epublic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 210929 July 29, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.

EDNA ORCELINO-VILLANUEVA, Respondent.

DISSENTING OPINION

LEONEN, J.:

Edna Orcelino-Villanueva (Edna) was a domestic helper based in Singapore. In 1993, she came home
immediately after she heard news from her children that her husband, Romeo L. Villanueva (Romeo),
left their conjugal dwelling. She came home, leaving her work, for the purpose of looking for her
husband and taking care of her children. She had limited resources for her search.

For 15 or 16 years, she endured the absence of her husband. Within those long years, whether in good
times or bad, she never heard from him. He did not discharge any of his duties as husband.

In ruling against her and concluding that she did not search hard enough for Romeo, the majority fails to
appreciate several crucial facts:

First, Edna turned away from her livelihood, her modest means of subsistence, just to search for Romeo.

Second, Edna did not only embark on a token search. She did not limit herself to her parents-in-law and
to common friends in Iligan City, the . place where she and Romeo were married. Edna went all the way
to Romeo's birthplace, which was Escalante, Negros Oriental. There, she inquired from Romeo's
relatives as to his whereabouts.

Third, 15 or 16 years had passed since Edna was told that Romeo had gone missing when she filed her
Petition to declare Romeo presumptively dead. If Edna merely intended to use a petition for declaration
of presumptive death as a convenient means for circumventing laws that protect the institution of
marriage, it is astounding that she would await the inconvenience of 15 or 16 years.

Edna established a well-founded belief that her husband, Romeo, is already dead.

I vote to sustain the assailed October 18, 2013 Decision1 and January 8, 2014 Resolution2 of the Court
of Appeals in CA-G.R. SP No. 03768-MIN, affirming the October 8, 2009 Judgment3 of the Regional Trial
Court, Branch 10, Malaybalay City, Bukidnon, declaring Romeo presumptively dead pursuant to Article
41 of the Family Code.

I reiterate the position I articulated in my dissent to Republic of the Philippines v. Cantor.4 I maintain
that a strict standard should not be used in evaluating the efforts made by a spouse to ascertain the
status and whereabouts of an absent spouse. The marital obligations provided for by the Family Code
require the continuing presence of each spouse. A spouse is well to suppose that this shall be resolutely
fulfilled by the other spouse. Failure to do so for the period established by law gives rise to the
presumption that the absent spouse is dead, thereby enabling the spouse present to remarry.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.
Article 41’s requirement of a "well-grounded belief" calls for an inquiry into a spouse’s state of mind.5
Otherwise abstract, one’s state of mind can only be ascertained through overt acts. Article 41 requires
this belief to be "well-grounded." It therefore requires nothing more than for a spouse to have a
"reasonable basis for holding to such belief."6 Article 41 relies on a basic and plain test: rationality.7

What is rational in each case depends on context. Rationality is not determined by the blanket
imposition of pre-conceived standards. Rather, it is better determined by an appreciation of a person’s
unique circumstances.8

Moreover, all that Article 41 calls to sustain is a presumption. By definition, there is no need for absolute
certainty. A presumption is, by nature, favorable to a party and dispenses with the burden of proving.
Consequently, neither is there a need for conduct that establishes such a high degree of cognizance that
what is established is proof, and no longer a presumption:

In declaring a person presumptively dead, a court is called upon to sustain a presumption, it is not called
upon to conclude on verity or to establish actuality. In so doing, a court infers despite an acknowledged
uncertainty. Thus, to insist on such demanding and extracting evidence to "show enough proof of a well-
founded belief", is to insist on an inordinate and intemperate standard.9

It is improper for the majority to insist upon the same "strict standard approach"10 that was relied on in
Cantor and conclude that Edna’s efforts "were not diligent and serious enough."11 The majority fails to
appreciate several crucial facts in this case that define the limits of her situation.

Edna’s lack of resources appears in the records. She only had the ability to present herself as witness.

Concededly, Edna could have engaged in other efforts—asking for the help of police officers, filing a
formal missing-person report, announcing Romeo’s absence in radio or television programs—as would
show how painstakingly she endeavored to search for Romeo. Insisting on Edna to have also made these
efforts, however, is to insist that she act in an ideal manner. It takes her away from her own reality and
requires her to fulfill pre-conceived notions of what satisfies notice. It fails to appreciate the merit of the
lengths she actually went through to search for Romeo.

Unless Edna had the ability to gain access to radio or television programs with nationwide coverage or
ensure that her notices were posted in all precincts, then requiring this type of search would have been
futile and economically wasteful. If we are to lend truth to the concept of social justice, we have to
make judgments based on her context. To reiterate, she is one of the millions who had to go abroad to
earn a more prosperous life for herself and her children. She had to cut short her employment to come
home and make an honest search for her husband. To require her to squander more time and money to
reach media and the police would have been economically expensive for her. The law should be
interpreted in the context of reality—and ours is different from Edna’s.

Edna was an abandoned wife whose husband was missing for 15 or 16 years. Her search for Romeo
began more than two decades ago in a province in Mindanao, far removed from this nation’s capital.
She was an overseas Filipino worker, a domestic helper, who was compelled to return to the Philippines
to tend to a missing husband. Twenty-two years ago, when she embarked on her search, she could not
have been aided by the convenience of ready access to communication networks. To go to her
husband’s birthplace and inquire from his relatives, she could not have merely boarded an hour-long
flight; she must have endured hours, even days at sea. It is in light of these human realities that Edna’s
efforts must be appreciated.

This court must realize that insisting upon an ideal will never yield satisfactory results. A stringent
evaluation of a party’s efforts made out of context will always reveal means through which a spouse
could have ‘done more’ or walked the proverbial extra mile to ascertain his or her spouse’s
whereabouts. A reason could always be conceived for concluding that a spouse did not try ‘hard
enough.’

So, too, insisting on Edna’s perceived shortcomings unjustly puts the blame on her and undermines the
shortcoming that Romeo himself committed. All marital obligations recognized in the Family Code are
predicated upon each spouse’s presence. The primordial marital obligation is "to live together, observe
mutual love, respect and fidelity, and render mutual help and support."12 As I explained in my dissent in
Cantor:

The opinions of a recognized authority in civil law, Arturo M. Tolentino, are particularly enlightening:

Meaning of "Absent" Spouse.– The provisions of this article are of American origin, and must be
construed in the light of American jurisprudence. An identical provision (except for the period) exists in
the California civil code (section 61); California jurisprudence should, therefore, prove enlightening. It
has been held in that jurisdiction that, as respects the validity of a husband’s subsequent marriage, a
presumption as to the death of his first wife cannot be predicated upon an absence resulting from his
leaving or deserting her, as it is his duty to keep her advised as to his whereabouts. The spouse who has
been left or deserted is the one who is considered as the ‘spouse present’; such spouse is not required
to ascertain the whereabouts of the deserting spouse, and after the required number of years of
absence of the latter, the former may validly remarry.
Precisely, it is a deserting spouse’s failure to comply with what is reasonably expected of him/her and to
fulfil the responsibilities that are all but normal to a spouse which makes reasonable (i.e., well-
grounded) the belief that should he/she fail to manifest his/her presence within a statutorily
determined reasonable period, he/she must have been deceased. The law is of the confidence that
spouses will in fact "live together, observe mutual love, respect and fidelity, and render mutual help and
support" such that it is not the business of the law to assume any other circumstance than that a spouse
is deceased in case he/she becomes absent.13

It is Romeo who has been absent. In so doing, he is rightly considered to be no longer in a position to
perform his marital obligations to Edna. Having been absent for the statutorily prescribed period despite
his legal obligations as a married spouse, Romeo should be rightly considered presumptively dead.

The majority burdened itself with ensuring that petitions for declaration of presumptive death are not
used as procedural shortcuts that undermine the institution of marriage. While this is a valid concern,
the majority goes to unnecessary lengths to discharge this burden. Article 41 of the Family Code
concedes that there is a degree of risk in presuming a spouse to be dead, as the absent spouse may, in
fact, be alive and well. Thus, Article 41 provides that declarations of presumptive death are "without
prejudice to the reappearance of the absent spouse." The state is thus not bereft of remedies.

Consistent with this, Article 42 of the Family Code provides for the automatic termination of the
subsequent marriage entered into by the present spouse should the absent spouse reappear: Art. 42.
The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab nitio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent marriage at the instance of any interested person, with
due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance
being judicially determined in case such fact is disputed. Moreover, in Santos v. Santos,14 we recognized
that in cases where a declaration of presumptive death was fraudulently obtained, the subsequent
marriage shall not only be terminated, but all other effects of the declaration nullified by a successful
petition for annulment of judgment:

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an
action to annul the judgment. An affidavit of reappearance is not the proper remedy when the person
declared presumptively dead has never been absent.

....
Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the
effects of the declaration of presumptive death and the subsequent marriage, mere filing of an affidavit
of reappearance would not suffice.15

The majority is gripped with the apprehension that a petition for declaration of presumptive death may
be availed of as a dangerous expedient. Nothing, in this case, sustains fear. A misplaced anxiety is all
that there is. As things stand, Edna has shown facts that warrant a declaration that Romeo is
presumptively dead. Proceeding from these merits, this Petition must be denied.

ACCORDINGLY, I vote to DENY the Petition. The Decision of the Court of Appeals in CA-G.R. SP No.
03768-MIN, affirming the October 8, 2009 Judgment of the Regional Trial Court, Branch 10, Malaybalay
City, Bukidnon, declaring Romeo L. Villanueva presumptively dead pursuant to Article 41 of the Family
Code, must be affirmed.

MARVIC M.V.F. LEONEN

Associate Justice
THIRD DIVISION

[G.R. No. 160258. January 19, 2005]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZ-LORINO, respondent.

DECISION

GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the
Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside
of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which
affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo, Rizal in a summary
judicial proceeding thereat commenced by the herein respondent Gloria Bermudez-Lorino for the
declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr., based on the provisions
of Article 41 of the Family Code, for purposes of remarriage.

The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12,
1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima.

Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker,
possessed with violent character/attitude, and had the propensity to go out with friends to the extent of
being unable to engage in any gainful work.

Because of her husbands violent character, Gloria found it safer to leave him behind and decided to go
back to her parents together with her three (3) children. In order to support the children, Gloria was
compelled to work abroad.

From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all.
She had absolutely no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the
Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the
Family Law provided for in the Family Code, which petition was docketed in the same court as Special
Proceeding No. 325-00 SM.

On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a
newspaper of general circulation, thus:

A verified petition was filed by herein petitioner through counsel alleging that she married Francisco
Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided to go back
to her parents and lived separately from her husband. After nine (9) years, there was absolutely no news
about him and she believes that he is already dead and is now seeking through this petition for a Court
declaration that her husband is judicially presumed dead for the purpose of remarriage.

Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing
before this Court on September 18, 2000 at 8:30 oclock in the morning at which place, date and time,
any or all persons who may claim any interest thereto may appear and show cause why the same should
not be granted.

Let a copy of this Order be published in a newspaper of general circulation in this province once a week
for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the
Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition.
Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St.,
Sta. Elena, Marikina City.

SO ORDERED[1]

The evidence in support of the summary judicial proceeding are: the order of publication dated August
28, 2000 (Exhibit A); affidavit of publication dated September 16, 2000 (Exhibit B)[2]; copies of the
newspapers where the order appeared (Exhibits C to E-1)[3]; a deposition dated September 4, 2000 of
Gloria taken in Hong Kong (Exhibit G)[4]; Glorias affidavit dated October 21, 1999, also executed in Hong
Kong (Exhibit G‑1)[5]; and a certification by Department of Foreign Affairs Authentication Officer,
Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of Vice Consul
Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of October 21, 1999, is
authentic (Exhibit G‑2)[6].

In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered
judgment granting the same, to wit:

WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit
and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but
subject to all restrictions and conditions provided therein.

SO ORDERED.[7]

Despite the judgment being immediately final and executory under the provisions of Article 247 of the
Family Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,

the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of
Appeal.[8] Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed the
case as CA-G.R. CV No. 73884.

In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed
case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and accordingly
affirmed the appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed
November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM
is hereby AFFIRMED.

SO ORDERED.[9]
Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the
instant recourse under Rule 45, maintaining that the petition raises a pure question of law that does not
require prior filing of a motion for reconsideration.

The foregoing factual antecedents present to this Court the following issues:

WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A
FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and

WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE
DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.

The Court rules against petitioner Republic.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
sets the tenor for cases covered by these rules, to wit:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited
provision by expeditiously rendering judgment within ninety (90) days after the formal offer of evidence
by therein petitioner, Gloria Bermudez-Lorino.

The problem came about when the judge gave due course to the Republics appeal upon the filing of a
Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her
order of December 18, 2001, as follows:

Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the
Solicitor General who received a copy of the Decision in this case on November 14, 2001, within the
reglementary period fixed by the Rules, let the entire records of this case be transmitted to the Court of
Appeals for further proceedings.
SO ORDERED.[10]

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which
to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section
247, Family Code, supra, are immediately final and executory. It was erroneous, therefore, on the part
of the RTC to give due course to the Republics appeal and order the transmittal of the entire records of
the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs. Comelec,[11] the right to appeal is not a
natural right nor is it a part of due process, for it is merely a statutory privilege. Since, by express
mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in
Family Law are immediately final and executory, the right to appeal was not granted to any of the
parties therein. The Republic of the Philippines, as oppositor in the petition for declaration of
presumptive death, should not be treated differently. It had no right to appeal the RTC decision of
November 7, 2001.

It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with
Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republics appeal and affirmed
without modification the final and executory judgment of the lower court. For, as we have held in
Nacuray vs. NLRC:[12]

Nothing is more settled in law than that when a judgment becomes final and executory it becomes
immutable and unalterable. The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and
whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April
1993, 221 SCRA 26).

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be
stated that the RTCs decision dated November 7, 2001, was immediately final and executory upon
notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due
course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed
the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45.
Although the result of the Court of Appeals denial of the appeal would apparently be the same, there is
a big difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the
fact that the RTC decision sought to be appealed is immediately final and executory, and the denial of
the appeal for lack of merit. In the former, the supposed appellee can immediately ask for the issuance
of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to this
Court on petition for review and the RTC judgment cannot be executed until this Court makes the final
pronouncement.

The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals.
To stress, the Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and
reiterated the fact that the RTC decision of November 7, 2001 was immediately final and executory. As it
were, the Court of Appeals committed grave reversible error when it failed to dismiss the erroneous
appeal of the Republic on ground of lack of jurisdiction because, by express provision of law, the
judgment was not appealable.

WHEREFORE, the instant petition is hereby DENIED for lack of merit. No pronouncement as to costs.

SO ORDERED.
[G.R. No. 108926. July 12, 1996]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and HEIRS OF DEMOCRITO O. PLAZA,
respondents.

DECISION

TORRES, JR., J.:

Petitioner implores this Court to review and set aside the decision[1] of February 8, 1993 of the Court of
Appeals in CA-G.R. CV No. 34950 which affirmed the decision of June 14, 1991 of the Regional Trial
Court of Makati in LRC Case No. M-99 confirming respondent Democrito O. Plazas title over Rel. Plan
1059, which is the relocation plan of Psu-97886.

After the filing of private respondents Comment, this Court, in its resolution of May 24, 1993, gave due
course to the petition and required the parties to submit their respective Memoranda. The petitioner
filed its Memorandum on June 29, 1993 while private respondent filed his Memorandum on July 6,
1993.

The factual background is summarized in the Decision[2]of the Court of Appeals as follows:

According to petitioner-appellee, the subject property situated at Liwanag, Talon (formerly Pamplona),
Las Pinas, Rizal, now Metro Manila, having an area of 45,295 sq. m., was first owned by Santos de la Cruz
who declared the same in his name under Tax Declaration Nos. 3932, for the year 1913; 3933 for 1917;
and 6905, for 1921 (Exhs. 2-B, 2-C and 2-D, Exh. K for petitioner-appellee, pp. 514-516, Record).
Subsequently, the subject property was successively bought or acquired by Pedro Cristobal, Regino
Gervacio, Diego Calugdan and Gil Alhambra. To evidence their respective acquisition of the property in
question, Tax Declaration Nos. 7937, for the year 1923; 8463, for 1927; 9467, for 1934; and 2708 (year
not available) were presented.[3] After Gil Alhambra died, his heirs extrajudicially partitioned the
subject property and declared it in their names under Tax Declaration Nos. 5595 and 5596 for the year
1960.[4] On 5 July 1966, they executed a Deed of Sale With Mortgage deeding the subject property to
petitioner-appellee for P231,340.00 payable in three (3) installments, the payment of which was secured
by a mortgage on the property. Upon receipt of the full payment, they executed a Release of Mortgage
on 1 August 1968.[5] After the sale, petitioner-appellee took possession of the subject property and paid
the taxes due thereon for the years 1966 up to 1986, and in 1985 declared it in his name under Tax
Declaration Nos. B-013-01392 and B-013-01391.[6] He appointed Mauricio Plaza and Jesus Magcanlas as
the administrator and caretaker thereof, respectively. Due to losses, the property in question was
cultivated only for a while. Five (5) years according to Mauricio Plaza, and from 1966 up to 1978
according to Jesus Magcanlas.[7]

On 14 November 1986, petitioner-appellee filed a petition, which was amended on 17 July 1987, for the
registration and confirmation of his title over the subject property alleging, among others, that:

1. by virtue of the deed of sale, he is the owner thereof;

2. he and his predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of the property prior to, and since 12 June 1945;

3. other than himself, there is no other person occupying, or having any interest over the property; and,

4. there are no tenants or agricultural lessees thereon.[8]

On 24 February 1988, oppositor-appellant, the Republic of the Philippines (Republic, for brevity), filed its
opposition maintaining, among others, that: (1) petitioner-appellee and his predecessors-in-interest
have not been in open, continuous, exclusive and notorious possession and occupation of the land in
question since 12 June 1945 or prior thereto; (2) the muniment of title and tax declarations as well as
tax payments relied upon do not constitute sufficient evidence of a bona fide acquisition of the land by
petitioner-appellee and of his open, continuous possession and occupation thereof in the concept of
owner since 12 June 1945, or prior thereto, and (3) the subject property pertains to the public domain
and is not subject to private appropriation.[9]

On 9 March 1988, after the compliance of the jurisdiction requirements was proved and, on motion, the
lower court issued its order of general default.[10]

Aside from the Republic, there were others who opposed the petition and filed their opposition thereto
prior to, or were allowed to submit their opposition despite, and after, the issuance of the order of
general default. They are:

(a) Arsenio Medina who withdrew his opposition on 29 May 1989;[11]

(b) Emilio, Leopoldo and Abraham, all surnamed Borbon; Heirs of Andres Reyes; Maximo Lopez; and,
Marilou Castanares who prayed that the lower court direct petitioner-appellee to see to it that their
respective property, which adjoins the land in question, are not included in the petition;[12]

(c) the Heirs of Santos de la Cruz and the Kadakilaan Estate. Upon their respective motion, the order of
default was set aside as to them and they were allowed to file their opposition.

The Heirs of Santos de la Cruz argue that: (1) their predecessor-in-interest, Santos de la Cruz, is the
primitive owner of the subject lot; and, (2) he, his heirs, and upon their tolerance, some other persons
have been in open, peaceful, notorious and continuous possession of the land in question since time
immemorial until the present.

The Kadakilaan Estate contends that: (1) by reason of its Titulo de Propiedad de Terrenos of 1891 Royal
Decree 01-4, with approved plans registered under the Torrens System in compliance with, and as a
consequence of, P.D. 872, it is the owner of the subject property; and, (2) petitioner-appellee or his
predecessors-in-interest have not been in open, continuous, exclusive and notorious possession and
occupation of the land in question since 12 June 1945 or earlier.[13]

(d) the Heirs of Hermogenes Rodriguez. They allege, among others, that by reason of a Titulo de
Propiedad de Terrenos of 1891; Royal Decree No. 01-4, Protocol of 1891; Decree No. 659, approved Plan
of the Bureau of Lands No. 12298 dated 10 September 1963, their predecessor-in-interest is the owner
of the subject property. Despite (sic) that their motion to lift order of default as to them and admit their
opposition, which motion was opposed by petitioner-appellee, does not appear to have been acted
upon by the lower court, they were able to present one (1) witness;[14] and,

(e) Phase II Laong Plaza Settlers Association, Inc. It filed a motion to intervene in the case but the motion
does not appear to have been acted upon by the lower court.[15]

On 13 March 1990, the Community Environment and Natural Resources Office, West Sector (CENRO-
WEST) of the Department of Environment and Natural Resources requested the lower court to furnish it
photocopies of the records of the petition as the property in question was the subject of a request for a
Presidential Proclamation reserving the land in question for Slum Improvement and Resettlement Site
(SIR) of the National Housing Authority.[16]

On 22 June 1990, upon order of the lower court, an ocular inspection was conducted on the subject
property by the court-appointed commissioner who submitted his report on 2 July 1990.[17]
On 3 January 1991 Proclamation No. 679 was issued by the President of the Republic of the Philippines
withdrawing the subject property from sale or settlement and reserve (the same) for slum improvement
and sites and services program under the administration and disposition of the National Housing
Authority in coordination with the National Capital Region, Department of Environment and Natural
Resources subject to actual survey and private rights if any there be, ... The National Housing Authority
was authorized to develop, administer and dispose of the area in accordance with LOI 555, as amended
(by LOI Nos. 686 and 1283), and LOI 557.[18]

On 31 May 1991 petitioner-appellee filed his memorandum.[19] The oppositors did not. Nevertheless,
among them, only the Republic and the Heirs of Santos de la Cruz formally offered their evidence.[20]

On 14 June 1991 the lower court rendered the judgment referred to earlier.

On 8 July 1991, from among the oppositors, only the Republic filed a notice of appeal which was
approved on 10 July 1991.[21] By reason of the approval thereof, the motion filed on 23 July 1991 by the
Heirs of Hermogenes Rodriguez for the reconsideration of the judgment was denied on 1 August
1991.[22]

On February 8, 1993, the Court of Appeals rendered a decision affirming the trial courts judgment.

Hence, this petition filed by the Republic of the Philippines alleging that:

THE DECISION OF THE COURT OF APPEALS AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT
GRANTING PRIVATE RESPONDENTS APPLICATION FOR REGISTRATION, IS NOT SUPPORTED BY AND IS
CONTRARY TO LAW, THE EVIDENCE AND EXISTING JURISPRUDENCE.

Petitioner argues that the burden rests on the applicant to show by convincing evidence that he has a
registrable title over the property sought to be titled, which the latter failed to do.

According to petitioner, aside from mere tax declarations all of which are of recent vintage, private
respondent has not established actual possession of the property in question in the manner required by
law (Section 14, P.D. 1529) and settled jurisprudence on the matter. Thus, no evidence was adduced
that private respondent cultivated much less, fenced the subject property if only to prove actual
possession. The actual fencing of the property was done only starting 1988 when the actual occupants
were forcibly ejected and driven out from their respective abodes and that its witnesses namely: Elascio
Domitita, Manuel Dolom, Bernadette Aguinaldo and Virginia Franco, who were all actual residents of the
questioned area, categorically testified on this score, summarized as follows:

1. In their long stay in the area, the longest staying occupant being Domitita who had been in the
premises for more than thirty (30) years nobody ever claimed ownership over the subject property;

2. It was only in 1988 that they learned that private respondent had filed a petition to have the property
titled in his name;

3. Private respondent had not introduced any improvement nor was there a caretaker assigned by him
to look after the property; and,

4. Aside from them, there were about 200 more families residing in the area but through force,
intimidation and illegal demolitions, were driven out by private respondent from the premises.

We are not persuaded. On this point, the respondent Court correctly found that:

Proof that petitioner-appellee and his predecessors-in-interest have acquired and have been in open,
continuous, exclusive and notorious possession of the subject property for a period of 30 years under a
bona fide claim of ownership are the tax declarations of petitioner-appellees predecessors-in-interest,
the deed of sale, tax payment receipts and petitioner-appellees tax declarations. The evidence on record
reveals that: (1) the predecessors-in-interest of petitioner-appellee have been declaring the property in
question in their names in the years 1923, 1927, 1934 and 1960; and, (2) in 1966, petitioner-appellee
purchased the same from the Heirs of Gil Alhambra and since then paid the taxes due thereon and
declared the property in his name in 1985.

xxxxxxxxx

x x x Considering the dates of the tax declarations and the realty tax payments, they can hardly be said
to be of recent vintage indicating petitioner-appellees pretended possession of the property. On the
contrary, they are strong evidence of possession in the concept of owner by petitioner-appellee and his
predecessors-in-interest. Moreover, the realty tax payment receipts show that petitioner-appellee has
been very religious in paying the taxes due on the property. This is indicative of his honest belief that he
is the owner of the subject property. We are, therefore, of the opinion that petitioner-appellee has
proved that he and his predecessors-in-interest have been in open, continuous, exclusive and notorious
possession of the subject property in the concept of owner for a period of 30 years since 12 June 1945
and earlier. By operation of law, the property in question has become private property.[23]

Contrary to the representations of the Republic, petitioner-appellee had introduced some

improvements on the subject property from the time he purchased it. His witnesses testified that
petitioner-appellee developed the subject property into a ricefield and planted it with rice, but only for
about five years because the return on investment was not enough to sustain the continued operation
of the riceland. Though not in the category of permanent structures, the preparation of the land into a
ricefield and planting it with rice are considered improvements thereon.[24]

Although tax declarations or realty tax payments of property are not conclusive evidence of ownership,
nevertheless, they are good indicia of possession in the concept of owner for no one in his right mind
would be paying taxes for a property that is not in his actual or at least constructive possession.[25]
They constitute at least proof that the holder has a claim of title over the property. The voluntary
declaration of a piece of property for taxation purposes manifests not only ones sincere and honest
desire to obtain title to the property and announces his adverse claim against the State and all other
interested parties, but also the intention to contribute needed revenues to the Government. Such an act
strengthens ones bona fide claim of acquisition of ownership.[26]

Neither do we find merit in the assertions of petitioners witnesses Elascio Domitita, Manuel Dolom,
Bernadette Aguinaldo and Virginia Franco. As properly stated by the public respondent,

xxx Their alleged possession is not based on any right. Neither do they claim to have any title or interest
over the subject property. As a matter of fact, they did not bother to oppose the petition. The most that
can be said of their alleged possession is that it was only with the tolerance of rightful owners of the
property - plaintiff-appellee and his predecessors-in-interest, hence, is no bar to the granting of the
petition. We do not see why we should accept the bare assertions of the alleged occupants at their face
value as against the claim of ownership of plaintiff-appellee backed up by legal documents, tax
declarations, and tax receipts.[27]

Well-settled and oft-repeated is the rule that findings of facts of the Court of Appeals are final and
conclusive on the Supreme Court except: 1.) when the conclusion is a finding grounded entirely on
speculation, surmises and conjectures; 2.) when the inference made is manifestly mistaken, absurd or
impossible; 3.) when there is a grave abuse of discretion; 4.) when the judgment is based on a
misapprehension of facts; 5.) when the findings of facts are conflicting; 6.) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to the admissions of
both appellant and appellee; 7.) when the findings of the Court of Appeals are contrary to those of the
trial court; and 8.) when the findings of fact are conclusions without citation of specific evidence on
which they are based.[28] Concededly, none of the above exceptions obtains in the case at bar.

Petitioner also alleges that the land in question had been withdrawn from the alienable portion of the
public domain pursuant to Presidential Proclamation No. 679 entitled Reserving for Slum Improvement
and Resettlement (SIR) Sites and Services of the National Housing Authority, A Certain Parcel of Land of
the Public Domain Situated in the Municipality of Las Pinas, Metro Manila, which was issued on January
7, 1991 or almost 6 months prior to the issuance of the trial courts decision.

The Court of Appeals opined that the issuance of the proclamation did not have any effect on the
subject property as the proclamation only withdrew it from sale or settlement and reserved the same
for slum improvement and sites and services program, but subject to actual survey and existing private
rights. The proclamation did not prohibit the registration of title of one who claims, and proves, to be
the owner thereof. We agree. At any rate, registration does not vest title. It is merely evidence of such
title.[29] Our land registration laws do not give the holder any better title than what he actually has.
When the conditions set by law are complied with, the possessor of the land, by operation of law,
acquires a right to a grant, a government grant, without the necessity of a certificate of title being
issued. The Torrens system was not established as a means for the acquisition of title to private land, as
it merely confirms, but does not confer ownership.[30]

Of particular relevance is the finding of the respondent Court of Appeals to the effect that -

We have found that petitioner-appellee has proven his claim of ownership over the subject property. As
provided in the proclamation itself, his ownership of the subject property must be respected and he
cannot be barred from having the land titled in his name. This does not contravene or negate the
intention of the proclamation. Besides, its implementing Letters of Instruction recognize that there may
be lands declared included in the Slum Improvement Resettlement (SIR) program that are privately
owned. Paragraph 10 of LOI No. 555 provides that if the land declared to be included in the SIR program
is privately owned, the concerned local government, upon the approval by the National Housing
Authority of its project plan, shall acquire the property through expropriation. In LOI No. 686 paragraph
3, it is mandated that the NHA, upon request of the local government, expropriate or otherwise acquire
land for the SIR program. Proclamation No. 679 is, therefore, not a valid justification to deny the
petition.

x x x At the time the Proclamation was issued, the controversy over the subject property was sub-judice.
The conflicting rights over it had been presented to the court for resolution. That jurisdiction could not
be removed from it by subsequent legislation. The President must have been aware of this. Hence, the
inclusion of the cautionary clause subject to existing private rights.[31]
Over time, Courts have recognized with almost pedantic adherence that what is inconvenient or
contrary to reason is not allowed in law - Quod est inconveniens, aut contra rationem non permissum
est in lege. Undoubtedly, reason and law find respondent entitled to rights of ownership over the
disputed property.

ACCORDINGLY, the assailed decision dated February 8, 1993 is hereby AFFIRMED and the instant
petition is hereby DISMISSED.

SO ORDERED.
SECOND DIVISION

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

YOLANDA CADACIO GRANADA,

Respondent.

G. R. No. 187512

Promulgated:

June 13, 2012

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009[1] and 3 April
2009[2] issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial Court (RTC)
of the Petition for Declaration of Presumptive Death of the absent spouse of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at Sumida
Electric Philippines, an electronics

company in Paranaque where both were then working. The two eventually got married at the Manila
City Hall on 3 March 1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio
Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to seek
employment. Yolanda claimed that from that time, she had not received any communication from her
husband, notwithstanding efforts to locate him. Her brother testified that he had asked the relatives of
Cyrus regarding the latters whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead. The
Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was docketed
as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor
General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued that Yolanda had
failed to exert earnest efforts to locate Cyrus and thus failed to prove her well-founded belief that he
was already dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41, Section 2(a)
of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no jurisdiction
over the appeal. She argued that her Petition for Declaration of Presumptive Death, based on Article 41
of the Family Code, was a summary judicial proceeding,

in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on the ground
of lack of jurisdiction. Citing Republic v. Bermudez-Lorino,[3] the CA ruled that a petition for declaration
of presumptive death under Rule 41 of the Family Code is a summary proceeding. Thus, judgment
thereon is immediately final and executory upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution
dated 3 April 2009.[4]

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the Petition on the ground that the Decision of
the RTC in a summary proceeding for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs grant of the Petition for Declaration of
Presumptive Death under Article 41 of the Family Code based on the evidence that respondent
presented

Our Ruling

1. On whether the CA seriously erred in dismissing the Petition on the ground that the Decision
of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to ordinary appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTCs grant
of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family
Code. Citing Republic v. Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary judicial proceeding under the Family
Code. Hence, the RTC Decision therein is immediately final and executory upon notice to the parties, by
express provision of Article 247 of the same Code. The decision is therefore not subject to ordinary
appeal, and the attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding as
provided for under the Family Code.

Further, Title XI of the Family Code is entitled Summary Judicial Proceedings in the Family Law.
Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings
filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for
declaration of presumptive death is a summary proceeding, the judgment of the court therein shall be
immediately final and executory.

In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs affirmation of the RTCs grant
of respondents Petition for Declaration of Presumptive Death of her absent spouse. The Court therein
held that it was an error for the Republic to file a Notice of Appeal when the latter elevated the matter
to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which
to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section
247, Family Code, supra, are immediately final and executory.

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be
stated that the RTCs decision dated November 7, 2001, was immediately final and executory upon
notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due
course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed
the appeal outright on that ground.
 (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic
v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a petition for certiorari
under Rule 65, not a petition for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent
Decision of the Court in Republic v. Jomoc,[7] issued a few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her absent
husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice
of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under

the Rules of Court,[8] a record on appeal is required to be filed when appealing special proceedings
cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for
declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of
special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code
is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to
enable her to contract a subsequent valid marriage, petitioners action was a summary proceeding based
on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of Court.
Considering that this action was not a special proceeding, petitioner was not required to file a record on
appeal when it appealed the RTC Decision to the CA.

We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling in Republic
v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the
characteristics of a summary proceeding under the Family Code. In contrast, the Court in Bermudez-
Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a vehicle for
questioning the trial courts Decision in a summary proceeding for declaration of presumptive death
under Article 41 of the Family Code was intended to set the records straight and for the future guidance
of the bench and the bar.

At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered
in summary proceedings under the Family Code when it ruled in Republic v. Tango:[9]

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
establishes the rules that govern summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three
of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings
filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be immediately
final and executory. As a matter of course, it follows that no appeal can be had of the trial court's
judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under
Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a
petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition
should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be
sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and
the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of
choice of court forum. From the decision of the Court of Appeals, the losing party may then file a
petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is
because the errors which the court may commit in the exercise of jurisdiction are merely errors of
judgment which are the proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal on the
ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondents
spouse was immediately final and executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in affirming the RTCs grant of the Petition for Declaration
of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent had
presented

Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of the absent
spouse of respondent on the ground that she had not adduced the evidence required to establish a well-
founded belief that her absent spouse was already dead, as expressly required by Article 41 of the
Family Code. Petitioner cites Republic v. Nolasco,[10] United States v. Biasbas[11] and Republic v. Court
of Appeals and Alegro[12] as authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant of
respondents Petition for Declaration of Presumptive Death of his absent spouse, a British subject who
left their home in the Philippines soon after giving birth to their son while respondent was on board a
vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the ground that
respondent was not able to establish

his well-founded belief that the absentee is already dead, as required by Article 41 of the Family Code.
In ruling thereon, this Court recognized that this provision imposes more stringent requirements than
does Article 83 of the Civil Code.[13] The Civil Code provision merely requires either that there be no
news that the absentee is still alive; or that the absentee is generally considered to be dead and is
believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil
Code. In comparison, the Family Code provision prescribes a well-founded belief that the absentee is
already dead before a petition for declaration of presumptive death can be granted. As noted by the
Court in that case, the four requisites for the declaration of presumptive death under the Family Code
are as follows:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article
391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.

In evaluating whether the present spouse has been able to prove the existence of a well-founded belief
that the absent spouse is already dead, the Court in Nolasco cited United States v. Biasbas,[14] which it
found to be instructive as to the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the
whereabouts of his first wife, considering his admission that that he only had a suspicion that she was
dead, and that the only basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA
ruling affirming the RTCs grant of the Petition for Declaration of Presumptive Death of the absent
spouse on the ground that the respondent therein had not been able to prove a well-founded belief that
his spouse was already dead. The Court reversed the CA, granted the Petition, and provided the
following criteria for determining the existence of a well-founded belief under Article 41 of the Family
Code:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.
The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-
founded belief that the absent spouse is already dead before the present spouse may contract a
subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon
writes that es menester que su creencia sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by direct
evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or
assist to a determination probably founded in truth. Any fact or circumstance relating to the character,
habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance
or throw light on their intentions, competence [sic] evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or
is already dead. Whether or not the spouse present acted on a well-founded belief of

death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by present spouse. (Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did
not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio testified
to having inquired about the whereabouts of Cyrus from the latters relatives, these relatives were not
presented to corroborate Diosdados testimony. In short, respondent was allegedly not diligent in her
search for her husband. Petitioner argues that if she were, she would have sought information from the
Taiwanese Consular Office or assistance from other government agencies in Taiwan or the Philippines.
She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these
omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her well-founded belief that her
absent spouse was already dead prior to her filing of the Petition to declare him presumptively dead is
already final and can no longer be modified or reversed. Indeed, [n]othing is more settled in law than
that when a judgment becomes final and executory, it becomes immutable and unalterable. The same
may no longer be modified in any respect, even if the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law.[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23 January
2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 94053 March 17, 199

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.

GREGORIO NOLASCO, respondent.

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch
10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article
41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in
the alternative, that the marriage be declared null and void.1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who
had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that
Nolasco did not possess a "well-founded belief that the absent spouse was already dead,"2 and second,
Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" to
circumvent the law on marriage.3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica
Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting
onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they
returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's
contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter from his mother informing him that
Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked permission to leave his ship to return home.
He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship docked in England
proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena
Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all
returned to him. He also claimed that he inquired from among friends but they too had no news of Janet
Monica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker
despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse
to give him such information even after they were married. He also testified that he did not report the
matter of Janet Monica's disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to
leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in
San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving as
she had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave
Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion
of which reads:

Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order No.
209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby declares as
presumptively dead Janet Monica Parker Nolasco, without prejudice to her reappearance.4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet
Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a
well founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the
following allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-founded
belief on the part of Nolasco that Janet Monica Parker was already dead; and

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a
proper case of the declaration of presumptive death under Article 41, Family Code.5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded
belief that his wife is already dead."6

The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded,7 the
following crucial differences emerge. Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry.8 Also, Article 41 of the Family Code imposes a stricter
standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news
that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so
by the spouse present, or is presumed dead under Article 390 and 391 of the Civil Code.9 The Family
Code, upon the other hand, prescribes as "well founded belief" that the absentee is already dead before
a petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive
death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if
the disappearance occurred where there is danger of death under the circumstances laid down in Article
391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of
the absentee. 10

Respondent naturally asserts that he had complied with all these requirements.11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he
had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent
spouse is already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the
defense of a good faith belief that his first wife had already died. The Court held that defendant had not
exercised due diligence to ascertain the whereabouts of his first wife, noting that:

While the defendant testified that he had made inquiries concerning the whereabouts of his wife, he
fails to state of whom he made such inquiries. He did not even write to the parents of his first wife, who
lived in the Province of Pampanga, for the purpose of securing information concerning her whereabouts.
He admits that he had a suspicion only that his first wife was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13
In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable
or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of
Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy, 14
he secured another seaman's contract and went to London, a vast city of many millions of inhabitants,
to look for her there.

Q After arriving here in San Jose, Antique, did you exert efforts to inquire the whereabouts of your
wife?

A Yes, Sir.

Court:

How did you do that?

A I secured another contract with the ship and we had a trip to London and I went to London to
look for her I could not find her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt
on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake,
to wit:

. . . Well, while the cognoscente (sic) would readily know the geographical difference between London
and Liverpool, for a humble seaman like Gregorio the two places could mean one — place in England,
the port where his ship docked and where he found Janet. Our own provincial folks, every time they
leave home to visit relatives in Pasay City, Kalookan City, or Parañaque, would announce to friends and
relatives, "We're going to Manila." This apparent error in naming of places of destination does not
appear to be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or
London with a simple hope of somehow bumping into one particular person there — which is in effect
what Nolasco says he did — can be regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent 17 too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his
wife which respondent claims were all returned to him. Respondent said he had lost these returned
letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial,
it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility
is not synonymous with credibility. 18 As noted before, there are serious doubts to respondent's
credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the
missing spouse had chosen not to communicate with their common acquaintances, and not that she was
dead.

Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he
cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay
of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November
1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker
without inquiring about her parents and their place of residence. 19 Also, respondent failed to explain
why he did not even try to get the help of the police or other authorities in London and Liverpool in his
effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent
behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded
one.

In Goitia v. Campos-Rueda, 20 the Court stressed that:

. . . Marriage is an institution, the maintenance of which in its purity the public is deeply interested. It is
a relationship for life and the parties cannot terminate it at any shorter period by virtue of any contract
they make. . . . . 21 (Emphasis supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of
them leave the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before the trial
court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still
the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of
the law, his petition for a judicial declaration of presumptive death must be denied. The law does not
view marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.

. . . Marriage is a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature, consequences, and incidents are governed by law and
not subject to stipulation, except that marriage settlements may fix the property relations during the
marriage within the limits provided by this Code. (Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of which the State bas the
strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section
12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in Article 149:

The family, being the foundation of the nation, is a basic social institution which public policy cherishes
and protects. Consequently, family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's
decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are
hereby NULLIFIED and SET ASIDE. Costs against respondent.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

Gutierrez, Jr. J., is on leave.