found in a register. As custodians of public
documents, civil registrars are public officers charged with the duty, inter alia, of
maintaining a register book where they are required to enter all applications for
marriage licenses, including the names of the applicants, the date the marriage
license was issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil registrar of
Pasig enjoys probative value, he being the officer charged under the law to keep a
record of all data relative to the issuance of a marriage license. Unaccompanied by
any circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of
Court, a certificate of "due search and inability to find" sufficiently proved that his
office did not issue marriage license no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in support of her
petition is, in itself, not a ground to deny her petition. The failure to offer any other
witness to corroborate her testimony is mainly due to the peculiar circumstances of
the case. It will be remembered that the subject marriage was a civil ceremony
performed by a judge of a city court. The subject marriage is one of those
commonly known as a "secret marriage" a legally non-existent phrase but
ordinarily used to refer to a civil marriage celebrated without the knowledge of the
relatives and/or friends of either or both of the contracting parties. The records

595

show that the marriage between Castro and Cardenas was initially unknown to the
parents of the former.
Surely, the fact that only private respondent Castro testified during the trial cannot
be held against her. Her husband, Edwin F. Cardenas, was duly served with notice of
the proceedings and a copy of the petition. Despite receipt thereof, he chose to
ignore the same. For failure to answer, he was properly declared in default. Private
respondent cannot be faulted for her husband's lack of interest to participate in the
proceedings. There was absolutely no evidence on record to show that there was
collusion between private respondent and her husband Cardenas.
It is noteworthy to mention that the finding of the appellate court that the marriage
between the contracting parties is null and void for lack of a marriage license does
not discount the fact that indeed, a spurious marriage license, purporting to be
issued by the civil registrar of Pasig, may have been presented by Cardenas to the
solemnizing officer.
In fine, we hold that, under the circumstances of the case, the documentary and
testimonial evidence presented by private respondent Castro sufficiently
established the absence of the subject marriage license.
IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible
error committed by respondent appellate court.
SO ORDERED.
G.R. No. 105540 July 5, 1993
IRENEO
G.
GERONIMO, petitioner,
vs.
COURT OF APPEALS and ANTONIO ESMAN, respondents.
Benjamin M. Dacanay for the petitioner.
Alfredo G. Ablaza for respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court from the decision
of the Court of Appeals in CA-G.R. CV No. 33850 1 which affirmed the judgment of
the Regional Trial Court, Branch 68, Pasig, Metro Manila in Special Proceeding No.
10036 declaring valid the marriage between Graciana Geronimo and Antonio A.
596

Esman and appointing the latter as the administrator of the estate of the deceased
Graciana Geronimo.
The findings of fact of the trial court, adopted by the public respondent Court of
Appeals, are as follows:
This will resolve Ireneo Geronimo's petition for letter of administration
of the estate of Graciana Geronimo-Esman.
On June 29, 1987, a petition was filed by petitioner naming as one of
the heirs oppositor Antonio A. Esman and describing the latter as
"husband of the deceased". On April 4, 1988, an amended petition was
filed by petitioner naming as one of the surviving heirs Antonio A.
Esman and now describing the latter as the "live-in partner of the
deceased" after finding out that the marriage between oppositor and
the decedent was a "nullity for want of a marriage license".
It is undisputed that the decedent died on June 2, 1987 without a will leaving no
descendants nor ascendants. She was survived by her two brothers Tomas and
Ireneo, her nephew Salvador and her husband-oppositor Antonio A. Esman. . . .
However, the husband's capacity to inherit and administer the property of the
decedent is now being questioned in view of the discovery by the petitioner that the
marriage between oppositor and the decedent was celebrated without a marriage
license.
The principal issue now which has to be resolved by this Court before it can appoint
a judicial administrator is whether or not the marriage between Graciana Geronimo
and Antonio A. Esman was valid.
Petitioner contends that the marriage between her (sic) deceased
sister and oppositor Antonio A. Esman was null and void since there
was no marriage license issued to the parties at the time the marriage
was celebrated. In fact, petitioner contends that a certification issued
by the Local Civil Registrar of Pateros shows that the marriage license
number was not stated in the marriage contract (Exh. "I"); and that the
marriage contract itself does now (sic) show the number of the
marriage license issued (Exh. "J"). Moreover, marriage license number
5038770 which was issued to the deceased and the oppositor by the
Civil Registrar of Pateros, Rizal was not really issued to Pateros before
the marriage was celebrated but to Pasig in October 1959.
On the other hand, oppositor contends that the arguments raised by
petitioner are mere concoctions; that a close scrutiny of the
aforementioned documents (Exh. "I" and "J") would show that except
597

for the phrases "not stated" and "not recorded" the two certified copies
of the marriage contract issued by the Civil Registrar of Pateros, Rizal
(now Metro Manila) and the Parish Church of San Roque were the same
as the certified copy of the marriage contract which was attached to
the original petition which named the oppositor as the husband of the
deceased; that petitioner simply asked that these phrases be
incorporated to suit his ulterior motive; that even the omission of the
marriage license number on the Registry of Marriages in the Local Civil
Registrar is not fatal in itself and is not conclusive proof that no
marriage license was actually signed on January 7, 1955 to Graciana
Geronimo and Antonio A. Esman; and that the marriage license form
issued to the Municipality of Pateros are printed by the Bureau of
Printing with serialized numbers and distributed to various provinces or
municipalities thru proper requisitions which serial numbers even if
already used in the printing of the marriage license forms in the past
years are used again in the printing of the same forms in the
succeeding years.
Various witnesses were presented by oppositor to prove that indeed
the deceased and oppositor were married. David Montenegro, an
employee of the National Archives & Records Section, testified that a
copy of the marriage contract between Antonio A. Esman and Graciana
Geronimo celebrated on January 7, 1955, is on file with their office.
Msgr. Moises Andrade, parish priest of Barasoain, Malolos, Bulacan,
testified that he was asked to come over to teach in Guadalupe
seminary and stayed in Pasig as assistant priest of the parish of
Immaculate Concepcion from 1975 to 1983. Here, he came to know the
spouses Graciana Geronimo and Antonio A. Esman whom he attended
to spirituality, conducted mass for, gave communion, and visited them
socially. He had occasions to go to the couple's garment business,
Gragero Lingerie, and observed that the couple were quite close with
each other and with the people working in their business.
Marciana Cuevas, assistant supervisor of the couple's garment
business testified that she was aware of the marriage which took place
between Graciana Geronimo and Antonio A. Esman; that they lived
together as husband and wife in Bambang, Pasig, after the wedding;
and that is the oppositor who has been successfully supervising the
lingerie business after the death of Graciana Geronimo.
Julie Reyes, supply officer of the governor's office testified that she is in
charge of all accountable forms being taken in the fourteen (14)
municipalities of the province of Rizal which include marriage licenses;
598

and pad no. 83 covering marriage licenses nos. 5038751 to 5038800

was taken by the Municipality of Pateros way back in October 9, 1953.
Florenciana Santos, assistant local civil registrar of Pateros, Metro
Manila, testified that in the entry of marriage book of Pateros,
particularly page no. 23 of book no. 2 and reg. no. 51, there is no
column for the marriage license; that they started putting the marriage
license only in 1980; that they have a copy of the questioned marriage
contract in which the marriage license number is recorded; and that
the records of 1959 were lost during a typhoon, but they sent a copy of
the marriage contract to the archives section.
Oppositor Antonio A. Esman testified that he was married to Graciana
Geronimo on January 7, 1955 in Pateros and were (sic) issued marriage
license no. 5038770; and that he was introduced by the deceased to
the public as her lawful husband. (Decision, pp. 1-3) 2
In affirming the judgment of the trial court, the public respondent stated:
It may be conceded that [Exhibits "I" and "J"] of the petitionerappellant do not bear the number of the marriage license relative to
the marriage of Graciana Geronimo and the herein oppositor-appellee.
But at best, such non-indication of the number could only serve to
prove that the number was not recorded. It could not be accepted as
convincing proof of non-issuance of the required marriage license. On
the other hand, the marriage license number (No. 5038776, [sic] dated
January 7, 1955) does appear in the certified archives copy of the
marriage contract (Exhibit 7 and sub-markings). The non-indication of
the license number in the certified copies presented by the petitionerappellant could not be deemed as fatal vis-a-vis the issue of the
validity of the marriage in question because there is nothing in the law
which requires that the marriage license number would (sic) be
indicated in the marriage contract itself. 3
Unfazed by his successive defeats, and maintaining his adamantine stand that the
marriage between Graciana Geronimo and Antonio Esman is void, and, perforce, the
latter had no right to be appointed as the administrator of the estate of the former,
the petitioner artfully seeks to avoid any factual issue by now posing the following
question in this petition: "Can there be a valid marriage where one of the essential
requisites license is absent?" Doubtless, the query has been framed so as to
apparently present a question of law. In reality, however, the question assumes that
there was no marriage license, which is, of course, a factual contention. Both the
trial court and the public respondent found and ruled otherwise.

599

In BPI Credit Corporation vs. Court of Appeals, 4 which collated representative cases
on the rule of conclusiveness of the findings of fact of the Court of Appeals and the
exceptions thereto, we stated:
Settled is the rule that only questions of law may be raised in a petition
for certiorari under Rule 45 of the Rules of Court. The jurisdiction of this
Court in cases brought to it from the Court of Appeals is limited to
reviewing and revising errors of law imputed to it, its findings of fact
being conclusive. It is not the function of this Court to analyze or weigh
such evidence all over again, its jurisdiction being limited to reviewing
errors of law that might have been committed by the lower court.
Barring, therefore, a showing that the findings complained of are
totally devoid of support in the record, or that they are so glaringly
erroneous as to constitute serious abuse of discretion, they must
stand.
There are, however, exceptions to this rule, namely:
(1) When the conclusion is a finding grounded entirely on speculation,
surmises and conjectures; (2) When the inference made is manifestly
mistaken, absurd or impossible; (3) When there is a grave abuse of
discretion; (4) When the judgment is based on a misapprehension of
facts; (5) When the findings of facts are conflicting; (6) When 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 appellant and
appellee; (7) When the findings of the Court of Appeals are contrary to
those of the trial court; (8) When the findings of endings of fact are
conclusions without citation of specific evidence on which they are
based; (9) When the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondents;
and (10) When 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.
Petitioner fails to convince us that the instant case falls under any of the above
exceptions.
On this score alone, the petition must inevitably fail. However, if only to disabuse
the mind of the petitioner, we shall proceed to discuss the issue regarding the
alleged absence of a marriage license.
Petitioner contends that there was no marriage license obtained by the spouses
Esman because the copies of the marriage contract he presented (Exhibits "I" and
"J") did not state the marriage license number. The flaw in such reasoning is all too
600

obvious. Moreover, this was refuted by the respondent when he presented a copy of
the marriage contract on file with the National Archives and Records Section (Exhibit
"7") where the marriage license number (No. 5038770, dated 7 January 1955) does
appear. Petitioner tried to assail this piece of evidence by presenting Exhibit "V," a
certification of the Office of the Local Civil Registrar of Pasay City that Marriage
License No. 5038770 was issued on 1 October 1976 in favor of Edwin G. Tolentino
and Evangelina Guadiz. This was sufficiently explained by the Court of Appeals thus:
It is a known fact, and it is of judicial notice, that all printed
accountable forms of the Government like the Marriage License
(Municipal Form 95-A) come from the National Printing Office and are
printed with serial numbers. These forms are distributed upon proper
requisition by the city/municipal treasurers concerned. But the serial
numbers printed or used in a particular year are the same numbers
used in the succeeding years when the same forms are again printed
for distribution. However, the distribution of the serially-numbered
forms do not follow the same pattern.
This is exactly what happened to Marriage License No. 5038770 which
the appellant refused to acknowledge. Thus, it appears that while
marriage License No. 5038770 was requisitioned and received by the
Municipality of Pateros on October 09, 1953 thru the Office of the
Provincial Treasurer of Rizal (as explained by Mrs. Julita Reyes and
borne out by Exhibits "1" and "2") and later used by Antonio A. Esman
and Graciana Geronimo in their marriage on January 07, 1955, another,
marriage license bearing the same number (No. 5038770) was also
issued to the municipality of Pasig in October, 1959 (Exhibit "L-1").
Subsequently, still another marriage license bearing No. 503877() was
also issued to the Treasurer of Pasay City on June 29, 1976 (Exhibit "U1") that was used by a certain Edwin G. Tolentino and Evangelina
Guadiz (Exhibit "V"). (Appellee's Brief, pp. 31-32) 5
At most, the evidence adduced by the petitioner could only serve to prove the nonrecording of the marriage license number but certainly not the non-issuance of the
license itself.
WHEREFORE, the instant petition is DENIED and the decision appealed from is
hereby AFFIRMED in toto.
Costs against the petitioner.
SO ORDERED.
G.R. No. L-28248 March 12, 1975
601

LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO,

ALBENIO PERIDO, PAULINO PERIDO, LETIA PERIDO, joined by husband
BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX VILLARUZ,
EUFEMIA PERIDO, CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE
PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO,
ROLANDO
SALDE
and
EDUARDO
SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO,
PACITA PERIDO, MAGDALENA PERIDO, ALICIA PERIDO, JOSEFINA PERIDO, FE
PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.
Januario L. Jison, Jr. for petitioners.
Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:+.wph!1
This is an appeal by certiorari from the decision of the Court of Appeals in its CAG.R. No. 37034-R, affirming the decision of the Court of First Instance of Negros
Occidental in Civil Case No. 6529.
Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime.
His first wife was Benita Talorong, with whom he begot three (3) children: Felix,
Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, with
whom he had five (5) children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio
himself died in 1942, while his second wife died in 1943.
Of the three (3) children belonging to the first marriage only Margarita Perido is still
living. Her deceased brother, Felix Perido, is survived by his children Inocencia,
Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido. Nicanora
Perido, another daughter of Felix, is also deceased, but is survived by two (2) sons,
Rolando and Eduardo Salde.
Margarita's other deceased brother, Ismael Perido, is survived by his children,
namely: Consolacion, Alfredo, Wilfredo, and Amparo. Susano Perido, another son of
Ismael, is dead, but survived by his own son George Perido.
Of Lucio Perido's five (5) children by his second wife, two are already dead, namely:
Eusebio and Juan. Eusebio is survived by his children Magdalena Perido, Pacita
Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido, while
Juan is survived by his only child, Juan A. Perido.

602

On August 15, 1960 the children and grandchildren of the first and second
marriages of Lucio Perido executed a document denominated as "Declaration of
Heirship and Extra-judicial Partition," whereby they partitioned among themselves
Lots Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey
of Himamaylan, Occidental Negros.
Evidently the children belonging to the first marriage of Lucio Perido had second
thoughts about the partition. On March 8, 1962 they filed a complaint in the Court of
First Instance of Negros Occidental, which complaint was later amended on February
22, 1963, against the children of the second marriage, praying for the annulment of
the so-called "Declaration of Heirship and Extra-Judicial Partition" and for another
partition of the lots mentioned therein among the plaintiffs alone. They alleged,
among other things, that they had been induced by the defendants to execute the
document in question through misrepresentation, false promises and fraudulent
means; that the lots which were partitioned in said document belonged to the
conjugal partnership of the spouses Lucio Perido and Benita Talorong, and that the
five children of Lucio Perido with Marcelina Baliguat were all illegitimate and
therefore had no successional rights to the estate of Lucio Perido, who died in 1942.
The defendants denied the foregoing allegations.
After trial the lower court rendered its decision dated July 31, 1965, annulling the
"Declaration of Heirship and Extra-Judicial Partition." However, it did not order the
partition of the lots involved among the plaintiffs exclusively in view of its findings
that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were
legitimate; that all the lots, except Lot No. 458, were the exclusive properties of
Lucio Perido; and that 11/12 of Lot No. 458 belonged to the conjugal partnership of
Lucio Perido and his second wife, Marcelina Baliguat. The dispositive portion of the
decision reads as follows:t.hqw
IN VIEW OF ALL THE FOREGOING, the Court renders judgment as
follows: declaring the following as the legitimate children and
grandchildren and heirs of Lucio Perido and Benita Talorong: Felix
Perido, deceased; grandchildren: Inocencia Perido, Leonora Perido,
Albinio Perido, Paulino Perido, Letia Perido, Leticia Perido, Eufemia
Perido; Nicanora Perido, deceased; great grandchildren: Rolando Salde
and Eduardo Salde; Ismael Perido, deceased; grandchildren:
Consolacion Perido, Alfredo Perido, Susano Perido, deceased; great
grandson: George Perido; Amparo Perido and Wilfredo Perido; and,
Margarita Perido; (2) declaring the following as the legitimate children
and grandchildren and heirs of Lucio Perido and Marcelina Baliguat:
Eusebio Perido, deceased; grandchildren: Pacita Perido, Magdalena
Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido; Juan B. Perido, deceased; grandson, Juan A. Perido; Maria
Perido; Sofronia Perido; and Gonzalo Perido; (3) declaring all lots (471,
603

506, 511, 509, 513-part, 807, and 808) except Lot No. 458 as exclusive
properties of Lucio Perido so that each of them should be divided into
eight (8) equal parts: 1/8 belongs to Felix Perido, but because of his
death leaving eight (8) children, the same should be divided and
alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to
Leonora Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido,
of age, married to Honorata Villasana; 1/64 to Paulino Perido, of age,
married to Norma Villalba 1/64 to Letia Perido, of age, married to
Bienvenido Balyac; 1/64 to Leticia Perido, of age, married to Felix
Villaruz; 1/64 to Eufemia Perido, of age, single; 1/64 to Nicanora Perido,
but because she is now dead the same should be divided and alloted
as follows: 1/128 to Rolando Salde, of age, single; and 1/128 to
Eduardo Salde, of age, single; 1/8 belongs to Ismael Perido, but
because he is already dead leaving five children, the same should be
divided and alloted as follows: 1/40 to Consolacion Perido, of age,
widow; 1/40 to Alfredo Perido, of age married to Trinidad Tamargo; 1/40
to Susano Perido, but he is already dead with one son, the same goes
to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single;
1/8 belongs to Margarita Perido, of age, widow; 1/8 belongs to Eusebio
Perido, but because he is already dead with seven children, the same
should be divided and alloted as follows: 1/56 goes to Pacita Perido, of
age, single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to
Alicia Perido, of age, married to Isaias Ruiz; 1/56 goes to Josefina
Perido, of age, married to Leopoldo Doloroso; 1/56 goes to Fe Perido, of
age, single; 1/56 goes to Teresa Perido, of are single; 1/56 goes to Luz
Perido, of age, married to Fidel de la Cruz; 1/8 belongs to Juan B.
Perido, but because he is already dead with one child, the same 1/8
goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to
Maria Perido. of age, married to Julio Pirote; 1/8 goes to Sofronia Perido,
of age, widow; and, 1/8 goes to Gonzalo Perido, of age, married to
Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458
as conjugal partnership property of Lucio Perido and Marcelina
Baliguat, which should be divided and alloted as follows: 11/24 goes to
Lucio Perido to be divided into eight (8) equal shares and 11/24 goes to
Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for
each of the children and again to be divided by the children of each
child now deceased; (6) declaring Fidel Perido owner of 1/12 share in
Lot 458 to be divided among his heirs to be determined accordingly
later; and (6) declaring null and void Exhibit "J" of the plaintiffs which is
Exhibit "10" for the defendants, without costs and without adjudication
with respect to the counterclaim and damages, they being members of
the same family, for equity and justice.

604

The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1)
in declaring that Eusebio Perido, Juan Perido, Maria Perido, Sofronia Perido and
Gonzalo Perido, were the legitimate children of Lucio Perido and his second wife,
Marcelina Baliguat; (2) in declaring that Lucio Perido was the exclusive owner of Lots
Nos. 471, 506, 511, 509, 513-Part, 807, and 808 of Cadastral Survey of
Himamaylan, Negros Occidental, and in not declaring that said lots were the
conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and
(3) in holding that 11/12 of Lot 458 was the conjugal partnership property of Lucio
Perido and Marcelina Baliguat.
Finding no reversible error in the decision of the lower court, the Court of Appeals
affirmed it in toto. The appellants moved to reconsider but were turned down.
Thereupon they instituted he instant petition for review reiterating in effect the
assignments of error and the arguments in the brief they submitted to the appellate
court.
The first issue pertains to the legitimacy of the five children of Lucio Perido with
Marcelina Baliguat. The petitioners insist that said children were illegitimate on the
theory that the first three were born out of wedlock even before the death of Lucio
Perido's first wife, while the last two were also born out of wedlock and were not
recognized by their parents before or after their marriage. In support of their
contention they allege that Benita Talorong died in 1905, after the first three
children were born, as testified to by petitioner Margarita Perido and corroborated
by petitioner Leonora Perido; that as late as 1923 Lucio Perido was still a widower,
as shown on the face of the certificates of title issued to him in said year; and Lucio
Perido married his second wife, Marcelina Baliguat, only in 1925, as allegedly
established through the testimony of petitioner Leonora Perido.
The petition cannot be sustained. The Court of Appeals found that there was
evidence to show that Lucio Perido's wife, Benita Talorong, died during the Spanish
regime. This finding conclusive upon us and beyond our power of review. Under the
circumstance, Lucio Perido had no legal impediment to marry Marcelina Baliguat
before the birth of their first child in 1900.
With respect to the civil status of Lucio Perido as stated in the certificates of title
issued to him in 1923, the Court of Appeals correctly held that the statement was
not conclusive to show that he was not actually married to Marcelina Baliguat.
Furthermore, it is weak and insufficient to rebut the presumption that persons living
together husband and wife are married to each other. This presumption, especially
where legitimacy of the issue is involved, as in this case, may be overcome only by
cogent proof on the part of those who allege the illegitimacy. In the case of Adong
vs. Cheong Seng Gee 1 this Court explained the rationale behind this presumption,
thus: "The basis of human society throughout the civilized world is that of marriage.
Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an
605

institution in the maintenance of which the public is deeply interested.

Consequently, every intendment of the law leans toward legalizing matrimony.
Persons dwelling together in apparent matrimony are presumed, in the absence of
any counter-presumption or evidence special to the case, to be in fact married. The
reason is that such is the common order of society, and if the parties were not what
they thus hold themselves out as being, they would he living in the constant
violation of decency and of law. A presumption established by our Code of Civil
Procedure is "that a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper
praesumitur pro matrimonio Always presume marriage."
While the alleged marriage ceremony in 1925, if true, might tend to rebut the
presumption of marriage arising from previous cohabitation, it is to be noted that
both the trial court and the appellate court did not even pass upon the
uncorroborated testimony of petitioner Leonora Perido on the matter. The reason is
obvious. Said witness, when asked why she knew that Marcelina Baliguat was
married to Lucio Perido only in 1925, merely replied that she knew it because
"during the celebration of the marriage by the Aglipayan priest (they) got flowers
from (their) garden and placed in the altar." Evidently she was not even an
eyewitness to the ceremony.
In view of the foregoing the Court of Appeals did not err in concluding that the five
children of Lucio Perido and Marcelina Baliguat were born during their marriage and,
therefore, legitimate.
The second assignment of error refers to the determination of whether or not Lots
Nos. 471, 506, 511, 509-513-Part, 807 and 808 were the exclusive properties of
Lucio Perido. In disposing of the contention of the petitioners that said lots belong to
the conjugal partnership of spouses Lucio Perido and Benita Talorong, the Court of
Appeals said:t.hqw
... We cannot agree again with them on this point. It is to be noted that
the lands covered by the certificates of title (Exhs. B to G) were all
declared in the name of Lucio Perido. Then there is evidence showing
that the lands were inherited by Lucio Perido from his grandmother
(t.s.n., p. 21, Feb. 20, 1964). In other words, they were the exclusive
properties of the late Lucio Perido which he brought into the first and
second marriages. By fiat of law said Properties should be divided
accordingly among his legal heirs.
The petitioners take exception to the finding of the appellate court that the
aforementioned lots were inherited by Lucio Perido from his grandmother and
contend that they were able to establish through the testimonies of their witnesses
that the spouses Lucio Perido and Benita Talorong acquired them during their
606

lifetime. Again, the petitioners cannot be sustained. The question involves

appreciation of the evidence, which is within the domain of the Court of Appeals,
the factual findings of which are not reviewable by this Court.
The third assignment of error is with regard to the ruling of the Court of Appeals
sustaining the finding of the trial court that 11/12 of Lot 458 was the conjugal
partnership property of Lucio Perido and his second wife, Marcelina Baliguat. Said
the appellate court:t.hqw
With respect to Lot No. 458 which is now covered by Original
Certificate of Title No. 21769 issued in 1925 the same should be
considered conjugally owned by Lucio Perido and his second wife,
Marcelina Baliguat. The finding of the lower court on this point need
not be disturbed. It is expressly stated in the certificate of title (Exh. L)
that Lucio Perido, the registered owner, was married to Marcelina
Baliguat unlike in the previous land titles. If the law presumes a
property registered in the name of only one of the spouses to be
conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores, 48 Phil.
288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes
stronger when the document recites that the spouse in whose name
the land is registered is married to somebody else, like in the case at
bar. It appearing that the legal presumption that the No. 458 belonged
to the conjugal partnership had not been overcome by clear proofs to
the contrary, we are constrained to rule, that the same is the conjugal
property of the deceased spouses Lucio Perido and Marcelina Baliguat.
In impugning the foregoing ruling, the petitioners maintain that they were able to
prove that 6/12 of said Lot 458 was the conjugal property of spouses Lucio Perido
and his first wife, Benita Talorong, and that the purchase price of the additional 5/12
of said lot came from the proceeds of sale of a lot allegedly belonging to Lucio
Perido and his three children of the first marriage. As in the second assignment of
error, the issue raised here also involves appreciation of the evidence and,
consequently, the finding of the appellate court on the matter is binding on this
Court. Indeed, a review of that finding would require an examination of all the
evidence introduced before the trial court, a consideration of the credibility of
witnesses and of the circumstances surrounding the case, their relevancy or relation
to one another and to the whole, as well as an appraisal of the probabilities of the
entire situation. It would thus abolish the distinction between an ordinary appeal on
the one hand and review on certiorari on the other, and thus defeat the purpose for
which the latter procedure has been established. 2
WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs
against the petitioners.

607

Castro, Teehankee, Makasiar and Esguerra, JJ., concur.1wp

IN THE MATTER OF THE INTESTATE G.R. No. 155733

ESTATES OF THE DECEASED JOSEFA
DELGADO AND GUILLERMO RUSTIA
CARLOTA DELGADO VDA. DE DE LA
ROSA and other HEIRS OF LUIS
DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA
DELGADOVDA. DE DANAO, ANGELA
DELGADO ARESPACOCHAGA, TERESA
DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO
DELGADO,BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS
DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO
CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA,
YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and
MELINDA DELGADO CAMPO-MADARANG,
Petitioners, Present :
PUNO, J., Chairman,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, NAMELY, GUILLERMO R.
DAMIAN AND JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, NAMELY,
TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA
CRUZ-ENRIQUEZ AND FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR.,
NAMELY, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN
RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIAMIRANDA; AND GUILLERMINA RUSTIA, AS OPPOSITORS;[1] AND GUILLERMA
RUSTIA, AS INTERVENOR,[2]
Respondents.[3] Promulgated :
January 27, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CORONA, J.:

In this petition for review on certiorari, petitioners seek to reinstate the May
11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, [4] in SP Case
No. 97668, which was reversed and set aside by the Court of Appeals in its
decision[5] dated October 24, 2002.
608

FACTS OF THE CASE

This

case

concerns

the

settlement

of

the

intestate

estates

of

Guillermo Rustia and Josefa Delgado.[6] The main issue in this case is relatively
simple: who, between petitioners and respondents, are the lawful heirs of the
decedents. However, it is attended by several collateral issues that complicate its
resolution.
The claimants to the estates of Guillermo Rustia and Josefa Delgado may be
divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her
half- and full-blood siblings, nephews and nieces, and grandnephews and
grandnieces, and (2) the alleged heirs of GuillermoRustia, particularly, his sisters,
[7]

his nephews and nieces,[8] his illegitimate child,[9] and the de facto adopted

child[10] (ampun-ampunan) of the decedents.

THE ALLEGED HEIRS OF JOSEFA DELGADO
The deceased Josefa Delgado was the daughter of Felisa[11] Delgado by
one Lucio Campo. Aside from Josefa, five other children were born to the couple,
namely, Nazario, Edilberta,

Jose, Jacoba,

and Gorgonio,

all

surnamed

Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her
full-blood siblings were all natural children of Felisa Delgado.
However, Lucio Campo was not the first and only man in Felisa Delgados
life. Before him was Ramon Osorio[12] with whom Felisa had a son, Luis Delgado. But,
unlike her relationship with Lucio Campo which was admittedly one without the
benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is
in dispute.
The question of whether Felisa Delgado and Ramon Osorio ever got married is
crucial

to

the

claimants

because

the

answer

will

determine

whether

their successional rights fall within the ambit of the rule against reciprocal intestate

609

succession between legitimate and illegitimate relatives. [13] If Ramon Osorio

and Felisa Delgado had been validly married, then their only child Luis Delgado was
a legitimate half-blood brother of Josefa Delgado and therefore excluded from the
latters intestate estate. He and his heirs would be barred by the principle of
absolute separation between the legitimate and illegitimate families. Conversely, if
the couple were never married, Luis Delgado and his heirs would be entitled to
inherit from Josefa Delgados intestate estate, as they would all be within the
illegitimate line.
Petitioners

allege

that

Ramon

Osorio

and Felisa Delgado

were

never

married. In support thereof, they assert that no evidence was ever presented to
establish it, not even so much as an allegation of the date or place of the alleged
marriage. What is clear, however, is that Felisaretained the surname Delgado. So
did Luis, her son with Ramon Osorio. Later on, when Luis got married,
his Partida de Casamiento[14] stated that he was hijo natural de Felisa Delgado (the
natural child of Felisa Delgado),[15] significantly omitting any mention of the name
and

other

circumstances

of

father.[16] Nevertheless, oppositors (now

his

respondents) insist that the absence of a record of the alleged marriage did not
necessarily mean that no marriage ever took place.
Josefa Delgado died on September 8, 1972 without a will. She was survived
by Guillermo Rustia and some collateral relatives, the petitioners herein. Several
months later, on June 15, 1973, Guillermo Rustia executed an affidavit of self-

adjudication of the remaining properties comprising her estate.

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO
Sometime

in

1917,

Guillermo Rustia proposed

marriage

to Josefa Delgado[17] but whether a marriage in fact took place is disputed.According

to petitioners, the two eventually lived together as husband and wife but were
never married. To prove their assertion, petitioners point out that no record of the
contested marriage existed in the civil registry. Moreover, a baptismal certificate

610

naming Josefa Delgado as one of the sponsors referred to her as Seorita or

unmarried woman.
The oppositors (respondents here), on the other hand, insist that the absence
of

marriage

certificate

did

not

of

necessity

mean

that

no

marriage

transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on
June 3, 1919 and from then on lived together as husband and wife until the death
of Josefa on September 8, 1972. During this period spanning more than half a
century, they were known among their relatives and friends to have in fact been
married. To support their proposition, oppositors presented the following pieces of
evidence:
1.

Certificate of Identity No. 9592 dated [December 1, 1944]

issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then
Resident Commissioner to the United States of the
Commonwealth of the Philippines;

2.

Philippine Passport No. 4767 issued to Josefa D. Rustia on

June 25, 1947;

3.

Veterans Application for Pension or Compensation for

Disability Resulting from Service in the Active Military or Naval
Forces of the United States- Claim No. C-4, 004, 503 (VA Form
526) filed with the Veterans Administration of the United States
of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo
J. Rustia himself [swore] to his marriage to Josefa Delgado in
Manila on 3 June 1919;[18]

4.

Titles
to
real
Guillermo Rustia indicated
to Josefa Delgado.

properties
that

in
he

the
name
of
was
married

THE ALLEGED HEIRS OF GUILLERMO RUSTIA

Guillermo Rustia and Josefa Delgado never had any children. With no children
of

their

own,

they

took

into

their

home

the

youngstersGuillermina Rustia Rustia and Nanie Rustia. These children, never legally
adopted by the couple, were what was known in the local dialect asampunampunan.
611

During his life with Josefa, however, Guillermo Rustia did manage to father an
child,[19] the intervenor-respondent GuillermaRustia,

illegitimate

with

one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his
daughter, his own flesh and blood, and she enjoyed open and continuous
possession of that status from her birth in 1920 until her fathers demise. In
fact, Josefa Delgados obituary which was prepared by Guillermo Rustia, named
the intervenor-respondent as one of their children. Also, her report card from the
University of Santo Tomas identified Guillermo Rustia as her parent/guardian.[20]
Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no
interest in the intestate estate of Guillermo Rustia as she was never duly
acknowledged as an illegitimate child. They contend that her right to compulsory
acknowledgement prescribed when Guillermo died in 1974 and that she cannot
claim voluntary acknowledgement since the documents she presented were not the
authentic writings prescribed by the new Civil Code. [21]
On January 7, 1974, more than a year after the death of Josefa Delgado,
Guillermo Rustia filed

petition

for

the

adoption[22] of

theirampun-

ampunan Guillermina Rustia. He stated under oath [t]hat he ha[d] no legitimate,

legitimated, acknowledged natural children or natural children by legal fiction.
[23]

The petition was overtaken by his death on February 28, 1974.

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by

his sisters Marciana Rustia vda. de Damian and HortenciaRustia-Cruz, and by the
children

of

his

Josefina Rustia Albano,

predeceased

brother

Virginia Rustia Paraiso,

Francisco Rustia and Leticia Rustia Miranda.[24]

ANTECEDENT PROCEEDINGS

612

Roman Rustia Sr.,

RomanRustia,

Jr.,

namely,

Sergio Rustia,

On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado,
filed the original petition for letters of administration of the intestate estates of the
spouses Josefa Delgado and Guillermo Rustia with the RTC of Manila, Branch 55.
[25]

This petition was opposed by the following: (1) the sisters of Guillermo Rustia,

namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;[26] (2) the heirs
of

GuillermoRustias late

brother,

Roman Rustia,

Sr., and

(3)

the ampun-

ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that
Luisa Delgado vda. de Danao and the other claimants were barred under the law
from inheriting from their illegitimate half-blood relative JosefaDelgado.
In November of 1975, Guillerma Rustia filed a motion to intervene in the
proceedings, claiming she was the only surviving descendant in the direct line of
Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the
motion was granted.
On April 3, 1978, the original petition for letters of administration was
amended to state that Josefa Delgado and Guillermo Rustia werenever married but
had merely lived together as husband and wife.
On January 24, 1980, oppositors (respondents herein) filed a motion to
dismiss the petition in the RTC insofar as the estate of GuillermoRustia was
concerned. The motion was denied on the ground that the interests of the
petitioners and the other claimants remained in issue and should be properly
threshed out upon submission of evidence.
On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her
sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987.
On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa
as administratrix of both estates.[27] The dispositive portion of the decision read:
WHEREFORE, in view of all the foregoing, petitioner and her coclaimants to the estate of the late Josefa Delgado listed in the
Petitions, and enumerated elsewhere in this Decision, are hereby
declared as the only legal heirs of the said Josefa Delgado who died
intestate in the City of Manila on September 8, 1972, and entitled to
partition the same among themselves in accordance with the
proportions referred to in this Decision.
613

Similarly, the intervenor Guillerma S. Rustia is hereby declared

as the sole and only surviving heir of the late Dr. Guillermo Rustia, and
thus, entitled to the entire estate of the said decedent, to the exclusion
of the oppositors and the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa Delgado
executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET
ASIDE and declared of no force and effect.
As the estates of both dece[d]ents have not as yet been settled,
and their settlement [is] considered consolidated in this proceeding in
accordance with law, a single administrator therefor is both proper and
necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa
has established her right to the appointment as administratrix of the
estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the
intestate estate of the decedent JOSEFA DELGADO in relation to the
estate of DR. GUILLERMO J. RUSTIA.
Accordingly, let the corresponding LETTERS OF ADMINISTRATION
issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon
her filing of the requisite bond in the sum of FIVE HUNDRED
THOUSAND PESOS (P500,000.00).
Finally, oppositor GUILLERMINA
RUSTIA RUSTIA is
hereby
ordered to cease and desist from her acts of administration of the
subject estates, and is likewise ordered to turn over to the
appointed administratix all her collections of the rentals and income
due on the assets of the estates in question, including all documents,
papers, records and titles pertaining to such estates to the petitioner
and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA,
immediately upon receipt of this Decision. The same oppositor is
hereby required to render an accounting of her actual administration of
the estates in controversy within a period of sixty (60) days from
receipt hereof.
SO ORDERED.[28]
On May 20, 1990, oppositors filed an appeal which was denied on the ground
that the record on appeal was not filed on time. [29] They then filed a petition for
certiorari and mandamus[30] which was dismissed by the Court of Appeals.
[31]

However, on motion for reconsideration and after hearing the parties oral

arguments,

the

Court

of

Appeals

reversed

itself

and

gave

due

course

to oppositors appeal in the interest of substantial justice. [32]

In a petition for review to this Court, petitioners assailed the resolution of the
Court of Appeals, on the ground that oppositors failure to file the record on appeal
614

within the reglementary period was a jurisdictional defect which nullified the appeal.
On October 10, 1997, this Court allowed the continuance of the appeal. The
pertinent portion of our decision[33] read:
As a rule, periods prescribed to do certain acts must be
followed. However, under exceptional circumstances, a delay in the
filing of an appeal may be excused on grounds of substantial justice.
xxx xxx xxx
The respondent court likewise pointed out the trial courts
pronouncements as to certain matters of substance, relating to the
determination of the heirs of the decedents and the party entitled to
the administration of their estate, which were to be raised in the
appeal, but were barred absolutely by the denial of the record on
appeal upon too technical ground of late filing.
xxx xxx xxx
In this instance, private respondents intention to raise valid
issues in the appeal is apparent and should not have been construed
as an attempt to delay or prolong the administration proceedings.
xxx xxx xxx
A review of the trial courts decision is needed.
xxx xxx xxx
WHEREFORE, in view of the foregoing considerations, the Court
hereby AFFIRMS the Resolution dated November 27, 1991 of the
Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the
private respondents Record on Appeal and the CONTINUANCE of the
appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990
decision.
SO ORDERED.

Acting on the appeal, the Court of Appeals [34] partially set aside the trial
courts decision. Upon motion for reconsideration, [35] the Court of Appeals amended
its earlier decision.[36] The dispositive portion of the amended decision read:
With
the
further modification, our assailed
decision
is RECONSIDERED and VACATED. Consequently, the decision of the
615

trial
court
is REVERSED and SET
ASIDE. A
new
one
is
hereby RENDERED declaring:
1.) Dr.
Guillermo Rustia and Josefa Delgado Rustia to
have
been
legally
married;
2.) the
intestate
estate
of
Dr.
Guillermo Rustia,Jacoba Delgado-Encinas and
the
children
of Gorgonio Delgado (Campo) entitled to partition among themselves
the intestate estate of Josefa D. Rustia in accordance with the
proportion referred to in this decision; 3.) the oppositors-appellants as
the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to
partition his estate in accordance with the proportion referred to
herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible
to inherit from the late Dr. Guillermo Rustia; thus revoking her
appointment as administratrix of his estate.
The letters of administration of the intestate estate of Dr.
Guillermo Rustia in relation to the intestate estate of Josefa Delgado
shall issue to the nominee of theoppositors-appellants upon his or her
qualification and filing of the requisite bond in the sum of FIVE
HUNDRED THOUSAND PESOS (P500,000.00).
Oppositor-appellant Guillermina Rustia Rustia is hereby ordered
to cease and desist from her acts of administration of the subject
estates and to turn over to the appointed administrator all her
collections of the rentals and incomes due on the assets of the estates
in question, including all documents, papers, records and titles
pertaining to such estates to the appointed administrator, immediately
upon notice of his qualification and posting of the requisite bond, and
to render an accounting of her (Guillermina Rustia Rustia) actual
administration of the estates in controversy within a period of sixty
(60) days from notice of the administrators qualification and posting of
the bond.
The issue of the validity of the affidavit of self-adjudication
executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to
the trial court for further proceedings to determine the extent of the
shares
of Jacoba Delgado-Encinas and
the
children
of Gorgonio Delgado (Campo) affected by the said adjudication.
Hence, this recourse.
The issues for our resolution are:
1.

whether
there
was
a
Guillermo Rustia and Josefa Delgado;

2.

who
the
legal
heirs
Guillermo Rustia and Josefa Delgado are;

3.

valid
of

who should be issued letters of administration.

616

marriage
the

between
decedents

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO

A presumption is an inference of the existence or non-existence of a fact

which courts are permitted to draw from proof of other facts. Presumptions are
classified into presumptions of law and presumptions of fact. Presumptions of law
are, in turn, either conclusive or disputable. [37]
Rule 131, Section 3 of the Rules of Court provides:
Sec. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome
by other evidence:
xxx xxx xxx
(aa) That a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage;
xxx xxx xxx

In this case, several circumstances give rise to the presumption that a valid
marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation
of more than 50 years cannot be doubted. Their family and friends knew them to be
married. Their reputed status as husband and wife was such that even the original
petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975
referred to them as spouses.
Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply
lived together as husband and wife without the benefit of marriage. They make
much of the absence of a record of the contested marriage, the testimony of a
witness[38] attesting that they were not married, and a baptismal certificate which
referred to Josefa Delgado as Seorita or unmarried woman.[39]
We are not persuaded.

617

First, although a marriage contract is considered a primary evidence of

marriage, its absence is not always proof that no marriage in fact took place.
[40]

Once the presumption of marriage arises, other evidence may be presented in

support thereof. The evidence need not necessarily or directly establish the
marriage but must at least be enough to strengthen the presumption of marriage.
Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,
[41]

the passport issued to her as Josefa D. Rustia,[42] the declaration under oath of no

less than Guillermo Rustia that he was married to Josefa Delgado[43] and the titles to
the properties in the name of Guillermo Rustia married to JosefaDelgado, more than
adequately support the presumption of marriage. These are public documents which
are prima facie evidence of the facts stated therein. [44] No clear and convincing
evidence sufficient to overcome the presumption of the truth of the recitals therein
was presented by petitioners.
Second, Elisa vda. de Anson, petitioners own witness whose testimony they
primarily relied upon to support their position, confirmed that Guillermo Rustia had
proposed marriage to Josefa Delgado and that eventually, the two had lived
together as husband and wife. This again could not but strengthen the presumption
of marriage.
Third, the baptismal certificate[45] was conclusive proof only of the baptism
administered by the priest who baptized the child. It was no proof of the veracity of
the declarations and statements contained therein, [46] such as the alleged single or
unmarried (Seorita) civil status ofJosefa Delgado who had no hand in its preparation.
Petitioners

failed

to

rebut

the

presumption

of

marriage

of

Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the
law leans toward legitimizing matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the usual order of things in
society and, if the parties are not what they hold themselves out to be, they would
be

living

in

constant

violation

of

the

common

rules

of

law

propriety. Semper praesumitur pro matrimonio. Always presume marriage.[47]

618

and

THE LAWFUL HEIRS OF JOSEFA DELGADO

To determine who the lawful heirs of Josefa Delgado are, the questioned
status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must
first be addressed.
As mentioned earlier, presumptions of law are either conclusive or disputable.
Conclusive presumptions are inferences which the law makes so peremptory that no
contrary proof, no matter how strong, may overturn them. [48] On the other hand,
disputable presumptions, one of which is the presumption of marriage, can be relied
on only in the absence of sufficient evidence to the contrary.
Little was said of the cohabitation or alleged marriage of Felisa Delgado and
Ramon Osorio. The oppositors (now respondents) chose merely to rely on the
disputable presumption of marriage even in the face of such countervailing
evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of
the

surname

Delgado

and

(2)

Luis

and Caridad Concepcions Partida de Casamiento[49] identifying Luis

Delgados
as hijo natural

de Felisa Delgado (the natural child of Felisa Delgado).[50]

All things considered, we rule that these factors sufficiently overcame
the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were
never married. Hence, all the children born to Felisa Delgado out of her relations
with

Ramon

Osorio

and Lucio Campo,

siblings Nazario, Edilberta,

namely,

Jose, Jacoba, Gorgonio and

Luis
the

and

his

half-blood

decedent Josefa,

surnamed Delgado,[51] were her natural children.[52]

Pertinent to this matter is the following observation:
Suppose, however, that A begets X with B, and Y with another
woman, C; then X and Y would be natural brothers and sisters, but of
half-blood relationship. Can they succeed each other reciprocally?
The law prohibits reciprocal succession between illegitimate
children and legitimate children of the same parent, even though there
619

all

is unquestionably a tie of blood between them. It seems that to allow

an illegitimate child to succeed ab intestato (from) another illegitimate
child begotten with a parent different from that of the former, would be
allowing
the
illegitimate
child
greater
rights
than
a
legitimate child. Notwithstanding this, however, we submit that
succession should be allowed, even when the illegitimate brothers and
sisters are only of the half-blood. The reason impelling the prohibition
on reciprocal successions between legitimate and illegitimate families
does not apply to the case under consideration. That prohibition has
for its basis the difference in category between illegitimate and
legitimate relatives. There is no such difference when all the children
are illegitimate children of the same parent, even if begotten with
different persons. They all stand on the same footing before the law,
just like legitimate children of half-blood relation. We submit, therefore,
that the rules regarding succession of legitimate brothers and sisters
should be applicable to them. Full blood illegitimate brothers and
sisters should receive double the portion of half-blood brothers and
sisters; and if all are either of the full blood or of the half-blood, they
shall share equally.[53]

Here, the above-named siblings of Josefa Delgado were related to her by fullblood, except Luis Delgado, her half-brother. Nonetheless, since they were all
illegitimate, they may inherit from each other. Accordingly, all of them are entitled
to inherit from Josefa Delgado.
We note, however, that the petitioners before us are already the nephews,
nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the
new Civil Code, the right of representation in the collateral line takes place only in
favor of the children of brothers and sisters (nephews and nieces). Consequently, it
cannot be exercised by grandnephews and grandnieces. [54] Therefore, the only
collateral relatives ofJosefa Delgado who are entitled to partake of her intestate
estate are her brothers and sisters, or their children who were still alive at the time
of her death on September 8, 1972. They have a vested right to participate in the
inheritance.[55] The records not being clear on this matter, it is now for the trial court
to determine who were the surviving brothers and sisters (or their children)
of Josefa Delgado at the time of her death. Together with Guillermo Rustia,[56] they
are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the
new Civil Code:[57]
620

Art. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the
inheritance and the brothers and sisters or their children to the other
one-half.
Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could
not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the
Rules of Court is clear. Adjudication by an heir of the decedents entire estate to
himself by means of an affidavit is allowed only if he is the sole heir to the estate:
SECTION 1. Extrajudicial settlement by agreement between heirs. If the
decedent left no will and no debts and the heirs are all of age, or the
minors are represented by their judicial or legal representatives duly
authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir, he may adjudicate to himself
the estate by means of an affidavit filed in the office of the
register of deeds. x x x (emphasis supplied)

THE LAWFUL HEIRS OF GUILLERMO RUSTIA

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child[58] of

Guillermo Rustia. As such, she may be entitled tosuccessional rights only upon proof
of an admission or recognition of paternity. [59] She, however, claimed the status of
an acknowledged illegitimate child of Guillermo Rustia only after the death of the
latter on February 28, 1974 at which time it was already the new Civil Code that was
in effect.
Under the old Civil Code (which was in force till August 29, 1950), illegitimate
children absolutely had no hereditary rights. This draconian edict was, however,
later relaxed in the new Civil Code which granted certain successional rights to
illegitimate children but only on condition that they were first recognized or
acknowledged by the parent.

621

Under
[60]

the

new

law,

recognition

may

be

compulsory

or

voluntary.

Recognition is compulsory in any of the following cases:

(1)
(2)
(3)
(4)

in cases of rape, abduction or seduction, when the period

of the offense coincides more or less with that of the conception;
when the child is in continuous possession of status of a
child of the alleged father (or mother) [61] by the direct acts of the
latter or of his family;
when the child was conceived during the time when the
mother cohabited with the supposed father;
when the child has in his favor any evidence or proof that
the defendant is his father. [62]

On the other hand, voluntary recognition may be made in the record of birth, a will,
a statement before a court of record or in any authentic writing. [63]
Intervenor Guillerma sought recognition on two grounds: first, compulsory
recognition through the open and continuous possession of the status of an
illegitimate child and second, voluntary recognition through authentic writing.
There was apparently no doubt that she possessed the status of an
illegitimate

child

from

her

birth

until

the

death

of

her

putative

father

Guillermo Rustia. However, this did not constitute acknowledgment but a mere
ground by which she could have compelled acknowledgment through the courts.
[64]

Furthermore, any (judicial) action for compulsory acknowledgment has a dual

limitation: the lifetime of the child and the lifetime of the putative parent. [65] On the
death of either, the action for compulsory recognition can no longer be filed. [66] In
this

case, intervenorGuillermas right

to

claim

compulsory

acknowledgment

prescribed upon the death of Guillermo Rustia on February 28, 1974.

The claim of voluntary recognition (Guillermas second ground) must likewise
fail. An authentic writing, for purposes of voluntary recognition, is understood as a
genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This
includes a public instrument or a private writing admitted by the father to be his.
[67]

Did intervenors report

card

from

the

University

of

Santo

Tomas

and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic

622

writings

under

the

new

Civil

Code?

Unfortunately

not.

The

report

card

of intervenorGuillerma did not bear the signature of Guillermo Rustia. The fact that
his name appears there as intervenors parent/guardian holds no weight since he
had no participation in its preparation. Similarly, while witnesses testified that it was
Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which
was published in the SUNDAY TIMES on September 10, 1972, that published
obituary

was not the authenticwriting contemplated by the law.

What could have been admitted as an authentic writing

was the original manuscript of the notice,

in

the

handwriting

of

Guillermo Rustia himself and signed by him, not the newspaper clipping of the
obituary. The

failure

to

present

the

original

signed

manuscript

was

fatal

to intervenors claim.
The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia,
who was never adopted in accordance with law. Although a petition for her adoption
was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the
latters death. We affirm the ruling of both the trial court and the Court of Appeals
holding her a legal stranger to the deceased spouses and therefore not entitled to
inherit from them ab intestato. We quote:
Adoption is a juridical act, a proceeding in rem, which [created]
between two persons a relationship similar to that which results from
legitimate paternity and filiation.Only an adoption made through the
court, or in pursuance with the procedure laid down under Rule 99 of
the Rules of Court is valid in this jurisdiction. It is not of natural law at
all, but is wholly and entirely artificial. To establish the relation, the
statutory requirements must be strictly carried out, otherwise, the
adoption is an absolute nullity. The fact of adoption is never presumed,
but must be affirmatively [proven] by the person claiming its
existence.[68]

Premises considered, we rule that two of the claimants to the estate of

Guillermo Rustia,

namely, intervenor Guillerma Rustia and

theampun-

ampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under
Article 1002 of the new Civil Code, if there are no descendants, ascendants,
623

illegitimate children, or surviving spouse, the collateral relatives shall succeed to

the entire estate of the deceased.Therefore, the lawful heirs of Guillermo Rustia are
the remaining claimants, consisting of his sisters, [69] nieces and nephews.[70]

ENTITLEMENT TO LETTERS OF ADMINISTRATION

An administrator is a person appointed by the court to administer the

intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes
an order of preference in the appointment of an administrator:
Sec. 6. When and to whom letters of administration granted. If no
executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give a bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next
of kin, or both, in the discretion of the court, or to such person
as such surviving husband or wife, or next of kin, requests to
have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next
of kin, or the person selected by them, be incompetent or
unwilling, or if the husband or widow or next of kin, neglects for
thirty (30) days after the death of the person to apply for
administration or to request that the administration be granted
to some other person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it
may be granted to such other person as the court may select.

In the appointment of an administrator, the principal consideration is the

interest in the estate of the one to be appointed. [71] The order of preference does not
rule out the appointment of co-administrators, specially in cases where
justice and equity demand that opposing parties or factions be represented in the
management of the estates,[72] a situation which obtains here.
It is in this light that we see fit to appoint joint administrators, in the persons
of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of
624

Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado
and Guillermo Rustia, respectively.
WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of
the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002
decision of the Court of Appeals is AFFIRMED with the following modifications:
1.

Guillermo Rustias June 15, 1973 affidavit of self-adjudication is

hereby ANNULLED.

2.

the intestate estate of Guillermo Rustia shall inherit half of the

intestate estate of Josefa Delgado. The remaining half shall pertain to
(a) the full and half-siblings of Josefa Delgado who survived her and (b)
the children of any of Josefa Delgados full- or half-siblings who may
have

predeceased

her,

also

surviving

at

the

time

of

her

death. Josefa Delgados grandnephews and grandnieces are excluded

from her estate. In this connection, the trial court is hereby ordered to
determine the identities of the relatives of Josefa Delgado who are
entitled to share in her estate.
3.

Guillermo Rustias estate

(including

its

one-half

share

of Josefa Delgados estate) shall be inherited by Marciana Rustia vda.

de Damian and Hortencia Rustia Cruz (whose respective shares shall
be per capita)

and

the

children

of

the

late

Roman Rustia,

Sr.

(who survived Guillermo Rustia and whose respective shares shall

be per stirpes). Considering

that Marciana Rustia vda.

de Damian

and HortenciaRustia Cruz are now deceased, their respective shares

shall pertain to their estates.
4.

Letters of administration over the still unsettled intestate estates

of

Guillermo Rustia and Josefa Delgado

shall

issue

to

Carlota

Delgadovda. de de la Rosa and to a nominee from among the heirs of

Guillermo Rustia, as joint administrators, upon their qualification and

625

filing of the requisite bond in such amount as may be determined by

the trial court.
No pronouncement as to costs.
SO ORDERED.
MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES
AGAPE, ESTABANA GALOLO, and CELSA AGAPE, petitioners, vs.COURT
OF APPEALS AND JULIO VIVARES, respondents.
DECISION
TORRES, JR., J.:
Unless legally flawed, a testators intention in his last will and testament is its life
and soul which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites
Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No.
112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review
the decision of the Court of Appeals[1] dated November 29, 1995, the dispositive
portion of which reads:
WHEREFORE, premises considered, the judgment appealed from allowing or
admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter
Testamentary in favor of petitioner Julio A. Vivares as executor without bond is
AFFIRMED but modified in that the declaration that paragraph II of the Torcuato
Reyes' last will and testament, including subparagraphs (a) and (b) are null and void
for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are
declared VALID. Except as above modified, the judgment appealed from is
AFFIRMED.
SO ORDERED."[2]
The antecedent facts:
On January 3, 1992, Torcuato J. Reyes executed his last will and testament
declaring therein in part, to wit:
xxx
626

II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties
to wit:
a. All my shares of our personal properties consisting among others of jewelries,
coins, antiques, statues, tablewares, furnitures, fixtures and the building;
b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in
common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan,
all in the province of Misamis Oriental.[3]
The will consisted of two pages and was signed by Torcuato Reyes in the
presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad
Gaputan. Private respondent Julio A. Vivares was designated the executor and in his
default or incapacity, his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a
petition for probate of the will before the Regional Trial Court of Mambajao,
Camiguin. The petitioner was set for hearing and the order was published in the
Mindanao Daily Post, a newspaper of general circulation, once a week for three
consecutive weeks. Notices were likewise sent to all the persons named in the
petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with
Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the
deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed
an opposition with the following allegations: a) that the last will and testament of
Reyes was not executed and attested in accordance with the formalities of law; and
b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the
testator at the time of the execution of the will. The opposition further averred that
Reyes was never married to and could never marry Asuncion Reyes, the woman he
claimed to be his wife in the will, because the latter was already married to Lupo
Ebarle who was still then alive and their marriage was never annulled. Thus
Asuncion can not be a compulsory heir for her open cohabitation with Reyes was
violative of public morals.
On July 22, 1992, the trial court issued an ordering declaring that it had
acquired jurisdiction over the petition and, therefore, allowed the presentation of
evidence. After the presentation of evidence and submission of the respective
memoranda, the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the
formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the
627

testimonies of the witnesses, was never married to the deceased Reyes, and,
therefore, their relationship was an adulterous one. Thus:
The admission in the will by the testator to the illicit relationship between him and
ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered,
strengthened, and confirmed by the direct testimonies of the petitioner himself and
his two attesting witnesses during the trial.
In both cases, the common denominator is the immoral meretrecious, adulterous
and adulterous and illicit relationship existing between the testator and the devisee
prior to the death of the testator, which constituted the sole and primary
consideration for the devise or legacy, thus making the will intrinsically invalid. [4]
The will of Reyes was admitted to probate except for paragraph II (a) and (b) of
the will which was declared null and void for being contrary to law and
morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the
allegation that the oppositors failed to present any competent evidence that
Asuncion Reyes was legally married to another person during the period of her
cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the assailed decision
which affirmed the trial courts decision admitting the will for probate but the
modification that paragraph II including subparagraphs (a) and (b) were declared
valid. The appellee court stated:
Considering that the oppositors never showed any competent, documentary or
otherwise during the trial to show that Asuncion Oning Reyes marriage to the
testator was inexistent or void, either because of a pre-existing marriage or
adulterous relationship, the trial court gravely erred in striking down paragraph II (a)
and (b) of the subject Last Will and Testament, as void for being contrary to law and
morals. Said declarations are not sufficient to destroy the presumption of
marriage. Nor is it enough to overcome the very declaration of the testator that
Asuncion Reyes is his wife.[5]
Dissatisfied with the decision of the Court of Appeals, the oppositors filed this
petition for review.
Petitioners contend that the findings and conclusion of the Court of Appeals was
contrary to law, public policy and evidence on record. Torcuato Reyes and Asuncion
Oning Reyes were collateral relatives up to the fourth civil degree. Witness Gloria
Borromeo testified that Oning Reyes was her cousin as her mother and the latters
father were sister and brother. They were also nieces of the late Torcuato
Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was
void ab initio as it was against public policy pursuant to Article 38 (1) of the Family
628

Code. Petitioners further alleged that Oning Reyes was already married to Lupo
Ebarle at the time she was cohabiting with the testator hence, she could never
contact any valid marriage with the latter. Petitioners argued that the testimonies of
the witnesses as well as the personal declaration of the testator, himself, were
sufficient to destroy the presumption of marriage. To further support their
contention, petitioners attached a copy of the marriage certificate of Asuncion
Reyes and Lupo Ebarle.[6]
The petition is devoid of merit.
As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated. [7] Thus, the court merely
inquires on its due execution, whether or not it complies with the formalities
prescribed by law, and the testamentary capacity of the testator. It does not
determine nor even by implication prejudge the validity or efficacy of the wills
provisions.[8] The intrinsic validity is not considered since the consideration thereof
usually comes only after the will has been proved and allowed. There are, however,
notable circumstances wherein the intrinsic validity was first determined as when
the defect of the will is apparent on its face and the probate of the will may become
a useless ceremony if it is intrinsically invalid. [9] The intrinsic validity of a will may be
passed upon because practical considerations demanded it as when there is
preterition of heirs or the testamentary provisions are doubtful legality. [10] Where the
parties agree that the intrinsic validity be first determined, the probate court may
also do so.[11] Parenthetically, the rule on probate is not inflexible and
absolute. Under exceptional circumstances, the probate court is not powerless to do
what the situation constrains it to do and pass upon certain provisions of the will. [12]
The case at bar arose from the institution of the petition for the probate of the
will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said
proceeding were: (1) whether or not the testator had animus testandi; (2) whether
or not vices of consent attended the execution of the will; and (3) whether or not
the formalities of the will had been complied with. Thus, the lower court was not
asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a
result, the declaration of the testator that Asuncion Oning Reyes was his wife did
not have to be scrutinized during the probate proceedings. The propriety of the
institution of Oning Reyes as one of the devisees/legatees already involved inquiry
on the wills intrinsic validity and which need not be inquired upon by the probate
court.
The lower court erroneously invoked the ruling in Nepomuceno vs. Court of
Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator
himself, acknowledged his illicit relationship with the devisee, to wit:

629

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection,
for all the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comfort and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
Thus, the very tenor of the will invalidates the legacy because the testator
admitted he was disposing of the properties to a person with whom he had been
living in concubinage.[13] To remand the case would only be a waste of time and
money since the illegality or defect was already patent. This case is different from
the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was
bequeathing some of his personal and real properties to his wife, Asuncion Oning
Reyes. There was never an open admission of any illicit relationship.In the case of
Nepomuceno, the testator admitted that he was already previously married and that
he had an adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on uncorroborated
testimonial evidence that Asuncion Reyes was still married to another during the
time she cohabited with the testator. The testimonies of the witnesses were merely
hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the
supposed husband of Asuncion. Thus:
The foregoing testimony cannot go against the declaration of the testator that
Asuncion Oning Reyes is his wife. In Alvarado v. City Government of Tacloban
(supra) the Supreme Court stated that the declaration of the husband is competent
evidence to show the fact of marriage.
Considering that the oppositors never showed any competent evidence,
documentary or otherwise during the trial to show that Asuncion Oning Reyes
marriage to the testator was inexistent or void, either because of a pre-existing
marriage or adulterous relationship, the trial court gravely erred in striking down
paragraph II (a) and (b) of the subject Last Will and Testament, as void for being
contrary to law and morals. Said declarations are not sufficient to destroy the
presumption of marriage. Nor is it enough to overcome the very declaration of the
testator that Asuncion Reyes is his wife.[14]
In the elegant language of Justice Moreland written decades ago, he saidA will is the testator speaking after death. Its provisions have substantially the same
force and effect in the probate court as if the testator stood before the court in full
life making the declarations by word of mouth as they appear in the will. That was
the special purpose of the law in the creation of the instrument known as the last
630

will and testament. Men wished to speak after they were dead and the law, by the
creation of that instrument, permitted them to do so. xxx All doubts must be
resolved in favor of the testators having meant just what he said. (Santos vs.
Manarang, 27 Phil. 209).
Petitioners tried to refute this conclusion of the Court of Appeals by presenting
belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle. Their failure to present the said certificate before the probate court to
support their position that Asuncion Reyes had an existing marriage with Ebarle
constituted a waiver and the same evidence can no longer be entertained on
appeal, much less in this petition for review. This Court would no try the case a new
or settle factual issues since its jurisdiction is confined to resolving questions of law
which have been passed upon by the lower courts. The settled rule is that the
factual findings of the appellate court will not be disturbed unless shown to be
contrary to the evidence on the record, which petitioners have not shown in this
case.[15]
Considering the foregoing premises, we sustain the findings of the appellate
court it appearing that it did not commit a reversible error in issuing the challenged
decision.
ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby
AFFIRMED and the instant petition for review is DENIED for lack of merit.
SO ORDERED.
G.R. No. 173540

January 22, 2014

PEREGRINA
MACUA
VDA.
vs.
TECLA HOYBIA AVENIDO, Respondent.

DE

AVENIDO, Petitioner,

DECISION
PEREZ, J.:
This is a Petition for Review on Certiorari under Rule 45.ofthe Rules of Court,
assailing the 31 August 2005 Decision 1 of the Court of Appeals (CA) in CA-G.R. CV
No. 79444, which reversed the 25 March 2003 Decision 2 of the Regional Trial Court
(RTC), Branch 8 of Davao City, in a complaint for Declaration of Absolute Nullity of
Marriage docketed as Civil Case No. 26, 908-98.
The Facts

631

This case involves a contest between two women both claiming to have been validly
married to the same man, now deceased.
Respondent Tecla Hoybia Avenido (Tecla) instituted on 11 November 1998, a
Complaint for Declaration of Nullity of Marriage against Peregrina Macua Vda. de
Avenido (Peregrina) on the ground that she (Tecla), is the lawful wife of the
deceased Eustaquio Avenido (Eustaquio). In her complaint, Tecla alleged that her
marriage to Eustaquio was solemnized on 30 September 1942 in Talibon, Bohol in
rites officiated by the Parish Priest of the said town. According to her, the fact of
their marriage is evidenced by a Marriage Certificate recorded with the Office of the
Local Civil Registrar (LCR) of Talibon, Bohol. However, due to World War II, records
were destroyed. Thus, only a Certification 3 was issued by the LCR.
During the existence of Tecla and Eustaquios union, they begot four (4) children,
namely: Climaco H. Avenido, born on 30 March 1943; Apolinario H. Avenido, born on
23 August 1948; Editha A. Ausa, born on 26 July 1950, and Eustaquio H. Avenido, Jr.,
born on 15 December 1952. Sometime in 1954, Eustaquio left his family and his
whereabouts was not known. In 1958, Tecla and her children were informed that
Eustaquio was in Davao City living with another woman by the name of
Buenaventura Sayson who later died in 1977 without any issue.
In 1979, Tecla learned that her husband Eustaquio got married to another woman by
the name of Peregrina, which marriage she claims must be declared null and void
for being bigamous an action she sought to protect the rights of her children over
the properties acquired by Eustaquio.
On 12 April 1999, Peregrina filed her answer to the complaint with
counterclaim,4 essentially averring that she is the legal surviving spouse of
Eustaquio who died on 22 September 1989 in Davao City, their marriage having
been celebrated on 30 March 1979 at St. Jude Parish in Davao City. She also
contended that the case was instituted to deprive her of the properties she owns in
her own right and as an heir of Eustaquio.
Trial ensued.
Tecla presented testimonial and documentary evidence consisting of:
1) Testimonies of Adelina Avenido-Ceno (Adelina), Climaco Avenido (Climaco)
and Tecla herself to substantiate her alleged prior existing and valid marriage
with (sic) Eustaquio;
2) Documentary evidence such as the following:

632

a. Certification of Loss/Destruction of Record of Marriage from 1900 to

1944 issued by the Office of the Civil Registrar, Municipality of Talibon,
Bohol;5
b. Certification of Submission of a copy of Certificate of Marriage to the
Office of the Civil Registrar General, National Statistics Office (NSO), R.
Magsaysay Blvd., Sta Mesa, Manila; 6
c. Certification that Civil Registry records of births, deaths and
marriages that were actually filed in the Office of the Civil Registrar
General, NSO Manila, started only in 1932;7
d. Certification that Civil Registry records submitted to the Office of the
Civil Registrar General, NSO, from 1932 to the early part of 1945, were
totally destroyed during the liberation of Manila; 8
e. Certification of Birth of Apolinario Avenido;9
f. Certification of Birth of Eustaquio Avenido, Jr.; 10
g. Certification of Birth of Editha Avenido;11
h. Certification of Marriage between Eustaquio Sr., and Tecla issued by
the Parish Priest of Talibon, Bohol on 30 September 1942; 12
i. Certification that record of birth from 1900 to 1944 were destroyed
by Second World War issued by the Office of the Municipal Registrar of
Talibon, Bohol, that they cannot furnish as requested a true
transcription from the Register of Birth of Climaco Avenido; 13
j. Certificate of Baptism of Climaco indicating that he was born on 30
March 1943 to spouses Eustaquio and Tecla;14
k. Electronic copy of the Marriage Contract between Eustaquio and
Peregrina.15
On the other hand, Peregrina testified on, among others, her marriage to Eustaquio
that took place in Davao City on 3 March 1979; her life as a wife and how she took
care of Eustaquio when he already had poor health, as well as her knowledge that
Tecla is not the legal wife, but was once a common law wife of
Eustaquio.16 Peregrina likewise set forth documentary evidence to substantiate her
allegations and to prove her claim for damages, to wit:

633

1) Marriage Contract17 between Pregrina and the late Eustaquio showing the
date of marriage on 3 March 1979;
2) Affidavit of Eustaquio executed on 22 March 1985 declaring himself as
single when he contracted marriage with the petitioner although he had a
common law relation with one Tecla Hoybia with whom he had four (4)
children namely: Climaco, Tiburcio, Editha and Eustaquio, Jr., all surnamed
Avenido;18
3) Letter of Atty. Edgardo T. Mata dated 15 April 2002, addressed to the Civil
Registrar of the Municipality of Alegria, Surigao del Norte; 19 and
4) Certification dated 25 April 2002 issued by Colita P. Umipig, in her capacity
as the Civil Registrar of Alegria, Surigao del Norte. 20
In addition, as basis for the counterclaim, Peregrina averred that the case was
initiated in bad faith so as to deprive her of the properties she owns in her own right
and as an heir of Eustaquio; hence, her entitlement to damages and attorneys fees.
On 25 March 2003, the RTC rendered a Decision 21 denying Teclas petition, as well as
Peregrinas counter-claim. The dispositive portion thereof reads:
For The Foregoing, the petition for the "DECLARATION OF NULLITY OF MARRIAGE"
filed by petitioner TECLA HOYBIA AVENIDO against respondent PEREGRINA MACUA is
hereby DENIED.
The "COUNTERCLAIM" filed by respondent PEREGRINA MACUA against petitioner
TECLA HOYBIA AVENIDO is hereby DISMISSED.22
Not convinced, Tecla appealed to the CA raising as error the trial courts alleged
disregard of the evidence on the existence of her marriage to Eustaquio.
In its 31 August 2005 Decision, 23 the CA ruled in favor of Tecla by declaring the
validity of her marriage to Eustaquio, while pronouncing on the other hand, the
marriage between Peregrina and Eustaquio to be bigamous, and thus, null and void.
The CA ruled:
The court a quo committed a reversible error when it disregarded (1) the
testimonies of [Adelina], the sister of EUSTAQUIO who testified that she personally
witnessed the wedding celebration of her older brother EUSTAQUIO and [Tecla] on
30 September 1942 at Talibon, Bohol; [Climaco], the eldest son of EUSTAQUIO and
[Tecla], who testified that his mother [Tecla] was married to his father, EUSTAQUIO,
and [Tecla] herself; and (2) the documentary evidence mentioned at the outset. It
should be stressed that the due execution and the loss of the marriage contract,
634

both constituting the condition sine qua non, for the introduction of secondary
evidence of its contents, were shown by the very evidence the trial court has
disregarded.24
Peregrina now questions the said ruling assigning as error, among others, the failure
of the CA to appreciate the validity of her marriage to Eustaquio. For its part, the
Office of the Solicitor General (OSG), in its Memorandum 25dated 5 June 2008, raises
the following legal issues:
1. Whether or not the court can validly rely on the "presumption of marriage"
to overturn the validity of a subsequent marriage;
2. Whether or not secondary evidence may be considered and/or taken
cognizance of, without proof of the execution or existence and the cause of
the unavailability of the best evidence, the original document;
and
3. Whether or not a Certificate of Marriage issued by the church has a
probative value to prove the existence of a valid marriage without the priest
who issued the same being presented to the witness stand. 26
Our Ruling
Essentially, the question before us is whether or not the evidence presented during
the trial proves the existence of the marriage of Tecla to Eustaquio.
The trial court, in ruling against Teclas claim of her prior valid marriage to
Eustaquio relied on Teclas failure to present her certificate of marriage to
Eustaquio. Without such certificate, the trial court considered as useless the
certification of the Office of the Civil Registrar of Talibon, Bohol, that it has no more
records of marriages during the period 1900 to 1944. The same thing was said as
regards the Certification issued by the National Statistics Office of Manila. The trial
court observed:
Upon verification from the NSO, Office of the Civil Registrar General, Manila, it,
likewise, issued a Certification (Exhibit "B") stating that:
records from 1932 up to early part of 1945 were totally destroyed during the
liberation of Manila on February 4, 1945. What are presently filed in this office are
records from the latter part of 1945 to date, except for the city of Manila which
starts from 1952. Hence, this office has no way of verifying and could not issue as
requested, certified true copy of the records of marriage between [Eustaquio] and
[Tecla], alleged to have been married on 30th September 1942, in Talibon, Bohol. 27
635

In the absence of the marriage contract, the trial court did not give credence to the
testimony of Tecla and her witnesses as it considered the same as mere self-serving
assertions. Superior significance was given to the fact that Tecla could not even
produce her own copy of the said proof of marriage. Relying on Section 3 (a) and
Section 5, Rule 130 of the Rules of Court, the trial court declared that Tecla failed to
prove the existence of the first marriage.
The CA, on the other hand, concluded that there was a presumption of lawful
marriage between Tecla and Eustaquio as they deported themselves as husband
and wife and begot four (4) children. Such presumption, supported by documentary
evidence consisting of the same Certifications disregarded by the trial court, as well
as the testimonial evidence especially that of Adelina Avenido-Ceno, created,
according to the CA, sufficient proof of the fact of marriage. Contrary to the trial
courts ruling, the CA found that its appreciation of the evidence presented by Tecla
is well in accord with Section 5, Rule 130 of the Rules of Court.
We uphold the reversal by the CA of the decision of the trial court. Quite recently, in
Aonuevo v. Intestate Estate of Rodolfo G. Jalandoni, 28 we said, citing precedents,
that:
While a marriage certificate is considered the primary evidence of a marital union, it
is not regarded as the sole and exclusive evidence of marriage. Jurisprudence
teaches that the fact of marriage may be proven by relevant evidence other than
the marriage certificate. Hence, even a persons birth certificate may be recognized
as competent evidence of the marriage between his parents.
The error of the trial court in ruling that without the marriage certificate, no other
proof of the fact can be accepted, has been aptly delineated in Vda de Jacob v.
Court of Appeals.29 Thus:
It should be stressed that the due execution and the loss of the marriage contract,
both constituting the conditio sine qua non for the introduction of secondary
evidence of its contents, were shown by the very evidence they have disregarded.
They have thus confused the evidence to show due execution and loss as
"secondary" evidence of the marriage. In Hernaez v. Mcgrath, the Court clarified this
misconception thus:
x x x [T]he court below was entirely mistaken in holding that parol evidence of the
execution of the instrument was barred. The court confounded the execution and
the contents of the document. It is the contents, x x x which may not be proven by
secondary evidence when the
instrument itself is accessible. Proofs of the execution are not dependent on the
existence or non-existence of the document, and, as a matter of fact, such proofs of
636

the contents: due execution, besides the loss, has to be shown as foundation for the
inroduction of secondary evidence of the contents.
xxxx
Evidence of the execution of a document is, in the last analysis, necessarily
collateral or primary. It generally consists of parol testimony or extrinsic papers.
Even when the document is actually produced, its authencity is not necessarily, if at
all, determined from its face or recital of its contents but by parol evidence. At the
most, failure to produce the document, when available, to establish its execution
may effect the weight of the evidence presented but not the admissibility of such
evidence.
The Court of Appeals, as well as the trial court, tried to justify its stand on this issue
by relying on Lim Tanhu v. Ramolete. But even there, we said that "marriage may be
prove[n] by other competent evidence.
Truly, the execution of a document may be proven by the parties themselves, by the
swearing officer, by witnesses who saw and recognized the signatures of the
parties; or even by those to whom the parties have previously narrated the
execution thereof. The Court has also held that "[t]he loss may be shown by any
person who [knows] the fact of its loss, or by any one who ha[s] made, in the
judgment of the court, a sufficient examination in the place or places where the
document or papers of similar character are usually kept by the person in whose
custody the document lost was, and has been unable to find it; or who has made
any other investigation which is sufficient to satisfy the court that the instrument
[has] indeed [been] lost."
In the present case, due execution was established by the testimonies of Adela
Pilapil, who was present during the marriage ceremony, and of petitioner herself as
a party to the event. The subsequent loss was shown by the testimony and the
affidavit of the officiating priest, Monsignor Yllana, as relevant, competent and
admissible evidence. Since the due execution and the loss of the marriage contract
were clearly shown by the evidence presented, secondary evidencetestimonial and
documentarymay be admitted to prove the fact of marriage. 30
As correctly stated by the appellate court:
In the case at bench, the celebration of marriage between [Tecla] and EUSTAQUIO
was established by the testimonial evidence furnished by [Adelina] who appears to
be present during the marriage ceremony, and by [Tecla] herself as a living witness
to the event. The loss was shown by the certifications issued by the NSO and LCR of
Talibon, Bohol. These are relevant, competent and admissible evidence. Since the
due execution and the loss of the marriage contract were clearly shown by the
637

evidence presented, secondary evidence testimonial and documentary may be

admitted to prove the fact of marriage. In PUGEDA v. TRIAS, the
Supreme Court held that "marriage may be proven by any competent and relevant
evidence. The testimony by one of the parties to the marriage or by one of the
witnesses to the marriage has been held to be admissible to prove the fact of
marriage. The person who officiated at the solemnization is also competent to
testify as an eyewitness to the fact of marriage."
xxxx
The court a quo committed a reversible error when it disregarded (1) the
testimonies of [Adelina], the sister of EUSTAQUIO who testified that she personally
witnessed the wedding celebration of her older brother EUSTAQUIO and [Tecla] on
30 September 1942 at Talibon, Bohol; [Climaco], the eldest son of EUSTAQUIO and
[Tecla], who testified that his mother [Tecla] was married to his father, EUSTAQUIO,
and [Tecla] herself; and (2) the documentary evidence mentioned at the outset. It
should be stressed that the due execution and the loss of the marriage contract,
both constituting the condition sine qua non for the introduction of secondary
evidence of its contents, were shown by the very evidence the trial court has
disregarded.31
The starting point then, is the presumption of marriage.
As early as the case of Adong v. Cheong Seng Gee, 32 this Court has elucidated on
the rationale behind the presumption:
The basis of human society throughout the civilized world is that of
marriage.1wphi1 Marriage in this jurisdiction is not only a civil contract, but it is a
new relation, an institution in the maintenance of which the public is deeply
interested. Consequently, every intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent matrimony are presumed, in the
absence of any counter-presumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of society, and if the parties
were not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law. A presumption established by our Code of
Civil Procedure is that a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage. (Sec. 334, No. 28) Semper
praesumitur pro matrimonio Always presume marriage.
In the case at bar, the establishment of the fact of marriage was completed by the
testimonies of Adelina, Climaco and Tecla; the unrebutted the certifications of
marriage issued by the parish priest of the Most Holy Trinity Cathedral of Talibon,
Bohol.
638

WHEREFORE, the Petition is DENIED and the assailed Decision of the Court of
Appeals in CA-G.R. CV No. 79444 is AFFIRMED. The marriage between petitioner
Peregrina Macua Avenido and the deceased Eustaquio Avenido is hereby declared
NULL and VOID. No pronouncement as to costs.
SO ORDERED.

639