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SECOND DIVISION

REPUBLIC OF THEPHILIPPINES,
Petitioner,

G.R. No. 170340

Page

CHANGE OF NAME /CORRECTION / CANCELLATION OF ENTRIES IN


THE CIVIL REGISTRY

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Atty. Arceno
deletion of the word married opposite the phrase Date of marriage of
parents because his parents, Juan Kho and Epifania Inchoco (Epifania),
were allegedly not legally married.
The same request to delete the married status of their parents
from their respective birth certificates was made by Carlitos siblings
Michael, Mercy Nona, and Heddy Moira.

Present:
- versus -

CARLITO I. KHO, MICHAEL KHO, MERCY


NONA KHO-FORTUN, HEDDY MOIRA KHOSERRANO, KEVIN DOGMOC KHO (Minor), and
KELLY DOGMOC KHO (Minor),
Respondents.

With respect to the birth certificates of Carlitos children, he prayed that the
date of his and his wifes marriage be corrected from April 27,
QUISUMBING,* J., Chairperson
1989 to January 21, 2000, the date appearing in their marriage certificate.
CARPIO,**
CARPIO MORALES,
The Local Civil Registrar of Butuan City was impleaded as
TINGA, and
respondent.
VELASCO, JR., JJ.
On April 23, 2001, Carlito et al. filed an Amended Petition [3] in which it was
additionally prayed that Carlitos second name of John be deleted from his
PROMULGATED:
record of birth; and that the name and citizenship of Carlitos father in his
(Carlitos) marriage certificate be corrected from John Kho to Juan Kho and
Filipino to Chinese, respectively.

June 29, 2007


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

As required, the petition was published for three consecutive


weeks[4] in Mindanao Daily Patrol-CARAGA, a newspaper of general
circulation, after which it was set for hearing on August 9, 2001.

DECISION

In a letter of June 18, 2001 addressed to the trial court, the city
civil registrar[5] stated her observations and suggestions to the proposed
corrections in the birth records of Carlito and his siblings but interposed no
objections to the other amendments.

CARPIO MORALES, J.:


Challenged via petition for review on certiorari is the October 27,
2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78124
which affirmed the September 4, 2002 Decision [2] of the Regional Trial
Court (RTC) of Butuan City, Branch 5 granting the prayer of respondents
Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy
Moira Kho-Serrano for the correction of entries in their birth certificates as
well as those of Carlitos minor children Kevin and Kelly Dogmoc Kho.
The undisputed facts are as follows:

On the scheduled hearing of the petition on August 9, 2001, only


the counsel for respondents appeared as the Office of the Solicitor General
(OSG) had yet to enter its appearance for the city civil registrar. The trial
court thus reset the hearing to October 9, 2001.[6] On September 14, 2001,
[7]
the OSG entered its appearance with an authorization to the city
prosecutor of Butuan City to appear in the case and render assistance to it
(the OSG).

On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and
Heddy Moira filed before the RTC of Butuan City a verified petition for
correction of entries in the civil registry of Butuan City to effect changes in
their respective birth certificates. Carlito also asked the court in behalf of
his minor children, Kevin and Kelly, to order the correction of some entries
in their birth certificates.

On January 31, 2002, respondents presented documentary


evidence showing compliance with the jurisdictional requirements of the
petition. They also presented testimonial evidence consisting of the
testimonies of Carlito and his mother, Epifania. During the same hearing,
an additional correction in the birth certificates of Carlitos children was
requested to the effect that the first name of their mother be rectified from
Maribel to Marivel.

In the case of Carlito, he requested the correction in his birth certificate of


the citizenship of his mother to Filipino instead of Chinese, as well as the

By Decision[8] of September 4, 2002, the trial court directed the


local civil registrar of Butuan City to correct the entries in the record of

Additionally, the trial court ordered the correction of the birth


certificates of the minor children of Carlito to reflect the date of marriage of
Carlito and Marivel Dogmoc (Marivel) as January 21, 2000, instead of April
27, 1989, and the name Maribel as Marivel.
With respect to the marriage certificate of Carlito and Marivel, the
corrections ordered pertained to the alteration of the name of Carlitos
father from John Kho to Juan Kho and the latters citizenship from Filipino
to Chinese.
Petitioner, Republic of the Philippines, appealed the RTC Decision
to the CA, faulting the trial court in granting the petition for correction of
entries in the subject documents despite the failure of respondents to
implead the minors mother, Marivel, as an indispensable party and to offer
sufficient evidence to warrant the corrections with regard to the questioned
married status of Carlito and his siblings parents, and the latters
citizenship.
Petitioner also faulted the trial court for ordering the change of the
name Carlito John Kho to Carlito Kho for non-compliance with jurisdictional
requirements for a change of name under Rule 103 of the Rules of Court.
By the assailed Decision of October 27, 2005, the CA denied
petitioners appeal and affirmed the decision of the trial court.
The CA found that Rule 108 of the Revised Rules of Court, which
outlines the proper procedure for cancellation or correction of entries in the
civil registry, was observed in the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate
court held that the correction of their mothers first name from Maribel to
Marivel was made to rectify an innocuous error.
As for the change in the date of the marriage of Carlito and
Marivel, albeit the CA conceded that it is a substantial alteration, it held
that the date would not affect the minors filiation from legitimate to
illegitimate considering that at the time of their respective births in 1991
and 1993, their father Carlitos first marriage was still subsisting as it had
been annulled only in 1999.
In light of Carlitos legal impediment to marry Marivel at the time
they were born, their children Kevin and Kelly were illegitimate. It followed,

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birth of Carlito, as follows: (1) change the citizenship of his mother from
Chinese to Filipino; (2) delete John from his name; and (3) delete the word
married opposite the date of marriage of his parents. The last correction
was ordered to be effected likewise in the birth certificates of respondents
Michael, Mercy Nona, and Heddy Moira.

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Atty. Arceno
the CA went on to state, that Marivel was not an indispensable party to the
case, the minors having been represented by their father as required under
Section 5 of Rule 3[9] of the Revised Rules of Court.
Further, the CA ruled that although Carlito failed to observe the
requirements of Rule 103 of the Rules of Court, he had complied
nonetheless with the jurisdictional requirements for correction of entries in
the civil registry under Rule 108 of the Rules of Court. The petition for
correction of entry in Carlitos birth record, it noted, falls under letter o of
the enumeration under Section 2 of Rule 108.
In the present petition, petitioner contends that since the changes
sought by respondents were substantial in nature, they could only be
granted through an adversarial proceeding in which indispensable parties,
such as Marivel and respondents parents, should have been notified or
impleaded.
Petitioner further contends that the jurisdictional requirements to
change Carlitos name under Section 2 of Rule 103 of the Rules of Court
were not satisfied because the Amended Petition failed to allege Carlitos
prior three-year bona fide residence in Butuan City, and that the title of the
petition did not state Carlitos aliases and his true name as Carlito John I.
Kho. Petitioner concludes that the same jurisdictional defects attached to
the change of name of Carlitos father.
The petition fails.
It can not be gainsaid that the petition, insofar as it sought to
change the citizenship of Carlitos mother as it appeared in his birth
certificate and delete the married status of Carlitos parents in his and his
siblings respective birth certificates, as well as change the date of marriage
of Carlito and Marivel involves the correction of not just clerical errors of a
harmless and innocuous nature.[10] Rather, the changes entail substantial
and controversial amendments.
For the change involving the nationality of Carlitos mother as
reflected in his birth certificate is a grave and important matter that has a
bearing and effect on the citizenship and nationality not only of the
parents, but also of the offspring.[11]
Further, the deletion of the entry that Carlitos and his siblings
parents were married alters their filiation from legitimate to illegitimate,
with significant implications on their successional and other rights.
Clearly, the changes sought can only be granted in an adversary
proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre:

In Republic v. Valencia,[13] however, this Court ruled, and has since


repeatedly ruled, that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108.[14]
It is undoubtedly true that if the subject matter
of a petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving
nationality or citizenship, which is indisputably substantial
as well as controverted, affirmative relief cannot be
granted in a proceeding summary in nature. However, it
is also true that a right in law may be enforced and
a wrong may be remedied as long as the
appropriate remedy is used. This Court adheres to
the principle that even substantial errors in a civil
registry may be corrected and the true facts
establishedprovided the parties aggrieved by the
error avail themselves of the appropriate adversary
proceeding.
xxxx
What is meant by appropriate adversary proceeding?
Blacks Law Dictionary defines adversary proceeding[] as follows:
One having opposing parties; contested, as
distinguished from an ex parte application, one of which
the party seeking relief has given legal warning to the
other party, and afforded the latter an opportunity to
contest it. x x x [15] (Emphasis, italics and underscoring
supplied)
The enactment in March 2001 of Republic Act No. 9048, otherwise known
as AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR
THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL

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x x x. The philosophy behind this requirement lies in the


fact that the books making up the civil register and all
documents relating thereto shall be prima facie evidence
of the facts therein contained. If the entries in the civil
register could be corrected or changed through
mere summary proceedings and not through
appropriate action wherein all parties who may be
affected by the entries are notified or represented,
the door to fraud or other mischief would be set
open, the consequence of which might be
detrimental and far reaching. x x x (Emphasis
supplied)

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Atty. Arceno
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN
THE CIVIL REGISTER WITHOUT NEED OF JUDICIAL ORDER, has been
considered to lend legislative affirmation to the judicial precedence that
substantial corrections to the civil status of persons recorded in the civil
registry may be effected through the filing of a petition under Rule 108. [16]
Thus, this Court in Republic v. Benemerito[17] observed that the
obvious effect of Republic Act No. 9048 is to make possible the
administrative correction of clerical or typographical errors or change of
first name or nickname in entries in the civil register, leaving to Rule 108
the correction of substantial changes in the civil registry in appropriate
adversarial proceedings.
When all the procedural requirements under Rule 108 are thus
followed, the appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is satisfied. [18] The
pertinent provisions of Rule 108 of the Rules of Court read:
SEC. 3. Parties. When cancellation or correction
of an entry in the civil registrar is sought, the civil
registrar and all persons who have or claim any
interest which would be affected thereby shall be
made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of
the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be
published once in a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
SEC. 5. Opposition. The civil registrar and
any person having or claiming any interest under
the entry whose cancellation or correction is sought may,
within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his
opposition thereto. (Emphasis and underscoring supplied)
There is no dispute that the trial courts Order [19] setting the
petition for hearing and directing any person or entity having interest in
the petition to oppose it was posted[20]as well as published for the required
period; that notices of hearings were duly served on the Solicitor General,
the city prosecutor of Butuan and the local civil registrar; and that trial was
conducted on January 31, 2002 during which the public prosecutor, acting
in behalf of the OSG, actively participated by cross-examining Carlito and
Epifania.

A similar issue was earlier raised in Barco v. Court of Appeals.


That case stemmed from a petition for correction of entries in the birth
certificate of a minor, June Salvacion Maravilla, to reflect the name of her
real father (Armando Gustilo) and to correspondingly change her
surname. The petition was granted by the trial court.
[21]

Barco, whose minor daughter was allegedly fathered also by


Gustilo, however, sought to annul the trial courts decision, claiming that
she should have been made a party to the petition for correction. Failure to
implead her deprived the RTC of jurisdiction, she contended.
In dismissing Barcos petition, this Court held that the publication
of the order of hearing under Section 4 of Rule 108 cured the failure to
implead an indispensable party.
The essential requisite for allowing substantial
corrections of entries in the civil registry is that the true
facts be established in an appropriate adversarial
proceeding. This is embodied in Section 3, Rule 108 of
the Rules of Court, which states:
Section
3. Parties.
When
cancellation
or
correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made
parties to the proceeding.
xxxx
Undoubtedly, Barco is among the parties
referred to in Section 3 of Rule 108. Her interest was
affected by the petition for correction, as any judicial
determination that June was the daughter of Armando
would affect her wards share in the estate of her father. x
x x.
Yet, even though Barco was not impleaded in
the petition, the Court of Appeals correctly pointed out
that the defect was cured by compliance with Section 4,
Rule 108, which requires notice by publication x x x.
xxxx

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What surfaces as an issue is whether the failure to implead


Marivel and Carlitos parents rendered the trial short of the required
adversary proceeding and the trial courts judgment void.

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Atty. Arceno
The purpose precisely of Section 4, Rule 108 is
to bind the whole world to the subsequent judgment on
the petition. The sweep of the decision would cover even
parties who should have been impleaded under Section
3, Rule 108, but were inadvertently left out. x x x
xxxx
Verily, a petition for correction is an action in
rem, an action against a thing and not against a
person. The decision on the petition binds not only the
parties thereto but the whole world. An in remproceeding
is validated essentially through publication. Publication is
notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to
be established. It is the publication of such notice that
brings in the whole world as a party in the case and vests
the court with jurisdiction to hear and decide it.[22]
Given the above ruling, it becomes unnecessary to rule on whether Marivel
or respondents parents should have been impleaded as parties to the
proceeding. It may not be amiss to mention, however, that during the
hearing on January 31, 2002, the city prosecutor who was acting as
representative of the OSG did not raise any objection to the non-inclusion
of Marivel and Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was
unaware of the proceedings to correct the entries in her childrens birth
certificates, especially since the notices, orders and decision of the trial
court were all sent to the residence [23] she shared with Carlito and the
children.
It is also well to remember that the role of the court in hearing a
petition to correct certain entries in the civil registry is to ascertain the
truth about the facts recorded therein.[24]
With respect to the date of marriage of Carlito and Marivel, their
certificate of marriage[25] shows that indeed they were married on January
21, 2000, not on April 27, 1989.Explaining the error, Carlito declared that
the date April 27, 1989 was supplied by his helper, adding that he was not
married to Marivel at the time his sons were born because his previous
marriage was annulled only in 1999. [26] Given the evidence presented by
respondents, the CA observed that the minors were illegitimate at birth,
hence, the correction would bring about no change at all in the nature of
their filiation.

The documentary evidence supporting the deletion from Carlitos


and his siblings birth certificates of the entry Married opposite the date of
marriage of their parents, moreover, consisted of a certification issued on
November 24, 1973 by St. Joseph (Butuan City) Parish priest Eugene van
Vught stating that Juan Kho and Epifania had been living together as
common law couple since 1935 but have never contracted marriage legally.
[28]

A certification from the office of the city registrar, which was


appended to respondents Amended Petition, likewise stated that it has no
record of marriage between Juan Kho and Epifania.[29] Under the
circumstances, the deletion of the word Married opposite the date of
marriage of parents is warranted.
With respect to the correction in Carlitos birth certificate of his
name from Carlito John to Carlito, the same was properly granted under
Rule 108 of the Rules of Court. As correctly pointed out by the CA, the
cancellation or correction of entries involving changes of name falls under
letter o of the following provision of Section 2 of Rule 108:[30]
Section 2. Entries subject to cancellation or
correction. Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected:
(a) births; (b) marriages; (c) deaths; (d) legal
separation; (e) judgments of annulment of marriage; (f)
judgments declaring marriages void from the beginning;
(g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name. (Emphasis and
underscoring supplied)

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With respect to Carlitos mother, it bears noting that she declared


at the witness stand that she was not married to Juan Kho who died in
1959.[27] Again, that testimony was not challenged by the city prosecutor.

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Atty. Arceno
The correction of the mothers citizenship from Chinese to Filipino
as appearing in Carlitos birth record was also proper. Of note is the fact
that during the cross examination by the city prosecutor of Epifania, he did
not deem fit to question her citizenship. Such failure to oppose the
correction prayed for, which certainly was not respondents fault, does not
in any way change the adversarial nature of the proceedings.
Also significant to note is that the birth certificates of Carlitos
siblings uniformly stated the citizenship of Epifania as Filipino. To disallow
the correction in Carlitos birth record of his mothers citizenship would
perpetuate an inconsistency in the natal circumstances of the siblings who
are unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the
correction of the name of Carlitos wife from Maribel to Marivel. The mistake
is clearly clerical or typographical, which is not only visible to the eyes, but
is also obvious to the understanding [34] considering that the name reflected
in the marriage certificate of Carlito and his wife is Marivel.
Apropos is Yu v. Republic[35] which held that changing the
appellants Christian name of Sincio to Sencio amounts merely to the
righting of a clerical error. The change of name from Beatriz Labayo/Beatriz
Labayu to Emperatriz Labayo was also held to be a mere innocuous
alteration, which can be granted through a summary proceeding. [36] The
same ruling holds true with respect to the correction in Carlitos marriage
certificate of his fathers name from John Kho to Juan Kho. Except in said
marriage certificate, the name Juan Kho was uniformly entered in the birth
certificates of Carlito and of his siblings.[37]
WHEREFORE, the Petition is DENIED. The Decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.

Hence, while the jurisdictional requirements of Rule 103 (which


governs petitions for change of name) were not complied with, observance
of the provisions of Rule 108 suffices to effect the correction sought for.
More importantly, Carlitos official transcript of record from
the Urious College in Butuan City,[31] certificate of eligibility from the Civil
Service Commission,[32] and voter registration record[33] satisfactorily show
that he has been known by his first name only. No prejudice is thus likely
to arise from the dropping of the second name.

FIRST DIVISION

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Atty. Arceno

REPUBLIC OF THE PHILIPPINES, Petitioner, v. TRINIDAD R.A.


CAPOTE, Respondent.
DECISION
CORONA, J.:
This Petition for Review on Certiorari 1 seeks to set aside the Court of
Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No.
66128, which affirmed the decision of the Regional Trial Court (RTC),
Branch 23 of San Juan, Southern Leyte dated September 14, 1999
granting a petition for change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of
her ward from Giovanni N. Gallamaso to Giovanni Nadores on
September 9, 1998. In Special Proceeding No. R-481,3 Capote as
Giovanni's guardian ad litem averred:
xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor
GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years
old and both are residents of San Juan, Southern Leyte where they can
be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni
N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459,
dated [August 18, 1998] xxx xxx authorizing her to file in court a
petition for change of name of said minor in accordance with the desire
of his mother [who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San
Juan, Southern Leyte, Philippines for more than fifteen (15) years prior
to the filing of this instant petition, the former since 1970 while the
latter since his birth [in 1982];

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[G.R. NO. 157043 : February 2, 2007]

4. The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of
Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,
1982 [,] prior to the effectivity of the New Family Code and as such,
his mother used the surname of the natural father despite the absence
of marriage between them; and [Giovanni] has been known by that
name since birth [as per his birth certificate registered at the Local
Civil Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was born
and up to the present, failed to take up his responsibilities [to him] on
matters of financial, physical, emotional and spiritual concerns.
[Giovanni's pleas] for attention along that line [fell] on deaf ears xxx
xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and
he desires to have his surname changed to that of his mother's
surname;
8. [Giovanni's] mother might eventually petition [him] to join her in
the United States and [his] continued use of the surname Gallamaso,
the surname of his natural father, may complicate [his] status as
natural child; and
cralawlibrary

9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI


NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to
effect the change of name on Giovanni's birth certificate. Having found
respondent's petition sufficient in form and substance, the trial court
gave due course to the petition.5 Publication of the petition in a
newspaper of general circulation in the province of Southern Leyte
once a week for three consecutive weeks was likewise ordered. 6 The
trial court also directed that the local civil registrar be notified and that

Since there was no opposition to the petition, respondent moved for


leave of court to present her evidence ex parte before a courtappointed commissioner. The OSG, acting through the Provincial
Prosecutor, did not object; hence, the lower court granted the motion.
After the reception of evidence, the trial court rendered a decision
ordering the change of name from Giovanni N. Gallamaso to Giovanni
Nadores.8
From this decision, petitioner Republic of the Philippines, through the
OSG, filed an appeal with a lone assignment of error: the court a
quo erred in granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as
required, the CA affirmed the RTC decision ordering the change of
name.9
In this petition, the Republic contends that the CA erred in affirming
the trial court's decision which granted the petition for change of name
despite the non-joinder of indispensable parties.10 Petitioner
cites Republic of the Philippines v. Labrador11 and claims that the
purported parents and all other persons who may be adversely
affected by the child's change of name should have been made
respondents to make the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization
which serves to distinguish him from all others; this symbol is his
name."13 Understandably, therefore, no person can change his name or
surname without judicial authority.14 This is a reasonable requirement
for those seeking such change because a person's name necessarily
affects his identity, interests and interactions. The State must be
involved in the process and decision to change the name of any of its
citizens.

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the Office of the Solicitor General (OSG) be sent a copy of the petition
and order.7

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Atty. Arceno
The Rules of Court provides the requirements and procedure for
change of name. Here, the appropriate remedy is covered by Rule
103,15 a separate and distinct proceeding from Rule 108 on mere
cancellation and correction of entries in the civil registry (usually
dealing only with innocuous or clerical errors thereon).16
The issue of non-joinder of alleged indispensable parties in the action
before the court a quo is intertwined with the nature of the
proceedings there. The point is whether the proceedings were
sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case
since the reason for their conduct is expediency. This, according to
petitioner, is not sufficient to deal with substantial or contentious
issues allegedly resulting from a change of name, meaning, legitimacy
as well as successional rights.17 Such issues are ventilated only in
adversarial proceedings wherein all interested parties are impleaded
and due process is observed.18
When Giovanni was born in 1982 (prior to the enactment and
effectivity of the Family Code of the Philippines),19 the pertinent
provision of the Civil Code then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally
use the surname of the father. If recognized by only one of the
parents, a natural child shall employ the surname of the
recognizing parent. (emphasis ours)
Based on this provision, Giovanni should have carried his mother's
surname from birth. The records do not reveal any act or intention on
the part of Giovanni's putative father to actually recognize him.
Meanwhile, according to the Family Code which repealed, among
others, Article 366 of the Civil Code:
Art. 176. Illegitimate children shall use the surname and shall be
under the parental authorityof their mother, and shall be entitled to
support in conformity with this Code. xxx xxx xxx (emphasis ours)

Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. The Family
Code gives legitimate children the right to bear the surnames of the
father and the mother, while illegitimate children shall use the
surname of their mother, unless their father recognizes their filiation,
in which case they may bear the father's surname.
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his
mother' surname, and does not have a middle name.The name
of the unrecognized illegitimate child therefore identifies him
as such. It is only when the illegitimate child is legitimated by the
subsequent marriage of his parents or acknowledged by the father in a
public document or private handwritten instrument that he bears both
his mother's surname as his middle name and his father's surname as
his surname, reflecting his status as a legitimated child or an
acknowledged child.
rbl r l l lbrr

21

The foregoing discussion establishes the significant connection of a


person's name to his identity, his status in relation to his parents and
his successional rights as a legitimate or illegitimate child. For sure,
these matters should not be taken lightly as to deprive those who may,
in any way, be affected by the right to present evidence in favor of or
against such change.
The law and facts obtaining here favor Giovanni's petition. Giovanni
availed of the proper remedy, a petition for change of name under Rule
103 of the Rules of Court, and complied with all the procedural
requirements. After hearing, the trial court found (and the appellate
court affirmed) that the evidence presented during the hearing of
Giovanni's petition sufficiently established that, under Art. 176 of the
Civil Code, Giovanni is entitled to change his name as he was never

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Our ruling in the recent case of In Re: Petition for Change of Name
and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin
Carulasan Wang20 is enlightening:

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Atty. Arceno
recognized by his father while his mother has always recognized him
as her child. A change of name will erase the impression that he was
ever recognized by his father. It is also to his best interest as it will
facilitate his mother's intended petition to have him join her in the
United States. This Court will not stand in the way of the reunification
of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner22 in
support of its position deal with cancellation or correction of entries in
the civil registry, a proceeding separate and distinct from the special
proceedings for change of name. Those cases deal with the application
and interpretation of Rule 108 of the Rules of Court while this case was
correctly filed under Rule 103. Thus, the cases cited by petitioner are
irrelevant and have no bearing on respondent's case. While the OSG is
correct in its stance that the proceedings for change of name should
be adversarial, the OSG cannot void the proceedings in the trial court
on account of its own failure to participate therein. As the CA correctly
ruled:
The OSG is correct in stating that a petition for change of name must
be heard in an adversarial proceeding. Unlike petitions for the
cancellation or correction of clerical errors in entries in the civil registry
under Rule 108 of the Rules of Court, a petition for change of name
under Rule 103 cannot be decided through a summary proceeding.
There is no doubt that this petition does not fall under Rule 108 for it
is not alleged that the entry in the civil registry suffers from clerical or
typographical errors. The relief sought clearly goes beyond correcting
erroneous entries in the civil registry, although by granting the
petition, the result is the same in that a corresponding change in the
entry is also required to reflect the change in name. In this regard,
[appellee] Capote complied with the requirement for an
adversarial proceeding by posting in a newspaper of general
circulation notice of the filing of the petition. The lower court
also furnished the OSG a copy thereof. Despite the notice, no
one came forward to oppose the petition including the OSG.
The fact that no one opposed the petition did not deprive the
court of its jurisdiction to hear the same nor does it make the
proceeding less adversarial in nature.The lower court is still
expected to exercise its judgment to determine whether the petition is

A proceeding is adversarial where the party seeking relief has given


legal warning to the other party and afforded the latter an opportunity
to contest it.24 Respondent gave notice of the petition through
publication as required by the rules.25 With this, all interested parties
were deemed notified and the whole world considered bound by the
judgment therein. In addition, the trial court gave due notice to the
OSG by serving a copy of the petition on it. Thus, all the requirements
to make a proceeding adversarial were satisfied when all interested
parties, including petitioner as represented by the OSG, were afforded
the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13,
2003 decision of the Court of Appeals in CA-G.R. CV No.
66128 AFFIRMED.
SECOND DIVISION
[G.R. NO. 159966. March 30, 2005]
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY
OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN
WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN
LIN WANG, duly represented by his mother ANNA LISA
WANG, Petitioners, v. CEBU CITY CIVIL REGISTRAR, duly
represented by the Registrar OSCAR B. MOLO, Respondents.

Page

meritorious or not and not merely accept as true the arguments


propounded. Considering that the OSG neither opposed the petition
nor the motion to present its evidence ex parte when it had the
opportunity to do so, it cannot now complain that the proceedings in
the lower court were not adversarial enough.23 (emphasis supplied)

SPEC PRO CASES Until the End


Atty. Arceno
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,
represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of
entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner
sought to drop his middle name and have his registered name changed
from Julian Lin Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB
and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998
to parents Anna Lisa Wang and Sing-Foe Wang who were then not yet
married to each other. When his parents subsequently got married on
September 22, 1998, ...they executed a deed of legitimation of their
son so that the child's name was changed from Julian Lin Carulasan to
Julian Lin Carulasan Wang'.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for
a long time because they will let him study there together with his
sister named Wang Mei Jasmine who was born in Singapore'. Since in
Singapore middle names or the maiden surname of the mother are not
carried in a person's name, they anticipate that Julian Lin Carulasan
Wang will be discriminated against because of his current registered
name which carries a middle name. Julian and his sister might also be
asking whether they are brother and sister since they have different
surnames. Carulasan sounds funny in Singapore's Mandarin language
since they do not have the letter "R" but if there is, they pronounce it
as "L." It is for these reasons that the name of Julian Lin Carulasan
Wang is requested to be changed to Julian Lin Wang. 1

DECISION
TINGA, J.:
I will not blot out his name out of the book of life.

On 30 April 2003, the RTC rendered a decision denying the


petition.2 The trial court found that the reason given for the change of
name sought in the petition that is, that petitioner Julian may be
discriminated against when studies in Singapore because of his middle

Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.4 The trial court maintained
that the Singaporean practice of not carrying a middle name does not
justify the dropping of the middle name of a legitimate Filipino child
who intends to study there. The dropping of the middle name would be
tantamount to giving due recognition to or application of the laws of
Singapore instead of Philippine law which is controlling. That the
change of name would not prejudice public interest or would not be for
a fraudulent purpose would not suffice to grant the petition if the
reason for the change of name is itself not reasonable.5
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)6 arguing that the trial court has decided a question of substance
not theretofore determined by the Court, that is: whether or not
dropping the middle name of a minor child is contrary to Article 174 7 of
the Family Code. Petitioner contends that "[W]ith globalization and
mixed marriages, there is a need for the Supreme Court to rule on the
matter of dropping of family name for a child to adjust to his new
environment, for consistency and harmony among siblings, taking into
consideration the "best interest of the child."8 It is argued that
convenience of the child is a valid reason for changing the name as
long as it will not prejudice the State and others. Petitioner points out
that the middle name "Carulasan" will cause him undue
embarrassment and the difficulty in writing or pronouncing it will be an
obstacle to his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court to
have denied the petition for change of name until he had reached the
age of majority for him to decide the name to use, contrary to

Page

name did not fall within the grounds recognized by law. The trial court
ruled that the change sought is merely for the convenience of the
child. Since the State has an interest in the name of a person, names
cannot be changed to suit the convenience of the bearers. Under
Article 174 of the Family Code, legitimate children have the right to
bear the surnames of the father and the mother, and there is no
reason why this right should now be taken from petitioner Julian,
considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide
whether he will change his name by dropping his middle name. 3

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Atty. Arceno
previous cases9 decided by this Court that allowed a minor to petition
for change of name.10
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment11 positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing
that the dropping of the middle name "Carulasan" is in the best
interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of
entry.12 The OSG also adds that the petitioner has not shown any
compelling reason to justify the change of name or the dropping of the
middle name, for that matter. Petitioner's allegation that the continued
use of the middle name may result in confusion and difficulty is
allegedly more imaginary than real. The OSG reiterates its argument
raised before the trial court that the dropping of the child's middle
name could only trigger much deeper inquiries regarding the true
parentage of petitioner. Hence, while petitioner Julian has a sister
named Jasmine Wei Wang, there is no confusion since both use the
surname of their father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been shown that
the use of such middle name is actually proscribed by Singaporean
law.13
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right,
so that before a person can be authorized to change his name given
him either in his certificate of birth or civil registry, he must show
proper or reasonable cause, or any compelling reason which may
justify such change. Otherwise, the request should be denied. 14

In granting or denying petitions for change of name, the question of


proper and reasonable cause is left to the sound discretion of the
court. The evidence presented need only be satisfactory to the court
and not all the best evidence available. What is involved is not a mere
matter of allowance or disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of the justifications
advanced in support thereof, mindful of the consequent results in the
event of its grant and with the sole prerogative for making such
determination being lodged in the courts.17
The petition before us is unlike other petitions for change of name, as
it does not simply seek to change the name of the minor petitioner and
adopt another, but instead seeks to drop the middle name altogether.
Decided cases in this jurisdiction involving petitions for change of
name usually deal with requests for change of surname. There are
only a handful of cases involving requests for change of the given
name18 and none on requests for changing or dropping of the middle
name. Does the law allow one to drop the middle name from his
registered name? We have to answer in the negative.

Page

The touchstone for the grant of a change of name is that there be


'proper and reasonable cause' for which the change is sought. 15 To
justify a request for change of name, petitioner must show not only
some proper or compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among the grounds
for change of name which have been held valid are: (a) when the
name is ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as a legal consequence, as in
legitimation; (c) when the change will avoid confusion; (d) when one
has continuously used and been known since childhood by a Filipino
name, and was unaware of alien parentage; (e) a sincere desire to
adopt a Filipino name to erase signs of former alienage, all in good
faith and without prejudicing anybody; and (f) when the surname
causes embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the change of
name would prejudice public interest.16

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Atty. Arceno
A discussion on the legal significance of a person's name is relevant at
this point. We quote, thus:
'For all practical and legal purposes, a man's name is the designation
by which he is known and called in the community in which he lives
and is best known. It is defined as the word or combination of words
by which a person is distinguished from other individuals and, also, as
the label or appellation which he bears for the convenience of the
world at large addressing him, or in speaking of or dealing with him.
Names are used merely as one method of indicating the identity of
persons; they are descriptive of persons for identification, since, the
identity is the essential thing and it has frequently been held that,
when identity is certain, a variance in, or misspelling of, the name is
immaterial.
The names of individuals usually have two parts: the given name or
proper name, and the surname or family name. The given or proper
name is that which is given to the individual at birth or baptism, to
distinguish him from other individuals. The name or family name is
that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the
parents for the child; but the surname to which the child is entitled is
fixed by law.
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2)
It is obligatory in certain respects, for nobody can be without a name.
(3) It is fixed, unchangeable, or immutable, at least at the start, and
may be changed only for good cause and by judicial proceedings. (4)
It is outside the commerce of man, and, therefore, inalienable and
intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.19
This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal
significance. Middle names serve to identify the maternal lineage or
filiation of a person as well as further distinguish him from others who
may have the same given name and surname as he has.

Applying these laws, an illegitimate child whose filiation is not


recognized by the father bears only a given name and his mother's
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is
only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears both his
mother's surname as his middle name and his father's surname as his
surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the
certificate. The registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a given or proper name, a
middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and
integrate himself into Singaporean society. In support, he citesOshita
v. Republic23 and Calderon v. Republic,24 which, however, are not
apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita,
sought to change her name from Antonina B. Oshita to Antonina
Bartolome. The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon reaching
the age of majority; her other siblings who had also elected Philippine
citizenship have been using their mother's surname; she was
embarrassed to bear a Japanese surname there still being ill feeling

Page

Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father.20 The Family
Code gives legitimate children the right to bear the surnames of the
father and the mother,21 while illegitimate children shall use the
surname of their mother, unless their father recognizes their filiation,
in which case they may bear the father's surname.22

12

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Atty. Arceno
against the Japanese due to the last World War; and there was no
showing that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado,
an illegitimate minor child acting through her mother who filed the
petition in her behalf, to change her name to Gertudes Josefina
Calderon, taking the surname of her stepfather, Romeo C. Calderon,
her mother's husband. The Court held that a petition for change of
name of an infant should be granted where to do is clearly for the best
interest of the child. The Court took into consideration the opportunity
provided for the minor petitioner to eliminate the stigma of illegitimacy
which she would carry if she continued to use the surname of her
illegitimate father. The Court pronounced that justice dictates that
every person be allowed to avail of any opportunity to improve his
social standing as long as doing so he does not cause prejudice or
injury to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,25 in arguing that although Article 174
of the Family Code gives the legitimate child the right to use the
surnames of the father and the mother, it is not mandatory such that
the child could use only one family name, even the family name of the
mother. In Alfon, the petitioner therein, the legitimate daughter of
Filomeno Duterte and Estrella Alfon, sought to change her name from
Maria Estrella Veronica Primitiva Duterte (her name as registered in
the Local Civil Registry) to Estrella S. Alfon (the name she had been
using since childhood, in her school records and in her voter's
registration). The trial court denied her petition but this Court
overturned the denial, ruling that while Article 364 of the Civil Code
states that she, as a legitimate child, should principally use the
surname of her father, there is no legal obstacle for her to choose to
use the surname of herm other to which she is entitled. In addition,
the Court found that there was ample justification to grant her
petition, i.e., to avoid confusion.
Weighing petitioner's reason of convenience for the change of his
name against the standards set in the cases he cites to support his

The factual antecedents and unique circumstances of the cited cases


are not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the
petitioners were already of age when they filed their petitions for
change of name. Being of age, they are considered to have exercised
their discretion and judgment, fully knowing the effects of their
decision to change their surnames. It can also be unmistakably
observed that the reason for the grant of the petitions for change of
name in these two cases was the presence of reasonable or compelling
grounds therefore. The Court, in Oshita, recognized the tangible
animosity most Filipinos had during that time against the Japanese as
a result of World War II, in addition to the fact of therein petitioner's
election of Philippine citizenship. In Alfon, the Court granted the
petition since the petitioner had been known since childhood by a
name different from her registered name and she had not used her
registered name in her school records and voter's registration records;
thus, denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of name
filed by a mother in behalf of her illegitimate minor child. Petitioner
cites this case to buttress his argument that he does not have to reach
the age of majority to petition for change of name. However, it is
manifest in Calderon that the Court, in granting the petition for change
of name, gave paramount consideration to the best interests of the
minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such change
of name would make his integration into Singaporean society easier
and convenient is not clearly established. That the continued use of his
middle name would cause confusion and difficulty does not constitute
proper and reasonable cause to drop it from his registered complete
name.

Page

contention would show that his justification is amorphous, to say the


least, and could not warrant favorable action on his petition.

13

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Atty. Arceno
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is best
that the matter of change of his name be left to his judgment and
discretion when he reaches the age of majority.26 As he is of tender
age, he may not yet understand and appreciate the value of the
change of his name and granting of the same at this point may just
prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.

SECOND DIVISION
[G.R. No. 118387. October 11, 2001.]
MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE,
HELEN LEE, CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and
TIU CHUAN, Petitioners, v. COURT OF APPEALS and HON.
LORENZO B. VENERACION and HON. JAIME T. HAMOY, in their
capacities as Presiding Judge of Branch 47, Regional Trial Court
of Manila and Branch 130, Regional Trial Court of Kalookan
City, respectively and RITA K. LEE, LEONCIO LEE TEK SHENG in
their personal capacities and ROSA K. LEE-VANDERLEK,
MELODY K. LEE-CHIN, LUCIA K. LEE TEK SHENG, JULIAN K. LEE,
HENRY K. LEE, MARTIN K. LEE, VICTORIANO K. LEE,
NATIVIDAD K. LEE-MIGUEL, and THOMAS K. LEE, represented
by RITA K. LEE, Respondents.
DECISION

This Petition for Review on Certiorari, with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction,
seeks the reversal of the Decision 1 of the Court of Appeals dated
October 28, 1994 in CA-G.R. SP NO. 31786 2 . The assailed decision of
the Court of Appeals upheld the Orders issued by respondents Judges
Hon. Lorenzo B. Veneracion 3 and Hon. Jaime T. Hamoy 4 taking
cognizance of two (2) separate petitions filed by private respondents
before their respective salas for the cancellation and/or correction of
entries in the records of birth of petitioners pursuant to Rule 108 of
the Revised Rules of Court.
This is a story of two (2) sets of children sired by one and the same
man but begotten of two (2) different mothers. One set, the private
respondents herein, are the children of Lee Tek Sheng and his lawful
wife, Keh Shiok Cheng. The other set, the petitioners herein, are
allegedly children of Lee Tek Sheng and his concubine, Tiu Chuan.

chanrob1es virtua1 1aw 1ibrary

Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K.


Lee-Chin, Lucia K. Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee,
Martin K. Lee, Victoriano K. Lee, Natividad K. Lee-Miguel and Thomas
K. Lee (hereinafter referred to as private respondents) filed two (2)
separate petitions for the cancellation and/or correction of entries in
the records of birth of Marcelo Lee, Albina Lee-Young, Mariano Lee,
Pablo Lee, Helen Lee, Catalino K. Lee, Eusebio Lee, and Emma Lee
(hereinafter referred to as petitioners). On December 2, 1992, the
petition against all petitioners, with the exception of Emma Lee, was
filed before the Regional Trial Court (RTC) of Manila and docketed as
SP. PROC. NO. 92-63692 5 and later assigned to Branch 47 presided
over by respondent Judge Lorenzo B. Veneracion. On February 3,
1993, a similar petition against Emma Lee was filed before the RTC of
Kalookan and docketed as SP. PROC. NO. C-1674 6 and assigned to
the sala of respondent Judge Jaime T. Hamoy of Branch 130.
Both petitions sought to cancel and/or correct the false and erroneous
entries in all pertinent records of birth of petitioners by deleting and/or
canceling therein the name of "Keh Shiok Cheng" as their mother, and
by substituting the same with the name "Tiu Chuan", who is allegedly
the petitioners true birth mother.

Page

DE LEON, JR., J.:

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Atty. Arceno
The private respondents alleged in their petitions before the trial
courts that they are the legitimate children of spouses Lee Tek Sheng
and Keh Shiok Cheng who were legally married in China sometime in
1931. Except for Rita K. Lee who was born and raised in China, private
respondents herein were all born and raised in the Philippines.
chanrob1es virtua1 1aw 1ibrary

Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in


the Philippines from China of a young girl named Tiu Chuan. She was
introduced by Lee Tek Sheng to his family as their new housemaid but
far from becoming their housemaid, Tiu Chuan immediately became
Lee Tek Shengs mistress. As a result of their illicit relations, Tiu Chuan
gave birth to petitioners.
Unknown to Keh Shiok Cheng and private respondents, every time Tiu
Chuan gave birth to each of the petitioners, their common father, Lee
Tek Sheng, falsified the entries in the records of birth of petitioners by
making it appear that petitioners mother was Keh Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who gave maternal care
and guidance to the petitioners. They all lived in the same compound
Keh Shiok Cheng and private respondents were residing in. All was
well, therefore, before private respondents discovery of the dishonesty
and fraud perpetrated by their father, Lee Tek Sheng.
The tides turned after Keh Shiok Chengs demise on May 9, 1989. Lee
Tek Sheng insisted that the names of all his children, including those of
petitioners, be included in the obituary notice of Keh Shiok Chengs
death that was to be published in the newspapers. It was this
seemingly irrational act that piqued private respondents curiosity, if
not suspicion. 7
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Acting on their suspicion, the private respondents requested the


National Bureau of Investigation (NBI) to conduct an investigation into
the matter. After investigation and verification of all pertinent records,
the NBI prepared a report that pointed out, among others, the false
entries in the records of birth of petitioners, specifically the following.
1. As per Birth Certificate MARCELO LEE (Annex F-1), their father, LEE
TEK SHENG made it appear that he is the 12th child of Mrs. KEH
SHIOK CHENG, but upon investigation, it was found out that her
Hospital Records, the mother who gave birth to MARCELO LEE had
given birth for the 1st time, as per diagnosis of the attending
physician, Dr. R. LIM, it was "GRAVIDA I, PARA I" which means "first
pregnancy, first live birth delivery" (refer to: MASTER PATIENTS
RECORDS SUMMARY Annex I). Also, the age of the mother when

chanrob1es virtua1 1aw 1ibrary

2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made to


appear that ALBINA LEE was the third child which is without any
rationality, because the 3rd child of KEH SHIOK CHENG is MELODY LEE
TEK SHENG (Annex E-2). Note also, that the age of the mother as per
Hospital Records jump (sic) from 17 to 22 years old, but the only age
gap of MARCELO LEE and ALBINA LEE is only 2 years.
3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was made
to appear that MARIANO LEE was the 5th child, but the truth is, KEH
SHIOK CHENGs 5th child is LUCIA LEE TEK SHENG (Annex E-4). As
per Hospital Record, the age of KEH SHIOK CHENG was only 23 years
old, while the actual age of KEH SHIOK CHENG, was then already 40
years old.
4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made to
appear that PABLO LEE was the 16th child of KEH SHIOK CHENG which
is impossible to be true, considering the fact that KEH SHIOK CHENG
have stopped conceiving after her 11th child. Also as per Hospital
Record, the age of the mother was omitted in the records. If PABLO
LEE is the 16th child of KEH SHIOK CHENG, it would only mean that
she have (sic) given birth to her first born child at the age of 8 to 9
years, which is impossible to be true.
Based on the birth record of MARIANO LEE in 1953, the recorded age
of KEH SHIOK CHENG was 23 years old. Two years after PABLO LEE
was born in 1955, the difference is only 2 years, so it is impossible for
PABLO LEE to be the 16th child of KEH SHIOK CHENG, as it will only
mean that she have (sic) given birth at that impossible age.

Page

she gave birth to MARCELO LEE as per record was only 17 years old,
when in fact and in truth, KEH SHIOK CHENGs age was then already
38 years old. The address used by their father in the Master Patient
record was also the same as the Birth Certificate of MARCELO LEE
(2425 Rizal Avenue, Manila). The name of MARCELO LEE was recorded
under Hospital No. 221768, page 73.

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Atty. Arceno
admitted at Chinese General Hospital.
7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was made
to appear that he is the 14th child of KEH SHIOK CHENG, and that the
age of KEH SHIOK CHENG a.k.a. Mrs. LEE TEK SHENG, jumped from
28 years old at the birth of HELEN LEE on 23 August 1957 to 38 years
old at the birth of CATALINO LEE on 22 April 1959.
8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of KEH
SHIOK CHENG, the age of the mother is 48 years old. However, as per
Hospital Record, the age of Mrs. LEE TEK SHENG, then was only 39
years old. Considering the fact, that at the time of MARCELOs birth on
11 May 1950. KEH SHIOK CHENGs age is 38 years old and at the time
of EUSEBIOs birth, she is already 48 years old, it is already impossible
that she could have given birth to 8 children in a span of only 10 years
at her age. As per diagnosis, the alleged mother registered on
EUSEBIOs birth indicate that she had undergone CEASARIAN
SECTION, which Dr. RITA K. LEE said is not true.
In view of the foregoing facts, the NBI concluded that:

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10. In conclusion, as per Chinese General Hospital Patients Records, it


is very obvious that the mother of these 8 children is certainly not KEH
SHIOK CHENG, but a much younger woman, most probably TIU
CHUAN. Upon further evaluation and analysis by these Agents, LEE
TEK SHENG, is in a quandary in fixing the age of KEH SHIOK CHENG
possibly to conform with his grand design of making his 8 children as
their own legitimate children, consequently elevating the status of his
2nd family and secure their future. The doctor lamented that this
complaint would not have been necessary had not the father and his
2nd family kept on insisting that the 8 children are the legitimate
children of KEH SHIOK CHENG. 8
It was this report that prompted private respondents to file the
petitions for cancellation and/or correction of entries in petitioners
records of birth with the lower courts.
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5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made to


appear that she is the 6th child of KEH SHIOK CHENG, but as per Birth
Certificate of JULIAN LEE (Annex E-5), he is the true 6th child of KEH
SHIOK CHENG. Per Hospital Record, KEH SHIOK CHENG is only 28
years old, while KEH SHIOK CHENGS true age at that time was 45
years old.
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6. EMMA LEE has no record in the hospital because, as per


complainants allegation, she was born at their house, and was later

The petitioners filed a motion to dismiss both petitions SP. PROC.


NO. 92-63692 and SP. PROC. NO. C-1674 on the grounds that: (1)
resort to Rule 108 is improper where the ultimate objective is to assail
the legitimacy and filiation of petitioners; (2) the petition, which is
essentially an action to impugn legitimacy was filed prematurely; and
(3) the action to impugn has already prescribed. 9
On February 12, 1993, respondent Judge Veneracion denied the

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Finding the petition to be sufficient in form and substance, the same is


hereby given due course. Let this petition be set for hearing on March
29, 1993 at 8:30 in the morning before this Court located at the 5th
Floor of the City Hall of Manila.
Notice is hereby given that anyone who has any objection to the
petition should file on or before the date of hearing his opposition
thereto with a statement of the grounds therefor.
Let a copy of this Order be published, at the expense of the
petitioners, once a week for three (3) consecutive weeks in a
newspaper of general circulation in the Philippines.
Let copies of the verified petition with its annexes and of this Order be
served upon the Office of the Solicitor General, and the respondents,
and be posted on the Bulletin Board of this Court, also at the expense
of the petitioners.
SO ORDERED. 11
On the other hand, respondent Judge Hamoy issued an Order dated
April 15, 1993 taking cognizance of SP. PROC. No. C-1674, to wit:

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It appearing from the documentary evidence presented and marked by


the petitioners that the Order of the Court setting the case for hearing
was published in "Media Update" once a week for three (3) consecutive
weeks, that is on February 20, 27, and March 6, 1993 as evidenced by
the Affidavit of Publication and the clippings attached to the affidavit,
and by the copies of the "Media Update" published on the
aforementioned dates; further, copy of the order setting the case for
hearing together with copy of the petition had been served upon the
Solicitor General, City Prosecutor of Kalookan City, Civil Registrar of
Kalookan City and the private respondents, the Court holds that the
petitioners have complied with the jurisdictional requirements for the
Court to take cognizance of this case.
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Page

motion to dismiss SP. PROC. NO. 92-63692 for failure of the herein
petitioners (defendants in the lower court) to appear at the hearing of
the said motion. 10 Then on February 17, 1993, Judge Veneracion
issued an Order, the pertinent portion of which, reads as follows:

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Atty. Arceno
Petitioners attempts at seeking a reconsideration of the abovementioned orders of Judge Veneracion and Judge Hamoy failed, hence
their recourse to the Court of Appeals via a Petition forCertiorari and
Prohibition with Application for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction. Petitioners
averred that respondents judges had acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the
assailed orders allowing the petitions for the cancellation and/or
correction of entries in petitioners records of birth to prosper in the
lower courts.
In their petition before the Court of Appeals, the petitioners raised the
following arguments: (1) Rule 108 is inappropriate for impugning the
legitimacy and filiation of children; (2) Respondents judges are
sanctioning a collateral attack against the filiation and legitimacy of
children; (3) Respondents judges are allowing private respondents to
impugn the legitimacy and filiation of their siblings despite the fact
that their undisputed common father is still alive; (4) Respondents
judges are entertaining petitions which are already time-barred; and
(5) The petitions below are part of a forum-shopping spree. 13
Finding no merit in petitioners arguments, the Court of Appeals
dismissed their petition in a Decision dated October 28, 1994. 14
Petitioners Motion for Reconsideration of the said decision was also
denied by the Court of Appeals in a Resolution dated December 19,
1994. 15
Hence, this petition.
1. Petitioners contend that resort to Rule 108 of the Revised Rules of
Court is improper since private respondents seek to have the entry for
the name of petitioners mother changed from "Keh Shiok Cheng" to
"Tiu Chuan" who is a completely different person. What private
respondents therefore seek is not merely a correction in name but a
declaration that petitioners were not born of Lee Tek Shengs
legitimate wife, Keh Shiok Cheng, but of his mistress, Tiu Chuan, in
effect a "bastardization of petitioners." 16 Petitioners thus label private
respondents suits before the lower courts as a collateral attack against
their legitimacy in the guise of a Rule 108 proceeding.
Debunking petitioners above contention, the Court of Appeals
observed:
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SO ORDERED. 12

It is precisely the province of a special proceeding such as the one


outlined under Rule 108 of the Revised Rules of Court to establish the
status or right of a party, or a particular fact. 18 The petitions filed by
private respondents for the correction of entries in the petitioners
records of birth were intended to establish that for physical and/or
biological reasons it was impossible for Keh Shiok Cheng to have
conceived and given birth to the petitioners as shown in their birth
records. Contrary to petitioners contention that the petitions before
the lower courts were actually actions to impugn legitimacy, the prayer
therein is not to declare that petitioners are illegitimate children of Keh
Shiok Cheng, but to establish that the former are not the latters
children. There is nothing to impugn as there is no blood relation at all
between Keh Shiok Cheng and petitioners. 19
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Further sanctioning private respondents resort to Rule 108, the Court


of Appeals adverted to our ruling in the leading case of Republic v.
Valencia 20 where we affirmed the decision of Branch XI of the then
Court of First Instance (CFI) of Cebu City ordering the correction in the
nationality and civil status of petitioners minor children as stated in
their records of birth from "Chinese" to "Filipino", and "legitimate" to
"illegitimate", respectively. Although recognizing that the changes or
corrections sought to be effected are not mere clerical errors of a
harmless or innocuous nature, this Court, sitting en banc, held therein
that even substantial errors in a civil register may be corrected and the
true facts established provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceeding. 21 In the said
case, we also laid down the rule that a proceeding for correction
and/or cancellation of entries in the civil register under Rule 108
ceases to be summary in nature and takes on the characteristics of an
appropriate adversary proceeding when all the procedural
requirements under Rule 108 are complied with. Thus we held:
jgc:chanroble s.com.ph

"Provided the trial court has conducted proceedings where all relevant

Page

As correctly pointed out by the private respondents in their


comment . . ., the proceedings are simply aimed at establishing a
particular fact, status and/or right. Stated differently, the thrust of said
proceedings was to establish the factual truth regarding the occurrence
of certain events which created or affected the status of persons
and/or otherwise deprived said persons of rights. 17

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Atty. Arceno
facts have been fully and properly developed, where opposing counsel
have been given opportunity to demolish the opposite partys case,
and where the evidence has been thoroughly weighed and considered,
the suit or proceeding is appropriate.
The pertinent sections of rule 108 provide:

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SECTION 3. Parties. When cancellation or correction of an entry in


the civil register is sought, the civil registrar and all persons who have
or claim any interest which would be affected thereby shall be made
parties to the proceeding.
SECTION 4. Notice and publication. Upon the filing of the petition,
the court shall, by an order, fix the time and place for the hearing of
the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to
be published once in a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.
SECTION 5. Opposition. The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction
is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition
thereto.
"Thus, the persons who must be made parties to a proceeding
concerning the cancellation or correction of an entry in the civil
register are (1) the civil registrar, and (2) all persons who have or
claim any interest which would be affected thereby. Upon the filing of
the petition, it becomes the duty of the court to (1) issue an order
fixing the time and place for the hearing of the petition, and (2) cause
the order for hearing to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province. The following are likewise entitled to oppose the petition:
(1) the civil registrar, and (2) any person having or claiming any
interest under the entry whose cancellation or correction is sought.
"If all these procedural requirements have been followed, a petition for
correction and/or cancellation of entries in the record of birth even if
filed and conducted under Rule 108 of the Revised Rules of Court can
no longer be described as "summary." There can be no doubt that
when an opposition to the petition is filed either by the Civil Registrar
or any person having or claiming any interest in the entries sought to
be cancelled and/or corrected and the opposition is actively
prosecuted, the proceedings thereon become adversary proceedings."

To the mind of the Court of Appeals, the proceedings taken in both


petitions for cancellation and/or correction of entries in the records of
birth of petitioners in the lower courts are appropriate adversary
proceedings.
We agree. As correctly observed by the Court of Appeals:

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In the instant case, a petition for cancellation and/or correction of


entries of birth was filed by private respondents and pursuant to the
order of the RTC-Manila, dated February 17, 1993, a copy of the order
setting the case for hearing was ordered published once a week for
three (3) consecutive weeks in a newspaper of general circulation in
the Philippines. In the RTC-Kalookan, there was an actual publication
of the order setting the case for hearing in "Media Update" once a
week for three (3) consecutive weeks. In both cases notices of the
orders were ordered served upon the Solicitor General, the Civil
Registrars of Manila and Kalookan and upon the petitioners herein.
Both orders set the case for hearing and directed the Civil Registrars
and the other respondents in the case below to file their oppositions to
the said petitions. A motion to dismiss was consequently filed by
herein petitioners Marcelo, Mariano, Pablo, Helen, Catalino and
Eusebio, all surnamed Lee, and Albina Lee-Young in the RTC-Manila,
and an opposition was filed by Emma Lee in the RTC-Kalookan.
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In view of the foregoing, we hold that the petitions filed by the private
respondents in the courts below by way of a special proceeding
cancellation and/or correction of entries in the civil registers with the
requisite parties, notices and publications could very well be regarded
as that proper suit or appropriate action. 23 (Emphasis supplied.)
The petitioners assert, however, that making the proceedings
adversarial does not give trial courts the license to go beyond the
ambit of Rule 108 which is limited to those corrections contemplated
by Article 412 of the New Civil Code or mere clerical errors of a
harmless or innocuous nature. 24 The petitioners point to the case of
Labayo-Rowe v. Republic, 25 which is of a later date than Republic v.
Valencia, 26 where this Court reverted to the doctrine laid down in
earlier cases, 27 starting with Ty Kong Tin v. Republic, 28 prohibiting
the extension of the application of Rule 108 beyond innocuous or
harmless changes or corrections. Petitioners contend that as held in
Go, Et. Al. v. Civil Registrar, 29 allowing substantial changes under
Rule 108 would render the said rule unconstitutional as the same
would have the effect of increasing or modifying substantive rights.

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22 (Emphasis supplied.)

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At the outset, it should be pointed out that in the cited case of LabayoRowe v. Republic, 30 the reason we declared null and void the portion
of the lower courts order directing the change of Labayo-Rowes civil
status and the filiation of one of her children as appearing in the
latters record of birth, is not because Rule 108 was inappropriate to
effect such changes, but because Labayo-Rowes petition before the
lower court failed to implead all indispensable parties to the case.
We explained in this wise:

jgc:chanroble s.com.ph

". . . An appropriate proceeding is required wherein all the


indispensable parties should be made parties to the case as required
under Section 3, Rule 108 of the Revised Rules of Court.
"In the case before Us, since only the Office of the Solicitor General
was notified through the Office of the Provincial Fiscal, representing
the Republic of the Philippines as the only respondent, the proceedings
taken, which is summary in nature, is short of what is required in
cases where substantial alterations are sought. Aside from the Office
of the Solicitor General, all other indispensable parties should have
been made respondents. They include not only the declared father of
the child but the child as well, together with the paternal
grandparents, if any, as their hereditary rights would be adversely
affected thereby. All other persons who may be affected by the change
should be notified or represented . . . .
x

"The right of the child Victoria to inherit from her parents would be
substantially impaired if her status would be changed from legitimate
to illegitimate. Moreover, she would be exposed to humiliation and
embarrassment resulting from the stigma of an illegitimate filiation
that she will bear thereafter. The fact that the notice of hearing of the
petition was published in a newspaper of general circulation and notice
thereof was served upon the State will not change the nature of the
proceedings taken. Rule 108, like all the other provisions of the Rules
of Court, was promulgated by the Supreme Court pursuant to its rulemaking authority under Section 13, Article VIII of the 1973
Constitution, which directs that such rules shall not diminish, increase
or modify substantive rights. If Rule 108 were to be extended beyond
innocuous or harmless changes or corrections of errors which are
visible to the eye or obvious to the understanding, so as to
comprehend substantial and controversial alterations concerning

Far from petitioners theory, this Courts ruling in Labayo-Rowe v.


Republic 32 does not exclude recourse to Rule 108 of the Revised
Rules of Court to effect substantial changes or corrections in entries of
the civil register. The only requisite is that the proceedings under Rule
108 be an appropriate adversary proceeding as contra-distinguished
from a summary proceeding.
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Thus:

jgc:chanroble s.com.ph

"If the purpose of the petition [for cancellation and/or correction of


entries in the civil register] is merely to correct the clerical errors
which are visible to the eye or obvious to the understanding, the court
may, under a summary procedure, issue an order for the correction of
a mistake. However, as repeatedly construed, changes which may
affect the civil status from legitimate to illegitimate, as well as sex, are
substantial and controversial alterations which can only be allowed
after appropriate adversary proceedings depending upon the nature of
the issues involved. Changes which affect the civil status or citizenship
of a party are substantial in character and should be threshed out in a
proper action depending upon the nature of the issues in controversy,
and wherein all the parties who may be affected by the entries are
notified or represented and evidence is submitted to prove the
allegations of the complaint, and proof to the contrary admitted . . ."
33 (Emphasis supplied.)
It is true that in special proceedings formal pleadings and a hearing
may be dispensed with, and the remedy granted upon mere
application or motion. But this is not always the case, as when the
statute expressly provides. 34 Hence, a special proceeding is not
always summary. One only has to take a look at the procedure
outlined in Rule 108 to see that what is contemplated therein is not a
summary proceeding per se. Rule 108 requires publication of the
petition three (3) times, i.e., once a week for three (3) consecutive
weeks (Sec.4). The Rule also requires inclusion as parties of all
persons who claim any interest which would be affected by the
cancellation or correction (Sec. 3). The civil registrar and any person in
interest are also required to file their opposition, if any, within fifteen
(15) days from notice of the petition, or from the last date of

Page

citizenship, legitimacy of paternity or filiation, or legitimacy of


marriage, without observing the proper proceedings as earlier
mentioned, said rule would thereby become an unconstitutional
exercise which would tend to increase or modify substantive rights.
This situation is not contemplated under Article 412 of the Civil Code."
31 (Emphasis supplied).

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publication of such notice (Sec. 5). Last, but not the least, although
the court may make orders expediting the proceedings, it is after
hearing that the court shall either dismiss the petition or issue an
order granting the same (Sec. 7).
Thus, we find no reason to depart from our ruling in Republic v.
Valencia, 35 that Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary proceeding to
effect substantial corrections and changes in entries of the civil
register.
It must be conceded, however, that even after Republic v. Valencia 36
there continues to be a seesawing of opinion on the issue of whether
or not substantial corrections in entries of the civil register may be
effected by means of Rule 108 in relation to Article 412 of the New
Civil Code. The more recent cases of Leonor v. Court of Appeals 37 and
Republic v. Labrador 38 do seem to signal a reversion to the Ty Kong
Tin ruling which delimited the scope of application of Article 412 to
clerical or typographical errors in entries of the civil register.
In Republic v. Labrador, the Court held that Rule 108 cannot be used to
modify, alter or increase substantive rights, such as those involving the
legitimacy or illegitimacy of a child. We ruled thus:
jgc:chanrobles.com .ph

"This issue has been resolved in Leonor v. Court of Appeals. In that


case, Respondent Mauricio Leonor filed a petition before the trial court
seeking the cancellation of the registration of his marriage to Petitioner
Virginia Leonor. He alleged, among others, the nullity of their legal
vows arising from the "non-observance of the legal requirements for a
valid marriage." In debunking the trial courts ruling granting such
petition, the Court held as follows:
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On its face, the Rule would appear to authorize the cancellation of any
entry regarding "marriages" in the civil registry for any reason by the
mere filing of a verified petition for the purpose. However, it is not as
simple as it looks. Doctrinally, the only errors that can be canceled or
corrected under this Rule are typographical or clerical errors, not
material or substantial ones like the validity or nullity of a marriage. A
clerical error is one which is visible to the eyes or obvious to the
understanding; error made by a clerk or a transcriber; a mistake in
copying or writing (Black v. Republic, L-10869, Nov. 28, 1958); or
some harmless and innocuous change such as a correction of name
that is clearly misspelled or of a misstatement of the occupation of the
parent (Ansalada v. Republic, L-10226, Feb. 14, 1958).

Clearly and unequivocally, the summary procedure under Rule 108,


and for that matter under Article 412 of the Civil Code cannot be used
by Mauricio to change his and Virginias civil status from married to
single and of their three children from legitimate to illegitimate. . . .
"Thus, where the effect of a correction of an entry in a civil registry will
change the status of a person from "legitimate to "illegitimate," as in
Sarah Zitas case, the same cannot be granted in summary
proceedings." 39
It is, therefore, high time that we put an end to the confusion sown by
pronouncements seemingly in conflict with each other, and perhaps, in
the process, stem the continuing influx of cases raising the same
substantial issue.
The basis for the pronouncement that extending the scope of Rule 108
to substantial corrections is unconstitutional is embodied in the early
case of Ty Kong Tin v. Republic 40 that first delineated the extent or
scope of the matters that may be changed or corrected pursuant to
Article 412 of the New Civil Code. The Supreme Court ruled in this
case that:
jgc:chanrobles.com .ph

". . . . After a mature deliberation, the opinion was reached that what
was contemplated therein are mere corrections of mistakes that are
clerical in nature and not those that may affect the civil status or the
nationality or citizenship of the persons involved. If the purpose of the
petition is merely a clerical error then the court may issue an order in
order that the error or mistake may be corrected. If it refers to a
substantial change, which affects the status or citizenship of a party,
the matter should be threshed out in a proper action depending upon
the nature of the issue involved. Such action can be found at random
in our substantive and remedial laws the implementation of which will
naturally depend upon the factors and circumstances that might arise
affecting the interested parties. This opinion is predicated upon the
theory that the procedure contemplated in article 412 is summary in
nature which cannot cover cases involving controversial issues." 41
This doctrine was taken a step further in the case of Chua Wee, Et. Al.
v. Republic 42 where the Court said that:
jgc:chanrobles.com .ph

"From the time the New Civil Code took effect on August 30, 1950 until

Page

Where the effect of a correction in a civil registry will change the civil
status of petitioner and her children from legitimate to illegitimate, the
same cannot be granted except only in an adversarial . . . .

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Atty. Arceno
the promulgation of the Revised Rules of Court on January 1, 1964,
there was no law nor rule of court prescribing the procedure to secure
judicial authorization to effect the desired innocuous rectifications or
alterations in the civil register pursuant to Article 412 of the New Civil
Code. Rule 108 of the Revised Rules of Court now provides for such a
procedure which should be limited solely to the implementation of
Article 412, the substantive law on the matter of correcting entries in
the civil register. Rule 108, like all the other provisions of the Rules of
Court, was promulgated by the Supreme Court pursuant to its rulemaking authority under Section 13 of Art. VIII of the Constitution,
which directs that such rules of court shall not diminish or increase or
modify substantive rights. If Rule 108 were to be extended beyond
innocuous or harmless changes or corrections of errors which are
visible to the eye or obvious to the understanding, so as to
comprehend substantial and controversial alterations concerning
citizenship, legitimacy of paternity or filiation, or legitimacy of
marriage, said Rule 108 would thereby become unconstitutional for it
would be increasing or modifying substantive rights, which changes
are not authorized under Article 412 of the New Civil Code." 43
(Emphasis supplied).
We venture to say now that the above pronouncements proceed from
a wrong premise, that is, the interpretation that Article 412 pertains
only to clerical errors of a harmless or innocuous nature, effectively
excluding from its domain, and the scope of its implementing rule,
substantial changes that may affect nationality, status, filiation and the
like. Why the limited scope of Article 412? Unfortunately, Ty Kong Tin
does not satisfactorily answer this question except to opine that the
procedure contemplated in Article 412 is summary in nature and
cannot, therefore, cover cases involving controversial issues.
Subsequent cases have merely echoed the Ty Kong Tin doctrine
without, however, shedding light on the matter.
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The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates
a summary procedure.
First of all, Article 412 is a substantive law that provides as follows:

jgc:chanroble s.com.ph

"No entry in a civil register shall be changed or corrected, without a


judicial order."
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It does not provide for a specific procedure of law to be followed


except to say that the corrections or changes must be effected by
judicial order. As such, it cannot be gleaned therefrom that the
procedure contemplated for obtaining such judicial order is summary

Secondly, it is important to note that Article 412 uses both the terms
"corrected" and "changed." In its ordinary sense, to correct means to
make or set right" ; "to remove the faults or errors from" 44 while to
change means "to replace something with something else of the same
kind or with something that serves as a substitute." 45 The provision
neither qualifies as to the kind of entry to be changed or corrected nor
does it distinguish on the basis of the effect that the correction or
change may have. Hence, it is proper to conclude that all entries in the
civil register may be changed or corrected under Article 412. What are
the entries in the civil register? We need not go further than Articles
407 and 408 of the same title to find the answer.
"Art. 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register."

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in nature.

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typographical errors and change of first name or nickname which can
be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act
and its implementing rules and regulations."
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The above law speaks clearly. Clerical or typographical errors in entries


of the civil register are now to be corrected and changed without need
of a judicial order and by the city or municipal civil registrar or consul
general. The obvious effect is to remove from the ambit of Rule 108
the correction or changing of such errors in entries of the civil register.
Hence, what is left for the scope of operation of Rule 108 are
substantial changes and corrections in entries of the civil register. This
is precisely the opposite of what Ty Kong Tin and other cases of its
genre had said, perhaps another indication that it was not sound
doctrine after all.

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"Art. 408. The following shall be entered in the civil register:

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(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of
filiation; (15) voluntary emancipation of a minor; and (16) changes of
name."
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It is beyond doubt that the specific matters covered by the preceding


provisions include not only status but also nationality. Therefore, the
Ty Kong Tin pronouncement that Article 412 does not contemplate
matters that may affect civil status, nationality or citizenship is
erroneous. This interpretation has the effect of isolating Article 412
from the rest of the articles in Title XVI, Book I of the New Civil Code,
in clear contravention of the rule of statutory construction that a
statute must always be construed as a whole such that the particular
meaning to be attached to any word or phrase is ascertained from the
context and the nature of the subject treated. 46
Thirdly, Republic Act No. 9048 47 which was passed by Congress on
February 8, 2001 substantially amended Article 412 of the New Civil
Code, to wit:

It may be very well said that Republic Act No. 9048 is Congress
response to the confusion wrought by the failure to delineate as to
what exactly is that so-called summary procedure for changes or
corrections of a harmless or innocuous nature as distinguished from
that appropriate adversary proceeding for changes or corrections of a
substantial kind. For we must admit that though we have constantly
referred to an appropriate adversary proceeding, we have failed to
categorically state just what that procedure is. Republic Act No. 9048
now embodies that summary procedure while Rule 108 is that
appropriate adversary proceeding. Be that as it may, the case at bar
cannot be decided on the basis of Republic Act No. 9048 which has
prospective application. Hence, the necessity for the preceding
treatise.
II. The petitioners contend that the private respondents have no cause
of action to bring the cases below as Article 171 of the Family Code
allows the heirs of the father to bring an action to impugn the
legitimacy of his children only after his death. 48
Article 171 provides:

jgc:chanroble s.com.ph

"The heirs of the husband may impugn the filiation of the child within
the period prescribed in the preceding article only in the following
cases:
jgc:chanroble s.com.ph

jgc:chanrobles.com .ph

"SECTION 1. Authority to Correct Clerical or Typographical Error and


Change of First Name or Nickname. No entry in a civil register shall
be changed or corrected without a judicial order, except for clerical or

"(1) If the husband should die before the expiration of the period fixed
for bringing this action;
"(2) If he should die after the filing of the complaint, without having

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Page

"(3) If the child was born after the death of the husband."

22

desisted therefrom; or

Petitioners contention is without merit.


In the recent case of Babiera v. Catotal, 49 we upheld the decision of
the Court of Appeals that affirmed the judgment of the RTC of Lanao
del Norte declaring the birth certificate of one Teofista Guinto as null
and void ab initio, and ordering the Local Civil Registrar of Iligan City
to cancel the same from the Registry of Live Births. We ruled therein
that private respondent Presentacion Catotal, child of spouses Eugenio
Babiera and Hermogena Cariosa, had the requisite standing to initiate
an action to cancel the entry of birth of Teofista Babiera, another
alleged child of the same spouses because she is the one who stands
to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. 50
We likewise held therein that:

jgc:chanroble s.com.ph

". . . Article 171 of the Family Code is not applicable to the present
case. A close reading of the provision shows that it applies to instances
in which the father impugns the legitimacy of his wifes child. The
provision, however, presupposes that the child was the undisputed
offspring of the mother. The present case alleges and shows that
Hermogena did not give birth to petitioner. In other words, the prayer
therein is not to declare that petitioner is an illegitimate child of
Hermogena, but to establish that the former is not the latters child at
all. . . . 51
Similarly, we ruled in Benitez-Badua v. Court of Appeals 52 that:

jgc:chanroble s.com.ph

"Petitioners insistence on the applicability of Articles 164, 166, 170


and 171 of the Family Code to the case at bench cannot be sustained..
...
x

was physically impossible for him to have sexual intercourse, with his
wife within the first 120 days of the 300 days which immediately
preceded the birth of the child; (2) that for biological or other scientific
reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the written
authorization or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence. Articles 170
and 171 reinforce this reading as they speak of the prescriptive period
within which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the appellate
court did not err when it refused to apply these articles to the case at
bench. For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by Isabel. Rather,
their clear submission is that petitioner was not born to Vicente and
Isabel. Our ruling in Cabatbat-Lim v. Intermediate Appellate Court,
166 SCRA 451, 457 cited in the impugned decision is apropos, viz:
chanrob1es virtual 1aw library

Petitioners recourse to Article 263 of the New Civil Code [now Art.
170 of the Family Code] is not well taken. This legal provision refers to
an action to impugn legitimacy. It is inapplicable to this case because
this is not an action to impugn the legitimacy of a child, but an action
of the private respondents to claim their inheritance as legal heirs of
their childless deceased aunt. They do not claim that petitioner Violeta
Cabatbat Lim is an illegitimate child of the deceased, but that she is
not the decedents child at all. Being neither legally adopted child, nor
an acknowledged natural child, nor a child by legal fiction of Esperanza
Cabatbat, Violeta is not a legal heir of the deceased." 53
III. Petitioners claim that private respondents cause of action had
already prescribed as more than five (5) years had lapsed between the
registration of the latest birth among the petitioners in 1960 and the
filing of the actions in December of 1992 and February of 1993. 54
We disagree. As correctly pointed out by the Court of Appeals,
inasmuch as no law or rule specifically prescribes a fixed time for filing
the special proceeding under Rule 108 in relation to Article 412 of the
New Civil Code, it is the following provision of the New Civil Code that
applies:
jgc:chanroble s.com.ph

"A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is
alleged not be the child of nature or biological child of a certain couple.
Rather, these articles govern a situation where a husband (or his heirs)
denies as his own a child of his wife. Thus, under Article 166, it is the
husband who can impugn the legitimacy of said child by proving: (1) it

"Art. 1149. other actions whose periods are not fixed in this Code or in
other laws must be brought within five years from the time the right of
action accrues."
cralaw virtua1aw library

The right of action accrues when there exists a cause of action, which
consists of three (3) elements, namely: a) a right in favor of the

chanrob1es virtua1 1aw 1ibrary

It is indubitable that private respondents have a cause of action. The


last element of their cause of action, that is, the act of their father in
falsifying the entries in petitioners birth records, occurred more than
thirty (30) years ago. Strictly speaking, it was upon this occurrence
that private respondents right of action or right to sue accrued.
However, we must take into account the fact that it was only sometime
in 1989 that private respondents discovered that they in fact had a
cause of action against petitioners who continue to use said falsified
birth records.
Hence, it would result in manifest injustice if we were to deprive
private respondents of their right to establish the truth about a fact, in
this case, petitioners true mother, and their real status, simply
because they had discovered the dishonesty perpetrated upon them by
their common father at a much later date. This is especially true in the
case of private respondents who, as their fathers legitimate children,
did not have any reason to suspect that he would commit such
deception against them and deprive them of their sole right to inherit
from their mothers (Keh Shiok Chengs) estate. It was only sometime
in 1989 that private respondents suspicions were aroused and
confirmed. From that time until 1992 and 1993, less than five (5)
years had lapsed.
Petitioners would have us reckon the five-year prescriptive period from
the date of the registration of the last birth among the petitionerssiblings in 1960, and not from the date private respondents had
discovered the false entries in petitioners birth records in 1989.
Petitioners base their position on the fact that birth records are public
documents, hence, the period of prescription for the right of action
available to the private respondents started to run from the time of the
registration of their birth certificates in the Civil Registry.
We cannot agree with petitioners thinking on that point.
It is true that the books making up the Civil Register and all
documents relating thereto are public documents and shall be prima
facie evidence of the facts therein contained. 56 Petitioners liken their
birth records to land titles, public documents that serve as notice to

Page

plaintiff by whatever means and under whatever law it arises or is


created; b) an obligation on the part of the defendant to respect such
right; and c) an act or omission on the part of such defendant violative
of the right of the plaintiff. It is only when the last element occurs or
takes place that it can be said in law that a cause of action has arisen.
55

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Atty. Arceno
the whole world. Unfortunately for the petitioners, this analogy does
not hold water. Unlike a title to a parcel of land, a persons parentage
cannot be acquired by prescription. One is either born of a particular
mother or not. It is that simple.
IV. Finally, petitioners accuse private respondents of forum shopping.
They enumerate the other actions filed by private respondents against
them prior to the filing of their Rule 108 petitions in the lower courts,
as follows:
chanrob1es virtual 1aw library

(1) A criminal complaint for falsification of entries in the birth


certificates filed against their father as principal and against
defendants as alleged accessories;
(2) A petition for the cancellation of the naturalization certificate of
their father, Lee Tek Sheng; and
(3) A petition for partition of Keh Shiok Chengs estate. 57
According to the petitioners, all the three (3) actions abovementioned, as well as the Rule 108 petitions, subject of the case
before us, raise the common issue of whether petitioners are the
natural children of Keh Shiok Cheng or Tiu Chuan. They contend that
in all these cases, the judge or hearing officer would have to resolve
this issue in order to determine whether or not to grant the relief
prayed for. 58
Forum shopping is present when in the two or more cases pending
there is identity of parties, rights or causes of action and reliefs
sought. 59 Even a cursory examination of the pleadings filed by
private respondents in their various cases against petitioners would
reveal that at the very least there is no identity of rights or causes of
action and reliefs prayed for. The present case has its roots in two (2)
petitions filed under Rule 108, the purpose of which is to correct
and/or cancel certain entries in petitioners birth records. Suffice it to
state, the cause of action in these Rule 108 petitions and the relief
sought therefrom are very different from those in the criminal
complaint against petitioners and their father which has for its cause of
action, the commission of a crime as defined and penalized under the
Revised Penal Code, and which seeks the punishment of the accused;
or the action for the cancellation of Lee Tek Sheng naturalization
certificate which has for its cause of action the commission by Lee Tek
Sheng of an immoral act, and his ultimate deportation for its object; or
for that matter, the action for partition of Keh Shiok Chengs estate
which has for its cause of action the private respondents right under

We therefore concur in the finding of the Court of Appeals that there is


no forum shopping to speak of in the concept that this is described and
contemplated in Circular No. 28-91 of the Supreme Court.
chanrob1es virtua1 law library

Page

the New Civil Code to inherit from their mothers estate.

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WHEREFORE, the petition is hereby DENIED and the assailed decision


of the Court of Appeals dated October 28, 1994 is AFFIRMED.
SO ORDERED.

SECOND DIVISION
[G. R. No. 120587 - January 20, 2004]
MILAGROS M. BARCO, as the Natural Guardian and Guardian Ad
Litem of MARY JOY ANN GUSTILO, Petitioner, v. COURT OF
APPEALS (SPECIAL SIXTEENTH DIVISION), REGIONAL TRIAL
COURT (BR. 133-MAKATI), NCJR; THE LOCAL CIVIL REGISTRAR
OF MAKATI; and NADINA G. MARAVILLA, Respondents.
DECISION
TINGA, J.:

On 24 December 1970, private respondent Nadina Maravilla ("Nadina")


married Francisco Maravilla ("Francisco"). By February of 1977, the
spouses had opted to live separately,1 and in February of the following
year they obtained an ecclesiastical annulment of marriage issued by
the Catholic Diocese of Bacolod City.2 On 9 June 1978, Nadina gave
birth to a daughter named June Salvacion ("June") in Makati, Metro
Manila. Junes birth certificate listed Francisco Maravilla as the father,
and Maravilla as the childs surname.3 Nadina signed the birth
certificate shortly after it was accomplished.

Page

The story behind the present petition is a portrait of dysfunction. The


familial situation of the parties is complicated, to say the least. The
judicial conferment of the status of illegitimacy on a daughter who is
by law legitimate has created a tangled braid of various legal doctrines
that, like the Gordian knot of yore, is in this case ultimately unbound
through one fell swoop of the sword.

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Atty. Arceno
effect that the latters full name be made "June Salvacion C. Gustilo,"
and that the name of her father be changed from "Francisco Maravilla"
to "Armando Gustilo." Notably, Francisco affixed his signature to
the Petition signifying his conformity thereto.10
On 20 March 1983. Gustilo filed a "Constancia," wherein he
acknowledged June as his daughter with Nadina, and that he was
posing no objection to Nadinas petition.11
The Petition was docketed as SP Proc. No. M-130. On 26 July 1983,
the RTC, in accordance with Rule 108 of the Rules of Court, issued an
Order setting the case for hearing and directing that a copy of the
order be published once a week for three consecutive weeks in a
newspaper of general circulation. On 7 September 1983, Nadina filed
an Amended Petition,12this time impleading Francisco and Gustilo as
respondents. Correspondingly, the RTC amended the Order on 22
September 1983 to reflect the additional impleaded parties. 13

Despite the notation in Junes birth certificate, Nadina subsequently


claimed that all along, the real father of her child was Armando Gustilo
("Gustilo"), a former Congressman with whom she maintained a
relationship. At the time of Junes birth, Gustilo was married to one
Consuelo Caraycong, who would later perish in the MV Don Juan naval
accident of 1981.4 On 21 August 1982, Nadina and Gustilo were
married in the United States.5 This marriage took place two and a half
years before Nadinas marriage to Francisco was alleged to have been
annulled in the Philippines. On 12 March 1985, Nadina apparently was
able to obtain a judicial declaration annulling her marriage to
Francisco.6

The Office of the Solicitor General filed a Motion to Dismiss the petition
on the ground that the RTC "had no jurisdiction over the subject
matter and/or the nature of th[e] suit."14 They cited various
jurisprudence holding that only innocuous or clerical errors may be
corrected under a Rule 108 petition for correction of entries, and that
the Petition seeks changes "are substantial and controversial in
character which directly affect the filiation and legitimacy of petitioners
daughter."15 On 23 February 1984, the Motion to Dismiss was denied
by the RTC, which also subsequently denied a Motion for
Reconsideration thereto filed by the Solicitor General.

On 17 March 1983, Nadina filed in her own name a Petition for


Correction of Entries in the Certificate of Birth of her daughter June
with the Regional Trial Court ("RTC") of Makati.7 Therein, she alleged
that she had been living separately from her lawful spouse Francisco
since February of 1977, and that Gustilo was the real father of
June.8 She claimed that she did not allow Francisco to have any sexual
congress with her within the first 20 days of the three hundred days
preceding the birth of June.9 She prayed that the Local Civil Registrar
of Makati be directed to correct the birth certificate of June to the

On 7 January 1985, the RTC issued an Order ("RTC Order") granting


the petition and ordering the requested corrections to be effected. The
RTC considered the claim of Nadina that she had relied completely on
her uncle William R. Veto16 to facilitate the preparation of Junes birth
certificate, that it was through his inadvertence that the mistaken
entries were made, and that she was in intense physical discomfort
when she had affixed her signature to the birth certificate containing
the incorrect entries.17 The RTC also noted that Francisco had signified
his conformity to the action by signing the original petition, and that

Gustilo died in 19 December 1986.19 Two estate proceedings arose


from his death, one lodged in Makati,20 the other in Harris County,
Texas.21 Among the participants in both estate proceedings was Jose
Vicente Gustilo ("Jose Vicente"), allegedly a biological child of
Gustilo.22 On 5 March 1993, he filed with the Court of Appeals
a Petition23 seeking the annulment of the RTC Order of 7 January 1985
which had effected changes in the civil status of June. Jose Vicente
amended his Petition in July of 1993 to implead Nadina as an
indispensable party.24 In her Comment, Nadina countered that Jose
Vicente had not sufficiently proven that he was a child of Armando,
and there was neither extrinsic fraud or lack of jurisdiction that would
justify the annulment of the RTC Order.25 Nadina also pointed out that
the Makati intestate court had approved a compromise agreement
wherein the parties had agreed that the only heirs of the decedent
Armando are "the surviving spouse, Nadina G. Gustilo, the daughter,
June Salvacion G. Gustilo, the son, Jose Vicente Gustilo III, and
another daughter, Mary Joy Ann Gustilo." 26 However, this compromise
agreement was subsequently voided on petition by Jose Vicente to the
Court of Appeals, on the ground that the Civil Code prohibited
compromise as to the civil status of persons.27
After the Court of Appeals commenced hearings on the petition,
petitioner Milagros Barco ("Barco"), on 11 January 1994, filed in her
capacity as the natural guardian and/or guardian ad litem of her
daughter, Mary Joy Ann Gustilo ("Mary Joy"), a Motion for
Intervention with a Complaint-in-Intervention attached
thereto.28 Barco alleged that Mary Joy had a legal interest in the
annulment of the RTC Order as she was likewise fathered by Gustilo.
In her Complaint-in-Intervention, Barco claimed that she and Gustilo
had maintained a relationship since 1967, and to them was born Mary
Joy in 1977.29 Barco also alleged that she actually moved in with
Gustilo after the death of the latters wife in 1980, and maintained her
affair with Gustilo until 1983, when she was purportedly supplanted by
Nadina as Gustilos common-law companion after Gustilo had become
gravely ill.30

Page

Gustilo had manifested through a Constancia dated 20 March 1983


that he was acknowledging June as his daughter and expressing no
objection to the petition.18

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Atty. Arceno
After the parties had filed their respective memoranda, the Court of
Appeals rendered a Decision on 13 March 1995, dismissing both
the Petition and the Complaint-in-Intervention.31 The appellate court
held that neither Jose Vicente nor Barco were able to establish the
existence of lack of jurisdiction and extrinsic fraud, the two grounds
that would justify the annulment of a final judgment. 32 It ruled that
while Jose Vicente and Barco had not been made parties in
the Petition for Correction, the subsequent notice and publication of
the Order setting the case for hearing served as constructive notice to
all parties who might have an interest to participate in the case. The
publication of the Order conferred upon the RTC the jurisdiction to try
and decide the case.33 It also found no merit in Jose Vicentes claim
that he learned of the RTC Order only in November of 1992, pointing
out that as early as 1987, he filed a pleading with the intestate court
alleging that Junes birth certificate had been amended to record the
name of her true father.34
Only the intervenor Barco filed a Motion for Reconsideration35 of the
Court of Appeals Decision, which the appellate court denied on 16 May
1995.36 Thus, Barco filed the present Petition for Review on
Certiorari seeking the reversal of the Court of Appeals Decision and the
annulment of the 1985 RTCOrder.
Before this Court, Barco assails that RTC Order on the ground of lack
of jurisdiction. That was the same ground she invoked in the Court of
Appeals. Specifically, she raises the following issues:
1) Barco should have been made a party to the Nadinas petition and
the failure to implead her deprived the RTC of jurisdiction;
2) This RTC could not have entertained Nadinas petition, since the
Courts ruling in a long line of cases, beginning with Republic v.
Valencia,37 that a petition for correction of entries in the civil register is
not limited to innocuous or clerical mistakes, applies only to citizenship
cases;
3) The petition for correction was filed out of time, as Article 263 of
the Civil Code of 1950 sets a prescriptive period for impugning the

4) Nadinas petition should have been treated as a petition for change


of name, which can only be filed by the person whose name is sought
to be changed;
5) The RTC Order contravenes the legal presumption that children born
during the pendency of a marriage are legitimate and the rule that
legitimate children cannot adopt the surname of a person who is not
their father; and
6) The RTC should have excluded as hearsay the Constancia allegedly
signed by Gustilo and that the surrounding circumstances under which
it was issued gave reason to doubt its authenticity and credibility.
Interestingly, the questions that Barco raised would tickle the fancies
of erudite civilists yearning for a challenge. However, the ultimate
resolution of this case hinges on whether the de rigueurrequirements
of the extraordinary remedy of annulment of judgment have been
satisfied.
First, a brief revisit of the action to annul judgment.
The recourse is equitable in character, allowed only in exceptional
cases, as where there is no available or other adequate remedy.
Annulment of judgments is a remedy long authorized and sanctioned
in our jurisdiction.38 As far back as 1918, this Court in Banco EspaolFilipino v. Palanca39recognized the availability of a direct attack of a
final judgment on the ground that it is void for want of jurisdiction.
In Reyes v. Datu40we held that the validity of a final judgment or order
of the court may be attacked only by a direct action or proceeding or
by motion in another case on the ground of lack of jurisdiction.
Yet, it was only in the 1997 Rules of Civil Procedure that for the first
time the procedure for the annulment of judgments or final orders and
resolutions in civil cases of regional trial courts, through a petition

Page

legitimacy of a child which is one year from the recording of birth in


the Civil Registry, if the husband should be in the same place, or in a
proper case, any of his heirs;

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Atty. Arceno
before the Court of Appeals, was formally provided. Rule 47 thereof
under which the procedure was integrated incorporates settled
jurisprudence on annulment of judgment.
Statutory basis for the remedy was laid way back in 1980, with the
enactment of The Judiciary Reorganization Act of 1980.41 Section 9
thereof vests in the Court of Appeals exclusive original jurisdiction over
actions for annulment of judgments of the lower courts.
Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly
provides only two grounds for annulment of judgment, namely:
extrinsic fraud and lack of jurisdiction. This express limitation is
significant since previous jurisprudence recognized other grounds as
well.42 The underlying reason is traceable to the notion that annulling
final judgments goes against the grain of finality of judgment.
Litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that once a judgment
has become final the issue or cause involved therein should be laid to
rest. The basic rule of finality of judgment is grounded on the
fundamental principle of public policy and sound practice that at the
risk of occasional error, the judgment of courts and the award of quasijudicial agencies must become final at some definite date fixed by
law.43 Even if the rule on annulment of judgment is grounded on
equity, the relief is of an extraordinary character, and not as readily
available as the remedies obtaining to a judgment that is not yet final.
There are two aspects of jurisdiction which are vital for disposition of
this case - jurisdiction over thenature of the action or subject
matter, and jurisdiction over the parties.44 Barco claims that the RTC
failed to satisfy both aspects of jurisdiction. She opines that the RTC
did not acquire jurisdiction over the parties due to the failure to
implead her as a party to the petition for correction. On the other
hand, the remaining issues that she raises as errors put into question
whether the RTC had jurisdiction over the subject matter of Nadinas
petition.

The essential requisite for allowing substantial corrections of entries in


the civil registry is that the true facts be established in an appropriate
adversarial proceeding. This is embodied in Section 3, Rule 108 of the
Rules of Court, which states:
Section 3. Parties When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.
The Court of Appeals held that jurisdiction over the parties was
properly acquired through the notice by publication effected in
conformity with Section 4 of Rule 108. Barco assails this holding and
claims that the failure to implead her as a party to the petition for
correction deprived the RTC of jurisdiction.
Undoubtedly, Barco is among the parties referred to in Section 3 of
Rule 108. Her interest was affected by the petition for correction, as
any judicial determination that June was the daughter of Armando
would affect her wards share in the estate of her father. It cannot be
established whether Nadina knew of Mary Joys existence at the time
she filed the petition for correction. Indeed, doubt may always be cast
as to whether a petitioner under Rule 108 would know of all the parties
whose interests may be affected by the granting of a petition. For
example, a petitioner cannot be presumed to be aware of all the
legitimate or illegitimate offsprings of his/her spouse or paramour. The
fact that Nadina amended her petition to implead Francisco and Gustilo
indicates earnest effort on her part to comply with Section 3 as quoted
above.
Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance
with Section 4, Rule 108, which requires notice by publication, thus:

Page

We shall first tackle the question of whether the RTC had acquired
jurisdiction over Barco and all other indispensable parties to the
petition for correction.

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Atty. Arceno
Section 4. Upon the filing of the petition, the court shall, by order, fix
the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week for three
(3) consecutive weeks in a newspaper of general circulation in the
province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world
to the subsequent judgment on the petition. The sweep of the decision
would cover even parties who should have been impleaded under
Section 3, Rule 108, but were inadvertently left out. The Court of
Appeals correctly noted:
The publication being ordered was in compliance with, and borne out
by the Order of January 7, 1985. The actual publication of the
September 22, 1983 Order, conferred jurisdiction upon the respondent
court to try and decide the case. While "nobody appeared to oppose
the instant petition" during the December 6, 1984 hearing, that did not
divest the court from its jurisdiction over the case and of its authority
to continue trying the case. For, the rule is well-settled, that
jurisdiction, once acquired continues until termination of the case. 45
Verily, a petition for correction is an action in rem, an action against a
thing and not against a person.46The decision on the petition binds not
only the parties thereto47 but the whole world.48 Anin rem proceeding is
validated essentially through publication.49 Publication is notice to the
whole world that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort against the
right sought to be established.50 It is the publication of such notice that
brings in the whole world as a party in the case and vests the court
with jurisdiction to hear and decide it.51
Since the RTC properly acquired jurisdiction over the parties, what
remains for determination is whether it had acquired jurisdiction over
Nadinas cause of action. It should be emphasized that jurisdiction over
the nature of the action or the subject matter is conferred by law. This
Courts recent holding in Durisol Philippines, Inc. v. Court of Appeals52is
instructive in this regard:

The question of whether a court has jurisdiction over the subject


matter can be answered simply by determining if on the basis of the
complaint or petition the court has, under the law, the power to hear
and decide the case. Barcos remaining arguments are to be tested
against this standard.
One of Barcos striking assertions is that the general rule still is that
the jurisdiction of the court in the correction of entries in the civil
register is limited to innocuous or clerical mistakes, as what she
insinuates as the apparent contrary holding in Republic v.
Valencia54applies only to citizenship cases.
Since the promulgation of the Valencia ruling in 1986 the Court has
repeatedly ruled that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing themselves
of the appropriate adversarial proceeding. Barco, by seeking to limit
the application of the Valencia doctrine to citizenship cases, is flogging
a dead horse. This argument was debunked in subsequent
cases,55notably the recent case of Lee v. Court of Appeals.56The
exhaustive disquisition therein of Justice Sabino de Leon should
preclude any further arguments on the scope of Rule 108.

Page

[I]t should be stressed that in a petition for annulment of judgment


based on lack of jurisdiction, petitioner must show not merely an
abuse of jurisdictional discretion but an absolute lack of jurisdiction.
Lack of jurisdiction means absence of or no jurisdiction, that is, the
court should not have taken cognizance of the petition because the law
does not vest it with jurisdiction over the subject matter.53

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Atty. Arceno
only to clerical errors of a harmless or innocuous nature, effectively
excluding from its domain, and the scope of its implementing rule,
substantial changes that may affect nationality, status, filiation and the
like. Why the limited scope of Article 412? Unfortunately, Ty Kong Tin
does not satisfactorily answer this question except to opine that the
procedure contemplated in Article 412 is summary in nature and
cannot, therefore, cover cases involving controversial issues.
Subsequent cases have merely echoed the Ty Kong Tin doctrine
without, however, shedding light on the matter.
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates
a summary procedure.
First of all, Article 412 is a substantive law that provides as follows:
"No entry in a civil register shall be changed or corrected, without a
judicial order."
It does not provide for a specific procedure of law to be followed
except to say that the corrections or changes must be effected by
judicial order. As such, it cannot be gleaned therefrom that the
procedure contemplated for obtaining such judicial order is summary
in nature.

The Court in Lee acknowledged that there existed a line of decided


cases, some of them decided afterValencia, stating that Rule 108
cannot be used to effect substantial corrections in entries of the civil
register.57 The doctrine was traced back to the 1954 case of Ty Kong
Tin v. Republic,58 the rationale of which the Court reevaluated in Lee:

Secondly, it is important to note that Article 412 uses both the terms
"corrected" and "changed." In its ordinary sense, to correct means "to
make or set right;" "to remove the faults or errors from" while to
change means "to replace something with something else of the same
kind or with something that serves as a substitute". The provision
neither qualifies as to the kind of entry to be changed or corrected nor
does it distinguish on the basis of the effect that the correction or
change may have. Hence, it is proper to conclude that all entries in the
civil register may be changed or corrected under Article 412. What are
the entries in the civil register? We need not go further than Articles
407 and 408 of the same title to find the answer.

We venture to say now that the above pronouncements proceed from


a wrong premise, that is, the interpretation that Article 412 pertains

"Art. 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register."

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of
filiation; (15) voluntary emancipation of a minor; and (16) changes of
name."
It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the
Ty Kong Tin pronouncement that Article 412 does not contemplate
matters that may affect civil status, nationality or citizenship is
erroneous. This interpretation has the effect of isolating Article 412
from the rest of the articles in Title XVI, Book I of the New Civil Code,
in clear contravention of the rule of statutory construction that a
statute must always be construed as a whole such that the particular
meaning to be attached to any word or phrase is ascertained from the
context and the nature of the subject treated. 59
Lee also points out that Republic Act No. 9048, enacted in 2001, has
effectively changed the nature of a proceeding under Rule 108. Under
this new law, "clerical or typographical errors and change of first name
or nickname" may now be corrected or changed by the concerned city
or municipal registrar or consul general, without need of any judicial
order. The obvious effect is to remove from the ambit of Rule 108 the
correction or changing of such errors in entries of the civil register.
Hence, what is left for the scope of operation of Rule 108 are
substantial changes and corrections in entries of the civil register.60
It may be very well said that Republic Act No. 9048 is Congresss
response to the confusion wrought by the failure to delineate as to
what exactly is that so-called summary procedure for changes or
corrections of a harmless or innocuous nature as distinguished from
that appropriate adversary proceeding for changes or corrections of a
substantial kind. For we must admit that though we have constantly
referred to an appropriate adversary proceeding, we have failed to

Page

"Art. 408. The following shall be entered in the civil register:

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Atty. Arceno
categorically state just what that procedure is. Republic Act No. 9048
now embodies that summary procedure while Rule 108 is that
appropriate adversary proceeding. xxx61
Republic Act No. 9048 may not find application in this case, yet it is
clearly another indicium of how entrenched the Valencia ruling is
today. With the enactment of the law, the legislature acknowledged
the potency of the ruling. To repeat, substantial corrections to the civil
status of persons recorded in the civil registry may be effected through
the filing of a petition under Rule 108. Any further attempt to limit the
scope of application of Rule 108 runs against the wall of judicial
precedent cemented by legislative affirmation.
Next, Barco argues that the petition for correction had prescribed
under the Civil Code; and that the petition for correction should be
treated as a petition for change of name which can only be filed by the
person whose name is sought to be changed. These arguments can be
decided jointly. They both are not well taken as they cannot allude to a
lack of jurisdiction that would render the RTC Ordersubject to
annulment.
Assuming arguendo that Nadinas petition for correction had prescribed
and/or that the action seeking the change of name can only be filed by
the party whose name is sought to be changed, this does not alter the
reality that under the law the Makati RTC had jurisdiction over the
subject matter of the petition for correction. The Judiciary
Reorganization Act of 1980, the applicable law at the time, clearly
conferred on the Makati RTC exclusive original jurisdiction in all civil
actions in which the subject of the litigation is incapable of pecuniary
estimation.62 In complementation of grant of jurisdiction, Section 1 of
Rule 108 provides that the verified petition to the cancellation or
correction of any entry relating thereto should be filed with the Court
of First Instance (now Regional Trial Court) of the province where the
corresponding civil registry is located.
Prescription and lack of capacity to bring action cannot be ignored by a
court of law in properly resolving an action, to the extent that a finding
that any of these grounds exist will be sufficient to cause the dismissal

It thus follows that assuming that the petition for correction had
prescribed, or that Nadina lacked the capacity to file the action which
led to the change of her daughters name, the fact that the RTC
granted the Order despite the existence of these two grounds only
characterizes the decision as erroneous. An erroneous judgment is one
though rendered according to the course and practice of the court is
contrary to law.66 It is not a void judgment.67
As for Barcos remaining arguments, they similarly fail, as the worst
they could establish is that the RTC Order is an erroneous judgment.
Barco correctly notes, however, that the RTC erred in directing that the
name of Nadinas daughter be changed from "June Salvacion Maravilla"
to "June Salvacion Gustilo." Following the trial courts determination
that Gustilo was the father of June, but prescinding from the
conclusive presumption of legitimacy for the nonce assuming it could
be done, the child would obviously be illegitimate. The applicable laws
mandate that June, as an illegitimate child, should bear the surname
of her mother, and not the father.68 From another perspective, the
RTCs error in ordering the change of name is merely an error in the
exercise of jurisdiction which neither affects the courts jurisdiction over
Nadinas petition nor constitutes a ground for the annulment of a final
judgment. As the seminal case of Herrera v. Barretto69 explains:
xxx Jurisdiction should therefore be distinguished from the exercise of
jurisdiction. The authority to decide a cause at all, and not the decision
rendered therein, is what makes up jurisdiction. Where there is
jurisdiction of the person and subject matter xxx the decision of all
other questions arising in the case is but an exercise of that
jurisdiction.70

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of the action.63 Yet, the existence of these grounds does not oust the
court from its power to decide the case. Jurisdiction cannot be
acquired through, waived, enlarged or diminished by any act or
omission of the parties.64 Contrariwise, lack of capacity to sue and
prescriptions as grounds for dismissal of an action may generally be
rendered unavailing, if not raised within the proper period. 65

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In the same vein, it is of no moment that the RTC Order contravenes
the legal presumption accorded June of being the legitimate child of
Francisco and Nadina.71 A review of the records does indicate the
insufficiency of the evidence offered to defeat the presumption, against
which the only evidence admissible is the physical impossibility of the
husbands having access to his wife within the first one hundred and
twenty days of the three hundred which preceded the birth of the
child.72 It seems that the RTC relied primarily on the testimony of
Nadina in adjudging that Gustilo, and not Francisco, was the father of
June. Yet, Article 256 of the Civil Code renders ineffectual any
pronouncement against legitimacy made by the mother.73 The
testimony proffered by the mother has no probative value as regards
Junes paternity. The RTCs cognizance of Gustilos Constancia might
likewise be subject to critical scrutiny.74 But the Court is now precluded
from reviewing the RTCs appreciation of the evidence, however
erroneous it may be, because the Order is already final. The RTCs
possible misappreciation of evidence is again at most, an error in the
exercise of jurisdiction, which is different from lack of jurisdiction.
These purported errors do not extend to the competence of the RTC to
decide the matter and as such does not constitute a valid ground to
annul the final order.
The law sanctions the annulment of certain judgments which, though
final, are ultimately void. Annulment of judgment is an equitable
principle not because it allows a party-litigant another opportunity to
reopen a judgment that has long lapsed into finality but because it
enables him to be discharged from the burden of being bound to a
judgment that is an absolute nullity to begin with. The inevitable
conclusion is that the RTC Order, despite its apparent flaws, is not null
and void, and thus cannot be annulled. Consequently, the Court of
Appeals committed no reversible error in issuing the assailed decision.
This Court has been constrained in the past to leave erroneous
decisions as they were.75 Our fealty to justice in its pristine form the
upholding of "right" over "wrong" is equipoised with our adherence to
due process, and the rules that emanate from that principle. The Court
takes great care in drafting rules of procedure so that the axioms that
govern the legal battleground may live up to Justice Frankfurters
approximation of due process as "the embodiment of the sporting idea

WHEREFORE, the above premises considered, the Petition is hereby


dismissed for lack of merit. Costs against petitioner.
SO ORDERED.

Page

of fair play."76Due process dictates that litigants be afforded a


reasonable opportunity to attack erroneous judgments and be shielded
from the adverse effects of void judgments. Due process likewise
demands that a party, after trekking the long road of litigation should
be permitted to enjoy the fruits of an auspicious final judgment.
Absent any convincing demonstration that the RTC Order is patently
null and void, there is no reason under law and jurisprudence to upset
it, given the reality that it has long become final.

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FIRST DIVISION
[G.R. NO. 174689 : October 22, 2007]
ROMMEL JACINTO DANTES SILVERIO, Petitioner, v. REPUBLIC OF
THE PHILIPPINES,Respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind! North
Wind! Please let us out!," the voices said. She pecked the reed once,
then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the woman
"Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using scalpel,
drugs and counseling with regard to a person's sex? May a person
successfully petition for a change of name and sex appearing in the
birth certificate to reflect the result of a sex reassignment surgery?
cra lawlibrary

Petitioner alleged in his petition that he was born in the City of Manila
to the spouses Melecio Petines Silverio and Anita Aquino Dantes on
April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was
registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a man's
body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex reassignment
surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.
Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to
be married. He then sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."
An order setting the case for initial hearing was published in the
People's Journal Tonight, a newspaper of general circulation in Metro
Manila, for three consecutive weeks.3 Copies of the order were sent to
the Office of the Solicitor General (OSG) and the civil registrar of
Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.

Page

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio


filed a petition for the change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.

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Atty. Arceno
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment
or any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and
acted like a woman, now possesses the physique of a female.
Petitioner's misfortune to be trapped in a man's body is not his own
doing and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will
be caused to anybody or the community in granting the petition. On
the contrary, granting the petition would bring the much-awaited
happiness on the part of the petitioner and her [fianc] and the
realization of their dreams.
Finally, no evidence was presented to show any cause or ground to
deny the present petition despite due notice and publication thereof.
Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing
in the Certificate of Birth of [p]etitioner, specifically for petitioner's first
name from "Rommel Jacinto" to MELY and petitioner's gender from
"Male" to FEMALE.5

On February 23, 2006, the Court of Appeals7 rendered a decision8 in


favor of the Republic. It ruled that the trial court's decision lacked legal
basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republic's petition, set aside
the decision of the trial court and ordered the dismissal of SP Case No.
02-105207. Petitioner moved for reconsideration but it was
denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.
A Person's First Name Cannot Be Changed On the Ground of
Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition
for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment
or any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his
present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification.11 A change of name is a

Page

On August 18, 2003, the Republic of the Philippines (Republic), thru


the OSG, filed a petition forcertiorari in the Court of Appeals.6 It
alleged that there is no law allowing the change of entries in the birth
certificate by reason of sex alteration.

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Atty. Arceno
privilege, not a right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error
Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. - No entry in a civil register shall
be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can
be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act
and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power
and authority to entertain petitions for change of first name to the city
or municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until
and unless an administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name
may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. - The
petition for change of first name or nickname may be allowed in any of
the following cases:

(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner's basis in praying for the change of his first name was his
sex reassignment. He intended to make his first name compatible with
the sex he thought he transformed himself into through surgery.
However, a change of name does not alter one's legal capacity or civil
status.18 RA 9048 does not sanction a change of first name on the
ground of sex reassignment. Rather than avoiding confusion, changing
petitioner's first name for his declared purpose may only create grave
complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name.20 In this case, he failed to show, or
even allege, any prejudice that he might suffer as a result of using his
true and official name.
In sum, the petition in the trial court in so far as it prayed for the
change of petitioner's first name was not within that court's primary
jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative, that
is, that provided under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil Registrar of Manila
where his birth certificate is kept. More importantly, it had no merit
since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed
petitioner's petition in so far as the change of his first name was
concerned.

Page

(1) The petitioner finds the first name or nickname to be ridiculous,


tainted with dishonor or extremely difficult to write or pronounce;

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Atty. Arceno
No Law Allows The Change of Entry In The Birth Certificate As
To Sex On the Ground of Sex Reassignment
The determination of a person's sex appearing in his birth certificate is
a legal issue and the court must look to the statutes. 21 In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended
by RA 9048 in so far asclerical or typographical errors are involved.
The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error"
is:
SECTION 2. Definition of Terms. - As used in this Act, the following
terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in


the performance of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth or the like, which
is visible to the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing record or
records: Provided, however, That no correction must involve the
change of nationality, age, status or sex of the petitioner. (emphasis
supplied)
Under RA 9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a substantial

The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of
filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth. 25 However, no
reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults
or error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,

Page

change for which the applicable procedure is Rule 108 of the Rules of
Court.

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Atty. Arceno
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even mentioned
by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that
is, the sum total of capacities and incapacities) of a person in view of
his age, nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive
termstatus' include such matters as the beginning and end of legal
personality, capacity to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.28 (emphasis
supplied)
A person's sex is an essential factor in marriage and family relations. It
is a part of a person's legal capacity and civil status. In this
connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner's cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. - The declaration of the
physician or midwife in attendance at the birth or, in default thereof,
the declaration of either parent of the newborn child, shall be sufficient
for the registration of a birth in the civil register. Such declaration shall

In such declaration, the person above mentioned shall certify to the


following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the
father is not known, of the mother alone; (d) civil status of parents;
(e) place where the infant was born; and (f) such other data as may
be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of


the facts as they existed at the time of birth.29 Thus, the sex of a
person is determined at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment,
the determination of a person's sex made at the time of his or her
birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other
laws) should therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and
function that distinguish a male from a female"32 or "the distinction
between male and female."33 Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female"
in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the context compels
to the contrary."36 Since the statutory language of the Civil Register

Page

be exempt from documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the physician
or midwife in attendance at the birth or by either parent of the
newborn child.

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Atty. Arceno
Law was enacted in the early 1900s and remains unchanged, it cannot
be argued that the term "sex" as used then is something alterable
through surgery or something that allows a post-operative male-tofemale transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no
law authorizes the change of entry as to sex in the civil registry for
that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or
Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance
with the principles of justice and equity. It believed that allowing the
petition would cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner's first step towards his
eventual marriage to his male fianc. However, marriage, one of the
most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative
transsexual). Second, there are various laws which apply particularly
to women such as the provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal Code40 and the
presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if
petitioner's petition were to be granted.

In our system of government, it is for the legislature, should it choose


to do so, to determine what guidelines should govern the recognition
of the effects of sex reassignment. The need for legislative guidelines
becomes particularly important in this case where the claims asserted
are statute-based.
To reiterate, the statutes define who may file petitions for change of
first name and for correction or change of entries in the civil registry,
where they may be filed, what grounds may be invoked, what proof
must be presented and what procedures shall be observed. If the
legislature intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on
when a person may be recognized as having successfully changed his
sex. However, this Court has no authority to fashion a law on that
matter, or on anything else. The Court cannot enact a law where no
law exists. It can only apply or interpret the written word of its coequal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them,
life is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not
by the courts.
WHEREFORE, the petition is hereby DENIED.

Page

It is true that Article 9 of the Civil Code mandates that "[n]o judge or
court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to
apply or interpret the law, not to make or amend it.

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Atty. Arceno
Costs against petitioner.
SO ORDERED.

Page

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Atty. Arceno

SECOND DIVISION
[G.R. NO. 166676, September 12, 2008]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JENNIFER B.
CAGANDAHAN, Respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision 1 dated
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of
Siniloan, Laguna, which granted the Petition for Correction of Entries in
Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahan's birth certificate: (1) the
name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2)
gender from "female" to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a
Petition for Correction of Entries in Birth Certificate 2 before the RTC,
Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and

was registered as a female in the Certificate of Live Birth but while


growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have
clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as well as in
mind and emotion, she has become a male person. Thus, she prayed
that her birth certificate be corrected such that her gender be changed
from female to male and her first name be changed from Jennifer to
Jeff.
The petition was published in a newspaper of general circulation for
three (3) consecutive weeks and was posted in conspicuous places by
the sheriff of the court. The Solicitor General entered his appearance
and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
To prove her claim, respondent testified and presented the testimony
of Dr. Michael Sionzon of the Department of Psychiatry, University of
the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondent's condition is known as
CAH. He explained that genetically respondent is female but because
her body secretes male hormones, her female organs did not develop
normally and she has two sex organs - female and male. He testified
that this condition is very rare, that respondent's uterus is not fully
developed because of lack of female hormones, and that she has no
monthly period. He further testified that respondent's condition is
permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.
The RTC granted respondent's petition in a Decision dated January 12,
2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he
is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioner's body
produces male hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.

a) By changing the name from Jennifer Cagandahan to JEFF


CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records, voter's registry,
baptismal certificate, and other pertinent records are hereby amended
to conform with the foregoing corrected data.
SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking
a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
COURT HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE
OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE"4
Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her
sex or gender, from female to male, on the ground of her medical
condition known as CAH, and her name from "Jennifer" to "Jeff," under
Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because
while the local civil registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3, Rule 108 of the
Rules of Court, respondent's petition before the court a quo did not
implead the local civil registrar.5 The OSG further contends
respondent's petition is fatally defective since it failed to state that

Page

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna


is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:

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Atty. Arceno
respondent is a bona fide resident of the province where the petition
was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court. 6 The
OSG argues that Rule 108 does not allow change of sex or gender in
the birth certificate and respondent's claimed medical condition known
as CAH does not make her a male.7
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the
Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in the
course of the proceedings,8 respondent is actually a male person and
hence his birth certificate has to be corrected to reflect his true
sex/gender,9 change of sex or gender is allowed under Rule 108,10 and
respondent substantially complied with the requirements of Rules 103
and 108 of the Rules of Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. - A person desiring to change his name shall
present the petition to the Regional Trial Court of the province in which
he resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].
SEC. 2. Contents of petition. - A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province
where the petition is filed for at least three (3) years prior to the date
of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. - If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof, and shall direct that
a copy of the order be published before the hearing at least once a
week for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The

SEC. 4. Hearing. - Any interested person may appear at the hearing


and oppose the petition. The Solicitor General or the proper provincial
or city fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. - Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed and
that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of
the petition.
SEC. 6. Service of judgment. - Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. - Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.
SEC. 2. Entries subject to cancellation or correction. - Upon good and
valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name.
SEC. 3. Parties. - When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.

Page

date set for the hearing shall not be within thirty (30) days prior to an
election nor within four (4) months after the last publication of the
notice.

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Atty. Arceno
SEC. 4. Notice and publication. - Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
SEC. 5. Opposition. - The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction
is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition
thereto.
SEC. 6. Expediting proceedings. - The court in which the proceedings
is brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights of the
parties pending such proceedings.
SEC. 7. Order. - After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction prayed
for. In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his
record.
The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because
respondent's petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceedings. Likewise, the local civil registrar is required
to be made a party in a proceeding for the correction of name in the
civil registry. He is an indispensable party without whom no final
determination of the case can be had.12Unless all possible
indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of
the rules.13 The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have or
may claim to have any interest that would be affected
thereby.14 Respondent, however, invokes Section 6,15 Rule 1 of the
Rules of Court which states that courts shall construe the Rules
liberally to promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought before it.
We agree that there is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local civil registrar.

Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of
the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of
filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth. 20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like
respondent, with this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening at the base,
an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the
ovaries, uterus and fallopian tubes; as the child grows older, some

Page

The determination of a person's sex appearing in his birth certificate is


a legal issue and the court must look to the statutes. In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected
without a judicial order.
Together with Article 37616 of the Civil Code, this provision was
amended by Republic Act No. 904817 in so far as clerical or
typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.18

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Atty. Arceno
features start to appear male, such as deepening of the voice, facial
hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000
children are born with CAH.
CAH is one of many conditions21 that involve intersex anatomy. During
the twentieth century, medicine adopted the term "intersexuality" to
apply to human beings who cannot be classified as either male or
female.22 The term is now of widespread use. According to Wikipedia,
intersexuality "is the state of a living thing of a gonochoristic species
whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor
female. An organism with intersex may have biological characteristics
of both male and female sexes."
Intersex individuals are treated in different ways by different cultures.
In most societies, intersex individuals have been expected to conform
to either a male or female gender role.23 Since the rise of modern
medical science in Western societies, some intersex people with
ambiguous external genitalia have had their genitalia surgically
modified to resemble either male or female genitals.24More commonly,
an intersex individual is considered as suffering from a "disorder"
which is almost always recommended to be treated, whether by
surgery and/or by taking lifetime medication in order to mold the
individual as neatly as possible into the category of either male or
female.
In deciding this case, we consider the compassionate calls for
recognition of the various degrees of intersex as variations which
should not be subject to outright denial. "It has been suggested that
there is some middle ground between the sexes, a `no-man's land' for
those individuals who are neither truly `male' nor truly `female'" 25 The
current state of Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this Court is not
controlled by mere appearances when nature itself fundamentally
negates such rigid classification.
In the instant case, if we determine respondent to be a female, then
there is no basis for a change in the birth certificate entry for gender.
But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a
change in the
subject's birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither

Ultimately, we are of the view that where the person is biologically or


naturally intersex the determining factor in his gender classification
would be what the individual, like respondent, having reached the age
of majority, with good reason thinks of his/her sex. Respondent here
thinks of himself as a male and considering that his body produces
high levels of male hormones (androgen) there is preponderant
biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of
such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born
with. And accordingly, he has already ordered his life to that of a male.
Respondent could have undergone treatment and taken steps, like
taking lifelong medication,26 to force his body into the categorical mold
of a female but he did not. He chose not to do so. Nature has instead
taken its due course in respondent's development to reveal more fully
his male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as one's sexuality
and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. The
Court will not consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly
currently knows this gender of the human species. Respondent is the
one who has to live with his intersex anatomy. To him belongs the
human right to the pursuit of happiness and of health. Thus, to him
should belong the primordial choice of what courses of action to take
along the path of his sexual development and maturation. In the
absence of evidence that respondent is an "incompetent"> 27 and in the
absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection
under the law, the Court affirms as valid and justified the respondent's
position and his personal judgment of being a male.

Page

consistently and categorically female nor consistently and categorically


male) composition. Respondent has female (XX) chromosomes.
However, respondent's body system naturally produces high levels of
male hormones (androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.

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Atty. Arceno
In so ruling we do no more than give respect to (1) the diversity of
nature; and (2) how an individual deals with what nature has handed
out. In other words, we respect respondent's congenital condition and
his mature decision to be a male. Life is already difficult for the
ordinary person. We cannot but respect how respondent deals with his
unordinary state and thus help make his life easier, considering the
unique circumstances in this case.
As for respondent's change of name under Rule 103, this Court has
held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.28 The trial court's grant of respondent's
change of name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that
respondent's change of name merely recognizes his preferred gender,
we find merit in respondent's change of name. Such a change will
conform with the change of the entry in his birth certificate from
female to male.
WHEREFORE, the Republic's petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Page

44

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Atty. Arceno
merely held in trust for them by private respondents. Petitioners
averred that they were the children of deceased Catalino Gono, an
acknowledged natural child of Juan Casocot, who, by intestate
succession, should thus be held to be the owners of the property.
Additionally, they asserted that petitioner Anunciacion Gono-Javier
purchased the parcels of land on 20 June 1956 from the Provincial
Government of Agusan following the levy thereof (on 28 May 1956) for
tax delinquency.
chanroble s law library

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR


NATURAL CHILDREN
THIRD DIVISION
[G.R. No. 111994. December 29, 1994.]
SOTENIA GONO-JAVIER, TEBURCIO GONO, ANUNCIACION G.
JAVIER, GERMANA G. GULAY, LUCIO GONO, RAMON GONO,
ALFREDO GONO and MANUEL GONO, Petitioners, v. THE HON.
COURT OF APPEALS, RESTITUTA CASOCOT, FERMIN CASOCOT,
ALICIA YONSON, ADRIANO CASOCOT, CARLOS MONTE DE
RAMOS, REGINA DUGLAS and NONITO MARAVE, Respondents.

DECISION

VITUG, J.:

Juan Casocot, the alleged natural grandfather of petitioners, was said


to have owned during his lifetime five (5) parcels of land in Nasipit,
Agusan, covered by Tax Declaration ("T.D.") No. 2667, 3227, 1209,
738 and 2666.
On 13 February 1978, petitioners filed a case with the Regional Trial
Court ("RTC") of Butuan City for the recovery of ownership and
possession of the above five (5) parcels which they claimed were

In their answer, private respondents, all nephews and nieces of Juan


Casocot except for Carlos Monte de Ramos, a grandnephew, and
Nonito Marave, a stranger, to whom a portion of one of the parcels of
land had been sold, contended that since the complaint had failed to
state that Catalino Gono had been recognized by Juan Casocot earlier
in a record of birth or in a will, an independent action for voluntary
recognition should have first been instituted to permit any intestate
successional right to legally pass to petitioners. Also alleged in the
answer was that, with the exception of the parcel covered by T.D. No.
738, the questioned property had been sold by Juan Casocot to private
respondents Restituta and Fermin Casocot on 19 April 1960 and a
portion to private respondent Marave. Private respondents belied the
claim that petitioner Gono-Javier purchased the property from the
Provincial Government of Agusan. Finally, the defense of prescription
was raised on the ground that private respondents had been in
possession of the disputed property in good faith and for value for
more than 17 years before petitioners action was instituted.
After trial, the Butuan RTC rendered judgment for petitioners declaring
them to be the lawful owners of the property. The court, in rejecting
the claim of ownership made by private respondents, opined that the
deed of sale executed by Juan Casocot on 19 April 1960, when he was
already 80 years old, in favor of respondents Restituta and Fermin
Casocot was absolutely simulated and void. It ruled that petitioners
father, Catalino Gono, had been duly recognized by Juan Casocot since
1954 to be his natural child that thereby entitled petitioners to inherit
the parcels of land in question. The trial court likewise held that the
property had been sold to petitioner Anunciacion Gono-Javier on 05
and 20 June 1956 after it had been levied by the Provincial
Government for non-payment of taxes.
The trial court thus nullified Transfer Certificate of Title ("TCT") No. RT349, issued in the names of Restituta and Fermin Casocot, with
respect to the parcel of land covered by T.D. No. 1209, and all
certificates of title issued in the names of transferees, Felipe Yonson,
Alicia Yonson, Adriano Casocot, Carlos Monte de Ramos, Regina

On appeal by private respondents, the Court of Appeals reversed the


trial courts decision, and ordered the dismissal of the complaint by
petitioners for the recovery of title and possession of the disputed
parcels. The appellate court ratiocinated and concluded:
jgc:chanroble s.com.ph

"First. The trial court declared Catalino Gono to be the acknowledged


natural child of Juan Casocot on the basis of a statement in a deed of
donation which he made in favor of Eugenia Gonzales, widow of
Catalino Gono, to the effect that among the reasons for making the
donation was the fact that the donee is the surviving spouse of my
son had with my common law wife. (Exh. G).
"The deed of donation conveyed to Eugenia Gonzales the parcel of land
covered by TD 738 (Exh. E). It was made on march 29, 1954, about
11 years after the death of Catalino Gono in 1942 or 1943. In the first
place, the statement therein describing Eugenia Gonzales the
surviving spouse of my son had with my common law wife is only, if at
all, an indirect acknowledgment of Catalino Gono as the son of Juan
Casocot. This falls short of the requirement that the voluntary
recognition of a natural child must be expressly made either in the
record of birth, or in a will, or in a statement before the court of record
or in any authentic writing. (Civil Code, art. 278).
"In the second place, according to the testimony of plaintiff-appellee
Sotenia Gono herself, Catalino Gono died in 1942 or 1943. (TSN, p. 24,
Dec. 10, 1980). On the other hand, his supposed acknowledgment was
made only in 1954. Now, art. 281 requires that if the child is of age,
his recognition must be with his consent. Obviously, therefore, it was
not possible for Catalino Gono to have given his consent, even if the
indirect reference to him in the deed of donation as the son of Juan
Casocot were considered a sufficient acknowledgment.
"For these reasons, it was error for the trial court to declare the
plaintiff-appellees, the children of Catalino Gono, to be the owners of
the four parcels of land covered by TD No. 2667 (Exh. B), TD No. 3227
(Exh. C), TD No. 1209 (Exh. D), and TD No. 2666 (Exh. F) by right of
inheritance.
"Second. Nor may the plaintiff-appellees base their claim of ownership
on the fact that one of them (Anunciacion Gono-Javier) allegedly
repurchased the lands in question after they had been forfeited to the
Province of Agusan for nonpayment of taxes. The records show that
while it is true that Anunciacion Gono-Javier was issued a certificate of

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Duglas, Restituta, Fermin Casocot and Nonito Marave.

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Atty. Arceno
Repurchase of Real Property after Sale (Exh. N) on June 20, 1956, it is
equally true that on February 3, 1959, she was refunded the amount
she had paid. This is evidenced by a municipal voucher issued on
February 3, 1959 (Exh. P) by which she acknowledged receipt of
P850.00 from Eduardo V. Amber, Treasurer of Nasipit, Agusan, from
the partial payment previously made by Juan Casocot for taxes
covering the period May, 29, 1956 to February 2, 1959. Indeed, the
Final Bill of Sale (Exh. M) to her, dated February 3, 1959, which had
been prepared, was never executed as the Provincial Treasurer of
Agusan never signed it, apparently because the day (February 2,
1959), Juan Casocot had repurchased the properties. That is the
reason why on February 3, 1959 a municipal voucher (Exh. P) for the
payment of P850.00 to Anunciacion G. Javier was made and
Anunciacion G. Javier was actually refunded what she had paid. The
trial court, therefore, erred in holding that, in the alternative, plaintiffappellees are owners of the lands in question by virtue of a right of
repurchase from the Provincial Government of Agusan.
"Third. The four parcels of land covered by TD No. 2667 (Exh. B), TD
No. 3227 (Exh. C), TD No. 12009 (Exh. D), and TD No. 2666 (Exh. F)
were sold to Restituta and Fermin Casocot by virtue of a deed of sale
made by Juan Casocot on April 19, 1960. However, the trial court
declared the sale to be simulated and therefore void based on its
finding that Juan Casocot was already in his 80s when he signed the
contract in 1960. There is, however, no proof that he did not know the
contents of the documents or that he did not intend the deed of sale at
all. The trial court unwarrantedly theorized that because the properties
were valuable properties, Juan Casocot could not have intended to sell
them.
"Indeed, the fact is that the deed of sale was duly notarized and the
notary public, Atty. Noli G. Cortel, testified that from his observation,
there was nothing either in the mental or physical condition of Juan
Casocot to indicate that he was not in the full possession of his mental
faculties when he executed the deed of sale in favor of Restituta and
Fermin Casocot. Moreover, Atty. Cortel testified that he interpreted the
contents of the document in the Visayan dialect to Juan Casocot and
that afterward Juan Casocot voluntarily affixed his signature to the
document. (TSN, pp. 9, 11-12, Sept. 6, 1991). Needless to say, a
public document, which is executed with all the solemnities of the law,
should not be set aside on such slender grounds as those cited by the
trial court.
"Fourth. The trial court also erred in not ruling that the present action
is barred by the order of Court of First Instance of Agusan in Civil Case

"WHEREFORE, the decision appealed from is REVERSED and the


complaint in this case is DISMISSED in so far as it seeks the recovery
of the title and possession of the four parcels of land covered by TD
No. 2667 (Exh. B), TD No. 3227 (Exh. C), TD No. 1209 (Exh. D), TD
No. 2666 (Exh. F). In other respects, the decision appealed from is
AFFIRMED. 1
In this petition for review, petitioners raise the following assignment of
errors:
jgc:chanroble s.com.ph

"1. The appellate court gravely erred in reversing the trial courts
decision holding that Catalino Gono was the acknowledged natural
child of Juan Casocot by his common law wife, and that the deceased
Juan Casocots declaration in his deed of donation to Eugenia
Gonzales, wife of Catalino Gono, that the deceased was giving the land
in donation to the surviving wife of my son is sufficient recognition.
"2. The appellate court gravely erred in reversing the trial courts
decision holding that when the land in question was sold at public
auction or failure to pay taxes the same was brought by Anunciacion
Gono-Javier who is one of the petitioners herein, hence the questioned
land belongs to the petitioners.
"3. The appellate court gravely erred in reversing the trial courts
decision holding that the alleged sale between the late Juan Casocot
and the private respondents herein were simulated hence null and
void.
"4. The appellate court gravely erred in ruling that the action for
recovery of possession and ownership filed by the herein petitioners
with the trial court is barred by the dismissal of the complaint for
nullification of the Deed of Sale filed by the deceased Juan Casocot
himself during his lifetime, which was dismissed, for his failure to
attend the hearing wherein he was not notified. 2

Page

No. 896 (Juan Casocot v. Restituta Casocot and Fermin Casocot),


dismissing a complaint for the nullification of the deed of sale. (Exh. U)
That order, issued on August 10, 1965, became final and it constitutes
res judicata in this case, as no appeal appears to have been taken
from it. The trial court found the dismissal erroneous allegedly because
Juan Casocot had not been notified of the hearing on July 24, 1965 in
Civil case No. 896. But the trial court did not have the power to reopen
that case. It was improper for it to do so, since the order of dismissal
was final.

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Atty. Arceno
Petitioners first assignment of error would have been impressed with
merit had the acknowledgment in the deed of donation in 1954 been
extended to Catalino prior to his death some time in 1942 or 1943.
Juan Casocot himself died in 1964. Article 278 of the New Civil Code,
the law applicable in 1954, 3 provided:
chanrob1es virtual 1aw library

Art. 278. Recognition shall be made in the record of birth, a will, a


statement before a court of record, or in any authentic writing.
(Emphasis supplied).
The statement made in the deed of donation, a public document,
executed by Juan Casocot in favor of Eugenia Gonzales, widow of
Catalino, i.e., that among the reasons for the donation was that the
donee was "the surviving spouse of my son with my common law
wife," would have well been explicit enough or, at the very least,
sufficient to make it fall within the purview of the doctrine of incidental
recognition. Unfortunately for petitioners, however, the recognition
came too late. The donation, whereon the questioned statement
appeared, was made on 29 march 1954, or about 11 years after the
death of Catalino in 1942 or 1943.
The provisions of the Civil Code 4 on acknowledgment would really
indicate that voluntary acknowledgment can legally be effected only
during the lifetime of both the acknowledging parent and the
acknowledged illegitimate child. When that voluntary recognition is so
timely made, as above, an action for its judicial declaration can survive
the death of either or both parties (see Gaspay, Jr. v. Court of Appeals,
G.R. No. 102372, 15 November 1994). The reason for this latter rule is
that the due recognition of an illegitimate child in a record of birth, a
will, a statement before a court of record, or in any authentic writing
(Art. 278, Civil Code) is, in itself, a consummated act or
acknowledgment of the child, and no further court action is required
(see Divinagracia v. Bellosillo, 143 SCRA 356), albeit not prohibited, to
yet have it declared as such. When a party is so minded as to still
bring an action on the basis of such voluntary acknowledgment, no
time frame for initiating it would obviously be a constraint.
Parenthetically, where, a claim for recognition is predicated on other
evidence merely tending to prove paternity, i.e., outside of a record of
birth, a will, a statement before a court of record or an authentic
writing, judicial action within the applicable statute of limitations 5 is
essential in order to establish the childs acknowledgment; it is only a
ground for the child to compel, by a judicial action, recognition by his
assumed parent. 6

Petitioners take issue, finally, with the Court of Appeals in holding that
petitioners action to nullify the deed of sale to private respondents is,
in any event, barred by the order of dismissal thereof by the then
Court of First Instance of Agusan in Civil Case No. 896, entitled "Juan
Casocot v. Restituta Casocot and Fermin Casocot." Suffice it to say that
an unconditional dismissal of an action for failure to prosecute under
Section 3, Rule 17, of the Rules of Court is with prejudice and has the
effect of an adjudication on the merits (Guanzon v. Mapa, 7 SCRA 457;
Insular Veneer, Inc. v. Plan, 73 SCRA 1).
All told, we find no valid justification for sustaining the petition.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED. Costs
against petitioners.
SO ORDERED.

Page

Petitioners, in their second and third assignment of errors, would want


us to reverse the Court of Appeals in finding: (a) that while petitioner
Anunciacion Gono-Javier was issued a Certificate of Repurchase (Exh.
"N") on 20 June 1956, she was, however, fully refunded for the price
paid and actual redemption was, in truth, made by Juan Casocot and
(b) that the deed of sale executed by Juan Casocot, duly notarized,
was validly executed. These factual findings by the appellate court,
having been amply explained and substantiated by it, should not
further be disturbed.

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Page

48

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FIRST DIVISION
[G.R. No. 46746. March 15, 1990.]
LIGAYA GAPUSAN-CHUA, Petitioner, v. COURT OF APPEALS and
PROSPERO PARCON,Respondents.
Citizens Legal Assistance Office for Petitioner.
Gil B. Parreno for Respondent.

SYLLABUS

1. CIVIL LAW; FILIATION; RECOGNITION OF NATURAL CHILDREN;


VOLUNTARY AND COMPULSORY RECOGNITION; DISTINGUISHED.
Recognition of natural children may be voluntary or compulsory.
Voluntary recognition, it has been said, "is an admission of the fact of
paternity or maternity by the presumed parent, expressed in the form
prescribed by the Civil Code. Its essence lies in the avowal of the
parent that the child is his; the formality is added to make the
admission incontestable, in view of its consequences." The form is
prescribed by Article 278 of the Civil Code, earlier adverted to; it
provides that a voluntary recognition "shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic
writing." Compulsory recognition is sometimes also called judicial
recognition, to distinguish it from that which is a purely voluntary act
of the parent. It is recognition decreed by final judgment of a

competent court. It is governed by Articles 283 and 284, setting forth


the cases in which the father or mother, respectively, is obliged to
recognize a natural child, and Article 285, providing that generally, the
action for recognition of natural children may be brought only during
the lifetime of the presumed parents.
2. ID.; ID.; ID.; JUDICIAL APPROVAL, NOT NECESSARY IF
RECOGNITION IS VOLUNTARILY MADE. The matter of whether or
not judicial approval is needful for the efficacy of voluntary recognition
is dealt with in Article 281 of the Civil Code. ART. 281. A child who is of
age cannot be recognized without his consent. When the recognition of
a minor does not take place in a record of birth or in a will, judicial
approval shall be necessary. A minor can in any case impugn the
recognition within four years following the attainment of his majority.
In other words, judicial approval is not needed if a recognition is
voluntarily made 1) of a person who is of age, only his consent
being necessary; or 2) of a minor whose acknowledgment is effected
in a record of birth or in a will. It is admitted on all sides that no
judicial action or proceeding was ever brought during the lifetime of
Felisa to compel her to recognize Ligaya as her daughter. It is also
evident that Ligayas recognition as Felisas daughter was not made in
a record of birth or a will, a circumstance which would have made
judicial approval unnecessary, only her own consent to the recognition
being required. The acknowledgment was made in authentic writings,
and hence, conformably with the legal provisions above cited, judicial
approval thereof was needed if the writings had been executed during
Ligayas minority. In other words, the question of whether or not the
absence of judicial approval negated the effect of the writings as a
mode of recognition of Ligaya is dependent upon the latters age at the
time the writings were made.
3. ID.; ID.; ID.; INSTANCES WHEN JUDICIAL APPROVAL OF
RECOGNITION OF MINOR IS NEEDED. Judicial approval is needful if
the recognition of the minor is effected, not through a record of birth
or in a will but through a statement in a court of record or an authentic
document. In any case the individual recognized can impugn the
recognition within four years following the attainment of his majority.
4. ID.; ID.; ID.; "AUTHENTIC WRITING", DEFINED. "An authentic
writing for purposes of voluntary recognition . . . (is) understood as a
genuine or indubitable writing of the father" (or mother), including "a
public instrument (one acknowledged before a notary public or other
competent official with the formalities required by law), and, of course,
a public or official document in accordance with Section 20, Rule 132
of the Rules of Court. The sworn statement of assets and liabilities filed

5. ID.; ID.; ID.; CONSENT REQUIRED IN VOLUNTARY RECOGNITION


OF A PERSON OF AGE MAYBE GIVEN EXPRESSLY OR TACITLY. The
consent required by Article 281 of a person of age who has been
voluntarily recognized may be given expressly or tacitly. Assuming
then that Ligaya was of age at the time of her voluntary recognition,
the evidence shows that she has in fact consented thereto. Her
consent to her recognition is not only implicit from her failure to
impugn it at any time before her mothers death, but is made clearly
manifest and conclusive by her assertion of that recognition in the
judicial proceeding for the settlement of her mothers estate as basis
for her rights thereto. Assuming on the other hand, that she was a
minor at the time of her recognition, and therefore judicial approval of
the recognition was necessary, the absence thereof was cured by her
ratification of that recognition, after having reached the age of
majority, by her initiation of the proceedings for the settlement of her
deceased mothers estate on the claim precisely that she was the
decedents acknowledged natural daughter.
6. ID.; ID.; ID.; LACK OR INSUFFICIENCY OF JUDICIAL APPROVAL;
NOT A DEFECT AVAILABLE TO THE RECOGNIZING PARENT. The
requirement of judicial approval imposed by Article 281 is clearly
intended for the benefit of the minor. "The lack of judicial approval can
not impede the effectivity of the acknowledgment made. The judicial
approval is for the protection of the minor against any
acknowledgment made to his prejudice." "Therefore, the lack or
insufficiency of such approval is NOT a defect available to the
recognizing parent but one which the minor may raise or waive. If
after reaching majority the minor consents to the acknowledgment,
the lack of judicial approval should make no difference. Implied
consent to the acknowledgment may be shown (e.g.,) by such acts as
keeping, even after reaching the age of majority, the acknowledgment
papers and the use of the parents surname."

Page

by Felisa Parcon is a public document, having been executed and


submitted pursuant to a requirement of the law. So it has been held by
this Court.

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Atty. Arceno
Felisa Gapusan Parcon died intestate and without legitimate issue on
April 6, 1966 in Bacolod City. Neither her surviving spouse, Prospero
Parcon, nor her other known relatives three (3) sisters and a
nephew - made any move to settle her estate judicially.
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It was Ligaya Gapusan-Chua, claiming to be an acknowledged natural


daughter of Felisa Gapusan Parcon, who instituted judicial proceedings
for the settlement of the latters estate. About a year and eight months
after Felisas demise, or on January 15, 1968, Ligaya filed with the
Court of First Instance of Negros Occidental a petition for the
settlement of the estate and for issuance of letters of administration in
her favor. 1 She also sought her designation as Special Administratrix
pending her appointment as regular administratrix. 2
By Order dated January 16, 1968, the Court appointed Ligaya Special
Administratrix of Felisa Parcons estate.
On April 22, 1968, Prospero Parcon, Felisa Parcons surviving husband,
filed a motion for reconsideration of the Order of January 16, 1968. 3
He denied that Ligaya was an acknowledged natural child of his
deceased wife, and applied for his own appointment as administrator
of his wifes estate. 4
Hearings were had on the issue of Ligayas claimed filiation. Ligaya
presented, among other proofs, 5 the following documents:
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a) Felisa Parcons sworn statement of assets and liabilities wherein


Ligaya is named and described as the daughter of Felisa (Exh. 4);
b) Felisa Parcons application for GSIS life insurance in which Ligaya is
set out as her (Felisas) daughter (Exh. 3);
c) Check No. 44046 of the Government Service Insurance System in
the sum of P505.50 paid to her (Ligaya) as her share in the death
benefits due the heirs of Felisa Parcon (Exh. 2); and
d) a family photograph, showing Ligaya beside the deceased (Exh. 1).
Prospero Parcon, on the other hand, sought to demonstrate that
Ligayas exhibits did not constitute conclusive proof of her claimed
status of acknowledged natural child, for the reason that:

DECISION

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NARVASA, J.:

a) another document, Felisas application for membership in Negros


Occidental Teachers Federation (NOTF), merely named Ligaya as her
"adopted daughter;"

c) Mrs. Leticia Papasin (Felisas sister) and Vice-Mayor Solomon


Mendoza travelled from afar to affirm before the Probate Court on the
witness stand that Ligaya was not the daughter of Felisa, 6 Mrs.
Papasins testimony being that in 1942 an unknown "drifter" had sold
Ligaya, then an infant, to Felisa.
The Probate Court found for Ligaya. Its Order dated April 16, 1969
disposed as follows: 7
"WHEREFORE, it is hereby declared that petitioner is the acknowledged
natural child of the late Felisa Gapusan, and for being the next of kin
of the deceased (Rule 78, Rules of Court), she is hereby appointed
regular administratrix of the properties of the above-mentioned
deceased with the same bond given by her as special administratrix,
with costs against the oppositors."
chanroble s law library

On appeal seasonably perfected, the Court of Appeals (Fourth


Division), in a Decision dated April 13, 1977, (1) set aside the Probate
Courts Order of January 16, 1968 (appointing Ligaya Special
Administratrix) and of April 16, 1969 (declaring her the decedents
acknowledged natural child and appointing her regular administratrix),
and (2) appointed Prospero Parcon regular administrator of his wifes
estate. In that Courts view, the evidence at best showed merely that
Ligaya had been treated as a daughter by Felisa, but that this did "not
constitute acknowledgment" but "only a ground to compel
recognition;" and that Ligaya had failed to establish that she had been
acknowledged by Felisa in accordance with Article 278 of the Civil Code
(Article 131 of the Civil Code of 1889). Appeal has in turn been taken
from this judgment to this Court by Ligaya Gapusan-Chua.

Page

b) in the distribution of death benefits pursuant to the decedents GSIS


insurance policy, supra, Ligaya was allocated only P500.00 whereas
Prospero received P1,000.00; and

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Atty. Arceno
adequate foundation for a judicial declaration of her status as heir.
These statements, she alleges, were "authentic writings" in
contemplation of Article 278 of the Civil Code:
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ART. 278. Recognition shall be made in the record of birth, a will, a


statement before a court of record, or in any authentic writing."
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These, she contends, together with her treatment as a daughter by


Felisa a fact found to have been established by the evidence by both
the Trial Court and the Court of Appeals eliminate all doubt about
the juridical verity of her recognition as a natural child.
Prospero Parcon disagrees. He argues that, as ruled by the Court of
Appeals, the statements designating Ligaya as Felisas daughter
merely furnished ground for Ligaya to compel recognition by action
which, however, should have been brought during the lifetime of the
putative parent in accordance with Article 285 of the Civil Code,
reading as follows:
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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:
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(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;
(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.
In this case, the action must be commenced within four years from the
finding of the document.

Here, Ligaya insists that the evidence submitted by her does indeed
sufficiently establish her status as the acknowledged natural child of
Felisa Parcon, and that her appointment as regular administratrix is
justified by law and jurisprudence.

Since, Parcon continues, no such action was instituted prior to the


death of Felisa, proof of the "authentic document" (sworn statement of
assets and liabilities) in the proceedings for the settlement of the
latters estate was inefficacious as basis for a declaration of filiation or
heirship.

More particularly, she contends that the sworn statement of assets and
liabilities, a public document submitted by the decedent pursuant to a
legal requirement therefor, and the latters application for life
insurance were in law indubitable recognition by her mother of her
status as an acknowledged natural child, voluntarily made, and were

The issue thus presented is whether or not Felisas sworn statement of


assets and liabilities and her application for insurance are "authentic
writings" which effectively operated as a recognition of Ligaya
Gapusan-Chua as her natural child, even if no action was brought by
the latter to compel the former, during her lifetime, to recognize her as

Recognition of natural children may be voluntary or compulsory. 8


Voluntary recognition, it has been said, "is an admission of the fact of
paternity or maternity by the presumed parent, expressed in the form
prescribed by the Civil Code. Its essence lies in the avowal of the
parent that the child is his; the formality is added to make the
admission incontestable, in view of its consequences." 9 The form is
prescribed by Article 278 of the Civil Code, earlier adverted to; it
provides that a voluntary recognition "shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic
writing." 10
Compulsory recognition is sometimes also called judicial recognition, to
distinguish it from that which is a purely voluntary act of the parent.
11 It is recognition decreed by final judgment of a competent court. It
is governed by Articles 283 and 284, setting forth the cases in which
the father or mother, respectively, is obliged to recognize a natural
child, and Article 285, providing that generally, the action for
recognition of natural children may be brought only during the lifetime
of the presumed parents. 12
The matter of whether or not judicial approval is needful for the
efficacy of voluntary recognition is dealt with in Article 281 of the Civil
Code. 13
ART. 281. A child who is of age cannot be recognized without his
consent.
When the recognition of a minor does not take place in a record of
birth or in a will, judicial approval shall be necessary.
A minor can in any case impugn the recognition within four years
following the attainment of his majority.
In other words, judicial approval is not needed if a recognition is
voluntarily made
1) of a person who is of age, only his consent being necessary; or
2) of a minor whose acknowledgment is effected in a record of birth or
in a will.
On the other hand, judicial approval is needful if the recognition of the

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such.

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Atty. Arceno
minor is effected, not through a record of birth or in a will but through
a statement in a court of record or an authentic document. In any case
the individual recognized can impugn the recognition within four years
following the attainment of his majority. 14
Now, there are no less than three (3) writings submitted in evidence in
this case in which Felisa Gapusan Parcon describes Ligaya GapusanChua as her daughter, viz.:
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a) Felisas sworn statement of assets and liabilities, in which she


names and describes Ligaya as her daughter (Exh. 4);
b) her application for GSIS life insurance in which she again describes
Ligaya as her daughter (Exh. 3); and
c) her application for membership in the Negros Occidental Teachers
Federation, where she names Ligaya as her "adopted daughter" (Exh.
1).
Each of these writings is undoubtedly an "authentic writing" within the
contemplation of Article 278. "An authentic writing for purposes of
voluntary recognition . . . (is) understood as a genuine or indubitable
writing of the father" (or mother), including "a public instrument (one
acknowledged before a notary public or other competent official with
the formalities required by law), 15 and, of course, a public or official
document in accordance with Section 20, Rule 132 of the Rules of
Court. The sworn statement of assets and liabilities filed by Felisa
Parcon is a public document, having been executed and submitted
pursuant to a requirement of the law. So it has been held by this
Court. 16 The other two writings above mentioned are, to be sure, not
public documents, but this is of no moment; neither of them has to be
a public document in order to be categorized as an "authentic writing."
It is enough that they are the genuine or indubitable writings of Felisa
Gapusan Parcon. That in one of the writings, Felisas application for
membership in the Negros Occidental Teachers Federation, Felisa
describes Ligaya as her "adopted" daughter is also inconsequential. It
may be explained by her reluctance to confess publicly to her
colleagues in the teaching profession that she had borne a child out of
wedlock. It is in any case a categorical avowal by Felisa that Ligaya is
indeed her daughter, an admission entirely consistent with the two
other authentic writings executed by her in which she acknowledges
Ligaya to be her daughter without qualification. Moreover, if these
three (3) writings are considered in conjunction with the undisputed
fact that Ligaya had been continuously treated by Felisa as her
daughter, the proposition that Ligaya was indeed Felisas daughter

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It is admitted on all sides that no judicial action or proceeding was


ever brought during the lifetime of Felisa to compel her to recognize
Ligaya as her daughter. It is also evident that Ligayas recognition as
Felisas daughter was not made in a record of birth or a will, a
circumstance which would have made judicial approval unnecessary,
only her own consent to the recognition being required. The
acknowledgment was made in authentic writings, and hence,
conformably with the legal provisions above cited, judicial approval
thereof was needed if the writings had been executed during Ligayas
minority. 17 In other words, the question of whether or not the
absence of judicial approval negated the effect of the writings as a
mode of recognition of Ligaya is dependent upon the latters age at the
time the writings were made.
The point need not be belabored, however. For whether Ligaya were
still a minor or already of age at the time of her recognition in the
authentic writings mentioned, that circumstance would be immaterial
in the light of the attendant facts.
In the first place, the consent required by Article 281 of a person of
age who has been voluntarily recognized may be given expressly or
tacitly. 18 Assuming then that Ligaya was of age at the time of her
voluntary recognition, the evidence shows that she has in fact
consented thereto. Her consent to her recognition is not only implicit
from her failure to impugn it at any time before her mothers death,
but is made clearly manifest and conclusive by her assertion of that
recognition in the judicial proceeding for the settlement of her
mothers estate as basis for her rights thereto. Assuming on the other
hand, that she was a minor at the time of her recognition, and
therefore judicial approval of the recognition was necessary, the
absence thereof was cured by her ratification of that recognition, after
having reached the age of majority, by her initiation of the proceedings
for the settlement of her deceased mothers estate on the claim
precisely that she was the decedents acknowledged natural daughter.
19 The requirement of judicial approval imposed by Article 281 is
clearly intended for the benefit of the minor. "The lack of judicial
approval can not impede the effectivity of the acknowledgment made.
The judicial approval is for the protection of the minor against any
acknowledgment made to his prejudice." 20 "Therefore, the lack or
insufficiency of such approval is NOT a defect available to the
recognizing parent but one which the minor may raise or waive. If
after reaching majority the minor consents to the acknowledgment,

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becomes well nigh conclusive.

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Atty. Arceno
the lack of judicial approval should make no difference. Implied
consent to the acknowledgment may be shown (e.g.,) by such acts as
keeping, even after reaching the age of majority, the acknowledgment
papers and the use of the parents surname." 21
Upon the foregoing facts and considerations, Ligaya Gapusan Chua
must be held to be a voluntarily acknowledged natural child of Felisa
Gapusan Parcon. She is therefore entitled, in accordance with Article
282 of the Civil Code, to bear her mothers surname, and to receive
the hereditary portion accorded to her by the Code.
chanrobles.com :cralaw:re d

WHEREFORE, the challenged decision of the Court of Appeals (Fourth


Division) dated April 13, 1977 is hereby REVERSED AND SET ASIDE,
and the Orders of the Probate Court dated January 16, 1968
appointing Ligaya Gapusan-Chua Special Administratrix and of April
16, 1969 declaring said Ligaya Gapusan-Chua the decedents
acknowledged natural child and appointing her regular administratrix
are REINSTATED AND HEREBY AFFIRMED, without pronouncement
as to costs.
SO ORDERED.

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FIRST DIVISION
[G.R. No. 76873. October 26, 1989.]
DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO &
DOMINADOR, all surnamed UYGUANGCO, Petitioners, v. COURT
OF APPEALS, Judge SENEN PEARANDA and GRACIANO
BACJAO UYGUANGCO, Respondents.
Constantino G. Jaraulla, for Petitioners.

the private respondent, however, is that, since he seeks to prove his


filiation under the second paragraph of Article 172 of the Family Code,
his action is now barred because of his alleged fathers death in 1975.
The second paragraph of this Article 175 reads as follows: The action
must be brought within the same period specified in Article 173,
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. (Emphasis supplied.) It is clear that the private
respondent can no longer be allowed at this time to introduce evidence
of his open and continuous possession of the status of an illegitimate
child or prove his alleged filiation through any of the means allowed by
the Rules of Court or special laws. The simple reason is that Apolinario
Uyguangco is already dead and can no longer be heard on the claim of
his alleged sons illegitimate filiation.
3. ID.; ID.; ID.; RATIONALE OF THE RULE. In her Handbook on the
Family Code of the Philippines, Justice Alicia Sempio-Diy explains the
rationale of the rule, thus: "It is a truism that unlike legitimate children
who are publicly recognized, illegitimate children are usually begotten
and raised in secrecy and without the legitimate family being aware of
their existence. Who then can be sure of their filiation but the parents
themselves? But suppose the child claiming to be the illegitimate child
of a certain person is not really the child of the latter? The putative
parent should thus be given the opportunity to affirm or deny the
childs filiation, and this, he or she cannot do if he or she is already
dead."
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Anthony Santos for Respondents.

SYLLABUS

1. PERSONS AND FAMILY RELATIONS, ILLEGITIMATE CHILD; CLAIMED


FILIATION ALLOWED TO BE ESTABLISHED BY ANY OTHER MEANS
ALLOWED BY THE RULES OF COURT AND SPECIAL LAWS. The
illegitimate child is now also allowed to establish his claimed filiation by
"any other means allowed by the Rules of Court and special laws," like
his baptismal certificate, a judicial admission, a family Bible in which
his name has been entered, common reputation respecting his
pedigree, admission by silence, the testimonies of witnesses, and
other kinds of proof admissible under Rule 130 of the Rules of Court.
2. ID.; ID.; ACTION TO PROVE FILIATION REQUIRED TO BE BROUGHT
DURING THE LIFETIME OF THE ALLEGED PARENT. The problem of

4. ID.; ID.; ID.; ACTION BARED BY DEATH OF ALLEGED PARENT.


Gracianos complaint is based on his contention that he is the
illegitimate child of Apolinario Uyguangco, whose estate is the subject
of the partition sought. If this claim can no longer be proved in an
action for recognition, with more reason should it be rejected in the
said complaint, where the issue of Gracianos filiation is being raised
only collaterally. The complaint is indeed a circumvention of Article
172, which allows proof of the illegitimate childs filiation under the
second paragraph thereof only during the lifetime of the alleged
parent. Considering that the private respondent has, as we see it,
established at least prima facie proof of his alleged filiation, we find it
regrettable that his action should be barred under the said article. But
that is the law and we have no choice but to apply it.

DECISION

The issue before the Court is not the status of the private respondent,
who has been excluded from the family and inheritance of the
petitioners. What we are asked to decide is whether he should be
allowed to prove that he is an illegitimate child of his claimed father,
who is already dead, in the absence of the documentary evidence
required by the Civil Code.

Page

CRUZ, J.:

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Atty. Arceno
Specifically, the petitioners argued that the only evidence allowed
under Article 278 to prove the private respondents claim was not
available to him as he himself had admitted. Neither could he now
resort to the provisions of Article 285 because he was already an adult
when his alleged father died in 1975, and his claim did not come under
the exceptions. The said article provides as follows:
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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:
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The trial court said he could and was sustained by the respondent
Court of Appeals. 1 The latter court held that the trial judge had not
committed any grave abuse of discretion or acted without jurisdiction
in allowing the private respondent to prove his filiation. Moreover, the
proper remedy was an ordinary appeal and not a petition for
prohibition. The petitioners ask for a reversal of these rulings on the
ground that they are not in accordance with law and jurisprudence.
Apolinario Uyguangco died intestate in 1975, leaving his wife, Dorotea,
four legitimate children (her co-petitioners herein), and considerable
properties which they divided among themselves. 2 Claiming to be an
illegitimate son of the deceased Apolinario, and having been left out in
the extrajudicial settlement of his estate, Graciano Bacjao Uyguangco
filed a complaint for partition against all the petitioners. 3
Graciano alleged that he was born in 1952 to Apolinario Uyguangco
and Anastacia Bacjao and that at the age of 15 he moved to his
fathers hometown at Medina, Misamis Oriental, at the latters urging
and also of Dorotea and his half-brothers. Here he received support
from his father while he was studying at the Medina High School,
where he eventually graduated. He was also assigned by his father,
without objection from the rest of the family, as storekeeper at the
Uyguangco store in Mananom from 1967 to 1973. 4
In the course of his presentation of evidence at the trial, the
petitioners elicited an admission from Graciano that he had none of the
documents mentioned in Article 278 to show that he was the
illegitimate son of Apolinario Uyguangco. 5 These are "the record of
birth, a will, a statement before a court of record, or (in) any authentic
writing." The petitioners thereupon moved for the dismissal of the case
on the ground that the private respondent could no longer prove his
alleged filiation under the applicable provisions of the Civil Code. 6

(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;
(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.
In this case, the action must be commenced within four years from the
finding of the document.
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As earlier related, the motion to dismiss was denied, prompting the


petitioners to seek relief in vain from the respondent court. In the case
now before us, the petitioners reiterate and, emphasize their position
that allowing the trial to proceed would only be a waste of time and
effort. They argue that the complaint for partition is actually an action
for recognition as an illegitimate child, which, being already barred, is
a clear attempt to circumvent the said provisions. The private
respondent insists, on the other hand, that he has a right to show
under Article 283 that he is "in continuous possession of the status of
a child of his alleged father by the direct acts of the latter or of his
family."
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We find that this case must be decided under a new if not entirely
dissimilar set of rules because the parties have been overtaken by
events, to use the popular phrase. The Civil Code provisions they
invoke have been superseded, or at least modified, by the
corresponding articles in the Family Code, which became effective on
August 3, 1988.
Under the Family Code, it is provided that:

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Art. 175. Illegitimate children may establish their illegitimate filiation

The following provision is therefore also available to the private


respondent in proving his illegitimate filiation:
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Art. 172. The filiation of legitimate children is established by any of the


following:
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(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:

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in the same way and on the same evidence as legitimate children.

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judicial admission, a family Bible in which his name has been entered,
common reputation respecting his pedigree, admission by silence, the
testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court. 8
The problem of the private respondent, however, is that, since he
seeks to prove his filiation under the second paragraph of Article 172
of the Family Code, his action is now barred because of his alleged
fathers death in 1975. The second paragraph of this Article 175 reads
as follows:
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The action must be brought within the same period specified in Article
173, 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. (Emphasis supplied.)

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(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.

It is clear that the private respondent can no longer be allowed at this


time to introduce evidence of his open and continuous possession of
the status of an illegitimate child or prove his alleged filiation through
any of the means allowed by the Rules of Court or special laws. The
simple reason is that Apolinario Uyguangco is already dead and can no
longer be heard on the claim of his alleged sons illegitimate filiation.

chanrobles law library

While the private respondent has admitted that he has none of the
documents mentioned in the first paragraph (which are practically the
same documents mentioned in Article 278 of the Civil Code except for
the "private handwritten instrument signed by the parent himself"), he
insists that he has nevertheless been "in open and continuous
possession of the status of an illegitimate child," which is now also
admissible as evidence of filiation.
Thus, he claims that he lived with his father from 1967 until 1973,
receiving support from him during that time; that he has been using
the surname Uyguangco without objection from his father and the
petitioners as shown in his high school diploma, a special power of
attorney executed in his favor by Dorotea Uyguangco, and another one
by Sulpicio Uyguangco; that he has shared in the profits of the copra
business of the Uyguangcos, which is a strictly family business; that he
was a director, together with the petitioners, of the Alu and Sons
Development Corporation, a family corporation; and that in the
addendum to the original extrajudicial settlement concluded by the
petitioners he was given a share in his deceased fathers estate. 7
It must be added that the illegitimate child is now also allowed to
establish his claimed filiation by "any other means allowed by the
Rules of Court and special laws," like his baptismal certificate, a

In her Handbook on the Family Code of the Philippines, Justice Alicia


Sempio-Diy explains the rationale of the rule, thus: "It is a truism that
unlike legitimate children who are publicly recognized, illegitimate
children are usually begotten and raised in secrecy and without the
legitimate family being aware of their existence. Who then can be sure
of their filiation but the parents themselves? But suppose the child
claiming to be the illegitimate child of a certain person is not really the
child of the latter? The putative parent should thus be given the
opportunity to affirm or deny the childs filiation, and this, he or she
cannot do if he or she is already dead." 9
Finally, it must be observed that the provisions invoked by the parties
are among those affected by the following articles in the Family
Code:
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Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31,
39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules and regulations, or parts
thereof, inconsistent herewith are hereby repealed.

Gracianos complaint is based on his contention that he is the


illegitimate child of Apolinario Uyguangco, whose estate is the subject
of the partition sought. If this claim can no longer be proved in an
action for recognition, with more reason should it be rejected in the
said complaint, where the issue of Gracianos filiation is being raised
only collaterally. The complaint is indeed a circumvention of Article
172, which allows proof of the illegitimate childs filiation under the
second paragraph thereof only during the lifetime of the alleged
parent.
Considering that the private respondent has, as we see it, established
at least prima facie proof of his alleged filiation, we find it regrettable
that his action should be barred under the said article. But that is the
law and we have no choice but to apply it. Even so, the Court
expresses the hope that the parties will arrive at some kind of
rapprochement, based on fraternal and moral ties if not the strict
language of the law, that will allow the private respondent an equitable
share in the disputed estate. Blood should tell.
WHEREFORE, the petition is GRANTED, and Civil Case No. 9067 in the
Regional Trial Court of Misamis Oriental, Branch 20, is hereby
DISMISSED. It is so ordered.
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Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Page

Art. 256. 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.

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Atty. Arceno
Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas, Et. Al. v.
Jose Modequillo, Et Al.," the dispositive part of which read as follows:

cralawnad

"WHEREFORE, the decision under appeal should be, as it is hereby,


reversed and set aside. Judgment is hereby rendered finding the
defendants-appellees Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered to pay jointly and
severally to:
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1. Plaintiffs appellants, the Salinas spouses:

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a. the amount of P30,000.00 by way of compensation for the death of


their son Audie Salinas;
b. P10,000.00 for the loss of earnings by reason of the death of said
Audie Salinas;

FAMILY HOME

FIRST DIVISION

c. the sum of P5,000.00 as burial expenses of Audie Salinas; and

[G.R. No. 86355. May 31, 1990.]

d. the sum of P5,000.00 by way of moral damages.

JOSE MODEQUILLO, Petitioner, v. HON. AUGUSTO V. BREVA,


FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO
CULAN-CULAN and DEPUTY SHERIFF FERNANDO
PLATA,Respondents.
Josefina Brandares-Almazan for Petitioner.
ABC Law Offices for Private Respondents.

DECISION

2. Plaintiffs-appellants Culan-Culan:

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a. the sum of P5,000.00 for hospitalization expenses of Renato CulanCulan; and


b. P5,000.00 for moral damages.
3. Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for
attorneys fees and litigation expenses.
All counterclaims and other claims are hereby dismissed." 1

GANCAYCO, J.:

The issue in this petition is whether or not a final judgment of the


Court of Appeals in an action for damages may be satisfied by way of
execution of a family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of

The said judgment having become final and executory, a writ of


execution was issued by the Regional Trial Court of Davao City to
satisfy the said judgment on the goods and chattels of the defendants
Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land
located at Poblacion Malalag, Davao del Sur containing an area of 600
square meters with a market value of P34,550.00 and assessed value
of P7,570.00 per Tax Declaration No. 87-0008-01359, registered in the
name of Jose Modequillo in the office of the Provincial Assessor of
Davao del Sur; and a parcel of agricultural land located at Dalagbong,

A motion to quash and/or to set aside levy of execution was filed by


defendant Jose Modequillo alleging therein that the residential land
located at Poblacion Malalag is where the family home is built since
1969 prior to the commencement of this case and as such is exempt
from execution, forced sale or attachment under Articles 152 and 153
of the Family Code except for liabilities mentioned in Article 155
thereof; and that the judgment debt sought to be enforced against the
family home of defendant is not one of those enumerated under Article
155 of the Family Code. As to the agricultural land although it is
declared in the name of defendant it is alleged to be still part of the
public land and the transfer in his favor by the original possessor and
applicant who was a member of a cultural minority was not approved
by the proper government agency. An opposition thereto was filed by
the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion.
A motion for reconsideration thereof was filed by defendant and this
was denied for lack of merit on September 2, 1988.
chanroble s virtual lawlibrary

Hence, the herein petition for review on certiorari wherein it is alleged


that the trial court erred and acted in excess of its jurisdiction in
denying petitioners motion to quash and/or to set aside levy on the
properties and in denying petitioners motion for reconsideration of the
order dated August 26, 1988. Petitioner contends that only a question
of law is involved in this petition. He asserts that the residential house
and lot was first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which took effect
on August 4, 1988. Thus, petitioner argues that the said residential
house and lot is exempt from payment of the obligation enumerated in
Article 155 of the Family Code; and that the decision in this case
pertaining to damages arising from a vehicular accident took place on
March 16, 1976 and which became final in 1988 is not one of those
instances enumerated under Article 155 of the Family Code when the
family home may be levied upon and sold on execution. It is further
alleged that the trial court erred in holding that the said house and lot
became a family home only on August 4, 1988 when the Family Code
became effective, and that the Family Code cannot be interpreted in
such a way that all family residences are deemed to have been
constituted as family homes at the time of their occupancy prior to the
effectivity of the said Code and that they are exempt from execution

Page

Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with


a market value of P24,130.00 and assessed value of P9,650.00 per Tax
Declaration No. 87-08-01848 registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del Sur. 2

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Atty. Arceno
for the payment of obligations incurred before the effectivity of said
Code; and that it also erred when it declared that Article 162 of the
Family Code does not state that the provisions of Chapter 2, Title V
have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:

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"Art. 152. The family home, constituted jointly by the husband and the
wife or by an unmarried head of a family, is the dwelling house where
they and their family reside, and the land on which it is situated."
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"Art. 153. The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law."
cralaw virtua1aw library

Under the Family Code, a family home is deemed constituted on a


house and lot from the time it is occupied as a family residence, There
is no need to constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually resides in the
premises, it is, therefore, a family home as contemplated by law. Thus,
the creditors should take the necessary precautions to protect their
interest before extending credit to the spouses or head of the family
who owns the home.
Article 155 of the Family Code also provides as follows:

jgc:chanrobles.com .ph

"Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
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(1) For nonpayment of taxes;


(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished
material for the construction of the building."
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The exemption provided as aforestated is effective from the time of


the constitution of the family home as such, and lasts so long as any of

In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under
the Civil Code. It became a family home by operation of law only
under Article 153 of the Family Code. It is deemed constituted as a
family home upon the effectivity of the Family Code on August 3, 1988
not August 4, one year after its publication in the Manila Chronicle on
August 4, 1987 (1988 being a leap year).
chanroble s law library : red

The contention of petitioner that it should be considered a family home


from the time it was occupied by petitioner and his family in 1969 is
not well-taken. Under Article 162 of the Family Code, it is provided
that "the provisions of this Chapter shall also govern existing family
residences insofar as said provisions are applicable." It does not mean
that Articles 152 and 153 of said Code have a retroactive effect such
that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the
effectivity of the Family Code and are exempt from execution for the
payment of obligations incurred before the effectivity of the Family
Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family
homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code. Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of
the judgment arose or was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment arising
therefrom was rendered by the appellate court on January 29, 1988.
Both preceded the effectivity of the Family Code on August 3, 1988.
This case does not fall under the exemptions from execution provided
in the Family Code.
As to the agricultural land subject of the execution, the trial court
correctly ruled that the levy to be made by the sheriff shall be on
whatever rights the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur.

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its beneficiaries actually resides therein.

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Grio-Aquino, J., is on leave.

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subsistence of a previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present must
institute summary proceedings for the declaration of presumptive
death of the absentee spouse, without prejudice to the effect of the
reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to
appeal the trial court's order by filing a Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no
record of appeal was filed and served "as required by and pursuant to
Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present
case being a special proceeding," disapproved the Notice of Appeal.
ABSENTEES

THIRD DIVISION
[G.R. NO. 163604 : May 6, 2005]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. THE HON. COURT
OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, Respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee
Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner," the
Ormoc City, Regional Trial Court, Branch 35, by Order of September
29, 1999,1 granted the petition on the basis of the Commissioner's
Report2 and accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona,
cited Article 41, par. 2 of the Family Code. Said article provides that for
the purpose of contracting a valid subsequent marriageduring the

The Republic's Motion for Reconsideration of the trial court's order of


disapproval having been denied by Order of January 13, 2000,5 it filed
a Petition for Certiorari6 before the Court of Appeals, it contending that
the declaration of presumptive death of a person under Article 41 of
the Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the
Republic's petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in
form. It failed to attach to its petition a certified true copy of the
assailed Order dated January 13, 2000[denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial
court's] Order dated August 15, 1999, which declared Clemente Jomoc
presumptively dead, likewise for having been issued with grave abuse
of discretion amounting to lack of jurisdiction, yet, not even a copy
could be found in the records. On this score alone, the petition should
have been dismissed outright in accordance with Sec. 3, Rule 46 of the
Rules of Court.

The principal issue in this case is whether a petition for


declaration of the presumptive death of a person is in the
nature of a special proceeding. If it is, the period to appeal is 30
days and the party appealing must, in addition to a notice of appeal,
file with the trial court a record on appeal to perfect its appeal.
Otherwise, if the petition is an ordinary action, the period to appeal is
15 days from notice or decision or final order appealed from and the
appeal is perfected by filing a notice of appeal (Section 3, Rule 41,
Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action
is one by which a party sues another for the enforcement or protection
of a right, or the prevention of redress of a wrong" while a special
proceeding under Section 3(c) of the same rule is defined as "a
remedy by which a party seeks to establish a status, a right or a
particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R.
No. 124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the
instant petition is in the nature of a special proceeding and not
an ordinary action. The petition merely seeks for a declaration by
the trial court of the presumptive death of absentee spouse Clemente
Jomoc. It does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a demand of
right or a cause of action that can be enforced against any person.

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However, despite the procedural lapses, the Court resolves to delve


deeper into the substantive issue of the validity/nullity of the assailed
order.

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Atty. Arceno
On the basis of the foregoing discussion, the subject Order dated
January 13, 2000 denying OSG's Motion for Reconsideration of the
Order dated November 22, 1999 disapproving its Notice of Appeal was
correctly issued. The instant petition, being in the nature of a
special proceeding, OSG should have filed, in addition to its
Notice of Appeal, a record on appeal in accordance with Section 19
of the Interim Rules and Guidelines to Implement BP Blg. 129 and
Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)
rllbrr

The Republic (petitioner) insists that the declaration of presumptive


death under Article 41 of the Family Code is not a special proceeding
involving multiple or separate appeals where a record on appeal shall
be filed and served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which
enumerates the cases wherein multiple appeals are allowed and a
record on appeal is required for an appeal to be perfected. The petition
for the declaration of presumptive death of an absent spouse not being
included in the enumeration, petitioner contends that a mere notice of
appeal suffices.
By Resolution of December 15, 2004,8 this Court, noting that copy of
the September 27, 2004 Resolution9 requiring respondent to file her
comment on the petition was returned unserved with postmaster's
notation "Party refused," Resolved to consider that copy deemed
served upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. 'Rules of special
proceedings are provided for in the following:

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62

(a) Settlement of estate of deceased persons;

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(b) Escheat;
(c) Guardianship and custody of children;

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


or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)

rllbrr

Upon the other hand, Article 41 of the Family Code, upon which the
trial court anchored its grant of the petition for the declaration of
presumptive death of the absent spouse, provides:

(d) Trustees;
(e) Adoption;

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


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

(f) Rescission and revocation of adoption;


(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;

For the purpose pf contracting the subsequent marriage under the


preceding paragraph, the spouses present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring
supplied)
rllbrr

(m) Declaration of absence and death;

Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal,


invoked by the trial court in disapproving petitioner's Notice of Appeal,
provides:

(n) Cancellation or correction of entries in the civil registry.


Sec. 2. Applicability of rules of civil actions. 'In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. (Underscoring supplied)

Sec. 2. Modes of appeal. -

rl

lbrr

The pertinent provision of the Civil Code on presumption of death


provides:

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases


decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple

rllbrr

xxx
By the trial court's citation of Article 41 of the Family Code, it is
gathered that the petition of Apolinaria Jomoc to have her absent
spouse declared presumptively dead had for its purpose her desire to
contract a valid subsequent marriage. Ergo, the petition for that
purpose is a "summary proceeding," following above-quoted Art. 41,
paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN THE FAMILY LAW, contains the following
provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules
in this Title shall applyin all cases provided for in this Codes
requiring summary court proceedings.Such cases shall be
decided in an expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)
rllbrr

x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for
the filing of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial court's order
sufficed.
That the Family Code provision on repeal, Art. 254, provides as
follows:

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or separate appeals where the law or these Rules so require. In


such cases, the record on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)

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Atty. Arceno
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31,
39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations rules and regulations, or parts
thereof, inconsistent therewith are hereby repealed, (Emphasis
and underscoring supplied),
seals the case in petitioner's favor.
Finally, on the alleged procedural flaw in petitioner's petition before the
appellate court. Petitioner's failure to attach to his petition before the
appellate court a copy of the trial court's order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not
necessarily fatal, for the rules of procedure are not to be applied in a
technical sense. Given the issue raised before it by petitioner, what the
appellate court should have done was to direct petitioner to comply
with the rule.
As for petitioner's failure to submit copy of the trial court's order
granting the petition for declaration of presumptive death, contrary to
the appellate court's observation that petitioner was also assailing it,
petitioner's 8-page petition10 filed in said court does not so reflect, it
merely having assailed theorder disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of
Appeals is hereby REVERSED and SET ASIDE. Let the case be
REMANDED to it for appropriate action in light of the foregoing
discussion.
SO ORDERED.

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APPEALS IN SPECIAL PROCEEDINGS

THIRD DIVISION
[G.R. No. 138731. December 11, 2000.]
TESTATE ESTATE OF MARIA MANUEL Vda. DE
BIASCAN, Petitioner, v. ROSALINA C. BIASCAN, Respondent.
DECISION

GONZAGA-REYES, J.:

This is a petition for review of the decision 1 of the Court of Appeals in


CA-G.R. SP Case No. 44306 affirming the orders dated October 22,
1996 and February 12, 1997 of the Regional Trial Court, Branch 4,
Manila. These orders dismissed the appeal of petitioner from the
orders dated April 2, 1981 and April 30,1985 of the same Regional
Trial Court.
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The facts of the case are as follows:

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On June 3, 1975, private respondent Rosalina J. Biascan filed a


petition, 2 denominated as Special Proceeding No. 98037 at the then
Court of First Instance, Branch 4, Manila praying for her appointment
as administratrix of the intestate estate of Florencio Biascan and
Timotea Zulueta. In an Order dated August 13, 1975, private
respondent was appointed as regular administratrix of the estates.

After an exchange of pleadings between the parties, Judge Serafin


Cuevas, then presiding judge of CFI Manila, Branch 4, issued an
Omnibus Order 5 dated November 13, 1975 which, among others,
granted Marias intervention and set for trial the motion to set aside
the Orders appointing respondent as administratrix.
On April 2, 1981, the trial court issued an Order 6 resolving that: (1)
Maria is the lawful wife of Florencio; (2) respondent and her brother
are the acknowledged natural children of Florencio; (3) all three are
the legal heirs of Florencio who are entitled to participate in the
settlement proceedings; (4) the motion to set aside the order
appointing private respondent as administratrix is denied; and (5) the
motion to approve inventory and appraisal of private respondent be
deferred. Maria, through her counsel, received a copy of this April
2,1981 Order on April 9,1981. 7
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2,
1981 Order, Maria filed her motion for reconsideration 8 which private
respondent opposed. 9
On November 15, 1981, the fourth floor of the City Hall of Manila was
completely gutted by fire. The records of the settlement proceedings
were among those lost in the fire. Thus, on January 2,1985, private
respondent filed a Petition for Reconstitution 10 of the said records.
Due to the delay caused by the fire and the reconstitution of the
records, it was only on April 30, 1985 that the Regional Trial Court of
Manila, Branch 4 issued an Order 11 denying Marias June 6, 1981
Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate also became
the subject of settlement proceedings. Atty. Marcial F. Lopez was
appointed as interim special administrator and engaged the services of
the Siguion Reyna Montecillo and Ongsiako Law Offices on behalf of
the estate.

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On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of
Florencio Biascan entered her appearance as Oppositor-Movant in SP.
Proc. No. 98037. 3 Simultaneous with her appearance, she filed a
pleading containing several motions including a motion for
intervention, a motion for the setting aside of private respondents
appointment as special administratrix and administratrix, and a motion
for her appointment as administratrix of the estate of Florencio
Biascan. 4

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On August 21, 1996, the law firm was allegedly made aware of and
given notice of the April 30, 1985 Order when its associate visited
Branch 4 of the Regional Trial Court of Manila to inquire about the
status of the case. The associate checked the records if there was
proof of service of the April 30, 1985 Order to the former counsel of
Maria, Atty. Marcial F. Lopez, but he discovered that there was none.
12 He was able to secure a certification 13 from the Clerk of Court of
the Regional Trial Court of Manila, Branch 4 which stated that there
was no proof of service of the Order dated April 30, 1985 contained in
the records of SP. Proc. No. 98037.
A Notice of Appeal 14 dated April 22, 1996 was filed by petitioner from
the Orders dated April 2, 1981 and April 30, 1985 of the trial court.
While the said notice of appeal was dated April 22, 1996, the stamp of
the trial court on the first page of the notice dearly indicated that the
same was received by the trial court on September 20, 1996. A Record
of Appeal 15 dated September 20, 1996 was likewise filed by
petitioner.
On October 22,1996, the trial court issued an Order 16 denying
petitioners appeal on the ground that the appeal was filed out of time.
The trial court ruled that the April 2, 1981 Order which was the subject
of the appeal already became final as the Motion for Reconsideration
thereof was filed sixty-five (65) days after petitioner received the
same. In addition, the court ruled that the notice of appeal itself was
filed manifestly late as the same was filed more than 11 years after
the issuance of the June 11, 1985 Order denying petitioners Motion
for Reconsideration. The Motion for Reconsideration dated November
13, 1996 of petitioner was likewise denied by the trial court in an
Order 17 dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition
for Certiorari with Prayer for Mandatory Injunction 18 with the Court of
Appeals questioning the October 12,1996 and February 12,1997
Orders of the Regional Trial Court.
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In a Decision 19 dated February 16, 1999, the First Division of the


Court of Appeals denied the petition for certiorari of petitioner.
Petitioners Motion for Reconsideration was likewise denied by the
appellate court in a Resolution 20 dated May 18,1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth
the following ground for the reversal of the decision of the appellate
court:
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There is no merit in the petition.


Section 1, Rule 109 of the Rules of Court enumerates the orders and
judgments in special proceedings which may be the subject of an
appeal. Thus:
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"SECTION 1. Orders or judgments from which appeals maybe taken.


An interested person may appeal in a special proceeding from an order
or judgment rendered by a Regional Trial Court or a Juvenile and
Domestic Relations Court, where such order or judgment:
chanrob1es virtual 1aw library

(a) Allows or disallows a will;


(b) Determines who are the lawful heirs of a deceased person, or the
distributive shares of the estate to which such person is entitled;
(c) Allows, or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf of the
estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or
guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate
of a deceased person, or the administration of a trustee or guardian, a
final determination in the lower court of the rights of the party
appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order
granting or denying a motion for new trial or for reconsideration."
cralaw virtua1aw library

An appeal is allowed in these aforesaid cases as these orders, decrees

Page

"THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING


COURT) HAS SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL
COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL
COURSE OF JUDICIAL PROCEEDINGS IN ISSUING THE ASSAILED 16
FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION
WHEN IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL COURT
THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND
EXECUTORY DESPITE THE FACT THAT NO OPPOSITION ON ITS
TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS
ITS TIMELINESS WAS MADE." 21

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or judgments issued by a court in a special proceeding constitute a
final determination of the rights of the parties so appealing. 22 In
contrast, interlocutory orders are not appealable as these are merely
incidental to judicial proceedings. In these cases, the court issuing
such orders retains control over the same and may thus modify,
rescind, or revoke the same on sufficient grounds at any time before
final judgment. 23
In the instant case, the Order dated April 2,1981 of the trial court
decreed, among others, that Maria Manuel Vda. De Biascan, the lawful
wife of the deceased Florencio Biascan, private respondent Rosalina
Biascan and her brother, German Biascan, are entitled to participate in
the settlement proceedings. Moreover, the said Order likewise denied
Marias motion to set aside the order appointing private respondent as
regular administratrix of the estate. These rulings of the trial court
were precisely questioned by Maria in her Motion for Reconsideration
dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina
Biascan and German Biascan were entitled to participate in the
settlement proceedings falls squarely under paragraph (b), Section 1,
Rule 109 of the Rules of Court as a proper subject of appeal. By so
ruling, the trial court has effectively determined that The three persons
are the lawful heirs of the deceased. As such, the same may be me
proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioners motion to set
aside the order appointing private respondent as the regular
administratrix of the estate of Florencio Bisacan is likewise a proper
subject of an appeal. We have previously held that an order of the trial
court appointing a regular administrator of a deceased persons estate
is a final determination of the rights of the parties thereunder, and is
thus, appealable. 24 This is in contrast with an order appointing a
special administrator who is appointed only for a limited time and for a
specific purpose. Because of the temporary character and special
character of this appointment, the Rules deem it not advisable for any
party to appeal from said temporary appointment. 25 Considering
however that private respondent has already been appointed as
regular administratrix of the estate of Florencio Biascan, her
appointment as such may be questioned before the appellate court by
way of appeal.
chanrob1es virtua1 1aw 1ibrary

It is thus clear that the Order dated April 2, 1981 may be the proper
subject of an appeal in a special proceeding. In special proceedings,
such as the instant proceeding for settlement of estate, the period of

With respect to the Order dated April 2, 1981 issued by the trial court,
petitioner admits that Maria Manuel Vda. De Biascan, its predecessorin-interest, received a copy of the same of April 9, 1981. Applying
these rules, Maria or her counsel had thirty (30) days or until May 9
within which to file a notice of appeal with record on appeal. She may
also file a motion for reconsideration, in which case the appeal period
is deemed interrupted.
Considering that it was only on June 6,1981, or a full fifty-eight (58)
days after receipt of the order, that a motion for reconsideration was
filed, it is clear that the same was filed out of time. As such, when the
said motion for reconsideration was filed, there was no more appeal
period to interrupt as the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the
trial court did not become final and executory as no opposition on its
timeliness was filed and no ruling as regards its timeliness was made.
Petitioner argues that although its motion for reconsideration was
denied in the Order dated April 30, 1985, the denial was made on
grounds other than its failure to ask for a reconsideration within the
period prescribed by law. As such, petitioner concludes, any procedural
defect attending the Motion for Reconsideration was deemed cured
when the trial court, in its Order dated April 30, 1985, took cognizance
of the same and rendered its ruling thereon.
There is no merit in this argument.
It is well-settled that judgments or orders become final and executory
by operation of law and not by judicial declaration. Thus, finality of a
judgment becomes a fact upon the lapse of the reglementary period of
appeal if no appeal is perfected 27 or motion for reconsideration or
new trial is filed. The trial court need not even pronounce the finality of
the order as the same becomes final by operation of law. In fact, the
trial court could not even validly entertain a motion for reconsideration
filed after the lapse of the period for taking an appeal. 28 As such, it is
of no moment that the opposing party failed to object to the timeliness
of the motion for reconsideration or that the court denied the same on
grounds other than timeliness considering that at the time the motion

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appeal from any decision or final order rendered therein is thirty (30)
days, a notice of appeal and a record on appeal being required. 26 The
appeal period may only be interrupted by the filing of a motion for new
trial or reconsideration. Once the appeal period expires without an
appeal or a motion for reconsideration or new trial being perfected, the
decision or order becomes final.

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was filed, the Order dated April 2, 1981 had already become final and
executory. Being final and executory, the trial court can no longer alter,
modify, or reverse the questioned order. 29 The subsequent filing of
the motion for reconsideration cannot disturb the finality of the
judgment or order. 30
Even if we assume that the Motion for Reconsideration filed by
petitioner had the effect of suspending the running of the appeal
period for the April 2,1981 Order, it is clear that petitioners notice of
appeal of the orders of the trial court was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the
time during which a motion to set aside the judgment or order or for a
new trial shall be deducted from the period from which to make an
appeal. The rule further states that where the motion was filed during
office hours of the last day of the appeal period, the appeal must be
perfected within the day following that in which the party appealing
received notice of the denial of said motion.
The Order of the trial court denying petitioners Motion for
Reconsideration of the April 2, 1981 Order was issued on April 30,
1985. Allegedly, petitioner was only made aware of this April 30, 1985
Order on August 21, 1996 when it inquired from the trial court about
the status of the case. Giving petitioner the benefit of the doubt that it
had indeed received notice of the order denying its motion for
reconsideration on August 21, 1996, it follows that petitioner only had
until the following day or on August 22, 1996 within which to perfect
the appeal.
At this point, we note with disapproval petitioners attempt to pass off
its Notice of Appeal as having been filed on August 22, 1996. In all its
pleadings before this Court and the Court of Appeals, petitioner insists
that its Notice of Appeal was filed the day after it secured the August
21, 1996 Certification from the trial court. While the Notice of Appeal
was ostensibly dated August 22, 1996, it is clear from the stamp 31 of
the trial court that the same was received only on September 20,
1996. Moreover, in the Order dated October 22, 1996 of the trial court
denying petitioners appeal, the court clearly stated that the Notice of
Appeal with accompanying Record on Appeal was filed on September
20, 1996.
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Considering that it is clear from the records that petitioners notice of


appeal was filed on September 20, 1996, the same was clearly filed
out of time as it only had until August 22, 1996 within which to file the
said pleading. And while the rules on special proceedings recognize

WHEREFORE, premises considered, we hereby DISMISS the petition

Page

that a motion for extension of time to file the notice of appeal and
record of appeal may be granted, 32 no such motion was ever filed by
petitioner before the trial court. Consequently, the trial court
committed no error when it dismissed the appeal of petitioner.

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for lack of merit. The decision dated February 16, 1999 and the
Resolution dated May 18,1999 of the Court of Appeals are hereby
AFFIRMED.
SO ORDERED.

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