G.R. No.

L-63915 December 29, 1986

WHEREFORE, the Court hereby orders respondents to

publish in the Official Gazette all unpublished presidential
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and issuances which are of general application, and unless so
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, published, they shall have no binding force and effect.
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,

vs.
The petitioners are now before us again, this time to move for
HON. JUAN C. TUVERA, in his capacity as Executive reconsideration/clarification of that decision. 1 Specifically,
Assistant to the President, HON. JOAQUIN VENUS, in his they ask the following questions:
capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.

1. What is meant by "law of public nature" or "general

applicability"?
RESOLUTION

2. Must a distinction be made between laws of general

CRUZ, J.: applicability and laws which are not?

Due process was invoked by the petitioners in demanding the 3. What is meant by "publication"?
disclosure of a number of presidential decrees which they
claimed had not been published as required by law. The
government argued that while publication was necessary as a
rule, it was not so when it was "otherwise provided," as when 4. Where is the publication to be made?
the decrees themselves declared that they were to become
effective immediately upon their approval. In the decision of
this case on April 24, 1985, the Court affirmed the necessity 5. When is the publication to be made?
for the publication of some of these decrees, declaring in the
dispositive portion as follows:

1
Resolving their own doubts, the petitioners suggest that there
should be no distinction between laws of general applicability
and those which are not; that publication means complete
publication; and that the publication must be made forthwith in
the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he
claimed first that the motion was a request for an advisory
opinion and should therefore be dismissed, and, on the merits,
that the clause "unless it is otherwise provided" in Article 2 of
the Civil Code meant that the publication required therein was
not always imperative; that publication, when necessary, did
not have to be made in the Official Gazette; and that in any
case the subject decision was concurred in only by three
justices and consequently not binding. This elicited a Reply 4
refuting these arguments. Came next the February Revolution
and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3,
Section 18, of the Rules of Court. Responding, he submitted
that issuances intended only for the internal administration of a
government agency or for particular persons did not have to
be 'Published; that publication when necessary must be in full
and in the Official Gazette; and that, however, the decision
under reconsideration was not binding because it was not
supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code
providing as follows:
ART. 2. Laws shall take effect after fifteen days
following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.
After a careful study of this provision and of the arguments of
the parties, both on the original petition and on the instant
motion, we have come to the conclusion and so hold, that the
clause "unless it is otherwise provided" refers to the date of
effectivity and not to the requirement of publication itself, which
cannot in any event be omitted. This clause does not mean
that the legislature may make the law effective immediately
upon approval, or on any other date, without its previous
publication.
Publication is indispensable in every case, but the legislature
may in its discretion provide that the usual fifteen-day period
shall be shortened or extended. An example, as pointed out by
the present Chief Justice in his separate concurrence in the
original decision, 6 is the Civil Code which did not become
effective after fifteen days from its publication in the Official
Gazette but "one year after such publication." The general rule
did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause
publication may be dispensed with altogether. The reason. is
2
that such omission would offend due process insofar as it
would deny the public knowledge of the laws that are
supposed to govern the legislature could validly provide that a
law e effective immediately upon its approval notwithstanding
the lack of publication (or after an unreasonably short period
after publication), it is not unlikely that persons not aware of it
would be prejudiced as a result and they would be so not
because of a failure to comply with but simply because they
did not know of its existence, Significantly, this is not true only
of penal laws as is commonly supposed. One can think of
many non-penal measures, like a law on prescription, which
must also be communicated to the persons they may affect
before they can begin to operate.
We note at this point the conclusive presumption that every
person knows the law, which of course presupposes that the
law has been published if the presumption is to have any legal
justification at all. It is no less important to remember that
Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the
legislative enactments of the government.
The term "laws" should refer to all laws and not only to those
of general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to
them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said
that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any
member of the body politic may question in the political forums
or, if he is a proper party, even in the courts of justice. In fact,
a law without any bearing on the public would be invalid as an
intrusion of privacy or as class legislation or as an ultra vires
act of the legislature. To be valid, the law must invariably affect
the public interest even if it might be directly applicable only to
one individual, or some of the people only, and t to the public
as a whole.
We hold therefore that all statutes, including those of local
application and private laws, shall be published as a condition
for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the
legislature.
Covered by this rule are presidential decrees and executive
orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the
Constitution. administrative rules and regulations must a also
be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative
3
agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the
performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place.
All presidential decrees must be published, including even,
say, those naming a public place after a favored individual or
exempting him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be published if
they are meant not merely to interpret but to "fill in the details"
of the Central Bank Act which that body is supposed to
enforce.
However, no publication is required of the instructions issued
by, say, the Minister of Social Welfare on the case studies to
be made in petitions for adoption or the rules laid down by the
head of a government agency on the assignments or workload
of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this
rule but by the Local Government Code.
We agree that publication must be in full or it is no publication
at all since its purpose is to inform the public of the contents of
the laws. As correctly pointed out by the petitioners, the mere
mention of the number of the presidential decree, the title of
such decree, its whereabouts (e.g., "with Secretary Tuvera"),
the supposed date of effectivity, and in a mere supplement of
the Official Gazette cannot satisfy the publication requirement.
This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY
1975, a presidential decree undeniably of general applicability
and interest, was "published" by the Marcos administration. 7
The evident purpose was to withhold rather than disclose
information on this vital law.
Coming now to the original decision, it is true that only four
justices were categorically for publication in the Official
Gazette 8 and that six others felt that publication could be
made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely
acknowledged the need for due publication without indicating
where it should be made. 11 It is therefore necessary for the
present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision
supported by the necessary vote.
There is much to be said of the view that the publication need
not be made in the Official Gazette, considering its erratic
releases and limited readership. Undoubtedly, newspapers of
general circulation could better perform the function of
communicating, the laws to the people as such periodicals are
more easily available, have a wider readership, and come out
regularly. The trouble, though, is that this kind of publication is
4
not the one required or authorized by existing law. As far as
we know, no amendment has been made of Article 2 of the
Civil Code. The Solicitor General has not pointed to such a
law, and we have no information that it exists. If it does, it
obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the
wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to
the legislature. Our task is merely to interpret and apply the
law as conceived and approved by the political departments of
the government in accordance with the prescribed procedure.
Consequently, we have no choice but to pronounce that under
Article 2 of the Civil Code, the publication of laws must be
made in the Official Gazett and not elsewhere, as a
requirement for their effectivity after fifteen days from such
publication or after a different period provided by the
legislature.
We also hold that the publication must be made forthwith or at
least as soon as possible, to give effect to the law pursuant to
the said Article 2. There is that possibility, of course, although
not suggested by the parties that a law could be rendered
unenforceable by a mere refusal of the executive, for whatever
reason, to cause its publication as required. This is a matter,
however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the
instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are
over. This is once again an open society, with all the acts of
the government subject to public scrutiny and available always
to public cognizance. This has to be so if our country is to
remain democratic, with sovereignty residing in the people and
all government authority emanating from them.
Although they have delegated the power of legislation, they
retain the authority to review the work of their delegates and to
ratify or reject it according to their lights, through their freedom
of expression and their right of suffrage. This they cannot do if
the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun
instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make
full disclosure and give proper notice to the people. The furtive
law is like a scabbarded saber that cannot feint parry or cut
unless the naked blade is drawn.
5
WHEREFORE, it is hereby declared that all laws as above
defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official
Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in
accordance with Article 2 of the Civil Code.
SO ORDERED.
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA
BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA
BERNAL, namely, GLICERIA DELA CRUZ BERNAL and
LUIS BERNAL, SR., respondents.
RESOLUTION
CORTES, J.:
This special civil action for certiorari seeks to declare null and
void two (2) resolutions of the Special First Division of the
Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa
Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first
resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the
decision in said case had become final; and the second
Resolution dated 27 October 1987 denied petitioners' motion
for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright
for not being verified as required by Rule 65 section 1 of the
Rules of Court. However, even if the instant petition did not
suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-
out building owned by petitioners collapsed and destroyed the
tailoring shop occupied by the family of private respondents,
resulting in injuries to private respondents and the death of
Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its
proximity to the weakened wall but the former failed to do so.
On the basis of the foregoing facts, the Regional Trial Court.
First Judicial Region, Branch XXXVIII, presided by the Hon.
Antonio M. Belen, rendered judgment finding petitioners guilty
of gross negligence and awarding damages to private
respondents. On appeal, the decision of the trial court was
affirmed in toto by the Court of Appeals in a decision
promulgated on August 17, 1987, a copy of which was
received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file a motion
for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987.
Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27,
1987.
This Court finds that the Court of Appeals did not commit a
grave abuse of discretion when it denied petitioners' motion for
extension of time to file a motion for reconsideration, directed
entry of judgment and denied their motion for reconsideration.
6
It correctly applied the rule laid down in Habaluyas
Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5,
1985,138 SCRA 461, that the fifteen-day period for appealing
or for filing a motion for reconsideration cannot be extended. In
its Resolution denying the motion for reconsideration,
promulgated on July 30, 1986 (142 SCRA 208), this Court en
banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution,
the rule shall be strictly enforced that no motion for extension
of time to file a motion for reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial
Courts, and the Intermediate Appellate Court. Such a motion
may be filed only in cases pending with the Supreme Court as
the court of last resort, which may in its sound discretion either
grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the
intermediate Appellate Court, [G.R. No. 73146-53, August 26,
1986, 143 SCRA 643], reiterated the rule and went further to
restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824,
Sept. 15, 1986,144 SCRA 161],stressed the prospective
application of said rule, and explained the operation of the
grace period, to wit:
In other words, there is a one-month grace
period from the promulgation on May 30, 1986
of the Court's Resolution in the clarificatory
Habaluyas case, or up to June 30, 1986, within
which the rule barring extensions of time to file
motions for new trial or reconsideration is, as
yet, not strictly enforceable.
Since petitioners herein filed their motion for
extension on February 27, 1986, it is still within
the grace period, which expired on June 30,
1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate
Appellate Court [G.R. No. 73669, October 28, 1986, 145
SCRA 306].]
In the instant case, however, petitioners' motion for extension
of time was filed on September 9, 1987, more than a year after
the expiration of the grace period on June 30, 1986. Hence, it
is no longer within the coverage of the grace period.
Considering the length of time from the expiration of the grace
period to the promulgation of the decision of the Court of
Appeals on August 25, 1987, petitioners cannot seek refuge in
the ignorance of their counsel regarding said rule for their
failure to file a motion for reconsideration within the
reglementary period.
Petitioners contend that the rule enunciated in
the Habaluyas case should not be made to apply to the case
at bar owing to the non-publication of the Habaluyas decision
in the Official Gazette as of the time the subject decision of the
Court of Appeals was promulgated. Contrary to petitioners'
view, there is no law requiring the publication of Supreme
Court decisions in the Official Gazette before they can be
binding and as a condition to their becoming effective. It is the
bounden duty of counsel as lawyer in active law practice to
keep abreast of decisions of the Supreme Court particularly
where issues have been clarified, consistently reiterated, and
published in the advance reports of Supreme Court decisions
(G. R. s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.
7
This Court likewise finds that the Court of Appeals committed
no grave abuse of discretion in affirming the trial court's
decision holding petitioner liable under Article 2190 of the Civil
Code, which provides that "the proprietor of a building or
structure is responsible for the damage resulting from its total
or partial collapse, if it should be due to the lack of necessary
repairs.
Nor was there error in rejecting petitioners argument that
private respondents had the "last clear chance" to avoid the
accident if only they heeded the. warning to vacate the
tailoring shop and , therefore, petitioners prior negligence
should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is
inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to
DENY the instant petition for lack of merit.
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan
Trial Court, Branch 28, Manila, respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross Immorality
and Appearance of Impropriety against Judge Francisco
Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court,
Branch 20, Manila.
Complainant alleges that he has two children with Yolanda De
Castro, who are living together at No. 34 Galaxy Street, Bel-Air
Subdivision, Makati, Metro Manila. He stays in said house,
which he purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his bedroom, he
saw respondent sleeping on his (complainant's) bed. Upon
inquiry, he was told by the houseboy that respondent had
been cohabiting with De Castro. Complainant did not bother to
wake up respondent and instead left the house after giving
instructions to his houseboy to take care of his children.
Thereafter, respondent prevented him from visiting his children
and even alienated the affection of his children for him.
Complainant claims that respondent is married to one Zenaida
Ongkiko with whom he has five children, as appearing in his
1986 and 1991 sworn statements of assets and liabilities.
Furthermore, he alleges that respondent caused his arrest on
January 13, 1992, after he had a heated argument with De
Castro inside the latter's office.
For his part, respondent alleges that complainant was not
married to De Castro and that the filing of the administrative
action was related to complainant's claim on the Bel-Air
residence, which was disputed by De Castro.
Respondent denies that he caused complainant's arrest and
claims that he was even a witness to the withdrawal of the
complaint for Grave Slander filed by De Castro against
complainant. According to him, it was the sister of De Castro
who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko,
although he admits having five children with her. He alleges
that while he and Ongkiko went through a marriage ceremony
8
before a Nueva Ecija town mayor on April 25, 1965, the same
was not a valid marriage for lack of a marriage license. Upon
the request of the parents of Ongkiko, respondent went
through another marriage ceremony with her in Manila on
June 5, 1965. Again, neither party applied for a marriage
license. Ongkiko abandoned respondent 17 years ago, leaving
their children to his care and custody as a single parent.
Respondent claims that when he married De Castro in civil
rites in Los Angeles, California on December 4, 1991, he
believed, in all good faith and for all legal intents and
purposes, that he was single because his first marriage was
solemnized without a license.
Under the Family Code, there must be a judicial declaration of
the nullity of a previous marriage before a party thereto can
enter into a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may
be invoked for the purposes of remarriage on
the basis solely of a final judgment declaring
such previous marriage void.
Respondent argues that the provision of Article 40 of the
Family Code does not apply to him considering that his first
marriage took place in 1965 and was governed by the Civil
Code of the Philippines; while the second marriage took place
in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the
effectivity of the Family Code on August 3, 1988 regardless of
the date of the first marriage. Besides, under Article 256 of the
Family Code, said Article is given "retroactive effect insofar as
it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." This is
particularly true with Article 40, which is a rule of procedure.
Respondent has not shown any vested right that was impaired
by the application of Article 40 to his case.
The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application to
pending actions. The retroactive application of procedural laws
is not violative of any right of a person who may feel that he is
adversely affected (Gregorio v. Court of Appeals, 26 SCRA
229 [1968]). The reason is that as a general rule no vested
right may attach to, nor arise from, procedural laws (Billones v.
Court of Industrial Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He
made a mockery of the institution of marriage and employed
deceit to be able to cohabit with a woman, who beget him five
children.
Respondent passed the Bar examinations in 1962 and was
admitted to the practice of law in 1963. At the time he went
through the two marriage ceremonies with Ongkiko, he was
already a lawyer. Yet, he never secured any marriage license.
Any law student would know that a marriage license is
necessary before one can get married. Respondent was given
an opportunity to correct the flaw in his first marriage when he
and Ongkiko were married for the second time. His failure to
secure a marriage license on these two occasions betrays his
sinister motives and bad faith.
It is evident that respondent failed to meet the standard of
moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his
appointment as a Metropolitan Trial Judge, his immoral and
illegal act of cohabiting with De Castro began and continued
when he was already in the judiciary.
9
The Code of Judicial Ethics mandates that the conduct of a Respondents. December 16, 2008
judge must be free of a whiff of impropriety, not only with
respect to his performance of his judicial duties but also as to x--------------------------------------------
his behavior as a private individual. There is no duality of ------x
morality. A public figure is also judged by his private life. A
judge, in order to promote public confidence in the integrity DECISION
and impartiality of the judiciary, must behave with propriety at
all times, in the performance of his judicial duties and in his
everyday life. These are judicial guideposts too self-evident to REYES, R.T., J.:
be overlooked. No position exacts a greater demand on moral
righteousness and uprightness of an individual than a seat in
the judiciary (Imbing v. Tiongzon, 229 SCRA 690 [1994]). ONLY a spouse can initiate an action to sever the
WHEREFORE, respondent is DISMISSED from the service marital bond for marriages solemnized during the effectivity of
with forfeiture of all leave and retirement benefits and with the Family Code, except cases commenced prior to March 15,
prejudice to reappointment in any branch, instrumentality, or
agency of the government, including government-owned and 2003. The nullity and annulment of a marriage cannot be
controlled corporations. This decision is immediately declared in a judgment on the pleadings, summary judgment,
executory. or confession of judgment.
SO ORDERED.
We pronounce these principles as We review
JUAN DE DIOS CARLOS, G.R. No. 179922 [1]
on certiorari the Decision of the Court of Appeals (CA) which
Petitioner,
Present: reversed and set aside the summary judgment[2] of the
Regional Trial Court (RTC) in an action for declaration of
- versus - YNARES-SANTIAGO, J.,
Chairperson, nullity of marriage, status of a child, recovery of property,
AUSTRIA-MARTINEZ, reconveyance, sum of money, and damages.
FELICIDAD SANDOVAL, also CHICO-NAZARIO,
known as FELICIDAD S. VDA. NACHURA, and
DE CARLOS or FELICIDAD REYES, JJ. The Facts
SANDOVAL CARLOS or
FELICIDAD SANDOVAL VDA.
DE CARLOS, and TEOFILO Promulgated: The events that led to the institution of the instant
CARLOS II, suit are unveiled as follows:

10

Spouses Felix B. Carlos and Felipa Elemia died
intestate. They left six parcels of land to their compulsory
heirs, Teofilo Carlos and petitioner Juan De Dios Carlos. The
lots are particularly described as follows:
Parcel No. 1
Metro Manila, Island of Luzon. Bounded on the
NE, points 2 to 4 by Lot 155, Muntinlupa Estate;
on the SE, point 4 to 5 by Lot 159-B-5; on the
S, points 5 to 1 by Lot 159-B-3; on the W,
points 1 to 2 by Lot 159-B-1 (Road widening) all
of the subd. plan, containing an area
of ONE HUNDRED THIRTY (130) SQ.
METERS, more or less.

Lot No. 162 of the MUNTINLUPA ESTATE

PARCEL No. 4
SUBDIVISION, Case No. 6137 of the Court of
Land Registration.
A parcel of land (Lot 28-C of the subd. plan
Psd-13-007090, being a portion of Lot 28,
Exemption from the provisions of Article 567 of
Muntinlupa Estate, L.R.C. Rec. No. 6137),
the Civil Code is specifically reserved.
situated in the Bo. of Alabang, Mun. of
Muntinlupa, Metro Manila. Bounded on the NE,
Area: 1 hectare, 06 ares, 07 centares.
along lines 1-2 by Lot 27, Muntinlupa Estate; on
the East & SE, along lines 2 to 6 by
Mangangata River; and on the West., along line
Parcel No. 2
6-1, by Lot 28-B of the subd. plan x x x
containing an area
A parcel of land (Lot No. 159-B), being a portion
of ONE THUSAND AND SEVENTY-SIX (1,076)
of Lot 159, situated in the Bo. of
SQUARE METERS.
Alabang, Municipality of Muntinlupa, Province o
f Rizal, x x x containing an area of Thirteen
Thousand Four Hundred Forty One (13,441)
PARCEL No. 5
square meters.
PARCELA DE TERRENO No. 50, Manzana No.
18, de la subd. de Solocan. Linda por el NW,
Parcel No. 3
con la parcela 49; por el NE, con la parcela 36;
por el SE, con la parcela 51; y por el SW, con la
A parcel of land (Lot 159-B-2 of the subd. plan
calle Dos Castillas. Partiendo de un punto
[LRC] Psd-325903, approved as a non-subd.
marcado 1 en el plano, el cual se halla a S.
project), being a portion of Lot 159-B [LRC]
gds. 01'W, 72.50 mts. Desde el punto 1 de esta
Psd- Alabang, Mun. of Muntinlupa,

11
 manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que
forman las Calles Laong Laan y Dos. Castillas,
continiendo un extension superficial de
CIENTO CINCUENTA (150) METROS
CUADRADOS.
PARCEL No. 6
PARCELA DE TERRENO No. 51, Manzana No.
18, de la subd. De Solocon. Linda por el NW,
con la parcela 50; por el NE, con la parcela 37;
por el SE, con la parcela 52; por el SW, con la
Calle Dos Castillas. Partiendo de un punto
Marcado 1 en el plano, el cual se halla at S. 43
gds. 01'E, 82.50 mts. Desde el punto 1 de esta
manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que
forman las Calles Laong Laan y Dos. Castillas,
continiendo una extension superficial de
CIENTO CINCUENTA (150) METROS
CUADRADOS. [3]
During the lifetime of Felix Carlos, he agreed to
transfer his estate to Teofilo. The agreement was made in
order to avoid the payment of inheritance taxes. Teofilo, in
turn, undertook to deliver and turn over the share of the other
legal heir, petitioner Juan De Dios Carlos.
Eventually, the first three (3) parcels of land were
transferred and registered in the name of Teofilo. These three
(3) lots are now covered by Transfer Certificate of Title (TCT)
No. 234824 issued by the Registry of Deeds of Makati
City; TCT No. 139061 issued by the Registry of Deeds
of Makati City; and TCT No. 139058 issued by the Registry of
Deeds of Makati City.
Parcel No. 4 was registered in the name of
petitioner. The lot is now covered by TCT No. 160401 issued
by the Registry of Deeds of Makati City.
On May 13, 1992, Teofilo died intestate. He was
survived by respondents Felicidad and their son, Teofilo
Carlos II (Teofilo II). Upon Teofilos death, Parcel Nos. 5 & 6
were registered in the name of respondent Felicidad and co-
respondent, Teofilo II. The said two (2) parcels of land are
covered by TCT Nos. 219877 and 210878, respectively,
issued by the Registry of Deeds of Manila.
In 1994, petitioner instituted a suit against respondents
before the RTC in Muntinlupa City, docketed as Civil Case No.
94-1964. In the said case, the parties submitted and caused
the approval of a partial compromise agreement. Under the
compromise, the parties acknowledged their respective shares
in the proceeds from the sale of a portion of the first parcel of
land. This includes the remaining 6,691-square-meter portion
of said land.
12

On September 17, 1994, the parties executed a deed
of extrajudicial partition, dividing the remaining land of the first
parcel between them.
Meanwhile, in a separate case entitled Rillo v.
[4]
Carlos, 2,331 square meters of the second parcel of land
were adjudicated in favor of plaintiffs Rillo. The remaining
10,000-square meter portion was later divided between
petitioner and respondents.
The division was incorporated in a supplemental
compromise agreement executed on August 17, 1994, with
respect to Civil Case No. 94-1964. The parties submitted the
supplemental compromise agreement, which was approved
accordingly.
Petitioner and respondents entered into two more
contracts in August 1994. Under the contracts, the parties
equally divided between them the third and fourth parcels of
land.
In August 1995, petitioner commenced an action,
docketed as Civil Case No. 95-135, against respondents
before the court a quo with the following causes of action: (a)
declaration of nullity of marriage; (b) status of a child; (c)
recovery of property; (d) reconveyance; and (e) sum of money
and damages. The complaint was raffled to Branch 256 of
the RTC in Muntinlupa.
In his complaint, petitioner asserted that the marriage
between his late brother Teofilo and respondent Felicidad was
a nullity in view of the absence of the required marriage
license. He likewise maintained that his deceased brother was
neither the natural nor the adoptive father of respondent
Teofilo Carlos II.
Petitioner likewise sought the avoidance of the
contracts he entered into with respondent Felicidad with
respect to the subject real properties. He also prayed for the
cancellation of the certificates of title issued in the name of
respondents. He argued that the properties covered by such
certificates of title, including the sums received by respondents
as proceeds, should be reconveyed to him.
Finally, petitioner claimed indemnification as and by
way of moral and exemplary damages, attorneys fees,
litigation expenses, and costs of suit.
On October 16, 1995, respondents submitted
their answer. They denied the material averments of
petitioners complaint. Respondents contended that the dearth
of details regarding the requisite marriage license did not
13
invalidate Felicidads marriage to Teofilo. Respondents
declared that Teofilo II was the illegitimate child of the
deceased TeofiloCarlos with another woman.
On the grounds of lack of cause of action and lack of
jurisdiction over the subject matter, respondents prayed for the
dismissal of the case before the trial court. They also asked
that their counterclaims for moral and exemplary damages, as
well as attorneys fees, be granted.
But before the parties could even proceed to pre-trial,
respondents moved for summary judgment. Attached to the
motion was the affidavit of the justice of the peace who
solemnized the marriage. Respondents also submitted the
Certificate of Live Birth of respondent Teofilo II. In the
certificate, the late Teofilo Carlos and respondent Felicidad
were designated as parents.
On January 5, 1996, petitioner opposed the motion for
summary judgment on the ground of irregularity of the contract
evidencing the marriage. In the same breath, petitioner lodged
his own motion for summary judgment. Petitioner presented a
certification from the Local Civil Registrar of Calumpit,
Bulacan, certifying that there is no record of birth of
respondent Teofilo II.
Petitioner also incorporated in the counter-motion for
summary judgment the testimony of respondent Felicidad in
another case. Said testimony was made in Civil Case No. 89-
2384, entitled Carlos v. Gorospe, before the RTC Branch 255,
Las Pias. In her testimony, respondent Felicidad narrated that
co-respondent Teofilo II is her child with Teofilo.[5]
Subsequently, the Office of the City Prosecutor of
Muntinlupa submitted to the trial court its report and
manifestation, discounting the possibility of collusion between
the parties.
RTC and CA Dispositions
On April 8, 1996, the RTC rendered judgment,
disposing as follows:
WHEREFORE, premises considered,
defendants (respondents) Motion for Summary
Judgment is hereby denied. Plaintiffs
(petitioners) Counter-Motion for Summary
Judgment is hereby granted and summary
judgment is hereby rendered in favor of plaintiff
as follows:
1. Declaring the marriage between
defendant Felicidad Sandoval and Teofilo
Carlos solemnized at Silang, Cavite on May 14,
1962, evidenced by the Marriage Certificate
submitted inthis case, null and void ab initio for
lack of the requisite marriage license;
14

2. Declaring that the defendant minor,
Teofilo S. Carlos II, is not the natural,
illegitimate, or legally adopted child of the late
Teofilo E. Carlos;
3. Ordering defendant Sandoval to pay
and restitute to plaintiff the sum
of P18,924,800.00 together with the interest
thereon at the legal rate from date of filing of
the instant complaint until fully paid;
4. Declaring plaintiff as the sole and
exclusive owner of the parcel of land, less the
portion adjudicated to plaintiffs in Civil Case No.
11975, covered by TCT No. 139061 of the
Register of Deeds of Makati City, and ordering
said Register of Deeds to cancel said title and
to issue another title in the sole name of plaintiff
herein;
5. Declaring the Contract, Annex K of
complaint, between plaintiff and defendant
Sandoval null and void, and ordering the
Register of Deeds of Makati City to
cancel TCT No. 139058 in the name of Teofilo
Carlos, and to issue another title in the sole
name of plaintiff herein;
6. Declaring the Contract, Annex M of
the complaint, between plaintiff and defendant
Sandoval null and void;
7. Ordering the cancellation of TCT No.
210877 in the names of defendant Sandoval
and defendant minor Teofilo S. Carlos II and
ordering the Register of Deeds of Manila to
issue another title in the exclusive name of
plaintiff herein;
8. Ordering the cancellation of TCT No.
210878 in the name of defendant Sandoval and
defendant Minor Teofilo S. Carlos II and
ordering the Register of Deeds of Manila to
issue another title in the sole name of plaintiff
herein.
Let this case be set for hearing for the
reception of plaintiffs evidence on his claim for
moral damages, exemplary damages, attorneys
fees, appearance fees, and litigation expenses
on June 7, 1996 at 1:30 o'clock in the
afternoon.
SO ORDERED.[6]
Dissatisfied, respondents appealed to the CA. In the
appeal, respondents argued, inter alia, that the trial court acted
without or in excess of jurisdiction in rendering summary
judgment annulling the marriage of Teofilo, Sr. and Felicidad
and in declaring Teofilo II as not an illegitimate child of Teofilo,
Sr.
On October 15, 2002, the CA reversed and set aside
the RTC ruling, disposing as follows:
WHEREFORE, the summary judgment
appealed from is REVERSED and SET
ASIDE and in lieu thereof, a new
15
one is entered REMANDING the case to the
court of origin for further proceedings.
SO ORDERED.[7]
The CA opined:
We find the rendition of the herein
appealed summary judgment by the court a
quo contrary to law and public policy as
ensconced in the aforesaid safeguards. The
fact that it was appellants who first sought
summary judgment from the trial court, did not
justify the grant thereof in favor of appellee. Not
being an action to recover upon a claim or to
obtain a declaratory relief, the rule on summary
judgment apply (sic) to an action to annul a
marriage. The mere fact that no genuine issue
was presented and the desire to expedite the
disposition of the case cannot justify a
misinterpretation of the rule. The first paragraph
of Article 88 and 101 of the Civil
Code expressly prohibit the rendition of decree
of annulment of a marriage upon a stipulation of
facts or a confession of judgment. Yet, the
affidavits annexed to the petition for summary
judgment practically amount to these methods
explicitly proscribed by the law.
We are not unmindful of appellees
argument that the foregoing safeguards have
traditionally been applied to prevent collusion of
spouses in the matter of dissolution of
marriages and that the death of Teofilo Carlos
on May 13, 1992 had effectively dissolved the
marriage herein impugned. The fact, however,
that appellees own brother and appellant
Felicidad Sandoval lived together as husband
and wife for thirty years and that the annulment
of their marriage is the very means by which the
latter is sought to be deprived of her
participation in the estate left by the former call
for a closer and more thorough inquiry into the
circumstances surrounding the case. Rather
that the summary nature by which the court a
quo resolved the issues in the case, the rule is
to the effect that the material facts alleged in
the complaint for annulment of marriage should
always be proved. Section 1, Rule 19 of
the Revised Rules of Court provides:
Section 1. Judgment on
the pleadings. Where an answer
fails to tender an issue, or
otherwise admits the material
allegations of the adverse party's
pleading, the court may, on
motion of that party, direct
judgment on such pleading.
But in actions for annulment of
marriage or for legal separation,
the material facts alleged in the
complaint shall always be
proved. (Underscoring supplied)
Moreover, even if We were to sustain
the applicability of the rules on summary
judgment to the case at bench, Our perusal of
the record shows that the finding of the court a
quo for appellee would still not be
warranted. While it may be readily conceded
16
that a valid marriage license is among the
formal requisites of marriage, the absence of
which renders the marriage void ab
initio pursuant to Article 80(3) in relation to
Article 58 of the Civil Code the failure to reflect
the serial number of the marriage license on the
marriage contract evidencing the marriage
between Teofilo Carlos and appellant Felicidad
Sandoval, although irregular, is not as fatal as
appellee represents it to be. Aside from the
dearth of evidence to the contrary, appellant
Felicidad Sandovals affirmation of the existence
of said marriage license is corroborated by the
following statement in the affidavit executed by
Godofredo Fojas, then Justice of the Peace
who officiated the impugned marriage, to wit:
That as far as I could
remember, there was a marriage
license issued at Silang, Cavite
on May 14, 1962 as basis of the
said marriage contract executed
by Teofilo Carlos and Felicidad
Sandoval, but the number of said
marriage license was
inadvertently not placed in the
marriage contract for the reason
that it was the Office Clerk who
filled up the blanks in the
Marriage Contract who in turn,
may have overlooked the same.
Rather than the inferences merely
drawn by the trial court, We are of the
considered view that the veracity and credibility
of the foregoing statement as well as the
motivations underlying the same should be
properly threshed out in a trial of the case on
the merits.
If the non-presentation of the marriage
contract the primary evidence of marriage is not
proof that a marriage did not take place, neither
should appellants non-presentation of the
subject marriage license be taken as proof that
the same was not procured. The burden of
proof to show the nullity of the marriage, it must
be emphasized, rests upon the plaintiff and any
doubt should be resolved in favor of the validity
of the marriage.
Considering that the burden of proof
also rests on the party who disputes the
legitimacy of a particular party, the same may
be said of the trial courts rejection of the
relationship between appellant Teofilo Carlos II
and his putative father on the basis of the
inconsistencies in appellant Felicidad
Sandovals statements. Although it had
effectively disavowed appellants prior claims
regarding the legitimacy of appellant Teofilo
Carlos II, the averment in the answer that he is
the illegitimate son of appellees brother, to Our
mind, did not altogether foreclose the possibility
of the said appellants illegitimate filiation, his
right to prove the same or, for that matter, his
entitlement to inheritance rights as such.
Without trial on the merits having been
conducted in the case, We find appellees bare
allegation that appellant Teofilo Carlos II was
merely purchased from an indigent couple by
17
 appellant Felicidad Sandoval, on the whole,
insufficient to support what could well be a
minors total forfeiture of the rights arising from
his putative filiation. Inconsistent though it may
be to her previous statements, appellant
Felicidad Sandovals declaration regarding the
illegitimate filiation of Teofilo Carlos II is more
credible when considered in the light of the fact
that, during the last eight years of his life,
Teofilo Carlos allowed said appellant the use of
his name and the shelter of his household. The
least that the trial court could have done in the
premises was to conduct a trial on the merits in
order to be able to thoroughly resolve the
issues pertaining to the filiation of appellant
Teofilo Carlos II.[8]
On November 22, 2006, petitioner moved
reconsideration and for the inhibition of the ponente, Justice
Rebecca De Guia-Salvador. The CA denied the twin motions.
Issues
In this petition under Rule 45, petitioner hoists the
following issues:
1. That, in reversing and setting aside
the Summary Judgment under the Decision,
Annex A hereof, and in denying petitioners
Motion for reconsideration under the
Resolution, Annex F hereof, with respect to the
nullity of the impugned marriage, petitioner
respectfully submits that the Court of Appeals
committed a grave reversible error in applying
Articles 88 and 101 of the Civil Code, despite
the fact that the circumstances of this case are
different from that contemplated and intended
by law, or has otherwise decided a question of
substance not theretofore decided by the
Supreme Court, or has decided it in a manner
probably not in accord with law or with the
applicable decisions of this Honorable Court;
2. That in setting aside and reversing the
Summary Judgment and, in lieu thereof,
entering another remanding the case to the
court of origin for further proceedings, petitioner
most respectfully submits that the Court of
Appeals committed a serious reversible error in
applying Section 1, Rule 19 (now Section 1,
for Rule 34) of the Rules of Court providing for
judgment on the pleadings, instead of Rule 35
governing Summary Judgments;
3. That in reversing and setting aside
the Summary Judgment and, in lieu thereof,
entering another remanding the case to the
court of origin for further proceedings, petitioner
most respectfully submits that the Court of
Appeals committed grave abuse of discretion,
disregarded judicial admissions, made findings
on ground of speculations, surmises, and
conjectures, or otherwise committed
misapplications of the laws and
misapprehension of the facts.[9] (Underscoring
supplied)
18
Essentially, the Court is tasked to resolve whether a marriage
may be declared void ab initio through a judgment on the
pleadings or a summary judgment and without the benefit of a
trial. But there are other procedural issues, including the
capacity of one who is not a spouse in bringing the action for
nullity of marriage.
Our Ruling
I. The grounds for declaration of absolute nullity of
marriage must be proved. Neither judgment on the
pleadings nor summary judgment is allowed. So is
confession of judgment disallowed.
Petitioner faults the CA in applying Section 1, Rule
[10]
19 of the Revised Rules of Court, which provides:
SECTION 1. Judgment on the
pleadings. Where an answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse partys pleading, the
court may, on motion of that party, direct
judgment on such pleading. But in actions for
annulment of marriage or for legal separation,
the material facts alleged in the complaint shall
always be proved.
He argues that the CA should have applied Rule 35 of the
Rules of Court governing summary judgment, instead of the
rule on judgment on the pleadings.
Petitioner is misguided. The CA did not limit its finding solely
within the provisions of the Rule on judgment on the
pleadings. In disagreeing with the trial court, the CA likewise
considered the provisions on summary judgments, to wit:
Moreover, even if We are to sustain the
applicability of the rules on summary judgment
to the case at bench, Our perusal of the record
shows that the finding of the court a quo for
appellee would still not be warranted. x x x[11]
But whether it is based on judgment on the pleadings or
summary judgment, the CA was correct in reversing the
summary judgment rendered by the trial court. Both the rules
on judgment on the pleadings and summary judgments have
no place in cases of declaration of absolute nullity of marriage
and even in annulment of marriage.
With the advent of A.M. No. 02-11-10-SC, known as Rule on
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, the question on the
application of summary judgments or even judgment on the
pleadings in cases of nullity or annulment of marriage has
been stamped with clarity. The significant principle laid down
by the said Rule, which took effect on March 15, 2003[12] is
found in Section 17, viz.:
SEC. 17. Trial. (1) The presiding judge
shall personally conduct the trial of the case. No
delegation of evidence to a commissioner shall
19
 be allowed except as to matters involving
property relations of the spouses.
(2) The grounds for declaration of
absolute nullity or annulment of marriage must
be proved. No judgment on the pleadings,
summary judgment, or confession of
judgment shall be allowed. (Underscoring
supplied)
Likewise instructive is the Courts pronouncement in Republic
v. Sandiganbayan.[13] In that case, We excluded actions for
nullity or annulment of marriage from the application of
summary judgments.
Prescinding from the foregoing
discussion, save for annulment of marriage or
declaration of its nullity or for legal separation,
summary judgment is applicable to all kinds of
actions.[14] (Underscoring supplied)
By issuing said summary judgment, the trial court has
divested the State of its lawful right and duty to intervene in the
case. The participation of the State is not terminated by the
declaration of the public prosecutor that no collusion exists
between the parties. The State should have been given the
opportunity to present controverting evidence before the
judgment was rendered.[15]
Both the Civil Code and the Family Code ordain that the court
should order the prosecuting attorney to appear and intervene
for the State. It is at this stage when the public prosecutor
sees to it that there is no suppression of
evidence. Concomitantly, even if there is no suppression of
evidence, the public prosecutor has to make sure that the
evidence to be presented or laid down before the court is not
fabricated.
To further bolster its role towards the preservation of marriage,
the Rule on Declaration of Absolute Nullity of Void Marriages
reiterates the duty of the public prosecutor, viz.:
SEC. 13. Effect of failure to appear at
the pre-trial. (a) x x x
(b) x x x If there is no collusion, the court shall
require the public prosecutor to intervene for
the State during the trial on the merits to
prevent suppression or fabrication of
evidence.(Underscoring supplied)
Truly, only the active participation of the public prosecutor or
the Solicitor General will ensure that the interest of the State is
represented and protected in proceedings for declaration of
nullity of marriages by preventing the fabrication or
suppression of evidence.[16]
II. A petition for declaration of absolute nullity of
void marriage may be filed solely by the husband or
wife. Exceptions: (1) Nullity of marriage cases
commenced before the effectivity of A.M. No. 02-11-10-SC;
and (2) Marriages celebrated during the effectivity of the
Civil Code.
20
Under the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, the petition
for declaration of absolute nullity of marriage may not be filed
by any party outside of the marriage. The Rule made it
exclusively a right of the spouses by stating:
SEC. 2. Petition for declaration of
absolute nullity of void marriages.
(a) Who may file. A petition for
declaration of absolute nullity of void marriage
may be filed solely by the husband or the
wife. (Underscoring supplied)
Section 2(a) of the Rule makes it the sole right of the
husband or the wife to file a petition for declaration of absolute
nullity of void marriage. The rationale of the Rule is
enlightening, viz.:
Only an aggrieved or injured spouse
may file a petition for annulment of voidable
marriages or declaration of absolute nullity of
void marriages. Such petition cannot be filed by
compulsory or intestate heirs of the spouses or
by the State. The Committee is of the belief that
they do not have a legal right to file the
petition. Compulsory or intestate heirs have
only inchoate rights prior to the death of their
predecessor, and, hence, can only question the
validity of the marriage of the spouses upon the
death of a spouse in a proceeding for the
settlement of the estate of the deceased
spouse filed in the regular courts. On the other
hand, the concern of the State is to preserve
marriage and not to seek its
dissolution.[17] (Underscoring supplied)
The new Rule recognizes that the husband and the
wife are the sole architects of a healthy, loving, peaceful
marriage. They are the only ones who can decide when and
how to build the foundations of marriage. The spouses alone
are the engineers of their marital life. They are simultaneously
the directors and actors of their matrimonial true-to-life
play. Hence, they alone can and should decide when to take a
cut, but only in accordance with the grounds allowed by law.
The innovation incorporated in A.M. No. 02-11-10-SC
sets forth a demarcation line between marriages covered by
the Family Code and those solemnized under the Civil Code.
The Rule extends only to marriages entered into during the
effectivity of the Family Code which took effect on August 3,
1988.[18]
The advent of the Rule on Declaration of Absolute
Nullity of Void Marriages marks
the beginning of the end of the right of the heirs of the
deceased spouse to bring a nullity of marriage case against
the surviving spouse. But the Rule never intended to deprive
the compulsory or intestate heirs of their successional rights.
While A.M. No. 02-11-10-SC declares that a petition for
declaration of absolute nullity of marriage may be filed solely
by the husband or the wife, it does not mean that the
compulsory or intestate heirs are without any recourse under
the law. They can still protect their successional right, for, as
21
stated in the Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute
Nullity of Void Marriages, compulsory or intestate heirs can still
question the validity of the marriage of the spouses, not in a
proceeding for declaration of nullity but upon the death of a
spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.[19]
It is emphasized, however, that the Rule does not
apply to cases already commenced before March 15,
2003 although the marriage involved is within the coverage of
the Family Code. This is so, as the new Rule which became
effective on March 15, 2003[20] is prospective in its
application. Thus, the Court held in Enrico v. Heirs of Sps.
Medinaceli,[21] viz.:
As has been emphasized, A.M. No. 02-
11-10-SC covers marriages under the Family
Code of the Philippines, and is prospective in its
application.[22] (Underscoring supplied)
Petitioner commenced the nullity of marriage case
against respondent Felicidad in 1995. The marriage in
controversy was celebrated on May 14, 1962. Which law
would govern depends upon when the marriage took place.[23]
The marriage having been solemnized
prior to the effectivity of the Family Code, the applicable
law is the Civil Code which was the law in effect at the time of
its celebration.[24] But the Civil Code is silent as to who may
bring an action to declare the marriage
void. Does this mean that any person can bring an action for
the declaration of nullity of marriage?
We respond in the negative. The absence of a
provision in the Civil Code cannot be construed as a license
for any person to institute a nullity of marriage case. Such
person must appear to be the party who stands to be benefited
or injured by the judgment in the suit, or the party entitled to
the avails of the suit.[25] Elsewise stated, plaintiff must be the
real party-in-interest. For it is basic in procedural law that
every action must be prosecuted and defended in the name of
the real party-in-interest.[26]
Interest within the meaning of the rule means material
interest or an interest in issue to be affected by the decree or
judgment of the case, as distinguished from mere curiosity
about the question involved or a mere incidental interest. One
having no material interest to protect cannot invoke the
jurisdiction of the court as plaintiff in an action. When plaintiff is
not the real party-in-interest, the case is dismissible on the
ground of lack of cause of action.[27]
Illuminating on this point is Amor-Catalan v. Court of
Appeals,[28] where the Court held:
True, under the New Civil Code which is
the law in force at the time the respondents
were married, or even in the Family Code, there
is no specific provision as to who can file a
petition to declare the nullity of marriage;
however, only a party who can
22
 demonstrate proper interest can file the
same. A petition to declare the nullity of
marriage, like any other actions,must be
prosecuted or defended in the name of the real
party-in-interest and must be based on a cause
of action. Thus, in Nial v. Badayog, the Court
held that the children have the personality to file
the petition to declare the nullity of marriage of
their deceased father to their stepmother as it
affects their successional rights.
xxxx
In fine, petitioners personality to file the
petition to declare the nullity of marriage cannot
be ascertained because of the absence of the
divorce decree and the foreign law allowing
it.Hence, a remand of the case to the trial court
for reception of additional evidence is
necessary to determine whether
respondent Orlando was granted a divorce
decree and whether the foreign law which
granted the same allows or restricts
remarriage. If it is proved that a valid divorce
decree was obtained and the same did not
allow respondent Orlandos remarriage, then the
trial court should declare respondents marriage
as bigamous and void ab initio but reduced the
amount of moral damages from P300,000.00
to P50,000.00 and exemplary damages
from P200,000.00 to P25,000.00. On the
contrary, if it is proved that a valid divorce
decree was obtained which allowed Orlando to
remarry, then the trial court must dismiss the
instant petition to declare nullity of marriage on
the ground that petitioner Felicitas Amor-
Catalan lacks legal personality to file the
same.[29] (Underscoring supplied)
III. The case must be remanded to determine
whether or not petitioner is a real-party-in-interest to seek
the declaration of nullity of the marriage in controversy.
In the case at bench, the records reveal that when Teofilo died
intestate in 1992, his only surviving compulsory heirs are
respondent Felicidad and their son, Teofilo II. Under the law
on succession, successional rights are transmitted from the
moment of death of the decedent and the compulsory heirs
are called to succeed by operation of law.[30]
Upon Teofilos death in 1992, all his property, rights and
obligations to the extent of the value of the inheritance are
transmitted to his compulsory heirs. These heirs were
respondents Felicidad and Teofilo II, as the surviving spouse
and child, respectively.
Article 887 of the Civil Code outlined who are compulsory
heirs, to wit:
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate
parents and ascendants, with respect to
their legitimate children and descendants;
23
 (3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in
Article 287 of the Civil Code.[31]
Clearly, a brother is not among those considered as
compulsory heirs. But although a collateral relative, such as a
brother, does not fall within the ambit of a compulsory heir, he
still has a right to succeed to the estate. Articles 1001 and
1003 of the New Civil Code provide:
ART. 1001. Should brothers and
sisters or their children survive with the widow
or widower, the latter shall be entitled to one-
half of the inheritance and the brothers and
sisters or their children to the other half.
ART. 1003. If there are no descendants,
ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance
with the following articles. (Underscoring
supplied)
Indeed, only the presence of descendants, ascendants
or illegitimate children excludes collateral relatives from
succeeding to the estate of the decedent. The presence of
legitimate, illegitimate, or adopted child or children of the
deceased precludes succession by collateral
[32]
relatives. Conversely, if there are no descendants,
ascendants, illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of the
decedent.[33]
If respondent Teofilo II is declared and finally proven
not to be the legitimate, illegitimate, or adopted son of Teofilo,
petitioner would then have a personality to seek the nullity of
marriage of his deceased brother
with respondent Felicidad. This is so, considering that
collateral relatives, like a brother and sister,
acquire successional right over the estate if the decedent dies
without issue and without ascendants in the direct line.
The records reveal that Teofilo was predeceased by
his parents. He had no other siblings but petitioner. Thus, if
Teofilo II is finally found and proven to be not a
legitimate, illegitimate, or adopted son of Teofilo, petitioner
succeeds to the other half of the estate of his brother, the first
half being allotted to the widow pursuant to Article
1001 of the New Civil Code. This makes petitioner a real-
party-interest to seek the declaration of absolute nullity
of marriage of his deceased brother with respondent
Felicidad. If the subject marriage is found to be void ab initio,
petitioner succeeds to the entire estate.
It bears stressing, however, that the legal personality
of petitioner to bring the nullity of marriage case is contingent
upon the final declaration that Teofilo II is not a legitimate,
adopted, or illegitimate son of Teofilo.
If Teofilo II is proven to be a legitimate, illegitimate, or
legally adopted son of Teofilo, then petitioner has no legal
24
personality to ask for the nullity of marriage of his deceased
brother and respondent Felicidad. This is based on the ground
that he has no successional right to be protected, hence, does
not have proper interest. For although the marriage in
controversy may be found to be void from the beginning, still,
petitioner would not inherit. This is because the presence of
descendant, illegitimate,[34] or even an adopted
[35]
child excludes the collateral relatives from inheriting from
the decedent.
Thus, the Court finds that a remand of the case for trial
on the merits to determine the validity or nullity of the subject
marriage is called for. But the RTC is strictly instructed to
dismiss the nullity of marriage case for lack of cause of
action if it is proven by evidence that Teofilo II is a
legitimate, illegitimate, or legally adopted son of Teofilo
Carlos, the deceased brother of petitioner.
IV. Remand of the case regarding the question of
filiation of respondent Teofilo II is proper and in
order. There is a need to vacate the disposition of the trial
court as to the other causes of action before it.
Petitioner did not assign as error or interpose as issue the
ruling of the CA on the remand of the case concerning the
filiation of respondent Teofilo II. This notwithstanding, We
should not leave the matter hanging in limbo.
This Court has the authority to review matters not
specifically raised or assigned as error by the parties, if their
consideration is necessary in arriving at a just resolution of the
case.[36]
We agree with the CA that without trial on the merits having
been conducted in the case, petitioners bare allegation that
respondent Teofilo II was adopted from an indigent couple is
insufficient to support a total forfeiture of rights arising from his
putative filiation. However, We are not inclined to support its
pronouncement that the declaration of respondent Felicidad as
to the illegitimate filiation of respondent Teofilo II is more
credible. For the guidance of the appellate court, such
declaration of respondent Felicidad should not be afforded
credence. We remind the CA of the guaranty provided by
Article 167 of the Family Code to protect the status of
legitimacy of a child, to wit:
ARTICLE 167. The child shall be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an
adulteress. (Underscoring supplied)
It is stressed that Felicidads declaration against the legitimate
status of Teofilo II is the very act that is proscribed by Article
167 of the Family Code. The language of the law is
unmistakable. An assertion by the mother against the
legitimacy of her child cannot affect the legitimacy of a child
born or conceived within a valid marriage.[37]
Finally, the disposition of the trial court in favor of petitioner for
causes of action concerning reconveyance, recovery of
25
property, and sum of money must be vacated. This has to be ANITA CHENG, G.R. No. 174238
so, as said disposition was made on the basis of its finding Petitioner,
Present:
that the marriage in controversy was null and void ab initio.
WHEREFORE, the appealed Decision is MODIFIED as YNARES-SANTIAGO,
follows: Chairperson,
- versus - CHICO-NAZARIO,
1. The case is REMANDED to the Regional Trial VELASCO, JR.,
NACHURA, and
Court in regard to the action on the status and
PERALTA, JJ.
filiation of respondent Teofilo Carlos II and the
validity or nullity of marriage between SPOUSES WILLIAM SY and Promulgated:
respondent Felicidad Sandoval and the late TESSIE SY,
Teofilo Carlos; Respondents. July 7, 2009

x------------------------------------------------------------------------------------x
2. If Teofilo Carlos II is proven to be the legitimate, or
illegitimate, or legally adopted son of the late
Teofilo Carlos, the RTC is
strictly INSTRUCTED to DISMISS the action DECISION
for nullity of marriage for lack of cause of action;
NACHURA, J.:
3. The disposition of the RTC in Nos. 1 to 8 of
the fallo of its decision is VACATED AND SET
ASIDE.

The Regional Trial Court is ORDERED to conduct trial

on the merits with dispatch and to give this case priority in its
calendar. This is a petition[1] for review on certiorari under Rule 45 of the
Rules of Court of the Order dated January 2, 2006[2] of the
No costs. Regional Trial Court (RTC), Branch 18, Manila in Civil Case
No. 05-112452 entitled Anita Cheng v. Spouses William Sy
SO ORDERED.
and Tessie Sy.

26
 The antecedents are as follows
Petitioner Anita Cheng filed two (2) estafa cases before the
RTC, Branch 7, Manila against respondent spouses William
and Tessie Sy (Criminal Case No. 98-969952 against Tessie
Sy and Criminal Case No. 98-969953 against William Sy) for
issuing to her Philippine Bank of Commerce (PBC) Check
Nos. 171762 and 71860 for P300,000.00 each, in payment of
their loan, both of which were dishonored upon presentment
for having been drawn against a closed account.
Meanwhile, based on the same facts, petitioner, on January
20, 1999, filed against respondents two (2) cases for violation
of Batas Pambansa Bilang (BP Blg.) 22 before the
Metropolitan Trial Court (MeTC), Branch 25, Manila (Criminal
Case Nos. 341458-59).
On March 16, 2004, the RTC, Branch 7, Manila dismissed the
estafa cases for failure of the prosecution to prove the
elements of the crime. The Order dismissing Criminal Case
No. 98-969952 contained no declaration as to the civil liability
of Tessie Sy.[3] On the other hand, the Order in Criminal Case
No. 98-969953 contained a statement, Hence, if there is any
liability of the accused, the same is purely civil, not criminal in
nature.[4]
Later, the MeTC, Branch 25, Manila, dismissed, on demurrer,
the BP Blg. 22 cases in its Order[5] dated February 7, 2005 on
account of the failure of petitioner to identify the accused
respondents in open court. The Order also did not make any
pronouncement as to the civil liability of accused respondents.
On April 26, 2005, petitioner lodged against respondents
before the RTC, Branch 18, Manila, a complaint[6] for collection
of a sum of money with damages (Civil Case No. 05-112452)
based on the same loaned amount of P600,000.00 covered by
the two PBC checks previously subject of the estafa and BP
Blg. 22 cases.
In the assailed Order[7] dated January 2, 2006, the RTC,
Branch 18, Manila, dismissed the complaint for lack of
jurisdiction, ratiocinating that the civil action to collect the
amount of P600,000.00 with damages was already impliedly
instituted in the BP Blg. 22 cases in light of Section 1,
paragraph (b) of Rule 111 of the Revised Rules of Court.
Petitioner filed a motion for reconsideration[8] which the court
denied in its Order[9] dated June 5, 2006. Hence, this petition,
raising the sole legal issue
27
 Whether or not Section 1 of Rule 111 of the
2000 Rules of Criminal Procedure and
Supreme Court Circular No. 57-97 on the
Rules and Guidelines in the filing and
prosecution of criminal cases under BP Blg. 22
are applicable to the present case where the
nature of the order dismissing the cases for
bouncing checks against the respondents was
[based] on the failure of the prosecution to
identify both the accused (respondents
herein)?[10]
Essentially, petitioner argues that since the BP Blg. 22 cases
were filed on January 20, 1999, the 2000 Revised Rules on
Criminal Procedure promulgated on December 1, 2000 should
not apply, as it must be given only prospective
application. She further contends that that her case falls within
the following exceptions to the rule that the civil action
correspondent to the criminal action is deemed instituted with
the latter
(1) additional evidence as to the identities of the
accused is necessary for the resolution
of the civil aspect of the case;
(2) a separate complaint would be just as
efficacious as or even more expedient
than a timely remand to the trial court
where the criminal action was decided
for further hearings on the civil aspect of
the case;
(3) the trial court failed to make any
pronouncement as to the civil liability of
the accused amounting to a reservation
of the right to have the civil liability
litigated in a separate action;
(4) the trial court did not declare that the facts
from which the civil liability might arise
did not exist;
(5) the civil complaint is based on an
obligation ex-contractu and not ex-
delicto pursuant to Article 31[11] of the
Civil Code; and
(6) the claim for civil liability for damages may
be had under Article 29[12] of the Civil
Code.
Petitioner also points out that she was not assisted by
any private prosecutor in the BP Blg. 22 proceedings.
The rule is that upon the filing of the estafa and BP Blg. 22
cases against respondents, where the petitioner has not made
any waiver, express reservation to litigate separately, or has
not instituted the corresponding civil action to collect the
amount of P600,000.00 and damages prior to the criminal
action, the civil action is deemed instituted with the criminal
cases.[13]
28
 This rule applies especially with the advent of the 2000
Revised Rules on Criminal Procedure. Thus, during the
pendency of both the estafa and the BP Blg. 22 cases, the
action to recover the civil liability was impliedly instituted and
remained pending before the respective trial courts. This is
consonant with our ruling in Rodriguez v. Ponferrada[14] that
the possible single civil liability arising from the act of issuing a
bouncing check can be the subject of both civil actions
deemed instituted with the estafa case and the prosecution for
violation of BP Blg. 22, simultaneously available to the
complaining party, without traversing the prohibition against
forum shopping.[15] Prior to the judgment in either the estafa
case or the BP Blg. 22 case, petitioner, as the complainant,
cannot be deemed to have elected either of the civil actions
both impliedly instituted in the said criminal proceedings to the
exclusion of the other.[16]
The dismissal of the estafa cases for failure of the prosecution
to prove the elements of the crime beyond reasonable
doubtwhere in Criminal Case No. 98-969952 there was no
pronouncement as regards the civil liability of the accused and
in Criminal Case No. 98-969953 where the trial court declared
that the liability of the accused was only civil
natureproduced the legal effect of a reservation by the
petitioner of her right to litigate separately the civil action
impliedly instituted with the estafa cases, following Article 29 of
the Civil Code.[17]
However, although this civil action could have been litigated
separately on account of the dismissal of the estafa cases on
reasonable doubt, the petitioner was deemed to have also
elected that such civil action be prosecuted together with the
BP Blg. 22 cases in light of the Rodriguez v. Ponferrada ruling.
With the dismissal of the BP Blg. 22 cases for failure to
establish the identity of the accused, the question that arises is
whether such dismissal would have the same legal effect as
the dismissed estafa cases. Put differently, may petitioners
action to recover respondents civil liability be also allowed to
prosper separately after the BP Blg. 22 cases were
dismissed?
Section 1 (b), Rule 111 of the 2000 Revised Rules on
Criminal Procedure states
Section 1. Institution of criminal and civil
actions.
xxx
in (b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation to
file such civil action separately shall be allowed.
29
 Upon filing of the joint criminal and civil actions,
the offended party shall pay in full the filing fees
based on the amount of the check involved,
which shall be considered as the actual
damages claimed. Where the complaint or
information also seeks to recover liquidated,
moral, nominal, temperate or exemplary
damages, the offended party shall pay the filing
fees based on the amounts alleged therein. If
the amounts are not so alleged but any of these
damages [is] subsequently awarded by the
court, the filing fees based on the amount
awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed separately
and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon
application with the court trying the latter case.If
the application is granted, the trial of both
actions shall proceed in accordance with
section 2 of this Rule governing consolidation of
the civil and criminal actions.
Petitioner is in error when she insists that the 2000 Rules on
Criminal Procedure should not apply because she filed her BP
Blg. 22 complaints in 1999. It is now settled that rules of
procedure apply even to cases already pending at the time of
their promulgation. The fact that procedural statutes may
somehow affect the litigants rights does not preclude their
retroactive application to pending actions. It is axiomatic that
the retroactive application of procedural laws does not violate
any right of a person who may feel that he is adversely
affected, nor is it constitutionally objectionable. The reason for
this is that, as a general rule, no vested right may attach to,
nor arise from, procedural laws.[18]
Indeed, under the present revised Rules, the criminal action
for violation of BP Blg. 22 includes the corresponding civil
action to recover the amount of the checks. It should be
stressed, this policy is intended to discourage the separate
filing of the civil action. In fact, the Rules even prohibits the
reservation of a separate civil action, i.e., one can no longer
file a separate civil case after the criminal complaint is filed in
court. The only instance when separate proceedings are
allowed is when the civil action is filed ahead of the criminal
case. Even then, the Rules encourages the consolidation of
the civil and criminal cases. Thus, where petitioners rights may
be fully adjudicated in the proceedings before the court trying
the BP Blg. 22 cases, resort to a separate action to recover
civil liability is clearly unwarranted on account of res
judicata, for failure of petitioner to appeal the civil aspect of the
cases. In view of this special rule governing actions for
violation of BP Blg. 22, Article 31 of the Civil Code is not
applicable.[19]
Be it remembered that rules governing procedure before the
courts, while not cast in stone, are for the speedy, efficient,
30
and orderly dispensation of justice and should therefore be
adhered to in order to attain this objective.[20]
However, in applying the procedure discussed above, it
appears that petitioner would be left without a remedy to
recover from respondents the P600,000.00 allegedly loaned
from her. This could prejudice even the petitioners Notice of
Claim involving the same amount filed in Special Proceedings
No. 98-88390 (Petition for Voluntary Insolvency by Kolin
Enterprises, William Sy and Tessie Sy), which case was
reportedly archived for failure to prosecute the petition for an
unreasonable length of time.[21]Expectedly, respondents would
raise the same defense that petitioner had already elected to
litigate the civil action to recover the amount of the checks
along with the BP Blg. 22 cases.
It is in this light that we find petitioners contention that she was
not assisted by a private prosecutor during the BP Blg. 22
proceedings critical. Petitioner indirectly protests that the
public prosecutor failed to protect and prosecute her cause
when he failed to have her establish the identities of the
accused during the trial and when he failed to appeal the civil
action deemed impliedly instituted with the BP Blg. 22
cases. On this ground, we agree with petitioner.
Faced with the dismissal of the BP Blg. 22 cases,
petitioners recourse pursuant to the prevailing rules of
procedure would have been to appeal the civil action to
recover the amount loaned to respondents corresponding to
the bounced checks. Hence, the said civil action may proceed
requiring only a preponderance of evidence on the part of
petitioner. Her failure to appeal within the reglementary period
was tantamount to a waiver altogether of the remedy to
recover the civil liability of respondents. However, due to the
gross mistake of the prosecutor in the BP Blg. 22 cases, we
are constrained to digress from this rule.
It is true that clients are bound by the mistakes, negligence
and omission of their counsel.[22] But this rule admits of
exceptions (1) where the counsels mistake is so great and
serious that the client is prejudiced and denied his day in
court, or (2) where the counsel is guilty of gross negligence
resulting in the clients deprivation of liberty or property without
due process of law.[23] Tested against these guidelines, we
hold that petitioners lot falls within the exceptions.
It is an oft-repeated exhortation to counsels to be well-
informed of existing laws and rules and to keep abreast with
legal developments, recent enactments and
jurisprudence. Unless they faithfully comply with such duty,
they may not be able to discharge competently and diligently
31
their obligations as members of the Bar.[24] Further, lawyers in
the government service are expected to be more
conscientious in the performance of their duties as they are
subject to public scrutiny. They are not only members of the
Bar but are also public servants who owe utmost fidelity to
public service.[25] Apparently, the public prosecutor neglected
to equip himself with the knowledge of the proper procedure
for BP Blg. 22 cases under the 2000 Rules on Criminal
Procedure such that he failed to appeal the civil action
impliedly instituted with the BP Blg. 22 cases, the only
remaining remedy available to petitioner to be able to recover
the money she loaned to respondents, upon the dismissal of
the criminal cases on demurrer. By this failure, petitioner was
denied her day in court to prosecute the respondents for their
obligation to pay their loan.
Moreover, we take into consideration the trial courts
observation when it dismissed the estafa charge in Criminal
Case No. 98-969953 that if there was any liability on the part
of respondents, it was civil in nature. Hence, if the loan be
proven true, the inability of petitioner to recover the loaned
amount would be tantamount to unjust enrichment of
respondents, as they may now conveniently evade payment of
their obligation merely on account of a technicality applied
against petitioner.
There is unjust enrichment when (1) a person is
unjustly benefited, and (2) such benefit is derived at the
expense of or with damages to another. This doctrine simply
means that a person shall not be allowed to profit or enrich
himself inequitably at anothers expense. One condition for
invoking this principle of unjust enrichment is that the
aggrieved party has no other recourse based on contract,
quasi-contract, crime, quasi-delict or any other provision of
law.[26]
Court litigations are primarily designed to search for the
truth, and a liberal interpretation and application of the rules
which will give the parties the fullest opportunity to adduce
proof is the best way to ferret out the truth. The dispensation of
justice and vindication of legitimate grievances should not be
barred by technicalities.[27] For reasons of substantial justice
and equity, as the complement of the legal jurisdiction that
seeks to dispense justice where courts of law, through the
inflexibility of their rules and want of power to adapt their
judgments to the special circumstances of cases, are
incompetent to do so,[28] we thus rule, pro hac vice, in favor of
petitioner.
WHEREFORE, the petition is GRANTED. Civil Case No. 05-
112452 entitled Anita Cheng v. Spouses William Sy and
32
Tessie Sy is hereby ordered REINSTATED. No (AFP) with the rank of Colonel under General Order No. 1208
dated November 29, 1976, pursuant to the provisions of
pronouncement as to costs. Sections 1(A) and 10 of Republic Act (RA) No. 340,4 as
amended. He started receiving his monthly retirement pay in
the amount of P18,315.00 in December 1976 until the same
SO ORDERED. was withheld by respondents in March 2005. On June 3, 2005,
Jeremias wrote a letter5 addressed to the AFP Chief of Staff
asking for the reasons of the withholding of his retirement pay.
G.R. No. 189649, April 20, 2015 In a letter reply,6Myrna F. Villaruz, LTC (FS) PA, Pension and
Gratuity Officer of the AFP Finance Center, informed Jeremias
ADORACION CAROLINO (SPOUSE AND IN that his loss of Filipino citizenship caused the deletion of his
SUBSTITUTION OF THE DECEASED JEREMIAS A. name in the alpha list of the AFP Pensioners' Payroll effective
CAROLINO), Petitioner, v. GEN. GENEROSO SENGA, AS March 5, 2005; and that he could avail of re-entitlement to his
CHIEF OF STAFF OF THE ARMED FORCES OF THE retirement benefits and the restoration of his name in the AFP
PHILIPPINES (AFP); BRIG. GEN. FERNANDO ZABAT, AS Pensioners' Masterlist Payroll by complying with the
CHIEF OF THE AFP FINANCE CENTER; COMMO. requirements prescribed under RA No. 9225, or the Dual
REYNALDO BASILIO, AS CHIEF OF THE AFP-GHQ Citizenship Act.
MANAGEMENT AND FISCAL OFFICE; AND COMMO.
EMILIO MARAYAG, PENSION AND GRATUITY OFFICER, It appeared that the termination of Jeremias' pension was
PENSION AND GRATUITY MANAGEMENT CENTER, AFP done pursuant to Disposition Form7 dated October 29, 2004,
FINANCE CENTER, Respondent. which was approved by the Chief of Staff and made effective
in January 2005. In the said Disposition Form, the AFP Judge
DECISION Advocate General opined that under the provisions of Sections
4, 5, and 6 of RA No. 340, retired military personnel are
PERALTA, J.: disqualified from receiving pension benefits once incapable to
render military service as a result of his having sworn
Before us is a petition for review under Rule 45 seeking to allegiance to a foreign country. It was also mentioned that
reverse and set aside the Decision1 dated May 25, 2009 of the termination of retirement benefits of pensioner of the AFP
Court of Appeals (CA) in CA-G.R. SP No. 103502 and the could be done pursuant to the provisions of Presidential
Resolution2 dated September 10, 2009 denying Decree (PD) No. 16388 which provides that the name of a
reconsideration thereof. retiree who loses his Filipino citizenship shall be removed from
the retired list and his retirement benefits terminated upon
The factual and legal antecedents are as follows: such loss. It being in consonance with the policy consideration
that all retirement laws inconsistent with the provisions of PD
On December 1, 1976, Jeremias A. Carolino, petitioner's No. 1638 are repealed and modified accordingly.
husband, retired3 from the Armed Forces of the Philippines

33
On August 24, 2006, Jeremias filed with the Regional Trial
Court (RTC) of Quezon City, a Petition for Mandamus9 against
Gen. Generoso Senga, as Chief of Staff of the AFP, Brig. Gen.
Fernando Zabat, as Chief of the AFP Finance Center, Comm.
Reynaldo Basilio, as Chief of the AFP-GHQ Management and
Fiscal Office, and Comm. Emilio Marayag, Pension and
Gratuity Management Officer, Pension and Gratuity
Management Center, AFP Finance Center, seeking
reinstatement of his name in the list of the AFP retired officers,
resumption of payment of his retirement benefits under RA No.
340, and the reimbursement of all his retirement pay and
benefits which accrued from March 5, 2005 up to the time his
name is reinstated and, thereafter, with claim for damages and
attorney's fees. The case was docketed as Civil Case No. Q-
06-58686, and raffled off to Branch 220.
On February 26, 2007, the RTC rendered its
Decision10 granting the petition for mandamus, the dispositive
portion of which reads:chanroblesvirtuallawlibrary
WHEREFORE, judgment is hereby rendered ordering General
Hermogenes Esperon, Jr., as Chief of Staff of the AFP,
Brigadier General Fernando Zabat, as the Commanding
Officer of the AFP Finance Center, Commodore Reynaldo
Basilio, as Chief of the AFP-GFIQ Management and Fiscal
Office, and Captain Theresa M. Nicdao, as Pension and
Gratuity Officer of the Pension and Gratuity Management
Center, or any of their respective successors and those taking
instructions from them as agents or subordinates,
to:chanroblesvirtuallawlibrary
a. immediately reinstate the name of petitioner in
the list of retired AFP Officers, and to resume
payment of his retirement benefits under RA
340; and
b. release to [petitioner] all retirement benefits due
him under RA 340 which accrued to him from
March 2005 continuously up to the time his
name is reinstated in the list of AFP retired
officers.11
The RTC found that the issue for resolution is the applicability
of RA No. 340 and PD No. 1638 upon Jeremias' retirement
benefits. It found that he retired as a commissioned officer of
the AFP in 1976; thus, RANo. 340 is the law applicable in
determining his entitlement to his retirement benefits and not
PD No. 1638 which was issued only in 1979. Article 4 of the
Civil Code provides that "laws shall have no retroactive effect
unless the contrary is provided." PD No. 1638 does not
provide for such retroactive application. Also, it could not have
been the intendment of PD No. 1638 to deprive its loyal
soldiers of a monthly pension during their old age especially
where, as here, the right had been vested to them through
time. RA No. 340 does not provide that the loss of Filipino
citizenship would terminate one's retirement benefits; and that
PD No. 1638 does not reduce whatever benefits that any
person has already been receiving under existing law.
Respondents sought reconsideration,12� but the RTC denied
the same in an Order13 dated May 25, 2007, the decretal
portion of which reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the instant Motion for
Reconsideration is hereby DENIED, considering that the
questioned decision has not yet attained.its finality. The Motion
for Execution in the meantime is
hereby DENIED.14cralawlawlibrary
Aggrieved, respondents elevated the case to the CA. After the
submission of the parties' respective memoranda, the case
was submitted for decision.
Jeremias died on September 30, 200715 and was substituted
34
by his wife, herein petitioner.
On May 25, 2009, the CA granted respondents' appeal. The
dispositive portion of the CA decision
reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the instant appeal
is GRANTED. The appealed decision is REVOKED and SET
ASIDE.16cralawlawlibrary
In so ruling, the CA found that while it is true that Jeremias
retired in 1976 under the provisions of RA No. 340, as
amended, which does not contain any provision anent
cessation or loss of retirement benefits upon acquiring another
citizenship, PD No. 1638, which was signed in 1979,
effectively repealed RA No. 340, as amended. Section 27 of
PD No. 1638, which provides that the name of a retiree who
loses his Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such loss, was
correctly made applicable to Jeremias' retirement benefits.
Logic dictates that since Jeremias had already renounced his
allegiance to the Philippines, he cannot now be compelled by
the State to render active service and to render compulsory
military service when the need arises. The CA found that for
the writ of mandamus to lie, it is essential that Jeremias should
have a clear legal right to the thing demanded and it must be
the imperative duty of respondents to perform the act required
which petitioner failed to show; thus, mandamus will not lie.
Petitioner's motion for reconsideration was denied in a
Resolution dated September 10, 2009.
Hence, this petition raising the
following:chanroblesvirtuallawlibrary
RESPONDENT COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN RENDERING THE ASSAILED
DECISION AND RESOLUTION WHICH SET ASIDE AND
REVERSED THE 26 FEBRUARY 2007 DECISION OF THE
QC RTC BECAUSE:chanroblesvirtuallawlibrary
PD 1638 should not have been applied and cannot be used
against petitioner as her husband's retirement and pension
were granted to him by the AFP under RA 340 which was not
superseded by PD 1638, a later statute.
Petitioner correctly availed of the remedy of mandamus to
compel the reinstatement of his pension and benefits from the
AFP under RA 340 as PD 1638 was not applicable to him.
Petitioner contends that her husband's retirement from the
active service in 1976 was pursuant to the provisions of RA
No. No. 340 as PD No. 1638 was not yet in existence then,
and there was nothing in RA No. 340 that disqualifies a retired
military personnel from receiving retirement benefits after
acquiring foreign citizenship. The concept of retirement
benefits is such that one is entitled to them for services
already rendered and not for those to be made at a future
time. Retirement benefits due petitioner's husband under RA
No. 340, is an acquired right which cannot be taken away by a
subsequent law. PD No. 1638 does not expressly provide for
its retroactive application. Respondents, being officers of the
AFP tasked to implement the provisions of RA No. 340 have
neglected their function thereunder by delisting petitioner's
husband as a retiree, thus, mandamus is proper.
In his Comment, the Solicitor General argues that PD No.
1638 applies to all military personnel in the service of the AFP
whether active or retired; hence, it applies retroactively to
petitioner's husband. Even when a retiree is no longer in the
active service, his being a Filipino still makes him a part of the
Citizen Armed Forces; that whether a military personnel retires
under the provisions of RA No. 340 or under PD No. 1638, he
is still in the service of the military and/or the State only that he
is retired, thus, they should not be treated differently upon the
loss of Filipino citizenship. He argues when there is an
35
irreconcilable conflict between the two laws of different
vintages, i.e., RA No. 340 and PD No. 1638, the latter
enactment prevails.
The Solicitor General argues that mandamus will not issue to
enforce a right to compel compliance with a duty which is
questionable or over which a substantial doubt exists. In this
case, petitioner's husband does not have a well-defined, clear
and certain legal right to continuously receive retirement
benefits after becoming an American citizen. Likewise, the
AFP does not have a clear and imperative duty to grant the
said benefits considering that Section 27 of PD No. 1638
provides that the name of a retiree who loses his Filipino
citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss.
Petitioner filed her reply thereto. We find merit in the petition.
Petitioner's husband retired in 1976 under RA No. 340. He
was already receiving his monthly retirement benefit in the
amount of P18,315.00 since December 1976 until it was
terminated in March 2005. Section 5, RA No. 340
provides:chanroblesvirtuallawlibrary
Sec. 5. Officers and enlisted men placed in the retired list shall
be subject to the rules and articles of war and to trial by court-
martial for any breach thereof. At any time said officers and
enlisted men may be called to active service by the President.
Refusal on the part of any officer or enlisted man to perform
such services shall terminate his right to further participation in
the benefits of this Act provided he resides in the Philippines
and is physically fit for service. Such fitness for service shall
be determined by applicable regulations.
The afore-quoted provision clearly shows how a retiree's
retirement benefits may be terminated, i.e., when the retiree
refuses to perform active service when called to do so
provided that (1) the retiree resides in the Philippines and (2)
is physically fit for service. There is no other requirement found
in the law which would be the reason for the termination of a
retiree's retirement benefits. Petitioner's husband was never
called to perform active service and refused to do so, however,
his retirement benefit was terminated. The reason for such
termination was his loss of Filipino citizenship based on
Section 27 of PD No. 1638, to wit:chanroblesvirtuallawlibrary
Section 27. Military personnel retired under Sections 4, 5, 10,
11 and 12 shall be carried in the retired list of the Armed
Forces of the Philippines. The name of a retiree who loses his
Filipino citizenship shall be removed from the retired list and
his retirement benefits terminated upon such loss.
We find that the CA erred in applying PD No. 1638 to the
retirement benefits of petitioner's husband.
Firstly, PD No. 1638 was signed by then President Ferdinand
Marcos on September 10, 1979. Under Article 4 of the Civil
Code, it is provided that laws shall have no retroactive effect,
unless the contrary is provided. It is said that the law looks to
the future only and has no retroactive effect unless the
legislator may have formally given that effect to some legal
provisions;17 that all statutes are to be construed as having
only prospective operation, unless the purpose and intention of
the legislature to give them a retrospective effect is expressly
declared or is necessarily implied from the language used; and
that every case of doubt must be resolved against
retrospective effect.18 These principles also apply to
amendments of statutes.
PD No. 1638 does not contain any provision regarding its
retroactive application, nor the same may be implied from its
language. In fact, Section 36 of PD No. 1638 clearly provides
that the decree shall take effect upon its approval. As held
in Parreno v. COA,19 there is no question that PD No. 1638, as
amended, applies prospectively. Since PD No. 1638, as
amended, is about the new system of retirement and
36
separation from service of military personnel, it should apply to
those who were in the service at the time of its
approval.20 Conversely, PD No. 1638 is not applicable to those
who retired before its effectivity in 1979. The rule is familiar
that after an act is amended, the original act continues to be in
force with regard to all rights that had accrued prior to such
amendment.21
Moreover, Section 27 of PD No. 1638 specifically provides for
the retirees to whom the law shall be applied, to
wit:chanroblesvirtuallawlibrary
Section 27. Military personnel retired under Sections 4, 5,
10, 11 and 12 shall be carried in the retired list of the Armed
Forces of the Philippines. The name of a retiree who loses his
Filipino citizenship shall be removed from the retired list and
his retirement benefits terminated upon such loss, (emphasis
supplied)
Notably, petitioner's husband did not retire under those above-
enumerated Sections of PD No. 1638 as he retired under RA
No. 340.
Secondly, it has been held that before a right to retirement
benefits or pension vests in an employee, he must have met
the stated conditions of eligibility with respect to the nature of
employment, age, and length of service.22 Undeniably,
petitioner's husband had complied with the conditions of
eligibility to retirement benefits as he was then receiving his
retirement benefits on a monthly basis until it was terminated.
Where the employee retires and meets the eligibility
requirements, he acquires a vested right to the benefits that is
protected by the due process clause.23 It is only upon
retirement that military personnel acquire a vested right to
retirement benefits.24 Retirees enjoy a protected property
interest whenever they acquire a right to immediate payment
under pre-existing law.25
In Ayog v. Cusi,26 we expounded the nature of a vested right,
thus:chanroblesvirtuallawlibrary
"A right is vested when the right to enjoyment has become the
property of some particular person or persons as a present
interest" (16 C.J.S. 1173). It is "the privilege to enjoy property
legally vested, to enforce contracts, and enjoy the rights of
property conferred by the existing law" (12 C.J.S. 955, Note
46, No. 6) or "some right or interest in property which has
become fixed and established and is no longer open to doubt
or controversy" (Downs vs. Blount 170 Fed. 15, 20, cited
in Balboa vs. Farrales, 51 Phil. 498, 502).
The due process clause prohibits the annihilation of vested
rights. "A state may not impair vested rights by legislative
enactment, by the enactment or by the subsequent repeal of a
municipal ordinance, or by a change in the constitution of the
State, except in a legitimate exercise of the police power" (16
C.J.S. 1177-78).
It has been observed that, generally, the term "vested right"
expresses the concept of present fixed interest, which in right
reason and natural justice should be protected against
arbitrary State action, or an innately just and imperative right
which an enlightened free society, sensitive to inherent and
irrefragable individual rights, cannot deny (16 C.J.S. 1174,
Note 71, No. 5, citing Pennsylvania Greyhound Lines, Inc. vs.
Rosenthal, 192 Atl. 2nd 587).27cralawlawlibrary
Petitioner's husband acquired vested right to the payment of
his retirement benefits which must be respected and cannot be
affected by the subsequent enactment of PD No. 1638 which
provides that loss of Filipino citizenship terminates retirement
benefits. Vested rights include not only legal or equitable title
to the enforcement of a demand, but also an exemption from
new obligations after the right has vested.28
37
In fact, Sections 33 and 35 of PD No. 1638 recognize such
vested right, to wit:chanroblesvirtuallawlibrary
Section 33. Nothing in this Decree shall be construed in any
manner to reduce whatever retirement and separation pay or
gratuity or other monetary benefits which any person is
heretofore receiving or is entitled to receive under the
provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to the
provisions of this Decree and to preserve the rights granted to
retired or separated military personnel, all laws, rules and
regulations inconsistent with the provisions of this Decree are
hereby repealed or modified accordingly.
Section 33 of PD No. 1638 is clear that the law has no
intention to reduce or to revoke whatever retirement benefits
being enjoyed by a retiree at the time of its passage. Hence,
Section 35 provides for an exception to what the decree
repealed or modified, i.e., except those necessary to preserve
the rights granted to retired or separated military personnel.
We also find that the CA erred in finding that mandamus will
not lie.
Section 3, Rule 65 of the Rules of Court lay down under what
circumstances petition for mandamus may be filed, to
wit:chanroblesvirtuallawlibrary
SEC. 3. Petition for mandamus. - When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
A writ of mandamus can be issued only when petitioner's legal
right to the performance of a particular act which is sought to
be compelled is clear and complete. A clear legal right is a
right which is indubitably granted by law or is inferable as a
matter of law.29 A doctrine well-embedded in our jurisprudence
is that mandamus will issue only when the petitioner has a
clear legal right to the performance of the act sought to be
compelled and the respondent has an imperative duty to
perform the same.30 The remedy of mandamus lies to compel
the performance of a ministerial duty.31 A purely ministerial act
or duty is one that an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise
of its own judgment upon the propriety or impropriety of the act
done.32 If the law imposes a duty upon a public officer, and
gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.33
The petition for mandamus filed by petitioner's husband with
the RTC was for the payment of his terminated retirement
benefits, which has become vested, and being a ministerial
duty on the part of the respondents to pay such claim,
mandamus is the proper remedy to compel such payment.
The doctrine of exhaustion of administrative remedies calls for
resort first to the appropriate administrative authorities in the
resolution of a controversy falling under their jurisdiction before
the same may be elevated to the courts of justice for
review.34 However, the principle of exhaustion of
administrative remedies need not be adhered to when the
38
question is purely legal.35 This is because issues of law cannot
be resolved with finality by the administrative officer.36 Appeal
to the administrative officer would only be an exercise in
futility.37 Here, the question raised is purely legal, i.e., what law
should be applied in the payment of retirement benefits of
petitioner's husband. Thus, there was no need to exhaust all
administrative remedies before a judicial relief can be
sought.cralawred
WHEREFORE, the petition is GRANTED. The Decision dated
May 25, 2009 and the Resolution dated September 10, 2009
of the Court of Appeals are hereby REVERSED and SET
ASIDE. The Decision dated February 26, 2007 of the Regional
Trial Court of Quezon City, Branch 220, is AFFIRMED.
SO ORDERED.cha
G.R. No. 150429 August 29, 2006
ROBERTO G. FAMANILA, Petitioner,
vs.
THE COURT OF APPEALS (Spc. Fmr. Seventh Division)
and BARBERSHIP MANAGEMENT LIMITED and NFD
INTERNATIONAL MANNING AGENTS, INC. Respondents.
DECISION
YNARES-SANTIAGO, J.:
Before us is a petition for review on certiorari assailing the
Decision 1 of the Court of Appeals in CA-G.R. SP No. 50615
dated March 30, 2001 which affirmed the Decision 2 of the
National Labor Relations Commission (NLRC) dated March
31, 1998 dismissing petitioner’s complaint for payment of
disability and other benefits for lack of merit and the
Resolution 3 dated October 5, 2001 of the Court of Appeals
denying petitioner’s motion for reconsideration.
The antecedent facts are as follows:
In 1989, respondent NFD International Manning Agents, Inc.
hired the services of petitioner Roberto G. Famanila as
Messman 4 for Hansa Riga, a vessel registered and owned by
its principal and co-respondent, Barbership Management
Limited.
On June 21, 1990, while Hansa Riga was docked at the port of
Eureka, California, U.S.A. and while petitioner was assisting in
the loading operations, the latter complained of a headache.
Petitioner experienced dizziness and he subsequently
collapsed. Upon examination, it was determined that he had a
sudden attack of left cerebral hemorrhage from a ruptured
cerebral aneurysm. 5 Petitioner underwent a brain operation
and he was confined at the Emmanuel Hospital in Portland,
Oregon, U.S.A. On July 19, 1990, he underwent a second
brain operation.
Owing to petitioner’s physical and mental condition, he was
repatriated to the Philippines. On August 21, 1990, he was
examined at the American Hospital in Intramuros, Manila
where the examining physician, Dr. Patricia Abesamis
declared that he "cannot go back to sea duty and has been
observed for 120 days, he is being declared permanently,
totally disabled." 6
Thereafter, authorized representatives of the respondents
convinced him to settle his claim amicably by accepting the
amount of US$13,200. 7 Petitioner accepted the offer as
evidenced by his signature in the Receipt and Release dated
February 28, 1991. 8 His wife, Gloria Famanila and one
39
Richard Famanila, acted as witnesses in the signing of the
release.
On June 11, 1997, petitioner filed a complaint 9 with the NLRC
which was docketed as NLRC OCW Case No. 6-838-97-L
praying for an award of disability benefits, share in the
insurance proceeds, moral damages and attorney’s fees. On
September 29, 1997, Acting Executive Labor Arbiter Voltaire
A. Balitaan dismissed the complaint on the ground of
prescription. Petitioner appealed the decision with the NLRC.
On March 31, 1998, the NLRC promulgated its
decision 10 finding the appeal to be without merit and ordered
its dismissal. When the motion for reconsideration11 was
denied by the NLRC in its resolution dated June 29,
1998, 12 petitioner filed a petition for certiorari with this Court.
On December 2, 1998, we resolved to refer the case to the
Court of Appeals pursuant to our ruling in St. Martin Funeral
Home v. National Labor Relations Commission. 13
On March 30, 2001, the Court of Appeals promulgated the
assailed decision which dismissed the petition for lack of merit.
Petitioner’s motion for reconsideration was denied, hence, the
present petition for review raising the following issues:
I. THE COURT OF APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN UPHOLDING THE VALIDITY OF THE
RECEIPT AND RELEASE SINCE PETITIONER’S CONSENT
THERETO WAS VITIATED THEREBY MAKING THE SAME
VOID AND UNENFORCEABLE.
II. THE COURT OF APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT THE PRESCRIPTION
PERIOD APPLICABLE TO THE CLAIM OF THE PETITIONER
IS THE 3-YEAR PERIOD PROVIDED FOR UNDER THE
LABOR CODE OF THE PHILIPPINES AND NOT THE 10-
YEAR PERIOD PROVIDED FOR UNDER THE CIVIL CODE.
Petitioner claims that he did not sign the Receipt and Release
voluntarily or freely because he was permanently disabled and
in financial constraints. These factors allegedly vitiated his
consent which makes the Receipt and Release void and
unenforceable.
The petition lacks merit.
It is fundamental that the scope of the Supreme Court’s judicial
review under Rule 45 of the Rules of Court is confined only to
errors of law. It does not extend to questions of fact. More so
in labor cases where the doctrine applies with greater
force. 14 The Labor Arbiter and the NLRC have already
determined the factual issues, and these were affirmed by the
Court of Appeals. Thus, they are accorded not only great
respect but also finality and are deemed binding upon this
Court so long as they are supported by substantial
evidence. 15 We reviewed the records of the case and we find
no reason to deviate from the findings of the labor arbiter,
NLRC and the Court of Appeals.
A vitiated consent does not make a contract void and
unenforceable. A vitiated consent only gives rise to a voidable
agreement. Under the Civil Code, the vices of consent are
mistake, violence, intimidation, undue influence or fraud.16 If
consent is given through any of the aforementioned vices of
consent, the contract is voidable. 17 A voidable contract is
binding unless annulled by a proper action in court. 18
Petitioner contends that his permanent and total disability
vitiated his consent to the Receipt and Release thereby
rendering it void and unenforceable. However, disability is not
among the factors that may vitiate consent. Besides, save for
40
petitioner’s self-serving allegations, there is no proof on record
that his consent was vitiated on account of his disability. In the
absence of such proof of vitiated consent, the validity of the
Receipt and Release must be upheld. We agree with the
findings of the Court of Appeals that:
In the case at bar, there is nothing in the records to show that
petitioner’s consent was vitiated when he signed the
agreement. Granting that petitioner has not fully recovered his
health at the time he signed the subject document, the same
cannot still lead to the conclusion that he did not voluntar[il]y
accept the agreement, for his wife and another relative
witnessed his signing.
Moreover, the document entitled receipt and release which
was attached by petitioner in his appeal does not show on its
face any violation of law or public policy. In fact, petitioner did
not present any proof to show that the consideration for the
same is not reasonable and acceptable. Absent any evidence
to support the same, the Court cannot, on its own accord,
decide against the unreasonableness of the consideration. 19
It is true that quitclaims and waivers are oftentimes frowned
upon and are considered as ineffective in barring recovery for
the full measure of the worker’s right and that acceptance of
the benefits therefrom does not amount to estoppel. 20 The
reason is plain. Employer and employee, obviously do not
stand on the same footing. 21 However, not all waivers and
quitclaims are invalid as against public policy. If the agreement
was voluntarily entered into and represents a reasonable
settlement, it is binding on the parties and may not later be
disowned simply because of change of mind. It is only where
there is clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of the settlement
are unconscionable on its face, that the law will step in to
annul the questionable transaction. But where it is shown that
the person making the waiver did so voluntarily, with full
understanding of what he was doing, and the consideration for
the quitclaim is credible and reasonable, the transaction must
be recognized as a valid and binding undertaking, 22 as in this
case.
To be valid and effective, waivers must be couched in clear
and unequivocal terms, leaving no doubt as to the intention of
those giving up a right or a benefit that legally pertains to
them. 23 We have reviewed the terms and conditions contained
in the Receipt and Release and we find the same to be clear
and unambiguous. The signing was even witnessed by
petitioner’s wife, Gloria T. Famanila and one Richard T.
Famanila. The Receipt and Release provides in part:
That for and in consideration of the sum of THIRTEEN
THOUSAND TWO HUNDRED DOLLARS (US$13,200.00) or
its equivalent in Philippine currency THREE HUNDRED SIXTY
FIVE THOUSAND NINE HUNDRED FOUR PESOS
(365,904.00), the receipt of which is hereby acknowledged to
my full and complete satisfaction x x x I, ROBERTO G.
FAMANILA, x x x hereby remise, release and forever
discharge said vessel "HANSA RIGA", her Owners, operators,
managers, charterers, agents, underwriters, P and I Club,
master, officers, and crew and all parties at interest therein or
thereon, whether named or not named, including but not
limited to BARBER SHIP MANAGEMENT LIMITED, NFD
INTERNATIONAL MANNING AGENTS, INC. and
ASSURANCEFORENIGEN GARD from any and all claims,
demands, debts, dues, liens, actions or causes of action, at
law or in equity, in common law or in admiralty, statutory or
contractual, arising from and under the laws of the United
States of America, Norway, Hongkong or the Republic of the
Philippines and/or any other foreign country now held, owned
or possessed by me or by any person or persons, arising from
or related to or concerning whether directly or indirectly,
41
proximately or remotely, without being limited to but including
the said illness suffered by me on board the vessel "HANSA
RIGA" on or about 21st June 1990 at Portland, Oregon and
disability compensation in connection therewith.
This instrument is a GENERAL RELEASE intended to release
all liabilities of any character and/or claims or damages and/or
losses and/or any other liabilities whatsoever, whether
contractual or statutory, at common law or in equity, tortious or
in admiralty, now or henceforth in any way related to or
occurring as a consequence of the illness suffered by me as
Messman of the vessel "HANSA RIGA", including but not
limited to all damages and/or losses consisting of loss of
support, loss of earning capacity, loss of all benefits of
whatsoever nature and extent incurred, physical pain and
suffering and/or all damages and/or indemnities claimable in
law, tort, contract, common law, equity and/or admiralty by me
or by any person or persons pursuant to the laws of the United
States of America, Norway, Hongkong or the Republic of the
Philippines and of all other countries whatsoever.
I hereby certify that I am of legal age and that I fully
understand this instrument which was read to me in the local
dialect and I agree that this is a FULL AND FINAL RELEASE
AND DISCHARGE of all parties and things referred to herein,
and I further agree that this release may be pleaded as an
absolute and final bar to any suit or suits or legal proceedings
that may hereafter be prosecuted by me or by any one
claiming by, through, or under me, against any of the persons
or things
referred to or related herein, for any matter or thing referred to
or related herein. 24
It is elementary that a contract is perfected by mere consent
and from that moment the parties are bound not only to the
fulfillment of what has been expressly stipulated but also to all
the consequences which, according to their nature, may be in
keeping with good faith, usage and law. 25 Further, dire
necessity is not an acceptable ground for annulling the Receipt
and Release since it has not been shown that petitioner was
forced to sign it. 26
Regarding prescription, the applicable prescriptive period for
the money claims against the respondents is the three year
period pursuant to Article 291 of the Labor Code which
provides that:
ART. 291. Money Claims. – All money claims arising from
employer-employee relations accruing during the effectivity of
this Code shall be filed within three (3) years from the time the
cause of action accrued; otherwise they shall be forever
barred.
xxxx
Since petitioner’s demand for an award of disability benefits is
a money claim arising from his employment, Article 291 of the
Labor Code applies. From the time petitioner was declared
permanently and totally disabled on August 21, 1990 which
gave rise to his entitlement to disability benefits up to the time
that he filed the complaint on June 11, 1997, more than three
years have elapsed thereby effectively barring his claim.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated March 30, 2001 in CA-G.R. SP No.
50615 which affirmed the Decision of the National Labor
Relations Commission dismissing petitioner’s complaint for
disability and other benefits for lack of merit, and
the Resolution dated October 5, 2001 denying the motion for
reconsideration, are AFFIRMED.
42
SO ORDERED.
G.R. No. 163707 September 15, 2006
MICHAEL C. GUY, petitioner,
vs.
HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR.,
Presiding Judge, RTC, Branch 138, Makati City and
minors, KAREN DANES WEI and KAMILLE DANES WEI,
represented by their mother, REMEDIOS
OANES,respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the January 22,
2004 Decision1 of the Court of Appeals in CA-G.R. SP No.
79742, which affirmed the Orders dated July 21, 20002 and
July 17, 20033 of the Regional Trial Court of Makati City,
Branch 138 in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004 Resolution4 denying
petitioner's motion for reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen Oanes
Wei and Kamille Oanes Wei, represented by their mother
Remedios Oanes (Remedios), filed a petition for letters of
administration5 before the Regional Trial Court of Makati City,
Branch 138. The case was docketed as Sp. Proc. No. 4549
and entitled Intestate Estate of Sima Wei(a.k.a. Rufino Guy
Susim).
Private respondents alleged that they are the duly
acknowledged illegitimate children of Sima Wei, who died
intestate in Makati City on October 29, 1992, leaving an estate
valued at P10,000,000.00 consisting of real and personal
properties. His known heirs are his surviving spouse Shirley
Guy and children, Emy, Jeanne, Cristina, George and Michael,
all surnamed Guy. Private respondents prayed for the
appointment of a regular administrator for the orderly
settlement of Sima Wei's estate. They likewise prayed that, in
the meantime, petitioner Michael C. Guy, son of the decedent,
be appointed as Special Administrator of the estate. Attached
to private respondents' petition was a Certification Against
Forum Shopping6 signed by their counsel, Atty. Sedfrey A.
Ordoñez.
In his Comment/Opposition,7 petitioner prayed for the
dismissal of the petition. He asserted that his deceased father
left no debts and that his estate can be settled without
securing letters of administration pursuant to Section 1, Rule
74 of the Rules of Court. He further argued that private
respondents should have established their status as
illegitimate children during the lifetime of Sima Wei pursuant to
Article 175 of the Family Code.
The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on
the ground that the certification against forum shopping should
have been signed by private respondents and not their
counsel. They contended that Remedios should have
executed the certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of Court.
In a Manifestation/Motion as Supplement to the Joint Motion to
Dismiss,9 petitioner and his co-heirs alleged that private
respondents' claim had been paid, waived, abandoned or
otherwise extinguished by reason of Remedios' June 7, 1993
Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner,
43
Remedios and her minor children discharge the estate of Sima
Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss as
well as the Supplemental Motion to Dismiss. It ruled that while
the Release and Waiver of Claim was signed by Remedios, it
had not been established that she was the duly constituted
guardian of her minor daughters. Thus, no renunciation of right
occurred. Applying a liberal application of the rules, the trial
court also rejected petitioner's objections on the certification
against forum shopping.
Petitioner moved for reconsideration but was denied. He filed
a petition for certiorari before the Court of Appeals which
affirmed the orders of the Regional Trial Court in its assailed
Decision dated January 22, 2004, the dispositive portion of
which states:
WHEREFORE, premises considered, the present
petition is hereby DENIED DUE COURSE and
accordingly DISMISSED, for lack of merit.
Consequently, the assailed Orders dated July 21, 2000
and July 17, 2003 are hereby both AFFIRMED.
Respondent Judge is hereby DIRECTED to resolve the
controversy over the illegitimate filiation of the private
respondents (sic) minors [-] Karen Oanes Wei and
Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei,
a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for
reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded
existing rules on certification against forum shopping; that the
Release and Waiver of Claim executed by Remedios released
and discharged the Guy family and the estate of Sima Wei
from any claims or liabilities; and that private respondents do
not have the legal personality to institute the petition for letters
of administration as they failed to prove their filiation during the
lifetime of Sima Wei in accordance with Article 175 of the
Family Code.
Private respondents contend that their counsel's certification
can be considered substantial compliance with the rules on
certification of non-forum shopping, and that the petition raises
no new issues to warrant the reversal of the decisions of the
Regional Trial Court and the Court of Appeals.
The issues for resolution are: 1) whether private respondents'
petition should be dismissed for failure to comply with the rules
on certification of non-forum shopping; 2) whether the Release
and Waiver of Claim precludes private respondents from
claiming their successional rights; and 3) whether private
respondents are barred by prescription from proving their
filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that the
certification of non-forum shopping should be executed by the
plaintiff or the principal party. Failure to comply with the
requirement shall be cause for dismissal of the case. However,
a liberal application of the rules is proper where the higher
interest of justice would be served. In Sy Chin v. Court of
Appeals,11 we ruled that while a petition may have been flawed
where the certificate of non-forum shopping was signed only
by counsel and not by the party, this procedural lapse may be
overlooked in the interest of substantial justice.12 So it is in the
44
present controversy where the merits13 of the case and the
absence of an intention to violate the rules with impunity
should be considered as compelling reasons to temper the
strict application of the rules.
As regards Remedios' Release and Waiver of Claim, the same
does not bar private respondents from claiming successional
rights. To be valid and effective, a waiver must be couched in
clear and unequivocal terms which leave no doubt as to the
intention of a party to give up a right or benefit which legally
pertains to him. A waiver may not be attributed to a person
when its terms do not explicitly and clearly evince an intent to
abandon a right.14
In this case, we find that there was no waiver of hereditary
rights. The Release and Waiver of Claim does not state with
clarity the purpose of its execution. It merely states that
Remedios received P300,000.00 and an educational plan for
her minor daughters "by way of financial assistance and in full
settlement of any and all claims of whatsoever nature and kind
x x x against the estate of the late Rufino Guy
Susim."15 Considering that the document did not specifically
mention private respondents' hereditary share in the estate of
Sima Wei, it cannot be construed as a waiver of successional
rights.
Moreover, even assuming that Remedios truly waived the
hereditary rights of private respondents, such waiver will not
bar the latter's claim. Article 1044 of the Civil Code, provides:
ART. 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated
persons may be accepted by their parents or
guardians. Parents or guardians may repudiate the
inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property,
or in their default, to those mentioned in Article 1030.
(Emphasis supplied)
Parents and guardians may not therefore repudiate the
inheritance of their wards without judicial approval. This is
because repudiation amounts to an alienation of
property16 which must pass the court's scrutiny in order to
protect the interest of the ward. Not having been judicially
authorized, the Release and Waiver of Claim in the instant
case is void and will not bar private respondents from
asserting their rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is the
intentional relinquishment of a known right. Where one lacks
knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and
waiver cannot be established by a consent given under a
mistake or misapprehension of fact.17
In the present case, private respondents could not have
possibly waived their successional rights because they are yet
to prove their status as acknowledged illegitimate children of
the deceased. Petitioner himself has consistently denied that
private respondents are his co-heirs. It would thus be
inconsistent to rule that they waived their hereditary rights
when petitioner claims that they do not have such right.
Hence, petitioner's invocation of waiver on the part of private
respondents must fail.
45
Anent the issue on private respondents' filiation, we agree with
the Court of Appeals that a ruling on the same would be
premature considering that private respondents have yet to
present evidence. Before the Family Code took effect, the
governing law on actions for recognition of illegitimate children
was Article 285 of the Civil Code, to wit:
ART. 285. The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents, except in the following cases:
(1) If the father or mother died during the minority
of the child, in which case the latter may file the
action before the expiration of four years from the
attainment of his majority;
(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. (Emphasis
supplied)
We ruled in Bernabe v. Alejo18 that illegitimate children who
were still minors at the time the Family Code took effect and
whose putative parent died during their minority are given the
right to seek recognition for a period of up to four years from
attaining majority age. This vested right was not impaired or
taken away by the passage of the Family Code.19
On the other hand, Articles 172, 173 and 175 of the Family
Code, which superseded Article 285 of the Civil Code, provide:
ART. 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil register or
a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
ART. 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and shall
be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the
heirs shall have a period of five years within which to
institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both of
the parties.
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same,
evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is
46
 based on the second paragraph of Article 172, in which
case the action may be brought during the lifetime of
the alleged parent.
Under the Family Code, when filiation of an illegitimate child is
established by a record of birth appearing in the civil register
or a final judgment, or an admission of filiation in a public
document or a private handwritten instrument signed by the
parent concerned, the action for recognition may be brought
by the child during his or her lifetime. However, if the action is
based upon open and continuous possession of the status of
an illegitimate child, or any other means allowed by the rules
or special laws, it may only be brought during the lifetime of
the alleged parent.
It is clear therefore that the resolution of the issue of
prescription depends on the type of evidence to be adduced
by private respondents in proving their filiation. However, it
would be impossible to determine the same in this case as
there has been no reception of evidence yet. This Court is not
a trier of facts. Such matters may be resolved only by the
Regional Trial Court after a full-blown trial.
While the original action filed by private respondents was a
petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents'
filiation. Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in handling
the settlement of the estate, including the determination of the
status of each heir.20 That the two causes of action, one to
compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence.21 As
held in Briz v. Briz:22
The question whether a person in the position of the
present plaintiff can in any event maintain a complex
action to compel recognition as a natural child and at
the same time to obtain ulterior relief in the character of
heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the
conditions justifying the joinder of the two distinct
causes of action are present in the particular case. In
other words, there is no absolute necessity requiring
that the action to compel acknowledgment should have
been instituted and prosecuted to a successful
conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir.
Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule
should be here applied different from that generally
applicable in other cases. x x x
The conclusion above stated, though not heretofore
explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus,
we have held in numerous cases, and the doctrine
must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has
not been in fact acknowledged, may maintain partition
proceedings for the division of the inheritance against
his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson
vs. Tiamson, 32 Phil., 62); and the same person may
intervene in proceedings for the distribution of the
estate of his deceased natural father, or mother
(Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya,
13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In
neither of these situations has it been thought
necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is
that in partition suits and distribution proceedings the
other persons who might take by inheritance are before
47
 the court; and the declaration of heirship is appropriate
to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision
dated January 22, 2004 of the Court of Appeals in CA-G.R. SP
No. 79742 affirming the denial of petitioner's motion to dismiss;
and its Resolution dated May 25, 2004 denying petitioner's
motion for reconsideration, are AFFIRMED. Let the records
be REMANDED to the Regional Trial Court of Makati City,
Branch 138 for further proceedings.
SO ORDERED.
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
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?
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.
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
48
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.
During trial, petitioner testified for himself. He also presented
Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel,
as witnesses.
On June 4, 2003, the trial court rendered a decision4 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 [fiancé] 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 August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari 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.
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
49
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 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:
50
 (1) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
(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.
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 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,
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
51
 (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 change for which the applicable procedure is
Rule 108 of the Rules of Court.
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, 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)
52
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 term status…
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 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.
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.29Thus, 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
53
female."33Female 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 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-to-female 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 fiancé.
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.
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.
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
54
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 co-equal 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.
Costs against petitioner.
SO ORDERED.
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as
Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the
City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which
ended in a foreign absolute divorce, only to be followed by a
criminal infidelity suit of the latter against the former, provides
Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling,
a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal
Republic of Germany. The marriage started auspiciously
enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born
on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations
between the spouses, followed by a separation de facto
between them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a
divorce proceeding against petitioner in Germany before the
Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been
living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23,
1983 where the same is still pending as Civil Case No. 83-
15866. 3
55
On January 15, 1986, Division 20 of the Schoneberg Local
Court, Federal Republic of Germany, promulgated a decree of
divorce on the ground of failure of marriage of the spouses.
The custody of the child was granted to petitioner. The records
show that under German law said court was locally and
internationally competent for the divorce proceeding and that
the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance
of the divorce decree, private respondent filed two complaints
for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another
man named Jesus Chua sometime in 1983". Assistant Fiscal
Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review,
the respondent city fiscal approved a resolution, dated January
8, 1986, directing the filing of two complaints for adultery
against the petitioner. 6 The complaints were accordingly filed
and were eventually raffled to two branches of the Regional
Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI
presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James
Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same
court. 7
On March 14, 1987, petitioner filed a petition with the
Secretary of Justice asking that the aforesaid resolution of
respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her
co-accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course
to both petitions and directed the respondent city fiscal to
inform the Department of Justice "if the accused have already
been arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire records of both
cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to
defer her arraignment and to suspend further proceedings
thereon. 10 As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On
the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987.
Before such scheduled date, petitioner moved for the
cancellation of the arraignment and for the suspension of
proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which
motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the
arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the
petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as direct
contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not
guilty. 14
On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the
lower court denying her motion to quash. The petition is
anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a
56
private offense that cannot be prosecuted de officio (sic), since
the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under
his national law prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary
restraining order enjoining the respondents from implementing
the aforesaid order of September 8, 1987 and from further
proceeding with Criminal Case No. 87-52435. Subsequently,
on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez
acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of
adultery, as well as four other crimes against chastity, cannot
be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense
is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate
since it is that complaint which starts the prosecutory
proceeding 19 and without which the court cannot exercise its
jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for
adultery and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody else.
Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called
exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and
concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in
default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and
no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended
spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation
to do so at the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil
cases, is determined as of the filing of the complaint or
petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have
been found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of
the Philippines, the offended party being merely the
complaining witness therein. However, in the so-called "private
crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to
commence the action, or to refrain therefrom, is a matter
exclusively within his power and option.
57
This policy was adopted out of consideration for the aggrieved
party who might prefer to suffer the outrage in silence rather
than go through the scandal of a public trial. 20 Hence, as
cogently argued by petitioner, Article 344 of the Revised Penal
Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action
for, adultery. This is a logical consequence since the raison
d'etre of said provision of law would be absent where the
supposed offended party had ceased to be the spouse of the
alleged offender at the time of the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status
and capacity of the complainant to commence the action be
definitely established and, as already demonstrated, such
status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring
the action would be determined by his
status beforeor subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the
time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time
when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the
status of a complainant as an offended spouse must exist
where a criminal prosecution can be commenced only by one
who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the
inquiry ;would be whether it is necessary in the
commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the
action by the former against the latter.
American jurisprudence, on cases involving statutes in that
jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no
longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse
shall have the exclusive right to institute a prosecution for
adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no
legal effect on the prosecution of the criminal proceedings to a
conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
—
'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was
husband of defendant when the offense is said
to have been committed, he had ceased to be
such when the prosecution was begun; and
appellant insists that his status was not such as
to entitle him to make the complaint. We have
repeatedly said that the offense is against the
unoffending spouse, as well as the state, in
explaining the reason for this provision in the
statute; and we are of the opinion that the
unoffending spouse must be such when the
prosecution is commenced. (Emphasis
supplied.)
We see no reason why the same doctrinal rule should not
apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced
that in cases of such nature, the status of the complainant vis-
a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery
58
case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing
of the complaint.
In the present case, the fact that private respondent obtained a
valid divorce in his country, the Federal Republic of Germany,
is admitted. Said divorce and its legal effects may be
recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law
on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et
al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband,
the latter filed a civil case in a trial court here alleging that her
business concern was conjugal property and praying that she
be ordered to render an accounting and that the plaintiff be
granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error
of such stance, thus:
There can be no question as to the validity of
that Nevada divorce in any of the States of the
United States. The decree is binding on private
respondent as an American citizen. For
instance, private respondent cannot sue
petitioner, as her husband, in any State of the
Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public
policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in
the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private
respondent is no longer the husband of
petitioner. He would have no standing to sue in
the case below as petitioner's husband entitled
to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private
respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed
suit.
The allegation of private respondent that he could not have
brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be
a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of
our law on adultery, 26 since there would thenceforth be no
spousal relationship to speak of. The severance of the marital
bond had the effect of dissociating the former spouses from
each other, hence the actuations of one would not affect or
cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be
successfully relied upon by private respondent. In applying
Article 433 of the old Penal Code, substantially the same as
Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void",
the Court merely stated that "the lawmakers intended to
59
declare adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and
void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically
inferred therefrom that the complaint can still be filed after the
declaration of nullity because such declaration that the
marriage is void ab initio is equivalent to stating that it never
existed. There being no marriage from the beginning, any
complaint for adultery filed after said declaration of nullity
would no longer have a leg to stand on. Moreover, what was
consequently contemplated and within the purview of the
decision in said case is the situation where the criminal action
for adultery was filed beforethe termination of the marriage by
a judicial declaration of its nullity ab initio. The same rule and
requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign
divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's
motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-
52435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made
permanent.
SO ORDERED.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-
RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized
in our jurisdiction, provided such decree is valid according to
the national law of the foreigner. However, the divorce decree
and the governing personal law of the alien spouse who
obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgments; hence, like any
other facts, both the divorce decree and the national law of the
alien must be alleged and proven according to our law on
evidence.
The Case
Before us is a Petition for Review under Rule 45 of the
Rules of Court, seeking to nullify the January 7, 1999
Decision[1] and the March 24, 1999 Order[2] of the Regional
Trial Court of Cabanatuan City, Branch 28, in Civil Case No.
3026AF. The assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between
Grace J. Garcia and Rederick A. Recio solemnized on January
12, 1994 at Cabanatuan City as dissolved and both parties
can now remarry under existing and applicable laws to any
and/or both parties.[3]
The assailed Order denied reconsideration of the above-
quoted Decision.
60
The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on March 1,
1987.[4] They lived together as husband and wife in
Australia. On May 18, 1989, [5]a decree of divorce, purportedly
dissolving the marriage, was issued by an Australian family
court.
On June 26, 1992, respondent became an Australian
citizen, as shown by a Certificate of Australian Citizenship
issued by the Australian government.[6] Petitioner -- a Filipina -
- and respondent were married on January 12, 1994 in Our
Lady of Perpetual Help Church in Cabanatuan City.[7] In
their application for a marriage license, respondent was
declared as single and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.[9]
On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage[10] in the court a quo, on the
ground of bigamy -- respondent allegedly had a prior
subsisting marriage at the time he married her on January 12,
1994. She claimed that she learned of respondents marriage
to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as
1993, he had revealed to petitioner his prior marriage and its
subsequent dissolution.[11] He contended that his first marriage
to an Australian citizen had been validly dissolved by a divorce
decree obtained in Australia in 1989;[12] thus, he was legally
capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples
wedding and while the suit for the declaration of nullity was
pending -- respondent was able to secure a divorce decree
from a family court in Sydney, Australia because the marriage
ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be
dismissed on the ground that it stated no cause of
action.[14] The Office of the Solicitor General agreed with
respondent.[15] The court marked and admitted the
documentary evidence of both parties.[16] After they submitted
their respective memoranda, the case was submitted for
resolution.[17]
Thereafter, the trial court rendered the assailed Decision
and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the
ground that the divorce issued in Australia was valid and
recognized in the Philippines. It deemed the marriage ended,
but not on the basis of any defect in an essential element of
the marriage; that is, respondents alleged lack of legal
capacity to remarry. Rather, it based its Decision on the
divorce decree obtained by respondent. The Australian divorce
had ended the marriage; thus, there was no more marital
union to nullify or annul.
Hence, this Petition.[18]
Issues
61
 Petitioner submits the following issues for our The Petition raises five issues, but for purposes of this
consideration: Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha Samson
1 was proven, and (2) whether respondent was proven to be
legally capacitated to marry petitioner. Because of our ruling
The trial court gravely erred in finding that the divorce decree on these two, there is no more necessity to take up the rest.
obtained in Australia by the respondent ipso facto terminated
his first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
The Courts Ruling
2
The Petition is partly meritorious.
The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the First Issue:
petitioners marriage to the respondent Proving the Divorce Between Respondent and Editha
Samson
3

The trial court seriously erred in the application of Art. 26 of Petitioner assails the trial courts recognition of the divorce
the Family Code in this case. between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,[20] petitioner argues that the divorce
4 decree, like any other foreign judgment, may be given
recognition in this jurisdiction only upon proof of the existence
The trial court patently and grievously erred in disregarding of (1) the foreign law allowing absolute divorce and (2) the
Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the alleged divorce decree itself. She adds that respondent
applicable provisions in this case. miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article
5 26 of the Family Code, marriages solemnized abroad are
governed by the law of the place where they were celebrated
The trial court gravely erred in pronouncing that the divorce (the lex loci celebrationis). In effect, the Code requires the
decree obtained by the respondent in Australia ipso presentation of the foreign law to show the conformity of the
facto capacitated the parties to remarry, without first securing marriage in question to the legal requirements of the place
a recognition of the judgment granting the divorce decree where the marriage was performed.
before our courts.[19]

62
 At the outset, we lay the following basic legal principles as
the take-off points for our discussion. Philippine law does not
provide for absolute divorce; hence, our courts cannot grant
it.[21] A marriage between two Filipinos cannot be dissolved
even by a divorce obtained abroad, because of Articles
15[22] and 17[23] of the Civil Code.[24] In mixed marriages
involving a Filipino and a foreigner, Article 26[25] of the Family
Code allows the former to contract a subsequent marriage in
case the divorce is validly obtained abroad by the alien spouse
capacitating him or her to remarry.[26] A divorce obtained
abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective
national laws.[27]
A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van Dorn v.
Romillo Jr. decrees that aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are
valid according to their national law.[28] Therefore, before a
foreign divorce decree can be recognized by our courts, the
party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing
it.[29] Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be
admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall
specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her
previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of
the marriage, the partition and distribution of the properties of
the spouses, and the delivery of the childrens presumptive
legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their
persons.
Respondent, on the other hand, argues that the Australian
divorce decree is a public document -- a written official act of
an Australian family court. Therefore, it requires no further
proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the
document must first be presented and admitted in
evidence.[30] A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment
is the judgment itself.[31] The decree purports to be a written
act or record of an act of an official body or tribunal of a foreign
country.[32]
63
 Under Sections 24 and 25 of Rule 132, on the other hand,
a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication
or (2) a copy thereof attested[33] by the officer having legal
custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of
his office. [34]
The divorce decree between respondent and Editha
Samson appears to be an authentic one issued by an
Australian family court.[35] However, appearance is not
sufficient; compliance with the aforementioned rules on
evidence must be demonstrated.
Fortunately for respondents cause, when the divorce
decree of May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but only to the
fact that it had not been registered in the Local Civil Registry of
Cabanatuan City.[36] The trial court ruled that it was admissible,
subject to petitioners qualification.[37] Hence, it was admitted in
evidence and accorded weight by the judge. Indeed,
petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of
Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of
adopting an alien and clothing him with the political and civil
rights belonging to a citizen.[40] Naturalized citizens, freed from
the protective cloak of their former states, don the attires of
their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian
divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends
that petitioner was satisfied with the original of the divorce
decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly
known by Philippine courts; thus, judges may take judicial
notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the
party who alleges the existence of a fact or thing necessary in
the prosecution or defense of an action.[41] In civil cases,
plaintiffs have the burden of proving the material allegations of
the complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations
in their answer when they introduce new matters.[42] Since the
divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely
upon him.
It is well-settled in our jurisdiction that our courts cannot
take judicial notice of foreign laws.[43] Like any other facts, they
must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by
reason of their judicial function.[44] The power of judicial notice
must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of
the divorce, respondent was legally incapacitated to marry her
64
in 1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree,
which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for
a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The
first kind terminates the marriage, while the second suspends
it and leaves the bond in full force.[45]There is no showing in
the case at bar which type of divorce was procured by
respondent.
Respondent presented a decree nisi or an interlocutory
decree -- a conditional or provisional judgment of divorce. It is
in effect the same as a separation from bed and board,
although an absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is effected.[46]
Even after the divorce becomes absolute, the court may
under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may
be limited by statute; thus, the guilty party in a divorce which
was granted on the ground of adultery may be prohibited from
marrying again. The court may allow a remarriage only after
proof of good behavior.[47]
On its face, the herein Australian divorce decree contains
a restriction that reads:
1. A party to a marriage who marries again before this
decree becomes absolute (unless the other party
has died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to
his national law. Hence, we find no basis for the ruling of the
trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondents capacity to remarry
despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce
decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule
39[49] of the Rules of Court, for the simple reason that no proof
has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity
required by Article 21 of the Family Code was not submitted
together with the application for a marriage license. According
to her, its absence is proof that respondent did not have legal
capacity to remarry.
We clarify. To repeat, the legal capacity to contract
marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the
Family Code would have been sufficient to establish the legal
capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien
applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that
proves respondents legal capacity to marry petitioner. A
review of the records before this Court shows that only the
following exhibits were presented before the lower court: (1)
for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-
Australian) and Grace J. Garcia (Filipino) on January 12, 1994
in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of
Marriage Between Rederick A. Recio (Filipino) and Editha D.
65
Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;[53] (d) Exhibit D Office of the City Registrar of
Cabanatuan City Certification that no information of annulment
between Rederick A. Recio and Editha D. Samson was in its
records;[54] and (e) Exhibit E Certificate of Australian
Citizenship of Rederick A. Recio;[55] (2) for respondent: (a)
Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act
1975 Decree Nisi of Dissolution of Marriage in the Family
Court of Australia;[57] (c) Exhibit 3 Certificate of Australian
Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia
Certificate;[59] and Exhibit 5 -- Statutory Declaration of the
Legal Separation Between Rederick A. Recio and Grace J.
Garcia Recio since October 22, 1995.[60]
Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a
quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring
him to adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her
marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he
was really capacitated to marry petitioner as a direct result of
the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive
evidence, if any, which show petitioners legal capacity to
marry petitioner. Failing in that, then the court a quo may
declare a nullity of the parties marriage on the ground of
bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a
quo for the purpose of receiving evidence which conclusively
show respondents legal capacity to marry petitioner; and
failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.
FE D. QUITA, petitioner, vs. COURT OF APPEALS and
BLANDINA DANDAN,* respondents.
DECISION
BELLOSILLO, J .:
FE D. QUITA and Arturo T. Padlan, both Filipinos, were
married in the Philippines on 18 May 1941. They were not
however blessed with children. Somewhere along the way
their relationship soured.Eventually Fe sued Arturo for divorce
in San Francisco, California, U.S.A. She submitted in the
divorce proceedings a private writing dated 19 July 1950
evidencing their agreement to live separately from each other
and a settlement of their conjugal properties. On 23 July 1954
she obtained a final judgment of divorce. Three (3) weeks
thereafter she married a certain Felix Tupaz in the same
locality but their relationship also ended in a divorce. Still in the
U.S.A., she married for the third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August
1972 Lino Javier Inciong filed a petition with the Regional Trial
Court of Quezon City for issuance of letters of administration
concerning the estate of Arturo in favor of the Philippine Trust
Company. Respondent Blandina Dandan (also referred to
as Blandina Padlan), claiming to be the surviving spouse of
66
Arturo Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida
and Yolanda, all surnamed Padlan, named in the petition as
surviving children of Arturo Padlan, opposed the petition and
prayed for the appointment instead of Atty. Leonardo Cabasal,
which was resolved in favor of the latter. Upon motion of the
oppositors themselves, Atty. Cabasal was later replaced by
Higino Castillon. On 30 April 1973 the oppositors (Blandina
and the Padlan children) submitted certified photocopies of the
19 July 1950 private writing and the final judgment of divorce
between petitioner and Arturo. Later Ruperto T. Padlan,
claiming to be the sole surviving brother of the deceased
Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate
declaration of heirs of the decedent and the distribution of his
estate. At the scheduled hearing on 23 October 1987, private
respondent as well as the six (6) Padlan children and Ruperto
failed to appear despite due notice. On the same day, the trial
court required the submission of the records of birth of the
Padlan children within ten (10) days from receipt thereof, after
which, with or without the documents, the issue on the
declaration of heirs would be considered submitted for
resolution. The prescribed period lapsed without the required
documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which held
that "a foreign divorce between Filipino citizens sought and
decreed after the effectivity of the present Civil Code (Rep. Act
386) was not entitled to recognition as valid in this
jurisdiction,"[2] disregarded the divorce between petitioner and
Arturo. Consequently, it expressed the view that their marriage
subsisted until the death of Arturo in 1972. Neither did it
consider valid their extrajudicial settlement of conjugal
properties due to lack of judicial approval.[3] On the other hand,
it opined that there was no showing that marriage existed
between private respondent and Arturo, much less was it
shown that the alleged Padlan children had been
acknowledged by the deceased as his children with her. As
regards Ruperto, it found that he was a brother of Arturo. On
27 November 1987[4] only petitioner and Ruperto were
declared the intestate heirs of Arturo. Accordingly, equal
adjudication of the net hereditary estate was ordered in favor
of the two intestate heirs.[5]
On motion for reconsideration, Blandina and the Padlan
children were allowed to present proofs that the recognition of
the children by the deceased as his legitimate children, except
Alexis who was recognized as his illegitimate child, had been
made in their respective records of birth. Thus on 15 February
1988[6] partial reconsideration was granted declaring the
Padlan children, with the exception of Alexis, entitled to one-
half of the estate to the exclusion of Ruperto Padlan, and
petitioner to the other half.[7] Private respondent was not
declared an heir. Although it was stated in the aforementioned
records of birth that she and Arturo were married on 22 April
1947, their marriage was clearly void since it was celebrated
during the existence of his previous marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her
children assigned as one of the errors allegedly committed by
the trial court the circumstance that the case was decided
without a hearing, in violation of Sec. 1, Rule 90, of the Rules
of Court, which provides that if there is a controversy before
the court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each person is
entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
Respondent appellate court found this ground alone
sufficient to sustain the appeal; hence, on 11 September 1995
it declared null and void the 27 November 1987 decision and
15 February 1988 order of the trial court, and directed the
remand of the case to the trial court for further
proceedings.[8] On 18 April 1996 it denied reconsideration.[9]
67
 Should this case be remanded to the lower court for
further proceedings? Petitioner insists that there is no need
because, first, no legal or factual issue obtains for resolution
either as to the heirship of the Padlan children or as to their
respective shares in the intestate estate of the decedent; and,
second, the issue as to who between petitioner and private
respondent is the proper heir of the decedent is one of law
which can be resolved in the present petition based on
established facts and admissions of the parties.
We cannot sustain petitioner. The provision relied upon by
respondent court is clear: If there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as
in ordinary cases.
We agree with petitioner that no dispute exists either as to
the right of the six (6) Padlan children to inherit from the
decedent because there are proofs that they have been duly
acknowledged by him and petitioner herself even recognizes
them as heirs of Arturo Padlan;[10] nor as to their respective
hereditary shares. But controversy remains as to who is the
legitimate surviving spouse of Arturo. The trial court, after the
parties other than petitioner failed to appear during the
scheduled hearing on 23 October 1987 of the motion for
immediate declaration of heirs and distribution of estate,
simply issued an order requiring the submission of the records
of birth of the Padlan children within ten (10) days from receipt
thereof, after which, with or without the documents, the issue
on declaration of heirs would be deemed submitted for
resolution.
We note that in her comment to petitioner's motion private
respondent raised, among others, the issue as to whether
petitioner was still entitled to inherit from the decedent
considering that she had secured a divorce in the U.S.A. and
in fact had twice remarried. She also invoked the above
quoted procedural rule.[11] To this, petitioner replied that Arturo
was a Filipino and as such remained legally married to her in
spite of the divorce they obtained.[12] Reading between the
lines, the implication is that petitioner was no longer a Filipino
citizen at the time of her divorce from Arturo. This should have
prompted the trial court to conduct a hearing to establish her
citizenship. The purpose of a hearing is to ascertain the truth
of the matters in issue with the aid of documentary and
testimonial evidence as well as the arguments of the parties
either supporting or opposing the evidence. Instead, the lower
court perfunctorily settled her claim in her favor by merely
applying the ruling in Tenchavez v. Escao.
Then in private respondent's motion to set aside and/or
reconsider the lower court's decision she stressed that the
citizenship of petitioner was relevant in the light of the ruling
in Van Dorn v. Romillo Jr.[13] that aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. She prayed
therefore that the case be set for hearing.[14]Petitioner opposed
the motion but failed to squarely address the issue on her
citizenship.[15] The trial court did not grant private respondent's
prayer for a hearing but proceeded to resolve her motion with
the finding that both petitioner and Arturo were "Filipino
citizens and were married in the Philippines."[16] It maintained
that their divorce obtained in 1954 in San Francisco,
California, U.S.A., was not valid in Philippine jurisdiction. We
deduce that the finding on their
citizenship pertained solely to the time
of their marriage as the trial court was not supplied with a
basis to determine petitioner's citizenship at the time of
their divorce. The doubt persisted as to whether she was still a
Filipino citizen when their divorce was decreed. The trial court
must have overlooked the materiality of this aspect.Once
proved that she was no longer a Filipino citizen at the time of
their divorce, Van Dorn would become applicable and
petitioner could very well lose her right to inherit from Arturo.
68
 Respondent again raised in her appeal the issue on
petitioner's citizenship;[17] it did not merit enlightenment
however from petitioner.[18] In the present proceeding,
petitioner's citizenship is brought anew to the fore by private
respondent. She even furnishes the Court with the transcript of
stenographic notes taken on 5 May 1995 during the hearing
for the reconstitution of the original of a certain transfer
certificate title as well as the issuance of new owner's
duplicate copy thereof before another trial court. When asked
whether she was an American citizen petitioner answered that
she was since 1954.[19] Significantly, the decree of divorce of
petitioner and Arturo was obtained in the same year. Petitioner
however did not bother to file a reply memorandum to erase
the uncertainty about her citizenship at the time of their
divorce, a factual issue requiring hearings to be conducted by
the trial court. Consequently, respondent appellate court did
not err in ordering the case returned to the trial court for further
proceedings.
We emphasize however that the question to be
determined by the trial court should be limited only to the right
of petitioner to inherit from Arturo as his surviving
spouse. Private respondent's claim to heirship was already
resolved by the trial court. She and Arturo were married on 22
April 1947 while the prior marriage of petitioner and Arturo
was subsisting thereby resulting in a bigamous marriage
considered void from the beginning under Arts. 80 and 83 of
the Civil Code. Consequently, she is not a surviving spouse
that can inherit from him as this status presupposes a
legitimate relationship.[20]
As regards the motion of private respondent for petitioner
and her counsel to be declared in contempt of court and that
the present petition be dismissed for forum shopping,[21] the
same lacks merit.For forum shopping to exist the actions must
involve the same transactions and same essential facts and
circumstances. There must also be identical causes of action,
subject matter and issue.[22] The present petition deals with
declaration of heirship while the subsequent petitions filed
before the three (3) trial courts concern the issuance of new
owner's duplicate copies of titles of certain properties
belonging to the estate of Arturo. Obviously, there is no reason
to declare the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals ordering the remand of the case
to the court of origin for further proceedings and declaring null
and void its decision holding petitioner Fe D. Quita and
Ruperto T. Padlan as intestate heirs is AFFIRMED. The order
of the appellate court modifying its previous decision by
granting one-half (1/2) of the net hereditary estate to the
Padlan children, namely, Claro, Ricardo, Emmanuel, Zenaida
and Yolanda, with the exception of Alexis, all surnamed
Padlan, instead of Arturo's brother Ruperto Padlan, is likewise
AFFIRMED. The Court however emphasizes that the reception
of evidence by the trial court should be limited to the hereditary
rights of petitioner as the surviving spouse of Arturo Padlan.
The motion to declare petitioner and her counsel in
contempt of court and to dismiss the present petition for forum
shopping is DENIED.
SO ORDERED.
G.R. No. 162580 January 27, 2006
ELMAR O. PEREZ, Petitioner,
vs.
COURT OF APPEALS, Fifth Division, TRISTAN A.
CATINDIG and LILY GOMEZ-CATINDIG, Respondents.
DECISION
YNARES-SANTIAGO, J.:
69
This petition for certiorari and prohibition under Rule 65 of the
Rules of Court assails the July 25, 2003 Decision1 of the Court
of Appeals in CA-G.R. SP No. 74456 which set aside and
declared as null and void the September 30, 2002 Order2 of
the Regional Trial Court of Quezon City, Branch 84, granting
petitioner’s motion for leave to file intervention and admitting
the Complaint-in-Intervention3 in Civil Case No. Q-01-44847;
and its January 23, 2004 Resolution4 denying the motion for
reconsideration.
Private respondent Tristan A. Catindig married Lily Gomez
Catindig5 twice on May 16, 1968. The first marriage ceremony
was celebrated at the Central Methodist Church at T.M. Kalaw
Street, Ermita, Manila while the second took place at the
Lourdes Catholic Church in La Loma, Quezon City. The
marriage produced four children.
Several years later, the couple encountered marital problems
that they decided to separate from each other. Upon advice of
a mutual friend, they decided to obtain a divorce from the
Dominican Republic. Thus, on April 27, 1984, Tristan and Lily
executed a Special Power of Attorney addressed to the Judge
of the First Civil Court of San Cristobal, Dominican Republic,
appointing an attorney-in-fact to institute a divorce action
under its laws.6
Thereafter, on April 30, 1984, the private respondents filed a
joint petition for dissolution of conjugal partnership with the
Regional Trial Court of Makati. On June 12, 1984, the civil
court in the Dominican Republic ratified the divorce by mutual
consent of Tristan and Lily. Subsequently, on June 23, 1984,
the Regional Trial Court of Makati City, Branch 133, ordered
the complete separation of properties between Tristan and
Lily.
On July 14, 1984, Tristan married petitioner Elmar O. Perez in
the State of Virginia in the United States7 and both lived as
husband and wife until October 2001. Their union produced
one offspring.8
During their cohabitation, petitioner learned that the divorce
decree issued by the court in the Dominican Republic which
"dissolved" the marriage between Tristan and Lily was not
recognized in the Philippines and that her marriage to Tristan
was deemed void under Philippine law. When she confronted
Tristan about this, the latter assured her that he would legalize
their union after he obtains an annulment of his marriage with
Lily. Tristan further promised the petitioner that he would adopt
their son so that he would be entitled to an equal share in his
estate as that of each of his children with Lily.9
On August 13, 2001, Tristan filed a petition for the declaration
of nullity of his marriage to Lily with the Regional Trial Court of
Quezon City, docketed as Case No. Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to File
Intervention10 claiming that she has a legal interest in the
matter in litigation because she knows certain information
which might aid the trial court at a truthful, fair and just
adjudication of the annulment case, which the trial court
granted on September 30, 2002. Petitioner’s complaint-in-
intervention was also ordered admitted.
Tristan filed a petition for certiorari and prohibition with the
Court of Appeals seeking to annul the order dated September
30, 2002 of the trial court. The Court of Appeals granted the
petition and declared as null and void the September 30, 2002
Order of the trial court granting the motion for leave to file
intervention and admitting the complaint-in-intervention.
70
Petitioner’s motion for reconsideration was denied, hence this
petition for certiorari and prohibition filed under Rule 65 of the
Rules of Court. Petitioner contends that the Court of Appeals
gravely abused its discretion in disregarding her legal interest
in the annulment case between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved party from a
decision of the Court of Appeals is a petition for review on
certiorari under Rule 45 of the Rules of Court. However, if the
error subject of the recourse is one of jurisdiction, or the act
complained of was granted by a court with grave abuse of
discretion amounting to lack or excess of jurisdiction, as
alleged in this case, the proper remedy is a petition for
certiorari under Rule 65 of the said Rules.11This is based on
the premise that in issuing the assailed decision and
resolution, the Court of Appeals acted with grave abuse of
discretion, amounting to excess of lack of jurisdiction and there
is no plain, speedy and adequate remedy in the ordinary
course of law. A remedy is considered plain, speedy, and
adequate if it will promptly relieve the petitioner from the
injurious effect of the judgment and the acts of the lower
court.12
It is therefore incumbent upon the petitioner to establish that
the Court of Appeals acted with grave abuse of discretion
amounting to excess or lack of jurisdiction when it promulgated
the assailed decision and resolution.
We have previously ruled that grave abuse of discretion may
arise when a lower court or tribunal violates or contravenes the
Constitution, the law or existing jurisprudence. By grave abuse
of discretion is meant, such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction. The abuse
of discretion must be grave as where the power is exercised in
an arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in contemplation of
law.13 The word "capricious," usually used in tandem with the
term "arbitrary," conveys the notion of willful and unreasoning
action. Thus, when seeking the corrective hand of certiorari, a
clear showing of caprice and arbitrariness in the exercise of
discretion is imperative.14
The Rules of Court laid down the parameters before a person,
not a party to a case can intervene, thus:
Who may intervene. — A person who has a legal interest in
the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of
court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor’s rights may be fully
protected in a separate proceeding.15
The requirements for intervention are: [a] legal interest in the
matter in litigation; and [b] consideration must be given as to
whether the adjudication of the original parties may be delayed
or prejudiced, or whether the intervenor’s rights may be
protected in a separate proceeding or not.16
Legal interest, which entitles a person to intervene, must be in
the matter in litigation and of such direct and immediate
character that the intervenor will either gain or lose by direct
legal operation and effect of the judgment.17Such interest must
be actual, direct and material, and not simply contingent and
expectant.18
71
Petitioner claims that her status as the wife and companion of
Tristan for 17 years vests her with the requisite legal interest
required of a would-be intervenor under the Rules of Court.
Petitioner’s claim lacks merit. Under the law, petitioner was
never the legal wife of Tristan, hence her claim of legal interest
has no basis.
When petitioner and Tristan married on July 14, 1984, Tristan
was still lawfully married to Lily. The divorce decree that
Tristan and Lily obtained from the Dominican Republic never
dissolved the marriage bond between them. It is basic that
laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living
abroad.19 Regardless of where a citizen of the Philippines
might be, he or she will be governed by Philippine laws with
respect to his or her family rights and duties, or to his or her
status, condition and legal capacity. Hence, if a Filipino
regardless of whether he or she was married here or abroad,
initiates a petition abroad to obtain an absolute divorce from
spouse and eventually becomes successful in getting an
absolute divorce decree, the Philippines will not recognize
such absolute divorce.20
When Tristan and Lily married on May 18, 1968, their marriage
was governed by the provisions of the Civil Code21which took
effect on August 30, 1950. In the case of Tenchavez v.
Escano22 we held:
(1) That a foreign divorce between Filipino citizens, sought and
decreed after the effectivity of the present Civil Code (Rep. Act
No. 386), is not entitled to recognition as valid in this
jurisdiction; and neither is the marriage contracted with
another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country.
(Emphasis added)
Thus, petitioner’s claim that she is the wife of Tristan even if
their marriage was celebrated abroad lacks merit. Thus,
petitioner never acquired the legal interest as a wife upon
which her motion for intervention is based.
Since petitioner’s motion for leave to file intervention was
bereft of the indispensable requirement of legal interest, the
issuance by the trial court of the order granting the same and
admitting the complaint-in-intervention was attended with
grave abuse of discretion. Consequently, the Court of Appeals
correctly set aside and declared as null and void the said
order.
WHEREFORE, the petition is DISMISSED. The assailed
Decision dated July 25, 2003 and Resolution dated January
23, 2004 of the Court of Appeals in CA-G.R. SP No. 74456
are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 133743 February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029 February 6, 2007
72
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN
LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the
February 4, 1998 Decision 1 of the Court of Appeals in CA-
G.R. CV No. 52647, which reversed and set aside the
September 12, 1995 2 and January 31, 1996 3Resolutions of
the Regional Trial Court of Makati City, Branch 134 in SP.
Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying
petitioners’ motion for reconsideration.
The instant case involves the settlement of the estate of
Felicisimo T. San Luis (Felicisimo), who was the former
governor of the Province of Laguna. During his lifetime,
Felicisimo contracted three marriages. His first marriage was
with Virginia Sulit on March 17, 1942 out of which were born
six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and
Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee
Corwin, with whom he had a son, Tobias. However, on
October 15, 1971, Merry Lee, an American citizen, filed a
Complaint for Divorce 5 before the Family Court of the First
Circuit, State of Hawaii, United States of America (U.S.A.),
which issued a Decree Granting Absolute Divorce and
Awarding Child Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad
San Luis, then surnamed Sagalongos, before Rev. Fr. William
Meyer, Minister of the United Presbyterian at Wilshire
Boulevard, Los Angeles, California, U.S.A. 7 He had no
children with respondent but lived with her for 18 years from
the time of their marriage up to his death on December 18,
1992.
Thereafter, respondent sought the dissolution of their conjugal
partnership assets and the settlement of Felicisimo’s estate.
On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City,
docketed as SP. Proc. No. M-3708 which was raffled to
Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that,
at the time of his death, the decedent was residing at 100 San
Juanico Street, New Alabang Village, Alabang, Metro Manila;
that the decedent’s surviving heirs are respondent as legal
spouse, his six children by his first marriage, and son by his
second marriage; that the decedent left real properties, both
conjugal and exclusive, valued at ₱30,304,178.00 more or
less; that the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets be
liquidated and that letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the
children of Felicisimo by his first marriage, filed a motion to
dismiss 9 on the grounds of improper venue and failure to state
a cause of action. Rodolfo claimed that the petition for letters
of administration should have been filed in the Province of
Laguna because this was Felicisimo’s place of residence prior
to his death. He further claimed that respondent has no legal
personality to file the petition because she was only a mistress
of Felicisimo since the latter, at the time of his death, was still
legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and
joined her brother Rodolfo in seeking the dismissal 10of the
73
petition. On February 28, 1994, the trial court issued an
Order 11 denying the two motions to dismiss.
Unaware of the denial of the motions to dismiss, respondent
filed on March 5, 1994 her opposition 12 thereto. She submitted
documentary evidence showing that while Felicisimo exercised
the powers of his public office in Laguna, he regularly went
home to their house in New Alabang Village, Alabang, Metro
Manila which they bought sometime in 1982. Further, she
presented the decree of absolute divorce issued by the Family
Court of the First Circuit, State of Hawaii to prove that the
marriage of Felicisimo to Merry Lee had already been
dissolved. Thus, she claimed that Felicisimo had the legal
capacity to marry her by virtue of paragraph 2, 13 Article 26 of
the Family Code and the doctrine laid down in Van Dorn v.
Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San
Luis, separately filed motions for reconsideration from the
Order denying their motions to dismiss. 15 They asserted that
paragraph 2, Article 26 of the Family Code cannot be given
retroactive effect to validate respondent’s bigamous marriage
with Felicisimo because this would impair vested rights in
derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from
his first marriage, filed a motion to disqualify Acting Presiding
Judge Anthony E. Santos from hearing the case.
On October 24, 1994, the trial court issued an
Order 17 denying the motions for reconsideration. It ruled that
respondent, as widow of the decedent, possessed the legal
standing to file the petition and that venue was properly laid.
Meanwhile, the motion for disqualification was deemed moot
and academic 18 because then Acting Presiding Judge Santos
was substituted by Judge Salvador S. Tensuan pending the
resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan on
November 16, 1994. On even date, Edgar also filed a motion
for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law
on which it was based.
On November 25, 1994, Judge Tensuan issued an
Order 21 granting the motion for inhibition. The case was re-
raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to
submit their respective position papers on the twin issues of
venue and legal capacity of respondent to file the petition. On
May 5, 1995, Edgar manifested 23 that he is adopting the
arguments and evidence set forth in his previous motion for
reconsideration as his position paper. Respondent and
Rodolfo filed their position papers on June 14, 24 and June
20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the petition
for letters of administration. It held that, at the time of his
death, Felicisimo was the duly elected governor and a resident
of the Province of Laguna. Hence, the petition should have
been filed in Sta. Cruz, Laguna and not in Makati City. It also
ruled that respondent was without legal capacity to file the
petition for letters of administration because her marriage with
Felicisimo was bigamous, thus, void ab initio. It found that the
decree of absolute divorce dissolving Felicisimo’s marriage to
Merry Lee was not valid in the Philippines and did not bind
Felicisimo who was a Filipino citizen. It also ruled that
paragraph 2, Article 26 of the Family Code cannot be
retroactively applied because it would impair the vested rights
of Felicisimo’s legitimate children.
74
Respondent moved for reconsideration 26 and for the
disqualification 27 of Judge Arcangel but said motions were
denied. 28
Respondent appealed to the Court of Appeals which reversed
and set aside the orders of the trial court in its assailed
Decision dated February 4, 1998, the dispositive portion of
which states:
WHEREFORE, the Orders dated September 12, 1995 and
January 31, 1996 are hereby REVERSED and SET ASIDE;
the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to
the trial court for further proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the
Rules of Court, the term "place of residence" of the decedent,
for purposes of fixing the venue of the settlement of his estate,
refers to the personal, actual or physical habitation, or actual
residence or place of abode of a person as distinguished from
legal residence or domicile. It noted that although Felicisimo
discharged his functions as governor in Laguna, he actually
resided in Alabang, Muntinlupa. Thus, the petition for letters of
administration was properly filed in Makati City.
The Court of Appeals also held that Felicisimo had legal
capacity to marry respondent by virtue of paragraph 2, Article
26 of the Family Code and the rulings in Van Dorn v. Romillo,
Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage
between Felicisimo and Merry Lee was validly dissolved by
virtue of the decree of absolute divorce issued by the Family
Court of the First Circuit, State of Hawaii. As a result, under
paragraph 2, Article 26, Felicisimo was capacitated to contract
a subsequent marriage with respondent. Thus –
With the well-known rule – express mandate of paragraph 2,
Article 26, of the Family Code of the Philippines, the doctrines
in Van Dorn, Pilapil, and the reason and philosophy behind the
enactment of E.O. No. 227, — there is no justiciable reason to
sustain the individual view — sweeping statement — of Judge
Arc[h]angel, that "Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against divorce in any
form whatsoever." Indeed, courts cannot deny what the law
grants. All that the courts should do is to give force and effect
to the express mandate of the law. The foreign divorce having
been obtained by the Foreigner on December 14, 1992, 32 the
Filipino divorcee, "shall x x x have capacity to remarry under
Philippine laws". For this reason, the marriage between the
deceased and petitioner should not be denominated as "a
bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner
as the surviving spouse can institute the judicial proceeding for
the settlement of the estate of the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for
reconsideration 34 which were denied by the Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant
petition for review on certiorari. 35 Rodolfo later filed a
manifestation and motion to adopt the said petition which was
granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist
that the venue of the subject petition for letters of
administration was improperly laid because at the time of his
death, Felicisimo was a resident of Sta. Cruz, Laguna. They
contend that pursuant to our rulings in Nuval v. Guray 37 and
Romualdez v. RTC, Br. 7, Tacloban City, 38"residence" is
synonymous with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return. They
75
claim that a person can only have one domicile at any given
time. Since Felicisimo never changed his domicile, the petition
for letters of administration should have been filed in Sta.
Cruz, Laguna.
Petitioners also contend that respondent’s marriage to
Felicisimo was void and bigamous because it was performed
during the subsistence of the latter’s marriage to Merry Lee.
They argue that paragraph 2, Article 26 cannot be retroactively
applied because it would impair vested rights and ratify the
void bigamous marriage. As such, respondent cannot be
considered the surviving wife of Felicisimo; hence, she has no
legal capacity to file the petition for letters of administration.
The issues for resolution: (1) whether venue was properly laid,
and (2) whether respondent has legal capacity to file the
subject petition for letters of administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition
for letters of administration of the estate of Felicisimo should
be filed in the Regional Trial Court of the province "in which he
resides at the time of his death." In the case of Garcia Fule v.
Court of Appeals, 40 we laid down the doctrinal rule for
determining the residence – as contradistinguished from
domicile – of the decedent for purposes of fixing the venue of
the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence"
as distinguished from "legal residence or domicile." This term
"resides," like the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or purpose
of the statute or rule in which it is employed. In the application
of venue statutes and rules – Section 1, Rule 73 of the
Revised Rules of Court is of such nature – residence rather
than domicile is the significant factor. Even where the statute
uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some
cases make a distinction between the terms "residence" and
"domicile" but as generally used in statutes fixing venue, the
terms are synonymous, and convey the same meaning as the
term "inhabitant." In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or
place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term means
merely residence, that is, personal residence, not legal
residence or domicile. Residence simply requires bodily
presence as an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention to
make it one’s domicile. No particular length of time of
residence is required though; however, the residence must be
more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for
purposes of fixing the venue of the settlement of the estate of
Felicisimo, is synonymous with "domicile." The rulings in Nuval
and Romualdez are inapplicable to the instant case because
they involve election cases. Needless to say, there is a
distinction between "residence" for purposes of election laws
and "residence" for purposes of fixing the venue of actions. In
election cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent residence to
which when absent, one has the intention of
returning. 42 However, for purposes of fixing venue under the
Rules of Court, the "residence" of a person is his personal,
actual or physical habitation, or actual residence or place of
abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and
consistency. 43 Hence, it is possible that a person may have
his residence in one place and domicile in another.
76
In the instant case, while petitioners established that
Felicisimo was domiciled in Sta. Cruz, Laguna, respondent
proved that he also maintained a residence in Alabang,
Muntinlupa from 1982 up to the time of his death. Respondent
submitted in evidence the Deed of Absolute Sale 44 dated
January 5, 1983 showing that the deceased purchased the
aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese
General Hospital for the period August to December 1992
indicating the address of Felicisimo at "100 San Juanico, Ayala
Alabang, Muntinlupa." Respondent also presented proof of
membership of the deceased in the Ayala Alabang Village
Association 46 and Ayala Country Club, Inc., 47 letter-
envelopes 48 from 1988 to 1990 sent by the deceased’s
children to him at his Alabang address, and the deceased’s
calling cards 49 stating that his home/city address is at "100
San Juanico, Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta. Cruz,
Laguna."
From the foregoing, we find that Felicisimo was a resident of
Alabang, Muntinlupa for purposes of fixing the venue of the
settlement of his estate. Consequently, the subject petition for
letters of administration was validly filed in the Regional Trial
Court 50 which has territorial jurisdiction over Alabang,
Muntinlupa. The subject petition was filed on December 17,
1993. At that time, Muntinlupa was still a municipality and the
branches of the Regional Trial Court of the National Capital
Judicial Region which had territorial jurisdiction over
Muntinlupa were then seated in Makati City as per Supreme
Court Administrative Order No. 3. 51 Thus, the subject petition
was validly filed before the Regional Trial Court of Makati City.
Anent the issue of respondent Felicidad’s legal personality to
file the petition for letters of administration, we must first
resolve the issue of whether a Filipino who is divorced by his
alien spouse abroad may validly remarry under the Civil Code,
considering that Felicidad’s marriage to Felicisimo was
solemnized on June 20, 1974, or before the Family Code took
effect on August 3, 1988. In resolving this issue, we need not
retroactively apply the provisions of the Family Code,
particularly Art. 26, par. (2) considering that there is sufficient
jurisprudential basis allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage
between a foreigner and his Filipino wife, which marriage was
subsequently dissolved through a divorce obtained abroad by
the latter. Claiming that the divorce was not valid under
Philippine law, the alien spouse alleged that his interest in the
properties from their conjugal partnership should be protected.
The Court, however, recognized the validity of the divorce and
held that the alien spouse had no interest in the properties
acquired by the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American
law, under which divorce dissolves the marriage. As stated by
the Federal Supreme Court of the United States in Atherton
vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond
of matrimony by a competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and
to free them both from the bond. The marriage tie, when thus
severed as to one party, ceases to bind either. A husband
without a wife, or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a penalty, that the
guilty party shall not marry again, that party, as well as the
other, is still absolutely freed from the bond of the former
marriage."
77
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing to
sue in the case below as petitioner’s husband entitled to
exercise control over conjugal assets. As he is bound by the
Decision of his own country’s Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before
said Court from asserting his right over the alleged conjugal
property. 53
As to the effect of the divorce on the Filipino wife, the Court
ruled that she should no longer be considered married to the
alien spouse. Further, she should not be required to perform
her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our
laws, petitioner has to be considered still marriedto
private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil
Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support
to private respondent. The latter should not continue to be one
of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if
the ends of justice are to be served.54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-
Somera 55 where the Court recognized the validity of a divorce
obtained abroad. In the said case, it was held that the alien
spouse is not a proper party in filing the adultery suit against
his Filipino wife. The Court stated that "the severance of the
marital bond had the effect of dissociating the former spouses
from each other, hence the actuations of one would not affect
or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that
where a Filipino is divorced by his naturalized foreign spouse,
the ruling in Van Dorn applies. 58 Although decided on
December 22, 1998, the divorce in the said case was obtained
in 1954 when the Civil Code provisions were still in effect.
The significance of the Van Dorn case to the development of
limited recognition of divorce in the Philippines cannot be
denied. The ruling has long been interpreted as severing
marital ties between parties in a mixed marriage and
capacitating the Filipino spouse to remarry as a necessary
consequence of upholding the validity of a divorce obtained
abroad by the alien spouse. In his treatise, Dr. Arturo M.
Tolentino cited Van Dorn stating that "if the foreigner obtains a
valid foreign divorce, the Filipino spouse shall have capacity to
remarry under Philippine law." 59In Garcia v. Recio, 60 the
Court likewise cited the aforementioned case in relation to
Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical
background and legislative intent behind paragraph 2, Article
26 of the Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into
law Executive Order No. 209, otherwise known as the "Family
Code," which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35, 37,
and 38.
78
On July 17, 1987, shortly after the signing of the original
Family Code, Executive Order No. 227 was likewise signed
into law, amending Articles 26, 36, and 39 of the Family Code.
A second paragraph was added to Article 26. As so amended,
it now provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law. (Emphasis supplied)
x x x x
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according
to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to
the 1985 case of Van Dorn v. Romillo, Jr. The Van
Dorn case involved a marriage between a Filipino citizen
and a foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law. 63 (Emphasis
added)
As such, the Van Dorn case is sufficient basis in resolving a
situation where a divorce is validly obtained abroad by the
alien spouse. With the enactment of the Family Code and
paragraph 2, Article 26 thereof, our lawmakers codified the law
already established through judicial precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering
its continuance intolerable to one of the parties and productive
of no possible good to the community, relief in some way
should be obtainable. 64 Marriage, being a mutual and shared
commitment between two parties, cannot possibly be
productive of any good to the society where one is considered
released from the marital bond while the other remains bound
to it. Such is the state of affairs where the alien spouse obtains
a valid divorce abroad against the Filipino spouse, as in this
case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in
stating that the divorce is void under Philippine law insofar as
Filipinos are concerned. However, in light of this Court’s
rulings in the cases discussed above, the Filipino spouse
should not be discriminated against in his own country if the
ends of justice are to be served. 67 In Alonzo v. Intermediate
Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its
results; and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the first
concern of the judge should be to discover in its provisions the
intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is
never within the legislative intent. An indispensable part of that
intent, in fact, for we presume the good motives of the
legislature, is to render justice.
79
Thus, we interpret and apply the law not independently of but
in consonance with justice. Law and justice are inseparable,
and we must keep them so. To be sure, there are some laws
that, while generally valid, may seem arbitrary when applied in
a particular case because of its peculiar circumstances. In
such a situation, we are not bound, because only of our nature
and functions, to apply them just the same, in slavish
obedience to their language. What we do instead is find a
balance between the word and the will, that justice may be
done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots to
the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to
the words of a law," so we are warned, by Justice Holmes
again, "where these words import a policy that goes beyond
them."
xxxx
More than twenty centuries ago, Justinian defined justice "as
the constant and perpetual wish to render every one his due."
That wish continues to motivate this Court when it assesses
the facts and the law in every case brought to it for decision.
Justice is always an essential ingredient of its decisions. Thus
when the facts warrants, we interpret the law in a way that will
render justice, presuming that it was the intention of the
lawmaker, to begin with, that the law be dispensed with
justice. 69
Applying the above doctrine in the instant case, the divorce
decree allegedly obtained by Merry Lee which absolutely
allowed Felicisimo to remarry, would have vested Felicidad
with the legal personality to file the present petition as
Felicisimo’s surviving spouse. However, the records show that
there is insufficient evidence to prove the validity of the divorce
obtained by Merry Lee as well as the marriage of respondent
and Felicisimo under the laws of the U.S.A. In Garcia v.
Recio, 70 the Court laid down the specific guidelines for
pleading and proving foreign law and divorce judgments. It
held that presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due execution
must be presented. Under Sections 24 and 25 of Rule 132, a
writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication
or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of
his office. 71
With regard to respondent’s marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of
the Marriage Certificate and the annotated text 72 of the Family
Law Act of California which purportedly show that their
marriage was done in accordance with the said law. As stated
in Garcia, however, the Court cannot take judicial notice of
foreign laws as they must be alleged and proved. 73
Therefore, this case should be remanded to the trial court for
further reception of evidence on the divorce decree obtained
by Merry Lee and the marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry
respondent in 1974, nevertheless, we find that the latter has
the legal personality to file the subject petition for letters of
administration, as she may be considered the co-owner of
Felicisimo as regards the properties that were acquired
through their joint efforts during their cohabitation.
80
Section 6, 74 Rule 78 of the Rules of Court states that letters of
administration may be granted to the surviving spouse of the
decedent. However, Section 2, Rule 79 thereof also provides
in part:
SEC. 2. Contents of petition for letters of administration. – A
petition for letters of administration must be filed by an
interested person and must show, as far as known to the
petitioner: x x x.
An "interested person" has been defined as one who would be
benefited by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor. The interest must
be material and direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested
person who has a direct interest in the estate of Felicisimo by
virtue of their cohabitation, the existence of which was not
denied by petitioners. If she proves the validity of the divorce
and Felicisimo’s capacity to remarry, but fails to prove that her
marriage with him was validly performed under the laws of the
U.S.A., then she may be considered as a co-owner under
Article 144 76 of the Civil Code. This provision governs the
property relations between parties who live together as
husband and wife without the benefit of marriage, or their
marriage is void from the beginning. It provides that the
property acquired by either or both of them through their work
or industry or their wages and salaries shall be governed by
the rules on co-ownership. In a co-ownership, it is not
necessary that the property be acquired through their joint
labor, efforts and industry. Any property acquired during the
union is prima facie presumed to have been obtained through
their joint efforts. Hence, the portions belonging to the co-
owners shall be presumed equal, unless the contrary is
proven. 77
Meanwhile, if respondent fails to prove the validity of both the
divorce and the marriage, the applicable provision would be
Article 148 of the Family Code which has filled the hiatus in
Article 144 of the Civil Code by expressly regulating the
property relations of couples living together as husband and
wife but are incapacitated to marry. 78 In Saguid v. Court of
Appeals, 79 we held that even if the cohabitation or the
acquisition of property occurred before the Family Code took
effect, Article 148 governs. 80 The Court described the property
regime under this provision as follows:
The regime of limited co-ownership of property governing the
union of parties who are not legally capacitated to marry each
other, but who nonetheless live together as husband and wife,
applies to properties acquired during said cohabitation in
proportion to their respective contributions. Co-ownership will
only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent
thereof, their contributions and corresponding shares shall be
presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez,
which involved the issue of co-ownership of properties
acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof of
actual contribution in the acquisition of the property is
essential. x x x
As in other civil cases, the burden of proof rests upon the party
who, as determined by the pleadings or the nature of the case,
asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength
of the party’s own evidence and not upon the weakness of the
opponent’s defense. x x x 81
81
In view of the foregoing, we find that respondent’s legal
capacity to file the subject petition for letters of administration
may arise from her status as the surviving wife of Felicisimo or
as his co-owner under Article 144 of the Civil Code or Article
148 of the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals reinstating and affirming the February 28,
1994 Order of the Regional Trial Court which denied
petitioners’ motion to dismiss and its October 24, 1994 Order
which dismissed petitioners’ motion for reconsideration is
AFFIRMED. Let this case be REMANDED to the trial court for
further proceedings.
SO ORDERED.
G.R. No. 171914 July 23, 2014
SOLEDAD L. LAVADIA, Petitioner,
vs.
HEIRS OF JUAN LUCES LUNA, represented by
GREGORIO Z. LUNA and EUGENIA ZABALLERO-
LUNA,Respondents.
DECISION
BERSAMIN, J.:
Divorce between Filipinos is void and ineffectual under the
nationality rule adopted by Philippine law. Hence, any
settlement of property between the parties of the first marriage
involving Filipinos submitted as an incident of a divorce
obtained in a foreign country lacks competent judicial
approval, and cannot be enforceable against the assets of the
husband who contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty. Juan Luces
Luna, appeals the adverse decision promulgated on
November 11, 2005,1 whereby the Court of Appeals (CA)
affirmed with modification the decision rendered on August 27,
2001 by the Regional Trial Court (RTC), Branch 138, in Makati
City.2 The CA thereby denied her right in the 25/100 pro
indiviso share of the husband in a condominium unit, and in
the law books of the husband acquired during the second
marriage.
Antecedents
The antecedent facts were summarized by the CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a name partner
in the prestigious law firm Sycip, Salazar, Luna, Manalo,
Hernandez & Feliciano Law Offices at that time when he was
living with his first wife, herein intervenor-appellant Eugenia
Zaballero-Luna (EUGENIA), whom he initially married ina civil
ceremony conducted by the Justice of the Peace of
Parañaque, Rizal on September 10, 1947 and later
solemnized in a church ceremony at the Pro-Cathedral in San
Miguel, Bulacan on September 12, 1948. In ATTY. LUNA’s
marriage to EUGENIA, they begot seven (7) children, namely:
Regina Maria L. Nadal, Juan Luis Luna, Araceli Victoria L.
Arellano, Ana Maria L. Tabunda, Gregorio Macario Luna,
Carolina Linda L. Tapia, and Cesar Antonio Luna. After almost
two (2) decades of marriage, ATTY. LUNA and EUGENIA
eventually agreed to live apart from each other in February
1966 and agreed to separation of property, to which end, they
entered into a written agreement entitled "AGREEMENT FOR
SEPARATION AND PROPERTY SETTLEMENT" dated
November 12, 1975, whereby they agreed to live separately
82
and to dissolve and liquidate their conjugal partnership of
property.
On January 12, 1976, ATTY. LUNA obtained a divorce decree
of his marriage with EUGENIA from the Civil and Commercial
Chamber of the First Circumscription of the Court of First
Instance of Sto. Domingo, Dominican Republic. Also in
Sto.Domingo, Dominican Republic, on the same date, ATTY.
LUNA contracted another marriage, this time with SOLEDAD.
Thereafter, ATTY. LUNA and SOLEDAD returned to the
Philippines and lived together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new law firm
named: Luna, Puruganan, Sison and Ongkiko (LUPSICON)
where ATTY. LUNA was the managing partner.
On February 14, 1978, LUPSICON through ATTY. LUNA
purchased from Tandang Sora Development Corporation the
6th Floor of Kalaw-Ledesma Condominium
Project(condominium unit) at Gamboa St., Makati City,
consisting of 517.52 square meters, for ₱1,449,056.00, to be
paid on installment basis for 36months starting on April 15,
1978. Said condominium unit was to be usedas law office of
LUPSICON. After full payment, the Deed of Absolute Sale
over the condominium unit was executed on July 15, 1983,
and CCT No. 4779 was issued on August 10, 1983, which was
registered bearing the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (46/100);
MARIO E. ONGKIKO, married to Sonia P.G. Ongkiko
(25/100); GREGORIO R. PURUGANAN, married to Paz A.
Puruganan (17/100); and TERESITA CRUZ SISON, married to
Antonio J.M. Sison (12/100) x x x" Subsequently, 8/100 share
of ATTY. LUNA and 17/100 share of Atty. Gregorio R.
Puruganan in the condominium unit was sold to Atty. Mario E.
Ongkiko, for which a new CCT No. 21761 was issued on
February 7, 1992 in the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (38/100);
MARIO E. ONGKIKO, married to Sonia P.G. Ongkiko
(50/100); TERESITA CRUZ SISON, married to Antonio J.M.
Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the
condominium unit was partitioned by the partners but the
same was still registered in common under CCT No. 21716.
The parties stipulated that the interest of ATTY. LUNA over the
condominium unit would be 25/100 share. ATTY. LUNA
thereafter established and headed another law firm with Atty.
Renato G. Dela Cruzand used a portion of the office
condominium unit as their office. The said law firm lasted until
the death of ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the condominium
unit including the lawbooks, office furniture and equipment
found therein were taken over by Gregorio Z. Luna, ATTY.
LUNA’s son of the first marriage. Gregorio Z. Luna thenleased
out the 25/100 portion of the condominium unit belonging to
his father to Atty. Renato G. De la Cruz who established his
own law firm named Renato G. De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the
condominium unit as well as the law books, office furniture and
equipment became the subject of the complaint filed by
SOLEDAD against the heirs of ATTY. JUAN with the RTC of
Makati City, Branch 138, on September 10, 1999, docketed as
Civil Case No. 99-1644. The complaint alleged that the subject
properties were acquired during the existence of the marriage
between ATTY. LUNA and SOLEDAD through their joint
efforts that since they had no children, SOLEDAD became co-
owner of the said properties upon the death of ATTY. LUNA to
83
the extent of ¾ pro-indiviso share consisting of her ½ share in
the said properties plus her ½ share in the net estate of ATTY.
LUNA which was bequeathed to her in the latter’s last will and
testament; and thatthe heirs of ATTY. LUNA through Gregorio
Z. Luna excluded SOLEDAD from her share in the subject
properties. The complaint prayed that SOLEDAD be declared
the owner of the ¾ portion of the subject properties;that the
same be partitioned; that an accounting of the rentals on the
condominium unit pertaining to the share of SOLEDAD be
conducted; that a receiver be appointed to preserve ad
administer the subject properties;and that the heirs of ATTY.
LUNA be ordered to pay attorney’s feesand costs of the suit to
SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision after trial
upon the aforementioned facts,4 disposing thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium
unit located at the SIXTH FLOOR of the KALAW
LEDESMA CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761 consisting
of FIVE HUNDRED SEVENTEEN (517/100) SQUARE
METERS is adjudged to have been acquired by Juan
Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under any other
concept over the condominium unit, hence the entry in
Condominium Certificate of Title No. 21761 of the
Registry of Deeds of Makati with respect to the civil
status of Juan Luces Luna should be changed from
"JUAN LUCES LUNA married to Soledad L. Luna" to
"JUAN LUCES LUNA married to Eugenia Zaballero
Luna";
(c) Plaintiff is declared to be the owner of the books
Corpus Juris, Fletcher on Corporation, American
Jurisprudence and Federal Supreme Court Reports
found in the condominium unit and defendants are
ordered to deliver them to the plaintiff as soon as
appropriate arrangements have been madefor
transport and storage.
No pronouncement as to costs.
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following errors to the
RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT
THE CONDOMINIUM UNIT WAS ACQUIRED THRU
THE SOLE INDUSTRY OF ATTY. JUAN LUCES
LUNA;
II. THE LOWER COURT ERRED IN RULING THAT
PLAINTIFFAPPELLANT DID NOT CONTRIBUTE
MONEY FOR THE ACQUISITION OF THE
CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING
CREDENCE TO PORTIONS OF THE TESTIMONY OF
GREGORIO LUNA, WHO HAS NO ACTUAL
KNOWLEDGE OF THE ACQUISITION OF THE UNIT,
84
BUT IGNORED OTHER PORTIONS OF HIS
TESTIMONY FAVORABLE TO THE PLAINTIFF-
APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING
SIGNIFICANCE TO THE FACT THAT THE
CONJUGAL PARTNERSHIP BETWEEN LUNA AND
INTERVENOR-APPELLANT WAS ALREADY
DISSOLVED AND LIQUIDATED PRIOR TO THE
UNION OF PLAINTIFF-APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE ABSENCE OF THE
DISPOSITION OF THE CONDOMINIUM UNIT IN THE
HOLOGRAPHIC WILL OF THE PLAINTIFF-
APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE FACTTHAT THE NAME OF
PLAINTIFF-APPELLANT DID NOT APPEAR IN THE
DEED OF ABSOLUTE SALE EXECUTED BY
TANDANG SORA DEVELOPMENT CORPORATION
OVER THE CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN RULING THAT
NEITHER ARTICLE 148 OF THE FAMILYCODE NOR
ARTICLE 144 OF THE CIVIL CODE OF THE
PHILIPPINES ARE APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING
THAT THE CAUSE OF ACTION OF THE
INTERVENOR-APPELLANT HAS BEEN BARRED BY
PESCRIPTION AND LACHES; and
IX. THE LOWER COURT ERRED IN NOT
EXPUNGING/DISMISSING THE INTERVENTION
FOR FAILURE OF INTERVENOR-APPELLANT TO
PAY FILING FEE.7
In contrast, the respondents attributedthe following errors to
the trial court, to wit:
I. THE LOWER COURT ERRED IN HOLDING THAT
CERTAIN FOREIGN LAW BOOKS IN THE LAW
OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE
USE OF PLAINTIFF’S MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT
PLAINTIFF PROVED BY PREPONDERANCE OF
EVIDENCE (HER CLAIM OVER) THE SPECIFIED
FOREIGN LAW BOOKS FOUND IN ATTY. LUNA’S
LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT HOLDING
THAT, ASSUMING PLAINTIFF PAID FOR THE SAID
FOREIGN LAW BOOKS, THE RIGHT TO RECOVER
THEM HAD PRESCRIBED AND BARRED BY
LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its assailed
modified decision,9 holding and ruling:
EUGENIA, the first wife, was the legitimate wife of ATTY.
LUNA until the latter’s death on July 12, 1997. The absolute
divorce decree obtained by ATTY. LUNA inthe Dominican
Republic did not terminate his prior marriage with EUGENIA
because foreign divorce between Filipino citizens is not
recognized in our jurisdiction. x x x10
xxxx
85
WHEREFORE, premises considered, the assailed August 27,
2001 Decision of the RTC of MakatiCity, Branch 138, is hereby
MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium
unit at the SIXTH FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of FIVE
HUNDRED SEVENTEEN (517/100) (sic) SQUARE
METERS is hereby adjudged to defendants-appellants,
the heirs of Juan Luces Luna and Eugenia Zaballero-
Luna (first marriage), having been acquired from the
sole funds and sole industry of Juan Luces Luna while
marriage of Juan Luces Luna and Eugenia Zaballero-
Luna (first marriage) was still subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as
owner or under any other concept over the
condominium unit, hence the entry in Condominium
Certificate of Title No. 21761 of the Registry of Deeds
ofMakati with respect to the civil status of Juan Luces
Luna should be changed from "JUAN LUCES LUNA
married to Soledad L. Luna" to "JUAN LUCES LUNA
married to Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces
Luna and Eugenia Zaballero-Luna(first marriage) are
hereby declared to be the owner of the books Corpus
Juris, Fletcher on Corporation, American Jurisprudence
and Federal Supreme Court Reports found in the
condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the petitioner’s motion for
reconsideration.13
Issues
In this appeal, the petitioner avers in her petition for review on
certiorarithat:
A. The Honorable Court of Appeals erred in ruling that
the Agreement for Separation and Property Settlement
executed by Luna and Respondent Eugenia was
unenforceable; hence, their conjugal partnership was
not dissolved and liquidated;
B. The Honorable Court of Appeals erred in not
recognizing the Dominican Republic court’s approval of
the Agreement;
C. The Honorable Court of Appeals erred in ruling that
Petitioner failed to adduce sufficient proof of actual
contribution to the acquisition of purchase of the
subjectcondominium unit; and
D. The Honorable Court of Appeals erred in ruling that
Petitioner was not entitled to the subject law books.14
The decisive question to be resolved is who among the
contending parties should be entitled to the 25/100 pro
indivisoshare in the condominium unit; and to the law books
(i.e., Corpus Juris, Fletcher on Corporation, American
Jurisprudence and Federal Supreme Court Reports).
The resolution of the decisive question requires the Court to
ascertain the law that should determine, firstly, whether the
divorce between Atty. Luna and Eugenia Zaballero-Luna
(Eugenia) had validly dissolved the first marriage; and,
86
secondly, whether the second marriage entered into by the
late Atty. Luna and the petitioner entitled the latter to any rights
in property. Ruling of the Court
We affirm the modified decision of the CA.
1. Atty. Luna’s first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna and Eugenia, both
Filipinos, was solemnized in the Philippines on September 10,
1947. The law in force at the time of the solemnization was the
Spanish Civil Code, which adopted the nationality rule. The
Civil Codecontinued to follow the nationality rule, to the effect
that Philippine laws relating to family rights and duties, or to
the status, condition and legal capacity of persons were
binding upon citizens of the Philippines, although living
abroad.15 Pursuant to the nationality rule, Philippine laws
governed thiscase by virtue of bothAtty. Luna and Eugenio
having remained Filipinos until the death of Atty. Luna on July
12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on
September 10, 1947 until the present, absolute divorce
between Filipino spouses has not been recognized in the
Philippines. The non-recognition of absolute divorce between
Filipinos has remained even under the Family Code,16 even if
either or both of the spouses are residing abroad.17 Indeed,
the only two types of defective marital unions under our laws
have beenthe void and the voidable marriages. As such, the
remedies against such defective marriages have been limited
to the declaration of nullity ofthe marriage and the annulment
of the marriage.
It is true that on January 12, 1976, the Court of First Instance
(CFI) of Sto. Domingo in the Dominican Republic issued the
Divorce Decree dissolving the first marriage of Atty. Luna and
Eugenia.18 Conformably with the nationality rule, however, the
divorce, even if voluntarily obtained abroad, did not dissolve
the marriage between Atty. Luna and Eugenia, which
subsisted up to the time of his death on July 12, 1997. This
finding conforms to the Constitution, which characterizes
marriage as an inviolable social institution,19 and regards it as
a special contract of permanent union between a man and a
woman for the establishment of a conjugal and family
life.20 The non-recognition of absolute divorce in the
Philippines is a manifestation of the respect for the sanctity of
the marital union especially among Filipino citizens. It affirms
that the extinguishment of a valid marriage must be grounded
only upon the death of either spouse, or upon a ground
expressly provided bylaw. For as long as this public policy on
marriage between Filipinos exists, no divorce decree
dissolving the marriage between them can ever be given legal
or judicial recognition and enforcement in this jurisdiction.
2. The Agreement for Separation and Property Settlement
was void for lack of court approval
The petitioner insists that the Agreement for Separation and
Property Settlement (Agreement) that the late Atty. Luna and
Eugenia had entered into and executed in connection with the
divorce proceedings before the CFI of Sto. Domingo in the
Dominican Republic to dissolve and liquidate their conjugal
partnership was enforceable against Eugenia. Hence, the CA
committed reversible error in decreeing otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not entered into
any marriage settlement prior to their marriage on September
10, 1947, the system of relative community or conjugal
partnership of gains governed their property relations. This is
87
because the Spanish Civil Code, the law then in force at the
time of their marriage, did not specify the property regime of
the spouses in the event that they had not entered into any
marriage settlement before or at the time of the marriage.
Article 119 of the Civil Codeclearly so provides, to wit:
Article 119. The future spouses may in the marriage
settlements agree upon absolute or relative community of
property, or upon complete separation of property, or upon any
other regime. In the absence of marriage settlements, or when
the same are void, the system of relative community or
conjugal partnership of gains as established in this Code, shall
govern the property relations between husband and wife.
Article 142 of the Civil Codehas defined a conjugal partnership
of gains thusly:
Article 142. By means of the conjugal partnership of gains the
husband and wife place in a common fund the fruits of their
separate property and the income from their work or industry,
and divide equally, upon the dissolution of the marriage or of
the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.
The conjugal partnership of gains subsists until terminated for
any of various causes of termination enumerated in Article 175
of the Civil Code, viz:
Article 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under
Article 191.
The mere execution of the Agreement by Atty. Luna and
Eugenia did not per sedissolve and liquidate their conjugal
partnership of gains. The approval of the Agreement by a
competent court was still required under Article 190 and Article
191 of the Civil Code, as follows:
Article 190. In the absence of an express declaration in the
marriage settlements, the separation of property between
spouses during the marriage shall not take place save in virtue
of a judicial order. (1432a)
Article 191. The husband or the wife may ask for the
separation of property, and it shall be decreed when the
spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction, or has been declared
absent, or when legal separation has been granted.
xxxx
The husband and the wife may agree upon the dissolution of
the conjugal partnership during the marriage, subject to judicial
approval. All the creditors of the husband and of the wife, as
well as of the conjugal partnership shall be notified of any
petition for judicialapproval or the voluntary dissolution of the
conjugal partnership, so that any such creditors may appear
atthe hearing to safeguard his interests. Upon approval of the
petition for dissolution of the conjugal partnership, the court
shall take such measures as may protect the creditors and
other third persons.
After dissolution of the conjugal partnership, the provisions of
articles 214 and 215 shall apply. The provisions of this Code
88
concerning the effect of partition stated in articles 498 to 501
shall be applicable. (1433a)
But was not the approval of the Agreement by the CFI of Sto.
Domingo in the Dominican Republic sufficient in dissolving and
liquidating the conjugal partnership of gains between the late
Atty. Luna and Eugenia?
The query is answered in the negative. There is no question
that the approval took place only as an incident ofthe action for
divorce instituted by Atty. Luna and Eugenia, for, indeed, the
justifications for their execution of the Agreement were
identical to the grounds raised in the action for divorce.21 With
the divorce not being itself valid and enforceable under
Philippine law for being contrary to Philippine public policy and
public law, the approval of the Agreement was not also legally
valid and enforceable under Philippine law. Consequently, the
conjugal partnership of gains of Atty. Luna and Eugenia
subsisted in the lifetime of their marriage.
3. Atty. Luna’s marriage with Soledad, being bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the second
marriage between Atty. Luna and Soledad?
The CA expressly declared that Atty. Luna’s subsequent
marriage to Soledad on January 12, 1976 was void for being
bigamous,22 on the ground that the marriage between Atty.
Luna and Eugenia had not been dissolved by the Divorce
Decree rendered by the CFI of Sto. Domingo in the Dominican
Republic but had subsisted until the death of Atty. Luna on
July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous, polygamous,
or incestuous are void. Article 71 of the Civil Codeclearly
states:
Article 71. All marriages performed outside the Philippines in
accordance with the laws in force in the country where they
were performed, and valid there as such, shall also be valid in
this country, except bigamous, polygamous, or incestuous
marriages as determined by Philippine law.
Bigamy is an illegal marriage committed by contracting a
second or subsequent marriage before the first marriage has
been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings.23 A bigamous marriage is
considered void ab initio.24
Due to the second marriage between Atty. Luna and the
petitioner being void ab initioby virtue of its being bigamous,
the properties acquired during the bigamous marriage were
governed by the rules on co-ownership, conformably with
Article 144 of the Civil Code, viz:
Article 144. When a man and a woman live together as
husband and wife, but they are not married, ortheir marriage is
void from the beginning, the property acquired by eitheror both
of them through their work or industry or their wages and
salaries shall be governed by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership carried the
burden of proof to confirm such fact.1âwphi1 To establish co-
ownership, therefore, it became imperative for the petitioner to
offer proof of her actual contributions in the acquisition of
property. Her mere allegation of co-ownership, without
sufficient and competent evidence, would warrant no relief in
89
her favor. As the Court explained in Saguid v. Court of
Appeals:25
In the cases of Agapay v. Palang, and Tumlos v. Fernandez,
which involved the issue of co-ownership ofproperties acquired
by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual
contribution in the acquisition of the property is essential. The
claim of co-ownership of the petitioners therein who were
parties to the bigamous and adulterousunion is without basis
because they failed to substantiate their allegation that they
contributed money in the purchase of the disputed properties.
Also in Adriano v. Court of Appeals, we ruled that the fact that
the controverted property was titled in the name of the parties
to an adulterous relationship is not sufficient proof of
coownership absent evidence of actual contribution in the
acquisition of the property.
As in other civil cases, the burden of proof rests upon the party
who, as determined by the pleadings or the nature of the case,
asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength
of the party’s own evidence and not upon the weakness of the
opponent’s defense. This applies with more vigor where, as in
the instant case, the plaintiff was allowed to present evidence
ex parte.1âwphi1 The plaintiff is not automatically entitled to
the relief prayed for. The law gives the defendantsome
measure of protection as the plaintiff must still prove the
allegations in the complaint. Favorable relief can be granted
only after the court isconvinced that the facts proven by the
plaintiff warrant such relief. Indeed, the party alleging a fact
has the burden of proving it and a mereallegation is not
evidence.26
The petitioner asserts herein that she sufficiently proved her
actual contributions in the purchase of the condominium unit in
the aggregate amount of at least ₱306,572.00, consisting in
direct contributions of ₱159,072.00, and in repaying the loans
Atty. Luna had obtained from Premex Financing and Banco
Filipino totaling ₱146,825.30;27 and that such aggregate
contributions of ₱306,572.00 corresponded to almost the
entire share of Atty. Luna in the purchase of the condominium
unit amounting to ₱362,264.00 of the unit’s purchase price of
₱1,449,056.00.28 The petitioner further asserts that the
lawbooks were paid for solely out of her personal funds, proof
of which Atty. Luna had even sent her a "thank you"
note;29 that she had the financial capacity to make the
contributions and purchases; and that Atty. Luna could not
acquire the properties on his own due to the meagerness of
the income derived from his law practice.
Did the petitioner discharge her burden of proof on the co-
ownership?
In resolving the question, the CA entirely debunked the
petitioner’s assertions on her actual contributions through the
following findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of
evidence that her own independent funds were used to buy
the law office condominium and the law books subject matter
in contentionin this case – proof that was required for Article
144 of the New Civil Code and Article 148 of the Family Code
to apply – as to cases where properties were acquired by a
man and a woman living together as husband and wife but not
married, or under a marriage which was void ab initio. Under
Article 144 of the New Civil Code, the rules on co-ownership
would govern. But this was not readily applicable to many
situations and thus it created a void at first because it applied
only if the parties were not in any way incapacitated or were
without impediment to marry each other (for it would be absurd
to create a co-ownership where there still exists a prior
90
conjugal partnership or absolute community between the man
and his lawful wife). This void was filled upon adoption of the
Family Code. Article 148 provided that: only the property
acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned in
common and in proportion to their respective contributions.
Such contributions and corresponding shares were prima
faciepresumed to be equal. However, for this presumption to
arise, proof of actual contribution was required. The same rule
and presumption was to apply to joint deposits of money and
evidence of credit. If one of the parties was validly married to
another, his or her share in the co-ownership accrued to the
absolute community or conjugal partnership existing in such
valid marriage. If the party who acted in bad faith was not
validly married to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the Article 147.
The rules on forfeiture applied even if both parties were in bad
faith. Co-ownership was the exception while conjugal
partnership of gains was the strict rule whereby marriage was
an inviolable social institution and divorce decrees are not
recognized in the Philippines, as was held by the Supreme
Court in the case of Tenchavez vs. Escaño, G.R. No. L-19671,
November 29, 1965, 15 SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in the
condominium unit, SOLEDAD failed to prove that she made an
actual contribution to purchase the said property. She failed to
establish that the four (4) checks that she presented were
indeed used for the acquisition of the share of ATTY. LUNA in
the condominium unit. This was aptly explained in the Decision
of the trial court, viz.:
"x x x The first check, Exhibit "M" for ₱55,000.00 payable to
Atty. Teresita Cruz Sison was issued on January 27, 1977,
which was thirteen (13) months before the Memorandum of
Agreement, Exhibit "7" was signed. Another check issued on
April 29, 1978 in the amount of ₱97,588.89, Exhibit "P" was
payable to Banco Filipino. According to the plaintiff, thiswas in
payment of the loan of Atty. Luna. The third check which was
for ₱49,236.00 payable to PREMEX was dated May 19, 1979,
also for payment of the loan of Atty. Luna. The fourth check,
Exhibit "M", for ₱4,072.00 was dated December 17, 1980.
None of the foregoing prove that the amounts delivered by
plaintiff to the payees were for the acquisition of the subject
condominium unit. The connection was simply not established.
x x x"
SOLEDAD’s claim that she made a cash contribution of
₱100,000.00 is unsubstantiated. Clearly, there is no basis for
SOLEDAD’s claim of co-ownership over the 25/100 portion of
the condominium unit and the trial court correctly found that
the same was acquired through the sole industry of ATTY.
LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9", covering the
condominium unit was in the name of Atty. Luna, together with
his partners in the law firm. The name of the plaintiff does not
appear as vendee or as the spouse of Atty. Luna. The same
was acquired for the use of the Law firm of Atty. Luna. The
loans from Allied Banking Corporation and Far East Bank and
Trust Company were loans of Atty. Luna and his partners and
plaintiff does not have evidence to show that she paid for them
fully or partially. x x x"
The fact that CCT No. 4779 and subsequently, CCT No.
21761 were in the name of "JUAN LUCES LUNA, married to
Soledad L. Luna" was no proof that SOLEDAD was a co-
owner of the condominium unit. Acquisition of title and
registration thereof are two different acts. It is well settled that
registration does not confer title but merely confirms one
91
already existing. The phrase "married to" preceding "Soledad SO ORDERED.
L. Luna" is merely descriptive of the civil status of ATTY.
LUNA. G.R. No. 188289 August 20, 2014

SOLEDAD, the second wife, was not even a lawyer. So it is
but logical that SOLEDAD had no participation in the law firm
or in the purchase of books for the law firm. SOLEDAD failed
to prove that she had anything to contribute and that she
actually purchased or paid for the law office amortization and
for the law books. It is more logical to presume that it was
ATTY. LUNA who bought the law office space and the law
books from his earnings from his practice of law rather than
embarrassingly beg or ask from SOLEDAD money for use of
the law firm that he headed.30
The Court upholds the foregoing findings and conclusions by
the CA both because they were substantiated by the records
and because we have not been shown any reason to revisit
and undo them. Indeed, the petitioner, as the party claiming
the co-ownership, did not discharge her burden of proof. Her
mere allegations on her contributions, not being
evidence,31 did not serve the purpose. In contrast, given the
subsistence of the first marriage between Atty. Luna and
Eugenia, the presumption that Atty. Luna acquired the
properties out of his own personal funds and effort remained. It
should then be justly concluded that the properties in
litislegally pertained to their conjugal partnership of gains as of
the time of his death. Consequently, the sole ownership of the
25/100 pro indivisoshare of Atty. Luna in the condominium
unit, and of the lawbooks pertained to the respondents as the
lawful heirs of Atty. Luna.
DAVID A. NOVERAS, Petitioner,
vs.
LETICIA T. NOVERAS, Respondent.
DECISION
PEREZ, J.:
Before the Court is a petition for review assailing the 9 May
2008 Decision1 of the Court of Appeals in CA-G.R .. CV No.
88686, which affirmed in part the 8 December 2006
Decision2 of the Regional Trial Court (RTC) of Baler, Aurora,
Branch 96.
The factual antecedents are as follow:
David A. Noveras (David) and Leticia T. Noveras (Leticia)
were married on 3 December 1988 in Quezon City,
Philippines. They resided in California, United States of
America (USA) where they eventually acquired American
citizenship. They then begot two children, namely: Jerome T.
Noveras, who was born on 4 November 1990 and JenaT.
Noveras, born on 2 May 1993. David was engaged in courier
service business while Leticia worked as a nurse in San
Francisco, California.

WHEREFORE, the Court AFFIRMS the decision promulgated During the marriage, they acquired the following properties in
on November 11, 2005; and ORDERS the petitioner to pay the the Philippines and in the USA:
costs of suit.
PHILIPPINES

92
PROPERTY FAIR MARKET VALUE annuities
House and Lot with an area of 150 sq. m. ₱1,693,125.00
located at 1085 Norma Street, Sampaloc, The Sampaloc property used to beowned by David’s parents.
Manila (Sampaloc property) The parties herein secured a loan from a bank and mortgaged
the property. When said property was about to be foreclosed,
Agricultural land with an area of 20,742 sq. ₱400,000.00 the couple paid a total of ₱1.5 Million for the redemption of the
m. located at Laboy, Dipaculao, Aurora same.
A parcel of land with an area of 2.5 ₱490,000.00
hectares located at Maria Aurora, Aurora Due to business reverses, David left the USA and returned to
the Philippines in 2001. In December 2002,Leticia executed a
A parcel of land with an area of 175 sq.m. ₱175,000.00 3
Special Power of Attorney (SPA) authorizing David to sell the
located at Sabang Baler, Aurora Sampaloc property for ₱2.2 Million. According to Leticia,
sometime in September 2003, David abandoned his family
3-has. coconut plantation in San Joaquin ₱750,000.00
and lived with Estrellita Martinez in Aurora province. Leticia
Maria Aurora, Aurora
claimed that David agreed toand executed a Joint Affidavit
USA with Leticia in the presence of David’s father, Atty. Isaias
Noveras, on 3 December 2003 stating that: 1) the ₱1.1Million
PROPERTY FAIR MARKET VALUE proceeds from the sale of the Sampaloc property shall be paid
House and Lot at 1155 Hanover Street, to and collected by Leticia; 2) that David shall return and pay
Daly City, California to Leticia ₱750,000.00, which is equivalent to half of the
amount of the redemption price of the Sampaloc property; and
$550,000.00 3) that David shall renounce and forfeit all his rights and
(unpaid debt of interest in the conjugal and real properties situated in the
$285,000.00) Philippines.5 David was able to collect ₱1,790,000.00 from the
Furniture and furnishings $3,000 sale of the Sampaloc property, leaving an unpaid balance of
₱410,000.00.
Jewelries (ring and watch) $9,000
Upon learning that David had an extra-marital affair, Leticia
2000 Nissan Frontier 4x4 pickup truck $13,770.00
filed a petition for divorce with the Superior Court of California,
Bank of America Checking Account $8,000 County of San Mateo, USA. The California court granted the
divorce on 24 June 2005 and judgment was duly entered on
Bank of America Cash Deposit 29 June 2005.6 The California court granted to Leticia the
Life Insurance (Cash Value) $100,000.00 custody of her two children, as well as all the couple’s
properties in the USA.7
4
Retirement, pension, profit-sharing, $56,228.00

93
On 8 August 2005, Leticia filed a petition for Judicial
Separation of Conjugal Property before the RTC of Baler,
Aurora. She relied on the 3 December 2003 Joint Affidavit and
David’s failure to comply with his obligation under the same.
She prayed for: 1) the power to administer all conjugal
properties in the Philippines; 2) David and his partner to cease
and desist from selling the subject conjugal properties; 3) the
declaration that all conjugal properties be forfeited in favor of
her children; 4) David to remit half of the purchase price as
share of Leticia from the sale of the Sampaloc property; and 5)
the payment of₱50,000.00 and ₱100,000.00 litigation
expenses.8
In his Answer, David stated that a judgment for the dissolution
of their marriage was entered on 29 June 2005 by the Superior
Court of California, County of San Mateo. He demanded that
the conjugal partnership properties, which also include the
USA properties, be liquidated and that all expenses of
liquidation, including attorney’s fees of both parties be charged
against the conjugal partnership.9
The RTC of Baler, Aurora simplified the issues as follow:
1. Whether or not respondent David A. Noveras
committed acts of abandonment and marital infidelity
which can result intothe forfeiture of the parties’
properties in favor of the petitioner and their two (2)
children.
2. Whether or not the Court has jurisdiction over the
properties in California, U.S.A. and the same can be
included in the judicial separation prayed for.
3. Whether or not the "Joint Affidavit" x x x executed by
petitioner Leticia T. Noveras and respondent David A.
Noveras will amount to a waiver or forfeiture of the
latter’s property rights over their conjugal properties.
4. Whether or not Leticia T. Noveras isentitled to
reimbursement of onehalf of the ₱2.2 [M]illion sales
proceeds of their property in Sampaloc, Manila and
one-half of the ₱1.5 [M]illion used to redeem the
property of Atty. Isaias Noveras, including interests and
charges.
5. How the absolute community properties should be
distributed.
6. Whether or not the attorney’s feesand litigation
expenses of the parties were chargeable against their
conjugal properties.
Corollary to the aboveis the issue of:
Whether or not the two common children of the parties are
entitled to support and presumptive legitimes.10
On 8 December 2006, the RTC rendered judgment as follows:
1. The absolute community of property of the parties is
hereby declared DISSOLVED;
2. The net assets of the absolute community of
property ofthe parties in the Philippines are hereby
ordered to be awarded to respondent David A. Noveras
only, with the properties in the United States of
America remaining in the sole ownership of petitioner
Leticia Noveras a.k.a. Leticia Tacbiana pursuant to the
divorce decree issuedby the Superior Court of
California, County of San Mateo, United States of
America, dissolving the marriage of the parties as of
94
June 24, 2005. The titles presently covering said
properties shall be cancelled and new titles be issued
in the name of the party to whom said properties are
awarded;
3. One-half of the properties awarded to respondent
David A. Noveras in the preceding paragraph are
hereby given to Jerome and Jena, his two minor
children with petitioner LeticiaNoveras a.k.a. Leticia
Tacbiana as their presumptive legitimes and said
legitimes must be annotated on the titles covering the
said properties.Their share in the income from these
properties shall be remitted to them annually by the
respondent within the first half of January of each year,
starting January 2008;
4. One-half of the properties in the United States of
America awarded to petitioner Leticia Noveras a.k.a.
Leticia Tacbiana in paragraph 2 are hereby given to
Jerome and Jena, her two minor children with
respondent David A. Noveras as their presumptive
legitimes and said legitimes must be annotated on the
titles/documents covering the said properties. Their
share in the income from these properties, if any, shall
be remitted to them annually by the petitioner within the
first half of January of each year, starting January
2008;
5. For the support of their two (2) minor children,
Jerome and Jena, respondent David A. Noveras shall
give them US$100.00 as monthly allowance in addition
to their income from their presumptive legitimes, while
petitioner Leticia Tacbiana shall take care of their food,
clothing, education and other needs while they are in
her custody in the USA. The monthly allowance due
from the respondent shall be increased in the future as
the needs of the children require and his financial
capacity can afford;
6. Of the unpaid amount of ₱410,000.00 on the
purchase price of the Sampaloc property, the Paringit
Spouses are hereby ordered to pay ₱5,000.00 to
respondent David A. Noveras and ₱405,000.00 to the
two children. The share of the respondent may be paid
to him directly but the share of the two children shall be
deposited with a local bank in Baler, Aurora, in a joint
account tobe taken out in their names, withdrawal from
which shall only be made by them or by their
representative duly authorized with a Special Power of
Attorney. Such payment/deposit shall be made
withinthe period of thirty (30) days after receipt of a
copy of this Decision, with the passbook of the joint
account to be submitted to the custody of the Clerk of
Court of this Court within the same period. Said
passbook can be withdrawn from the Clerk of Court
only by the children or their attorney-in-fact; and
7. The litigation expenses and attorney’s fees incurred
by the parties shall be shouldered by them
individually.11
The trial court recognized that since the parties are US
citizens, the laws that cover their legal and personalstatus are
those of the USA. With respect to their marriage, the parties
are divorced by virtue of the decree of dissolution of their
marriage issued by the Superior Court of California, County of
San Mateo on 24June 2005. Under their law, the parties’
marriage had already been dissolved. Thus, the trial court
considered the petition filed by Leticia as one for liquidation of
the absolute community of property regime with the
determination of the legitimes, support and custody of the
95
children, instead of an action for judicial separation of conjugal
property.
With respect to their property relations, the trial court first
classified their property regime as absolute community of
property because they did not execute any marriage
settlement before the solemnization of their marriage pursuant
to Article 75 of the Family Code. Then, the trial court ruled that
in accordance with the doctrine of processual presumption,
Philippine law should apply because the court cannot take
judicial notice of the US law since the parties did not submit
any proof of their national law. The trial court held that as the
instant petition does not fall under the provisions of the law for
the grant of judicial separation of properties, the absolute
community properties cannot beforfeited in favor of Leticia and
her children. Moreover, the trial court observed that Leticia
failed to prove abandonment and infidelity with preponderant
evidence.
The trial court however ruled that Leticia is not entitled to the
reimbursements she is praying for considering that she
already acquired all of the properties in the USA. Relying still
on the principle of equity, the Court also adjudicated the
Philippine properties to David, subject to the payment of the
children’s presumptive legitimes. The trial court held that under
Article 89 of the Family Code, the waiver or renunciation made
by David of his property rights in the Joint Affidavit is void.
On appeal, the Court of Appeals modified the trial court’s
Decision by directing the equal division of the Philippine
properties between the spouses. Moreover with respect to the
common children’s presumptive legitime, the appellate court
ordered both spouses to each pay their children the amount of
₱520,000.00, thus:
WHEREFORE, the instant appeal is PARTLY GRANTED.
Numbers 2, 4 and 6 of the assailedDecision dated December
8, 2006 of Branch 96, RTC of Baler, Aurora Province, in Civil
Case No. 828 are hereby MODIFIED to read as follows:
2. The net assets of the absolute community of
property of the parties in the Philippines are hereby
divided equally between petitioner Leticia Noveras
a.k.a. Leticia Tacbiana (sic) and respondent David A.
Noveras;
xxx
4. One-half of the properties awarded to petitioner
Leticia Tacbiana (sic) in paragraph 2 shall pertain to
her minor children, Jerome and Jena, as their
presumptive legitimes which shall be annotated on the
titles/documents covering the said properties. Their
share in the income therefrom, if any, shall be remitted
to them by petitioner annually within the first half of
January, starting 2008;
xxx
6. Respondent David A. Noveras and petitioner Leticia
Tacbiana (sic) are each ordered to pay the amount
of₱520,000.00 to their two children, Jerome and Jena,
as their presumptive legitimes from the sale of the
Sampaloc property inclusive of the receivables
therefrom, which shall be deposited to a local bank of
Baler, Aurora, under a joint account in the latter’s
names. The payment/deposit shall be made within a
period of thirty (30) days from receipt ofa copy of this
Decision and the corresponding passbook entrusted to
the custody ofthe Clerk of Court a quowithin the same
96
 period, withdrawable only by the children or their
attorney-in-fact.
A number 8 is hereby added, which shall read as
follows:
8. Respondent David A. Noveras is hereby ordered to
pay petitioner Leticia Tacbiana (sic) the amount of
₱1,040,000.00 representing her share in the proceeds
from the sale of the Sampaloc property.
The last paragraph shall read as follows:
Send a copy of this Decision to the local civil registry of Baler,
Aurora; the local civil registry of Quezon City; the Civil
RegistrarGeneral, National Statistics Office, Vibal Building,
Times Street corner EDSA, Quezon City; the Office of the
Registry of Deeds for the Province of Aurora; and to the
children, Jerome Noveras and Jena Noveras.
The rest of the Decision is AFFIRMED.12
In the present petition, David insists that the Court of Appeals
should have recognized the California Judgment which
awarded the Philippine properties to him because said
judgment was part of the pleading presented and offered in
evidence before the trial court. David argues that allowing
Leticia to share in the Philippine properties is tantamount to
unjust enrichment in favor of Leticia considering that the latter
was already granted all US properties by the California court.
In summary and review, the basic facts are: David and Leticia
are US citizens who own properties in the USA and in the
Philippines. Leticia obtained a decree of divorce from the
Superior Court of California in June 2005 wherein the court
awarded all the properties in the USA to Leticia. With respect
to their properties in the Philippines, Leticiafiled a petition for
judicial separation ofconjugal properties.
At the outset, the trial court erred in recognizing the divorce
decree which severed the bond of marriage between the
parties. In Corpuz v. Sto. Tomas,13 we stated that:
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a tribunal of
another country." This means that the foreign judgment and its
authenticity must beproven as facts under our rules on
evidence, together with the alien’s applicable national law to
show the effect of the judgment on the alien himself or herself.
The recognition may be made in an action instituted
specifically for the purpose or in another action where a party
invokes the foreign decree as an integral aspect of his claim or
defense.14
The requirements of presenting the foreign divorce decree and
the national law of the foreigner must comply with our Rules of
Evidence. Specifically, for Philippine courts to recognize a
foreign judgment relating to the status of a marriage, a copy of
the foreign judgment may be admitted in evidence and proven
as a fact under Rule 132, Sections 24 and 25, in relation to
Rule 39, Section 48(b) of the Rules of Court.15
Under Section 24 of Rule 132, the record of public documents
of a sovereign authority or tribunal may be proved by: (1) an
official publication thereof or (2) a copy attested by the officer
having the legal custody thereof. Such official publication or
copy must beaccompanied, if the record is not kept in the
Philippines, with a certificate that the attesting officer has the
legal custody thereof. The certificate may be issued by any of
97
the authorized Philippine embassy or consular officials
stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. The attestation must
state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, asthe case may be, and
must be under the official seal of the attesting officer.
Section 25 of the same Rule states that whenever a copy of a
document or record is attested for the purpose of evidence,
the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of
the attesting officer, if there be any, or if hebe the clerk of a
court having a seal, under the seal of such court.
Based on the records, only the divorce decree was presented
in evidence. The required certificates to prove its authenticity,
as well as the pertinent California law on divorce were not
presented.
It may be noted that in Bayot v. Court of Appeals,16 we relaxed
the requirement on certification where we held that "[petitioner
therein] was clearly an American citizenwhen she secured the
divorce and that divorce is recognized and allowed in any of
the States of the Union, the presentation of a copy of foreign
divorce decree duly authenticatedby the foreign court issuing
said decree is, as here, sufficient." In this case however, it
appears that there is no seal from the office where the divorce
decree was obtained.
Even if we apply the doctrine of processual presumption17 as
the lower courts did with respect to the property regime of the
parties, the recognition of divorce is entirely a different matter
because, to begin with, divorce is not recognized between
Filipino citizens in the Philippines. Absent a valid recognition of
the divorce decree, it follows that the parties are still legally
married in the Philippines. The trial court thus erred in
proceeding directly to liquidation.
As a general rule, any modification in the marriage settlements
must be made before the celebration of marriage. An
exception to this rule is allowed provided that the modification
isjudicially approved and refers only to the instances provided
in Articles 66,67, 128, 135 and 136 of the Family Code.18
Leticia anchored the filing of the instant petition for judicial
separation of property on paragraphs 4 and 6 of Article 135 of
the Family Code, to wit:
Art. 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority ofthe spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her obligations
to the family as provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements has abused
that power; and
98
 (6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2), and (3), the
presentation of the final judgment against the guiltyor absent
spouse shall be enough basis for the grant of the decree
ofjudicial separation of property. (Emphasis supplied).
The trial court had categorically ruled that there was no
abandonment in this case to necessitate judicial separation of
properties under paragraph 4 of Article 135 of the Family
Code. The trial court ratiocinated:
Moreover, abandonment, under Article 101 of the Family Code
quoted above, must be for a valid cause and the spouse is
deemed to have abandoned the other when he/she has left the
conjugal dwelling without intention of returning. The intention
of not returning is prima facie presumed if the allegedly [sic]
abandoning spouse failed to give any information as to his or
her whereabouts within the period of three months from such
abandonment.
In the instant case, the petitioner knows that the respondent
has returned to and stayed at his hometown in Maria Aurora,
Philippines, as she even went several times to visit him there
after the alleged abandonment. Also, the respondent has been
going back to the USA to visit her and their children until the
relations between them worsened. The last visit of said
respondent was in October 2004 when he and the petitioner
discussed the filing by the latter of a petition for dissolution of
marriage with the California court. Such turn for the worse of
their relationship and the filing of the saidpetition can also be
considered as valid causes for the respondent to stay in the
Philippines.19
Separation in fact for one year as a ground to grant a judicial
separation of property was not tackled in the trial court’s
decision because, the trial court erroneously treated the
petition as liquidation of the absolute community of properties.
The records of this case are replete with evidence that Leticia
and David had indeed separated for more than a year and that
reconciliation is highly improbable. First, while actual
abandonment had not been proven, it is undisputed that the
spouses had been living separately since 2003 when David
decided to go back to the Philippines to set up his own
business. Second, Leticia heard from her friends that David
has been cohabiting with Estrellita Martinez, who represented
herself as Estrellita Noveras. Editha Apolonio, who worked in
the hospital where David was once confined, testified that she
saw the name of Estrellita listed as the wife of David in the
Consent for Operation form.20Third and more significantly, they
had filed for divorce and it was granted by the California court
in June 2005.
Having established that Leticia and David had actually
separated for at least one year, the petition for judicial
separation of absolute community of property should be
granted.
The grant of the judicial separation of the absolute community
property automatically dissolves the absolute community
regime, as stated in the 4th paragraph of Article 99 ofthe
Family Code, thus:
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
99
 (3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138. (Emphasis
supplied).
Under Article 102 of the same Code, liquidation follows the
dissolution of the absolute community regime and the following
procedure should apply:
Art. 102. Upon dissolution of the absolute community regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all
the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute
community shall be paid out of its assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions
of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall
be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements, or unless there has been a
voluntary waiver of such share provided in this Code.
For purposes of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and
63, No. (2),the said profits shall be the increase in
value between the market value of the community
property at the time of the celebration of the marriage
and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children
shall be delivered upon partition, in accordance with
Article 51.
(6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and the
lot on which it is situated shall be adjudicated tothe
spouse with whom the majority of the common children
choose to remain. Children below the age of seven
years are deemed to have chosen the mother, unless
the court has decided otherwise. In case there is no
such majority, the court shall decide, taking into
consideration the best interests of said children. At the
risk of being repetitious, we will not remand the case to
the trial court. Instead, we shall adopt the modifications
made by the Court of Appeals on the trial court’s
Decision with respect to liquidation.
We agree with the appellate court that the Philippine courts did
not acquire jurisdiction over the California properties of David
and Leticia. Indeed, Article 16 of the Civil Code clearly states
that real property as well as personal property is subject to the
law of the country where it is situated. Thus, liquidation shall
only be limited to the Philippine properties.
We affirm the modification madeby the Court of Appeals with
respect to the share of the spouses in the absolutecommunity
properties in the Philippines, as well as the payment of their
children’s presumptive legitimes, which the appellate court
explained in this wise:
100
Leticia and David shall likewise have an equal share in the
proceeds of the Sampaloc property.1âwphi1 While both
claimed to have contributed to the redemption of the Noveras
property, absent a clear showing where their contributions
came from, the same is presumed to have come from the
community property. Thus, Leticia is not entitled to
reimbursement of half of the redemption money.
David's allegation that he used part of the proceeds from the
sale of the Sampaloc property for the benefit of the absolute
community cannot be given full credence. Only the amount of
₱120,000.00 incurred in going to and from the U.S.A. may be
charged thereto. Election expenses in the amount of
₱300,000.00 when he ran as municipal councilor cannot be
allowed in the absence of receipts or at least the Statement of
Contributions and Expenditures required under Section 14 of
Republic Act No. 7166 duly received by the Commission on
Elections. Likewise, expenses incurred to settle the criminal
case of his personal driver is not deductible as the same had
not benefited the family. In sum, Leticia and David shall share
equally in the proceeds of the sale net of the amount of
₱120,000.00 or in the respective amounts of ₱1,040,000.00.
xxxx
Under the first paragraph of Article 888 of the Civil Code, "(t)he
legitime of legitimate children and descendants consists of
one-half or the hereditary estate of the father and of the
mother." The children arc therefore entitled to half of the share
of each spouse in the net assets of the absolute community,
which shall be annotated on the titles/documents covering the
same, as well as to their respective shares in the net proceeds
from the sale of the Sampaloc property including the
receivables from Sps. Paringit in the amount of ₱410,000.00.
Consequently, David and Leticia should each pay them the
amount of ₱520,000.00 as their presumptive legitimes
therefrom.21
WHEREFORE, the petition is DENIED. The assailed Decision
of the Court of Appeals in CA G.R. CV No. 88686 is
AFFIRMED.
SO ORDERED.
G.R. No. 205487 November 12, 2014
ORION SAVINGS BANK, Petitioner,
vs.
SHIGEKANE SUZUKI, Respondent.
DECISION
BRION, J.:
Before us is the Petition for Review on Certiorari1 filed by
petitioner Orion Savings Bank (Orion) under Rule 45 of the
Rules of Court, assailing the decision2 dated August 23, 2012
and the resolution3 dated January 25, 2013 of the Court of
Appeals (CA) in CA-G.R. CV No. 94104.
The Factual Antecedents
In the first week of August 2003, respondent Shigekane
Suzuki (Suzuki), a Japanese national, met with Ms. Helen
Soneja (Soneja) to inquire about a condominium unit and a
parking slot at Cityland Pioneer, Mandaluyong City, allegedly
owned by Yung Sam Kang (Kang), a Korean national and a
Special Resident Retiree's Visa (SRRV) holder.

101
At the meeting, Soneja informed Suzuki that Unit No. 536
[covered by Condominium Certificate of Title (CCT) No.
18186]4 and Parking Slot No. 42 [covered by CCT No.
9118]5 were for sale for ₱3,000,000.00. Soneja likewise
assured Suzuki that the titles to the unit and the parking slot
were clean. After a brief negotiation, the parties agreed to
reduce the price to ₱2,800,000.00. On August 5, 2003, Suzuki
issued Kang a Bank of the Philippine Island (BPI) Check No.
833496 for One Hundred Thousand Pesos (₱100,000.00) as
reservation fee.7 On August 21, 2003, Suzuki issued Kang
another check, BPI Check No. 83350,8 this time for
₱2,700,000.00 representing the remaining balance of the
purchase price. Suzuki and Kang then executed a Deed of
Absolute Sale dated August 26, 20039covering Unit No. 536
and Parking Slot No. 42. Soon after, Suzuki took possession
of the condominium unit and parking lot, and commenced the
renovation of the interior of the condominium unit.
Kang thereafter made several representations with Suzuki to
deliver the titles to the properties, which were then allegedly in
possession of Alexander Perez (Perez, Orion’s Loans Officer)
for safekeeping. Despite several verbal demands, Kang failed
to deliver the documents. Suzuki later on learned that Kang
had left the country, prompting Suzuki to verify the status of
the properties with the Mandaluyong City Registry of Deeds.
Before long, Suzuki learned that CCT No. 9118 representing
the title to the Parking Slot No. 42 contained no annotations
although it remained under the name of Cityland Pioneer. This
notwithstanding, Cityland Pioneer, through Assistant Vice
President Rosario D. Perez, certified that Kang had fully paid
the purchase price of Unit. No. 53610 and Parking Slot No.
42.11 CCT No. 18186 representing the title to the condominium
unit had no existing encumbrance, except for anannotation
under Entry No. 73321/C-10186 which provided that any
conveyance or encumbrance of CCT No. 18186 shall be
subject to approval by the Philippine Retirement Authority
(PRA). Although CCT No. 18186 contained Entry No.
66432/C-10186 dated February 2, 1999 representing a
mortgage in favor of Orion for a ₱1,000,000.00 loan, that
annotation was subsequently cancelled on June 16, 2000 by
Entry No. 73232/T. No. 10186. Despite the cancellation of the
mortgage to Orion, the titles to the properties remained in
possession of Perez.
To protect his interests, Suzuki thenexecuted an Affidavit of
Adverse Claim12 dated September 8, 2003, withthe Registry of
Deeds of Mandaluyong City, annotated as Entry No. 3292/C-
No. 18186 in CCT No. 18186. Suzuki then demanded the
delivery of the titles.13 Orion, (through Perez), however,
refused to surrender the titles, and cited the need to consult
Orion’s legal counsel as its reason.
On October 14, 2003, Suzuki received a letter from Orion’s
counsel dated October 9, 2003, stating that Kang obtained
another loan in the amount of ₱1,800,000.00. When Kang
failed to pay, he executed a Dacion en Pagodated February 2,
2003, in favorof Orion covering Unit No. 536. Orion, however,
did not register the Dacion en Pago, until October 15, 2003.
On October 28, 2003, Suzuki executed an Affidavit of Adverse
Claim over Parking Slot No. 42 (covered by CCT No. 9118)
and this was annotated as Entry No. 4712/C-No. 9118 in the
parking lot’s title.
On January 27, 2004, Suzuki filed a complaint for specific
performance and damages against Kang and Orion. At the
pre-trial, the parties made the following admissions and
stipulations:
1. That as of August 26, 2003, Kang was the registered
owner of Unit No. 536 and Parking Slot No. 42;
102
 2. That the mortgage in favor ofOrion supposedly
executed by Kang, with Entry No. 66432/C-10186
dated February 2, 1999, was subsequently cancelled
by Entry No. 73232/T No. 10186 dated June 16, 2000;
3. That the alleged Dacion en Pagowas never
annotated in CCT Nos. 18186 and 9118;
4. That Orion only paid the appropriate capital gains
tax and the documentary stamp tax for the alleged
Dacion en Pago on October 15, 2003;
5. That Parking Slot No. 42, covered by CCT No. 9118,
was never mortgaged to Orion; and
6. That when Suzuki bought the properties, he went to
Orion to obtain possession of the titles.
The RTC Ruling
In its decision14 dated June 29, 2009, the Regional Trial Court
(RTC), Branch 213, Mandaluyong City ruled infavor of Suzuki
and ordered Orion to deliver the CCT Nos. 18186 and 9118 to
Suzuki.
The court found that Suzuki was an innocent purchaser for
value whose rights over the properties prevailed over Orion’s.
The RTC further noted that Suzuki exerted efforts to verify the
status of the properties but he did not find any existing
encumbrance inthe titles. Although Orion claims to have
purchased the property by way of a Dacion en Pago, Suzuki
only learned about it two (2) months after he bought the
properties because Orion never bothered to register or
annotate the Dacion en Pagoin CCT Nos. 18186 and 9116.
The RTC further ordered Orion and Kang to jointly and
severally pay Suzuki moral damages, exemplary damages,
attorney’s fees, appearance fees, expenses for litigation and
cost ofsuit. Orion timely appealed the RTC decision with the
CA.
The CA Ruling
On August 23, 2012, the CA partially granted Orion’s appeal
and sustained the RTC insofar as it upheld Suzuki’s right over
the properties. The CA further noted that Entry No. 73321/C-
10186 pertaining to the withdrawal of investment of an SRRV
only serves as a warning to an SRRV holder about the
implications of a conveyance of a property investment. It
deviated from the RTC ruling, however, by deleting the award
for moral damages, exemplary damages, attorney’s fees,
expenses for litigation and cost of suit.
Orion sought a reconsideration of the CA decision but the CA
denied the motion in its January 25, 2013 resolution. Orion
then filed a petition for review on certiorariunder Rule 45 with
this Court.
The Petition and Comment
Orion’s petition is based on the following grounds/arguments:15
1. The Deed of Sale executed by Kang in favor of
Suzuki is null and void. Under Korean law, any
conveyance of a conjugal property should be made
with the consent of both spouses;
2. Suzuki is not a buyer in good faith for he failed to
check the owner’s duplicate copies of the CCTs;
103
 3. Knowledge of the PRA restriction under Entry No.
73321/C-10186, which prohibits any conveyance or
encumbrance of the property investment, defeats the
alleged claim of good faith by Suzuki; and
4. Orion should not be faulted for exercising due
diligence.
In his Comment,16 Suzuki asserts that the issue on spousal
consent was belatedly raised on appeal. Moreover, proof of
acquisition during the marital coverture is a condition sine qua
nonfor the operation of the presumption of conjugal
ownership.17 Suzuki additionally maintains that he is a
purchaser in good faith, and is thus entitled to the protection of
the law.
The Court’s Ruling
We deny the petition for lack of merit.
The Court may inquire into conclusions of fact when the
inference made is manifestly mistaken
In a Rule 45 petition, the latitude of judicial review generally
excludes a factual and evidentiary re-evaluation, and the Court
ordinarily abides by the uniform factual conclusions of the trial
court and the appellate court.18 In the present case, while the
courts below both arrived at the same conclusion, there
appears tobe an incongruence in their factual findings and the
legal principle they applied to the attendant factual
circumstances. Thus, we are compelled to examine certain
factual issues in the exercise of our sound discretion to correct
any mistaken inference that may have been made.19
Philippine Law governs the transfer of real property
Orion believes that the CA erred in not ruling on the issue of
spousal consent. We cannot uphold this position, however,
because the issue of spousal consent was only raised on
appeal to the CA. It is a well-settled principle that points of law,
theories, issues, and arguments not brought to the attention of
the trial court cannot be raised for the first time on appeal and
considered by a reviewing court.20 To consider these belated
arguments would violate basic principles of fairplay, justice,
and due process.
Having said these, we shall nonetheless discuss the issues
Orion belatedly raised, if only to put an end to lingering doubts
on the correctness of the denial of the present petition.
It is a universal principle thatreal or immovable property is
exclusively subject to the laws of the country or state where it
is located.21 The reason is found in the very nature of
immovable property — its immobility. Immovables are part of
the country and so closely connected to it that all rights over
them have their natural center of gravity there.22
Thus, all matters concerning the titleand disposition ofreal
property are determined by what is known as the lex loci rei
sitae, which can alone prescribe the mode by which a title
canpass from one person to another, or by which an interest
therein can be gained or lost.23 This general principle includes
all rules governing the descent, alienation and transfer of
immovable property and the validity, effect and construction of
wills and other conveyances.24
This principle even governs the capacity of the person making
a deed relating to immovable property, no matter what its
nature may be. Thus, an instrument will be ineffective to
transfer title to land if the person making it is incapacitated by
the lex loci rei sitae, even though under the law of his domicile
104
and by the law of the place where the instrument is actually
made, his capacity is undoubted.25
On the other hand, property relations between spouses are
governed principally by the national law of the
spouses.26 However, the party invoking the application of a
foreign law has the burden of proving the foreign law. The
foreign law is a question of fact to be properly pleaded and
proved as the judge cannot take judicial notice of a foreign
law.27 He is presumed to know only domestic or the law of the
forum.28
To prove a foreign law, the party invoking it must present a
copy thereof and comply with Sections 24 and 25 of Rule 132
of the Revised Rules of Court which reads:
SEC. 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in
the foreign country inwhich the record is kept, and
authenticated by the seal of his office. (Emphasis supplied)
SEC. 25. What attestation ofcopy must state. — Whenever a
copy of a document or record is attested for the purpose of the
evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof,
as the case may be. The attestation must be under the official
seal of the attesting officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of such court.
Accordingly, matters concerning the title and disposition of real
property shall be governed by Philippine law while issues
pertaining to the conjugal natureof the property shall be
governed by South Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove the
South Korean law on the conjugal ownership ofproperty. It
merely attached a "Certification from the Embassy of the
Republic of Korea"29 to prove the existence of Korean Law.
This certification, does not qualify as sufficient proof of the
conjugal nature of the property for there is no showing that it
was properly authenticated bythe seal of his office, as required
under Section 24 of Rule 132.30
Accordingly, the International Law doctrine of presumed-
identity approachor processual presumption comes into play,
i.e., where a foreign law is not pleaded or, evenif pleaded, is
not proven, the presumption is that foreign law is the same as
Philippine Law.31
Under Philippine Law, the phrase "Yung Sam Kang ‘married
to' Hyun Sook Jung" is merely descriptive of the civil status of
Kang.32 In other words, the import from the certificates of title
is that Kang is the owner of the properties as they are
registered in his name alone, and that he is married to Hyun
Sook Jung.
We are not unmindful that in numerous cases we have held
that registration of the property in the name of only one spouse
does not negate the possibility of it being conjugal or
community property.33 In those cases, however, there was
proof that the properties, though registered in the name of only
one spouse, were indeed either conjugal or community
105
properties.34 Accordingly, we see no reason to declare as
invalid Kang’s conveyance in favor of Suzuki for the supposed
lack of spousal consent.
The petitioner failed to adduce sufficient evidence to prove the
due execution of the Dacion en Pago
Article 1544 of the New Civil Codeof the Philippines provides
that:
ART. 1544. If the same thing should have been sold to
different vendees, the ownership shall be transferred to the
person who may have first taken possession thereof in good
faith, if it should be movable property.
Should it be immovable property, the ownership shall belong
to the person acquiring it who in good faith first recorded it in
the Registry of Property.
Should there be no inscription, the ownership shall pertain to
the person who in good faith was first in the possession; and,
in the absence thereof, to the person who presents the oldest
title, provided there is good faith.
The application of Article 1544 of the New Civil Code
presupposes the existence of two or more duly executed
contracts of sale. In the present case, the Deed of Sale dated
August 26, 200335 between Suzuki and Kang was admitted by
Orion36 and was properly identified by Suzuki’s witness Ms.
Mary Jane Samin (Samin).37
It is not disputed, too, that the Deed of Sale dated August 26,
2003 was consummated. In a contract of sale, the seller
obligates himself to transfer the ownership of the determinate
thing sold, and to deliver the same to the buyer, who obligates
himself to pay a price certain to the seller.38 The execution of
the notarized deed of saleand the actual transfer of
possession amounted to delivery that produced the legal effect
of transferring ownership to Suzuki.39
On the other hand, although Orion claims priority in right under
the principle of prius tempore, potior jure (i.e.,first in time,
stronger in right), it failedto prove the existence and due
execution of the Dacion en Pagoin its favor.
At the outset, Orion offered the Dacion en Pagoas Exhibit
"5"with submarkings "5-a" to "5-c" to prove the existence of the
February 6, 2003 transaction in its Formal Offer dated July 20,
2008. Orion likewise offered in evidence the supposed
promissory note dated September 4, 2002 as Exhibit "12"to
prove the existence of the additional ₱800,000.00 loan. The
RTC, however, denied the admission of Exhibits "5" and
"12,"among others, in its order dated August 19, 2008 "since
the same [were] not identified in court by any witness."40
Despite the exclusion of its most critical documentary
evidence, Orion failed to make a tender ofexcluded evidence,
as provided under Section 40, Rule 132 of the Rules of Court.
For this reason alone, we are prevented from seriously
considering Exhibit "5" and its submarkings and Exhibit "12" in
the present petition.
Moreover, even if we consider Exhibit "5" and its submarkings
and Exhibit "12" in the present petition, the copious
inconsistencies and contradictions in the testimonial and
documentary evidence of Orion, militate against the conclusion
that the Dacion en Pagowas duly executed. First, there
appears to be no due and demandable obligation when the
Dacion en Pago was executed, contrary to the allegations of
Orion. Orion’s witness Perez tried to impress upon the RTC
that Kang was in default in his ₱1,800,000.00 loan. During his
direct examination, he stated:
106
 ATTY. CRUZAT:
Q: Okay, so this loan of ₱1.8 million, what happened to
this loan, Mr. Witness?
A: Well it became past due, there has been delayed
interest payment by Mr. Kangand...
Q: So what did you do after there were defaults[?]
A: We have to secure the money or the investment of
the bank through loans and we have executed a dacion
en pagobecause Mr. Kang said he has no money. So
we just execute[d] the dacion en pago rather than
going through the Foreclosure proceedings.
xxxx
Q: Can you tell the court when was this executed?
A: February 6, 2003, your Honor.41
A reading of the supposed promissory note, however, shows
that there was nodefault to speak of when the supposed
Dacion en Pagowas executed.
Based on the promissory note, Kang’s loan obligation
wouldmature only on August 27, 2003. Neither can Orion claim
that Kang had been in default in his installment payments
because the wordings of the promissory note provide that
"[t]he principal of this loanand its interest and other charges
shall be paid by me/us in accordance hereunder: SINGLE
PAYMENT LOANS.42 "There was thus no due and
demandable loan obligation when the alleged Dacion en Pago
was executed.
Second, Perez, the supposed person who prepared the
Dacion en Pago,appears to only have a vague idea of the
transaction he supposedly prepared. During his cross-
examination, he testified:
ATTY. DE CASTRO:
Q: And were you the one who prepared this [dacion en
pago] Mr. witness?
A: Yes, sir. I personally prepared this.
xxxx
Q: So this 1.8 million pesos is already inclusive of all
the penalties, interest and surcharge due from Mr.
Yung Sam Kang?
A: It’s just the principal, sir.
Q: So you did not state the interest [and] penalties?
A: In the [dacion en pago], we do not include interest,
sir. We may actually includethat but....
Q: Can you read the Second Whereas Clause, Mr.
Witness?
A: Whereas the first party failed to pay the said loan to
the second party and as of February 10, 2003, the
outstanding obligation which is due and demandable
principal and interest and other charges included
amounts to ₱1,800,000.00 pesos, sir.
xxxx
107
 Q: You are now changing your answer[.] [I]t now
includes interest and other charges, based on this
document?
A: Yes, based on that document, sir.43
Third, the Dacion en Pago,mentioned that the
₱1,800,000.00 loan was secured by a real estate
mortgage. However, no document was ever presented
to prove this real estate mortgage aside from it being
mentioned in the Dacion en Pago itself.
ATTY. DE CASTRO:
Q: Would you know if there is any other document like
a supplement to that Credit Line Agreement referring to
this 1.8 million peso loan by Mr. Yung Sam Kang which
says that there was a subsequent collateralization or
security given by Mr. Yung [Sam]
Kang for the loan?
xxxx
A: The [dacion en pago], sir.44
Fourth,the Dacion en Pago was first mentioned only two (2)
months after Suzuki and Samin demanded the delivery of the
titles sometime in August 2003,and after Suzuki caused the
annotation of his affidavit of adverse claim. Records show that
it was only on October 9, 2003, when Orion, through its
counsel, Cristobal Balbin Mapile & Associates first spoke of
the Dacion en Pago.45 Not even Perez mentioned any Dacion
en Pago on October 1, 2003, when he personally received a
letter demanding the delivery of the titles.Instead, Perez
refused to accept the letter and opted to first consult with his
lawyer.46
Notably, even the October 9, 2003 letter contained material
inconsistencies in its recital of facts surrounding the execution
of the Dacion en Pago. In particular, it mentioned that "on
[September 4, 2002], after paying the original loan, [Kang]
applied and was granted a new Credit Line Facility by [Orion] x
x x for ONE MILLION EIGHT HUNDRED THOUSAND PESOS
(₱1,800,000.00)." Perez, however, testified that there was "no
cash movement" in the original ₱1,000,000.00 loan. In his
testimony, he said:
COURT:
xxxx
Q: Would you remember what was the subject matter
of that real estate mortgage for that first ₱1,000,000.00
loan?
A: It’s a condominium Unit in Cityland, sir.
xxxx
Q: Would you recall if there was any payment by Mr.
Yung Sam Kang of this ₱1,000,000.00 loan?
A: None sir.
Q: No payments?
A: None sir.
108
 Q: And from 1999 to 2002, there was no payment,
either by way of payment to the principal, by way
ofpayment of interest, there was no payment by Mr.
Yung Sam Kang of this loan?
A: Literally, there was no actual cash movement, sir.
Q: There was no actual cash?
land and occupied the premises. The absence of any attempt
on the part of Orion to assert its right of dominion over the
property allegedly soldto it is a clear badge of fraud. That
notwithstanding the execution of the Dacion en Pago, Kang
remained in possession of the disputed condominium unit –
from the time of the execution of the Dacion en Pagountil the
property’s subsequent transfer to Suzuki – unmistakably
strengthens the fictitious nature of the Dacion en Pago.

A: Yes, sir. These circumstances, aside from the glaring inconsistencies in

the documents and testimony of Orion’s witness, indubitably
Q: And yet despite no payment, the bank Orion prove the spurious nature of the Dacion en Pago.
Savings Bank still extended an ₱800,000.00 additional
right? The fact that the Dacion en Pago
is a notarized document does not
A: Yes, sir.47 support the conclusion that the
sale it embodies is a true
Fifth, it is undisputed that notwithstanding the supposed conveyance
execution of theDacion en Pago on February 2, 2003, Kang
remained in possession of the condominium unit. In fact, Public instruments are evidence of the facts that gave rise to
nothing in the records shows that Orion even bothered to take their execution and are to be considered as containing all the
possession of the property even six (6) months after the terms of the agreement.49 While a notarized document enjoys
supposed date of execution of the Dacion en Pago. Kang was this presumption, "the fact that a deed is notarized is not a
even able to transfer possession of the condominium unit to guarantee of the validity of its contents."50 The presumption of
Suzuki, who then made immediate improvements thereon. If regularity of notarized documents is not absolute and may be
Orion really purchased the condominium unit on February 2, rebutted by clear and convincing evidence to the contrary.51
2003 and claimed to be its true owner, why did it not assert its
ownership immediately after the alleged sale took place? Why In the present case, the presumption cannot apply because
did it have to assert its ownership only after Suzuki demanded the regularity in the execution of the Dacion en Pago and the
the delivery of the titles? These gaps have remained loan documents was challenged in the proceedings below
unanswered and unfilled. where their prima facievalidity was overthrown by the highly
questionable circumstances surrounding their execution.52
In Suntay v. CA,48 we held that the most prominent index of
simulation is the complete absence of anattempt on the part of Effect of the PRA restriction on
the vendee to assert his rights of ownership over the property the validity of Suzuki’s title to the
in question. After the sale, the vendee should have entered the property

109
Orion argues that the PRA restriction in CCT No. 18186
affects the conveyance to Suzuki. In particular, Orion assails
the status of Suzuki as a purchaser in good faith in view of the
express PRA restriction contained in CCT No. 18186.53
We reject this suggested approachoutright because, to our
mind, the PRA restriction cannot affect the conveyance in
favor of Suzuki. On this particular point, we concur withthe
following findings of the CA:
x x x the annotation merely servesas a warning to the owner
who holds a Special Resident Retiree’s Visa(SRRV) that he
shall lose his visa if he disposes his property which serves as
his investment in order to qualify for such status. Section 14 of
the Implementing Investment Guidelines under Rule VIII-A of
the Rules and Regulations Implementing Executive Order No.
1037, Creating the Philippine Retirement Park System
Providing Funds Therefor and For Other Purpose ( otherwise
known as the Philippine Retirement Authority) states:
Section 14. Should the retiree-investor withdraw his
investment from the Philippines, or transfer the same to
another domestic enterprise, orsell, convey or transfer his
condominium unit or units to another person, natural or
juridical without the prior approval of the Authority, the Special
Resident Retiree’s Visa issued to him, and/or unmarried minor
child or children[,] may be cancelled or revoked by the
Philippine Government, through the appropriate government
department or agency, upon recommendation of the
Authority.54
Moreover, Orion should not be allowed to successfully assail
the good faith of Suzuki on the basis of the PRA restriction.
Orion knew of the PRA restriction when it transacted with
Kang. Incidentally, Orion admitted accommodating Kang’s
request to cancel the mortgage annotation despite the lack of
payment to circumvent the PRA restriction. Orion, thus, is
estopped from impugning the validity of the conveyance in
favor of Suzuki on the basis of the PRA restriction that Orion
itself ignored and "attempted" to circumvent.
With the conclusion that Orion failed to prove the authenticity
of the Dacion en Pago, we see no reason for the application of
the rules on double sale under Article 1544 of the New Civil
Code. Suzuki, moreover, successfully adduced sufficient
evidence to establish the validity of conveyance in his favor.
WHEREFORE, premises considered, we DENY the petition for
lack of merit. Costs against petitioner Orion Savings Bank.
SO ORDERED.
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor
child RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under
Rule 45 of the Rules of Court seeking to reverse and set aside
the Orders1 dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of Cebu City (RTC-
Cebu), which dismissed the criminal case entitled People of
the Philippines v. Ernst Johan Brinkman Van Wilsem,
docketed as Criminal Case No. CBU-85503, for violation of
Republic Act (R.A.) No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004.
110
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan
Brinkman Van Wilsem contracted marriage in Holland on
September 25, 1990.2 On January 19, 1994, they were
blessed with a son named Roderigo Norjo Van Wilsem, who at
the time of the filing of the instant petition was sixteen (16)
years of age.3
Unfortunately, their marriage bond ended on July 19, 1995 by
virtue of a Divorce Decree issued by the appropriate Court of
Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the
Philippines.6
According to petitioner, respondent made a promise to provide
monthly support to their son in the amount of Two Hundred
Fifty (250) Guildene (which is equivalent to Php17,500.00
more or less).7 However, since the arrival of petitioner and her
son in the Philippines, respondent never gave support to the
son, Roderigo.8
Not long thereafter, respondent cameto the Philippines and
remarried in Pinamungahan, Cebu, and since then, have been
residing thereat.9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay
Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all
the parties, including their son, Roderigo, are presently living
in Cebu City.11
On August 28, 2009, petitioner, through her counsel, sent a
letter demanding for support from respondent. However,
respondent refused to receive the letter.12
Because of the foregoing circumstances, petitioner filed a
complaint affidavit with the Provincial Prosecutor of Cebu City
against respondent for violation of Section 5, paragraph E(2)
of R.A. No. 9262 for the latter’s unjust refusal to support his
minor child with petitioner.13 Respondent submitted his
counter-affidavit thereto, to which petitioner also submitted her
reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu
City issued a Resolution recommending the filing of an
information for the crime charged against herein respondent.
The information, which was filed with the RTC-Cebu and
raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present, more or
less, in the Municipality of Minglanilla, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully,
unlawfully and deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14) year old minor, of financial support legally due
him, resulting in economic abuse to the victim. CONTRARY
TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu
issued a Hold Departure Order against
respondent.16Consequently, respondent was arrested and,
subsequently, posted bail.17 Petitioner also filed a
Motion/Application of Permanent Protection Order to which
respondent filed his Opposition.18 Pending the resolution
thereof, respondent was arraigned.19 Subsequently, without
the RTC-Cebu having resolved the application of the
protection order, respondent filed a Motion to Dismiss on the
ground of: (1) lack of jurisdiction over the offense charged; and
(2) prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein
assailed Order,21 dismissing the instant criminal case against
respondent on the ground that the facts charged in the
111
information do not constitute an offense with respect to the
respondent who is an alien, the dispositive part of which
states:
WHEREFORE, the Court finds that the facts charged in the
information do not constitute an offense with respect to the
accused, he being an alien, and accordingly, orders this case
DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van
Wilsem for his provisional liberty is hereby cancelled (sic) and
ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for Reconsideration
thereto reiterating respondent’s obligation to support their child
under Article 19523 of the Family Code, thus, failure to do so
makes him liable under R.A. No. 9262 which "equally applies
to all persons in the Philippines who are obliged to support
their minor children regardless of the obligor’s nationality."24
On September 1, 2010, the lower court issued an
Order25 denying petitioner’s Motion for Reconsideration and
reiterating its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash
of those advanced earlier in the memorandum of the
prosecution. Thus, the court hereby reiterates its ruling that
since the accused is a foreign national he is not subject to our
national law (The Family Code) in regard to a parent’s duty
and obligation to givesupport to his child. Consequently, he
cannot be charged of violating R.A. 9262 for his alleged failure
to support his child. Unless it is conclusively established that
R.A. 9262 applies to a foreigner who fails to give support tohis
child, notwithstanding that he is not bound by our domestic law
which mandates a parent to give such support, it is the
considered opinion of the court that no prima faciecase exists
against the accused herein, hence, the case should be
dismissed.
WHEREFORE, the motion for reconsideration is hereby
DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on Certiorari raising the
following issues:
1. Whether or not a foreign national has an obligation
to support his minor child under Philippine law; and
2. Whether or not a foreign national can be held
criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.27
At the outset, let it be emphasized that We are taking
cognizance of the instant petition despite the fact that the
same was directly lodged with the Supreme Court, consistent
with the ruling in Republic v. Sunvar Realty Development
Corporation,28 which lays down the instances when a ruling of
the trial court may be brought on appeal directly to the
Supreme Court without violating the doctrine of hierarchy of
courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties
from filing a Rule 45 Petition with this Court, in case only
questions of law are raised or involved. This latter situation
112
was one that petitioners found themselves in when they filed
the instant Petition to raise only questions of law. In Republic
v. Malabanan, the Court clarified the three modes of appeal
from decisions of the RTC, to wit: (1) by ordinary appeal or
appeal by writ of error under Rule 41, whereby judgment was
rendered in a civil or criminal action by the RTC in the exercise
of its original jurisdiction; (2) by a petition for review under
Rule 42, whereby judgment was rendered by the RTC in the
exercise of its appellate jurisdiction; and (3) by a petition for
review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on
questions of fact or mixed questions of fact and law. The
second mode of appeal is brought to the CA on questions of
fact, of law, or mixed questions of fact and law. The third mode
of appealis elevated to the Supreme Court only on questions
of law." (Emphasis supplied)
There is a question of law when the issue does not call for an
examination of the probative value of the evidence presented
or of the truth or falsehood of the facts being admitted, and the
doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must
rest solely on what the law provides on the given set of
circumstances.29
Indeed, the issues submitted to us for resolution involve
questions of law – the response thereto concerns the correct
application of law and jurisprudence on a given set of facts,
i.e.,whether or not a foreign national has an obligation to
support his minor child under Philippine law; and whether or
not he can be held criminally liable under R.A. No. 9262 for his
unjustified failure to do so.
It cannot be negated, moreover, that the instant petition
highlights a novel question of law concerning the liability of a
foreign national who allegedly commits acts and omissions
punishable under special criminal laws, specifically in relation
to family rights and duties. The inimitability of the factual milieu
of the present case, therefore, deserves a definitive ruling by
this Court, which will eventually serve as a guidepost for future
cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time,
effort and resources of the courts. Thus, in the present case,
considerations of efficiency and economy in the administration
of justice should prevail over the observance of the hierarchy
of courts.
Now, on the matter of the substantive issues, We find the
petition meritorious. Nonetheless, we do not fully agree with
petitioner’s contentions.
To determine whether or not a person is criminally liable under
R.A. No. 9262, it is imperative that the legal obligation to
support exists.
Petitioner invokes Article 19530 of the Family Code, which
provides the parent’s obligation to support his child. Petitioner
contends that notwithstanding the existence of a divorce
decree issued in relation to Article 26 of the Family
Code,31 respondent is not excused from complying with his
obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no
sufficient and clear basis presented by petitioner that she, as
well as her minor son, are entitled to financial
support.32 Respondent also added that by reason of the
Divorce Decree, he is not obligated topetitioner for any
financial support.33
On this point, we agree with respondent that petitioner cannot
rely on Article 19534 of the New Civil Code in demanding
support from respondent, who is a foreign citizen, since Article
113
1535 of the New Civil Code stresses the principle of nationality.
In other words, insofar as Philippine laws are concerned,
specifically the provisions of the Family Code on support, the
same only applies to Filipino citizens. By analogy, the same
principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36
The obligation to give support to a child is a matter that falls
under family rights and duties. Since the respondent is a
citizen of Holland or the Netherlands, we agree with the RTC-
Cebu that he is subject to the laws of his country, not to
Philippinelaw, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that –
Furthermore, being still aliens, they are not in position to
invoke the provisions of the Civil Code of the Philippines, for
that Code cleaves to the principle that family rights and duties
are governed by their personal law, i.e.,the laws of the nation
to which they belong even when staying in a foreign country
(cf. Civil Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is not
obliged to support petitioner’s son under Article195 of the
Family Code as a consequence of the Divorce Covenant
obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner’s son
altogether.
In international law, the party who wants to have a foreign law
applied to a dispute or case has the burden of proving the
foreign law.40 In the present case, respondent hastily
concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and
capacity to support.41 While respondent pleaded the laws of
the Netherlands in advancing his position that he is not obliged
to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the
national law of the Netherlands does not impose upon the
parents the obligation to support their child (either before,
during or after the issuance of a divorce decree), because
Llorente v. Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to takejudicial notice of
them. Like any other fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the
Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign
law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or
domestic or internal law.44 Thus, since the law of the
Netherlands as regards the obligation to support has not been
properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which enforces
the obligation of parents to support their children and
penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that
a divorce obtained in a foreign land as well as its legal effects
may be recognized in the Philippines in view of the nationality
principle on the matter of status of persons, the Divorce
Covenant presented by respondent does not completely show
that he is notliable to give support to his son after the divorce
decree was issued. Emphasis is placed on petitioner’s
allegation that under the second page of the aforesaid
covenant, respondent’s obligation to support his child is
specifically stated,46 which was not disputed by respondent.
114
We likewise agree with petitioner that notwithstanding that the
national law of respondent states that parents have no
obligation to support their children or that such obligation is not
punishable by law, said law would still not find applicability,in
light of the ruling in Bank of America, NT and SA v. American
Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law
on the matter were properly pleaded and proved in
accordance with Section 24, Rule 132 of the Rules of Court
and the jurisprudence laid down in Yao Kee, et al. vs. Sy-
Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to
a sound and established public policy of the forum, the said
foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or
property, and those which have for their object public order,
public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign
country.
The public policy sought to be protected in the instant case is
the principle imbedded in our jurisdiction proscribing the
splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is
pertinent
— in her own country if the ends of justice are to be served.
If two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment upon the merits
in any one is available as a ground for the dismissal of the
others. Moreover, foreign law should not be applied when its
application would work undeniable injustice to the citizens or
residents of the forum. To give justice is the most important
function of law; hence, a law, or judgment or contract that is
obviously unjust negates the fundamental principles of Conflict
of Laws.48
Applying the foregoing, even if the laws of the Netherlands
neither enforce a parent’s obligation to support his child nor
penalize the noncompliance therewith, such obligation is still
duly enforceable in the Philippines because it would be of
great injustice to the child to be denied of financial support
when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself,
respondent is no longer liable to support his former wife, in
consonance with the ruling in San Luis v. San Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the Court
ruled that she should no longerbe considered marriedto the
alien spouse. Further, she should not be required to perform
her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article
109, et. seq. of the Civil Code cannot be just. Petitioner should
not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter
should not continue to be one of her heirs with possible rights
to conjugal property. She should not be discriminated against
(Emphasis added)50
Based on the foregoing legal precepts, we find that respondent
may be made liable under Section 5(e) and (i) of R.A. No.
115
9262 for unjustly refusing or failing to give support
topetitioner’s son, to wit:
SECTION 5. Acts of Violence Against Women and Their
Children.- The crime of violence against women and their
children is committed through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child
to engage in conduct which the woman or her child has the
right to desist from or desist from conduct which the woman or
her child has the right to engage in, or attempting to restrict or
restricting the woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other harm or
threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, butnot limited
to, the following acts committed with the purpose or effect of
controlling or restricting the woman's or her child's movement
or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family, or
deliberately providing the woman's children insufficient
financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited
to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor childrenof access to the
woman's child/children.51
Under the aforesaid special law, the deprivation or denial of
financial support to the child is considered anact of violence
against women and children.
In addition, considering that respondent is currently living in
the Philippines, we find strength in petitioner’s claim that the
Territoriality Principle in criminal law, in relation to Article 14 of
the New Civil Code, applies to the instant case, which provides
that: "[p]enal laws and those of public security and safety shall
be obligatory upon all who live and sojourn in Philippine
territory, subject to the principle of public international law and
to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his
child with petitioner is committed here in the Philippines as all
of the parties herein are residents of the Province of Cebu
City. As such, our courts have territorial jurisdiction over the
offense charged against respondent. It is likewise irrefutable
that jurisdiction over the respondent was acquired upon his
arrest.
Finally, we do not agree with respondent’s argument that
granting, but not admitting, that there is a legal basis for
charging violation of R.A. No. 9262 in the instant case, the
criminal liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A. No. 9262,
which provides that:
SECTION 24. Prescriptive Period. – Acts falling under
Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts
falling under Sections 5(g) to 5(I) shall prescribe in ten (10)
years.
The act of denying support to a child under Section 5(e)(2) and
(i) of R.A. No. 9262 is a continuing offense,53 which started in
1995 but is still ongoing at present. Accordingly, the crime
charged in the instant case has clearly not prescribed.
116
Given, however, that the issue on whether respondent has CALLEJO, SR., J.:
provided support to petitioner’s child calls for an examination
of the probative value of the evidence presented, and the truth
and falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has Before the Court is the petition for review on certiorari filed by
jurisdiction over the case.
Far East Bank and Trust Company (now Bank of the
WHEREFORE, the petition is GRANTED. The Orders dated
February 19, 2010 and September 1, 2010, respectively, of the Philippines Islands) seeking the reversal of the
Regional Trial Court of the City of Cebu are hereby
Decision[1] dated August 30, 2002 of the Court of Appeals (CA)
REVERSED and SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based on the merits in CA-G.R. CV No. 36627 which ordered it, together with its
of the case.
branch accountant, Roger Villadelgado, to pay respondent
SO ORDERED.
Themistocles Pacilan, Jr.[2] the total sum of P100,000.00 as
FAR EAST BANK AND TRUST G.R. No. 157314
COMPANY, NOW BANK OF moral and exemplary damages. The assailed decision affirmed
THE PHILIPPINE ISLANDS, Present:
Petitioner, with modification that of the Regional Trial Court (RTC) of
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, Negros Occidental, Bacolod City, Branch 54, in Civil Case No.
CALLEJO, SR.,
- versus - TINGA, and 4908. Likewise sought to be reversed and set aside is the
CHICO-
Resolution dated January 17, 2003 of the appellate court,
NAZARIO, JJ.
Promulgated: denying petitioner banks motion for reconsideration.
THEMISTOCLES PACILAN, JR.,
Respondent. July 29, 2005
x-------------------------------------------- The case stemmed from the following undisputed facts:
------x

Respondent Pacilan opened a current account with petitioner

DECISION
banks Bacolod Branch on May 23, 1980. His account was

117
denominated as Current Account No. 53208 (0052-00407-4). wit: Check No. 2480416 for P6,000.00; Check No. 2480419

The respondent had since then issued several postdated for P50.00; Check No. 2434880 for P680.00 and; Check No.

checks to different payees drawn against the said account. 2434886 for P680.00, or a total amount of P7,410.00. At the

Sometime in March 1988, the respondent issued Check No. time, however, the respondents current account with petitioner

2434886 in the amount of P680.00 and the same was bank only had a deposit of P6,981.43. Thus, the total amount

presented for payment to petitioner bank on April 4, 1988. of the checks presented for payment on April 4, 1988

exceeded the balance of the respondents deposit in his

Upon its presentment on the said date, Check No.
account. For this reason, petitioner bank, through its branch
2434886 was dishonored by petitioner bank. The next day, or
accountant, Villadelgado, closed the respondents current
on April 5, 1988, the respondent deposited to his current
account effective the evening of April 4, 1988 as it then had an
account the amount of P800.00. The said amount was
overdraft of P428.57. As a consequence of the overdraft,
accepted by petitioner bank; hence, increasing the balance of
Check No. 2434886 was dishonored.
the respondents deposit to P1,051.43.

On April 18, 1988, the respondent wrote to petitioner

Subsequently, when the respondent verified with
bank complaining that the closure of his account was
petitioner bank about the dishonor of Check No. 2434866, he
unjustified. When he did not receive a reply from petitioner
discovered that his current account was closed on the ground
bank, the respondent filed with the RTC of Negros Occidental,
that it was improperly handled. The records of petitioner bank
Bacolod City, Branch 54, a complaint for damages against
disclosed that between the period of March 30,
petitioner bank and Villadelgado. The case was docketed as
1988 and April 5, 1988, the respondent issued four checks, to

118
Civil Case No. 4908. The respondent, as complainant therein, him to criminal prosecution for violation of Batas Pambansa

alleged that the closure of his current account by petitioner Blg. 22.

bank was unjustified because on the first banking hour of April

According to the respondent, the indecent haste that attended
5, 1988, he already deposited an amount sufficient to fund his
the closure of his account was patently malicious and intended
checks. The respondent pointed out that Check No. 2434886,
to embarrass him. He claimed that he is a Cashier of
in particular, was delivered to petitioner bank at the close of
Prudential Bank and Trust Company, whose branch office is
banking hours on April 4, 1988 and, following normal banking
located just across that of petitioner bank, and a prominent
procedure, it
and respected leader both in the civic and banking
(petitioner bank) had until the last clearing hour of the following
communities. The alleged malicious acts of petitioner bank
day, or on April 5, 1988, to honor the check or return it, if not
besmirched the respondents reputation and caused him social
funded. In disregard of this banking procedure and practice,
humiliation, wounded feelings, insurmountable worries and
however, petitioner bank hastily closed the respondents
sleepless nights entitling him to an award of damages.
current account and dishonored his Check No. 2434886.

In their answer, petitioner bank and Villadelgado maintained

The respondent further alleged that prior to the closure of his
that the respondents current account was subject to petitioner
current account, he had issued several other postdated
banks Rules and Regulations Governing the Establishment
checks. The petitioner banks act of closing his current account
and Operation of Regular Demand
allegedly preempted the deposits that he intended to make to
Deposits which provide that the Bank reserves the right to
fund those checks. Further, the petitioner banks act exposed
close an account if the depositor frequently draws checks

119
against insufficient funds and/or uncollected deposits and that
After due proceedings, the court a quo rendered judgment in
the Bank reserves the right at any time to return checks of the
favor of the respondent as it ordered the petitioner bank and
depositor which are drawn against insufficient funds or for any
Villadelgado, jointly and severally, to pay the respondent the
reason.[3]
amounts of P100,000.00 as moral damages and P50,000.00

They showed that the respondent had improperly and as exemplary damages and costs of suit. In so ruling, the

irregularly handled his current account. For example, in 1986, court a quo also cited petitioner banks rules and regulations

the respondents account was overdrawn 156 times, in 1987, which state that a charge of P10.00 shall be levied against the

117 times and in 1988, 26 times. In all these instances, the depositor for any check that is taken up as a returned item due

account was overdrawn due to the issuance of checks against to insufficiency of funds on the date of receipt from the clearing

insufficient funds. The respondent had also signed several office even if said check is honored and/or covered by

checks with a different signature from the specimen on file for sufficient deposit the following banking day. The same rules

dubious reasons. and regulations also provide that a check returned for

insufficiency of funds for any reason of similar import may be

When the respondent made the deposit on April 5, 1988, it
subsequently recleared for one more time only, subject to the
was obviously to cover for issuances made the previous day
same charges.
against an insufficiently funded account. When his Check No.

2434886 was presented for payment on April 4, 1988, he had According to the court a quo, following these rules and

already incurred an overdraft; hence, petitioner bank rightfully regulations, the respondent, as depositor, had the right to put

dishonored the same for insufficiency of funds. up sufficient funds for a check that was taken as a returned

120
item for insufficient funds the day following the receipt of said said right. Citing Article 19 of the Civil Code of the Philippines

check from the clearing office. In fact, the said check could still which states that [e]very person must, in the exercise of his

be recleared for one more time. In previous instances, rights and in the performance of his duties, act with justice,

petitioner bank notified the respondent when he incurred an give everyone his due, and observe honesty and good faith

overdraft and he would then deposit sufficient funds the and Article 20 thereof which states that [e]very person who,

following day to cover the overdraft. Petitioner bank thus acted contrary to law, wilfully or negligently causes damage to

unjustifiably when it immediately closed the respondents another, shall indemnify the latter for the same, the court a

account on April 4, 1988 and deprived him of the opportunity quo adjudged petitioner bank of acting in bad faith. It held that,

to reclear his check or deposit sufficient funds therefor the under the foregoing circumstances, the respondent is entitled

following day. to an award of moral and exemplary damages.

As a result of the closure of his current account, several of the The decretal portion of the court a quos decision reads:

respondents checks were subsequently dishonored and WHEREFORE, PREMISES

CONSIDERED, judgment is hereby rendered:
because of this, the respondent was humiliated, embarrassed
1. Ordering the defendants [petitioner
and lost his credit standing in the business community. The bank and Villadelgado], jointly and
severally, to pay plaintiff [the
court a quo further ratiocinated that even respondent] the sum of P100,000.00 as
moral damages;
granting arguendo that petitioner bank had the right to close

the respondents account, the manner which attended the 2. Ordering the defendants, jointly and
severally, to pay plaintiff the sum
closure constituted an abuse of the of P50,000.00 as exemplary damages
plus costs and expenses of the suit;
and

121
 3. Dismissing [the] defendants for insufficiency of funds. However, on April 4, 1988, petitioner
counterclaim for lack of merit.
bank immediately closed the respondents account without
[4]
SO ORDERED.
even notifying him that he had incurred an overdraft. Even

when they had already closed his account on April 4, 1988,

On appeal, the CA rendered the Decision dated August 30,
petitioner bank still accepted the deposit that the respondent
2002, affirming with modification the decision of the court a
made on April 5, 1988, supposedly to cover his checks.
quo.
Echoing the reasoning of the court a quo, the CA
The appellate court substantially affirmed the factual findings
declared that even as it may be conceded that petitioner bank
of the court a quo as it held that petitioner bank unjustifiably
had reserved the right to close an account for repeated
closed the respondents account notwithstanding that its own
overdrafts by the respondent, the exercise of that right must
rules and regulations
never be despotic or arbitrary. That petitioner bank chose to

allow that a check returned for insufficiency of funds or any close the account outright and return the check, even after

reason of similar import, may be subsequently recleared for accepting a deposit sufficient to cover the said check, is

one more time, subject to standard charges. Like the court a contrary to its duty to handle the respondents account with

quo, the appellate court observed that in several instances in utmost fidelity. The exercise of the right is not absolute and

previous years, petitioner bank would inform the respondent good faith, at least, is required. The manner by which

when he incurred an overdraft and allowed him to make a petitioner bank closed the account of the respondent runs

timely deposit to fund the checks that were initially dishonored afoul of Article 19 of the Civil Code which enjoins every

122
person, in the exercise of his rights, to give every one his due, The dispositive portion of the assailed CA decision reads:

and observe honesty and good faith. WHEREFORE, the decision appealed
from is hereby AFFIRMED, subject to the
MODIFICATION that the award of moral
damages is reduced to P75,000.00 and the
award of exemplary damages reduced
The CA concluded that petitioner banks precipitate and to P25,000.00.
imprudent closure of the respondents account had caused SO ORDERED.[6]
him, a respected officer of several civic and banking

associations, serious anxiety and humiliation. It had, likewise, Petitioner bank sought the reconsideration of the said decision
tainted his credit standing. Consequently, the award of but in the assailed Resolution dated January 17, 2003, the
damages is warranted. The CA, however, reduced the amount appellate court denied its motion. Hence, the recourse to this
of damages awarded by the court a quo as it found the same Court.
to be excessive:
Petitioner bank maintains that, in closing the account of the
We, however, find excessive the amount
of damages awarded by the RTC. In our view respondent in the evening of April 4, 1988, it acted in good
the reduced amount of P75,000.00 as moral
damages and P25,000.00 as exemplary faith and in accordance with the rules and regulations
damages are in order. Awards for damages are
not meant to enrich the plaintiff-appellee [the governing the operation of a
respondent] at the expense of defendants-
appellants [the petitioners], but to obviate the
moral suffering he has undergone. The award is
aimed at the restoration, within limits possible, regular demand deposit which reserves to the bank the right to
of the status quo ante, and should be
proportionate to the suffering inflicted.[5] close an account if the depositor frequently draws checks

against insufficient funds and/or uncollected deposits. The

123
same rules and regulations also provide that the depositor is
not entitled, as a matter of right, to overdraw on this deposit
and the bank reserves the right at any time to return checks of
the depositor which are drawn against insufficient funds or for
any reason.
It cites the numerous instances that the respondent had
overdrawn his account and those instances where he
deliberately signed checks using a signature different from the
specimen on file. Based on these facts, petitioner bank was
constrained to close the respondents account for improper and
irregular handling and returned his Check No. 2434886 which
was presented to the bank for payment on April 4, 1988.
Petitioner bank further posits that there is no law or rule which
gives the respondent a legal right to make good his check or to
deposit the corresponding amount to cover said check within
24 hours after the same is dishonored or returned by the bank
for having been drawn against insufficient funds. It vigorously
denies having violated Article 19 of the Civil Code as it insists
that it acted in good faith and in accordance with the pertinent
banking rules and regulations.
The petition is impressed with merit.
A perusal of the respective decisions of the court a
quo and the appellate court show that the award of damages
in the respondents favor was anchored mainly on Article 19 of
the Civil Code which, quoted anew below, reads:
Art. 19. Every person must, in the
exercise of his rights and in the performance of
his duties, act with justice, give everyone his
due, and observe honesty and good faith.
The elements of abuse of rights are the following: (a)
the existence of a legal right or duty; (b) which is exercised in
bad faith; and (c) for the sole intent of prejudicing or injuring
another.[7] Malice or bad faith is at the core of the said
provision.[8] The law always presumes good faith and any
person who seeks to be awarded damages due to acts of
another has the burden of proving that the latter acted in bad
124

faith or with ill-motive.[9] Good faith refers to the state of the
mind which is manifested by the acts of the individual
concerned. It consists of the intention to abstain from taking an
unconscionable and unscrupulous advantage
another.[10] Bad faith does not simply connote bad judgment or
simple negligence, dishonest purpose or some moral obliquity
and conscious doing of a wrong, a breach of known duty due
to some motives or interest or ill-will that partakes of the nature
[11]
of fraud. Malice connotes ill-will or spite and speaks not in
response to duty. It implies an intention to do ulterior and
[12]
unjustifiable harm. Malice is bad faith or bad motive.
Undoubtedly, petitioner bank has the right to close the
account of the respondent based on the following provisions of
its Rules and Regulations Governing the Establishment and
Operation of Regular Demand Deposits:
10) The Bank reserves the right to close an
account if the depositor frequently draws
checks against insufficient funds and/or
uncollected deposits.
12)
However, it is clearly understood that the
depositor is not entitled, as a matter of
right, to overdraw on this deposit and the
bank reserves the right at any time to
return checks of the depositor which are
drawn against insufficient funds or for any
of other reason.
The facts, as found by the court a quo and the
appellate court, do not establish that, in the exercise of this
right, petitioner bank committed an abuse thereof. Specifically,
the second and third elements for abuse of rights are not
attendant in the present case. The evidence presented by
petitioner bank negates the existence of bad faith or malice on
its part in closing the respondents account on April 4, 1988
because on the said date the same was already overdrawn.
The respondent issued four checks, all due on April 4, 1988,
amounting to P7,410.00 when the balance of his current
account deposit was only P6,981.43. Thus, he incurred an
overdraft of P428.57 which resulted in the dishonor of his
Check No. 2434886. Further, petitioner bank showed that in
1986, the current account of the respondent was overdrawn
125
156 times due to his issuance of checks against insufficient circumstances, petitioner bank could not be faulted for

funds.[13] In 1987, the said account was overdrawn 117 times exercising its right in accordance with the express rules and

for the same regulations governing the current accounts of its depositors.

Upon the opening of his account, the respondent had agreed

reason.[14] Again, in 1988, 26 times.[15] There were also several to be bound by these terms and conditions.

instances when the respondent issued checks deliberately

Neither the fact that petitioner bank accepted the deposit
using a signature different from his specimen signature on file
made by the respondent the day following the closure of his
with petitioner bank.[16] All these circumstances taken together
account constitutes bad faith or malice on the part of petitioner
justified the petitioner banks closure of the respondents
bank. The same could be characterized as simple negligence
account on April 4, 1988 for improper handling.
by its personnel. Said act, by itself, is not constitutive of bad

It is observed that nowhere under its rules and faith.

regulations is petitioner bank required to notify the respondent, The respondent had thus failed to discharge his burden

or any depositor for that matter, of the closure of the account of proving bad faith on the part of petitioner bank or that it was

for frequently drawing checks against insufficient funds. No motivated by ill-will or spite in closing his account on April 4,

malice or bad faith could be imputed on petitioner bank for so 1988 and in inadvertently accepting his deposit on April 5,

acting since the records bear out that the respondent had 1988.

indeed been improperly and irregularly handling his account

Further, it has not been shown that these acts were
not just a few times but hundreds of times. Under the
done by petitioner bank with the sole intention of prejudicing

126

and injuring the respondent. It is conceded that the respondent
may have suffered damages as a result of the closure of his
current account. However, there is a material distinction
duty and the imposition of liability for that
breach before damages may be awarded; and
the breach of such duty should be the
proximate cause of the injury.[17]

between damages and injury. The Court had the occasion to Whatever damages the respondent may have suffered as a
explain the distinction between damages and injury in this consequence, e.g., dishonor of his other insufficiently funded
wise: checks, would have to be borne by him alone. It was the

Injury is the illegal invasion of a legal respondents repeated improper

right; damage is the loss, hurt or harm which
results from the injury; and damages are the
recompense or compensation awarded for the
damage suffered. Thus, there can be damage and irregular handling of his account which constrained
without injury in those instances in which the
loss or harm was not the result of a violation of petitioner bank to close the same in accordance with the rules
a legal duty. In such cases, the consequences
must be borne by the injured person alone, the and regulations governing its depositors current accounts. The
law affords no remedy for damages resulting
from an act which does not amount to a legal respondents case is clearly one of damnum absque injuria.
injury or wrong. These situations are often
called damnum absque injuria.
WHEREFORE, the petition is GRANTED. The
In other words, in order that a plaintiff may Decision dated August 30, 2002 and Resolution dated January
maintain an action for the injuries of which he
complains, he must establish that such injuries 17, 2003 of the Court of Appeals in CA-G.R. CV No. 36627
resulted from a breach of duty which the
defendant owed to the plaintiff a concurrence of are REVERSED AND SET ASIDE.
injury to the plaintiff and legal responsibility by
the person causing it. The underlying basis for
the award of tort damages is the premise that SO ORDERED.
the individual was injured in contemplation of
law. Thus, there must first be a breach of some G.R. No. 146322 December 6, 2006

127
ERNESTO RAMAS UYPITCHING and RAMAS UYPITCHING
SONS, INC., petitioners,
vs.
ERNESTO QUIAMCO, respondent.
DECISION
CORONA, J.:
Honeste vivere, non alterum laedere et jus suum cuique
tribuere. To live virtuously, not to injure others and to give
everyone his due. These supreme norms of justice are the
underlying principles of law and order in society. We reaffirm
them in this petition for review on certiorari assailing the July
26, 2000 decision1 and October 18, 2000 resolution of the
Court of Appeals (CA) in CA-G.R. CV No. 47571.
In 1982, respondent Ernesto C. Quiamco was approached by
Juan Davalan,2 Josefino Gabutero and Raul Generoso to
amicably settle the civil aspect of a criminal case for
robbery3 filed by Quiamco against them. They surrendered to
him a red Honda XL-100 motorcycle and a photocopy of its
certificate of registration. Respondent asked for the original
certificate of registration but the three accused never came to
see him again. Meanwhile, the motorcycle was parked in an
open space inside respondent’s business establishment,
Avesco-AVNE Enterprises, where it was visible and accessible
to the public.
It turned out that, in October 1981, the motorcycle had been
sold on installment basis to Gabutero by petitioner Ramas
Uypitching Sons, Inc., a family-owned corporation managed by
petitioner Atty. Ernesto Ramas Uypitching. To secure its
payment, the motorcycle was mortgaged to petitioner
corporation.4
When Gabutero could no longer pay the installments, Davalan
assumed the obligation and continued the payments. In
September 1982, however, Davalan stopped paying the
remaining installments and told petitioner corporation’s
collector, Wilfredo Veraño, that the motorcycle had allegedly
been "taken by respondent’s men."
Nine years later, on January 26, 1991, petitioner Uypitching,
accompanied by policemen,5 went to Avesco-AVNE
Enterprises to recover the motorcycle. The leader of the police
team, P/Lt. Arturo Vendiola, talked to the clerk in charge and
asked for respondent. While P/Lt. Vendiola and the clerk were
talking, petitioner Uypitching paced back and forth inside the
establishment uttering "Quiamco is a thief of a motorcycle."
On learning that respondent was not in Avesco-AVNE
Enterprises, the policemen left to look for respondent in his
residence while petitioner Uypitching stayed in the
establishment to take photographs of the motorcycle. Unable
to find respondent, the policemen went back to Avesco-AVNE
Enterprises and, on petitioner Uypitching’s instruction and over
the clerk’s objection, took the motorcycle.
On February 18, 1991, petitioner Uypitching filed a criminal
complaint for qualified theft and/or violation of the Anti-Fencing
Law6 against respondent in the Office of the City Prosecutor of
Dumaguete City.7 Respondent moved for dismissal because
the complaint did not charge an offense as he had neither
stolen nor bought the motorcycle. The Office of the City
128
Prosecutor dismissed the complaint8 and denied petitioner
Uypitching’s subsequent motion for reconsideration.
Respondent filed an action for damages against petitioners in
the RTC of Dumaguete City, Negros Oriental, Branch 37.9 He
sought to hold the petitioners liable for the following: (1)
unlawful taking of the motorcycle; (2) utterance of a
defamatory remark (that respondent was a thief) and (3)
precipitate filing of a baseless and malicious complaint. These
acts humiliated and embarrassed the respondent and injured
his reputation and integrity.
On July 30, 1994, the trial court rendered a decision10 finding
that petitioner Uypitching was motivated with malice and ill will
when he called respondent a thief, took the motorcycle in an
abusive manner and filed a baseless complaint for qualified
theft and/or violation of the Anti-Fencing Law. Petitioners’ acts
were found to be contrary to Articles 1911 and 2012 of the Civil
Code. Hence, the trial court held petitioners liable to
respondent for P500,000 moral damages, P200,000
exemplary damages and P50,000 attorney’s fees plus costs.
Petitioners appealed the RTC decision but the CA affirmed the
trial court’s decision with modification, reducing the award of
moral and exemplary damages to P300,000 and P100,000,
respectively.13 Petitioners sought reconsideration but it was
denied. Thus, this petition.
In their petition and memorandum, petitioners submit that the
sole (allegedly) issue to be resolved here is whether the filing
of a complaint for qualified theft and/or violation of the Anti-
Fencing Law in the Office of the City Prosecutor warranted the
award of moral damages, exemplary damages, attorney’s fees
and costs in favor of respondent.
Petitioners’ suggestion is misleading. They were held liable for
damages not only for instituting a groundless complaint
against respondent but also for making a slanderous remark
and for taking the motorcycle from respondent’s establishment
in an abusive manner.
Correctness of the Findings of the RTC and CA
As they never questioned the findings of the RTC and CA that
malice and ill will attended not only the public imputation of a
crime to respondent14 but also the taking of the motorcycle,
petitioners were deemed to have accepted the correctness of
such findings. This alone was sufficient to hold petitioners
liable for damages to respondent.
Nevertheless, to address petitioners’ concern, we also find that
the trial and appellate courts correctly ruled that the filing of
the complaint was tainted with malice and bad faith.
Petitioners themselves in fact described their action as a
"precipitate act."15 Petitioners were bent on portraying
respondent as a thief. In this connection, we quote with
approval the following findings of the RTC, as adopted by the
CA:
x x x There was malice or ill-will [in filing the complaint
before the City Prosecutor’s Office] because Atty.
Ernesto Ramas Uypitching knew or ought to have
known as he is a lawyer, that there was no probable
cause at all for filing a criminal complaint for qualified
theft and fencing activity against [respondent]. Atty.
Uypitching had no personal knowledge that
[respondent] stole the motorcycle in question. He was
merely told by his bill collector ([i.e.] the bill collector of
Ramas Uypitching Sons, Inc.)[,] Wilfredo Veraño[,] that
Juan Dabalan will [no longer] pay the remaining
installment(s) for the motorcycle because the
129
 motorcycle was taken by the men of [respondent]. It
must be noted that the term used by Wilfredo Veraño in
informing Atty. Ernesto Ramas Uypitching of the
refusal of Juan Dabalan to pay for the remaining
installment was [‘]taken[’], not [‘]unlawfully taken[’] or
‘stolen.’ Yet, despite the double hearsay, Atty. Ernesto
Ramas Uypitching not only executed the [complaint-
affidavit] wherein he named [respondent] as ‘the
suspect’ of the stolen motorcycle but also charged
[respondent] of ‘qualified theft and fencing activity’
before the City [Prosecutor’s] Office of Dumaguete.
The absence of probable cause necessarily signifies
the presence of malice. What is deplorable in all these
is that Juan Dabalan, the owner of the motorcycle, did
not accuse [respondent] or the latter’s men of stealing
the motorcycle[,] much less bother[ed] to file a case for
qualified theft before the authorities. That Atty.
Uypitching’s act in charging [respondent] with qualified
theft and fencing activity is tainted with malice is also
shown by his answer to the question of Cupid
Gonzaga16 [during one of their conversations] - "why
should you still file a complaint? You have already
recovered the motorcycle…"[:] "Aron motagam ang
kawatan ug motor." ("To teach a lesson to the thief of
motorcycle.")17
Moreover, the existence of malice, ill will or bad faith is a
factual matter. As a rule, findings of fact of the trial court, when
affirmed by the appellate court, are conclusive on this Court.
We see no compelling reason to reverse the findings of the
RTC and the CA.
Petitioners Abused Their Right of Recovery as
Mortgagee(s)
Petitioners claim that they should not be held liable for
petitioner corporation’s exercise of its right as seller-
mortgagee to recover the mortgaged vehicle preliminary to the
enforcement of its right to foreclose on the mortgage in case of
default. They are clearly mistaken.
True, a mortgagee may take steps to recover the mortgaged
property to enable it to enforce or protect its foreclosure right
thereon. There is, however, a well-defined procedure for the
recovery of possession of mortgaged property: if a mortgagee
is unable to obtain possession of a mortgaged property for its
sale on foreclosure, he must bring a civil action either to
recover such possession as a preliminary step to the sale, or
to obtain judicial foreclosure.18
Petitioner corporation failed to bring the proper civil action
necessary to acquire legal possession of the motorcycle.
Instead, petitioner Uypitching descended on respondent’s
establishment with his policemen and ordered the seizure of
the motorcycle without a search warrant or court order. Worse,
in the course of the illegal seizure of the motorcycle, petitioner
Uypitching even mouthed a slanderous statement.
No doubt, petitioner corporation, acting through its co-
petitioner Uypitching, blatantly disregarded the lawful
procedure for the enforcement of its right, to the prejudice of
respondent. Petitioners’ acts violated the law as well as public
morals, and transgressed the proper norms of human
relations.
The basic principle of human relations, embodied in Article 19
of the Civil Code, provides:
Art. 19. Every person must in the exercise of his rights
and in the performance of his duties, act with justice,
130
 give every one his due, and observe honesty and good
faith.
Article 19, also known as the "principle of abuse of right,"
prescribes that a person should not use his right unjustly or
contrary to honesty and good faith, otherwise he opens himself
to liability.19 It seeks to preclude the use of, or the tendency to
use, a legal right (or duty) as a means to unjust ends.
There is an abuse of right when it is exercised solely to
prejudice or injure another.20 The exercise of a right must be in
accordance with the purpose for which it was established and
must not be excessive or unduly harsh; there must be no
intention to harm another.21 Otherwise, liability for damages to
the injured party will attach.
In this case, the manner by which the motorcycle was taken at
petitioners’ instance was not only attended by bad faith but
also contrary to the procedure laid down by law. Considered in
conjunction with the defamatory statement, petitioners’
exercise of the right to recover the mortgaged vehicle was
utterly prejudicial and injurious to respondent. On the other
hand, the precipitate act of filing an unfounded complaint could
not in any way be considered to be in accordance with the
purpose for which the right to prosecute a crime was
established. Thus, the totality of petitioners’ actions showed a
calculated design to embarrass, humiliate and publicly ridicule
respondent. Petitioners acted in an excessively harsh fashion
to the prejudice of respondent. Contrary to law, petitioners
willfully caused damage to respondent. Hence, they should
indemnify him.22
WHEREFORE, the petition is hereby DENIED. The July 26,
2000 decision and October 18, 2000 resolution of the Court of
Appeals in CA-G.R. CV No. 47571 are AFFIRMED.
Triple costs against petitioners, considering that petitioner
Ernesto Ramas Uypitching is a lawyer and an officer of the
court, for his improper behavior.
SO ORDERED.
G.R. No. 160273 January 18, 2008
CEBU COUNTRY CLUB, INC., SABINO R. DAPAT, RUBEN
D. ALMENDRAS, JULIUS Z. NERI, DOUGLAS L. LUYM,
CESAR T. LIBI, RAMONTITO* E. GARCIA and JOSE B.
SALA, petitioners,
vs.
RICARDO F. ELIZAGAQUE, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, assailing the Decision1 dated
January 31, 2003 and Resolution dated October 2, 2003 of the
Court of Appeals in CA-G.R. CV No. 71506.
The facts are:
Cebu Country Club, Inc. (CCCI), petitioner, is a domestic
corporation operating as a non-profit and non-stock private
membership club, having its principal place of business in
Banilad, Cebu City. Petitioners herein are members of its
Board of Directors.
Sometime in 1987, San Miguel Corporation, a special
company proprietary member of CCCI, designated respondent
Ricardo F. Elizagaque, its Senior Vice President and
131
Operations Manager for the Visayas and Mindanao, as a
special non-proprietary member. The designation was
thereafter approved by the CCCI’s Board of Directors.
In 1996, respondent filed with CCCI an application for
proprietary membership. The application was indorsed by
CCCI’s two (2) proprietary members, namely: Edmundo T.
Misa and Silvano Ludo.
As the price of a proprietary share was around the P5 million
range, Benito Unchuan, then president of CCCI, offered to sell
respondent a share for only P3.5 million. Respondent,
however, purchased the share of a certain Dr. Butalid for
only P3 million. Consequently, on September 6, 1996, CCCI
issued Proprietary Ownership Certificate No. 1446 to
respondent.
During the meetings dated April 4, 1997 and May 30, 1997 of
the CCCI Board of Directors, action on respondent’s
application for proprietary membership was deferred. In
another Board meeting held on July 30, 1997, respondent’s
application was voted upon. Subsequently, or on August 1,
1997, respondent received a letter from Julius Z. Neri, CCCI’s
corporate secretary, informing him that the Board disapproved
his application for proprietary membership.
On August 6, 1997, Edmundo T. Misa, on behalf of
respondent, wrote CCCI a letter of reconsideration. As CCCI
did not answer, respondent, on October 7, 1997, wrote
another letter of reconsideration. Still, CCCI kept silent. On
November 5, 1997, respondent again sent CCCI a letter
inquiring whether any member of the Board objected to his
application. Again, CCCI did not reply.
Consequently, on December 23, 1998, respondent filed with
the Regional Trial Court (RTC), Branch 71, Pasig City a
complaint for damages against petitioners, docketed as Civil
Case No. 67190.
After trial, the RTC rendered its Decision dated February 14,
2001 in favor of respondent, thus:
WHEREFORE, judgment is hereby rendered in favor of
plaintiff:
1. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P2,340,000.00 as actual or
compensatory damages.
2. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P5,000,000.00 as moral
damages.
3. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P1,000,000.00 as exemplary
damages.
4. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P1,000,000.00 as and by way of
attorney’s fees and P80,000.00 as litigation expenses.
5. Costs of suit.
Counterclaims are hereby DISMISSED for lack of
merit.
SO ORDERED.2
On appeal by petitioners, the Court of Appeals, in its Decision
dated January 31, 2003, affirmed the trial court’s Decision with
modification, thus:
132
 WHEREFORE, premises considered, the assailed
Decision dated February 14, 2001 of the Regional Trial
Court, Branch 71, Pasig City in Civil Case No. 67190 is
hereby AFFIRMED with MODIFICATION as follows:
1. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the amount
of P2,000,000.00 as moral damages;
2. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the amount
of P1,000,000.00 as exemplary damages;
3. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the mount of P500,000.00
as attorney’s fees and P50,000.00 as litigation
expenses; and
4. Costs of the suit.
The counterclaims are DISMISSED for lack of merit.
SO ORDERED. 3 procedure for the admission of new members of the
On March 3, 2003, petitioners filed a motion for
reconsideration and motion for leave to set the motion for oral
arguments. In its Resolution4 dated October 2, 2003, the
appellate court denied the motions for lack of merit.
Hence, the present petition.
The issue for our resolution is whether in disapproving
respondent’s application for proprietary membership with
CCCI, petitioners are liable to respondent for damages, and if
so, whether their liability is joint and several.
Petitioners contend, inter alia, that the Court of Appeals erred
in awarding exorbitant damages to respondent despite the lack
of evidence that they acted in bad faith in disapproving the
latter’s application; and in disregarding their defense
of damnum absque injuria.
For his part, respondent maintains that the petition lacks merit,
hence, should be denied.
CCCI’s Articles of Incorporation provide in part:
SEVENTH: That this is a non-stock corporation and
membership therein as well as the right of participation
in its assets shall be limited to qualified persons who
are duly accredited owners of Proprietary Ownership
Certificates issued by the corporation in accordance
with its By-Laws.
Corollary, Section 3, Article 1 of CCCI’s Amended By-Laws
provides:
SECTION 3. HOW MEMBERS ARE ELECTED – The
Club shall be as follows:
(a) Any proprietary member, seconded by another
voting proprietary member, shall submit to the
Secretary a written proposal for the admission of a
candidate to the "Eligible-for-Membership List";
(b) Such proposal shall be posted by the Secretary for
a period of thirty (30) days on the Club bulletin board
during which time any member may interpose
objections to the admission of the applicant by
communicating the same to the Board of Directors;
133
 (c) After the expiration of the aforesaid thirty (30) days,
if no objections have been filed or if there are, the
Board considers the objections unmeritorious, the
candidate shall be qualified for inclusion in the
"Eligible-for-Membership List";
(d) Once included in the "Eligible-for-Membership List"
and after the candidate shall have acquired in his name
a valid POC duly recorded in the books of the
corporation as his own, he shall become a Proprietary
Member, upon a non-refundable admission fee
of P1,000.00, provided that admission fees will only be
collected once from any person.
On March 1, 1978, Section 3(c) was amended to read as
follows:
(c) After the expiration of the aforesaid thirty (30) days,
the Board may, by unanimous vote of all directors
present at a regular or special meeting, approve the
inclusion of the candidate in the "Eligible-for-
Membership List".
As shown by the records, the Board adopted a secret balloting
known as the "black ball system" of voting wherein each
member will drop a ball in the ballot box. A white ball
represents conformity to the admission of an applicant, while a
black ball means disapproval. Pursuant to Section 3(c), as
amended, cited above, a unanimous vote of the directors is
required. When respondent’s application for proprietary
membership was voted upon during the Board meeting on July
30, 1997, the ballot box contained one (1) black ball. Thus, for
lack of unanimity, his application was disapproved.
Obviously, the CCCI Board of Directors, under its Articles of
Incorporation, has the right to approve or disapprove an
application for proprietary membership. But such right should
not be exercised arbitrarily. Articles 19 and 21 of the Civil
Code on the Chapter on Human Relations provide restrictions,
thus:
Article 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
Article 21. Any person who willfully causes loss or
injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the
latter for the damage.
In GF Equity, Inc. v. Valenzona,5 we expounded Article 19 and
correlated it with Article 21, thus:
This article, known to contain what is commonly
referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in
the exercise of one's rights but also in the performance
of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights; that in
their exercise, the norms of human conduct set forth in
Article 19 must be observed. A right, though by itself
legal because recognized or granted by law as
such, may nevertheless become the source of
some illegality. When a right is exercised in a
manner which does not conform with the norms
enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for
which the wrongdoer must be held responsible. But
while Article 19 lays down a rule of conduct for the
134
 government of human relations and for the
maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be
proper. (Emphasis in the original)
In rejecting respondent’s application for proprietary
membership, we find that petitioners violated the rules
governing human relations, the basic principles to be observed
for the rightful relationship between human beings and for the
stability of social order. The trial court and the Court of
Appeals aptly held that petitioners committed fraud and
evident bad faith in disapproving respondent’s applications.
This is contrary to morals, good custom or public policy.
Hence, petitioners are liable for damages pursuant to Article
19 in relation to Article 21 of the same Code.
It bears stressing that the amendment to Section 3(c) of
CCCI’s Amended By-Laws requiring the unanimous vote of the
directors present at a special or regular meeting was not
printed on the application form respondent filled and submitted
to CCCI. What was printed thereon was the original provision
of Section 3(c) which was silent on the required number of
votes needed for admission of an applicant as a proprietary
member.
Petitioners explained that the amendment was not printed on
the application form due to economic reasons. We find this
excuse flimsy and unconvincing. Such amendment, aside from
being extremely significant, was introduced way back in 1978
or almost twenty (20) years before respondent filed his
application. We cannot fathom why such a prestigious and
exclusive golf country club, like the CCCI, whose members are
all affluent, did not have enough money to cause the printing
of an updated application form.
It is thus clear that respondent was left groping in the dark
wondering why his application was disapproved. He was not
even informed that a unanimous vote of the Board members
was required. When he sent a letter for reconsideration and an
inquiry whether there was an objection to his application,
petitioners apparently ignored him. Certainly, respondent did
not deserve this kind of treatment. Having been designated by
San Miguel Corporation as a special non-proprietary member
of CCCI, he should have been treated by petitioners with
courtesy and civility. At the very least, they should have
informed him why his application was disapproved.
The exercise of a right, though legal by itself, must
nonetheless be in accordance with the proper norm. When the
right is exercised arbitrarily, unjustly or excessively and results
in damage to another, a legal wrong is committed for which the
wrongdoer must be held responsible.6 It bears reiterating that
the trial court and the Court of Appeals held that petitioners’
disapproval of respondent’s application is characterized by
bad faith.
As to petitioners’ reliance on the principle of damnum absque
injuria or damage without injury, suffice it to state that the
same is misplaced. In Amonoy v. Gutierrez,7 we held that this
principle does not apply when there is an abuse of a
person’s right, as in this case.
As to the appellate court’s award to respondent of moral
damages, we find the same in order. Under Article 2219 of the
New Civil Code, moral damages may be recovered, among
others, in acts and actions referred to in Article 21. We believe
respondent’s testimony that he suffered mental anguish, social
humiliation and wounded feelings as a result of the arbitrary
denial of his application. However, the amount
of P2,000,000.00 is excessive. While there is no hard-and-fast
rule in determining what would be a fair and reasonable
135
amount of moral damages, the same should not be palpably
and scandalously excessive. Moral damages are not intended
to impose a penalty to the wrongdoer, neither to enrich the
claimant at the expense of the defendant.8 Taking into
consideration the attending circumstances here, we hold that
an award to respondent of P50,000.00, instead
of P2,000,000.00, as moral damages is reasonable.
Anent the award of exemplary damages, Article 2229 allows it
by way of example or correction for the public good.
Nonetheless, since exemplary damages are imposed not to
enrich one party or impoverish another but to serve as a
deterrent against or as a negative incentive to curb socially
deleterious actions,9 we reduce the amount
from P1,000,000.00 to P25,000.00 only.
On the matter of attorney’s fees and litigation expenses, Article
2208 of the same Code provides, among others, that
attorney’s fees and expenses of litigation may be recovered in
cases when exemplary damages are awarded and where the
court deems it just and equitable that attorney’s fees and
expenses of litigation should be recovered, as in this case. In
any event, however, such award must be reasonable, just and
equitable. Thus, we reduce the amount of attorney’s fees
(P500,000.00) and litigation expenses (P50,000.00)
to P50,000.00 and P25,000.00, respectively.
Lastly, petitioners’ argument that they could not be held jointly
and severally liable for damages because only one (1) voted
for the disapproval of respondent’s application lacks merit.
Section 31 of the Corporation Code provides:
SEC. 31. Liability of directors, trustees or officers. —
Directors or trustees who willfully and knowingly vote
for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence
or bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict
with their duty as such directors, or trustees shall
be liable jointly and severally for all damages
resulting therefrom suffered by the corporation, its
stockholders or members and other persons.
(Emphasis ours)
WHEREFORE, we DENY the petition. The challenged
Decision and Resolution of the Court of Appeals in CA-G.R.
CV No. 71506 are AFFIRMED with modification in the sense
that (a) the award of moral damages is reduced
from P2,000,000.00 to P50,000.00; (b) the award of exemplary
damages is reduced from P1,000,000.00 to P25,000.00; and
(c) the award of attorney’s fees and litigation expenses is
reduced from P500,000.00 and P50,000.00 to P50,000.00
and P25,000.00, respectively.
Costs against petitioners.
SO ORDERED.
CALATAGAN GOLF CLUB, INC. G.R. No. 165443
Petitioner,
Present:
QUISUMBING, J.,
- versus - Chairperson,
YNARES-SANTIAGO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.*
SIXTO CLEMENTE, JR.,
Respondent.
136
Promulgated:
which he was connected, Calatagan issued to him Certificate
April 16, 2009 of Stock No. A-01295 on 2 May 1990 after
x --------------------------------------------------------------------------------- paying P120,000.00 for the share.[2]
x

Calatagan charges monthly dues on its members to

DECISION
meet expenses for general operations, as well as costs for
TINGA, J.:
upkeep and improvement of the grounds and facilities. The
Seeking the reversal of the Decision[1] dated 1 June
provision on monthly dues is incorporated in Calatagans
2004 of the Court of Appeals in CA-G.R. SP No. 62331 and
Articles of Incorporation and By-Laws. It is also reproduced at
the reinstatement of the Decision dated 15 November 2000 of
the back of each certificate of stock.[3] As reproduced in the
the Securities and Exchange Commission (SEC) in SEC Case
dorsal side of Certificate of Stock No. A-01295, the provision
No. 04-98-5954, petitioner Calatagan Golf Club, Inc.
reads:
(Calatagan) filed this Rule 45 petition against respondent Sixto
Clemente, Jr. (Clemente). 5. The owners of shares of stock shall be
subject to the payment of monthly dues in an
amount as may be prescribed in the by-laws or
The key facts are undisputed. by the Board of Directors which shall in no case
be less that [sic] P50.00 to meet the expenses
for the general operations of the club, and the
maintenance and improvement of its premises
Clemente applied to purchase one share of stock of and facilities, in addition to such fees as may be
Calatagan, indicating in his application for membership his charged for the actual use of the facilities x x x

mailing address at Phimco Industries, Inc. P.O. Box 240,

MCC, complete residential address, office and residence When Clemente became a member the monthly charge

telephone numbers, as well as the company (Phimco) with stood at P400.00. He paid P3,000.00 for his monthly dues

137
on 21 March 1991 and another P5,400.00 on 9 December
1991. Then he ceased paying the dues. At that point, his
balance amounted to P400.00.[4]
Ten (10) months later, Calatagan made the initial step
to collect Clementes back accounts by sending a demand
letter dated 21 September 1992. It was followed by a second
letter dated 22 October 1992. Both letters were sent to
Clementes mailing address as indicated in his membership
application but were sent back to sender with the postal note
that the address had been closed.[5]
Calatagan declared Clemente delinquent for having
failed to pay his monthly dues for more than sixty (60) days,
specifically P5,600.00 as of 31 October 1992. Calatagan also
included Clementes name in the list of delinquent members
posted on the clubs bulletin board. On 1 December 1992,
Calatagans board of directors adopted a resolution authorizing
the foreclosure of shares of delinquent members, including
Clementes; and the public auction of these shares.
On 7 December 1992, Calatagan sent a third and final
letter to Clemente, this time signed by its Corporate Secretary,
Atty. Benjamin Tanedo, Jr. The letter contains a warning that
unless Clemente settles his outstanding dues, his share would
be included among the delinquent shares to be sold at public
auction on 15 January 1993. Again, this letter was sent to
Clementes mailing address that had already been closed.[6]
On 5 January 1993, a notice of auction sale was posted
on the Clubs bulletin board, as well as on the clubs premises.
The auction sale took place as scheduled on 15 January 1993,
and Clementes share sold for P64,000.[7] According to the
Certificate of Sale issued by Calatagan after the sale,
Clementes share was purchased by a Nestor A. Virata.[8] At
the time of the sale, Clementes accrued monthly dues
amounted to P5,200.00.[9] A notice of foreclosure of Clementes
share was published in the 26 May 1993 issue of the Business
World.[10]
Clemente learned of the sale of his share only in
November of 1997.[11] He filed a claim with the Securities and
138
Exchange Commission (SEC) seeking the restoration of his
shareholding in Calatagan with damages.
On 15 November 2000, the SEC rendered a decision
dismissing Clementes complaint. Citing Section 69 of the
Corporation Code which provides that the sale of shares at an
auction sale can only be questioned within six (6) months from
the date of sale, the SEC concluded that Clementes claim,
filed four (4) years after the sale, had already prescribed. The
SEC further held that Calatagan had complied with all the
requirements for a valid sale of the subject share, Clemente
having failed to inform Calatagan that the address he had
earlier supplied was no longer his address. Clemente, the SEC
ruled, had acted in bad faith in assuming as he claimed that
his non-payment of monthly dues would merely render his
share inactive.
Clemente filed a petition for review with the Court of
Appeals. On 1 June 2004, the Court of Appeals promulgated a
decision reversing the SEC. The appellate court restored
Clementes one share with a directive to Calatagan to issue in
his a new share, and awarded to Clemente a total
of P400,000.00 in damages, less the unpaid monthly dues
of P5,200.00.
In rejecting the SECs finding that the action had
prescribed, the Court of Appeals cited the SECs own ruling in
SEC Case No. 4160, Caram v. Valley Golf Country Club, Inc.,
that Section 69 of the Corporation Code specifically refers to
unpaid subscriptions to capital stock, and not to any other debt
of stockholders. With the insinuation that Section 69 does not
apply to unpaid membership dues in non-stock corporations,
the appellate court employed Article 1140 of the Civil Code as
the proper rule of prescription. The provision sets the
prescription period of actions to recover movables at eight (8)
years.
139
 The Court of Appeals also pointed out that since that
Calatagans first two demand letters had been returned to it as
sender with the notation about the closure of the mailing
address, it very well knew that its third and final demand letter
also sent to the same mailing address would not be received
by Clemente. It noted the by-law requirement that within ten
(10) days after the Board has ordered the sale at auction of a
members share of stock for indebtedness, the Corporate
Secretary shall notify the owner thereof and advise the
Membership Committee of such fact. Finally, the Court of
Appeals ratiocinated that a person who is in danger of the
imminent loss of his property has the right to be notified and
be given the chance to prevent the loss.[12]
Hence, the present appeal.
Calatagan maintains that the action of Clemente had
prescribed pursuant to Section 69 of the Corporation Code,
and that the requisite notices under both the law and the by-
laws had been rendered to Clemente.
Section 69 of the Code provides that an action to
recover delinquent stock sold must be commenced by the
filing of a complaint within six (6) months from the date of sale.
As correctly pointed out by the Court of Appeals, Section 69 is
part of Title VIII of the Code entitled Stocks and Stockholders
and refers specifically to unpaid subscriptions to capital stock,
the sale of which is governed by the immediately preceding
Section 68.
The Court of Appeals debunked both Calatagans and
the SECs reliance on Section 69 by citing another SEC ruling
in the case of Caram v. Valley Golf. In connection with Section
69, Calatagan raises a peripheral point made in the
SECs Caram ruling. In Caram, the SEC, using as take-off
Section 6 of the Corporation Code which refers to such rights,
privileges or restrictions as may be stated in the articles of
incorporation, pointed out that the Articles of Incorporation of
Valley Golf does not impose any lien, liability or restriction on
the Golf Share [of Caram], but only its (Valley Golfs) By-Laws
does. Here, Calatagan stresses that its own Articles of
Incorporation does provide that the monthly dues assessed on
owners of shares of the corporation, along with all other
140
obligations of the shareholders to the club, shall constitute a share. Perhaps the analogy could have been made if
first lien on the shares and in the event of delinquency such Clemente had not yet fully paid for his share and the non-stock
shares may be ordered sold by the Board of Directors in the corporation, pursuant to an article or by-law provision
manner provided in the By-Laws to satisfy said dues or other designed to address that situation, decided to sell such share
obligations of the shareholders.[13] With its illative but as a consequence. But that is not the case here, and there is
incomprehensible logic, Calatagan concludes that the no purpose for us to apply Section 69 to the case at bar.
prescriptive period under Section 69 should also apply to the
sale of Clementes share as the lien that Calatagan perceives Calatagan argues in the alternative that Clementes suit
to be a restriction is stated in the articles of incorporation and is barred by Article 1146 of the Civil Code which establishes
not only in the by-laws. four (4) years as the prescriptive period for actions based upon
injury to the rights of the plaintiff on the hypothesis that the suit
We remain unconvinced. is purely for damages. As a second alternative still, Calatagan
posits that Clementes action is governed by Article 1149 of the
There are fundamental differences that defy Civil Code which sets five (5) years as the period of
equivalence or even analogy between the sale of delinquent prescription for all other actions whose prescriptive periods are
stock under Section 68 and the sale that occurred in this case. not fixed in the Civil Code or in any other law. Neither article is
At the root of the sale of delinquent stock is the non-payment applicable but Article 1140 of the Civil Code which provides
of the subscription price for the share of stock itself. The that an action to recover movables shall prescribe in eight (8)
stockholder or subscriber has yet to fully pay for the value of years.Calatagans action is for the recovery of a share of stock,
the share or shares subscribed. In this case, Clemente had plus damages.
already fully paid for the share in Calatagan and no longer had
any outstanding obligation to deprive him of full title to his

141

Calatagans advertence to the fact that the constitution
of a lien on the members share by virtue of the explicit
provisions in its Articles of Incorporation and By-Laws is
relevant but ultimately of no help to its cause. Calatagans
Articles of Incorporation states that the dues, together with all
other obligations of members to the club, shall constitute a first
lien on the shares, second only to any lien in favor of the
national or local government, and in the event of delinquency
such shares may be ordered sold by the Board of Directors in
the manner provided in the By-Laws to satisfy said dues or
other obligations of the stockholders.[14] In turn, there are
several provisions in the By-laws that govern the payment of
dues, the lapse into delinquency of the member, and the
constitution and execution on the lien. We quote these
provisions:
ARTICLE XII MEMBERS ACCOUNT
SEC. 31. (a) Billing Members, Posting of
Delinquent Members The Treasurer shall bill al
members monthly. As soon as possible after the
end of every month, a statement showing the
account of bill of a member for said month will
be prepared and sent to him. If the bill of any
member remains unpaid by the 20th of the month
following that in which the bill was incurred, the
Treasurer shall notify him that if his bill is not
paid in full by the end of the succeeding month
his name will be posted as delinquent the
following day at the Clubhouse bulletin board.
While posted, a member, the immediate
members of his family, and his guests, may not
avail of the facilities of the Club.
(b) Members on the delinquent list for more
than 60 days shall be reported to the Board and
their shares or the shares of the juridical entities
they represent shall thereafter be ordered sold
by the Board at auction to satisfy the claims of
the Club as provided for in Section 32 hereon. A
member may pay his overdue account at any
time before the auction sale.
Sec. 32. Lien on Shares; Sale of Share at
Auction- The club shall have a first lien on every
share of stock to secure debts of the members
to the Club. This lien shall be annotated on the
certificates of stock and may be enforced by the
Club in the following manner:
(a) Within ten (10) days after the Board has
ordered the sale at auction of a members share
of stock for indebtedness under Section 31(b)
hereof, the Secretary shall notify the owner
thereof, and shall advise the Membership
Committee of such fact.
(b) The Membership Committee shall then
notify all applicants on the Waiting List and all
142
registered stockholders of the availability of a
share of stock for sale at auction at a specified
date, time and place, and shall post a notice to
that effect in the Club bulletin board for at least
ten (10) days prior to the auction sale.
(c) On the date and hour fixed, the
Membership Committee shall proceed with the
auction by viva voce bidding and award the sale
of the share of stock to the highest bidder.
(d) The purchase price shall be paid by the
winning bidder to the Club within twenty-four
(24) hours after the bidding. The winning bidder
or the representative in the case of a juridical
entity shall become a Regular Member upon
payment of the purchase price and issuance of a
new stock certificate in his name or in the name
of the juridical entity he represents. The
proceeds of the sale shall be paid by the Club to
the selling stockholder after deducting his
obligations to the Club.
(e) If no bids be received or if the winning
bidder fails to pay the amount of this bid within
twenty-four (24) hours after the bidding, the
auction procedures may be repeated from time
to time at the discretion of the Membership
Committee until the share of stock be sold.
(f) If the proceeds from the sale of the
share of stock are not sufficient to pay in full the
indebtedness of the member, the member shall
continue to be obligated to the Club for the
unpaid balance. If the member whose share of
stock is sold fails or refuse to surrender the
stock certificate for cancellation, cancellation
shall be effected in the books of the Club based
on a record of the proceedings. Such
cancellation shall render the unsurrendered
stock certificate null and void and notice to this
effect shall be duly published.
It is plain that Calatagan had endeavored to install a
clear and comprehensive procedure to govern the payment of
monthly dues, the declaration of a member as delinquent, and
the constitution of a lien on the shares and its eventual public
sale to answer for the members debts. Under Section 91 of the
Corporation Code, membership in a non-stock corporation
shall be terminated in the manner and for the causes provided
in the articles of incorporation or the by-laws. The By-law
provisions are elaborate in explaining the manner and the
causes for the termination of membership in Calatagan,
through the execution on the lien of the share. The Court is
satisfied that the By-Laws, as written, affords due protection to
the member by assuring that
the member should be notified by the Secretary of the looming
execution sale that would terminate membership in the club. In
addition, the By-Laws guarantees that after the execution sale,
143

the proceeds of the sale would be returned to the former
member after deducting the outstanding obligations. If followed
to the letter, the termination of membership under this
procedure outlined in the By-Laws would accord with
substantial justice.
Yet, did Calatagan actually comply with the by-law
provisions when it sold Clementes share? The appellate courts
finding on this point warrants our approving citation, thus:
In accordance with this provision,
Calatagan sent the third and final demand letter
to Clemente on December 7, 1992. The letter
states that if the amount of delinquency is not
paid, the share will be included among the
delinquent shares to be sold at public
auction. This letter was signed by Atty. Benjamin
Tanedo, Jr., Calatagan Golfs Corporate
Secretary. It was again sent to Clementes
mailing address Phimco Industries Inc., P.O.
Box 240, MCC Makati. As expected, it was
returned because the post office box had been
closed.
Under the By-Laws, the Corporate
Secretary is tasked to give or cause to be given,
all notices required by law or by these By-Laws.
.. and keep a record of the addresses of all
stockholders. As quoted above, Sec. 32 (a) of
the By-Laws further provides that within ten (10)
days after the Board has ordered the sale at
auction of a members share of stock for
indebtedness under Section 31 (b) hereof, the
Secretary shall notify the owner thereof and shall
advise the Membership Committee of such
fact., The records do not disclose what report
the Corporate Secretary transmitted to the
Membership Committee to comply with Section
32(a). Obviously, the reason for this mandatory
requirement is to give the Membership
Committee the opportunity to find out, before the
share is sold, if proper notice has been made to
the shareholder member.
We presume that the Corporate
Secretary, as a lawyer is knowledgeable on the
law and on the standards of good faith and
fairness that the law requires. As custodian of
corporate records, he should also have known
that the first two letters sent to Clemente were
returned because the P.O. Box had been
closed. Thus, we are surprised given his
knowledge of the law and of corporate records
that he would send the third and final letter
Clementes last chance before his share is sold
and his membership lost to the same P.O. Box
that had been closed.
Calatagan argues that it exercised due
diligence before the foreclosure sale and sent
144
 several notices to Clementes specified mailing
address. We do not agree; we cannot label as Calatagan very well knew that Clementes postal box to which
due diligence Calatagans act of sending it sent its previous letters had already been closed, yet it
the December 7, 1992 letter to Clementes
mailing address knowing fully well that the P.O. persisted in sending that final letter to the same postal
Box had been closed. Due diligence or good
faith imposes upon the Corporate Secretary the box. What for? Just for the exercise, it appears, as it had
chief repository of all corporate records the known very well that the letter would never actually reach
obligation to check Clementes other address
which, under the By-Laws, have to be kept on Clemente.
file and are in fact on file.One obvious purpose
of giving the Corporate Secretary the duty to
keep the addresses of members on file is It is noteworthy that Clemente in his membership
specifically for matters of this kind, when the
member cannot be reached through his or her application had provided his residential address along with his
mailing address. Significantly, the Corporate
Secretary does not have to do the actual residence and office telephone numbers. Nothing in Section
verification of other addressees on record; a 32 of Calatagans By-Laws requires that the final notice prior to
mere clerk can do the very simple task of
checking the files as in fact clerks actually the sale be made solely through the members mailing
undertake these tasks. In fact, one telephone
call to Clementes phone numbers on file would address. Clemente cites our aphorism-like pronouncement
have alerted him of his impending loss. in Rizal Commercial Banking Corporation v. Court of
Appeals[15] that [a] simple telephone call and an ounce of good

Ultimately, the petition must fail because Calatagan faith x x x could have prevented this present controversy. That

had failed to duly observe both the spirit and letter of its own memorable observation is quite apt in this case.

by-laws. The by-law provisions was clearly conceived to afford

due notice to the delinquent member of the impending sale, Calatagans bad faith and failure to observe its own By-

and not just to provide an intricate faade that would facilitate Laws had resulted not merely in the loss of Clementes

Calatagans sale of the share. But then, the bad faith on privilege to play golf at its golf course and avail of its

Calatagans part is palpable. As found by the Court of Appeals, amenities, but also in significant pecuniary damage to him. For

145
that loss, the only blame that could be thrown Clementes way
was his failure to notify Calatagan of the closure of the P.O.
Box. That lapse, if we uphold Calatagan would cost Clemente
a lot. But, in the first place, does he deserve answerability for
failing to notify the club of the closure of the postal box?
Indeed, knowing as he did that Calatagan was in possession
of his home address as well as residence and office telephone
numbers, he had every reason to assume that the club would
not be at a loss should it need to contact him. In addition,
according to Clemente, he was not even aware of the closure
of the postal box, the maintenance of which was not his
responsibility but his employer Phimcos.
The utter bad faith exhibited by Calatagan brings into
operation Articles 19, 20 and 21 of the Civil Code,[16] under the
Chapter on Human Relations. These provisions, which the
Court of Appeals did apply, enunciate a general obligation
under law for every person to act fairly and in good faith
towards one another. A non-stock corporation like Calatagan
is not exempt from that obligation in its treatment of its
members. The obligation of a corporation to treat every person
honestly and in good faith extends even to its shareholders or
members, even if the latter find themselves contractually
bound to perform certain obligations to the corporation. A
certificate of stock cannot be a charter of dehumanization.
We turn to the matter of damages. The award of actual
damages is of course warranted since Clemente has
sustained pecuniary injury by reason of Calatagans wrongful
violation of its own By-Laws. It would not be feasible to deliver
Clementes original Certificate of Stock because it had already
been cancelled and a new one issued in its place in the name
of the purchases at the auction who was not impleaded in this
case. However, the Court of Appeals instead directed that
Calatagan to issue to Clemente a new certificate of stock. That
sufficiently redresses the actual damages sustained by
Clemente. After all, the certificate of stock is simply the
evidence of the share.
The Court of Appeals also awarded
Clemente P200,000.00 as moral damages, P100,000.00 as
146
exemplary damages, and P100,000.00 as attorneys fees. We WHEREFORE, the petition is DENIED. The Decision of
agree that the award of such damages is warranted. the Court of Appeals is AFFIRMED. Costs against petitioner.

The Court of Appeals cited Calatagan for violation of SO ORDERED.

Article 32 of the Civil Code, which allows recovery of damages
from any private individual who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs the right
against deprivation of property without due process of laws.
The plain letter of the provision squarely entitles Clemente to
JOYCE V. ARDIENTE, Petitioner, v. SPOUSES JAVIER AND
MA. THERESA PASTORFIDE, CAGAYAN DE ORO WATER
DISTRICT AND GASPAR GONZALEZ,* JR., Respondents.
DECISION
PERALTA, J.:

damages from Calatagan. Even without Article 32 itself,

Calatagan will still be bound to pay moral and exemplary
Before the Court is a petition for review on certiorari under
damages to Clemente. The latter was able to duly prove that Rule 45 of the Rules of Court seeking to reverse and set aside
the Decision1 and Resolution2 of the Court of Appeals (CA),
he had sustained mental anguish, serious anxiety and
dated August 28, 2003 and December 17, 2003, respectively,
wounded feelings by reason of Calatagans acts, thereby in CA-G.R. CV No. 73000. The CA Decision affirmed with
modification the August 15, 2001 Decision3 of the Regional
entitling him to moral damages under Article 2217 of the Civil Trial Court (RTC) of Cagayan de Oro City, Branch 24, while
the CA Resolution denied petitioner's Motion for
Code. Moreover, it is evident that Calatagans bad faith as
Reconsideration.
exhibited in the
The facts, as summarized by the CA, are as
follows:cralavvonlinelawlibrary
course of its corporate actions warrants correction for the
[Herein petitioner] Joyce V. Ardiente and her husband Dr.
public good, thereby justifying exemplary damages under Roberto S. Ardiente are owners of a housing unit at Emily
Homes, Balulang, Cagayan de Oro City with a lot area of one
Article 2229 of the Civil Code. hundred fifty-three (153) square meters and covered by
Transfer Certificate of Title No. 69905.

147

On June 2, 1994, Joyce Ardiente entered into a Memorandum
of Agreement (Exh. �B�, pp. 470-473, Records) selling,
transferring and conveying in favor of [respondent] Ma.
Theresa Pastorfide all their rights and interests in the housing
unit at Emily Homes in consideration of P70,000.00. The
Memorandum of Agreement carries a Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and her
stipulation:cralavvonlinelawlibrary
�4. That the water and power bill of the subject property shall
be for the account of the Second Party (Ma. Theresa
Pastorfide) effective June 1, 1994.� (Records, p. 47)
vis-a-vis Ma. Theresa Pastorfide's assumption of the payment
of the mortgage loan secured by Joyce Ardiente from the
National Home Mortgage (Records, Exh. �A�, pp. 468-469)
For four (4) years, Ma. Theresa's use of the water connection
in the name of Joyce Ardiente was never questioned nor
perturbed (T.S.N., October 31, 2000, pp. 7-8) until on March
12, 1999, without notice, the water connection of Ma. Theresa
was cut off. Proceeding to the office of the Cagayan de Oro
Water District (COWD) to complain, a certain Mrs. Madjos told
Ma. Theresa that she was delinquent for three (3) months
corresponding to the months of December 1998, January
1999, and February 1999. Ma. Theresa argued that the due
date of her payment was March 18, 1999 yet (T.S.N., October
31, 2000, pp. 11-12). Mrs. Madjos later told her that it was at
the instance of Joyce Ardiente that the water line was cut off
(T.S.N., February 5, 2001, p. 31).
On March 15, 1999, Ma. Theresa paid the delinquent bills
(T.S.N., October 31, 2000, p. 12). On the same date, through
her lawyer, Ma. Theresa wrote a letter to the COWD to explain
who authorized the cutting of the water line (Records, p. 160).
On March 18, 1999, COWD, through the general manager,
[respondent] Gaspar Gonzalez, Jr., answered the letter dated
March 15, 1999 and reiterated that it was at the instance of
Joyce Ardiente that the water line was cut off (Records, p.
161).
husband] filed [a] complaint for damages [against petitioner,
COWD and its manager Gaspar Gonzalez] (Records, pp. 2-6).
In the meantime, Ma. Theresa Pastorfide's water line was only
restored and reconnected when the [trial] court issued a writ of
preliminary mandatory injunction on December 14, 1999
(Records, p. 237).4
After trial, the RTC rendered judgment holding as
follows:cralavvonlinelawlibrary
x x x x
In the exercise of their rights and performance of their duties,
defendants did not act with justice, gave plaintiffs their due and
observe honesty and good faith. Before disconnecting the
water supply, defendants COWD and Engr. Gaspar Gonzales
did not even send a disconnection notice to plaintiffs as
testified to by Engr. Bienvenido Batar, in-charge of the
Commercial Department of defendant COWD. There was one
though, but only three (3) days after the actual disconnection
on March 12, 1999. The due date for payment was yet on
March 15. Clearly, they did not act with justice. Neither did
they observe honesty.
They should not have been swayed by the prodding of Joyce
V. Ardiente. They should have investigated first as to the
present ownership of the house. For doing the act because
Ardiente told them, they were negligent. Defendant Joyce
Ardiente should have requested before the cutting off of the
148
water supply, plaintiffs to pay. While she attempted to tell
plaintiffs but she did not have the patience of seeing them.
She knew that it was plaintiffs who had been using the water
four (4) years ago and not hers. She should have been very
careful. x x x5
The dispositive portion of the trial court's Decision reads,
thus:cralavvonlinelawlibrary
WHEREFORE, premises considered, judgment is hereby
rendered ordering defendants [Ardiente, COWD and
Gonzalez] to pay jointly and severally plaintiffs, the following
sums:cralavvonlinelawlibrary
(a) P200,000.00 for moral damages;chanroblesvirtualawlibrary
(b) 200,000.00 for exemplary damages; and
(c) 50,000.00 for attorney's fee.
The cross-claim of Cagayan de Oro Water District and Engr.
Gaspar Gonzales is hereby dismissed. The Court is not
swayed that the cutting off of the water supply of plaintiffs was
because they were influenced by defendant Joyce Ardiente.
They were negligent too for which they should be liable.
SO ORDERED.6
Petitioner, COWD and Gonzalez filed an appeal with the CA.
On August 28, 2003, the CA promulgated its assailed Decision
disposing as follows:cralavvonlinelawlibrary
IN VIEW OF ALL THE FOREGOING, the appealed decision
is AFFIRMED, with the modification that the awarded
damages is reduced to P100,000.00 each for moral and
exemplary damages, while attorney's fees is lowered to
P25,000.00. Costs against appellants.
SO ORDERED.7
The CA ruled, with respect to petitioner, that she has a �legal
duty to honor the possession and use of water line by Ma.
Theresa Pastorfide pursuant to their Memorandum of
Agreement� and �that when [petitioner] applied for its
disconnection, she acted in bad faith causing prejudice and
[injury to] Ma. Theresa Pastorfide.�8
As to COWD and Gonzalez, the CA held that they �failed to
give a notice of disconnection and derelicted in reconnecting
the water line despite payment of the unpaid bills by the
[respondent spouses Pastorfide].�9
Petitioner, COWD and Gonzalez filed their respective Motions
for Reconsideration, but these were denied by the CA in its
Resolution dated December 17, 2003.
COWD and Gonzalez filed a petition for review
on certiorari with this Court, which was docketed as G.R. No.
161802. However, based on technical grounds and on the
finding that the CA did not commit any reversible error in its
assailed Decision, the petition was denied via a
Resolution10 issued by this Court on March 24, 2004. COWD
and Gonzalez filed a motion for reconsideration, but the same
was denied with finality through this Court's Resolution11 dated
June 28, 2004.
Petitioner, on the other hand, timely filed the instant petition
with the following Assignment of Errors:cralavvonlinelawlibrary
7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT
HAS REDUCED THE LIABILITY INTO HALF) HAS STILL
COMMITTED GRAVE AND SERIOUS ERROR WHEN IT
UPHELD THE JOINT AND SOLIDARY LIABILITY OF
PETITIONER JOYCE V. ARDIENTE WITH CAGAYAN DE
ORO WATER DISTRICT (COWD) AND ENGR. GASPAR D.
149
GONZALES FOR THE LATTER'S FAILURE TO SERVE
NOTICE UPON RESPONDENTS SPOUSES PASTORFIDE
PRIOR TO THE ACTUAL DISCONNECTION DESPITE
EVIDENCE ADDUCED DURING TRIAL THAT EVEN
WITHOUT PETITIONER'S REQUEST, COWD WAS
ALREADY SET TO EFFECT DISCONNECTION OF
RESPONDENTS' WATER SUPPLY DUE TO NON-PAYMENT
OF ACCOUNT FOR THREE (3) MONTHS.
7.2 THE HONORABLE COURT OF APPEALS COMMITTED
GRAVE AND SERIOUS ERROR WHEN IT RULED TOTALLY
AGAINST PETITIONER AND FAILED TO FIND THAT
RESPONDENTS ARE GUILTY OF CONTRIBUTORY
NEGLIGENCE WHEN THEY FAILED TO PAY THEIR WATER
BILLS FOR THREE MONTHS AND TO MOVE FOR THE
TRANSFER OF THE COWD ACCOUNT IN THEIR NAME,
WHICH WAS A VIOLATION OF THEIR MEMORANDUM OF
AGREEMENT WITH PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY FAILED TO
EXERCISE DILIGENCE OF A GOOD FATHER OF THE
FAMILY TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF
THE NEW CIVIL CODE.
7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED WHEN IT DISREGARDED THE FACT THAT
RESPONDENT SPOUSES PASTORFIDE ARE LIKEWISE
BOUND TO OBSERVE ARTICLE 19 OF THE NEW CIVIL
CODE, i.e., IN THE EXERCISE OF THEIR RIGHTS AND IN
THE PERFORMANCE OF THEIR DUTIES TO ACT WITH
JUSTICE, GIVE EVERYONE HIS DUE AND OBSERVE
HONESTY AND GOOD FAITH.
7.4 THE HONORABLE COURT OF APPEALS GRAVELY
ERRED WHEN IT GRANTED AN AWARD OF MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS
AGAINST PETITIONER ARDIENTE.12
At the outset, the Court noticed that COWD and Gonzalez,
who were petitioner's co-defendants before the RTC and her
co-appellants in the CA, were impleaded as respondents in the
instant petition. This cannot be done. Being her co-parties
before the RTC and the CA, petitioner cannot, in the instant
petition for review on certiorari, make COWD and Gonzalez,
adversary parties. It is a grave mistake on the part of
petitioner's counsel to treat COWD and Gonzalez as
respondents. There is no basis to do so, considering that, in
the first place, there is no showing that petitioner filed a cross-
claim against COWD and Gonzalez. Under Section 2, Rule 9
of the Rules of Court, a cross-claim which is not set up shall
be barred. Thus, for failing to set up a cross-claim against
COWD and Gonzalez before the RTC, petitioner is already
barred from doing so in the present petition.
More importantly, as shown above, COWD and Gonzalez's
petition for review on certiorari filed with this Court was already
denied with finality on June 28, 2004, making the presently
assailed CA Decision final and executory insofar as COWD
and Gonzalez are concerned. Thus, COWD and Gonzalez are
already precluded from participating in the present petition.
They cannot resurrect their lost cause by filing pleadings this
time as respondents but, nonetheless, reiterating the same
prayer in their previous pleadings filed with the RTC and the
CA.
As to the merits of the instant petition, the Court likewise
noticed that the main issues raised by petitioner are factual
and it is settled that the resolution of factual issues is the
function of lower courts, whose findings on these matters are
received with respect and considered binding by the Supreme
Court subject only to certain exceptions, none of which is
present in this instant petition.13 This is especially true when
the findings of the RTC have been affirmed by the CA as in
150
this case.14 respondent spouses before or immediately after submitting her
request for disconnection, telling them that her request was
In any case, a perusal of the records at hand would readily simply to force them to comply with their obligation under their
show that the instant petition lacks merit. Memorandum of Agreement. But she did not. What made
matters worse is the fact that COWD undertook the
Petitioner insists that she should not be held liable for the disconnection also without prior notice and even failed to
disconnection of respondent spouses' water supply, because reconnect the Spouses Pastorfide�s water supply despite
she had no participation in the actual disconnection. However, payment of their arrears. There was clearly an abuse of right
she admitted in the present petition that it was she who on the part of petitioner, COWD and Gonzalez. They are guilty
requested COWD to disconnect the Spouses Pastorfide's of bad faith.
water supply. This was confirmed by COWD and Gonzalez in
their cross-claim against petitioner. While it was COWD which The principle of abuse of rights as enshrined in Article 19 of
actually discontinued respondent spouses' water supply, it the Civil Code provides that every person must, in the exercise
cannot be denied that it was through the instance of petitioner of his rights and in the performance of his duties, act with
that the Spouses Pastorfide's water supply was disconnected justice, give everyone his due, and observe honesty and good
in the first place. faith.

It is true that it is within petitioner's right to ask and even In this regard, the Court's ruling in Yuchengco v. The Manila
require the Spouses Pastorfide to cause the transfer of the Chronicle Publishing Corporation17 is instructive, to
former's account with COWD to the latter's name pursuant to wit:cralavvonlinelawlibrary
their Memorandum of Agreement. However, the remedy to
enforce such right is not to cause the disconnection of the x x x x
respondent spouses' water supply. The exercise of a right
must be in accordance with the purpose for which it was This provision of law sets standards which must be observed
established and must not be excessive or unduly harsh; there in the exercise of one�s rights as well as in the performance
must be no intention to harm another.15 Otherwise, liability for of its duties, to wit: to act with justice; give everyone his due;
damages to the injured party will attach.16 In the present case, and observe honesty and good faith.
intention to harm was evident on the part of petitioner when
she requested for the disconnection of respondent spouses� In Globe Mackay Cable and Radio Corporation v. Court of
water supply without warning or informing the latter of such Appeals, it was elucidated that while Article 19 �lays down a
request. Petitioner claims that her request for disconnection rule of conduct for the government of human relations and for
was based on the advise of COWD personnel and that her the maintenance of social order, it does not provide a remedy
intention was just to compel the Spouses Pastorfide to comply for its violation. Generally, an action for damages under either
with their agreement that petitioner's account with COWD be Article 20 or Article 21 would be proper.� The Court
transferred in respondent spouses' name. If such was said:cralavvonlinelawlibrary
petitioner's only intention, then she should have advised

151
One of the more notable innovations of the New Civil Code is
the codification of "some basic principles that are to be
observed for the rightful relationship between human beings
and for the stability of the social order." [REPORT ON THE
CODE COMMISSION ON THE PROPOSED CIVIL CODE OF
THE PHILIPPINES, p. 39]. The framers of the Code, seeking
to remedy the defect of the old Code which merely stated the
effects of the law, but failed to draw out its spirit, incorporated
certain fundamental precepts which were "designed to indicate
certain norms that spring from the fountain of good
conscience" and which were also meant to serve as "guides
for human conduct [that] should run as golden threads through
society, to the end that law may approach its supreme ideal,
which is the sway and dominance of justice." (Id.) Foremost
among these principles is that pronounced in Article 19 x x x.
x x x x
This article, known to contain what is commonly referred to as
the principle of abuse of rights, sets certain standards which
must be observed not only in the exercise of one's rights, but
also in the performance of one's duties. These standards are
the following: to act with justice; to give everyone his due; and
to observe honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights; that in their
exercise, the norms of human conduct set forth in Article 19
must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. But while Article 19
lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not
provide a remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be proper.
Corollarilly, Article 20 provides that �every person who,
contrary to law, willfully or negligently causes damage to
another shall indemnify the latter for the same.� It speaks of
the general sanctions of all other provisions of law which do
not especially provide for its own sanction. When a right is
exercised in a manner which does not conform to the
standards set forth in the said provision and results in damage
to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible. Thus, if the provision does
not provide a remedy for its violation, an action for damages
under either Article 20 or Article 21 of the Civil Code would be
proper.
The question of whether or not the principle of abuse of rights
has been violated resulting in damages under Article 20 or
other applicable provision of law, depends on the
circumstances of each case. x x x18
To recapitulate, petitioner's acts which violated the
abovementioned provisions of law is her unjustifiable act of
having the respondent spouses' water supply disconnected,
coupled with her failure to warn or at least notify respondent
spouses of such intention. On the part of COWD and
Gonzalez, it is their failure to give prior notice of the impending
disconnection and their subsequent neglect to reconnect
respondent spouses' water supply despite the latter's
settlement of their delinquent account.
On the basis of the foregoing, the Court finds no cogent
reason to depart from the ruling of both the RTC and the CA
that petitioner, COWD and Gonzalez are solidarily liable.
The Spouses Pastorfide are entitled to moral damages based
on the provisions of Article 2219,19 in connection with Articles
152
2020 and 2121 of the Civil Code. HON. COURT OF APPEALS, DELTA MOTORS
CORPORATION AND PILIPINAS BANK, respondents.
As for exemplary damages, Article 2229 provides that
exemplary damages may be imposed by way of example or Salva, Villanueva & Associates for Delta Motors Corporation.
correction for the public good. Nonetheless, exemplary
damages are imposed not to enrich one party or impoverish Reyes, Salazar & Associates for Pilipinas Bank.
another, but to serve as a deterrent against or as a negative
incentive to curb socially deleterious actions.22 In the instant
case, the Court agrees with the CA in sustaining the award of
exemplary damages, although it reduced the amount granted, FELICIANO, J.:
considering that respondent spouses were deprived of their
water supply for more than nine (9) months, and such
On 9 February 1981, petitioner Raul Sesbreño made a money
deprivation would have continued were it not for the relief
market placement in the amount of P300,000.00 with the
granted by the RTC.
Philippine Underwriters Finance Corporation ("Philfinance"),
Cebu Branch; the placement, with a term of thirty-two (32)
With respect to the award of attorney's fees, Article 2208 of the
days, would mature on 13 March 1981, Philfinance, also on 9
Civil Code provides, among others, that such fees may be
February 1981, issued the following documents to petitioner:
recovered when exemplary damages are awarded, when the
defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his (a) the Certificate of Confirmation of Sale,
interest, and where the defendant acted in gross and evident "without recourse," No. 20496 of one (1) Delta
bad faith in refusing to satisfy the plaintiffs� plainly valid, just Motors Corporation Promissory Note ("DMC
and demandable claim. PN") No. 2731 for a term of 32 days at
17.0% per annum;
WHEREFORE, instant petition for review
on certiorari is DENIED. The Decision and Resolution of the (b) the Certificate of securities Delivery Receipt
Court of Appeals, dated August 28, 2003 and December 17, No. 16587 indicating the sale of DMC PN No.
2003, respectively, in CA-G.R. CV No. 73000 are AFFIRMED. 2731 to petitioner, with the notation that the
said security was in custodianship of Pilipinas
SO ORDERED. Bank, as per Denominated Custodian Receipt
("DCR") No. 10805 dated 9 February 1981; and
G.R. No. 89252 May 24, 1993
(c) post-dated checks payable on 13 March
RAUL SESBREÑO, petitioner, 1981 (i.e., the maturity date of petitioner's
vs. investment), with petitioner as payee,
Philfinance as drawer, and Insular Bank of Asia

153
 and America as drawee, in the total amount of
P304,533.33.

On 13 March 1981, petitioner sought to encash the postdated

checks issued by Philfinance. However, the checks were
dishonored for having been drawn against insufficient funds.

On 26 March 1981, Philfinance delivered to petitioner the DCR

No. 10805 issued by private respondent Pilipinas Bank
("Pilipinas"). It reads as follows:

PILIPINAS BANK
Makati Stock Exchange Bldg.,
Ayala Avenue, Makati,
Metro Manila

TO Raul Sesbreño F
e
b
r
u
a
r
y

9
,

1
9
8
1

—
—
—

154
 SERIAL MAT. FACE ISSUED — REGISTERED
AMOUNT —
NUMBER DATE VALUE BY HOLDER PAYEE —
—
2731 4-6-81 2,300,833.34 DMC PHIL. 307,933.33
UNDERWRITERS M
FINANCE CORP. A
T
U
We further certify that these securities may be
inspected by you or your duly R authorized
representative at any time duringI regular
banking hours. T
Y
Upon your written instructions we shall
undertake physical delivery ofD the above
securities fully assigned to you A should this
Denominated Custodianship Receipt T remain
E days after
outstanding in your favor thirty (30)
its maturity.
N
O
.

1
0
8
0
5

DENOMINATED CUSTODIAN RECEIPT

This confirms that as a duly Custodian Bank,

and upon instruction of PHILIPPINE
UNDERWRITES FINANCE CORPORATION,
we have in our custody the following securities
to you [sic] the extent herein indicated.

155
 B
y

E
l
i
z
a
b
e
On 2 April 1981, petitioner approached Ms. Elizabeth de Villa
of private respondent Pilipinas, tMakati Branch, and handed
her a demand letter informing thehbank that his placement with
Philfinance in the amount reflected in the DCR No. 10805 had
remained unpaid and outstanding, D and that he in effect was
asking for the physical delivery e of the underlying promissory
note. Petitioner then examined the original of the DMC PN No.
2731 and found: that the securityVhad been issued on 10 April
1980; that it would mature on 6 iApril 1981; that it had a face
value of P2,300,833.33, with thel Philfinance as "payee" and
private respondent Delta Motors l Corporation ("Delta") as
a
"maker;" and that on face of the promissory note was stamped
"NON NEGOTIABLE." Pilipinas did not deliver the Note, nor
I
any certificate of participation in respect thereof, to petitioner.
l
Petitioner later made similar demand l letters, dated 3 July 1981
and 3 August 1981, again askinge private respondent Pilipinas
2

for physical delivery of the originalg of DMC PN No. 2731.

Pilipinas allegedly referred all of ipetitioner's demand letters to
Philfinance for written instructions,b as has been supposedly
agreed upon in "Securities l Custodianship Agreement"
between Pilipinas and Philfinance. e Philfinance did not provide
the appropriate instructions; Pilipinas never released DMC PN
No. 2731, nor any other instrument S in respect thereof, to
petitioner. i
g
n

156
Petitioner also made a written demand on 14 July 19813 upon DMC PN No. 2731 when its
private respondent Delta for the partial satisfaction of DMC PN entire face value was already
No. 2731, explaining that Philfinance, as payee thereof, had obligated or earmarked for set-
assigned to him said Note to the extent of P307,933.33. Delta, off or compensation is difficult to
however, denied any liability to petitioner on the promissory comprehend and may have been
note, and explained in turn that it had previously agreed with motivated with bad faith.
Philfinance to offset its DMC PN No. 2731 (along with DMC Philfinance, therefore, is solely
PN No. 2730) against Philfinance PN No. 143-A issued in and legally obligated to return
favor of Delta. the investment of plaintiff,
together with its earnings, and to
In the meantime, Philfinance, on 18 June 1981, was placed answer all the damages plaintiff
under the joint management of the Securities and exchange has suffered incident thereto.
commission ("SEC") and the Central Bank. Pilipinas delivered Unfortunately for plaintiff,
to the SEC DMC PN No. 2731, which to date apparently Philfinance was not impleaded
remains in the custody of the SEC.4 as one of the defendants in this
case at bar; hence, this Court is
As petitioner had failed to collect his investment and interest without jurisdiction to pronounce
thereon, he filed on 28 September 1982 an action for damages judgement against it. (p. 11,
with the Regional Trial Court ("RTC") of Cebu City, Branch 21, Decision)
against private respondents Delta and Pilipinas.5The trial
court, in a decision dated 5 August 1987, dismissed the WHEREFORE, finding no reversible error in the
complaint and counterclaims for lack of merit and for lack of decision appealed from, the same is hereby
cause of action, with costs against petitioner. affirmed in toto. Cost against plaintiff-appellant.

Petitioner appealed to respondent Court of Appeals in C.A.-
G.R. CV No. 15195. In a Decision dated 21 March 1989, the
Court of Appeals denied the appeal and held:6
Be that as it may, from the evidence on record,
if there is anyone that appears liable for the
travails of plaintiff-appellant, it is Philfinance. As
correctly observed by the trial court:
This act of Philfinance in
accepting the investment of
plaintiff and charging it against
Petitioner moved for reconsideration of the above Decision,
without success.
Hence, this Petition for Review on Certiorari.
After consideration of the allegations contained and issues
raised in the pleadings, the Court resolved to give due course
to the petition and required the parties to file their respective
memoranda.7
Petitioner reiterates the assignment of errors he directed at the
trial court decision, and contends that respondent court of

157
Appeals gravely erred: (i) in concluding that he cannot recover
from private respondent Delta his assigned portion of DMC PN
No. 2731; (ii) in failing to hold private respondent Pilipinas
solidarily liable on the DMC PN No. 2731 in view of the
provisions stipulated in DCR No. 10805 issued in favor r of
petitioner, and (iii) in refusing to pierce the veil of corporate
entity between Philfinance, and private respondents Delta and
Pilipinas, considering that the three (3) entities belong to the
"Silverio Group of Companies" under the leadership of Mr.
Ricardo Silverio, Sr.8
There are at least two (2) sets of relationships which we need
to address: firstly, the relationship of petitioner vis-a-vis Delta;
secondly, the relationship of petitioner in respect of Pilipinas.
Actually, of course, there is a third relationship that is of critical
importance: the relationship of petitioner and Philfinance.
However, since Philfinance has not been impleaded in this
case, neither the trial court nor the Court of Appeals acquired
jurisdiction over the person of Philfinance. It is, consequently,
not necessary for present purposes to deal with this third
relationship, except to the extent it necessarily impinges upon
or intersects the first and second relationships.
I.
We consider first the relationship between petitioner and Delta.
The Court of appeals in effect held that petitioner acquired no
rights vis-a-vis Delta in respect of the Delta promissory note
(DMC PN No. 2731) which Philfinance sold "without recourse"
to petitioner, to the extent of P304,533.33. The Court of
Appeals said on this point:
Nor could plaintiff-appellant have acquired any
right over DMC PN No. 2731 as the same is
"non-negotiable" as stamped on its face (Exhibit
"6"), negotiation being defined as the transfer of
an instrument from one person to another so as
to constitute the transferee the holder of the
instrument (Sec. 30, Negotiable Instruments
Law). A person not a holder cannot sue on the
instrument in his own name and cannot
demand or receive payment (Section 51, id.)9
Petitioner admits that DMC PN No. 2731 was non-negotiable
but contends that the Note had been validly transferred, in part
to him by assignment and that as a result of such transfer,
Delta as debtor-maker of the Note, was obligated to pay
petitioner the portion of that Note assigned to him by the
payee Philfinance.
Delta, however, disputes petitioner's contention and argues:
(1) that DMC PN No. 2731 was not intended to
be negotiated or otherwise transferred by
Philfinance as manifested by the word "non-
negotiable" stamp across the face of the
Note10 and because maker Delta and payee
Philfinance intended that this Note would be
offset against the outstanding obligation of
Philfinance represented by Philfinance PN No.
143-A issued to Delta as payee;
(2) that the assignment of DMC PN No. 2731 by
Philfinance was without Delta's consent, if not
against its instructions; and
(3) assuming (arguendo only) that the partial
assignment in favor of petitioner was valid,
petitioner took the Note subject to the defenses
available to Delta, in particular, the offsetting of
158
 DMC PN No. 2731 against Philfinance PN No. Delta adduced the "Letter of Agreement" which it had entered
143-A.11 into with Philfinance and which should be quoted in full:

We consider Delta's arguments seriatim.

Firstly, it is important to bear in mind that the negotiation of a

negotiable instrument must be distinguished from
the assignment or transfer of an instrument whether that be
negotiable or non-negotiable. Only an instrument qualifying as
a negotiable instrument under the relevant statute may
be negotiated either by indorsement thereof coupled with
delivery, or by delivery alone where the negotiable instrument
is in bearer form. A negotiable instrument may, however,
instead of being negotiated, also be assigned or transferred.
The legal consequences of negotiation as distinguished from
assignment of a negotiable instrument are, of course, different.
A non-negotiable instrument may, obviously, not be
negotiated; but it may be assigned or transferred, absent an
express prohibition against assignment or transfer written in Philippine Underwriters Finance Corp.
the face of the instrument: Benavidez St., Makati,
Metro Manila.
The words "not negotiable," stamped on the
face of the bill of lading, did not destroy its Att
assignability, but the sole effect was to exempt enti
the bill from the statutory provisions relative on:
thereto, and a bill, though not negotiable, may Mr.
be transferred by assignment; the assignee Alfr
taking subject to the equities between the ed
original parties.12 (Emphasis added) o
O.
DMC PN No. 2731, while marked "non-negotiable," was not at Ba
the same time stamped "non-transferable" or "non- nar
assignable." It contained no stipulation which prohibited ia
Philfinance from assigning or transferring, in whole or in part, SV
that Note. P-
Tre

159
 asu
rer

GENTLEMEN:

This refers to our outstanding placement of

P4,601,666.67 as evidenced by your
Promissory Note No. 143-A, dated April 10,
1980, to mature on April 6, 1981.

As agreed upon, we enclose our non-negotiable

Promissory Note No. 2730 and 2731 for
P2,000,000.00 each, dated April 10, 1980, to be
offsetted [sic] against your PN No. 143-A upon
co-terminal maturity.

Please deliver the proceeds of our PNs to our

representative, Mr. Eric Castillo.

V
e
r
y

T
r
u
l
y

Y
o
u
r
s
,

160

We find nothing in his "Letter of Agreement" which can be
reasonably construed as a prohibition upon Philfinance
assigning or transferring all or part of DMC PN No. 2731,
before the maturity thereof. It is scarcely necessary to add
that, even had this "Letter of Agreement" set forth an explicit
prohibition of transfer upon Philfinance, such a prohibition
cannot be invoked against an assignee or transferee of the
Note who parted with valuable consideration in good faith and
without notice of such prohibition. It is not disputed that
petitioner was such an assignee or transferee. Our conclusion
on this point is reinforced by the fact that what Philfinance and
Delta were doing by their exchange of their promissory notes
was this: Delta invested, by making a money market
placement with Philfinance, approximately P4,600,000.00 on
10 April 1980; but promptly, on the same day, borrowed back
the bulk of that placement, i.e., P4,000,000.00, by issuing its
two (2) promissory notes: DMC PN No. 2730 and DMC PN No.
2731, both also dated 10 April 1980. Thus, Philfinance was left
with not P4,600,000.00 but only P600,000.00 in cash and the
two (2) Delta promissory notes.
Apropos Delta's complaint that cthe partial assignment by
Philfinance of DMC PN No. 2731 e had been effected without
the consent of Delta, we note that such consent was not
necessary for the validity and enforceability
P of the assignment
in favor of petitioner.14 Delta's argument
r that Philfinance's sale
or assignment of part of its rights e to DMC PN No. 2731
constituted conventional subrogation,s which required its
(Delta's) consent, is quite mistaken.i Conventional subrogation,
which in the first place is never d lightly inferred,15 must be
clearly established by the unequivocal
e terms of the substituting
obligation or by the evident incompatibility
n of the new and old
obligations on every point.16 Nothingt of the sort is present in
1
the instant case.
3
It is in fact difficult to be impressed with Delta's complaint,
since it released its DMC PN No. 2731 to Philfinance, an entity
engaged in the business of buying and selling debt
instruments and other securities, and more generally, in
money market transactions. In Perez v. Court of Appeals,17 the
Court, speaking through Mme. Justice Herrera, made the
following important statement:
There is another aspect to this case. What is
involved here is a money market transaction.
As defined by Lawrence Smith "the money
market is a market dealing in standardized
short-term credit instruments (involving large
amounts) where lenders and borrowers do not
deal directly with each other but through a
middle manor a dealer in the open market." It
involves "commercial papers" which are
instruments "evidencing indebtness of any
person or entity. . ., which are issued,
endorsed, sold or transferred or in any manner
conveyed to another person or entity, with or
without recourse". The fundamental function of
161
 the money market device in its operation is to
match and bring together in a most impersonal
manner both the "fund users" and the "fund
suppliers." The money market is an "impersonal
market", free from personal considerations.
"The market mechanism is intended to provide
quick mobility of money and securities."
The impersonal character of the money market
device overlooks the individuals or entities
concerned. The issuer of a commercial paper in
the money market necessarily knows in
advance that it would be expenditiously
transacted and transferred to any
investor/lender without need of notice to said
issuer. In practice, no notification is given to the
borrower or issuer of commercial paper of the
sale or transfer to the investor.
xxx xxx xxx
There is need to individuate a money market
transaction, a relatively novel institution in the
Philippine commercial scene. It has been
intended to facilitate the flow and acquisition of
capital on an impersonal basis. And as
specifically required by Presidential Decree No.
678, the investing public must be given
adequate and effective protection in availing of
the credit of a borrower in the commercial paper
market.18(Citations omitted; emphasis supplied)
We turn to Delta's arguments concerning alleged
compensation or offsetting between DMC PN No. 2731 and
Philfinance PN No. 143-A. It is important to note that at the
time Philfinance sold part of its rights under DMC PN No. 2731
to petitioner on 9 February 1981, no compensation had as yet
taken place and indeed none could have taken place. The
essential requirements of compensation are listed in the Civil
Code as follows:
Art. 1279. In order that compensation may be
proper, it is necessary:
(1) That each one of the obligors be bound
principally, and that he be at the same time a
principal creditor of the other;
(2) That both debts consists in a sum of money,
or if the things due are consumable, they be of
the same kind, and also of the same quality if
the latter has been stated;
(3) That the two debts are due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any
retention or controversy, commenced by third
persons and communicated in due time to the
debtor. (Emphasis supplied)
On 9 February 1981, neither DMC PN No. 2731 nor
Philfinance PN No. 143-A was due. This was explicitly
recognized by Delta in its 10 April 1980 "Letter of Agreement"
with Philfinance, where Delta acknowledged that the relevant
promissory notes were "to be offsetted (sic) against
[Philfinance] PN No. 143-A upon co-terminal maturity."
As noted, the assignment to petitioner was made on 9
February 1981 or from forty-nine (49) days before the "co-
terminal maturity" date, that is to say, before any
162
compensation had taken place. Further, the assignment to
petitioner would have prevented compensation had taken
place between Philfinance and Delta, to the extent of
P304,533.33, because upon execution of the assignment in
favor of petitioner, Philfinance and Delta would have ceased to
be creditors and debtors of each other in their own right to the
extent of the amount assigned by Philfinance to petitioner.
Thus, we conclude that the assignment effected by Philfinance
in favor of petitioner was a valid one and that petitioner
accordingly became owner of DMC PN No. 2731 to the extent
of the portion thereof assigned to him.
The record shows, however, that petitioner notified Delta of the
fact of the assignment to him only on 14 July 1981, 19 that is,
after the maturity not only of the money market placement
made by petitioner but also of both DMC PN No. 2731 and
Philfinance PN No. 143-A. In other words, petitioner notified
Delta of his rights as assignee after compensation had taken
place by operation of law because the offsetting instruments
had both reached maturity. It is a firmly settled doctrine that
the rights of an assignee are not any greater that the rights of
the assignor, since the assignee is merely substituted in the
place of the assignor 20 and that the assignee acquires his
rights subject to the equities — i.e., the defenses — which the
debtor could have set up against the original assignor before
notice of the assignment was given to the debtor. Article 1285
of the Civil Code provides that:
Art. 1285. The debtor who has consented to the
assignment of rights made by a creditor in favor
of a third person, cannot set up against the
assignee the compensation which would pertain
to him against the assignor, unless the assignor
was notified by the debtor at the time he gave
his consent, that he reserved his right to the
compensation.
If the creditor communicated the cession to him
but the debtor did not consent thereto, the
latter may set up the compensation of
debts previous to the cession, but not of
subsequent ones.
If the assignment is made without the
knowledge of the debtor, he may set up the
compensation of all credits prior to the same
and also later ones until he had knowledge of
the assignment. (Emphasis supplied)
Article 1626 of the same code states that: "the debtor who,
before having knowledge of the assignment, pays his creditor
shall be released from the obligation." In Sison v. Yap-
Tico,21 the Court explained that:
[n]o man is bound to remain a debtor; he may
pay to him with whom he contacted to pay; and
if he pay before notice that his debt has been
assigned, the law holds him exonerated, for the
reason that it is the duty of the person who has
acquired a title by transfer to demand payment
of the debt, to give his debt or notice.22
At the time that Delta was first put to notice of the assignment
in petitioner's favor on 14 July 1981, DMC PN No. 2731 had
already been discharged by compensation. Since the assignor
Philfinance could not have then compelled payment anew by
Delta of DMC PN No. 2731, petitioner, as assignee of
Philfinance, is similarly disabled from collecting from Delta the
portion of the Note assigned to him.
It bears some emphasis that petitioner could have notified
Delta of the assignment or sale was effected on 9 February
1981. He could have notified Delta as soon as his money
163
market placement matured on 13 March 1981 without payment
thereof being made by Philfinance; at that time, compensation
had yet to set in and discharge DMC PN No. 2731. Again
petitioner could have notified Delta on 26 March 1981 when
petitioner received from Philfinance the Denominated
Custodianship Receipt ("DCR") No. 10805 issued by private
respondent Pilipinas in favor of petitioner. Petitioner could, in
fine, have notified Delta at any time before the maturity date of
DMC PN No. 2731. Because petitioner failed to do so, and
because the record is bare of any indication that Philfinance
had itself notified Delta of the assignment to petitioner, the
Court is compelled to uphold the defense of compensation
raised by private respondent Delta. Of course, Philfinance
remains liable to petitioner under the terms of the assignment
made by Philfinance to petitioner.
II.
We turn now to the relationship between petitioner and private
respondent Pilipinas. Petitioner contends that Pilipinas
became solidarily liable with Philfinance and Delta when
Pilipinas issued DCR No. 10805 with the following words:
Upon your written instruction, we
[Pilipinas] shall undertake physical delivery of
the above securities fully assigned to you —.23
The Court is not persuaded. We find nothing in the DCR that
establishes an obligation on the part of Pilipinas to pay
petitioner the amount of P307,933.33 nor any assumption of
liability in solidum with Philfinance and Delta under DMC PN
No. 2731. We read the DCR as a confirmation on the part of
Pilipinas that:
(1) it has in its custody, as duly constituted
custodian bank, DMC PN No. 2731 of a certain
face value, to mature on 6 April 1981 and
payable to the order of Philfinance;
(2) Pilipinas was, from and after said date of the
assignment by Philfinance to petitioner (9
February 1981), holding that Note on behalf
and for the benefit of petitioner, at least to the
extent it had been assigned to petitioner by
payee Philfinance;24
(3) petitioner may inspect the Note either
"personally or by authorized representative", at
any time during regular bank hours; and
(4) upon written instructions of petitioner,
Pilipinas would physically deliver the DMC PN
No. 2731 (or a participation therein to the extent
of P307,933.33) "should this Denominated
Custodianship receipt remain outstanding in
[petitioner's] favor thirty (30) days after its
maturity."
Thus, we find nothing written in printers ink on the DCR which
could reasonably be read as converting Pilipinas into an
obligor under the terms of DMC PN No. 2731 assigned to
petitioner, either upon maturity thereof or any other time. We
note that both in his complaint and in his testimony before the
trial court, petitioner referred merely to the obligation of private
respondent Pilipinas to effect the physical delivery to him of
DMC PN No. 2731.25 Accordingly, petitioner's theory that
Pilipinas had assumed a solidary obligation to pay the amount
represented by a portion of the Note assigned to him by
Philfinance, appears to be a new theory constructed only after
the trial court had ruled against him. The solidary liability that
petitioner seeks to impute Pilipinas cannot, however, be lightly
inferred. Under article 1207 of the Civil Code, "there is a
164
solidary liability only when the law or the nature of the
obligation requires solidarity," The record here exhibits no
express assumption of solidary liability vis-a-vis petitioner, on
the part of Pilipinas. Petitioner has not pointed to us to any law
which imposed such liability upon Pilipinas nor has petitioner
argued that the very nature of the custodianship assumed by
private respondent Pilipinas necessarily implies solidary
liability under the securities, custody of which was taken by
Pilipinas. Accordingly, we are unable to hold Pilipinas solidarily
liable with Philfinance and private respondent Delta under
DMC PN No. 2731.
We do not, however, mean to suggest that Pilipinas has no
responsibility and liability in respect of petitioner under the
terms of the DCR. To the contrary, we find, after prolonged
analysis and deliberation, that private respondent Pilipinas had
breached its undertaking under the DCR to petitioner
Sesbreño.
We believe and so hold that a contract of deposit was
constituted by the act of Philfinance in designating Pilipinas as
custodian or depositary bank. The depositor was initially
Philfinance; the obligation of the depository was owed,
however, to petitioner Sesbreño as beneficiary of the
custodianship or depository agreement. We do not consider
that this is a simple case of a stipulation pour autri. The
custodianship or depositary agreement was established as an
integral part of the money market transaction entered into by
petitioner with Philfinance. Petitioner bought a portion of DMC
PN No. 2731; Philfinance as assignor-vendor deposited that
Note with Pilipinas in order that the thing sold would be placed
outside the control of the vendor. Indeed, the constituting of
the depositary or custodianship agreement was equivalent to
constructive delivery of the Note (to the extent it had been sold
or assigned to petitioner) to petitioner. It will be seen that
custodianship agreements are designed to facilitate
transactions in the money market by providing a basis for
confidence on the part of the investors or placers that the
instruments bought by them are effectively taken out of the
pocket, as it were, of the vendors and placed safely beyond
their reach, that those instruments will be there available to the
placers of funds should they have need of them. The
depositary in a contract of deposit is obliged to return the
security or the thing deposited upon demand of the depositor
(or, in the presented case, of the beneficiary) of the contract,
even though a term for such return may have been established
in the said contract.26 Accordingly, any stipulation in the
contract of deposit or custodianship that runs counter to the
fundamental purpose of that agreement or which was not
brought to the notice of and accepted by the placer-
beneficiary, cannot be enforced as against such beneficiary-
placer.
We believe that the position taken above is supported by
considerations of public policy. If there is any party that needs
the equalizing protection of the law in money market
transactions, it is the members of the general public whom
place their savings in such market for the purpose of
generating interest revenues.27 The custodian bank, if it is not
related either in terms of equity ownership or management
control to the borrower of the funds, or the commercial paper
dealer, is normally a preferred or traditional banker of such
borrower or dealer (here, Philfinance). The custodian bank
would have every incentive to protect the interest of its client
the borrower or dealer as against the placer of funds. The
providers of such funds must be safeguarded from the impact
of stipulations privately made between the borrowers or
dealers and the custodian banks, and disclosed to fund-
providers only after trouble has erupted.
In the case at bar, the custodian-depositary bank Pilipinas
refused to deliver the security deposited with it when petitioner
165
first demanded physical delivery thereof on 2 April 1981. We
must again note, in this connection, that on 2 April 1981, DMC
PN No. 2731 had not yet matured and therefore,
compensation or offsetting against Philfinance PN No. 143-A
had not yet taken place. Instead of complying with the demand
of the petitioner, Pilipinas purported to require and await the
instructions of Philfinance, in obvious contravention of its
undertaking under the DCR to effect physical delivery of the
Note upon receipt of "written instructions" from petitioner
Sesbreño. The ostensible term written into the DCR (i.e.,
"should this [DCR] remain outstanding in your favor thirty [30]
days after its maturity") was not a defense against petitioner's
demand for physical surrender of the Note on at least three
grounds: firstly, such term was never brought to the attention
of petitioner Sesbreño at the time the money market
placement with Philfinance was made; secondly, such term
runs counter to the very purpose of the custodianship or
depositary agreement as an integral part of a money market
transaction; and thirdly, it is inconsistent with the provisions of
Article 1988 of the Civil Code noted above. Indeed, in
principle, petitioner became entitled to demand physical
delivery of the Note held by Pilipinas as soon as petitioner's
money market placement matured on 13 March 1981 without
payment from Philfinance.
We conclude, therefore, that private respondent Pilipinas must
respond to petitioner for damages sustained by arising out of
its breach of duty. By failing to deliver the Note to the petitioner
as depositor-beneficiary of the thing deposited, Pilipinas
effectively and unlawfully deprived petitioner of the Note
deposited with it. Whether or not Pilipinas itself benefitted from
such conversion or unlawful deprivation inflicted upon
petitioner, is of no moment for present purposes. Prima facie,
the damages suffered by petitioner consisted of P304,533.33,
the portion of the DMC PN No. 2731 assigned to petitioner but
lost by him by reason of discharge of the Note by
compensation, plus legal interest of six percent (6%)per
annum containing from 14 March 1981.
The conclusion we have reached is, of course, without
prejudice to such right of reimbursement as Pilipinas may
have vis-a-vis Philfinance.
III.
The third principal contention of petitioner — that Philfinance
and private respondents Delta and Pilipinas should be treated
as one corporate entity — need not detain us for long.
In the first place, as already noted, jurisdiction over the person
of Philfinance was never acquired either by the trial court nor
by the respondent Court of Appeals. Petitioner similarly did not
seek to implead Philfinance in the Petition before us.
Secondly, it is not disputed that Philfinance and private
respondents Delta and Pilipinas have been organized as
separate corporate entities. Petitioner asks us to pierce their
separate corporate entities, but has been able only to cite the
presence of a common Director — Mr. Ricardo Silverio, Sr.,
sitting on the Board of Directors of all three (3) companies.
Petitioner has neither alleged nor proved that one or another
of the three (3) concededly related companies used the other
two (2) as mere alter egos or that the corporate affairs of the
other two (2) were administered and managed for the benefit
of one. There is simply not enough evidence of record to justify
disregarding the separate corporate personalities of delta and
Pilipinas and to hold them liable for any assumed or
undetermined liability of Philfinance to petitioner.28
WHEREFORE, for all the foregoing, the Decision and
Resolution of the Court of Appeals in C.A.-G.R. CV No. 15195
dated 21 march 1989 and 17 July 1989, respectively, are
166
hereby MODIFIED and SET ASIDE, to the extent that such standards of the legal profession and to discharge the burden
Decision and Resolution had dismissed petitioner's complaint of the privilege conferred on one as a member of the bar
against Pilipinas Bank. Private respondent Pilipinas bank is warrant the suspension or revocation of that privilege.
hereby ORDERED to indemnify petitioner for damages in the
amount of P304,533.33, plus legal interest thereon at the rate The Factual Antecedents
of six percent (6%) per annum counted from 2 April 1981. As
so modified, the Decision and Resolution of the Court of Complainant Florencio A. Saladaga and respondent Atty.
Appeals are hereby AFFIRMED. No pronouncement as to Arturo B. Astorga entered into a "Deed of Sale with Right to
costs. Repurchase" on December 2, 1981 where respondent sold
(with rightof repurchase) to complainant a parcel of coconut
SO ORDERED. land located at Barangay Bunga, Baybay, Leyte covered by
Transfer Certificate of Title (TCT) No. T-662 for ₱15,000.00.
A.C. No. 4697 November 25, 2014 Under the said deed, respondent represented that he has "the
perfect right to dispose as owner in fee simple" the subject
FLORENCIO A. SALADAGA, Complainant, property and that the said property is "free from all liens and
vs. encumbrances."3 The deed also provided that respondent, as
ATTY. ARTURO B. ASTORGA, Respondent. vendor a retro, had two years within which to repurchase the
property, and if not repurchased within the said period, "the
x-----------------------x parties shall renew [the] instrument/agreement."4

A.C. No. 4728 Respondent failed to exercise his right of repurchase within
the period provided in the deed, and no renewal of the contract
FLORENCIO A. SALADAGA, Complainant, was made even after complainant sent respondent a final
vs. demand dated May 10, 1984 for the latter to repurchase the
ATTY. ARTURO B. ASTORGA, Respondent. property. Complainant remained in peaceful possession of the
property until December 1989 when he received letters from
DECISION the Rural Bank of Albuera (Leyte), Inc. (RBAI) informing him
that the property was mortgaged by respondent to RBAI, that
the bank had subsequently foreclosed on the property, and
LEONARDO-DE CASTRO, J.:
that complainant should therefore vacate the property.5
Membership in the legal profession is a high personal privilege
Complainant was alarmed and made aninvestigation. He
burdened with conditions,1 including continuing fidelity to the
learned the following:
law and constant possession of moral fitness. Lawyers, as
guardians of the law, play a vital role in the preservation of
society, and a consequent obligation of lawyers is to maintain (1) TCT No. T-662 was already cancelled by TCT No.
the highest standards of ethical conduct.2 Failure to live by the T-3211 in the name of Philippine National Bank (PNB)

167
 as early as November 17, 1972 after foreclosure
proceedings;
(2) TCT No. T-3211 was cancelled by TCT No. T-7235
in the names of respondent and his wife on January 4,
1982 pursuant to a deed of sale dated March 27,1979
between PNB and respondent;
(3) Respondent mortgaged the subject property to
RBAI on March 14, 1984, RBAI foreclosed on the
property, and subsequently obtained TCT No. TP-
10635 on March 27, 1991.6 Complainant was
subsequently dispossessed of the property by RBAI.7
Aggrieved, complainant instituted a criminal complaint for
estafa against respondent with the Office of the Provincial
Prosecutor of Leyte, docketed as I.S. No. 95-144. The
Provincial Prosecutor of Leyte approved the Resolution8dated
April 21, 1995 in I.S. No. 95-144 finding that "[t]he facts of [the]
case are sufficient to engender a well-founded belief that
Estafa x x x has been committed and that respondent herein is
probably guilty thereof."9 Accordingly, an Information10 dated
January 8,1996 was filed before the Municipal Trial Court
(MTC) of Baybay, Leyte, formally charging respondent with the
crime of estafa under Article 316, paragraphs 1 and 2 of the
Revised Penal Code,11committed as follows:
On March 14, 1984, accused representing himself as the
owner of a parcel of land known as Lot No. 7661 of the
Baybay Cadastre, mortgaged the same to the Rural Bank of
Albuera, Albuera, Leyte, within the jurisdiction of this
Honorable Court, knowing fully well that the possessor and
owner at that time was private complainant Florencio
Saladaga by virtue of a Pacto de Retro Sale which accused
executed in favor of private complainant on 2nd December,
1981, without first redeeming/repurchasing the same. [P]rivate
complainant knowing of accused[’s] unlawful act only on or
about the last week of February, 1991 when the rural bank
dispossessed him of the property, the mortgage having been
foreclosed, private complainant thereby suffered damages and
was prejudiced by accused[’s] unlawful transaction and
misrepresentation.
The aforementioned estafa case against respondent was
docketed as Criminal Case No. 3112-A.
Complainant likewise instituted the instant administrative
cases against respondent by filing before this Court an
Affidavit-Complaint12 dated January 28, 1997 and
Supplemental Complaint13 dated February 27, 1997, which
were docketed as A.C. No. 4697 and A.C. No. 4728,
respectively. In both complaints, complainant sought the
disbarment of respondent.
The administrative cases were referred to the Integrated Bar of
the Philippines (IBP) for investigation, report and
recommendation.14
In his Consolidated Answer15 dated August 16, 2003 filed
before the IBP, respondent denied that his agreement with
complainant was a pacto de retrosale. He claimed that it was
an equitable mortgage and that, if only complainant rendered
an accounting of his benefits from the produce of the land, the
total amount would have exceeded ₱15,000.00.
Report and Recommendation of the Investigating
Commissioner and Resolution of the IBP Board of Governors
In a Report and Recommendation16 dated April 29, 2005, the
Investigating Commissioner of the IBP’s Commission on Bar
Discipline found that respondent was in bad faith when he
dealt with complainant and executed the "Deed of Sale with
168
Right to Repurchase" but later on claimed that the agreement
was one of equitable mortgage. Respondent was also guilty of
deceit or fraud when he represented in the "Deed of Sale with
Right to Repurchase" dated December 2, 1981 that the
property was covered by TCT No. T-662, even giving
complainant the owner’s copy of the said certificate of title,
when the said TCT had already been cancelled on November
17, 1972 by TCT No. T-3211 in the name of Philippine
National Bank (PNB). Respondent made matters even worse,
when he had TCT No. T-3211 cancelled with the issuance of
TCT No. T-7235 under his and his wife’s name on January
4,1982 without informing complainant. This was compounded
by respondent’s subsequent mortgage of the property to RBAI,
which led to the acquisition of the property by RBAI and the
dispossession thereof of complainant. Thus, the Investigating
Commissioner recommended that respondent be (1)
suspended from the practice of law for one year, with warning
that a similar misdeed in the future shall be dealt with more
severity, and (2) ordered to return the sum of ₱15,000.00, the
amount he received as consideration for the pacto de
retrosale, with interest at the legal rate.
Considering respondent’s "commission of unlawful acts,
especially crimes involving moral turpitude, actsof dishonesty,
grossly immoral conduct and deceit," the IBP Board of
Governors adopted and approved the Investigating
Commissioner’s Report and Recommendation with
modification as follows: respondent is(1) suspended from the
practice of law for two years, with warning that a similar
misdeed in the future shall be dealt with more severity, and (2)
ordered to return the sum of ₱15,000.00 received in
consideration of the pacto de retrosale, with legal interest.17
The Court’s Ruling
The Court agrees with the recommendation of the IBP Board
of Governors to suspend respondent from the practice of law
for two years, but it refrains from ordering respondent to return
the ₱15,000.00 consideration, plus interest.
Respondent does not deny executing the "Deed of Sale with
Right to Repurchase" dated December 2, 1981 in favor of
complainant. However, respondent insists that the deed is not
one of sale with pacto de retro, but one of equitable mortgage.
Thus, respondent argues that he still had the legal right to
mortgage the subject property to other persons. Respondent
additionally asserts that complainant should render an
accounting of the produce the latter had collected from the
said property, which would already exceed the ₱15,000.00
consideration stated in the deed.
There is no merit in respondent’s defense.
Regardless of whether the written contract between
respondent and complainant is actually one of sale with pacto
de retroor of equitable mortgage, respondent’s actuations in
his transaction with complainant, as well as in the present
administrative cases, clearly show a disregard for the highest
standards of legal proficiency, morality, honesty, integrity, and
fair dealing required from lawyers, for which respondent
should be held administratively liable.
When respondent was admitted to the legal profession, he
took an oath where he undertook to "obey the laws," "do no
falsehood," and "conduct [him]self as a lawyer according to the
best of [his] knowledge and discretion."18 He gravely violated
his oath.
The Investigating Commissioner correctly found, and the IBP
Board of Governors rightly agreed, that respondent caused the
ambiguity or vagueness in the "Deed of Sale with Right to
169
Repurchase" as he was the one who prepared or drafted the
said instrument. Respondent could have simply denominated
the instrument as a deed of mortgage and referred to himself
and complainant as "mortgagor" and "mortgagee,"
respectively, rather than as "vendor a retro" and "vendee a
retro." If only respondent had been more circumspect and
careful in the drafting and preparation of the deed, then the
controversy between him and complainant could havebeen
avoided or, at the very least, easily resolved. His imprecise
and misleading wording of the said deed on its face betrayed
lack oflegal competence on his part. He thereby fell short of
his oath to "conduct [him]self as a lawyer according to the best
of [his] knowledge and discretion."
More significantly, respondent transgressed the laws and the
fundamental tenet of human relations asembodied in Article 19
of the Civil Code:
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
Respondent, as owner of the property, had the right to
mortgage it to complainant but, as a lawyer, he should have
seen to it that his agreement with complainant is embodied in
an instrument that clearly expresses the intent of the
contracting parties. A lawyer who drafts a contract must see to
it that the agreement faithfully and clearly reflects the intention
of the contracting parties. Otherwise, the respective rights and
obligations of the contracting parties will be uncertain, which
opens the door to legal disputes between the said parties.
Indeed, the uncertainty caused by respondent’s poor
formulation of the "Deed of Sale with Right to Repurchase"
was a significant factor in the legal controversy between
respondent and complainant. Such poor formulation reflects at
the very least negatively on the legal competence of
respondent.
Under Section 63 of the Land Registration Act,19 the law in
effect at the time the PNB acquired the subject property and
obtained TCT No. T-3211 in its name in 1972, where a decree
in favor of a purchaser who acquires mortgaged property in
foreclosure proceedings becomes final, such purchaser
becomes entitled to the issuance of a new certificate of title in
his name and a memorandum thereof shall be "indorsed upon
the mortgagor’s original certificate."20 TCT No. T-662, which
respondent gave complainant when they entered into the
"Deed of Sale with Right to Repurchase" dated December 2,
1981, does not bearsuch memorandum but only a
memorandum on the mortgage of the property to PNB in 1963
and the subsequent amendment of the mortgage.
Respondent dealt with complainant with bad faith, falsehood,
and deceit when he entered into the "Deed of Sale with Right
to Repurchase" dated December 2, 1981 with the latter. He
made it appear that the property was covered by TCT No. T-
662 under his name, even giving complainant the owner’s
copy of the said certificate oftitle, when the truth is that the
said TCT had already been cancelled some nine years earlier
by TCT No. T-3211 in the name of PNB. He did not evencare
to correct the wrong statement in the deed when he was
subsequently issued a new copy of TCT No. T-7235 on
January 4, 1982,21 or barely a month after the execution of the
said deed. All told, respondent clearly committed an act of
gross dishonesty and deceit against complainant.
Canon 1 and Rule 1.01 of the Codeof Professional
Responsibility provide:
170
CANON 1 – A lawyer shall uphold the constitution, obey the
laws of the land and promote respect for law and legal
processes.
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. Under Canon 1, a lawyer is not
only mandated to personally obey the laws and the legal
processes, he is moreover expected to inspire respect and
obedience thereto. On the other hand, Rule 1.01 states the
norm of conduct that is expected of all lawyers.22
Any act or omission that is contrary to, prohibited or
unauthorized by, in defiance of, disobedient to, or disregards
the law is "unlawful." "Unlawful" conduct does not necessarily
imply the element of criminality although the concept is broad
enough to include such element.23
To be "dishonest" means the disposition to lie, cheat, deceive,
defraud or betray; be untrustworthy; lacking inintegrity,
honesty, probity, integrity in principle, fairness and
straightforwardness. On the other hand, conduct that is
"deceitful" means as follows:
[Having] the proclivity for fraudulent and deceptive
misrepresentation, artifice or device that is used upon another
who is ignorant of the true facts, to the prejudice and damage
of the party imposed upon. In order to be deceitful, the person
must either have knowledge of the falsity or acted in reckless
and conscious ignorance thereof, especially if the parties are
not on equal terms, and was done with the intent that the
aggrieved party act thereon, and the latter indeed acted in
reliance of the false statement or deed in the manner
contemplated to his injury.24 The actions of respondent in
connection with the execution of the "Deed of Sale with Right
to Repurchase" clearly fall within the concept of unlawful,
dishonest, and deceitful conduct. They violate Article 19 of the
Civil Code. They show a disregard for Section 63 of the Land
Registration Act. They also reflect bad faith, dishonesty, and
deceit on respondent’s part. Thus, respondent deserves to be
sanctioned.
Respondent’s breach of his oath, violation of the laws, lack of
good faith, and dishonesty are compounded by his gross
disregard of this Court’s directives, as well as the orders of the
IBP’s Investigating Commissioner (who was acting as an
agent of this Court pursuant to the Court’s referral of these
cases to the IBP for investigation, report and
recommendation), which caused delay in the resolution of
these administrative cases.
In particular, the Court required respondent to comment on
complainant’s Affidavit-Complaint in A.C. No. 4697 and
Supplemental Complaint in A.C. No. 4728 on March 12, 1997
and June 25, 1997, respectively.25 While he requested for
several extensions of time within which to submit his comment,
no such comment was submitted prompting the Court to
require him in a Resolution dated February 4,1998 to (1) show
cause why he should not be disciplinarily dealt with or held in
contempt for such failure, and (2) submit the consolidated
comment.26 Respondent neither showed cause why he should
not be disciplinarily dealt with or held in contempt for such
failure, nor submitted the consolidated comment.
When these cases were referred to the IBP and during the
proceedings before the IBP’s Investigating Commissioner,
respondent was again required several times to submit his
consolidated answer. He only complied on August 28, 2003, or
more than six years after this Court originally required him to
do so. The Investigating Commissioner also directed the
parties to submit their respective position papers. Despite
having been given several opportunities to submit the same,
respondent did not file any position paper.27
171
Respondent’s disregard of the directives of this Court and of
the Investigating Commissioner, which caused undue delay in
these administrative cases, contravenes the following
provisions of the Code of Professional Responsibility:
CANON 11 – A lawyer shall observe and maintain the respect
due to the courts and to judicial officers and should insist on
similar conduct by others.
xxxx
CANON 12 – A lawyer shall exert every effort and consider it
his duty to assist in the speedy and efficient administration of
justice.
xxxx
Rule 12.03 – A lawyer shall not, after obtaining extensions of
time to file pleadings, memoranda or briefs, let the period
lapse without submitting the same or offering an explanation
for his failure to do so.
Rule 12.04 – A lawyer shall not unduly delay a case, impede
the execution of a judgment or misuse court processes.
Respondent’s infractions are aggravated by the fact that he
has already been imposed a disciplinary sanction
before.1âwphi1 In Nuñez v. Atty. Astorga,28 respondent was
held liable for conduct unbecoming an attorney for which he
was fined ₱2,000.00.
Given the foregoing, the suspension of respondent from the
practice of law for two years, as recommended by the IBP
Board of Governors, is proper.
The Court, however, will not adopt the recommendation of the
IBP to order respondent to return the sum of ₱15,000.00 he
received from complainant under the "Deed of Sale with Right
to Repurchase." This is a civil liability best determined and
awarded in a civil case rather than the present administrative
cases.
In Roa v. Moreno,29 the Court pronounced that "[i]n disciplinary
proceedings against lawyers, the only issue is whether the
officer of the court is still fit to be allowed to continue as a
member of the Bar. Our only concern is the determination of
respondent’s administrative liability. Our findings have no
material bearing on other judicial action which the parties may
choose to file against each other."While the respondent
lawyer’s wrongful actuations may give rise at the same time to
criminal, civil, and administrative liabilities, each must be
determined in the appropriate case; and every case must be
resolved in accordance with the facts and the law applicable
and the quantum of proof required in each. Section 5,30 in
relation to Sections 131 and 2,32 Rule 133 of the Rules of Court
states that in administrative cases, such as the ones atbar,
only substantial evidence is required, not proof beyond
reasonable doubt as in criminal cases, or preponderance of
evidence asin civil cases. Substantial evidence is that amount
of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.33
The Court notes that based on the same factual antecedents
as the present administrative cases, complainant instituted a
criminal case for estafa against respondent, docketed as
Criminal Case No. 3112-A, before the MTC. When a criminal
action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal
172
action.34 Unless the complainant waived the civil action,
reserved the right to institute it separately, or instituted the civil
action prior to the criminal action, then his civil action for the
recovery of civil liability arising from the estafa committed by
respondent is deemed instituted with Criminal Case No. 3112-
A. The civil liability that complainant may recover in Criminal
Case No. 3112-A includes restitution; reparation of the
damage caused him; and/or indemnification for consequential
damages,35which may already cover the ₱15,000.00
consideration complainant had paid for the subject property.

WHEREFORE, respondent is hereby found GUILTY of the

following: breach of the Lawyer’s Oath; unlawful, dishonest,
and deceitful conduct; and disrespect for the Court and
causing undue delay of these cases, for which he is
SUSPENDED from the practice of law for a period of two (2)
years, reckoned from receipt of this Decision, with WARNING
that a similar misconduct in the future shall be dealt with more
severely.

Let a copy of this Decision be furnished the Office of the Bar

Confidant and the Integrated Bar of the Philippines for their
information and guidance. The Court Administrator is directed
to circulate this Decision to all courts in the country.

SO ORDERED.

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