Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286,
298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447,

473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793,
800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 18421847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245,
248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615,
641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,11801278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 16301649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 19862028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95,
107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view
is submitted that in the absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this mandamus proceeding, they
are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper court alleging
the facts with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to Protect the rights
of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts
of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights

are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is
one of public right and the object of the mandamus is to procure the enforcement of a public duty,
the people are regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator
is a proper party to proceedings of this character when a public right is sought to be enforced. If the
general rule in America were otherwise, we think that it would not be applicable to the case at bar
for the reason 'that it is always dangerous to apply a general rule to a particular case without
keeping in mind the reason for the rule, because, if under the particular circumstances the reason
for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to
error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If

petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of

decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of documents as may be
required so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general applicability and legal
effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The law itself makes a list of what should be

published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law of
the land, the requirement of due process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past
this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442;
Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an operative fact
and may have consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of
a principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither

the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties binding on the persons affected thereby.
" The cogency of this holding is apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so
aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the

extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil

Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,

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

MELENCIO-HERRERA, J., concurring:

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

PLANA, J., concurring (with qualification):

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

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

GUTIERREZ, Jr., J., concurring:

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

DE LA FUENTE, J., concurring:

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

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so
aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".

Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is

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

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To
sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and
for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to

nullify and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or
an earlier effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

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

PLANA, J., concurring (with qualification):

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

to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

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

DE LA FUENTE, J., concurring:

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 46623 December 7, 1939

MARCIAL KASILAG, petitioner,
vs.
RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL
ROSARIO, respondents.
Luis M. Kasilag for petitioner.
Fortunato de Leon for respondents.

IMPERIAL, J.:
This is an appeal taken by the defendant-petitioner from the decision of the Court of Appeals which
modified that rendered by the court of First Instance of Bataan in civil case No. 1504 of said court
and held: that the contract Exhibit "1" is entirely null and void and without effect; that the plaintiffsrespondents, then appellants, are the owners of the disputed land, with its improvements, in
common ownership with their brother Gavino Rodriguez, hence, they are entitled to the possession
thereof; that the defendant-petitioner should yield possession of the land in their favor, with all the
improvements thereon and free from any lien; that the plaintiffs-respondents jointly and severally
pay to the defendant-petitioner the sum of P1,000 with interest at 6 percent per annum from the
date of the decision; and absolved the plaintiffs-respondents from the cross-complaint relative to the

value of the improvements claimed by the defendant-petitioner. The appealed decision also ordered
the registrar of deeds of Bataan to cancel certificate of title No. 325, in the name of the deceased
Emiliana Ambrosio and to issue in lieu thereof another certificate of title in favor of the plaintiffsrespondents and their brother Gavino Rodriguez, as undivided owners in equal parts, free of all liens
and incumbrances except those expressly provided by law, without special pronouncement as to the
costs.
The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the aforesaid
civil case to the end that they recover from the petitioner the possession of the land and its
improvements granted by way of homestead to Emiliana Ambrosio under patent No. 16074 issued
on January 11, 1931, with certificate of title No. 325 issued by the registrar of deeds of Bataan on
June 27, 1931 in her favor, under section 122 of Act No. 496, which land was surveyed and identified
in the cadastre of the municipality of Limay, Province of Bataan, as lot No. 285; that the petitioner
pay to them the sum of P650 being the approximate value of the fruits which he received from the
land; that the petitioner sign all the necessary documents to transfer the land and its possession to
the respondents; that he petitioner be restrained, during the pendency of the case, from conveying
or encumbering the land and its improvements; that the registrar of deeds of Bataan cancel
certificate of title No. 325 and issue in lieu thereof another in favor of the respondents, and that the
petitioner pay the costs of suit.
The petitioner denied in his answer all the material allegations of the complaint and by way of
special defense alleged that he was in possession of the land and that he was receiving the fruits
thereof by virtue of a mortgage contract, entered into between him and the deceased Emiliana
Ambrosio on May 16, 1932, which was duly ratified by a notary public; and in counterclaim asked
that the respondents pay him the sum of P1,000 with 12 per cent interest per annum which the
deceased owed him and that, should the respondents be declared to have a better right to the
possession of the land, that they be sentenced to pay him the sum of P5,000 as value of all the
improvements which he introduced upon the land.lawphil.net

On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public deed:
"This agreement, made and entered into this 16th day of May, 1932, by and between Emiliana
Ambrosio, Filipino, of legal age, widow and resident of Limay, Bataan, P.L., hereinafter called the
party of the first part, and Marcial Kasilag, Filipino, of legal age, married to Asuncion Roces, and
resident at 312 Perdigon Street, Manila, P.L., hereinafter called party of the second part.
WITNESSETH: That the parties hereto hereby covenant and agree to and with each other as follows:
ARTICLE I. That the party of the first part is the absolute registered owner of a parcel of land in the
barrio of Alngan, municipality of Limay, Province of Bataan, her title thereto being evidenced by
homestead certificate of title No. 325 issued by the Bureau of Lands on June 11, 1931, said land
being lot No. 285 of the Limay Cadastre, General Land Registration Office Cadastral Record No.
1054, bounded and described as follows:
Beginning at point marked 1 on plan E-57394, N. 84 32' W. 614.82 m. from B.B.M. No. 3, thence N.
66 35' E. 307.15 m. to point "2"; S. 5 07' W. to point "5"; S.6 10' E. 104.26 m. to point "4"; S. 82
17' W. to point "5"; S. 28 53' W. 72.26 m. to point "6"; N. 71 09' W. to point "7"; N. 1 42' E. 173.72
m. to point 1, point of beginning, "Containing an area of 6.7540 hectares. "Points 1,2,6 and 7, B.L.;
points 3,4 and 5, stakes; points 4, 5 and 6 on bank of Alangan River. "Bounded on the North, by
property claimed by Maria Ambrosio; on the East, by Road; on the South, by Alangan River and
property claimed by Maxima de la Cruz; and on the West, by property claimed by Jose del Rosario.
"Bearing true. Declination 0 51' E. "Surveyed under authority of sections 12-22, Act No. 2874 and in
accordance with existing regulations of the Bureau of Lands, by Mamerto Jacinto, public land
surveyor, on July 8, 1927 and approved on February 25, 1931.
ARTICLE II. That the improvements on the above described land consist of the following:
Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one (1) tamarind
and six (6) boga trees.

ARTICLE III. That the assessed value of the land is P940 and the assessed value of the improvements
is P860, as evidenced by tax declaration No. 3531 of the municipality of Limay, Bataan.
ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000) Philippine
currency, paid by the party of second part to the party of the first part, receipt whereof is hereby
acknowledged, the party of the first part hereby encumbers and hypothecates, by way of mortgage,
only the improvements described in Articles II and III hereof, of which improvements the party of the
first part is the absolute owner.
ARTICLE V. That the condition of said mortgage is such that if the party of the first part shall well and
truly pay, or cause to paid to the party of the second part, his heirs, assigns, or executors, on or
before the 16th day of November, 1936, or four and one-half (4) years after date of the execution
of this instrument, the aforesaid sum of one thousand pesos (P1,000) with interest at 12 per cent per
annum, then said mortgage shall be and become null and void; otherwise the same shall be and
shall remain in full force and effect, and subject to foreclosure in the manner and form provided by
law for the amount due thereunder, with costs and also attorney's fees in the event of such
foreclosure.lawphil.net
ARTICLE VI. That the party of the first part shall pay all taxes and assessments which are or may
become due on the above described land and improvements during the term of this agreement.
ARTICLE VII. That within thirty (30) days after date of execution of this agreement, the party of the
first part shall file a motion before the Court of First Instance at Balanga, Bataan, P. I., requesting
cancellation of Homestead Certificate of Title No. 325 referred to in Article I hereof and the issuance,
in lieu thereof, of a certificate of title under the provisions of Land Registration Act No. 496, as
amended by Act 3901.
ARTICLE III. It if further agreed that if upon the expiration of the period of time (4) years stipulated
in this mortgage, the mortgagor should fail to redeem this mortgage, she would execute a deed of

absolute sale of the property herein described for the same amount as this mortgage, including all
unpaid interests at the rate of 12 per cent per annum, in favor of the mortgagee.
ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not approved by
the Court, the foregoing contract of sale shall automatically become null and void, and the mortgage
stipulated under Article IV and V shall remain in full force and effect.
In testimony whereof, the parties hereto have hereunto set their hands the day and year first herein
before written.
(Sgd.) MARCIAL KASILAG
(Sgd.) EMILIANA AMBROSIO
Signed in the presence of:
(Sgd.) ILLEGIBLE
(Sgd.) GAVINO RODRIGUEZ.

PHILIPPINE ISLANDS } ss.

BALANGA, BATAAN } ss.
Before me this day personally appeared Emiliana Ambrosio without cedula by reason of her sex, to
me known and known to me to be the person who signed the foregoing instrument, and
acknowledged to me that she executed the same as her free and voluntary act and deed.
I hereby certify that this instrument consists of three (3) pages including this page of the
acknowledgment and that each page thereof is signed by the parties to the instrument and the

witnesses in their presence and in the presence of each other, and that the land treated in this
instrument consists of only one parcel.
In witness whereof I have hereunto set my hand and affixed my notarial seal, this 16th day of May,
1932.
(Sgd.) NICOLAS NAVARRO
Notary Public
My commission expires December 31, 1933.

Doc. No. 178

Page 36 of my register
Book No. IV
One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana
Ambrosio was unable to pay the stipulated interests as well as the tax on the land and its
improvements. For this reason, she and the petitioner entered into another verbal contract whereby
she conveyed to the latter the possession of the land on condition that the latter would not collect
the interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of
the land, and would introduce improvements thereon. By virtue of this verbal contract, the petitioner
entered upon the possession of the land, gathered the products thereof, did not collect the interest
on the loan, introduced improvements upon the land valued at P5,000, according to him and on May
22, 1934 the tax declaration was transferred in his name and on March 6, 1936 the assessed value
of the land was increased from P1,020 to P2,180.
After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the conclusion and so
held that the contract entered into by and between the parties, set out in the said public deed, was

one of absolute purchase and sale of the land and its improvements. And upon this ruling it held null
and void and without legal effect the entire Exhibit 1 as well as the subsequent verbal contract
entered into between the parties, ordering, however, the respondents to pay to the petitioner, jointly
and severally, the loan of P1,000 with legal interest at 6 per cent per annum from the date of the
decision. In this first assignment of error the petitioner contends that the Court of Appeals violated
the law in holding that Exhibit 1 is an absolute deed of sale of the land and its improvements and
that it is void and without any legal effect.
The cardinal rule in the interpretation of contracts is to the effect that the intention of the
contracting parties should always prevail because their will has the force of law between them.
Article 1281 of the Civil Code consecrates this rule and provides, that if the terms of a contract are
clear and leave no doubt as to the intention of the contracting parties, the literal sense of its
stipulations shall be followed; and if the words appear to be contrary to the evident intention of the
contracting parties, the intention shall prevail. The contract set out in Exhibit 1 should be interpreted
in accordance with these rules. As the terms thereof are clear and leave no room for doubt, it should
be interpreted according to the literal meaning of its clauses. The words used by the contracting
parties in Exhibit 1 clearly show that they intended to enter into the principal contract of loan in the
amount of P1,000, with interest at 12 per cent per annum, and into the accessory contract of
mortgage of the improvements on the land acquired as homestead, the parties having moreover,
agreed upon the pacts and conditions stated in the deed. In other words, the parties entered into a
contract of mortgage of the improvements on the land acquired as homestead, to secure the
payment of the indebtedness for P1,000 and the stipulated interest thereon. In clause V the parties
stipulated that Emiliana Ambrosio was to pay, within four and a half years, or until November 16,
1936, the debt with interest thereon, in which event the mortgage would not have any effect; in
clause VI the parties agreed that the tax on the land and its improvements, during the existence of
the mortgage, should be paid by the owner of the land; in clause VII it was covenanted that within
thirty days from the date of the contract, the owner of the land would file a motion in the Court of

First Instance of Bataan asking that certificate of title No. 325 be cancelled and that in lieu thereof
another be issued under the provisions of the Land Registration Act No. 496, as amended by Act No.
3901; in clause VIII the parties agreed that should Emiliana Ambrosio fail to redeem the mortgage
within the stipulated period of four years and a half, she would execute an absolute deed of sale of
the land in favor of the mortgagee, the petitioner, for the same amount of the loan of P1,000
including unpaid interest; and in clause IX it was stipulated that in case the motion to be presented
under clause VII should be disapproved by the Court of First Instance of Bataan, the contract of sale
would automatically become void and the mortgage would subsist in all its force.
Another fundamental rule in the interpretation of contracts, not less important than those indicated,
is to the effect that the terms, clauses and conditions contrary to law, morals and public order should
be separated from the valid and legal contract and when such separation can be made because they
are independent of the valid contract which expresses the will of the contracting parties. Manresa,
commenting on article 1255 of the Civil Code and stating the rule of separation just mentioned,
gives his views as follows:
On the supposition that the various pacts, clauses or conditions are valid, no difficulty is presented;
but should they be void, the question is as to what extent they may produce the nullity of the
principal obligation. Under the view that such features of the obligation are added to it and do not go
to its essence, a criterion based upon the stability of juridical relations should tend to consider the
nullity as confined to the clause or pact suffering therefrom, except in case where the latter, by an
established connection or by manifest intention of the parties, is inseparable from the principal
obligation, and is a condition, juridically speaking, of that the nullity of which it would also occasion.
(Manresa, Commentaries on the Civil Code, Volume 8, p. 575.)
The same view prevails in the Anglo-American law, as condensed in the following words:
Where an agreement founded on a legal consideration contains several promises, or a promise to do
several things, and a part only of the things to be done are illegal, the promises which can be

separated, or the promise, so far as it can be separated, from the illegality, may be valid. The rule is
that a lawful promise made for a lawful consideration is not invalid merely because an unlawful
promise was made at the same time and for the same consideration, and this rule applies, although
the invalidity is due to violation of a statutory provision, unless the statute expressly or by necessary
implication declares the entire contract void. . . . (13 C. J., par. 470, p. 512; New York Cent. etc. R. Co.
v. Gray, 239 U.S., 583; 60 Law ed., 451; U.S. v. Mora, 97 U.S., 413, 24 Law. ed., 1017; U.S. v. Hodson,
10 Wall, 395; 19 Law ed. 937; Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed., 520; U.S. v. Bradly, 10
Pet. 343, 9 Law. ed., 448; Borland v. Prindle, 144 Fed 713; Western Union Tel. Co. v. Kansas Pac. R.
Co., 4 Fed., 284; Northern Pac. R. Co. v. U.S., 15 Ct. Cl., 428.)
Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated
that the principal contract is that of loan and the accessory that of mortgage of the improvements
upon the land acquired as a homestead. There is no question that the first of these contract is valid
as it is not against the law. The second, or the mortgage of the improvements, is expressly
authorized by section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, reading:
SEC. 116. Except in favor of the Government or any of its branches, units or institutions, or legally
constituted banking corporations, lands acquired under the free patent or homestead provisions
shall not be subject to encumbrance or alienation from the date of the approval of the application
and for a term of five years from and after the date of issuance of the patent or grant, nor shall they
become liable to the satisfaction of any debt contracted prior to the expiration of said period; but the
improvements or crops on the land may be mortgaged or pledged to qualified persons, associations,
or corporations.
It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana Ambrosio fail
to redeem the mortgage within the stipulated period of four and a half years, by paying the loan
together with interest, she would execute in favor of the petitioner an absolute deed of sale of the
land for P1,000, including the interest stipulated and owing. The stipulation was verbally modified by

the same parties after the expiration of one year, in the sense that the petitioner would take
possession of the land and would benefit by the fruits thereof on condition that he would condone
the payment of interest upon the loan and he would attend to the payment of the land tax. These
pacts made by the parties independently were calculated to alter the mortgage a contract clearly
entered into, converting the latter into a contract of antichresis. (Article 1881 of the Civil Code.) The
contract of antichresis, being a real encumbrance burdening the land, is illegal and void because it is
legal and valid.
The foregoing considerations bring us to the conclusion that the first assignment of error is wellfounded and that error was committed in holding that the contract entered into between the parties
was one of absolute sale of the land and its improvements and that Exhibit 1 is null and void. In the
second assignment of error the petitioner contends that the Court of Appeals erred in holding that he
is guilty of violating the Public Land Act because he entered into the contract, Exhibit 1. The
assigned error is vague and not specific. If it attempts to show that the said document is valid in its
entirety, it is not well-founded because we have already said that certain pacts thereof are illegal
because they are prohibited by section 116 of Act No. 2874, as amended.
In the third assignment of error the petitioner insists that his testimony, as to the verbal agreement
entered into between him and Emiliana Ambrosio, should have been accepted by the Court of
Appeals; and in the fourth and last assignment of error the same petitioner contends that the Court
of Appeals erred in holding that he acted in bad faith in taking possession of the land and in taking
advantage of the fruits thereof, resulting in the denial of his right to be reimbursed for the value of
the improvements introduced by him.
We have seen that subsequent to the execution of the contract, Exhibit 1, the parties entered into
another verbal contract whereby the petitioner was authorized to take possession of the land, to
receive the fruits thereof and to introduce improvements thereon, provided that he would renounce
the payment of stipulated interest and he would assume payment of the land tax. The possession by

the petitioner and his receipt of the fruits of the land, considered as integral elements of the contract
of antichresis, are illegal and void agreements because, as already stated, the contract of antichresis
is a lien and such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of
Appeals held that the petitioner acted in bad faith in taking possession of the land because he knew
that the contract he made with Emiliana Ambrosio was an absolute deed of sale and, further, that
the latter could not sell the land because it is prohibited by section 116. The Civil Code does not
expressly define what is meant by bad faith, but section 433 provides that "Every person who is
unaware of any flaw in his title, or in the manner of its acquisition, by which it is invalidated, shall be
deemed a possessor in good faith"; and provides further, that "Possessors aware of such flaw are
deemed possessors in bad faith". Article 1950 of the same Code, covered by Chapter II relative to
prescription of ownership and other real rights, provides, in turn, that "Good faith on the part of the
possessor consists in his belief that the person from whom he received the thing was the owner of
the same, and could transmit the title thereto." We do not have before us a case of prescription of
ownership, hence, the last article is not squarely in point. In resume, it may be stated that a person
is deemed a possessor in bad faith when he knows that there is a flaw in his title or in the manner of
its acquisition, by which it is invalidated.
Borrowing the language of Article 433, the question to be answered is whether the petitioner should
be deemed a possessor in good faith because he was unaware of any flaw in his title or in the
manner of its acquisition by which it is invalidated. It will be noted that ignorance of the flaw is the
keynote of the rule. From the facts found established by the Court of Appeals we can neither deduce
nor presume that the petitioner was aware of a flaw in his title or in the manner of its acquisition,
aside from the prohibition contained in section 116. This being the case, the question is whether
good faith may be premised upon ignorance of the laws. Manresa, commenting on article 434 in
connection with the preceding article, sustains the affirmative. He says:
"We do not believe that in real life there are not many cases of good faith founded upon an error of
law. When the acquisition appears in a public document, the capacity of the parties has already been

passed upon by competent authority, and even established by appeals taken from final judgments
and administrative remedies against the qualification of registrars, and the possibility of error is
remote under such circumstances; but, unfortunately, private documents and even verbal
agreements far exceed public documents in number, and while no one should be ignorant of the law,
the truth is that even we who are called upon to know and apply it fall into error not infrequently.
However, a clear, manifest, and truly unexcusable ignorance is one thing, to which undoubtedly
refers article 2, and another and different thing is possible and excusable error arising from complex
legal principles and from the interpretation of conflicting doctrines.
But even ignorance of the law may be based upon an error of fact, or better still, ignorance of a fact
is possible as to the capacity to transmit and as to the intervention of certain persons, compliance
with certain formalities and appreciation of certain acts, and an error of law is possible in the
interpretation of doubtful doctrines. (Manresa, Commentaries on the Spanish Civil Code. Volume IV,
pp. 100, 101 and 102.)
According to this author, gross and inexcusable ignorance of law may not be the basis of good faith,
but possible, excusable ignorance may be such basis. It is a fact that the petitioner is not conversant
with the laws because he is not a lawyer. In accepting the mortgage of the improvements he
proceeded on the well-grounded belief that he was not violating the prohibition regarding the
alienation of the land. In taking possession thereof and in consenting to receive its fruits, he did not
know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the
contract of antichresis and that the latter, as a lien, was prohibited by section 116. These
considerations again bring us to the conclusion that, as to the petitioner, his ignorance of the
provisions of section 116 is excusable and may, therefore, be the basis of his good faith. We do not
give much importance to the change of the tax declaration, which consisted in making the petitioner
appear as the owner of the land, because such an act may only be considered as a sequel to the
change of possession and enjoyment of the fruits by the petitioner, to about which we have stated

that the petitioner's ignorance of the law is possible and excusable. We, therefore, hold that the
petitioner acted in good faith in taking possession of the land and enjoying its fruits.
The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and
having introduced the improvements upon the land as such, the provisions of article 361 of the same
Code are applicable; wherefore, the respondents are entitled to have the improvements and plants
upon indemnifying the petitioner the value thereof which we fix at P3,000, as appraised by the trial
court; or the respondents may elect to compel the petitioner to have the land by paying its market
value to be fixed by the court of origin.
The respondents also prayed in their complaint that the petitioner be compelled to pay them the
sum of P650, being the approximate value of the fruits obtained by the petitioner from the land. The
Court of Appeals affirmed the judgment of the trial court denying the claim or indemnity for
damages, being of the same opinion as the trial court that the respondents may elect to compel the
petitioner to have the land. The Court of Appeals affirmed the judgment of the trial court that the
respondents have not established such damages. Under the verbal contract between the petitioner
and the deceased Emiliana Ambrosio, during the latter's lifetime, the former would take possession
of the land and would receive the fruits of the mortgaged improvements on condition that he would
no longer collect the stipulated interest and that he would attend to the payment of the land tax.
This agreement, at bottom, is tantamount to the stipulation that the petitioner should apply the
value of the fruits of the land to the payment of stipulated interest on the loan of P1,000 which is, in
turn, another of the elements characterizing the contract of antichresis under article 1881 of the
Civil Code. It was not possible for the parties to stipulate further that the value of the fruits be also
applied to the payment of the capital, because the truth was that nothing remained after paying the
interest at 12% per annum. This interest, at the rate fixed, amounted to P120 per annum, whereas
the market value of the fruits obtainable from the land hardly reached said amount in view of the
fact that the assessed value of said improvements was, according to the decision, P860. To this
should be added the fact that, under the verbal agreement, from the value of the fruits had to be

taken a certain amount to pay the annual land tax. We mention these data here to show that the
petitioner is also not bound to render an accounting of the value of the fruits of the mortgaged
improvements for the reason stated that said value hardly covers the interest earned by the secured
indebtednes.
For all the foregoing considerations, the appealed decision is reversed, and we hereby adjudge: (1)
that the contract of mortgage of the improvements, set out in Exhibit 1, is valid and binding; (2) that
the contract of antichresis agreed upon verbally by the parties is a real incumbrance which burdens
the land and, as such, is a null and without effect; (3) that the petitioner is a possessor in good faith;
(4) that the respondents may elect to have the improvements introduced by the petitioner by paying
the latter the value thereof, P3,000, or to compel the petitioner to buy and have the land where the
improvements or plants are found, by paying them its market value to be filed by the court of origin,
upon hearing the parties; (5) that the respondents have a right to the possession of the land and to
enjoy the mortgaged improvements; and (6) that the respondents may redeem the mortgage of the
improvements by paying to the petitioner within three months the amount of P1,000, without
interest, as that stipulated is set off by the value of the fruits of the mortgaged improvements which
petitioner received, and in default thereof the petitioner may ask for the public sale of said
improvements for the purpose of applying the proceeds thereof to the payment of his said credit.
Without special pronouncement as to the costs in all instances. So ordered.
Diaz, J., concur.

Separate Opinions

VILLA-REAL, J., concurring and dissenting:

According to the contract entered into May 16, 1932, between Emiliana Ambrosio, in life, and the
petitioner Marcial Kasilag, the first, in consideration of the sum of P1,000 given to her by the second,
constituted a mortgage on the improvements only of the land which she acquired by way of
homestead. The improvements which she mortgaged consisted of four fruit bearing mango trees,
one hundred ten hills of bamboo trees, 1 tamarind tree and 6 betelnut trees, the assessed value of
which was P660. The condition of the loan were that if the mortgagor should pay the mortgage on
November 16, 1936, that is, four and a half years after the execution of the deed, said sum of P1,000
with interest thereon at 12% per annum, the aforesaid mortgage would become null and void,
otherwise it would remain in full force and effect and would b subject to foreclosure in the manner
provided by law; that the mortgagor would pay all the land tax on the land and its improvements
during the duration of the contract; and that if after the expiration of the said period of four and a
half years the mortgagor should fail to redeem the mortgage, she would execute in favor of the
mortgage an absolute deed of sale of the property described in the contract for the same sum of
P1,000 plus interest due and unpaid at the rate of 12 per cent per annum.
The principal rule in the interpretation of contracts is that "If the terms of a contract are clear and
leave no doubt as to the intention of the contracting parties, the literal sense of its stipulations shall
be followed. If the words appear to be contrary to the evident intention of the contracting parties,
the intention shall prevail" (article 1281, Civil Cod). "In order to judge as to the intention of the
contracting parties, attention must be paid principally to their conduct at the time of making the
contract and subsequently thereto." (Article 1282.)
Now, then what is the true nature of the contract entered into between the parties by virtue of the
deed of sale executed by them on May 16, 1932? The Court of Appeals held that it is an absolute
deed of sale of a land with a homestead certificate of title, under the guise of a loan secured by a

mortgage upon its improvements in order to go around the prohibition contained in section 116 of
Act No. 2874, as amended by section 23 of Act No. 3517.
Closely examined, the only clauses of the contract which may lead to the conclusion that it is one of
the sale are those which state that if at the expiration of the period of four years and a half the
mortgagor should fail to pay the amount of the loan plus interest due and unpaid at the rate of 12
per cent per annum, she would execute in favor of the mortgagee a deed of absolute sale of the land
whose improvements were mortgaged for the amount of the loan and the interest owing. It will be
seen that the sale would not be made until after the lapse of four and a half years from the
execution of the deed, if the mortgagor should fail or should not wish to redeem the mortgaged
improvements. Consequently, the obligation contracted by said mortgagor was no more than a
conditional promise to sell. Now, then, is this a promise to sell valid? Like any other onerous,
consensual and mutually binding contract, that of promise to sell requires for its legal existence and
validity the concurrence of consent, consideration and subject-matter. The contract before us dos
not show what is the cause or consideration for such promise to sell. Assuming that it was the
economic impotence of the mortgagor to redeem the mortgaged improvements, before she could be
compelled to comply with her obligation to sell, there is need to wait until she should fail of funds or
to abandonment. The cause will come into being only upon the happening of said event after the
four and half years and only then will the said contract of promise to sell have juridical existence.
The P1,000 and its interest, should the mortgagor fail to redeem the improvements upon the
maturity of the indebtedness, would be the consideration of the sale; because the promise to sell is
a contract different and distinct from that of sale and each requires a consideration for its existence
and validity.
The terms of the contract are clear and explicit and do not leave room for doubt that the intention of
the contracting parties was to constitute a mortgage on the improvements of the land in litigation to
secure the payment of the loan for P1,000, within interest thereon at 12 per cent per annum. It
cannot be said that this contract is simulated because the assessed value of the improvements is

P860 only. It is well known that rural properties are valued for assessment purposes not less than
half of their market value. The true value of the said improvements may therefore be P1,720, and
the mortgagee may have considered that adequate. Moreover, the petitioner could not have the
property whose improvements were mortgaged to him the property whose improvements were
mortgaged to him even should the mortgagor default in the payment of interest. He could only have
the mortgaged improvements in case of foreclosure should he bid therefor at the sale. Neither could
the mortgagor sell the same property to the mortgagee, even after the expiration of five years from
the issuance of the homestead certificate of title, for then the sale would be in satisfaction of an
obligation contracted during the five years, which is prohibited by the oft-mentioned section 116 of
Act No. 2874, as amended by section 23 of Act No. 3517. The fact that after one year the contracting
parties had novated the contract of loan secured by a mortgagee, converting the same into a
contract of anti-chresis because of the mortgagor's failure to pay the accrued interest, does not
show that they intended to enter into a contract of sale, because the conversion in this case of the
contract of loan secured by a mortgage into one of antichresis was accidental, due to the
mortgagor's default in the payment of unpaid interest for the first year. if the parties' intention from
the beginning had been to sell the property, the mortgagee would have immediately entered upon
the possession of the land instead of waiting until after the expiration of one year. The transfer of the
Torrens certificate of title to the homestead by the original owner to the mortgagee in 1934 was only
a consequence of the conversion of the mortgage loan into an anti-chretic loan, the parties having
such a transfer. The setting off of the interest on the debt against the fruits of the property given in
antichresis finds authority in article 1885 of the of the Civil Code. There is, therefore, no ambiguity in
the terms of the contract warranting the search outside its four corners for the true intention of the
contracting parties other than that of entering into a contract of loan secured by the said
improvements. If the true intention of the contracting parties, as clearly gathered from the terms of
the contract, was to enter into a contract, was to enter into a contract of loan secured by a mortgage
upon the improvements, although they should convert it into a contract of antichresis after one year
and although after the maturity of the loan with interest they may wish to convert it into one of

absolute sale both conversions being illegal and, hence, void, 8 the original intention of
entering into a contract of loan secured by a mortgagee upon the improvements would prevail, the
said contract of loan being the only one legal and valid, and the petitioner having acted in good faith
in making it.
The verbal contract of antichresis, entered into by the petitioner Marcial Kasilag and Emiliana
Ambrosio, being null and void ab initio and without any legal effect because it is in violation of the
express prohibition of section 116 of Act No. 2874 as amended by section 23 of Act No. 3517, (article
4 of the Civil Code), the contracting parties should restore to each other the things which have been
the subject-matter of the contract, together with their fruits, and the price paid therefor, together
with interest, pursuant to Article 1303 of the same Code. Marcial Kasilag, therefore, should return to
Emiliana Ambrosio or to her heirs the possession of the homestead and the improvements thereon
with its fruits, and Emiliana Ambrosio or her heirs should pay him the sum of P1,000, being the
amount of the loan, plus interest due and unpaid.
As to the improvements introduced upon the land by the petitioner, having done so with the
knowledge and consent of its owner Emiliana Ambrosio, the former acted in good faith, and under
article 361 of the Civil Code, the owner of the land may have the said improvements upon paying
the indemnity provided in articles 453 and 454, or may compel the said Marcial Kasilag, who
introduced the said improvements, to pay the price of the land. If the herein respondents, as heirs of
Emiliana Ambrosio, do not wish or are unable to pay for said improvements, and Marcial Kasilag does
not wish or is unable to pay the land, said petitioner would lose his right of intention over the same
(Bernardo vs. Batalan, 37 Off. G., No. 74, p. 1382), provided that he may remove the improvements
which he had introduced in good faith.
In view of the foregoing, I concur in the majority opinion except insofar as it holds that the interest is
set off against the fruits of the mortgaged improvements, because as a result of the nullity of the
contract of antichresis the petitioner should return to the respondents the products of the mortgaged

improvements, and the latter should pay to the petitioner the amount of the loan plus interest due
and unpaid at the rate of 12 per cent per annum from the date of the contract until fully paid.
LAUREL, J., concurring in the result:
On August 27, 1918, Emiliana Ambrosio put in a homestead application for lot No. 285 of the Limay
cadastre, Province of Bataan. After complying with the requisite legal formalities, she obtained
therefor homestead patent No. 16074, the same having been recorded in the Registry of Deeds of
Bataan on Juner 26, 1931. On May 16, 1932, she entered with the herein petitioner, Marcial Kasilag,
into a contract, Exhibit 1, inserted in the foregoing majority opinion.
Sometime in 1933, or a year after the execution of the aforequoted and land taxes, whereupon, the
mortgage, Marcial Kasilag, and the mortgagor, Emiliana Ambrosio, verbally agreed that the former
would pay the land taxes and waive the unpaid interest, enter into the possession of the property in
question, introducing improvements thereon, and thereafter be reimbursed for the value of such
improvements. Under this verbal pact, Kasilag went into possession of the property, planted it with
the fruit trees allegedly valued at P5,000, and on May 22, 1934, declared the same for taxation
purposes. In 1934 the original homesteader, Emiliana Rodriguez, Severo Mapilisan, Ignacio del
Rosario and Gavino Rodriguez.
On May 16, 1936, the said heirs, with the exception Gavino Rodriguez who testified for the
defendant, sued Marcial Kasilag in the Court of First Instance of Bataan to recover the possession of
the aforesaid property belonging to their mother. For answer, the defendant put in as was in good
faith with the knowledge and tolerance of the plaintiffs, a counterclaim for P1,000 representing the
loan to the deceased homesteader with stipulated interest there on, and a recoupment for P5,000
allegedly the value of the improvements he had introduced upon the land. On the issues thus joined,
the trial court gave judgment for the defendant couched in the following language:

Resuming all that has been said above, the court find and declares that the deed of combined
mortgage and sale executed by Emiliana Ambrosio in favor of the defendant Marcial Kasilag and
dated May 16, 1932, is null and void as a contract for a future conveyance or sale of the homestead,
but valid as an equitable mortgage on the improvements for the sum of P1,000; and that the
possession of the homestead by the defendant Marcial Kasilag by virtue of said contract or by virtue
of any other agreement is null and void, but that the making of the improvements thereon by him,
which the court finds to be valued at P3,000, by virtue of the verbal agreement entered into after
the executing of the original instrument of mortgage, was in good faith, entitling the said Marcial
Kasilag to be reimbursed of their actual value, the above-mentioned amount. Wherefore, let
judgment be entered declaring that the plaintiffs are entitled to the possession as owners of the
homestead subject of the present suit, lot No. 285 of the Limay cadastral survey, subject to an
encumbrance of the improvements for the sum of P1,000 in favor of the defendant, ordering the
defendant deliver unto the plaintiffs in turn to pay unto the defendant jointly and severally, as heirs
of their deceased mother Rafaela Rodriguez the sum of P3,000, value of the improvements
introduced on said homestead by defendant. Let there be no pronouncement as to costs." On appeal
by the plaintiffs, the Third Division of the Court of Appeals reached a different result and modified
the judgment of the trial court as follows:
Wherefore, the appealed judgment is hereby modified by declaring that the contract, Exhibit "1", is
entirely null and void; that the plaintiffs and appellants are the owners of the lot in question together
with all the improvements thereon in common with their brother, Gavino Rodriguez, and are,
therefore, entitled to the possession thereof; ordering the defendant and appellee to vacate and
deliver the possession of the aforementioned plaintiffs and appellants free from any encumbrance;
requiring latter, however, to pay jointly and severally to the said appellee the sum of P1,000 with the
interest thereon at the rate of 6 per cent per annum from and including the date this decision
becomes final; and absolving the said plaintiffs and appellants from the cross-complaint with respect
to the value of the improvements claimed by the appellee.

It is further ordered that the register of deeds of Bataan cancel the certificate of title No. 325 in the
name of the deceased, Emiliana Ambrosio, and issue in lieu thereof anew certificate of title in favor
of the herein plaintiffs and appellants and their brother, Gavino Rodriguez, as owners pro
indiviso and in equal shares free from any lien or encumbrance except those expressly provided by
law.
Without special pronouncement as to the costs.
The case is before us on petition for certiorari which was given due course, filed by defendantappellee, Marcial Kasilag, now petitioner, against plaintiffs-appellants, Rafaela Rodriguez and others,
now respondents. The burden of petitioner's case is condensed in the following assignments of error:
The Honorable Court of Appeals erred:
I. In having interpreted that document Exhibit "1" is an absolute sale and declared it entirely null and
void, and in not having interpreted and declared that it is a deed of combined mortgage and future
sale which, if void as a contract for future conveyance of the homestead in question is, however,
valid as an equitable mortgage on the improvements thereof for the sum of P1,000 loaned by
petitioner Marcial Kasilag to the homestead owner Emiliana Ambrosio.
II. In holding that the petitioner was guilty of the violation of the public land law for having entered
into said contract Exhibit "1".
III. In not giving probative value to the uncontradicted testimony of the petitioner Marcial Kasilag
that he was expressly authorized by the homestead owner Emiliana Ambrosio to introduction by him
of improvements therein by virtue of the verbal agreement entered into after the execution of the
original instrument of mortgage was in good faith, entitling him to reimbursed of the actual value of
improvements he introduced.

Boiled down to the fundamentals, there are only two propositions which stands to be resolved in this
appeal: (1) What is the legal nature of the agreement, Exhibit 1, entered into by and between the
parties? and (2) Is Marcial Kasilag guilty of bad faith in entering upon the possession of the
homestead, paying the land tax and introducing improvements thereon?
The numerous adjudications in controversies of this nature will show that each case must be decided
in the light of the attendant circumstances and the situation of the parties which, upon the whole,
mark its character. However, for the purpose of ascertaining the manner and extent to which
persons have intended to be found by their written agreements, the safe criterion, the time honored
test, is their contention which is intimately woven into the instrument itself. It is true that resort to
extrinsic evidence is imperative when the contract is ambiguos and is susceptible of divergent
interpretations; nevertheless, the primary obligation of the courts is to discover the intention of the
contracting parties, as it is expressed by the language of the document itself. We are not authorized
to make a contract for the parties.
In the trial court as in the Court of Appeals, the discussion centered on the nature and validity of the
document, Exhibit 1. This is the correct approach. The Court of Appeals, however, rejected the
conclusion of the trial court that it is an absolute deed of sale which is null and void in its entirely
because it is banned by section 116, as amended of the Public land Act. The ruling is now assailed
by the petitioner. I share petitioner's view that the deed is not what it was construed to be by the
Court of Appeals.
From Article I to III thereof is a description of the homestead and the improvements existing thereon.
By its Article IV the homesteader, Emiliana Ambrosio, "encumbers and hipothecates, by way of
mortgage, only the improvements described in Articles II and III" under the conditions set out in
Articles V, VI and VII. Its closing Articles VIII and IX, particularly relied upon by the Court of Appeals,
speak, not of a present deed of absolute sale, but of one to be executed "upon the expiration of the
period of time (4 years) stipulated in the mortgage" if "the mortgagor should fail to redeem this

mortgage". In other words, the redemption of the mortgage by the payment of the loan may bring
about the frustration of contemplated sale, hence, to hold unqualifiedly that the whole of Exhibit 1,
or even a part thereof, is an absolute deed of sale would be to do violence to the terms of the
document it self.
Still other tokens drive home the same conviction. The intimation by the Court of Appeals that the
petitioner "know, therefore, that the land subject of the patent could not be alienated by express
prohibition of law," is an argument that the petitioner could not have brazenly disregarded the law
by intending Exhibit 1 to be an absolute deed of sale. Its further observation that "the stipulation
under article VIII of the contract, Exhibit '1' . . . clearly indicates that there was nothing left to be
done except the execution of the deed of absolute sale," is a concession that no such sale has yet
been executed. Finally it will be recalled that under Article VII of Exhibit 1, "within thirty (30) days
after date of execution of this agreement the party of the first part shall file a motion before the
Court of First Instance of Balanga, Bataan, P.I., requesting cancellation of homestead certificate of
title No. 325 referred to in Article 1 hereof and the issuance, in lieu thereof, of a certificate of title
under the provisions of Land Registration Act 496, as amended by Act 3901." And by its Article IX it
provides "That in the event the contemplated motion under Article VII hereof is not approved by the
Court, the foregoing contract of sale shall automatically become null and void." (Underlining is
mine.) We have nothing in the record to show that the required motion was filed within thirty days or
thereafter, by Emiliana Ambrosio in life, or by her successors-in-interest after her death. Indeed,
Homestead Certificate of Title No. 325, sought to be substituted by another through the said motion,
still stands. It is, evident, therefore, that the projected sale has and may never come into being,
because under Article IX of Exhibit 1, it became automatically null and void. This view, incidentally,
precludes further consideration of the validity or invalidity of the sale clause of Exhibit 1, as it will
purely academic to dwell upon the nature and effect of a contract that has passed out of existence in
the contemplation of the parties.

Having reached the conclusion, upon its plain language and unequivocal import, that Exhibit 1 is
essentially and fundamentally a mortgage upon the improvements found on the questioned
homestead, with a conditional clause for the future sale of said homestead and improvements which
has become a "dead twig" still attached to a living tree because the condition has never been
performed, I would, under Articles 1281 and 1283 of the Civil Code, be otherwise content in resting
our decision of this aspect of the case on this interpretation. But I do not propose to so limit my
inquiry in view of the fact that the Court of Appeals points to contemporaneous and subsequent
circumstances, beyond the four corners of the document, Exhibit 1, allegedly revelatory of
petitioner's concealed but evident intention to circumvent the law. I may state, at the outset, that
these circumstances are fairly susceptible of legitimate explanations. The appealed decision could
not conceive of a man, of petitioner's intelligence, who "would accept improvements valued at only
P860 as security for the payment of a larger amount of P1,000." But we are concerned with an
assessed valuation which is not always nor even frequently the value that it can command in the
market. To ignore this is to live in monastic seclusion. The appealed decision would imply from the
fact that petitioner subsequently paid the land taxes and from the further fact that Emiliana never
paid stipulated interest on the one thousand-peso loan, that Exhibit 1 was meant to vest absolute
title irretrievably in the petitioner. It could hardly be supposed at the time of the execution of Exhibit
1 that the homesteader would fail to make these payments, nor does it seem just to draw from these
circumstances, induced by Emiliana's own neglect, deductions unfavorable to the petitioner. That the
petitioner went upon the possession of the questioned property is not proof that he was even
already the would-be owner thereof, for as elsewhere stated, the said possession came practically at
the suggestion of or at least with the consent of Emiliana Ambrosio as a result of her failure to live
up to her part of the bargain. Finally, the Court of Appeals asked: "If the real purpose was to
mortgage the improvements only as specified in article IV of the contract, why is it that in article VIII
thereof it was provided that in case of failure to redeem the alleged mortgage the grantor would be
required to execute a de of absolute sale of the property described therein for the same amount of
the mortgage in favor of the grantee, and not of" the improvements only'?" The precaution which

the petitioner took to have the sale clause of Exhibit I so phrased that the said sale would not be
affected until after the expiration of the five-year period prohibited by law, at which time the
alienation of the homestead would then have been perfectly legitimate, may not be without
significance to show petitioner's respect for and intention to be on the side of the law. The very
mention of the word "sale" in the document in question argues against any attempt at concealment,
for if the said document was intended as a cover and cloak of an illegal alienation, then the
reference to the contract of sale therein was illtimed and foolhardy.
The question next at hand is whether or not the mortgage constituted upon the improvement's of
the homestead is valid. It is, under express provisions of section 116 of the Public Land Act, before
and after its amendment, reading pertinently that "the improvements or crops on the land may be
mortgaged or pledged to qualified persons, associations, or corporations." I find no occasion to
dispute this legislative policy however mistaken it may be. It is sufficient to observe that what the
law permits may be done. Upon the other hand, I find no occasion to test the legality of the sale
provisions of Exhibit 1, as I have heretofore said, this question is, in my opinion, moot. Moreover, the
petitioner, technically, is barred from raising this question, as he did not appeal from and, therefore,
abided by the decision of the trial court which outlawed this sale clause as violative of the provisions
of section 116 of the Public Land Act. This part of the decision of the trial court was affirmed by the
Court of Appeals when the latter struck down Exhibit 1 in its entirety and, even now, petitioner does
not complain against the destruction of Exhibit 1 with respect to its sale clause. In other words,
counsel for petitioner concedes all along that the said sale clause may be properly legislated out. As
the mortgage provisions of Exhibit 1 are independent of and severable from the rest thereof, the
same are perfectly enforceable. Where a part of the contract is perfectly valid and separable from
the rest, the valid portion should not be avoided. (Ollendorf vs. Abrahamson, 38 Phil., 585.)
The question yet to be answered is whether the petitioner's possession of the question homestead
was in good faith so as to entitle him to reimbursement for improvements introduced upon the land.
The basis of petitioner's possession was a verbal agreement with the original homesteader whereby,

for failure of the latter to comply with her obligations to pay land taxes and stipulated interest on the
loan, the former assumed the said obligations for the privilege of going into possession of the
property, introducing improvements thereon, and thereafter being reimbursed for the value of such
improvements. The petitioner did enter upon such possession, planted the land to fruit trees valued
at P5,000, according to him, and P3,000, according to the trial judge. It should be stated, in passing,
that the Court of Appeals was unable to belie this verbal agreement, although it was of the opinion
"that the trial court erred in giving probative value to the testimony of the appellee with reference to
the alleged verbal agreement". Its reason for the opinion is not because the testimony is untrue, but
because even if it were true, "it only tends to corroborate the allegation that he acted in bad faith
when he took possession of the property and made improvements thereon, because then he knew
full well that the homestead owner could not enter into an agreement involving the future final and
absolute alienation of the homestead in his favor." As the said opinion and the reason back of it does
not involve a question of strict fact, it is in our power to inquire into its soundness. The weakness of
the argument lies, first, in its, (a) inconsistency and (b) in the misconception of the legal principle
involved: inconsistency, because it considers entry of possession, payment of land tax
as facts tending to show the real character of the transaction and as evidencing bad faith on the part
of the petitioner, but at the same time it improperly rejects the verbal agreement by which such
facts are established. It is clear that we cannot directly reject the verbal agreement between the
parties in so fat as it is favorable to the petitioner. The misconception proceeds from the erroneous
legal conclusion that, upon the facts, the good faith is attributable to the petitioner alone and that
Ambrosio was not to be blamed for the prohibited alienation of the homestead, as I shall presently
proceed to discuss.
In holding that the petitioner was a possessor in bad faith, the decision sought to be reviewed first
laid down the premise that such possession is banned by law at least for five years from the
issuance of patent (section 116, Public Land Act), assumed that the petitioner had knowledge of
such law, and then drew the conclusion that the petitioner was aware of the illegality of his

possession. We think that the assumption and conclusion are precipitate. As observed in the
foregoing majority opinion-citing Manresa-knowledge of a legal provision does not necessarily mean
knowledge of its true meaning and scope, or of the interpretation which the courts may place upon
it. In this particular case, what section 116 of the Public Land Act prohibits is the "incumbrance or
alienation" of land acquired thereunder within the period prescribed therein. We may concede, as
assumed by the appealed decision, that the petitioner was cognizant of said section 116, but this is
not saying that petitioner knew that his possession came under the phrase "incumbrance or
alienation" prohibited by law, and that the petitioner, therefore, knew that his possession was illegal.
The import of the phrase "incumbrance or alienation" is a subject upon which "men of reason may
reasonably differ," in the same way that we ourselves have differed in the deliberation of this case. It
is not correct to assume that the petitioner had knowledge of the illegality of his possession. The
contrary assumption, namely, that petitioner had no idea of such illegality, would have been more in
accord with the experience of everyday, for petitioner would not have invested money and labor in
the land and assumed obligations incumbent upon the homesteader if he had even the least
suspicion that all his efforts would count for nothing and would in the end entangle him in a mild
scandal. As possession in bad faith does not necessarily mean possession illegal under the law, it
being necessary that the possessor be aware of such illegality, it follows that the petitioner's
possession of the homestead of the respondents was in good faith. (Art. 433, Civil Code.) "Good faith
is always presumed, and the burden of proving bad faith on the part of the possessor rests upon the
person alleging it" (article 434, Civil Code.) As a bona fide possessor, and it being unquestioned that
the improvements introduced by him upon the land redounded to its benefit, the petitioner is by law
entitled to be paid for the value of such improvements in the amount of P3,000, as found by the trial
judge. "Useful expenditures shall be paid the possessor in good faith with the same right of
retention, the person who has defeated him in his possession having the option of refunding the
amount of such expenditures or paying him the increase in value which the thing has acquired by
reason thereof." ( Article 453, 2nd par., Civil Code). The reimbursement in this particular case is the

more in order in view of the express undertaking of respondent's predecessor-in-interest to pay

therefor.
Even the equities of the case militate against the respondents and in favor of the petitioner. There is
a concession that the petitioner's possession was neither imposed upon nor wrested from the
homesteader; on the contrary, it came about by virtue of a mutual agreement whereby the said
homesteader and the herein respondents were spared the burden of paying for land taxes and
stipulated interest and extended the benefit of having their land improved on condition that they
pay the value of such improvements upon redeeming the land. We also have uncontradicted fact
that P400 of the one thousand-peso loan were given to the herein respondents and the balance kept
by their mother. They may not reap and retain these benefits at the same time repudiate and go
back upon contractual obligations solemnly entered into.
But let grant that the contract, Exhibit 1, is one of absolute sale, as found by the Court of Appeals,
what then? As the land could not be alienated for five years from the date of the issuance of the
patent, the sale was illegal and void because it was entered into in violation of section 116 of the
Public Land Act, as amended. By whom was the law violated? Certainly, not by Kasilag alone but by
Ambrosio as well. Both are presumed to know the law, and we cannot justly charge Kasilag alone
with that knowledge on the alleged reason that Kasilag is rich and Ambrosio is poor. Neither can we
proceed on the bare assumption that because Exhibit 1 was written in English it was prepared by
Kasilag as if he were the only English-speaking person in the Province of Bataan where the document
was executed. Are we already living in the midst of a communistic society that we shall have to
incline invariably the balance in favor of a litigant who happens to be well-to-do, regardless of the
merits of the case? And to this end, shall we, by a series of assumptions and deductions, impute to a
party malice aforethought dishonesty and bad faith, in entering into a transaction made in the open
sun, publicly recorded and whose effectiveness was even conditioned by the approval of a court of
justice? If so, then I dare say that we have not profited by the admonition of Aristotle in
his Metaphysics centuries ago that "justice is a virtue of the soul which discards party, friendship

and sentiment and is therefore always represented as blind." There is a charm in rhetoric but its
value in cool judicial reasoning is nil.
And if as we are confidently told we should relax the legal principle with reference to Ambrosio,
because she was "poor and ignorant," I am reluctant to believe that she was ignorant of the
condition against the alienation inserted in all homestead patents, and my knowledge of the Public
Land Law, of the activities of the Department and bureau charged with the administration of public
lands, gives me just the contrary impression. Every homestead patent contains that condition.
Circulars and instructions and general information have been issued in pursuance with law. (Sec. 5,
Act No. 2874; see also sec. 5, Comonwealth Act No. 141.) I must presume that the Government and
its officials charged with the administration of public lands have complied with the law and their
duties in this connection, and I cannot believe that Ambrosio, when she alienated the property, was
unaware of the legal prohibition. Under the circumstances, then, it is reasonable to conclude that on
the hypothesis that the document, Exhibit 1, was a contract of absolute sale between Kasilag and
Ambrosio, both of them were guilty of infraction of the law. If this is correct, what is the legal
situation of the parties?
Justinian, who, by his Corpus Juris Civiles, still speaks through practically all the civil codes of
Continental Europe, considers both as having acted in good faith. "Realmente," bluntly observes
Manresa, "si los dos que se encuentran en lucha sobre la propiedad han provocado el conflicto por
su voluntad; a ciencia y paciencia del dueno del suelo, ante cuya vista las obras se han ejecutado, y
con conciencia, por parte del que edifica o planta, de que el terreno no es suyo, no hay razon alguna
que abone derecho preferente en favor de ninguno de los dos; deben, por tanto, tratarse como si los
dos hubiesen obrado de buena fe; la mala fe del uno extingue y neutraliza, en justa reciprocidad, la
del otro." (Manresa, Codigo Civil segunda edicion Tomo III pag. 203.) Article 364 of our Civil Code
then comes into play. "Where there has been bad faith, not only on the part of the person who built,
sewed, or planted on another's land, but also on the part of the owner of the latter, the rights of both
shall be the same as if they had acted in good faith. Bad faith on the part of the owner is deemed to

exist whenever the act has been done in his presence, with his knowledge and tolerance, and
without opposition on his part." ( Article 364, Civil Code; see also arts. 1303, 1306 ibid.) The codal
section is evidently based upon the vulnerable maxim of equity that one who comes into equity
must come with clean hands. A court which seeks to enforce on the part of the defendant
uprightness, fairness, and conscientiousness also insists that, if relief is to be granted, it must be to
a plaintiff whose conduct is not inconsistent with the standards he seeks to have applied to his
adversary.
Fundamenta justitiae sunt, ut ne cui noceatur, deinde ut communi serviatur. I therefore concur in the
result.
CONCEPCION, J., dissenting:
In view of the findings of fact of the Court of Appeals, which are final according to law, I dissent from
the majority opinion as to the legal denomination of the contract really entered into by the
petitioners and the now deceased Emiliana Ambrosio.
The facts according to the decision of the Court of Appeals are as follows:
On August 27, 1918, the deceased Emiliana Ambrosio applied for the land in question as a
homestead, now known as lot No. 285 of the Limay cadastral survey of Bataan, and the application
was approved on September 10, 1919. A final proof was submitted on November 10, 1927 which
was approved on October 17, 1929. The homestead patent No. 16074 and homestead certificate of
title No. 325 were issued in favor of the applicant on June 11, 1931 which were recorded on June 26,
1931 in the office of registrar of deeds in accordance with the provisions of section 122 of Act 496.
"On or about May 16, 1932, the homestead owner, Emiliana Ambrosio offered to sell the property to
the defendant and appellee, Marcial Kasilag. The latter, upon examining her title found that it was a
homestead patent and knew, therefore, that the land subject of the patent could not be alienated by
express prohibition of law, so he devised a means by which the proposed sale might not appear in

any document and had the patentee, Emiliana Ambrosio, execute a public instrument, Exhibit '1',
purporting to be a mere mortgage of the improvements thereon consisting of four mango trees, fruit
bearing; 110 hills of bamboo trees, 1 tamarind, and 6 boga trees, with the assessed value of P860,
in consideration of the sum of P1,000 alleged to have been loaned by the said Kasilag to the said
patentee, Emiliana Ambrosio. It was expressly stipulated in that document that the aforementioned
amount should be paid within four and a half years from the date of the instrument (May 16, 1932),
the condition being that if she would fail to redeem the alleged mortgage at the expiration of the
stipulated period, she would execute a deed of absolute sale of the property therein described for
the same amount of the alleged mortgage (P1,000) including all unpaid interest at the rate of 12 per
cent per annum in favor of the alleged mortgagee. It was further stipulated therein that the said
Emiliana should pay all the taxes and assessment which might become due on the land and
improvements during the term of the agreement and that within thirty days after the date of the
execution thereof she should file a motion before the Court of First Instance of Bataan requesting the
cancellation of the homestead certificate No. 325 above referred to and the issuance in lieu thereof a
certificate of title under the provisions of the Land Registration Act 496, as amended by Act 3901.
The lot in question was originally declared for land tax purposes in the name of the homestead
(owner) Emiliana Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax
declaration was transferred in the name of the appellee, Marcial Kasilag, and on March 6, 1936 the
assessed value was raised to P2,180.
Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land
since the execution of the contract.
The evidence further discloses that the appellant entered upon the actual possession of the land and
had been holding the same up to the present time, having planted various kinds of fruit trees valued
according to him at P5,000, and collected the products thereof for his own exclusive benefit.

Relying upon the foregoing facts, the majority contends that the contract executed by the parties
was one of mortgage, as per Exhibit 1, with a promise to sell the land in question. I cannot hold to
these rulings of the majority, because the nature of the contract of mortgage is inconsistent with the
idea that the creditor should immediately enter upon a possession of the mortgaged land; that he
should pay the land tax; that he should accept as security something whose values does not cover
the amount of the loan sought to be secured, for in this case the supposed loan was P1,000, and
what were mortgaged were only the improvements consisting of 4 mango trees, 110 hills of bamboo
trees, 1 tamarind tree and 6 betelnut trees, assessed at P860.
I believe that the contract which the parties intended to execute is a promise to sell the land, for
which reason Ambrosio retained the right of ownership of the land and its improvements while the
deed of the promised sale had not been executed. Under the terms of the deed Exhibit 1, Kasilag
could not be considered the owner of the land, nor could he execute any act promised upon the
assumption of ownership, nor could he alienate the same as he had no title to it. But the parties, in
consideration of the fact that Kasilag paid in advance the price of the land and assumed the
obligation to pay the tax thereon, which Ambrosio could not pay, agreed that Kasilag may enter
upon the enjoyment of the land until the promise to sell is converted in fact into an absolute sale by
the execution of the corresponding deed by Ambrosio. It was stipulated, however, that if the sale is
not approved by the Court, Kasilag would collect the amount of P1,000 paid him as a mortgage
credit, with all the interest due and payable.
Under these circumstances, the conclusion of law that Kasilag acted in bad faith is not supported by
the established facts.
Wherefore, the plaintiffs are bound to comply with the contract as heirs of Ambrosio, by executing in
favor of Kasilag the deed of sale of the land, but should the sale, for any reason, be not approved,
Kasilag may collect the amount of P1,000 with all the interest thereon, and may execute the

judgment obtained by him upon the land and all its improvements, deducting, however, in his favor
the value of the improvements which he introduced upon the land in good faith.
In view of the foregoing, I am of the opinion that the decision of the Court of Appeals should be
reversed and that another should be entered against the respondents, requiring them to execute the
deed of sale of the land in favor of the petitioner, provided that if the sale, for any reason, be not
approved by the court, the petitioner may execute his credit upon the land and all its improvements,
after deducting the value of the improvements introduced by him upon the land.
MORAN, J., dissenting:
According to section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, "lands acquired
under the free patent or homestead provisions shall not be subject to encumbrance or alienation
from the date of the approval of the application and for a term of five years from and after the date
of issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt
contracted prior to the expiration of said period."
About June 11, 1931, homestead patent No. 16074 was issued to Emiliana Ambrosio, now deceased.
On May 16, 1932 Emiliana Ambrosio offered the sale of the said homestead to the herein petitioner,
Marcial Kasilag, and in view of the above-quoted legal prohibition, the parties executed the
document Exhibit 1, copied in the majority decision. The heirs of Emiliana Ambrosio filed a complaint
for the annulment of the contract in the Court of First Instance of Bataan, and from the judgment
rendered by said court an appeal was taken to the Court of Appeals, which held that the true
contract between the parties is one of absolute sale, wherefore, it is null and void under the already
cited legal prohibition. Marcial Kasilag comes to this court on certiorari, and this court reverses the
decision of the Court of Appeals.
The only question is as to the true contract between the parties at the time of the execution of the
deed Exhibit 1; Kasilag contends that the contract is that set out in the document Exhibit 1, that is, a

mortgage of the improvements of the homestead to secure a loan of one thousand pesos given to
Emiliana Ambrosio; and the latter's heirs, in turn, contend that the contract is one of the absolute
sale of the homestead, wherefore, it is null and void. The findings of the Court of Appeals are as
follows:
The pertinent facts as disclosed by the evidence of record are as follows:
On August 27, 1918 the deceased, Emiliana Ambrosio, applied for the land in question as a
homestead, not known as Lot No. 285 of the Limay cadastral survey of Bataan, and the application
was approved on September 10, 1919. A final proof was submitted on November 10, 1927 which
was approved on October 17, 1929. The homestead patent No. 16074 and homestead certificate of
title No. 325 were issued in favor of the applicant on June 11, 1931 which were recorded on June 26,
1931 in the office of the register of deeds in accordance with the provisions of Section 122 of Act No.
496.
On or about May 16, 1932, the homestead owner Emiliana Ambrosio offered to sell the property to
the defendant and appellee, Marcial Kasilag. The latter, upon examining her title found that it was a
homestead patent and knew, therefore, that the land subject of the patent could not be alienated by
express prohibition of law, so he devised means by which the proposed sale might not appear in any
document and had the patentee, Emiliana Ambrosio, execute a public instrument, Exhibit 1,
purporting to be a mere mortgage of the improvements thereon consisting of four mango trees, fruit
bearing; one hundred ten hills of bamboo trees, one thousand and six boga trees, with the
assessed value of P860, in consideration of the sum of P1,000 alleged to have been loaned by the
said Kasilag to the said patentee Emiliana Ambrosio. It was expressly stipulated in that document
that the aforementioned amount should be paid within four and a half years from the date of the
instrument (May 16, 1932), the condition being that if she failed to redeem the alleged mortgage at
the expiration of the stipulated period, she would execute a deed of absolute sale of the property
therein described for the same amount of the alleged mortgage (P1,000) including all unpaid

interest at the rate of 12 per cent per annum in favor of the alleged mortgagee. It was further
stipulated therein that the said Emiliana should pay all the taxes and assessment which might
become due on the land and improvements during the term of the agreement and that within thirty
days after the date of the execution thereof she should file a motion before the Court of First
Instance of Bataan requesting the cancellation of the homestead certificate No. 325 above referred
to and the issuance in lieu thereof of a certificate of title under the provisions of the Land
Registration Act No. 496, as amended by Act No. 3901.
The lot in question was originally declared for land tax purposes in the name of the homestead
owner, Emiliana Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax declaration
was transferred in the name of the appellee, Marcial Kasilag, and on March 6, 1936 the assessed
value was raised to P2,180.
Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land
since the execution of the contract.
The evidence further discloses that the appellee entered upon the actual possession of the land and
had been holding the same up to the present time, having planted various kinds of fruit trees valued
according to him at P5,000, and collected the products thereof for his own exclusive benefit.
Construing the contract, Exhibit 1, in the light of all the foregoing facts and circumstances under
which it was executed in relation to the subsequent acts of the contracting parties, we are led to the
inescapable conclusion that their real intention was to execute an agreement of absolute sale of the
homestead together with the improvements thereon. The stipulation concerning an alleged
mortgage in the instrument is a mere devise to circumvent the law which expressly prohibits the
alienation or encumbrance of the homestead during the period of five years from the date of the
issuance of the homestead patent. (Sec. 116 of Act No. 2874 as amended by Act No. 3517.)

It is inconceivable, and, therefore, we refuse to believe that the appellee, Marcial Kasilag, being an
intelligent man far above the average, would accept improvements valued at only P860 as security
for the payment of a larger amount of P1,000, the alleged loan. We entertain no doubt that at the
time the execution of the contract, Exhibit 1, the appellee knew that the homestead owner, Emiliana
Ambrosio, a poor ignorant woman, was badly in need of money and that she was determined to
dispose of and alienate definitely her homestead, as evidenced by the fact testified to by Gavino
Rodriguez as witness for the said appellee that she actually offered to sell the land to the latter. He
also knew that she would not be able to pay back to him such a large amount with interest of 12 per
cent per annum because she had no other income except what she would derive from the
homestead. Under such circumstances, there is reason to believe that she was no longer concerned
with the form in which the contract would be drawn, as long as could obtain the amount of P1,000
which was agreeable to her as the price of the homestead she offered to sell to the appellee. This
conclusion is supported in part by the subsequent action of Emiliana in not paying any interest on
the alleged loan of P1,000 or the land taxes thereon since the execution of the contract and by the
action of the appellee in declaring the land for tax purposes in his own name as owner thereof,
notwithstanding that he had no interest in the land, as he alleged, except in the improvements only.
The contract of absolute sale was consummated, because the grantor, Emiliana, received full
payment of the purchase price disguised as a loan of P1,000 and placed the grantee, Marcial Kasilag,
in absolute possession and control of the land conveyed to him with all the improvements thereon.
The stipulation under article VIII of the contract, Exhibit I, to the effect that the grantor would
execute a deed of absolute sale of the property herein described for the said amount of this
mortgage including all unpaid interest at the rate of 12 per cent per annum in favor of the
mortgagee', clearly indicates that there was nothing left to be done except the execution of the deed
of absolute sale, which is merely a matter of form in contracts of this nature, which was postponed
until after the expiration of four and a half years because by that time the period of five years within
which the property could not be alienated nor encumbered in any way, as provided by section 116 of

Act No. 2874 as amended by Act No. 3517, supra, would have already expired. If the real purpose
was to mortgage the improvements only as specified in article VIII thereof it was provided that in
case of failure to redeem the alleged mortgage the grantor would be required to execute a deed of
absolute sale of the property described therein for the same amount of the mortgage in favor of the
grantee, and not of 'the improvements only'? It is clear, therefore, that the real contract under
Exhibit 1, was one of absolute sale and not a mortgage with future sale.
In other words, although the document Exhibit 1 states that it is a mortgage of the improvements,
with a stipulation regarding a future sale of the land in case of failure to comply with the mortgage
obligations, in reality the true contract between the parties is one of absolute sale in the light of the
circumstances of the case, among them the following:
First, Emiliana Ambrosio offered the sale, not the mortgage, of her homestead to Marcial Kasilag, and
it is a fact found established by the Court of Appeals that she was agreeable to the sum of one
thousand pesos as the price of the sale offered by her. If this is so, it is unlikely that Kasilag would
refuse the offer of sale of the homestead and would accept in lieu thereof a simple mortgage of the
improvements, for the same sum of one thousand pesos;
Second. In the deed it is stipulated that, if at the expiration of the period of four and a half years, the
debtor should fail to redeem the mortgage, she would execute in favor of the creditor, Marcial
Kasilag, a deed of absolute sale not only of the mortgaged improvements but also of the land for the
same amount of the loan of one thousand pesos. This magic conversion of the mortgage of the
improvements into an absolute sale of the land at the expiration of four and a half years and without
any additional consideration can only mean that the two contracts are one and the same thing, and
that the first has been availed of to go around the legal prohibition. The scheme is very obvious, and
to make any attempt to reconcile it with good faith is simply to fall into it.
The mortgage of the improvements could not have been intended because the supposed loan which
it guaranteed was the same price of the stipulated sale to be later executed, and further because

Kasilag knew, according to the findings of fact of the Court of Appeals, that Emiliana Ambrosio was a
poor and ignorant woman who was not in a position to return to one thousand pesos;
Third. Kasilag had always considered the contract as one of sale of the land and not as a mortgage
of the improvements, because he put the tax declaration of the land in his name, paid the
corresponding land tax, took possession of the land, received the fruits thereof for his exclusive use,
and introduced thereon permanent improvements, one of them being a summer house, all of which
were valued at about five thousand pesos. It is not an attribute of a contract of mortgage that the
creditor should take possession of the mortgaged property, or that he should pay the taxes thereon.
Kasilag would not spend five thousand pesos for permanent improvements if he knew that his
possession was precarious.
Fourth. In the document it is stipulated that the debtor would pay interest, but she did not pay any,
and the alleged mortgage was not foreclosed thereby, which shows that the stipulation was nothing
but a ruse.
Fifth. The deed Exhibit 1 was drawn by Kasilag, because it is in English, and the other party is a poor
and ignorant woman, wherefore, all doubts and uncertainties arising therefrom should be resolved
against Kasilag. It is to noted that in this document are phrases indicative of the real contract
between the parties. For instance: in clause IV the word paid and not loaned is used in referring to
the loan of one thousand pesos; and clause IX of the document states "the foregoing contract of
sale."
Under all these circumstances, the irresistible conclusion is that the real contract between the
parties is an absolute sale, and that the contract of mortgage was made to appear in the document
Exhibit 1 for the sole purpose of defeating the legal prohibition. Nevertheless, the majority of this
Court, brushing aside the findings of fact made by the Court of Appeals without stating its reasons
therefor, holds as to the document Exhibit 1, that "as the terms thereof are clear and leave no room
for doubt, it should be interpreted according to the literal meaning of its clauses." I have already

shown in speaking of the second circumstance, that the context itself of the document Exhibit 1
discloses strong tokens that the contract between the parties was one of the sale and not of
mortgage. Moreover, the rule relied upon by the majority is only applicable in the absence of any
allegation that the document does not express the real contract between the parties. Under section
285, No. 1, of Act No. 190, a document, however clear its conditions may be, may and should be
rejected when it is alleged and shown by evidence aliunde that it does not express the true intent of
the parties. We have often considered as document, by its terms a contract of absolute sale, as one
of mortgage because it has been so alleged and established by convincing oral evidence.
(Cuyugan vs. Santos, 34 Phil., 100; Villa vs. Santiago, 38 Phil., 157; Laureano vs. Kilayco, 34 Phil.,
148; Cuyugan vs. Santos, 39 Phil., 970; Rodriguez vs. Pamintuan, 37 Phil., 876; see also Manalovs.
Gueco, 42 Phil., 925; Gatmaitan vs. Nepumuceno, 42 Phil., 295.)
The majority decision does not only pass over the findings of fact made by the Court of Appeals, but
further, gives weight to certain facts which said court finds not to have been established. For
instance, we have the following passages the majority decision:
One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana
Ambrosio was unable to pay the stipulated interest as well as the tax on the land and its
improvements. For this reason, she and the petitioner entered into another verbal contract whereby
she conveyed to the latter the possession of the land on condition that the latter would not collect
the interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of
the land, and would introduce improvements thereon. . . . .
. . . This stipulation was verbally modified by the same parties after the expiration of one year, in the
sense that the petitioner would take possession of the land and would benefit by the fruits thereof
on condition that he would condone the payment of interest upon the loan and he would attend to
the payment of the land tax. . . . .

These two paragraphs state as an established fact the supposed verbal contract between the parties
which Kasilag tried to prove by his testimony. However, the Court of Appeals expressly held: "We
believe, however, that the trial court erred in giving probative value to the testimony of the appellee
(Marcial Kasilag) with reference to the alleged verbal agreement with the deceased, Emiliana
Ambrosio, and based thereon the conclusion that the appellee acted in good faith," (Words in
parenthesis are mine.)
Rule 47, paragraph (b), of our Rules, provides expressly that in appeals to this court on certiorari,
"only questions of law may be raised and must be distinctly set forth." And we have held in various
decisions that in passing upon the legal conclusions of the Court of Appeals, we shall abide by the
findings of fact of said court.
I, moreover, find certain ambiguities in the majority decision, for while it states on the one hand that
the verbal contract had for its purpose the "alteration of the mortgage contract clearly entered
into, converting the latter into a contract of antichresis," (underscoring mine) thereby implying that
the mortgage contract was abandoned by the parties and ceased to exist, in the dispositive part of
its decision, the majority holds that the mortgage of the improvements is valid and binding, and
gives to the respondents the right to "redeem the mortgage of the improvements by paying to the
petitioner within three months the amount of P1,000 . . . ." It, therefore, requires compliance with a
contract that has ceased to exist.
While on the one hand the majority states that the aforesaid verbal contract is one of antichresis and
that it is void, on the other hand, it gives force thereto by holding that the interest on the loan of one
thousand pesos is sufficiently "set off by the value of the fruits of the mortgaged improvements
which the petitioner received." And, furthermore, why should the interest be set off against the fruits
of the improvements only and not against those of the entire land? And if the verbal contract of
antichresis is void, why is Kasilag not required to render an accounting of the fruits of the land
received by him which may exceed the total amount of interest, taxes and even the principal itself?

The majority states that Kasilag, in taking possessions of the homestead, receiving its fruits and
introducing improvements thereon, did so under the void contract of antichresis, and did so in good
faith as he was excusably unaware of the legal provision which prohibits the incumbrance of the
homestead within the period of five years. Whether Kasilag was aware or unaware of the legal
prohibition is again a factual question resolved by the Court of Appeals as follows: "the appellee
( Marcial Kasilag) was also aware of these provisions which were incorporated in the homestead
patent shown to him at the beginning of the transaction" (Words in parenthesis are mine). I do not
understand how we can disturb this factual finding.
I found, moreover, that in the majority decision it is ordered that, if the heirs of Emiliana Ambrosio
cannot pay the value of the permanent improvements introduced by Marcial Kasilag, the latter may
have the homestead by paying to them its price in the market. The improvements were appraised by
the trial court at three thousand pesos, and as the heirs of Emiliana Ambrosio probably inherited
nothing from the latter but poverty, they will eventually be unable to pay the said amount and, in
the last analysis, will lose the homestead of their mother. The practical effect, therefore, of the
majority decision is that the heirs of Emiliana Ambrosio will be deprived of the homestead by virtue
of a void antichretic obligation contracted by her within the period of five years from the granting of
the homestead. And this, at least, is in violation of the spirit of section 116 of the Homestead Act.
I have other reasons which I need not set out to bring this dissent to a close. But before I conclude, I
should like to state that the Homestead Act has been enacted for the welfare and protection of the
poor. The law gives a needy citizen a piece of land where he may build a modest house for himself
and family and plant what is necessary for subsistence and for the satisfaction of life's other needs.
The right of the citizens to their homes and to the things necessary for their subsistence is as vital as
the right to life itself. They have a right to live with a certain degree of comfort as become human
beings, and the State which looks after the welfare of the people's happiness is under a duty to
safeguard the satisfaction of this vital right. Moreover, a man with a home and a means of
subsistence is a lover of peace and order and will profess affection for his country, whereas one

without a home and in penury is not only a social parasite but also a dangerous element in the social
order. The Homestead Act at once aims at the promotion of wholesome and happy citizenship and
the wiping out of the germs of social discontent found everywhere.
Considering the social and economic ends of the Homestead Act, the courts should exercise supreme
care and strict vigilance towards faithful compliance with all its benign provisions and against the
defeat, directly or indirectly, of its highly commendable purposes. And it is my firm conviction that
where, as in the present case, a rich and clever man attempts to wrest a homestead granted to a
poor and ignorant woman, the slightest tokens of illegality should be enough to move the courts to
apply the strong arm of the law.
I dissent from the majority decision and vote for the affirmance of the decision of the Court of
Appeals.
AVANCEA, C.J., dissenting:
I concur in this dissenting opinion of Justice Moran.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68385 May 12, 1989
ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late
WARREN TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.
Agrava, Lucero & Gineta for petitioners.
The Office of the Solictor General for public respondents.

CRUZ, J.:
What the petitioner presents as a rather complicated problem is in reality a very simple question
from the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue
to be resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred
in dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.
Appeal from what? That indeed is the question.
But first the facts.
On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the Philippines,
died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son, Ward Graham,

filed an estate tax return on September 16, 1976, with the Philippine Revenue Representative in San
Francisco, U.S.A. 2
On the basis of this return, the respondent Commissioner of Internal Revenue assessed the
decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978. 3 This assessment
was protested on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the
estate . 4 The protest was denied by the Commissioner on July 7, 1978. 5 No further action was taken
by the estate in pursuit of that protest.
Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit
Court of Oregon6 Ward Graham, the designated executor, then appointed Ildefonso Elegado, the
herein petitioner, as his attorney-in-fact for the allowance of the will in the Philippines. 7
Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First
Instance of Rizal.8 The will was allowed on December 18, 1978, with the petitioner as ancillary
administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on
June 4, 1980. 10
On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87. 11 This was protested on behalf of the estate by the Agrava, Lucero and
Gineta Law Office on August 13, 1980. 12
While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978. 13 He said that this
liability had not yet been paid although the assessment had long become final and executory.
The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980,
against the second assessment of P72,948.87. 14 On this understanding, he filed on September 15,
1981, a petition for review with the Court of Tax Appeals challenging the said assessment. 15

The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was
filed during a delay of 195 days) and in the end instead cancelled the protested assessment in a
letter to the decedent's estate dated March 31, 1982. 16 This cancellation was notified to the Court of
Tax Appeals in a motion to dismiss on the ground that the protest had become moot and
academic. 17
The motion was granted and the petition dismissed on April 25, 1984. 18 The petitioner then came to
this Court on certiorari under Rule 45 of the Rules of Court.
The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the
decedent should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks
should be assessed as of the time of the owner's death or six months thereafter; and (3) whether the
appeal filed with the respondent court should be considered moot and academic.
We deal first with the third issue as it is decisive of this case.
In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:
Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex Building
cor. Brixton & Fairlane Sts. Pasig, Metro Manila
Sir:
This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a resident of
Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of demand were issued by this
Bureau. One is for the amount of P96,509.35 based on the first return filed, and the other in the
amount of P72,948.87, based on the second return filed.
It appears that the first assessment of P96,509.35 was issued on February 9, 1978 on the basis of
the estate tax return filed on September 16, 1976. The said assessment was, however, protested in

a letter dated March 7, 1978 but was denied on July 7, 1978. Since no appeal was made within the
regulatory period, the same has become final.
In view thereof, it is requested that you settle the aforesaid assessment for P96,509.35 within fifteen
(15) days upon receipt hereof to the Receivable Accounts Division, this Bureau, BIR National Office
Building, Diliman, Quezon City. The assessment for P72,949.57 dated July 3, 1980, referred to above
is hereby cancelled.
Very truly yours,
(SGD.) RUBEN B. ANCHETA Acting Commissioner

19

It is obvious from the express cancellation of the second assessment for P72,948.87 that the
petitioner had been deprived of a cause of action as it was precisely from this assessment that he
was appealing.
In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved. 20 As a matter
of fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.
The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the
second assessment did not have the effect of automatically reviving the first. Moreover, the first
assessment is not binding on him because it was based on a return filed by foreign lawyers who had
no knowledge of our tax laws or access to the Court of Tax Appeals.
The petitioner is clutching at straws.

It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the
estate tax return filed subject to investigation by this Office for final determination of the correct
estate tax due from the estate. Any amount that may be found due after said investigation will be
assessed and collected later." 21 It is illogical to suggest that aprovisional assessment can supersede
an earlier assessment which had clearly become final and executory.
The second contention is no less flimsy. The petitioner cannot be serious when he argues that the
first assessment was invalid because the foreign lawyers who filed the return on which it was based
were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused
from compliance therewith because of their ignorance?
If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws
in our own country. A more obvious and shallow discrimination than that suggested by the petitioner
is indeed difficult to find.
But the most compelling consideration in this case is the fact that the first assessment is already
final and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment
has become final and executory.
In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion
with the probate court, the respondent Commissioner stressed that "in a letter dated January 29,
1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that
they have paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313
Buendia Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although
he added that such payment had not yet been received. 22This letter was an acknowledgment by the

estate of the validity and finality of the first assessment. Significantly, it has not been denied by the
petitioner.
In view of the finality of the first assessment, the petitioner cannot now raise the question of its
validity before this Court any more than he could have done so before the Court of Tax Appeals.
What the estate of the decedent should have done earlier, following the denial of its protest on July
7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it
received notice of said denial. It was in such appeal that the petitioner could then have raised the
first two issues he now raises without basis in the present petition.
The question of whether or not the shares of stock left by the decedent should be considered
conjugal property or belonging to him alone is immaterial in these proceedings. So too is the time at
which the assessment of these shares of stock should have been made by the BIR. These questions
were not resolved by the Court of Tax Appeals because it had no jurisdiction to act on the petitioner's
appeal from an assessment that had already been cancelled. The assessment being no longer
controversial or reviewable, there was no justification for the respondent court to rule on the petition
except to dismiss it.
If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment
has long become final and executory. If that assessment was not challenged on time and in
accordance with the prescribed procedure, that error for error it was was committed not by the
respondents but by the decedent's estate itself which the petitioner represents. So how can he now
complain.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,
Narvasa (Chairman), Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873

April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell
14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m.
of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together
with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator
core of the 14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of
channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and
cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt
or pin which was merely inserted to connect the chain block with the [p]latform, got loose xxx
causing the whole [p]latform assembly and the victim to fall down to the basement of the elevator

core, Tower D of the building under construction thereby crushing the victim of death, save his two
(2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board
and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of
the pin which was merely inserted to the connecting points of the chain block and [p]latform but
without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint
for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among
other defenses, the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR[sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception. 4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion. 7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination. 8

The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records.
Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty
by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined
by law areprima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do
so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in
the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination,
the portions of the report which were of his personal knowledge or which consisted of his
perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the

statements of the parties based on their sworn statements (which were annexed to the Report) as
well as the latter, having been included in the first purpose of the offer [as part of the testimony of
Major Enriquez], may then be considered as independently relevant statements which were gathered
in the course of the investigation and may thus be admitted as such, but not necessarily to prove
the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant,
the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of
such statement is not secondary but primary, for the statement itself may constitute a fact in issue,
or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the
testimony in open court of the officer who made the official record, considers the matter as an
exception to the hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule
are necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the
officials would be summoned from his ordinary duties to declare as a witness are numberless. The
public officers are few in whose daily work something is not done in which testimony is not needed
from official sources. Were there no exception for official statements, hosts of officials would be
found devoting the greater part of their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of government and the interest of the public
having business with officials would alike suffer in consequence. For these reasons, and for many

others, a certain verity is accorded such documents, which is not extended to private documents. (3
Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their
several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to be true under such a degree of caution as to
the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied. The statements given by the
sources of information of Major Enriquez failed to qualify as "official information," there being no
showing that, at the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juegos remains at the morgue, 12 making the latters death beyond dispute. PO3
Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it
was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the
police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions, 18 the opinion of a witness is generally
not admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for
specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks
for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption,
or at least permit an inference of negligence on the part of the defendant, or some other person who
is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury
was such as in the ordinary course of things would not happen if those who had its control or
management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant, that the injury arose from or was caused
by the defendants want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of the
accident in order to establish negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff
complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it
proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it
is within the power of the defendant to show that there was no negligence on his part, and direct
proof of defendants negligence is beyond plaintiffs power. Accordingly, some court add to the three
prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the
res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means
of knowledge as to the cause of the accident, or that the party to be charged with negligence has
superior knowledge or opportunity for explanation of the accident. 23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14 th floor of a building to the
basement while he was working with appellants construction project, resulting to his death. The
construction site is within the exclusive control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman and others who are in complete control of

the situation therein. The circumstances of any accident that would occur therein are peculiarly
within the knowledge of the appellant or its employees. On the other hand, the appellee is not in a
position to know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available, provided the following requisites are present: (1)
the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive control of the person
charged with negligence; and (3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia
and human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to
the appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred 25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference. 27 It is not for the defendant to explain or

prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabros sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioners employees, also assails
the same statement for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible
as evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify
thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of opportunity on
the part of the adverse party to cross-examine the affiant, but also on the commonly known fact
that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own
language in writing the affiants statements which may either be omitted or misunderstood by the
one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care any more
than private respondent can use it to prove the cause of her husbands death. Regrettably, petitioner
does not cite any other evidence to rebut the inference or presumption of negligence arising from
the application of res ipsa loquitur, or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer
damages under the Civil Code.
Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee,
his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are
administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights
and remedies accruing to the employee, his personal representatives, dependents or nearest of kin
against the employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of
the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the workers right under
the Workmens Compensation Act and suing in the regular courts under the Civil Code for higher
damages (actual, moral and exemplary) from the employers by virtue of the negligence or fault of
the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmens Compensation Act and sue in addition for damages in
the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled
thatan injured worker has a choice of either to recover from the employer the fixed amounts set by
the Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for
higher damages but he cannot pursue both courses of action simultaneously. [Underscoring
supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmens Compensation
Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14,
1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation
to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full
as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in
installments x x x. Such allegation was admitted by herein petitioners in their opposition to the
motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up the defense that the
claims were filed under the Workmens Compensation Act before they learned of the official report of
the committee created to investigate the accident which established the criminal negligence and

violation of law by Philex, and which report was forwarded by the Director of Mines to then Executive
Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmens Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy was based on ignorance or a
mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the petitioners
be successful in their bid before the lower court, the payments made under the Workmens
Compensation Act should be deducted from the damages that may be decreed in their favor.
[Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the
Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all
further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that
the claimants may invoke either the Workmens Compensation Act or the provisions of the Civil
Code, subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant who has already been paid under the

Workmens Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Underscoring
supplied.)
Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits from
the State Insurance Fund. Private respondent filed the civil complaint for damages after she received
a copy of the police investigation report and the Prosecutors Memorandum dismissing the criminal
complaint against petitioners personnel. While stating that there was no negligence attributable to
the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigators report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation
to the victim, and her knowledge of the accident. She did not file the complaint for "Simple
Negligence Resulting to Homicide" against appellants employees. It was the investigator who
recommended the filing of said case and his supervisor referred the same to the prosecutors office.
This is a standard operating procedure for police investigators which appellee may not have even
known. This may explain why no complainant is mentioned in the preliminary statement of the
public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro
x x x are being charged by complainant of "Simple Negligence Resulting to Homicide." It is also
possible that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who were notified
pursuant to Law waived their rights to present controverting evidence," thus there was no reason for
the public prosecutor to summon the appellee. Hence, notice of appellants negligence cannot be
imputed on appellee before she applied for death benefits under ECC or before she received the first
payment therefrom. Her using the police investigation report to support her complaint filed on May

9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of
the Prosecutors Office dismissing the criminal complaint for insufficiency of evidence, stating
therein that: "The death of the victim is not attributable to any negligence on the part of the
respondents. If at all and as shown by the records this case is civil in nature." (Underscoring
supplied.) Considering the foregoing, We are more inclined to believe appellees allegation that she
learned about appellants negligence only after she applied for and received the benefits under ECC.
This is a mistake of fact that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as
well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the death of
her husband; and that she did not know that she may also recover more from the Civil Code than
from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991, two
months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution
finding that, although there was insufficient evidence against petitioners employees, the case was
"civil in nature." These purportedly show that prior to her receipt of death benefits from the ECC on
January 2, 1991 and every month thereafter, private respondent also knew of the two choices of
remedies available to her and yet she chose to claim and receive the benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar. 37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests
on the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses
not to assert them. It must be generally shown by the party claiming a waiver that the person
against whom the waiver is asserted had at the time knowledge, actual or constructive, of the
existence of the partys rights or of all material facts upon which they depended. Where one lacks
knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given under a mistake or
misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness
of its consequences. That a waiver is made knowingly and intelligently must be illustrated on the
record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial
court.
Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. InFloresca, it was the negligence of the mining corporation and
its violation of government rules and regulations. Negligence, or violation of government rules and
regulations, for that matter, however, is not a fact, but aconclusion of law, over which only the
courts have the final say. Such a conclusion binds no one until the courts have decreed so. It
appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been
misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The

police investigation report is dated November 25, 1990, 10 days after the accomplishment of the
form. Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not aware
of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Courts ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial court'
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

A.M. No. MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28,
Manila, respondent.

QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with Yolanda De Castro, who are living together at No.
34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he
purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been
cohabiting with De Castro. Complainant did not bother to wake up respondent and instead left the
house after giving instructions to his houseboy to take care of his children.

Thereafter, respondent prevented him from visiting his children and even alienated the affection of
his children for him.
Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five
children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore,
he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument
with De Castro inside the latter's office.
For his part, respondent alleges that complainant was not married to De Castro and that the filing of
the administrative action was related to complainant's claim on the Bel-Air residence, which was
disputed by De Castro.
Respondent denies that he caused complainant's arrest and claims that he was even a witness to
the withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According
to him, it was the sister of De Castro who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko, although he admits having five children
with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva
Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage license.
Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony
with her in Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko
abandoned respondent 17 years ago, leaving their children to his care and custody as a single
parent.
Respondent claims that when he married De Castro in civil rites in Los Angeles, California on
December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was
single because his first marriage was solemnized without a license.
Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage
before a party thereto can enter into a second marriage. Article 40 of said Code provides:

The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void.
Respondent argues that the provision of Article 40 of the Family Code does not apply to him
considering that his first marriage took place in 1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August
3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code,
said Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which
is a rule of procedure. Respondent has not shown any vested right that was impaired by the
application of Article 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of
Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to,
nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of
marriage and employed deceit to be able to cohabit with a woman, who beget him five children.
Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963.
At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer.
Yet, he never secured any marriage license. Any law student would know that a marriage license is
necessary before one can get married. Respondent was given an opportunity to correct the flaw in
his first marriage when he and Ongkiko were married for the second time. His failure to secure a
marriage license on these two occasions betrays his sinister motives and bad faith.

It is evident that respondent failed to meet the standard of moral fitness for membership in the legal
profession.
While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial
Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was
already in the judiciary.
The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of
impropriety, not only with respect to his performance of his judicial duties but also as to his behavior
as a private individual. There is no duality of morality. A public figure is also judged by his private
life. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary,
must behave with propriety at all times, in the performance of his judicial duties and in his everyday
life. These are judicial guideposts too self-evident to be overlooked. No position exacts a greater
demand on moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing
v. Tiongzon, 229 SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement
benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the
government, including government-owned and controlled corporations. This decision is immediately
executory.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-32743 February 15, 1974

PRIMITIVO ESPIRITU and LEONORA A. DE ESPIRITU, petitioners,
vs.
RICARDO CIPRIANO and THE COURT OF FIRST INSTANCE, RIZAL, BRANCH XV, respondents.
Concepcion, Victorino, Sanchez and Associates for petitioners.
Jose G. Ricardo for respondent Ricardo Cipriano.

ESGUERRA, J.:p
In this petition for certiorari, petitioners seek the review and nullification of two orders of the Court
of First Instance of Rizal, Branch XV, the first, dated August 4, 1970 sustaining private respondent
Ricardo Cipriano's motion to dismiss "on the authority of Republic Act 6126", and the second, dated
October 16, 1970, denying the motion for reconsideration of the first order. The question before Us
involves the retroactive application of the provisions of Republic Act 6126, otherwise known as the
Rental Law.
The case originated as one for unlawful detainer instituted on May 30, 1969, by plaintiffs, now
petitioners, in the Municipal Court of Pasig, Rizal, against private respondent Ricardo Cipriano for the
latter's alleged failure to pay rentals. An adverse judgment having been rendered against said

respondent, he appealed to the Court of First Instance of Rizal where the case was docketed as Civil
Case No. 338-M. In the said Court private respondent sought to amend his Answer filed in the
Municipal Court on the grounds that (1) for lack of time he was not able to disclose to his former
counsel all the material facts surrounding his case and, therefore, he was not able to fully determine
his defenses; and (2) that prior to the hearing of the case in the lower court he wanted to cause the
filing of an amended answer but was not able to do so for his alleged failure to contact his counsel.
The motion to file amended answer was denied by the Court. The parties eventually submitted a
stipulation of facts, the salient provisions of which read as follows:
1. The plaintiffs are the owners of the property in question, leased to the defendant since 1954;
2. The house of the defendant was built on the property with the knowledge and consent of the
plaintiff pursuant to an oral contract of lease;
3. Before 1969 the lease of the property was on year-to-year arrangement, rentals being then
payable at or before the end of the year;
4. The following are the rates of rentals:
(a) 1954 to 1957 P12.00 a year
(b) 1968 to 1959 P13.20 a year
(c) 1960 to 1961 P14.00 a year
(d) 1962 P16.00 a year
(e) 1963 to 1965 P24.70 a year
(f) 1967 to 1968 P48.00 a year

5. Effective January 1969 the lease was converted to a month-to-month basis and rental was
increased to P30.00 a month by the plaintiffs;
6. The defendant has remained in possession of the property up to the present;
7. Since January 1969 the defendant has not paid rental at the present monthly rate;
8. A formal notice to vacate, dated March 22, 1969, was sent by registered mail to, and received by,
defendant.
On July 7, 1970, Judge Vivencio Ruiz of the Court of First Instance of Rizal issued an order giving
private respondent herein seven days within which to file his motion to dismiss. Subsequently, on
July 13, 1970, respondent moved to dismiss petitioner's complaint, invoking the prohibitory provision
of Republic Act 6126, entitled "An Act To Regulate Rentals of Dwelling Units or of Land On Which
Another's Dwelling Is Located For One Year And Penalizing Violations Thereof.
Petitioners opposed the motion to dismiss but respondent Judge issued an order on August 4, 1970,
which reads:
On the Authority of Republic Act 6126, this Court hereby sustains the Motion for Dismissal filed by
the defendant through counsel, dated July 13, 1970.
A motion for reconsideration of said order was likewise denied by respondent Judge. Hence this
petition.
Thrust upon Us, therefore, for resolution is the problem of whether Republic Act 6126 may be held
applicable the case at bar. For convenience We reproduce the pertinent provisions of law in question:
Section 1. No lessor of a dwelling unit or of land on which another's dwelling is located shall, during
the period of one year from March 31, 1970, increase the monthly rental agreed upon between the

lessor and the lessee prior to the approval of this Act when said rental does not exceed three
hundred pesos (P300.00) a month.
Section 6. This Act shall take effect upon its approval.
Approved June 17, 1970.
It is the contention of respondent which was upheld by the trial court that the case at bar is covered
by the aforecited law. We rule otherwise. Established and undisputed is the fact that the increase in
the rental of the lot involved was effected in January, 1969, 1 while the law in question took effect on
June 17, 1970, or after a period of one year and a half after the increase in rentals had been
effected. Private respondent, however, puts forward the argument that there was no perfected
contract covering the increased rate of rentals and conversion thereof into monthly payments of
P30.00 effective January 1969, as he did not give his consent thereto. In his brief he alleges:
Defendant (respondent) herein also begs to disagree with the contention of plaintiffs. We believe and
respectfully submit that there would be no impairment of obligation of contract if Republic Act 6126
were to be applied to the present case. The alleged new contract of lease and subsequent increase
in the amount of rental were not effected as of January 1969 with respect to the defendant. He did
not accept the new rate of rental. The eloquent testimonies on record to show that defendant never
accepted the new rate of rental imposed upon him by the plaintiffs were the pretrials on the case
wherein defendant offered to accept the increase to the tone of 100%. Hence, the new contract of
lease increasing the rental had never been agreed upon by both the plaintiffs and the defendant
because the defendant never gave his consent to the new rate of rental. In effect, therefore, the
alleged new contract of lease was not a contract at all since it did not have the consent of the other
party, the defendant.
Private respondent's contention is devoid of merit. There is nothing in the stipulation of facts to show
that his consent to the increase in rentals and change in the manner of payment was essential to its

validity. There was no more subsisting yearly contract of lease at a fixed amount. It had already
expired when the increase and conversion into monthly payments took effect in January, 1969. The
lessor was free to fix a higher amount than that previously paid by the lessee (private respondent
herein) and if the latter did not agree to the increased amount, he could have vacated the premises
and thus rendered himself free from liability. Respondent Cipriano, therefore, cannot invoke lack of
consent on his part as basis for declaring the contract of lease ineffective.
Likewise the claim of private respondent that the act is remedial and may, therefore, be given
retroactive effect is untenable. A close study of the provisions discloses that far from being remedial,
the statute affects substantive rights and hence a strict and prospective construction thereof is in
order. Article 4 of the New Civil Code ordains that laws shall have no retroactive effect unless the
contrary is provided and that where the law is clear, Our duty is equally plain. We must apply it to
the facts as found. 2 The law being a "temporary measure designed to meet a temporary
situation", 3 it had a limited period of operation as in fact it was so worded in clear and unequivocal
language that "No lessor of a dwelling unit or land ... shall, during the period of one year from March
31, 1970, increase the monthly rental agreed upon between the lessor and lessee prior to the
approval of this Act." Hence the prohibition against the increase in rentals was effective on March,
1970, up to March, 1971. Outside and beyond that period, the law did not, by the express mandate
of the Act itself, operate. The said law, did not, by its express terms, purport to give a retroactive
operation. It is a well-established rule of statutory construction that "Expressium facit cessare
tacitum" 4 and, therefore, no reasonable implication that the Legislature ever intended to give the
law in question a retroactive effect may be accorded to the same. A perusal of the deliberations of
Congress on House Bill 953 which became Republic Act No. 6126, as recorded its Congressional
Records of March 5, 1970 reveals the sponsors of the Rental Law did not entertain for a moment that
a retroactive operation would be given to this enactment. We quote pertinent portions of the
discussion:
Remarks of sponsor, Mr. Roces:

Mr. Roces Mr. Speaker, the President is still observing the effect of the newly established floating
rate. In the meantime we feel that, in line with the policy that those who have less in life should
have more in law, apartment dwellers are entitled to protection. Therefore this bill proposes that the
rentals paid today will not be increased in the next 18 months.
and on pages 66 and 72 respectively of the same Congressional Record We likewise find the
following:
Mr. Gonzales Will the gentleman from Manila interpret for us the phrase "during the period of 6
months preceding the approval of this Act" in Section 2? 5
Mr. Roces. My interpretation is that the rent being paid during that period not before will be the
one considered.
Mr. Montano ... The term moratorium as utilized by the gentleman from Manila at the start of his
sponsorship was applied not in its legal acceptance but generally. For purposes of the bill, the term is
construed as suspension of increasing rents in the meantime that we have not yet determined the
real value of the currency ... .
Respondent's tenacious insistence On the retroactive operation of Republic Act 6126 represents a
last ditch effort on his part to hold on to the premises while at the same time escaping the obligation
to pay the increased rate. We can not countenance such a situation, for to permit the same to obtain
would be sanctioning a sheer absurdity and causing injustice to the petitioner herein. Well-settled is
the principle that while the Legislature has the power to pass retroactive laws which do not impair
the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not
to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless
such intent in expressly declared or clearly and necessarily implied from the language of the
enactment, 6 Similarly, in the case of La Previsora Filipina, Mutual Building and Loan Association v.
Felix Ledda, 66 Phil. 573, 577, this Court said:

It is a principle generally recognized that civil laws have no retroactive effect unless it is otherwise
provided therein (Manila Trading & Supply Co. v. Santos, G.R. No. 43861). Act No. 4118 does not
state that its provisions shall have retroactive effect, wherefore, it follows, as it is hereby declared,
that it is not applicable to the contracts entered into by the parties, and, hence the trial court erred
in granting possession to the petitioner.
The petitioner contends that said law is applicable because when the property in question was sold
at public auction said law was already in force. This contention is in our opinion untenable. The date
which should be taken into account in order to determine the applicability of the law is the date
when the contracts were entered into by the parties and not the date of the public sale, ... .
Under the circumstances of this case, We, therefore, rule that Republic Act 6126 is not applicable to
the case at bar. As the language of the law is clear and unambiguous, it must be held to mean what
it plainly says.
WHEREFORE, the assailed orders of August 4 and October 16, 1970, are hereby nullified and set
aside. The court a quo shall proceed with the prompt disposition of Civil Case No. 338-M (12285) on
the merits in accordance with Republic Act 6031 if applicable, otherwise under the prevailing
procedure prescribed by the Rules of Court.
Costs against respondent.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

FIRST DIVISION
[G.R. No. 112193. March 13, 1996]
JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T. ALANON,
ROBERTO A. TORRES, CRISTINA A. TORRES, JUSTO JOSE TORRES and AGUSTIN
TORRES, petitioners, vs. THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and
ANTONIA ARUEGO, respondents.
DECISION
HERMOSISIMA, JR., J.:
On March 7, 1983, a Complaint[1] for Compulsory Recognition and Enforcement of Successional
Rights was filed before Branch 30 of the Regional Trial Court of Manila by the minors, private
respondent Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented by their mother
and natural guardian, Luz M. Fabian. Named defendants therein were Jose E. Aruego, Jr. and the
five (5) minor children of the deceased Gloria A. Torres, represented by their father and natural
guardian, Justo P. Torres, Jr., now the petitioners herein.
In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had an amorous
relationship with Luz M. Fabian sometime in 1959 until his death on March 30, 1982. Out of this
relationship were born Antonia F. Aruego and Evelyn F. Aruego on October 5, 1962 and September 3,
1963, respectively. The complaint prayed for an Order praying that herein private respondent and
Evelyn be declared the illegitimate children of the deceased Jose M. Aruego, Sr; that herein
petitioners be compelled to recognize and acknowledge them as the compulsory heirs of the
deceased Jose M. Aruego; that their share and participation in the estate of their deceased father be
determined and ordered delivered to them.

The main basis of the action for compulsory recognition is their alleged open and continuous
possession of the status of illegitimate children as stated in paragraphs 6 and 7 of the Complaint, to
wit:
6. The plaintiffs father, Jose M. Aruego, acknowledged and recognized the herein plaintiffs as his
children verbally among plaintiffs and their mothers family friends, as well as by myriad different
paternal ways, including but not limited to the following:
(a) Regular support and educational expenses;
(b) Allowance to use his surname;
(c) Payment of maternal bills;
(d) Payment of baptismal expenses and attendance therein;
(e) Taking them to restaurants and department stores on occasions of family rejoicing;
(f) Attendance to school problems of plaintiffs;
(g) Calling and allowing plaintiffs to his office every now and then;
(h) Introducing them as such children to family friends.
7. The plaintiffs are thus, in continuous possession of the status of (illegitimate) children of the
deceased Jose M. Aruego who showered them, with the continuous and clear manifestations of
paternal care and affection as above outlined.[2]
Petitioners denied all these allegations.
After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive portion of which
reads:

WHEREFORE, judgment is rendered 1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego and Luz Fabian;
2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz Fabian;
3. Declaring that the estate of deceased Jose Aruego are the following:
xxxxxxxxx
4. Antonia Aruego is entitled to a share equal to portion of share of the legitimate children of Jose
Aruego;
5. Defendants are hereby ordered to recognize Antonia Aruego as the illegitimate daughter of Jose
Aruego with Luz Fabian;
6. Defendants are hereby ordered to deliver to Antonia Aruego (her) share in the estate of Jose
Aruego, Sr.;
7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum of P10,000.00 as atty.s fee;
8. Cost against the defendants.[3]
Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss of
jurisdiction on the part of the trial court over the complaint by virtue of the passage of Executive
Order No. 209 (as amended by Executive Order No. 227), otherwise known as the Family Code of the
Philippines which took effect on August 3, 1988. This motion was denied by the lower court in the
Order, dated January 14, 1993.
Petitioners interposed an appeal but the lower court refused to give it due course on the ground that
it was filed out of time.

A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction was filed by
herein petitioners before respondent Court of Appeals, the petition was dismissed for lack of merit in
a decision promulgated on August 31, 1993. A Motion for Reconsideration when filed was denied by
the respondent court in a minute resolution, dated October 13, 1993.
Hence, this Petition for Review on Certiorari under Rule 45 alleging the following grounds:
A
RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY ISSUED BY THIS
HONORABLE COURT.
B
RESPONDENT COURT ERRED IN HOLDING THAT THE PETITION FILED BY PETITIONERS BEFORE IT
DOES NOT INVOLVE A QUESTION OF JURISDICTION.
C
RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT THERE IS NO PERCEPTIBLE DIFFERENCE
BETWEEN THE CIVIL CODE PROVISION AND THOSE OF THE FAMILY CODE ANENT THE TIME AN
ACTION FOR COMPULSORY RECOGNITION MAY BE MADE AND THAT THERE IS NO DIFFERENCE UNDER
THE CIVIL CODE FROM THAT OF THE FAMILY CODE CONCERNING THE REQUIREMENT THAT AN
ACTION FOR COMPULSORY RECOGNITION ON THE GROUND OF CONTINUOUS POSSESSION OF THE
STATUS OF AN ILLEGITIMATE CHILD SHOULD BE FILED DURING THE LIFETIME OF THE PUTATIVE
PARENT, IN UTTER DISREGARD OF THE RULING OF THIS HONORABLE COURT IN THE UYGUANGCO
CASE THAT THE CIVIL CODE PROVISION HAD BEEN SUPERSEDED, OR AT LEAST MODIFIED BY THE
CORRESPONDING ARTICLES IN THE FAMILY CODE.
D

RESPONDENT COURT ERRED IN DISMISSING PETITIONERS PETITION FOR PROHIBITION AND IN

HOLDING THAT PETITIONERS REMEDY IS THAT OF AN APPEAL WHICH ALLEGEDLY HAD ALREADY BEEN
LOST.[4]
Private respondents action for compulsory recognition as an illegitimate child was brought under
Book I, Title VIII of the Civil Code on PERSONS, specifically Article 285 thereof, which states the
manner by which illegitimate children may prove their filiation, to wit:
Art. 285. The action for the recognition of natural children may be brought only during the lifetime of
the presumed parents, except in the following cases:
(1) If the father or mother died during the minority of the child, in which case the latter may file the
action before the expiration of four years from the attainment of his majority; x x x.
Petitioners, on the other hand, submit that with the advent of the New Family Code on August 3,
1988, the trial court lost jurisdiction over the complaint of private respondent on the ground of
prescription, considering that under Article 175, paragraph 2, in relation to Article 172 of the New
Family Code, it is provided that an action for compulsory recognition of illegitimate filiation, if based
on the open and continuous possession of the status of an illegitimate child, must be brought during
the lifetime of the alleged parent without any exception, otherwise the action will be barred by
prescription. The law cited reads:
Article 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.
The action must be brought within the same period specified in Article 173 [during the lifetime of the
child], except when the action is based on the second paragraph of Article 172, in which
case the action may be brought during the lifetime of the alleged parent.
In the case at bench, petitioners point out that, since the complaint of private respondent and her
alleged sister was filed on March 7, 1983, or almost one (1) year after the death of their presumed
father on March 30, 1982, the action has clearly prescribed under the new rule as provided in the
Family Code. Petitioners, further, maintain that even if the action was filed prior to the effectivity of
the Family Code, this new law must be applied to the instant case pursuant to Article 256 of the
Family Code which provides:
This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws.
The basic question that must be resolved in this case, therefore, appears to be: Should the
provisions of the Family Code be applied in the instant case? As a corollary Will the application of the
Family Code in this case prejudice or impair any vested right of the private respondent such that it
should not be given retroactive effect in this particular case?
The phrase vested or acquired rights under Article 256, is not defined by the Family Code. The
Committee did not define what is meant by a vested or acquired right, thus leaving it to the courts
to determine what it means as each particular issue is submitted to them. It is difficult to provide the
answer for each and every question that may arise in the future. [5]

In Tayag vs. Court of Appeals,[6] a case which involves a similar complaint denominated as Claim for
Inheritance but treated by this court as one to compel recognition as an illegitimate child brought
prior to the effectivity of the Family Code by the mother of the minor child, and based also on the
open and continuous possession of the status of an illegitimate child, we had occasion to rule that:
Under the circumstances obtaining in the case at bar, we hold that the right of action of the minor
child has been vested by the filing of the complaint in court under the regime of the Civil Code and
prior to the effectivity of the Family Code. We herein adopt our ruling in the recent case of Republic
of the Philippines vs. Court of Appeals, et. al.[7] where we held that the fact of filing of the
petition already vested in the petitioner her right to file it and to have the same proceed
to final adjudication in accordance with the law in force at the time, and such right can
no longer be prejudiced or impaired by the enactment of a new law.
xxx xxx xxx
Accordingly, Article 175 of the Family Code finds no proper application to the instant case
since it will ineluctably affect adversely a right of private respondent and,
consequentially, of the minor child she represents, both of which have been vested with
the filing of the complaint in court. The trial court is, therefore, correct in applying the provisions
of Article 285 of the Civil Code and in holding that private respondents cause of action has not yet
prescribed.
Tayag applies four-square with the case at bench. The action brought by private respondent Antonia
Aruego for compulsory recognition and enforcement of successional rights which was filed prior to
the advent of the Family Code, must be governed by Article 285 of the Civil Code and not by Article
175, paragraph 2 of the Family Code. The present law cannot be given retroactive effect insofar as
the instant case is concerned, as its application will prejudice the vested right of private respondent
to have her case decided under Article 285 of the Civil Code. The right was vested to her by the fact
that she filed her action under the regime of the Civil Code. Prescinding from this, the conclusion

then ought to be that the action was not yet barred, notwithstanding the fact that it was brought
when the putative father was already deceased, since private respondent was then still a minor
when it was filed, an exception to the general rule provided under Article 285 of the Civil Code.
Hence, the trial court, which acquired jurisdiction over the case by the filing of the complaint, never
lost jurisdiction over the same despite the passage of E.O. No. 209, also known as the Family Code of
the Philippines.
Our ruling herein reinforces the principle that the jurisdiction of a court, whether in criminal or civil
cases, once attached cannot be ousted by subsequent happenings or events, although of a
character which would have prevented jurisdiction from attaching in the first instance, and it retains
jurisdiction until it finally disposes of the case. [8]
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated August 31,
1993 and its Resolution dated October 13, 1993 are hereby AFFIRMED.
SO ORDERED.
Padilla, Bellosillo, and Kapunan, JJ., concur.
Vitug, J., also believes that the Court of Appeals did not err in holding that the petition before it did
not involve a question of jurisdiction and cannot thus be a substitute for a lost appeal.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18566

September 30, 1963

IN THE MATTER OF THE ADOPTION OF ELIZABETH MIRA, GILBERT R. BREHM and ESTER
MIRA BREHM,petitioners-appellees,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Pitt Vasquez for petitioners-appellees.
Office of the Solicitor General for oppositor-appellant.
PAREDES, J.:
Finding that only legal issues are involved in the instant case, the Court of Appeals certified the
same to this Court for disposition.
Gilbert R. Brehm is an American citizen, serving the U.S. Navy with temporary assignment at Subic
Bay. On October 9, 1958, he married Ester Mira, a Filipino citizen, who had a daughter Elizabeth, by
another man, also of the American Navy, who left the country in 1952, and never heard from since
then. After the marriage, the couple established residence at Intramuros, Manila, and the minor
Elizabeth had always been under their care and support of Brehm.
On January 28, 1959, the spouses filed a Joint Petition with the Juvenile and Domestic Relations Court
for the adoption of the minor Elizabeth, claiming that they have mutually given their consent to the
adoption, not only to promote her best interest and well-being, but also to give her a legitimate
status. They prayed that after the proper proceedings, judgment be entered, freeing the child

Elizabeth Mira from all legal obligations of obedience and maintenance with respect to her natural
father, and be, for all legal intents and purposes, the child of the petitioners, with all the rights
pertinent thereto.
An opposition to the petition with respect to Gilbert Brehm was registered by the Republic of the
Philippines, it appearing that Brehm testified that his residence in Philippines was merely temporary,
same being effective only for purposes of his tour of duty with the Navy, thus disqualifying him from
making an adoption (Art. 335 [4], New Civil Code; Sec. 2, Rule 100, Rules of Court), and that being a
non-resident alien, the Court has no jurisdiction over him.
A reply to the opposition was presented by petitioners. They claim that Art. 335 does not apply in
the case, reasoning out that it covers only adoptions for the purpose establishing a relationship of
paternity and filiation, where none existed, but not where the adopting parents are not total
strangers to said child; that there is already a relation between the child and Brehm, created by
affinity that Art. 338 of the New Civil code, expressly authorizes the adoption of a step-child by a
step-father, in which category petitioner Brehm falls. Petitioners contend that the records show their
residence is Manila, for while Brehm works at Subic, he always goes home to Manila, during weekends and manifested that he intends to reside in the Philippines permanently, after his tour of duty
with the U.S. Naval Forces.
The Juvenile & Domestic Relations Court rendered judgment, the Pertinent portions of which read
... Since residence is principally a matter of intention, the Court is of the opinion that
notwithstanding the nature of Petitioner Gilbert R. Brehm's coming to the Philippines, his subsequent
acts, coupled with his declared intention of permanently residing herein, have cured the legal defect
on the point of residence.
Finally, we must consider the status of the minor Elizabeth Mira whose welfare deserves paramount
consideration. Being a natural child of the petitioning wife, it cannot be in conscience be expected

that when petitioners married, the mother would reduce her responsibility and her affection toward
her child....
WHEREFORE, finding that the principal allegations of the petitioners are true, it is hereby adjudged
that henceforth the minor Elizabeth is freed from all obligations of obedience and maintenance with
respect to her natural father, and is, to all legal intents and purposes, the child of the petitioners
Gilbert R. Brehm and Ester Mira Brehm, said minor's surname being change from "Mira" to "Mira
Brehm".1awphl.nt
The Solicitor General took exception from the judgment, claiming that it was error for the Court in
adjudging the minor Elizabeth Mira the adopted child of petitioner Gilbert R. Brehm. The appeal,
however, did not assail the right of petitioner Ester Mira Brehm, the natural mother of the minor, to
adopt her.
There is no question that petitioner Gilbert R. Brehm is a non-resident alien. By his own testimony,
he supplied the conclusive proof of his status here, and no amount of reasoning will overcome the
same. For this reason, he is not qualified to adopt. On this very point, We have recently declared:
The only issue in this appeal is whether, not being permanent residents in the Philippines, petitioners
are qualified to adopt Baby Rose. Article 335 of the Civil Code of the Philippines, Provides that
The following cannot adopt
xxx

xxx

xxx

(4) Non-resident aliens;

xxx

xxx

xxx

This legal provision is too clear to require interpretation. No matter how much we may sympathize
with the plight of Baby Rose and with the good intentions of petitioners herein, the law leaves us no

choice but to apply its explicit terms, which unqualifiedly deny to petitioners the power to adopt
anybody in the Philippines (Ellis & Ellis v. Republic, L-16922, Apr. 30, 1963).
Prior to the above decision, We have also denied petitions to adopt by persons similarly situated as
petitioner Brehm. Thus, in the case of Caraballo v. Republic, G.R. No. L-15080, April 25, 1962, giving
some reason why non-resident aliens are disqualified to adopt, We said
... Looking after the welfare of a minor to be adopted the law has surrounded him with safeguards to
achieve and insure such welfare. It cannot be gain said that an adopted minor may be removed from
the country by the adopter, who is not a resident of the Philippines, and placed beyond the reach
and protection of the country of his birth. (See also S/Sgt. Katancik, v. Republic, G.R. No. L-15472,
June 20, 1962).
This notwithstanding, petitioners press the argument that Brehm being now the step-father of the
minor, he is qualified to adopt, in view of the provisions of par. 3, Art. 338, Civil Code, which states
The following may be adopted:
(1) The natural child by the natural father
(2) Other legitimate children, by the father or mother
(3) A step-child, by the step-father or step-mother.
We should construe, however, Article 338 in connection with article 335. Art. 335 clearly states that
"The followingcannot adopt: ... (4). Non-resident aliens". It is therefore, mandatory, because it
contains words of positive prohibition and is couched in the negative terms importing that the act
required shall not be done otherwise than designated (50 Am. Jur. 51). On the other hand, Art. 338,
Provides "the following may be adopted: (3) a
step-child, by the step-father or step-mother", which is merely directory, and which can only be
given operation if the same does not conflict with the mandatory provisions of Art. 335. Moreover, as

heretofore been shown, it is article 335 that confers jurisdiction to the court over the case, and
before Article; 338 may or can be availed of, such jurisdiction must first be established. We ruled out
the adoption of a step-child by a step-father, when the latter has a legitimate child of his own (Ball v.
Rep., 50 O.G. 145; and McGee v. Rep., L-5387, April 29, 1959).
IN VIEW HEREOF, the decision appealed from, in so far as it affects the petitioner Gilbert R. Brehm, is
hereby reversed, and his Petition to adopt the child EIizabeth Mira, denied. Without costs.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Dizon, Regala and Makalintal, JJ.,
concur.
Labrador and Reyes, J.B.L., JJ., took no part.

EN BANC
[G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R.
LEE, respondents.
[G.R. No. 123755. June 28, 1996]
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.
DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is: Who should be declared the
rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his
alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in
favor of Frivaldo should be considered void; that the electorate should be deemed to have
intentionally thrown away their ballots; and that legally, he secured the most number of valid
votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the
position of governor, but who according to prevailing jurisprudence should take over the said post

inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has
occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice
over pure legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec),
First Division,1 promulgated on December 19,19952 and another Resolution of the Comelec en
bane promulgated February 23, 19963 denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the
office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R.
Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet
being a citizen of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1,
1995, the Second Division of the Comelec promulgated a Resolution 5 granting the petition with the
following disposition:6
"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is
DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of
thePhilippines. Accordingly, respondent's certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8,
1995 elections. So, his candidacy continued and he was voted for during the elections held on said

date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of
Votes8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for
the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his
proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995,"
the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the
purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317,
praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He
alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of
the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special
Committee on Naturalization in September 1994 had been granted." As such, when "the said order
(dated June 21, 1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995
at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo)

as governor x x x." In the alternative, he averred that pursuant to the two cases of Labo vs.
Comelec,12 the Vice-Governor not Lee should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally
entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest
number of votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995
under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of
Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of
Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest
number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of
Canvassers is directed to immediately reconvene and, on the basis of the completed canvass,
proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the
highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June
30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the
Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of
the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the
due implementation thereof."
On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en
banc in its Resolution14 promulgated on February 23, 1996. On February 26, 1996, the present

petition was filed. Acting on the prayer for a temporary restraining order, this Court issued
on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status
quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions": 15
"First - The initiatory petition below was so far insufficient in form and substance to warrant the
exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without
jurisdiction in taking cognizance of and deciding said petition;
Second- The judicially declared disqualification of respondent was a continuing condition and
rendered him ineligible to run for, to be elected to and to hold the Office of Governor;
Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive
as to cure his ineligibility and qualify him to hold the Office of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's
proclamation as duly elected Governor of Sorsogon."
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are
also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from
running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen
of thePhilippines";
2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and

3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the
proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails
the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus
Election Code, which is reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within
the period allowed by law," i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a
jurisdictional defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they
are intimately related in their factual environment and are identical in the ultimate question
raised, viz., who should occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to
file simultaneously their respective memoranda.
The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship
as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given
retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to
his eligibility to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317
considering that : said petition is not "a pre-proclamation case, an election protest or a quo
warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon,
considering that they were not rendered within ( the period referred to in Section 78 of the Omnibus
Election Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this
case. All the other matters raised are secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for
elective local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang

panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be

elected; a resident therein for at least one (1) year immediately preceding the day of the election;
and able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang
panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized
cities must be at least twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent
upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R. A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or
by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this
case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him
to do so "failed to materialize, notwithstanding the endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case,
his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and
procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the
electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and
20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and
thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a
third time, with a fresh vote from the people of Sorsogon and a favorable decision from the
Commission on Elections to boot. Moreover, he now boasts of having successfully passed through
the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less

than the Solicitor General himself, who was the prime opposing counsel in the previous cases he
lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to
his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot
Leeshould have been proclaimed as the duly-elected governor of Sorsogon when the Provincial
Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he
garnered the highest number of votes in the elections and since at that time, he already reacquired
his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall
now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987
Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the
same poses a serious and contentious issue of policy which the present government, in the exercise
of prudence and sound discretion, should best leave to the judgment of the first Congress under the
1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the
Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and all proceedings
within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed
as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent
ones25 and a repeal may be express or implied. It is obvious that no express repeal was made
because then President Aquino in her memorandum based on the copy furnished us by Lee did not
categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without

any legal effect. In fact, she did not even mention it specifically by its number or text. On the other
hand, it is a basic rule of statutory construction that repeals by implication are not favored. An
implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that
the two laws are clearly repugnant and patently inconsistent that they cannot co-exist." 26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for
not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could
be treated as an executive policy addressed to the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever "judgment the first Congress under the
1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left
it to the first Congress once createdto deal with the matter. If she had intended to repeal such law,
she should have unequivocally said so instead of referring the matter to Congress. The fact is she
carefully couched her presidential issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound discretion" to leave the matter of repeal
to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now
being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in
just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the
merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the
President in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor
General. However, the Special Committee was reactivated only onJune 8, 1995, when presumably
the said Committee started processing his application. On June 29, 1995, he filled up and resubmitted the FORM that the Committee required. Under these circumstances, it could not be said
that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent,"27 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply baseless as there were many others
who applied and were considered for repatriation, a list of whom was submitted by him to this Court,
through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not
been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself
not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements
of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and
cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee to promulgate. This is
not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine
political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to
reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen
who openly and faithfully served his country and his province prior to his naturalization in the United
States a naturalization he insists was made necessary only to escape the iron clutches of a
dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator
and the re-establishment of democratic space, wasted no time in returning to his country of birth to
offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively against the existence of favoritism vehemently
posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant
to the doctrine of exhaustion of administrative remedies.

Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could
only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by
the Local Government Code "must exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government
Code and the Constitution require that only Philippine citizens can run and be elected to Public
office" Obviously, however, this was a mere obiter as the only issue in said case was whether
Frivaldo's naturalization was valid or not and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue ofwhen an aspirant for public office should be a citizen
was NOT resolved at all by the Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x x x where he intends to be
elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor x x x must be at least twenty-three (23) years
of age on election day."
From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at least one
year's residency immediately preceding the day of election) and age (at least twenty three years of
age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person

owing allegiance to another nation, shall govern our people and our country or a unit of territory
thereof. Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed
his citizenship on June 30, 1995the very day32 the term of office of governor (and other elective
officials) beganhe was therefore already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In short, at that time, he was
already qualified to govern his native Sorsogon. This is the liberal interpretation that should give
spirit, life and meaning to our law on qualifications consistent with the purpose for which such law
was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE
OFFICIALS," not of candidates. Why then should such qualification be required at the time of election
or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications unless otherwise expressly conditioned, as in the case of age and residence should
thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's
ruling in Vasquez vs. Giapand Li Seng Giap & Sons,33 if the purpose of the citizenship requirement is
to ensure that our people and country do not end up being governed by aliens, i.e., persons owing
allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by
construing the citizenship qualification as applying to the time of proclamation of the elected official
and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect
that the citizenship qualification should be possessed at the time the candidate (or for that matter
the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be
a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under
the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a
voter-much less a validly registered one if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended the citizenship qualification to be possessed prior to election consistent with the
requirement of being a registered voter, then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being
a citizen first. It also stands to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that
the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law
states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to
be elected." It should be emphasized that the Local Government Code requires an elective official
to be a registered voter. It does not require him to vote actually. Hence, registrationnot the actual
votingis the core of this "qualification." In other words, the law's purpose in this second requirement
is to ensure that the prospective official is actually registered in the area he seeks to govern and not
anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was and is a
registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial
declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995.
In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter
and he was allowed to vote as in fact, he voted in all the previous elections including on May
8,1995.37
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy.

Section 253 of the Omnibus Election Code38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the
only provision of the Code that authorizes a remedy on how to contest before the Comelec an
incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of
the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility
may be taken cognizance of by the Commission. And since, at the very moment of Lee's
proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen,
having taken his oath of allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest number of votes in the
immediately preceding elections and such oath had already cured his previous "judicially-declared"
alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETRO
ACTED to the date of the filing of his application on August 17,1994.
It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no retroactive effect, unless
the contrary is provided." But there are settled exceptions40 to this general rule, such as when the
statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities,
thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason of some
statutory disability or failure to comply with some technical requirement.They operate on conditions
already existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that
curative statutes are "healing acts x x x curing defects and adding to the means of enforcing
existing obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws,
and curb certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach

back to past events to correct errors or irregularities and to render valid and effective attempted
acts which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of
the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new
remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes
the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens"
and who could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after
the death of their husbands or the termination of their marital status" and who could neither be
benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien
to retain her Philippine citizenship xxx" because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725
granted a new right to these womenthe right to re-acquire Filipino citizenship even during their
marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also
provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their
Philippine citizenship but now desire to re-acquire Philippine citizenship," because prior to the
promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire
their Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are
intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and
Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law,
specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the
death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and
other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its
provisions are considered essentially remedial and curative."
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation
is given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45It is obvious to the Court that the
statute was meant to "reach back" to those persons, events and transactions not otherwise covered
by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political
and civil right equally as important as the freedom of speech, liberty of abode, the right against
unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore
the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect
possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the
evident purpose for -which it was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so applied although the statute does not
in terms so direct, unless to do so would impair some vested right or violate some constitutional
guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit
or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship
much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American
citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but
even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have
retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that
if, as in this case, it was the intent of the legislative authority that the law should apply to
past events i.e., situations and transactions existing even before the law came into being in order to
benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise
the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the
fullest effect and expression, then there is all the more reason to have the law apply in a retroactive
or retrospective manner to situations, events and transactions subsequent to the passage of such
law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take
effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar
this or would show a contrary intention on the part of the legislative authority; and there is no
showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving
retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any
contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should now be
deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to
applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not
to act, i.e., to delay the processing of applications for any substantial length of time, then the former
Filipinos who may be stateless, as Frivaldohaving already renounced his American citizenship was,
may be prejudiced for causes outside their control. This should not be. In case of doubt in the
interpretation or application of laws, it is to be presumed that the law-making body intended right
and justice to prevail.47

And as experience will show, the Special Committee was able to process, act upon and grant
applications for repatriation within relatively short spans of time after the same were filed. 48The fact
that such interregna were relatively insignificant minimizes the likelihood of prejudice to the
government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court,
direct prejudice to the government is possible only where a person's repatriation has the effect of
wiping out a liability of his to the government arising in connection with or as a result of his being an
alien, and accruing only during the interregnum between application and approval, a situation that is
not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now
prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's
repatriation as having become effective as of the date of his application, i.e., on August 17, 1994.
This being so, all questions about his possession of the nationality qualification whether at the date
of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate
of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be
deemed settled. Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship
restored as of August 17, 1994, his previous registration as a voter is likewise deemed validated as
of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of
his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him "from running for any elective local position?" 49 We answer
this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at
the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In
his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interim when he

abandoned and renounced his US citizenship but before he was repatriated to his Filipino
citizenship."50
On this point, we quote from the assailed Resolution dated December 19, 1995:51
"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his
oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in
1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995
have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship a Continuing Disqualification?
Lee contends that the May 1,1995 Resolution53 of the Comelec Second Division in SPA No. 95-028 as
affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory
after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable
Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was
already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings
(which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become
final and executory way before the 1995 elections, and these "judicial pronouncements of his
political status as an American citizen absolutely and for all time disqualified (him) from running for,
and holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992

elections. That he was disqualified for such elections is final and can no longer be changed. In the
words of the respondent Commission (Second Division) in its assailed Resolution: 55
"The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino
citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no
record of any 'final judgment' of the disqualification of Frivaldo as a candidate for the May 8,
1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30,
1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having
been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the
Philippines.' This declaration of the Supreme Court, however, was in connection with the 1992
elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future
status with finality. This is because a person may subsequently reacquire, or for that matter lose, his
citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs.
Commissioner of Immigration,56 we held:
"Everytime the citizenship of a person is material or indispensable in a judicial or administrative
case, whatever the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered res judicata, hence it has to be threshed out again and again,
as the occasion demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95317 because the only "possible types of proceedings that may be entertained by the Comelec are a
pre-proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he
was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's)

proclamation only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him,
Frivaldo's "recourse was to file either an election protest or aquo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise
exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of
all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to hear and decide
petitions for annulment of proclamations of which SPC No. 95-317 obviously is one. 58Thus, in
Mentang vs. COMELEC,59 we ruled:
"The petitioner argues that after proclamation and assumption of office, a pre-proclamation
controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation
controversies may no longer be entertained by the COMELEC after the winning candidate has been
proclaimed, (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the
proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot
deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC,
23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after
Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the
same.
The Fourth Issue: Was Lee's Proclamation Valid
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the
choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a
second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaid Labo62 case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast
their votes in favor of the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate obtaining the next higher number of votes
may be deemed elected."
But such holding is qualified by the next paragraph, thus:
"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was
alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the
electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no
less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of
the city mayor as its resolution dated May 9,1992 denying due course to petitioner Labo's certificate
of candidacy had not yet become final and subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case
because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on election day as there was in both
cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus)
resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the
May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such
awareness within the realm of notoriety", in other words, that the voters intentionally wasted their
ballots knowing that, in spite of their voting for him, he was ineligible. If Labohas any relevance at
all, it is that the vice-governor and not Leeshould be proclaimed, since in losing the election, Lee
was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the
emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and
inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be
proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division)
dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for
want of citizenship should be annulled because they were rendered beyond the fifteen (15) day
period prescribed by Section 78 of the Omnibus Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election" (italics supplied.)

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en
banc63 on February 23, 1996, which both upheld his election. At any rate, it is obvious that Section
78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide
petitions for disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the -winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong." (Italics supplied)
Refutation of Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President
Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as
urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic
distinction because the said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz, "(u)nder
CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by
xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as a registered
voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments
declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his
repatriation, as discussed earlier, legally cured whatever defects there may have been in his
registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility
of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code
allowing the denial of a certificate of candidacy on the ground of a false material representation
therein as required by Section 74. Citing Loong, he then states his disagreement with our holding
that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error
in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May
11, 1995 were invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did
not commit grave abuse of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try
and decide disqualifications even after the elections." In spite of his disagreement with us on this
point, i.e., that Section 78 "is merely directory," we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent,
teaches that a petition to deny due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after thefifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the
elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There
is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such
retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has
changed his political status not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship."
Since our courts are charged only with the duty of the determining who are Philippine nationals, we
cannot rule on the legal question of who are or who are not Americans. It is basic in international law
that a State determines ONLY those who are its own citizens not who are the citizens of other
countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and
such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case
law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three
previous elections, should be declared winner because "Frivaldo's ineligibility for being an American
was publicly known." First, there is absolutely no empirical evidence for such "public" knowledge.
Second, even if there is, such knowledge can be true post facto only of the last two previous
elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality
before, during and after the 1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications
of elective local officials, i.e., candidates, and not elected officials, and that the citizenship
qualification [under par. (a) of that section] must be possessed by candidates, not merely at the
commencement of the term, but by election day at the latest. We see it differently. Section 39, par.
(a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates." If the
qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs.
Secondly, if Congress had meant that the citizenship qualification should be possessed at election
day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to
(f) for other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the
ground, among others, that the law specifically provides that it is only after taking the oath of
allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not
question what the provision states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have
retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference
to Section 39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the
very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier
in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule
of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to
interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked
provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context
of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying
election laws, it would be far better to err in favor of popular sovereignty than to be right in complex
but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of
Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this
Court's conscience.
EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by
an elective official at the latest as of the time he is proclaimed and at the start of the term of office
to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's
repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover,
by reason of the remedial or curative nature of the law granting him a new right to resume his
political status and the legislative intent behind it, as well as his unique situation of having been
forced to give up his citizenship and political aspiration as his means of escaping a regime he
abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor,
during the pendency of which he was stateless, he having given ' up his U. S. nationality. Thus, in
contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the
term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as well. The foregoing, of course, are precisely
consistent with our holding that lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we emphasize herein our previous
rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for
annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to
give fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:

"x x x (L)aws governing election contests must be liberally construed to the end that the will of the
people in the choice of public officials may not be defeated by mere technical objections (citations
omitted)."67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in
deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our democracy. In any action involving
the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to
resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding
such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could
have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to
his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or,
it could have disputed the factual findings of the Comelec that he was stateless at the time of
repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any
elective local position." But the real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of
law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against
and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order
to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation
approximating venerability in Philippine political life. Concededly, he sought American citizenship
only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any

doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this
land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for
him three times. He took an oath of allegiance to this Republic every time he filed his certificate of
candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated
tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs
speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81
years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court
of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of
a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay,
single-mindedly insisted on returning to and serving once more his struggling but beloved land of
birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor.
And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most
certainly deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent
Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it
has no merit.
No costs.
SO ORDERED.
Davide, Jr., J. dissenting opinion
Puno., J. concurring opinion

Francisco, Hermosisima, Jr., and Torres, JJ., concur.

Padilla, Regalado, Romero, and Bellosillo, JJ., pro hac vice.
Melo, Vitug, and Kapunan, JJ., concur in the result.
Narvasa, C.J. and Mendoza, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5691 December 27, 1910
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,
vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.

MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a
carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as
she was going, when a delivery wagon belonging to the defendant used for the purpose of
transportation of fodder by the defendant, and to which was attached a pair of horses, came along
the street in the opposite direction to that the in which said plaintiff was proceeding, and that
thereupon the driver of the said plaintiff's carromata, observing that the delivery wagon of the
defendant was coming at great speed, crowded close to the sidewalk on the left-hand side of the
street and stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata occupied by said
plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut

upon her head, and also injuring the carromata itself and the harness upon the horse which was
drawing it.
xxx

xxx

xxx

These facts are not dispute, but the defendant presented evidence to the effect that the cochero,
who was driving his delivery wagon at the time the accident occurred, was a good servant and was
considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at
Paco Livery Stable on Calle Herran, and that for the purpose of delivery thereof the cochero driving
the team as defendant's employee tied the driving lines of the horses to the front end of the delivery
wagon and then went back inside of the wagon for the purpose of unloading the forage to be
delivered; that while unloading the forage and in the act of carrying some of it out, another vehicle
drove by, the driver of which cracked a whip and made some other noises, which frightened the
horses attached to the delivery wagon and they ran away, and the driver was thrown from the inside
of the wagon out through the rear upon the ground and was unable to stop the horses; that the
horses then ran up and on which street they came into collision with the carromata in which the
plaintiff, Carmen Ong de Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave judgment
against him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day
of October, 1908, and for the costs of the action. The case is before us on an appeal from that
judgment.
There is no general law of negligence in the Philippine Islands except that embodied in the Civil
Code. The provisions of that code pertinent to this case are
Art. 1902. A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the
minors who live with them.
Guardians are liable for the damages caused by minors or incapacitated persons who are under their
authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages caused by
the employees in the service of the branches in which the latter may be employed or on account of
their duties.
The State is liable in this sense when it acts through a special agent, but not when the damages
should have been caused by the official to whom properly it pertained to do the act performed, in
which case the provisions of the preceding article shall be applicable.
Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or
apprentices while they are under their custody.
The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage.
Passing the question whether or not an employer who has furnished a gentle and tractable team and
a trusty and capable driver is, under the last paragraph of the above provisions, liable for the
negligence of such driver in handling the team, we are of the opinion that the judgment must be
reversed upon the ground that the evidence does not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some what different from
that in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of
negligence is determined are, nevertheless, generally the same. That is to say, while the law

designating the person responsible for a negligent act may not be the same here as in many
jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as
elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896;
14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage were gentle and
tractable; that the cochero was experienced and capable; that he had driven one of the horses
several years and the other five or six months; that he had been in the habit, during all that time, of
leaving them in the condition in which they were left on the day of the accident; that they had never
run away up to that time and there had been, therefore, no accident due to such practice; that to
leave the horses and assist in unloading the merchandise in the manner described on the day of the
accident was the custom of all cochero who delivered merchandise of the character of that which
was being delivered by the cochero of the defendant on the day in question, which custom was
sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner
described by the evidence in this case, either under Spanish or American jurisprudence.
(Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442;
Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N.
Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every person who
suffered a cart to remain in the street while he took goods out of it was obliged to employ another to
look after the horses, it would be impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

The degree of care required of the plaintiff, or those in charged of his horse, at the time of the injury,
is that which would be exercised by a person of ordinary care and prudence under like
circumstances. It can not be said that the fact of leaving the horse unhitched is in itself negligence.
Whether it is negligence to leave a horse unhitched must be depend upon the disposition of the
horse; whether he was under the observation and control of some person all the time, and many
other circumstances; and is a question to be determined by the jury from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial
court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a public highways while the driver is upon the
sidewalk loading goods on the wagon." The said court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was quite and
gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the
alleged injury, and that the horse had been used for years in that way without accident. The refusal
of the trial court to charge as requested left the jury free to find was verdict against the defendant,
although the jury was convinced that these facts were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse
and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left
the horse unfastened for four or five minutes while he was in the house, knowing that it was not
afraid of cars, and having used it for three or four months without ever hitching it or knowing it to
start, is not conclusive, as a matter of law, of a want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise
reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal
or inherently likely to produce damage to others, there will be no liability, although damage in fact

ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524;
Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs.Hurlbut, 158 N. Y., 34
Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or
imprudent. Acts the performance of which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they have ripened into custom, can
not be held to be themselves unreasonable or imprudent. Indeed the very reason why they have
been permitted by society is that they beneficial rather than prejudicial.itc-alf Accidents sometimes
happen and injuries result from the most ordinary acts of life. But such are not their natural or
customary results. To hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes
successfully invoked in such a case, does not in any sense militate against the reasoning presented.
That maxim at most only creates a prima facie case, and that only in the absence of proof of the
circumstances under which the act complained of was performed. It is something invoked in favor of
the plaintiff before defendant's case showing the conditions and circumstances under which the
injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is
demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the
court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if
the steamboat, on a calm day and in smooth water, was thrown with such force against a wharf
properly built, as to tear up some of the planks of the flooring, this would be prima facie evidence of
negligence on the part of the defendant's agent in making the landing, unless upon the whole
evidence in the case this prima facie evidence was rebutted. As such damage to a wharf is not
ordinarily done by a steamboat under control of her officers and carefully managed by them,
evidence that such damage was done in this case was prima facie, and, if unexplained, sufficient
evidence of negligence on their part, and the jury might properly be so instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway
and the accident resulting therefrom, but also the conditions under which the runaway occurred.
Those conditions showing of themselves that the defendant's cochero was not negligent in the
management of the horse, the prima facie case in plaintiffs' favor, if any, was destroyed as soon as
made.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to
deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in
which that was then being delivered; and that it is the universal practice to leave the horses in the
manner in which they were left at the time of the accident. This is the custom in all cities. It has not
been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has
acquiesced for years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby make culpable
and guilty one who had every reason and assurance to believe that he was acting under the sanction
of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.
Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.
Separate Opinions
TORRES, J., dissenting:
I am of the opinion that the judgment should be affirmed.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR,
FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO,
BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES.
JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E.
FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG, ANCHETA
K. TAN, and ALICE V. PESIGAN,petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO, BENJAMIN M. DE
LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE LOS
ANGELES, and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:+.wph!1
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander
Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who died
on February 14, 1976, praying that they be allowed to continue using, in the names of their firms,
the names of partners who had passed away. In the Court's Resolution of September 2, 1976, both
Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:

1. Under the law, a partnership is not prohibited from continuing its business under a firm name
which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly
sanctions the practice when it provides in the last paragraph that: t.hqw
The use by the person or partnership continuing the business of the partnership name, or the name
of a deceased partner as part thereof, shall not of itself make the individual property of the
deceased partner liable for any debts contracted by such person or partnership. 1
2. In regulating other professions, such as accountancy and engineering, the legislature has
authorized the adoption of firm names without any restriction as to the use, in such firm name, of
the name of a deceased partner; 2 the legislative authorization given to those engaged in the
practice of accountancy a profession requiring the same degree of trust and confidence in respect
of clients as that implicit in the relationship of attorney and client to acquire and use a trade
name, strongly indicates that there is no fundamental policy that is offended by the continued use
by a firm of professionals of a firm name which includes the name of a deceased partner, at least
where such firm name has acquired the characteristics of a "trade name." 3
3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a
deceased partner in the firm name of a law partnership because Canon 33 of the Canons of
Professional Ethics adopted by the American Bar Association declares that: t.hqw
... The continued use of the name of a deceased or former partner when permissible by local custom,
is not unethical but care should be taken that no imposition or deception is practiced through this
use. ... 4
4. There is no possibility of imposition or deception because the deaths of their respective deceased
partners were well-publicized in all newspapers of general circulation for several days; the
stationeries now being used by them carry new letterheads indicating the years when their

respective deceased partners were connected with the firm; petitioners will notify all leading
national and international law directories of the fact of their respective deceased partners' deaths.

5. No local custom prohibits the continued use of a deceased partner's name in a professional firm's
name; 6 there is no custom or usage in the Philippines, or at least in the Greater Manila Area, which
recognizes that the name of a law firm necessarily Identifies the individual members of the firm. 7
6. The continued use of a deceased partner's name in the firm name of law partnerships has been
consistently allowed by U.S. Courts and is an accepted practice in the legal profession of most
countries in the world. 8
The question involved in these Petitions first came under consideration by this Court in 1953 when a
law firm in Cebu (the Deen case) continued its practice of including in its firm name that of a
deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to desist
from including in their firm designation the name of C. D. Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled
Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce Enrile
moved to intervene asamicus curiae. Before acting thereon, the Court, in a Resolution of April 15,
1957, stated that it "would like to be informed why the name of Perkins is still being used although
Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm of Perkins
and Ponce Enrile, raising substantially the same arguments as those now being raised by petitioners,
prayed that the continued use of the firm name "Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: t.hqw
After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and Associates for
their continued use of the name of the deceased E. G. Perkins, the Court found no reason to depart
from the policy it adopted in June 1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen
of Cebu City to desist from including in their firm designation, the name of C. D. Johnston, deceased.

The Court believes that, in view of the personal and confidential nature of the relations between
attorney and client, and the high standards demanded in the canons of professional ethics, no
practice should be allowed which even in a remote degree could give rise to the possibility of
deception. Said attorneys are accordingly advised to drop the name "PERKINS" from their firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De Leon,
Mabanta and Reyes" are partnerships, the use in their partnership names of the names of deceased
partners will run counter to Article 1815 of the Civil Code which provides: t.hqw
Art. 1815. Every partnership shall operate under a firm name, which may or may not include the
name of one or more of the partners.
Those who, not being members of the partnership, include their names in the firm name, shall be
subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must either be
those of living partners and. in the case of non-partners, should be living persons who can be
subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including his
name in the firm name under pain of assuming the liability of a partner. The heirs of a deceased
partner in a law firm cannot be held liable as the old members to the creditors of a firm particularly
where they are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics "prohibits an
agreement for the payment to the widow and heirs of a deceased lawyer of a percentage, either
gross or net, of the fees received from the future business of the deceased lawyer's clients, both
because the recipients of such division are not lawyers and because such payments will not
represent service or responsibility on the part of the recipient. " Accordingly, neither the widow nor

the heirs can be held liable for transactions entered into after the death of their lawyer-predecessor.
There being no benefits accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms of the names
of deceased partners. The public relations value of the use of an old firm name can tend to create
undue advantages and disadvantages in the practice of the profession. An able lawyer without
connections will have to make a name for himself starting from scratch. Another able lawyer, who
can join an old firm, can initially ride on that old firm's reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the
first factor to consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and
Winding Up." The Article primarily deals with the exemption from liability in cases of a dissolved
partnership, of the individual property of the deceased partner for debts contracted by the person or
partnership which continues the business using the partnership name or the name of the deceased
partner as part thereof. What the law contemplates therein is a hold-over situation preparatory to
formal reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather
than of aprofessional partnership, with no saleable good will but whose reputation depends on the
personal qualifications of its individual members. Thus, it has been held that a saleable goodwill can
exist only in a commercial partnership and cannot arise in a professional partnership consisting of
lawyers. 9t.hqw
As a general rule, upon the dissolution of a commercial partnership the succeeding partners or
parties have the right to carry on the business under the old name, in the absence of a stipulation
forbidding it, (s)ince the name of a commercial partnership is a partnership asset inseparable from
the good will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied)
On the other hand, t.hqw

... a professional partnership the reputation of which depends or; the individual skill of the members,
such as partnerships of attorneys or physicians, has no good win to be distributed as a firm asset on
its dissolution, however intrinsically valuable such skill and reputation may be, especially where
there is no provision in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p.
115) (Emphasis supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed by other
professionals or for business. For one thing, the law on accountancy specifically allows the use of a
trade name in connection with the practice of accountancy. 10 t.hqw
A partnership for the practice of law is not a legal entity. It is a mere relationship or association for a
particular purpose. ... It is not a partnership formed for the purpose of carrying on trade or business
or of holding property." 11 Thus, it has been stated that "the use of a nom de plume, assumed or
trade name in law practice is improper. 12
The usual reason given for different standards of conduct being applicable to the practice of law
from those pertaining to business is that the law is a profession.
Dean Pound, in his recently published contribution to the Survey of the Legal Profession, (The
Lawyer from Antiquity to Modern Times, p. 5) defines a profession as "a group of men pursuing a
learned art as a common calling in the spirit of public service, no less a public service because it
may incidentally be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from business are:
1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the
highest eminence without making much money.

2. A relation as an "officer of court" to the administration of justice involving thorough sincerity,

integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to
current business methods of advertising and encroachment on their practice, or dealing directly with
their clients. 13
"The right to practice law is not a natural or constitutional right but is in the nature of a privilege or
franchise. 14 It is limited to persons of good moral character with special qualifications duly
ascertained and certified. 15 The right does not only presuppose in its possessor integrity, legal
standing and attainment, but also the exercise of a special privilege, highly personal and partaking
of the nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar Association" in
support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name of a deceased
or former partner in the firm name of a law partnership when such a practice is permissible by local
custom but the Canon warns that care should be taken that no imposition or deception is practiced
through this use.
It must be conceded that in the Philippines, no local custom permits or allows the continued use of a
deceased or former partner's name in the firm names of law partnerships. Firm names, under our
custom, Identify the more active and/or more senior members or partners of the law firm. A glimpse
at the history of the firms of petitioners and of other law firms in this country would show how their
firm names have evolved and changed from time to time as the composition of the partnership
changed. t.hqw

The continued use of a firm name after the death of one or more of the partners designated by it is
proper only where sustained by local custom and not where by custom this purports to Identify the
active members. ...
There would seem to be a question, under the working of the Canon, as to the propriety of adding
the name of a new partner and at the same time retaining that of a deceased partner who was
never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp. 207208) (Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the name of a deceased
partner continues to be used cannot be ruled out. A person in search of legal counsel might be
guided by the familiar ring of a distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased
partner's name in the firm name of law partnerships. But that is so because it is sanctioned by
custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which petitioners
Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained the use of the
firm name Alexander & Green even if none of the present ten partners of the firm bears either
name because the practice was sanctioned by custom and did not offend any statutory provision or
legislative policy and was adopted by agreement of the parties. The Court stated therein: t.
hqw
The practice sought to be proscribed has the sanction of custom and offends no statutory provision
or legislative policy. Canon 33 of the Canons of Professional Ethics of both the American Bar
Association and the New York State Bar Association provides in part as follows: "The continued use of
the name of a deceased or former partner, when permissible by local custom is not unethical, but
care should be taken that no imposition or deception is practiced through this use." There is no
question as to local custom. Many firms in the city use the names of deceased members with the

approval of other attorneys, bar associations and the courts. The Appellate Division of the First
Department has considered the matter and reached The conclusion that such practice should not be
prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use of the firm
name herein is also sustainable by reason of agreement between the partners. 18
Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has
been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a
social rule, legally binding and obligatory. 19 Courts take no judicial notice of custom. A custom must
be proved as a fact, according to the rules of evidence. 20 A local custom as a source of right cannot
be considered by a court of justice unless such custom is properly established by competent
evidence like any other fact. 21 We find such proof of the existence of a local custom, and of the
elements requisite to constitute the same, wanting herein. Merely because something is done as a
matter of practice does not mean that Courts can rely on the same for purposes of adjudication as a
juridical custom. Juridical custom must be differentiated from social custom. The former can
supplement statutory law or be applied in the absence of such statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal system. 22 When
the Supreme Court in the Deen and Perkins cases issued its Resolutions directing lawyers to desist
from including the names of deceased partners in their firm designation, it laid down a legal rule
against which no custom or practice to the contrary, even if proven, can prevail. This is not to speak
of our civil law which clearly ordains that a partnership is dissolved by the death of any
partner. 23 Custom which are contrary to law, public order or public policy shall not be
countenanced. 24

The practice of law is intimately and peculiarly related to the administration of justice and should not
be considered like an ordinary "money-making trade." t.hqw
... It is of the essence of a profession that it is practiced in a spirit of public service. A trade ... aims
primarily at personal gain; a profession at the exercise of powers beneficial to mankind. If, as in the
era of wide free opportunity, we think of free competitive self assertion as the highest good, lawyer
and grocer and farmer may seem to be freely competing with their fellows in their calling in order
each to acquire as much of the world's good as he may within the allowed him by law. But the
member of a profession does not regard himself as in competition with his professional brethren. He
is not bartering his services as is the artisan nor exchanging the products of his skill and learning as
the farmer sells wheat or corn. There should be no such thing as a lawyers' or physicians' strike. The
best service of the professional man is often rendered for no equivalent or for a trifling equivalent
and it is his pride to do what he does in a way worthy of his profession even if done with no
expectation of reward, This spirit of public service in which the profession of law is and ought to be
exercised is a prerequisite of sound administration of justice according to law. The other two
elements of a profession, namely, organization and pursuit of a learned art have their justification in
that they secure and maintain that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow to
legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names
"SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be included in
the listing of individuals who have been partners in their firms indicating the years during which they
served as such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur

Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices being
of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is
out of delicadeza that the undersigned did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the
father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and
not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera:
'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in
their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He
was the founder of the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta
& Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said
firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta
has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased
partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon
that the continued use by a law firm of the name of a deceased partner, "when permissible by local
custom, is not unethical" as long as "no imposition or deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and
Herminio Ozaeta are dead or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and
Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross,
Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication of the
year when he died. No one complained that the retention of the name of Judge Ross in the firm name
was illegal or unethical.

# Separate Opinions
FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices being
of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is
out of delicadeza that the undersigned did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the
father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and
not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera:
'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in
their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He
was the founder of the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta
& Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said
firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta
has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased
partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon
that the continued use by a law firm of the name of a deceased partner, "when permissible by local

custom, is not unethical" as long as "no imposition or deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and
Herminio Ozaeta are dead or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and
Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross,
Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication of the
year when he died. No one complained that the retention of the name of Judge Ross in the firm name
was illegal or unethical.