SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,

PEOPLE OF THE PHILIPPINES,

November 29, 2005

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DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R.
CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3,
convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

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

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then
previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA
GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of
said EDUARDO P. MANUEL to Rubylus [Gaa].

CONTRARY TO LAW. [3]

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

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on
April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch
61.[5] It appeared in their marriage contract that Eduardo was single.
The couple was happy during the first three years of their married life. Through their joint efforts, they
were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel
started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and
whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo
took all his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office
(NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-
certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned
that Eduardo was in fact already married when they exchanged their own vows.[8]

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

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

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

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements
of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first
marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate
him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further
ruled that even if the private complainant had known that Eduardo had been previously married, the
latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy
because when he married the private complainant, he did so in good faith and without any malicious
intent. He maintained that at the time that he married the private complainant, he was of the honest
belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised
Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by
malice in marrying the private complainant because he did so only out of his overwhelming desire to
have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the
New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v.
Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on
the Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the
Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need
for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to
marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to
judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the
private complainants knowledge of the first marriage would not afford any relief since bigamy is an
offense against the State and not just against the private complainant.

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

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

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

SO ORDERED.[17]

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

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

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

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

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon
the satisfaction of two requirements: the

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

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

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

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

The petition is denied for lack of merit.

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

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

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

El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser
castigado con la pena de prision mayor. xxx

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

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she
has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage
having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or
subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage,
having all the essential requirements, would be valid were it not for the subsistence of the first
marriage.[23] Viada avers that a third element of the crime is that the second marriage must be entered
into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24]
On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the
existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second
marriage. It does not matter whether the first marriage is void or voidable because such marriages have
juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled in
Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the
judicial declaration of nullity of a previous marriage is a defense.

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

This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle
antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no
willfulness there is no crime. There is no willfulness if the subject

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

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

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or
justification from which another suffers injury.[32] When the act or omission defined by law as a felony
is proved to have been done or committed by the accused, the law presumes it to have been
intentional.[33] Indeed, it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34]

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

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

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

It was the burden of the petitioner to prove his defense that when he married the private complainant
in 1996, he was of the well-grounded belief

that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He
should have adduced in evidence a decision of a competent court declaring the presumptive death of his
first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family
Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as a consequence, he
could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden.
The phrase or before the absent spouse has been declared presumptively dead by means of a judgment
rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty
or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for
the benefit of the spouse present, as protection from the pains and the consequences of a second
marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good
faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of
the Constitution, the State shall protect and strengthen the family as a basic autonomous social
institution. Marriage is a social institution of the highest importance. Public policy, good morals and the
interest of society require that the marital relation should be surrounded with every safeguard and its
severance only in the manner prescribed and the causes specified by law.[37] The laws regulating civil
marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the
community and the parties can waive nothing essential to the validity of the proceedings. A civil
marriage anchors an ordered society by encouraging stable relationships over transient ones; it
enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving
State. On marriage, the parties assume new relations to each other and the State touching nearly on
every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent
parties and to society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the presumptive death of
the absent spouse[38] after the lapse of the period provided for under the law. One such means is the
requirement of the declaration by a competent court of the presumptive death of an absent spouse as
proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death
of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists.
To sustain a second marriage and to vacate a first because one of the parties believed the other to be
dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily
capable of forensic ascertainment and proof, but by the subjective condition of individuals.[39] Only
with such proof can marriage be treated as so dissolved as to permit second marriages.[40] Thus, Article
349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the
personal belief of parties, but upon certain objective facts easily capable of accurate judicial
cognizance,[41] namely, a judgment of the presumptive death of the absent spouse.

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

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he
shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.

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

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

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

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present had a 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 Court for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.[43]

With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article
390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may
contract a subsequent marriage, he or she must institute summary proceedings for the declaration of
the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance
of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years, or two years where there is danger
of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b)
the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is,
unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the
spouse present can institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial intervention in subsequent
marriages as so provided in Article 41, in relation to Article 40, of the Family Code.

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

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage
law, it is not necessary to have the former spouse judicially declared an absentee before the spouse
present may contract a subsequent marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary
precautions for the administration of the estate of the absentee. For the celebration of civil marriage,
however, the law only requires that the former spouse had been absent for seven consecutive years at
the time of the second marriage, that the spouse present does not know his or her former spouse to be
living, that such former spouse is generally reputed to be dead and the spouse present so believes at the
time of the celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial
declaration that a person is presumptively dead, because he or she had been unheard from in seven
years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of
finality or become final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such particular fact finally
determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he
or she had not been heard from in seven years cannot become final and executory even after the lapse
of the reglementary period within which an appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable
time and be made to perform a superfluous and meaningless act.[50] The Court also took note that a
petition for a declaration of the presumptive death of an absent spouse may even be made in collusion
with the other spouse.

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

Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the
absent spouse has been declared presumptively dead by means of a judgment reached in the proper
proceedings is erroneous and should be considered as not written. He opined that such provision
presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous.
He maintains that the supposition is not true.[53] A second marriage is bigamous only when the
circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator
Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of
dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith
will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should
not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the
case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse
present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56]

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

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

The above Article of the Family Code now clearly provides that for the purpose of the present spouse
contracting a second marriage, he or she must file a summary proceeding as provided in the Code for
the declaration of the presumptive death of the absentee, without prejudice to the latters
reappearance. This provision is intended to protect the present spouse from a criminal prosecution for
bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing
spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is
already established.[58]

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

Dean Pineda further states that before, the weight of authority is that the clause before the absent
spouse has been declared presumptively dead x x x should be disregarded because of Article 83,
paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for
the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59]
According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law,
in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of
presumptive death, which could then be made only in the proceedings for the settlement of his
estate.[60] Before such declaration, it was held that the remarriage of the other spouse is bigamous
even if done in good faith.[61] Justice Regalado opined that there were contrary views because of the
ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have
been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration
of presumptive death of the absent spouse before the other spouse can remarry.

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

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

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

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

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

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendants wrongful act or omission.[65] An award for moral damages requires the confluence of the
following conditions: first, there must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or omission factually established; third,
the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the
claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or
Article 2220 of the Civil Code.[66]
Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in
Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may
also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9
of this article in the order named.

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

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the
offender may be ordered to pay moral damages to the private complainant/offended party.
Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in
relation to Articles 19, 20 and 21 of the Civil Code.
According to Article 19, every person must, in the exercise of his rights and in the performance of his act
with justice, give everyone his due, and observe honesty and good faith. This provision contains what is
commonly referred to as the principle of abuse of rights, and sets certain standards which must be
observed not only in the exercise of ones rights but also in the performance of ones duties. The
standards are the following: act with justice; give everyone his due; and observe honesty and good faith.
The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c)
for the sole intent of prejudicing or injuring another.[69]

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide
for its own sanction. When a right is exercised in a manner which does not conform to the standards set
forth in the said provision and results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be responsible.[70] If the provision does not provide a remedy for its
violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper.
Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to
another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person
who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for damages. The latter provision

is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs
helpless, even though they have actually suffered material and moral injury should vouchsafe adequate
legal remedy for that untold number of moral wrongs which it is impossible for human foresight to
prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated
resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law
depends upon the circumstances of each case.[71]

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

Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless
deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he
maintained the appearance of being a lawful husband to the private complainant, who

changed her status from a single woman to a married woman, lost the consortium, attributes and
support of a single man she could have married lawfully and endured mental pain and humiliation, being
bound to a man who it turned out was not her lawful husband.[72]
The Court rules that the petitioners collective acts of fraud and deceit before, during and after his
marriage with the private complainant were willful, deliberate and with malice and caused injury to the
latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed,
in Morris v. Macnab,[73] the New Jersey Supreme Court ruled:

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

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

Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred
from claiming moral damages. Besides, even considerations of public policy would not prevent her from
recovery. As held in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act which, in

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

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been
maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819;
Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery
where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal
action was induced solely by the defendants misrepresentation, and that she does not base her cause of
action upon any transgression of the law by herself. Such considerations

distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a
contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act
upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A.
L. R. 958.[76]

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

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is
AFFIRMED. Costs against the petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice
 . 187061, October 08, 2014

CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.

DECISION

LEONEN, J.:

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.

This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of Appeals'
resolutions dated November 28, 2008 and March 5, 2009. The Court of Appeals dismissed the petition for
the annulment of the trial court's judgment declaring her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for
declaration of absence or presumptive death for the purpose of remarriage on June 15, 2007.1 Ricardo
remarried on September 17, 2008.2 chanro bles law

In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented
an apartment somewhere in San Juan, Metro Manila; after they had gotten married on June 18, 1980.3 After
a year, they moved to Tarlac City. They were engaged in the buy and sell business.4 chan robles law

Ricardo claimed that their business did not prosper.5 As a result, Celerina convinced him to allow her to work
as a domestic helper in Hong Kong.6 Ricardo initially refused but because of Celerina's insistence, he allowed
her to work abroad.7 She allegedly applied in an employment agency in Ermita, Manila, in February 1995.
She left Tarlac two months after and was never heard from again.8 chanrobles law

Ricardo further alleged that he exerted efforts to locate Celerina.9 He went to Celerina's parents in Cubao,
Quezon City, but they, too, did not know their daughter's whereabouts.10 He also inquired about her from
other relatives and friends, but no one gave him any information.11 chanro bleslaw

Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition since Celerina
left. He believed that she had passed away.12 chanroble slaw

Celerina claimed that she learned about Ricardo's petition only sometime in October 2008 when she could
no longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies.13 chan roble slaw

On November 17, 2008, Celerina filed a petition for annulment of judgment14 before the Court of Appeals on
the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court
when Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a
resident of Tarlac City.15 According to Celerina, her true residence was in Neptune Extension, Congressional
Avenue, Quezon City.16 This residence had been her and Ricardo's conjugal dwelling since 1989 until Ricardo
left in May 2008.17 As a result of Ricardo's misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively dead.18 c hanro bles law

Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper
abroad.20 Neither did she go to an employment agency in February 1995.21 She also claimed that it was not
true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in
Quezon City.22 It was he who left the conjugal dwelling in May 2008 to cohabit with another
woman.23 Celerina referred to a joint affidavit executed by their children to support her contention that
Ricardo made false allegations in his petition.24 cha nro bleslaw

Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition because it had never
been published in a newspaper.25 She added that the Office of the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies of Ricardo's petition.26 cha nrob leslaw

The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's petition for
annulment of judgment for being a wrong mode of remedy.27 According to the Court of Appeals, the proper
remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance
with Article 42 of the Family Code.28 chanrob leslaw

Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated November 28,
2008.29 The Court of Appeals denied the motion for reconsideration in the resolution dated March 5,
2009.30chan robles law

Hence, this petition was filed.

The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's petition for annulment
of judgment for being a wrong remedy for a fraudulently obtained judgment declaring presumptive death.

Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is appropriate
only when the spouse is actually absent and the spouse seeking the declaration of presumptive death
actually has a well-founded belief of the spouse's death.31 She added that it would be inappropriate to file an
affidavit of reappearance if she did not disappear in the first place.32 She insisted that an action for
annulment of judgment is proper when the declaration of presumptive death is obtained fraudulently.33 chan roble slaw

Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family Code would not
be a sufficient remedy because it would not nullify the legal effects of the judgment declaring her
presumptive death.34 chan roble slaw

In Ricardo's comment,35 he argued that a petition for annulment of judgment is not the proper remedy
because it cannot be availed when there are other remedies available. Celerina could always file an affidavit
of reappearance to terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling that the
remedy afforded to Celerina under Article 42 of the Family Code is the appropriate remedy.

The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has
become final, and the "remedies of new trial, appeal, petition for relief (or other appropriate remedies) are
no longer available through no fault of the petitioner."36 chanrob leslaw

The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.37 This court defined
extrinsic fraud in Stilianopulos v. City of Legaspi:38 chanro bleslaw

For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when
the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud
were or could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial
which prevents a parly from having a real contest, or from presenting all of his case, such that there is no
fair submission of the controversy.39 (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo deliberately
made false allegations in the court with respect to her residence.40 Ricardo also falsely claimed that she was
absent for 12 years. There was also no publication of the notice of hearing of Ricardo's petition in a
newspaper of general circulation.41 Celerina claimed that because of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to declare her presumptively dead.42 c han robles law

Celerina alleged that all the facts supporting Ricardo's petition for declaration of presumptive death were
false.43 Celerina further claimed that the court did not acquire jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office were not given copies of Ricardo's petition.44 cha nrob leslaw

These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her petition with the Court
of Appeals sufficient ground/s for annulment of judgment.

Celerina filed her petition for annulment of judgment45 on November 17, 2008. This was less than two years
from the July 27, 2007 decision declaring her presumptively dead and about a month from her discovery of
the decision in October 2008. The petition was, therefore, filed within the four-year period allowed by law in
case of extrinsic fraud, and before the action is barred by laches, which is the period allowed in case of lack
of jurisdiction.46 chan roble slaw

There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud
perpetrated on her.

The choice of remedy is important because remedies carry with them certain admissions, presumptions, and
conditions.

The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with
a well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a
justification for a second marriage during the subsistence of another marriage.47 chanrob leslaw

The Family Code also provides that the second marriage is in danger of being terminated by the
presumptively dead spouse when he or she reappears. Thus: chanRoblesvi rt ual Lawlib rary

Article 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 initio.

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. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the
subsequent marriage by mere reappearance.

The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her
marriage to the present spouse was terminated when he or she was declared absent or presumptively dead.

Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by
reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous
marriage or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the
subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to
the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must
either be undisputed or judicially determined.

The existence of these conditions means that reappearance does not always immediately cause the
subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause
the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are
present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's
reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the
sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed
in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption
arises that the first spouse is already dead and that the second marriage is legal. This presumption should
prevail over the continuance of the marital relations with the first spouse.48 The second marriage, as with all
marriages, is presumed valid.49 The burden of proof to show that the first marriage was not properly
dissolved rests on the person assailing the validity of the second marriage.50 chan roble slaw

This court recognized the conditional nature of reappearance as a cause for terminating the subsequent
marriage in Social Security System v. Vda. de Bailon.51 This court noted52 that mere reappearance will not
terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was
"no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or
by court action[.]"53 "Since the second marriage has been contracted because of a presumption that the
former spouse is dead, such presumption continues inspite of the spouse's physical reappearance, and
by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law."54 chanrobles law

The choice of the proper remedy is also important for purposes of determining the status of the second
marriage and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may be
considered valid when the following are present: cha nRoblesvi rtua lLaw lib rary

1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was already dead;
3) There must be a summary proceeding for the declaration of presumptive death of the absent
spouse; and
4) There is a court declaration of presumptive death of the absent spouse.55

A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of
presumptive death, lacks the requirement of a well-founded belief56 that the spouse is already dead. The
first marriage will not be considered as. validly terminated. Marriages contracted prior to the valid
termination of a subsisting marriage are generally considered bigamous and void.57 Only a subsequent
marriage contracted in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action
to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the
subsistence of another marriage still applies.58 cha nrob leslaw

If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively
dead and when he contracted the subsequent marriage, such marriage would be considered void for being
bigamous under Article 35(4) of the Family Code. This is because the circumstances lack the element of
"well-founded belief under Article 41 of the Family Code, which is essential for the exception to the rule
against bigamous marriages to apply.59 chanro bles law

The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent
marriage does not preclude the spouse who was declared presumptively dead from availing other remedies
existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by
filing "an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage."60 chanroble slaw

Celerina does not admit to have been absent. She also seeks not merely the termination of the subsequent
marriage but also the nullification of its effects. She contends that reappearance is not a sufficient remedy
because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her
presumptive death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid
until terminated, the "children of such marriage shall be considered legitimate, and the property relations of
the spouse[s] in such marriage will be the same as in valid marriages."61 If it is terminated by mere
reappearance, the children of the subsequent marriage conceived before the termination shall still be
considered legitimate.62 Moreover, a judgment declaring presumptive death is a defense against prosecution
for bigamy.63chan robles law

It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the
effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of
prosecuting a respondent for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband
or wife."64 This means that even if Celerina is a real party in interest who stands to be benefited or injured
by the outcome of an action to nullify the second marriage,65 this remedy is not available to her.

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. Celerina's choice to file an action for annulment of judgment will, therefore,
lie.

WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the existence of
extrinsic fraud, grounds for nullity/annulment of the first marriage, and the merits of the petition.

SO ORDERED. cralawlawlibra ry

Carpio, (Chairperson), Del Castillo, Mendoza, and Perlas-Bernabe,* JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION

BRION, J.:

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15,
2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc.
Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband,
presumptively dead under Article 41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband
and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by: (1) the respondent’s inability to
reach "sexual climax" whenever she and Jerry would have intimate moments; and (2) Jerry’s
expression of animosity toward the respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent
ever saw him. Since then, she had not seen, communicated nor heard anything from Jerry or about
his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition4for her husband’s declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded belief that Jerry
was already dead. She alleged that she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding Jerry, she
also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring
Jerry presumptively dead. It concluded that the respondent had a well-founded belief that her
husband was already dead since more than four (4) years had passed without the former receiving
any news about the latter or his whereabouts. The dispositive portion of the order dated December
15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F. Cantor.5

The Ruling of the CA

The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the
CA dismissed the petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, and,
accordingly, fully affirmed the latter’s order, thus:

WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed
Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED
in toto.7

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner
contends that certiorari lies to challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Rule 41 of the Family
Code. It maintains that although judgments of trial courts in summary judicial proceedings, including
presumptive death cases, are deemed immediately final and executory (hence, not appeal able
under Article 247 of the Family Code), this rule does not mean that they are not subject to review
on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husband’s presumptive death. It claims that the respondent failed to conduct the
requisite diligent search for her missing husband. Likewise, the petitioner invites this Court’s
attention to the attendant circumstances surrounding the case, particularly, the degree of search
conducted and the respondent’s resultant failure to meet the strict standard under Article 41 of the
Family Code.

The Issues

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts
in petitions for declaration of presumptive death of an absent spouse under Article 41 of the
Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the court’s judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.

Article 41,in relation to Article 247, 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.

Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as against
the parties but even as against the courts.8 Modification of the court’s ruling, no matter how
erroneous is no longer permissible. The final and executory nature of this summary proceeding thus
prohibits the resort to appeal. As explained in Republic of the Phils. v. Bermudez-Lorino,9 the right to
appeal is not granted to parties because of the express mandate of Article 247 of the Family Code,
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 [Article] 247, Family Code, supra, are "immediately final and executory." It was erroneous,
therefore, on the part of the RTCto give due course to the Republic’s 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, "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. [emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence
tells us that no appeal can be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse
of discretion amounting to lack or excess of jurisdiction that transpired.

As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not
automatically negate the original action of the CA to issue certiorari, prohibition and mandamus in
connection with orders or processes issued by the trial court. Certiorari may be availed of where a
court has acted without or in excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:

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 2and 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 ina 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. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of
Court to question the RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code
Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:

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.12

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of
the Family Code are present. Since it is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the
burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere
allegation is not evidence.13

Declaration of Presumptive Death

Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death can be granted. We have had
occasion to make the same observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:

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. 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 Articles 390 and 391 of the Civil Code. 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.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that
such absentee is still alive, failure to communicate or general presumption of absence under the
Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family
Code places upon the present spouse the burden of proving the additional and more stringent
requirement of "well-founded belief" which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, that the absent spouse is still alive or is already dead.15

The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the absent spouseis already
dead. It requires exertion of active effort (not a mere passive one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the
following relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present
spouse failed to prove that he had a well-founded belief that his absent spouse was already dead
before he filed his petition. His efforts to locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among his
friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court
found that he failed to present the persons from whom he allegedly made inquiries and only reported
his wife’s absence after the OSG filed its notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief"
under Article 41 of the Family Code:

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 [the] present spouse.18

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing of the petition. In this case, the present
spouse alleged that her brother had made inquiries from their relatives regarding the absent
spouse’s whereabouts. The present spouse did not report to the police nor seek the aid of the mass
media. Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth Div.),20 the
Court ruled against the present spouse, as follows:

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 inquiredabout the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s 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.

iii.Republic v. Nolasco21

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who
had been missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The
Court ruled that the present spouse’s investigations were too sketchy to form a basis that his
wife was already dead and ruled that the pieces of evidence only proved that his wife had
chosen not to communicate with their common acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry, which consisted of the following:

(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends;
and

(2) Whenever she went to a hospital, she saw to it that she looked through the patients’
directory, hoping to find Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by
jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be inferred from the
1âwphi 1

records that her hospital visits and her consequent checking of the patients’ directory therein were
unintentional. She did not purposely undertake a diligent search for her husband as her hospital
visits were not planned nor primarily directed to look for him. This Court thus considers these
attempts insufficient to engender a belief that her husband is dead.
Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to
look for him. While a finding of well-founded belief varies with the nature of the situation in which the
present spouse is placed, under present conditions, we find it proper and prudent for a present
spouse, whose spouse had been missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present spouse’s bare assertion that he
inquired from his friends about his absent spouse’s whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a well-
founded belief other than her bare claims that she inquired from her friends and in-laws about her
husband’s whereabouts. In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search because her alleged efforts are insufficient to form a
well-founded belief that her husband was already dead. As held in Republic of the Philippines v.
Court of Appeals (Tenth Div.),22 "[w]hether 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
natureand extent of the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the "strictstandard" approach. This is to ensure that a petition for
declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently circumvent the laws. Courts should never allow procedural shortcuts and should ensure
that the stricter standard required by the Family Code is met. In Republic of the Philippines v. Court
of Appeals (Tenth Div.),23 we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even
possible that those who cannot have their marriages xxx declared null and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature
of its proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s
policy to protect and strengthen the institution of marriage.24 Since marriage serves as the family’s
foundation25 and since it is the state’s policy to protect and strengthen the family as a basic social
institution,26 marriage should not be permitted to be dissolved at the whim of the parties. In
interpreting and applying Article 41, this is the underlying rationale –to uphold the sanctity of
marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we stressed:
[The]protection of the basic social institutions of marriage and the family in the preservation of which
the State has 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.

Strict Standard Prescribed Under

Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the
application of a stringent standard for its issuance) is also for the present spouse's benefit. It is
intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court's
declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present
spouse's good faith in contracting a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated.28 Thus, for purposes of remarriage, it is necessary to strictly
comply with the stringent standard and have the absent spouse judicially declared presumptively
dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We need only
to cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard necessitates a denial. To rectify
this situation, lower courts are now expressly put on notice of the strict standard this Court requires
in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of
Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby
REVERSED and SET ASIDE.

SO ORDERED.

ARTURO D. BRION
Associate Justice
 MA. ELENA R. DIVINAGRACIA, AS ADMINISTRATRIX OF THE ESTATE OF THE LATE SANTIAGO C.
DIVINAGRACIA, Petitioner, v. CORONACION PARILLA, CELESTIAL NOBLEZA, CECILIA LELINA,
CELEDONIO NOBLEZA, AND MAUDE NOBLEZA, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated March 26, 2009 and the
Resolution3 dated April 6, 2011 of the Court of Appeals (CA) in CA-G.R. CV. No. 80167, which set aside the
Decision4 dated November 29, 2002 and the Order5 dated April 4, 2003 of the Regional Trial Court of Iloilo
City, Branch 31 (RTC) in Civil Case No. 19003 and, consequently, dismissed Santiago C. Divinagracia’s
(Santiago) complaint for judicial partition.

The Facts

Conrado Nobleza, Sr. (Conrado, Sr.) owned a 313-square meter parcel of land located at Cor. Fuentes-
Delgado Streets, Iloilo City denominated as Lot 133-B-1-A and covered by Transfer Certificate of Title (TCT)
No. T-12255 (subject land). 6 During his lifetime, he contracted two marriages: (a) the first was with Lolita
Palermo with whom he had two (2) children, namely, Cresencio and Conrado, Jr.; and (b) the second was
with Eusela Niangar with whom he had seven (7) children, namely, Mateo, Sr., Coronacion, Cecilia, Celestial,
Celedonio, Ceruleo,7 and Cebeleo, Sr. Conrado, Sr. also begot three (3) illegitimate children, namely,
Eduardo, Rogelio, and Ricardo.8 Mateo, Sr. pre-deceased Conrado, Sr. and was survived by his children
Felcon, Landelin, Eusela, Giovanni, Mateo, Jr., Tito, and Gaylord. Cebeleo, Sr. also pre-deceased his father
and was survived by his wife, Maude, and children Cebeleo, Jr. and Neobel.9

According to Santiago, upon Conrado, Sr.’s death, Cresencio, Conrado, Jr., Felcon (in representation of his
father, Mateo, Sr., and his siblings), Coronacion, Celestial, Cecilia, Rogelio, Eduardo, and Ricardo sold their
respective interests over the subject land to Santiago for a consideration of P447,695.66, as embodied in a
Deed of Extrajudicial Settlement or Adjudication with Deed of Sale10 dated November 22, 1989 (subject
document),11 which was, however, not signed by the other heirs who did not sell their respective shares,
namely, Ceruleo, Celedonio, and Maude (in representation of his husband, Cebeleo, Sr., and their
children).12 On December 22, 1989, the same parties executed a Supplemental Contract13whereby the
vendors-heirs and Santiago agreed that out of the aforesaid consideration, only P109,807.93 will be paid up
front, and that Santiago will only pay the remaining balance of P337,887.73 upon the partition of the subject
land.14 However, Santiago was not able to have TCT No. T-12255 cancelled and the subject document
registered because of Ceruleo, Celedonio, and Maude’s refusal to surrender the said title. This fact, coupled
with Ceruleo, Celedonio, and Maude’s failure to partition the subject land, prompted Santiago to file a
Complaint15 dated January 3, 1990 for judicial partition and for receivership.16

For their part, Ceruleo, Celedonio, and Maude maintained that Santiago had no legal right to file an action
for judicial partition nor compel them to surrender TCT No. T-12255 because, inter alia: (a) Santiago did not
pay the full purchase price of the shares sold to him; and (b) the subject land is a conjugal asset of Conrado
Sr. and Eusela Niangar and, thus, only their legitimate issues may validly inherit the same.17

The RTC Ruling

In a Decision18 dated November 29, 2002, the RTC ordered, among others, the partition of the subject land
between Santiago on the one hand, and Ceruleo, Celedonio, Maude, and the heirs of Mateo, Sr. (i.e.,
Felcon, et al.) on the other hand and, consequently, the cancellation of TCT No. T-12255 and the issuance of
a new owner’s duplicate certificate in favor of Santiago and the group of Ceruleo, Celedonio, Maude, and the
heirs of Mateo, Sr.19 The RTC found that through the subject document, Santiago became a co-owner of the
subject land and, as such, has the right to demand the partition of the same. However, the RTC held that
Santiago did not validly acquire Mateo, Sr.’s share over the subject land, considering that Felcon admitted
the lack of authority to bind his siblings with regard to Mateo, Sr.’s share thereon.20

On reconsideration21 of Ceruleo and herein respondents Celedonio, Maude, Celestial, Coronacion, and Cecilia
(respondents), the RTC issued an Order22 dated April 4, 2003 further ordering Santiago to comply with the
provisions of the Supplemental Contract dated December 22, 1989 by paying the amount of P337,887.73
upon the partition of the subject land.
Dissatisfied, respondents appealed23 to the CA. Records are bereft of any showing that the other heirs made
similar appeals thereto.

The CA Ruling

In a Decision24 dated March 26, 2009, the CA set aside the RTC Rulings and, consequently, dismissed
Santiago’s complaint for judicial partition.25 It held that Felcon’s siblings, as well as Maude’s children, are
indispensable parties to the judicial partition of the subject land and, thus, their non-inclusion as defendants
in Santiago’s complaint would necessarily result in its dismissal.26

Aggrieved, the heirs of Santiago27 moved for reconsideration28 which was, however, denied in a
Resolution29 dated April 6, 2011, hence, this petition instituted by herein petitioner, Ma. Elena R.
Divinagracia, as administratrix of Santiago’s estate.

The Issues Before the Court

The issues for the Court’s resolution are whether or not the CA correctly: (a) ruled that Felcon’s siblings and
Cebeleo, Sr. and Maude’s children are indispensable parties to Santiago’s complaint for judicial partition;
and (b) dismissed Santiago’s complaint for his failure to implead said omitted heirs.

The Court’s Ruling

The petition is partly meritorious.

An indispensable party is one whose interest will be affected by the court’s action in the litigation, and
without whom no final determination of the case can be had. The party’s interest in the subject matter of
the suit and in the relief sought are so inextricably intertwined with the other parties’ that his legal presence
as a party to the proceeding is an absolute necessity. In his absence, there cannot be a resolution of the
dispute of the parties before the court which is effective, complete, or equitable.30 Thus, the absence of an
indispensable party renders all subsequent actions of the court null and void, for want of authority to act,
not only as to the absent parties but even as to those present.31

With regard to actions for partition, Section 1, Rule 69 of the Rules of Court requires that all persons
interested in the property shall be joined as defendants, viz.:

SEC. 1. Complaint in action for partition of real estate. – A person having the right to compel the partition of
real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title
and an adequate description of the real estate of which partition is demanded and joining as defendants
all other persons interested in the property. (Emphasis and underscoring supplied)

Thus, all the co-heirs and persons having an interest in the property are indispensable parties; as such, an
action for partition will not lie without the joinder of the said parties.32

In the instant case, records reveal that Conrado, Sr. has the following heirs, legitimate and illegitimate, who
are entitled to a pro-indiviso share in the subject land, namely: Conrado, Jr., Cresencio, Mateo, Sr.,
Coronacion, Cecilia, Celestial, Celedonio, Ceruleo, Cebeleo, Sr., Eduardo, Rogelio, and Ricardo. However,
both Mateo, Sr. and Cebeleo, Sr. pre-deceased Conrado, Sr. and, thus, pursuant to the rules on
representation under the Civil Code,33 their respective interests shall be represented by their children,
namely: (a) for Mateo, Sr.: Felcon, Landelin, Eusela, Giovanni, Mateo, Jr., Tito, and Gaylord; and (b) for
Cebeleo, Sr.: Cebeleo, Jr. and Neobel.34

The aforementioned heirs – whether in their own capacity or in representation of their direct ascendant –
have vested rights over the subject land and, as such, should be impleaded as indispensable parties in an
action for partition thereof. However, a reading of Santiago’s complaint shows that as regards Mateo, Sr.’s
interest, only Felcon was impleaded, excluding therefrom his siblings and co-representatives. Similarly, with
regard to Cebeleo, Sr.’s interest over the subject land, the complaint impleaded his wife, Maude, when
pursuant to Article 97235 of the Civil Code, the proper representatives to his interest should have been his
children, Cebeleo, Jr. and Neobel. Verily, Santiago’s omission of the aforesaid heirs renders his complaint for
partition defective.

Santiago’s contention that he had already bought the interests of the majority of the heirs and, thus, they
should no longer be regarded as indispensable parties deserves no merit. As correctly noted by the CA, in
actions for partition, the court cannot properly issue an order to divide the property, unless it first makes a
determination as to the existence of co-ownership. The court must initially settle the issue of ownership,
which is the first stage in an action for partition.36 Indubitably, therefore, until and unless this issue of co-
ownership is definitely and finally resolved, it would be premature to effect a partition of the disputed
properties.37

In this case, while it is conceded that Santiago bought the interests of majority of the heirs of Conrado, Sr.
as evidenced by the subject document, as a vendee, he merely steps into the shoes of the vendors-heirs.
Since his interest over the subject land is merely derived from that of the vendors-heirs, the latter should
first be determined as co-owners thereof, thus necessitating the joinder of all those who have vested
interests in such land, i.e., the aforesaid heirs of Conrado, Sr., in Santiago’s complaint.

In fine, the absence of the aforementioned indispensable parties in the instant complaint for judicial partition
renders all subsequent actions of the RTC null and void for want of authority to act, not only as to the
absent parties, but even as to those present.38 Therefore, the CA correctly set aside the November 29, 2002
Decision and the April 4, 2003 Order of the RTC.

However, the CA erred in ordering the dismissal of the complaint on account of Santiago’s failure to implead
all the indispensable parties in his complaint. In Heirs of Mesina v. Heirs of Fian, Sr.,39 the Court definitively
explained that in instances of non-joinder of indispensable parties, the proper remedy is to implead them
and not to dismiss the case, to wit:

The non-joinder of indispensable parties is not a ground for the dismissal of an action. At any
stage of a judicial proceeding and/or at such times as are just, parties may be added on the motion of a
party or on the initiative of the tribunal concerned. If the plaintiff refuses to implead an indispensable party
despite the order of the court, that court may dismiss the complaint for the plaintiff’s failure to comply with
the order. The remedy is to implead the non-party claimed to be indispensable. x x x40 (Underscoring
supplied; emphases in the original)

In view of the foregoing, the correct course of action in the instant case is to order its remand to the RTC for
the inclusion of those indispensable parties who were not impleaded and for the disposition of the case on
the merits.41

WHEREFORE, the petition is PARTLY GRANTED. Accordingly, the Decision dated March 26, 2009 and the
Resolution dated April 6, 2011 of the Court of Appeals in CA-G.R. CV. No. 80167, setting aside the Decision
dated November 29, 2002 and the Order dated April 4, 2003 of the Regional Trial Court of Iloilo City, Branch
31 in Civil Case No. 19003, are hereby AFFIRMED with MODIFICATION REMANDING the instant case to
the court a quo, which is hereby DIRECTED to implead all indispensable parties and,
thereafter, PROCEED with the resolution of the case on the merits WITH DISPATCH.

SO ORDERED.
FIRST DIVISION

CECILIO C. HERNANDEZ, G.R. No. 166470

MA. VICTORIA C. HERNANDEZ-

SAGUN, TERESA C. HERNANDEZ-

VILLA ABRILLE[1] and NATIVIDAD Present:

CRUZ-HERNANDEZ,

Petitioners, PUNO, C.J., Chairperson,

CARPIO,

CORONA,

LEONARDO-DE CASTRO and

- v e r s u s - BERSAMIN, JJ.

JOVITA SAN JUAN-SANTOS,

Respondent.

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

CECILIO C. HERNANDEZ, G.R. No. 169217

MA. VICTORIA C. HERNANDEZ-

SAGUN and TERESA C.

HERNANDEZ-VILLA ABRILLE,

Petitioners,

-versus-

JOVITA SAN JUAN-SANTOS,[2]

Respondent. Promulgated:

August 7, 2009
x--------------------------------------------------x

DECISION

CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the spouses Felix
Hernandez and Maria San Juan Hernandez. Unfortunately, the latter died due to complications during
childbirth. After Maria's death, Felix left Lulu in the care of her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three children, petitioners
Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited valuable real
properties from the San Juan family (conservatively estimated at P50 million in 1997).

Sometime in 1957, Lulu went to live with her father and his new family. She was then 10 years old and
studying at La Consolacion College. However, due to her violent personality, Lulu stopped schooling
when she reached Grade 5.

In 1968, upon reaching the age of majority, Lulu was given full control of her estate.[3] Nevertheless,
because Lulu did not even finish her elementary education, Felix continued to exercise actual
administration of Lulus properties. Upon Felix's death in 1993, petitioners took over the task of
administering Lulu's properties.

During the period of their informal administration (from 1968 until 1993), Felix and petitioners
undertook various projects involving Lulus real properties. In 1974, Felix allegedly purchased one of
Lulus properties for an undisclosed amount to develop the Marilou Subdivision.[4] In 1995, Ma. Victoria
informed Lulu that her 11-hectare Montalban, Rizal property[5] was under litigation. Thus, Lulu signed a
special power of attorney[6] (SPA) believing that she was authorizing Ma. Victoria to appear in court on
her behalf when she was in fact unknowingly authorizing her half-sister to sell the said property to the
Manila Electric Company for P18,206,400.[7] Thereafter, Cecilio asked Lulu to authorize him to lease her
45-hectare property in Montalban, Rizal to Oxford Concrete Aggregates for P58,500 per month so that
she could have a car and driver at her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin, respondent Jovita San Juan-
Santos, after learning that petitioners had been dissipating her estate. She confided to Jovita that she
was made to live in the basement of petitioners Montalban, Rizal home and was receiving a measly daily
allowance of P400 for her food and medication.

Respondent was appalled as Lulu was severely overweight, unkempt and smelled of urine. She later
found out that Lulu was occupying a cramped room lit by a single fluorescent lamp without running
water. Since she had not been given a proper toilet, Lulu urinated and defecated in the garden. Due to
Lulu's poor hygiene, respondent brought her to several physicians for medical examination. Lulu was
found to be afflicted with tuberculosis, rheumatism and diabetes from which she was suffering several
complications.[8]

Thereafter, the San Juan family demanded an inventory and accounting of Lulus estate from
petitioners.[9] However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship[10] in the Regional Trial Court (RTC) of
San Mateo, Rizal, Branch 76. She alleged that Lulu was incapable of taking care of herself and managing
her estate because she was of weak mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose the same.

Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late husband were the
registered owners of the said property, it was allegedly part of their conjugal partnership.

Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulus competency had been
settled in 1968 (upon her emancipation) when the court ordered her legal guardian and maternal uncle,
Ciriaco San Juan, to deliver the properties for her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of the consequences of
executing an SPA. Furthermore, whether or not Cecilio and Ma. Victoria acted within the scope of their
respective authorities could not be determined in a guardianship proceeding, such matter being the
proper subject of an ordinary civil action.

Petitioners also admitted that the property developed into the Marilou Subdivision was among those
parcels of land Lulu inherited from the San Juan family. However, because the sale between Felix and
Lulu had taken place in 1974, questions regarding its legality were already barred by the statute of
limitations. Thus, its validity could no longer be impugned, or so they claimed.

During the hearing, Lulu was presented and asked to testify on her genealogy and experiences with the
San Juan and Hernandez families. Lulu identified and described her parents, stepmother, half-siblings
and maternal relatives. She claimed inheriting tracts of land from the San Juan family. However, these
properties were dissipated by the Hernandez family as they lived a luxurious lifestyle. When asked to
explain this allegation, Lulu said that her stepmother and half-siblings rode in cars while she was made
to ride a tricycle.

Medical specialists testified to explain the results of Lulus examinations which revealed the alarming
state of her health.[11] Not only was Lulu severely afflicted with diabetes mellitus and suffering from its
complications,[12] she also had an existing artheroselorotic cardiovascular disease (which was aggravated
by her obesity). Furthermore, they unanimously opined that in view of Lulus intelligence level (which
was below average) and fragile mental state, she would not be able to care for herself and self-
administer her medications.

In a decision dated September 25, 2001,[13] the RTC concluded that, due to her weak physical and mental
condition, there was a need to appoint a legal guardian over the person and property of Lulu. Thus, it
declared Lulu an incompetent and appointed respondent as guardian over the person and property of
Lulu on a P1 million bond.

Petitioners moved for reconsideration asserting that the P1 million bond was grossly insufficient to
secure Lulus P50-million estate against fraudulent loss or dissipation.[14] The motion, however, was
denied.[15]

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to the Court of
Appeals (CA).[16] The appeal was docketed as CA-G.R. CV No. 75760.

On December 29, 2004, the CA issued a decision affirming the September 25, 2001 decision of the RTC
(in the petition for guardianship) in toto.[17] It held that respondent presented sufficient evidence to
prove that Lulu, because of her illnesses and low educational attainment, needed assistance in taking
care of herself and managing her affairs considering the extent of her estate. With regard to the
respondents appointment as the legal guardian, the CA found that, since Lulu did not trust petitioners,
none of them was qualified to be her legal guardian. Because guardianship was a trust relationship, the
RTC was bound to appoint someone Lulu clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court in a petition for review on
certiorari docketed as G.R. No. 166470.[18]

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and was provided with
two housemaids tasked to care for her. Sometime in November 2003, Lulu was abducted from her
Marikina apartment. Jovita immediately sought the assistance of the Police Anti-Crime Emergency
Response (PACER) division of the Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu somewhere in Rodriguez, Rizal.
Despite their initial hostility to the investigation, Ma. Victoria and Cecilio subsequently contacted the
PACER to inform them that Lulu voluntarily left with Natividad because her guardian had allegedly been
maltreating her.[19]

On December 15, 2003, respondent filed a petition for habeas corpus[20] in the CA alleging that
petitioners abducted Lulu and were holding her captive in an undisclosed location in Rodriguez, Rizal.

On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita, as her legal guardian,
was entitled to her custody. [21]

Petitioners moved for the reconsideration of the said decision but it was denied in a resolution dated
July 12, 2005.[22] Aggrieved, they filed this petition for review on certiorari docketed as G.R. No. 169217.
This was consolidated with G.R. No. 166470.

The basic issue in petitions of this nature is whether the person is an incompetent who requires the
appointment of a judicial guardian over her person and property.
Petitioners claim that the opinions of Lulu's attending physicians[23] regarding her mental state were
inadmissible in evidence as they were not experts in psychiatry. Respondent therefore failed to prove
that Lulu's illnesses rendered her an incompetent. She should have been presumed to be of sound mind
and/or in full possession of her mental capacity. For this reason, Lulu should be allowed to live with
them since under Articles 194 to 196 of the Family Code,[24] legitimate brothers and sisters, whether
half-blood or full-blood are required to support each other fully.

Respondent, on the other hand, reiterated her arguments before the courts a quo. She disclosed that
Lulu had been confined in Recovery.com, a psychosocial rehabilitation center and convalescent home
care facility in Quezon City, since 2004 due to violent and destructive behavior. She also had delusions of
being physically and sexually abused by Boy Negro and imaginary pets she called Michael and
Madonna.[25] The November 21, 2005 medical report[26] stated Lulu had unspecified mental retardation
with psychosis but claimed significant improvements in her behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his opinion on the
mental sanity of a person with whom he is sufficiently acquainted.[27] Lulu's attending physicians spoke
and interacted with her. Such occasions allowed them to thoroughly observe her behavior and conclude
that her intelligence level was below average and her mental stage below normal. Their opinions were
admissible in evidence.

Furthermore, where the sanity of a person is at issue, expert opinion is not necessary.[28] The
observations of the trial judge coupled with evidence[29] establishing the person's state of mental sanity
will suffice.[30] Here, the trial judge was given ample opportunity to observe Lulu personally when she
testified before the RTC.

Under Section 2, Rule 92 of the Rules of Court,[31] persons who, though of sound mind but by reason of
age, disease, weak mind or other similar causes are incapable of taking care of themselves and their
property without outside aid, are considered as incompetents who may properly be placed under
guardianship. The RTC and the CA both found that Lulu was incapable of taking care of herself and her
properties without outside aid due to her ailments and weak mind. Thus, since determining whether or
not Lulu is in fact an incompetent would require a reexamination of the evidence presented in the
courts a quo, it undoubtedly involves questions of fact.
As a general rule, this Court only resolves questions of law in a petition for review. We only take
cognizance of questions of fact in exceptional circumstances, none of which is present in this case.[32] We
thus adopt the factual findings of the RTC as affirmed by the CA.

Similarly, we see no compelling reason to reverse the trial and appellate courts finding as to the
propriety of respondent's appointment as the judicial guardian of Lulu.[33] We therefore affirm her
appointment as such. Consequently, respondent is tasked to care for and take full custody of Lulu, and
manage her estate as well.[34]

Inasmuch as respondents appointment as the judicial guardian of Lulu was proper, the issuance of a writ
of habeas corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful
custody of person is withheld from the one entitled thereto.[35] Respondent, as the judicial guardian of
Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent
must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly
deprived of the custody of her ward.[36]

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulus legal guardian, an accurate and
faithful accounting of all the properties and funds they unlawfully appropriated for themselves from the
estate of Maria Lourdes San Juan Hernandez, within thirty (30) days from receipt of this decision. If
warranted, the proper complaints should also be filed against them for any criminal liability in
connection with the dissipation of Maria Lourdes San Juan Hernandezs estate and her unlawful
abduction from the custody of her legal guardian.

Treble costs against petitioners.

SO ORDERED.
G.R. No. L-57438 January 3, 1984

FELICIANO FRANCISCO, petitioner,

vs.
HON. COURT OF APPEALS and PELAGIO FRANCISCO, respondents.

Nicomedes M. Jajardo for petitioner.

Crescini & Associates Law Office for private respondent.

GUERRERO, J.:

This petition for review on certiorari seeks the annulment of the decision and resolution of the
defunct Court of Appeals, now Intermediate Appellate Court, dated April 27, 1981. and June 26,
1981. respectively, dismissing the petition for certiorari filed by petitioner Feliciano Francisco
docketed as CA-G.R. No. 12172 entitled "Feliciano Francisco versus Judge Jesus R. De Vega and
Pelagio Francisco". In the said petition for certiorari, petitioner Feliciano Francisco challenged the
validity of the Order of the Court of First Instance of Bulacan, Fifth Judicial District, Branch II, now
Regional Trial Court, granting execution pending appeal of its decision by relieving petitioner
Feliciano Francisco as guardian of incompetent Estefania San Pedro and appointing respondent
herein, Pelagio Francisco, in his instead.

The antecedent facts as recited in the appealed decision of the Court of Appeals showed that:

Petitioner is the duly appointed guardian of the incompetent Estefania San Pedro in
Special Proceedings No. 532 of the Court of First Instance of Bulacan presided over
by respondent Judge. On August 30, 1974 respondent Pelagio Francisco, claiming to
be a first cousin of Estefania San Pedro, together with two others, said to be nieces
of the incompetent, petitioned the court for the removal of petitioner and for the
appointment in his stead of respondent Pelagio Francisco. Among other grounds, the
petition was based on the failure of the guardian to submit an inventory of the estate
of his ward and to render an accounting.

It would seem that petitioner subsequently rendered an accounting but failed to

submit an inventory, for which reason the court on March 20, 1975 gave petitioner
ten (10) days within which to do so, otherwise he would be removed from
guardianship Petitioner thereafter submitted an inventory to which respondent
Pelagio Francisco filed an objection on the ground that petitioner actually received
P14,000.00 for the sale of a residential land and not P12,000.00 only as stated in the
deed of sale and reported by him in his inventory. The respondent Judge found the
claim to be true, and, in his order of April 17, 1980 relieved the petitioner as
guardian.

On motion of petitioner, however, the respondent Judge reconsidered his finding,

relying on the deed of sale as the best evidence of the price paid for the sale of the
land. in his order dated September 12, 1980, respondent judge acknowledged that
his finding was "rather harsh and somewhat unfair to the said guardian."
Nevertheless, respondent Judge ordered the retirement of petitioner on the ground of
old age. The order states in part as follows:
 "... considering the rather advanced age of the present guardian, this
Court is inclined and so decrees, that he should nevertheless be, as
he is hereby, retired to take effect upon the appointment by this court
and the assumption of office of his replacement, who shall be taken
from the recommendees of the parties herein. For this purpose, the
present guardian is hereby given twenty (20) days from receipt of a
copy of this order within which to submit his proposal for a
replacement for himself and to comment on petitioner's
recommendee and the latter a like period within which to comment on
the present guardian's proposed substitute, after which the matter will
be deemed submitted for resolution and final action by the court.

SO ORDERED."

Petitioner filed a motion for reconsideration, contending that he was only 72 years of
age and still fit to continue with the management of the estate of his ward as he had
done with zeal for the past twelve years. In an order dated November 13, 1980 the
court denied his motion. Accordingly, on December 17, 1980, petiti/ner filed a notice
of appeal 'from the order issued by the court on November 13, 1980' and paid the
appeal bond. On February 2, 1981 he filed the record on appeal. 1

Meanwhile, on January 27, 1981, the court, on motion of private respondent, required petitioner to submit within three
days his nomination for guardian of Estefania San Pedro as required in its order of September 12, 1980. In issuing the
order, the court stated that 'an indefinite discontinuance in office would defeat the intent and purpose of the said order
of September 12, 1980 relieving the present guardian.

Petitioner's motion for reconsideration was denied. Hence, this petition. (referring to
CA-G.R. No. SP-1217)"

On December 5, 1980, before the appeal was perfected, Pelagio Francisco filed an "Omnibus
Motion" with the court a quo with the prayer (1) to restrain guardian from exercising office; (2) order
guardian to surrender to court all properties of the ward; and (3) appoint new guardian . 2

Petitioner, on December 9, 1980 filed his opposition to the omnibus motion claiming that the same
was premature. 3The trial court, however, disregarded the opposition and required petitioner on
January 27, 1981 to submit within three (3) days his nomination for guardian of Estefania San Pedro
as required in its order of September 12, 1980, the court holding that "an indefinite continuance in
office would defeat the intent and purpose of the said order of September 12, 1980, relieving the
present guardian." 4

Petitioner moved for reconsideration of the said order, 5 but the trial court overruled the same on
March 4, 1981. Subsequently, on March 11, 1981, 6 the court a quo appointed respondent Pelagio
Francisco as the new guardian of the person and property of the incompetent Estefania San Pedro. 7

On March 13, 1981, petitioner filed with the defunct Court of Appeals a petition for certiorari
challenging the validity of the order of the trial court granting the execution pending appeal of its
decision and appointing respondent Pelagio Francisco as the new guardian despite the fact that
respondent is five (5) years older than petitioner, docketed as CA-G.R. No. 12172.

The Court of Appeals dismissed the petition on April 23, 1981, the pertinent portion of its decision
reading as follows:
 The Rules of Court authorizes executions pending appeal "upon good reasons to be
stated in a special order." (Rule 39, Sec. 2). In the case at bar, the retirement of
petitioner was ordered on the ground of old age. When this ground is considered in
relation to the delay of the petitioner in the making of an accounting and the
submission of an inventory, the order amounts to a finding that petitioner, considering
his "rather advanced age," was no longer capable of managing the estate of his
ward. Rule 97, Sec. 2). Given this finding, it is clear that petitioner's continuance in
office would not be in the best interest of the ward.

It is of course true that the order of removal is not yet final. Considering the time -it
normally takes for appeals to be finally determined as well as the purpose of the
order under appeal, which would be frustrated if it is not immediately executed, we
cannot say that respondent acted with grave and irreparable damage and that the
order of September 12, 1980 is not yet final, petitioner has not demonstrated that in
ordering execution pending appeal, the respondent Judge committed a grave abuse
of discretion.

Indeed, the granting of execution pending appeal ties within the sound discretion of a
court. Appellate courts win not interfere to discretion, unless it modify control or
inquire into the exercise of this be shown that there has been an abuse of that
discretion. (2 Moran, Comments on the Rules of Court, 260 [1979].

WHEREFORE, the petition for certiorari is DISMISSED, without pronouncement as

to costs.

SO ORDERED. 8

Petitioner subsequently filed another motion for reconsideration advancing the following arguments:
that to grant execution pending appeal would render petitioner's appeal moot and academic that
"advanced age" was not one of the, grounds raised by private respondent in the court below; that the
court a quo abuse its discretion in appointing respondent as guardian despite the fact that private
respondent is five (5) years older than petitioner.9

The respondent appellate court, in its resolution dated June 26, 1981, denied petitioner's motion for
reconsideration, the court finding it unnecessary to repeat the discussion of the arguments which it
had already considered and only entertained the argument regarding the competency of the
respondent as the new guardian. On this point, respondent Court ruled:

The order of March 11, 1981 appointing respondent Francisco as guardian was
never assailed in the petition in this case. As already stated, this case concerns the
validity only of the orders of January 27, 1981 and March 4, 1981 which required
petitioner to recommend his own replacement, otherwise the court would appoint a
new guardian. It does not appear that petitioner objected to the appointment of
respondent Francisco on the ground now invoked, namely, that Francisco is in fact
older than petitioner. Nor does it appear that petitioner filed a motion for
reconsideration of the order of March 11, 1981, calling attention to the fact that
respondent Francisco is older than petitioner, In short, the point now raised does not
appear to have been urged in the lower court so that the latter could have rectified
the error, if it was error at all, For this reason, it is not proper ground for certiorari
before this Court, much less for a motion for reconsideration.

WHEREFORE, the motion for reconsideration is DENIED for lack of merit.

 SO ORDERED. 10

In the petition at bar, petitioner contends that (a) The Honorable Court of Appeals has committed grave abuse of discretion in holding that the
removal of petitioner as guardian of the ward Estefania San Pedro on the ground of old age is a good ground for the execution of the
decision pending appeal; and (b) The Honorable Court of Appeals committed grave misapprehension and misinterpretation of facts when it
declared that petitioner did not question the appointment of private respondent as guardian in his stead on the ground that the latter is older
than the former by five (5) years.

A guardianship is a trust relation of the most sacred character, in which one person, called a
"guardian" acts for another called the "ward" whom the law regards as incapable of managing his
own affairs.11 A guardianship is designed to further the ward's well-being, not that of the guardian, It is intended to preserve the ward's
property, as wen as to render any assistance that the ward may personally require. It has been stated that while custody involves immediate
care and control, guardianship indicates not only those responsibilities, but those of one in loco parentis as well. 12

Having in mind that guardianship proceeding is instituted for the benefit and welfare of the ward, the selection of a guardian must, therefore,
suit this very purpose. Thus, in determining the selection of a guardian, the court may consider the financial situation, the physical condition,
the sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective
appointee, as wen as the probability of his, being able to exercise the powers and duties of guardian for the full period during which
guardianship will be necessary. 13

A guardian is or becomes incompetent to serve the trust if he is so disqualified by mental incapacity,

conviction of crime, moral delinquency or physical disability as to be prevented from properly
discharging the duties of his office. 14 A guardian, once appointed may be removed in case he becomes insane or otherwise
incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty (30) days after it is due
to render an account or make a return.15

We agree with the trial court and the appellate court that there is need for petitioner Feliciano Francisco to be retired from the guardianship
over the person and property of incompetent Estefania San Pedro. The conclusion reached by the trial court about the "rather advanced age"
of petitioner at 72 years old (petitioner is now 76 years old) finding him unfit to continue the trust cannot be disturbed. As correctly pointed out
by the appellate court, this finds direct support in the delay of the accounting and inventory made by petitioner. To sustain petitioner as
guardian would, therefore, be detrimental to the ward. While age alone is not a control criterion in determining a person's fitness or
qualification to be appointed or be retained as guardian, it may be a factor for consideration. 16

Considering the difficult and complicated responsibilities and duties of a guardian, We sustain the
immediate retirement of petitioner Feliciano Francisco as guardian, affirming thereby the rulings of
both the trial court and the appellate court.

With respect to the issue of execution pending appeal in appointing respondent Pelagio Francisco as
guardian to succeed petitioner while the latter's appeal was still pending, We hold and rule that
respondent appellate court correctly sustained the propriety of said execution pending appeal. Upon
urgent and compelling reasons, execution pending appeal is a matter of sound discretion on the part
of the trial court, 17 and the appellate court will not interfere, control or inquire into the exercise of this discretion, unless there has
been an abuse thereof, 18 which We find none herein.

Inasmuch as the primary objective for the institution of guardianship is for the protection of the ward,
there is more than sufficient reason for the immediate execution of the lower court's judgment for the
replacement of the first guardian. We agree with the reason given by the appellate court in
sustaining execution pending appeal that "an indefinite continuance in office would defeat the intent
and purpose of the order of September 12, 1980, relieving the present guardian (Feliciano
Francisco)."

As to the issue concerning the appointment of respondent Pelagio Francisco as the new guardian,
We likewise agree with the respondent appellate court in denying in its resolution of June 26, 1981
for lack of merit the motion for reconsideration filed by petitioner questioning the appointment of
private respondent Pelagio Francisco. We also find no abuse of discretion committed by the
appellate court.
The rule is well-established that appellate courts may not entertain issues brought before it for the
first time on appeal. (Jose Matienzo vs. Martin Servidad, 107 SCRA 276; Garcian vs. Court of
Appeals, 102 SCRA 597; Director of Lands vs. Dano 96 SCRA 160).

WHEREFORE, IN VIEW OF THE FOREGOING, the assailed decision and resolution of the
respondent court dated April 27, 1981 and June 26, 1981, respectively, are hereby AFFIRMED.
Costs against petitioner.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr. and De Castro, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and I would have simply denied the petition for lack of merit without an extended decision.

Aquino, J., concur. The removal of a guardian, like the removal of an administrator, may be
immediately executory (Borromeo Bros. Estate, Inc. vs. CA, 105 Phil. 466).

Escolin J., concurs in the result.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and I would have simply denied the petition for lack of merit without an extended decision.

Aquino, J., concur. The removal of a guardian, like the removal of an administrator, may be
immediately executory (Borromeo Bros. Estate, Inc. vs. CA, 105 Phil. 466).

Escolin J., concurs in the result.

EN BANC

[G.R. No. 139400. September 3, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. MAURICIO WATIWAT, appellant.

DECISION

SANDOVAL-GUTIERREZ, J.:

Rape is a repulsive crime done only by the most morally depraved individuals. When committed against
a child of tender years, especially against an orphan born with nothing but hope and yearning for
affection, the despicable lechery swells into manifest heartlessness that must be condemned.

For automatic review is the Decision[1] dated April 22, 1999 of the Regional Trial Court of Pinamalayan,
Oriental Mindoro in Criminal Case No. P-5690, Branch 42, the dispositive portion of which states:

ACCORDINGLY, accused MAURICIO WATIWAT is hereby found GUILTY beyond reasonable doubt, as
principal, of the heinous crime of RAPE, defined and penalized under Art. 335 of the Revised Penal Code,
as amended by R.A. 7659, and hereby sentences him to suffer the supreme penalty of DEATH.

Additionally, accused is ordered to indemnify the victim MARITES WATIWAT, the amount of P50,000.00.

Let the complete record of this case together wit the transcript of stenographic notes be forwarded to
the Honorable Supreme Court, for automatic review pursuant to Sec. 10, Rule 122 of the Revised Rules
of Court.

SO ORDERED.[2]

The accusatory portion of the Amended Information against appellant Mauricio Watiwat reads:

That on or about the month of March, 1996 and subsequent thereto in barangay Bato, municipality of
Bansud, province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation,
did then and there willfully, unlawfully and feloniously lay with and have carnal knowledge of one
MARITES WATIWAT, his 10-year-old niece living in his own house and therefore a guardian and relative
within the third civil degree, against her will and without her consent, to the damage and prejudice of
the Offended Party.

CONTRARY TO ART. 335 OF THE RPC, AS AMENDED BY R.A. 7659.[3]

Upon being arraigned, with the assistance of his counsel, appellant pleaded not guilty to the
charge. Thereafter, trial ensued.

Evidence for the prosecution shows that Marites Watiwat, complaining witness, was born on April 7,
1986, as shown by her Certificate of Live Birth,[4] to her mentally deranged mother, Adoracion
Areglado. Since her father was already dead, appellant caused its registration and had Watiwat recorded
as her surname.[5] Marites grew with the belief that he was her uncle, being the husband of her mothers
sister, Ineseria.

When Marites was one month old, she lived with appellant and his family in Bato, Bansud, Oriental
Mindoro. When she reached the age of three, her grandfather Cipriano Areglado took her under his
custody in Batangas where she studied. She returned to appellants house when she was already in
Grade III.

In March 1996, while Marites was sleeping in the house of appellant, he brought her to another room
and undressed her. He then took off his clothes, placed himself on top of her and forcibly inserted his
penis into her genitals. She felt pain. She could only beg and mutter huwag. Her plea, however, was
unheeded. Appellant succumbed to his lustful desires and completely penetrated her private part,
making a pumping motion. The incident was repeated several times. He stopped molesting her only in
November 1996 when her grandfather Cipriano brought her to Hilaria Amparos house at Villapag-asa,
Bansud.[6] Hilaria is Marites grandaunt, being Ciprianos sister.

Hilaria observed that Marites seemed to be always lost in her thoughts and would constantly complain
of pains in her stomach and head. On July 7, 1997, or after more than one (1) year from the incident, she
finally revealed her harrowing experience to Hilaria who immediately brought her to Dr. Preciosa Soller
for examination.[7] She issued a Medico-Legal Report[8] with the following findings:

1. Breasts not developed.

2. Perineum No pubic hair

Labia majora not developed

skin in labial area congested.

3. Hymen complete old healed lacerations at 6

oclock, 9 oclock, 11 oclock and 12

oclock.

Incomplete old healed laceration at 5

oclock and 3 oclock

REMARKS: Physical virginity lost

Thereafter, Hilaria reported the matter to the police.

Eventually, an Information for rape was filed against appellant.

Appellant vehemently denied the charge. He testified that prior to the incident, he and his children
transferred their residence from Bato, Bansud to Salcedo, also of the same town, after he separated
from his live-in partner Ineseria Areglado in 1992. As proof that he was then residing in Salcedo, he
presented a bible, Transfer Form of Application of Voters, and a Certification by the Commission on
Elections attesting that he is a voter of Salcedo. While there, he cultivated the farm of Alberto
Evangelista.

Alberto corroborated appellants testimony.

Simeon Mores, the Barangay Captain of Barangay Batu, controverted appellants claim that he resided in
Barangay Salcedo from 1992-1998. Simeon presented the 1995 Census Files of Barangay Batu wherein
appellant was enlisted as one if its residents[9] and a yellow pad paper containing a mortgage
agreement[10] between him and one Salustiano Gupit prepared by Alfredo Gonzales, councilor of
Barangay Batu.

In convicting appellant, the trial court held:

While there is delay in reporting the incident in question, the story Marites presented is credible and
consistent. Her testimony withstood the test of cross-examination and there is no cogent reason why
she should not be believed as the defense had not even shown any reason at all why a ten (10) year old
Marites would fabricate a story of rape upon herself and impute it to a person whom she looks up to as
her very own father if her story were not true.

When there is no evidence to show any improper motive on the part of the prosecution witness to
testify falsely against an accused or to falsely implicate him in the commission of a crime, the logical
conclusion is that no such improper motive exists and that the testimony is worthy of full faith and
credit (People vs. Tabao, G.R. No. 111290, Jan. 30, 1995, 240 SCRA 758).

There is an explanation why there was such a delay. There is no one close to her and no shoulder to lean
on so to speak, except the accused himself. Marites had no family to cling to. Besides, accused and
Marites are not strangers to each other, the former being the guardian, while the latter the ward,
living under he same roof. Had it not been for a mere coincidence that she was taken by her Nanay
Laling to live with her in her house, there could have no chance for Marites to divulge her painful and
horrifying ordeal.She could have kept for herself forever the humiliating secret. Thus, it would not be
proper to apply the norms of behavior expected under the circumstances from mature women.

A ten-year old girl, like Marites, unlike a mature woman, cannot be expected to have the courage and
intelligence to immediately report a sexual assault committed against her especially when the offender
is one she looks up to as her very own father.

Marites should be looked upon despite her minority considering her courage and determination to seek
justice and plea for redress for a crime of such a nature that is otherwise better left forgotten. She could
have chosen to keep numb and silent and forget the whole incident, but she did not. It is a clear
manifestation of her intent to pursue her morbid cry for the injustice committed against her, at the
opportune time (People vs. Guererro, 242 SCRA 606).
Where accused was positively identified by the victim of the rape herself who harbored no ill motive
against the accused, the defense of alibi must fail. (People vs. Canada, 253 SCRA 256)

Bare alibi and denial cannot prevail over the positive identification of the accused as the perpetrator of
the crime. (People vs. Alimon, 257 SCRA 658) (People vs. Nazareno, 260 SCRA 256) (Emphasis supplied)

In his brief, appellant ascribes to the trial court the following errors:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME, AS DEFINED AND PUNISHED UNDER ARTICLE 335 OF THE REVISED PENAL CODE,
AS AMENDED BY R.A. 7659.

II

ASSUMING FOR THE SAKE OF ARGUMENT ONLY THAT THE ACCUSED-APPELLANT IS GUILTY AS CHARGED,
THE TRIAL COURT STILL ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH.[11]

Appellant contends that Marites failure to report the matter immediately to the authorities casts doubt
on her credibility. Moreover, when the incident took place in March 1996, she was no longer living with
his family in Bato, Bansud. As early as 1992, her grandfather brought her to Batangas. He, on the other
hand, transferred residence to Barangay Salcedo. And even assuming that he is guilty of rape, the
imposition of the death penalty upon him is erroneous since the qualifying circumstance of relationship
was not proved. Neither can he be considered her guardian. Thus, he should not be convicted of
qualified rape and that the penalty that should have been imposed against him should be reclusion
perpetua.

The law governing the instant case is Article 335 of the Revised Penal Code, as amended by Section 11 of
Republic Act No. 7659,[12] the pertinent portions of which provide:

SEC. 11. Article 335 of the same [Revised Penal] Code is hereby amended to read as follows:

Article 335. When and how rape is committed. Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

xxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-
law-spouse of the parent of the victim.

X x x (Emphasis supplied)

The trial court held that Marites was telling the truth when she testified that she was sexually abused by
appellant. We see no reason to differ from such finding.

For one, it is well entwined into the bedrock of our jurisprudence that the trial judges evaluation of the
testimony of a witness and its factual findings are accorded not only the highest respect, but also
finality, unless some weighty circumstance has been ignored or misunderstood which could alter the
result of the judgment rendered. Given the direct opportunity to observe the witness on the stand, the
trial judge was in a vantage position to assess his demeanor and determine if he was telling the truth or
not.[13] Thus:

In the resolution of the factual issues, the Court relies heavily on the trial court for its evaluation of the
witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is
able to detect that sometimes thin line between fact and prevarication that will determine the guilt or
innocence of the accused. That line may not be discernible from a mere reading of the impersonal
record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth or
expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered
lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will
not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a
serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in
shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these
and on the basis of his observations arrive at an informed and reasoned verdict.[14]

For another, complainant never wavered in her assertion that appellant raped her. Her testimony is
clear, positive, and convincing. Indeed, the fact of rape and the identity of appellant as the malefactor
were sufficiently and convincingly established by the prosecution through her straightforward narration,
thus:

Q. Why did you file the case against your Kakang Muling or Mauricio Watiwat?

A. Because I was raped, sir.

Q. Do you still remember the date and month when you were raped by this Kakang Muling or Mauricio
Watiwat?

A. It was in March, 1996, sir.

Q. In that particular month of March, 1996, how old were you if you still remember?

A. I was less than 10 years old, sir.

Q. Tell us how you were raped by your Kakang Muling or Mauricio Watiwat?

A. I was then living in his house and while I was sleeping beside with other children, I was carried by the
accused to the other room, sir.

Q. After you were lifted and carried to the other room, what else was done by your Ka Muling?

A. He took off my shorts and panty, sir.

Q. After your shorts and panty were removed by the accused, what else did he do if any?

A. He undressed himself and put himself on top of me, sir. (Naghubo po siya at pagkatapos ay
pumatong sa akin.)

FISCAL (Continuing):

Q. After he placed himself on top of you, what else did he do?

A. He insisted in inserting his penis inside me. (Pilit po niyang ipinasok ang kanyang ari sa akin.)

Q. When he forcibly tried to insert his penis to your body, what did you feel?

A. I was hurt, sir.

Q. And because you were hurt, what, if any, did you plea or say to your uncle?

A. I told him, huwag, but he continued to insert his penis in my private part, sir.

Q. Will you please tell the Court if your uncle Muling was successful in completely inserting his penis
towards your sexual organ?

A. Yes, sir.

Q. What else did your uncle Muling do after he was able to insert his penis to your sexual organ?

A. (No answer)

Note: After a few seconds she answered: Siya po ay nagkakayod. (He made a pumping motion.)[15]

Indeed, complainants testimony, stamped with consistency and accuracy, must be given full faith and
credit.[16] When a woman testifies that she has been raped, she says in effect, all that is necessary to
show that rape has been committed, for as long as her testimony meets the test of credibility.[17]

Also, Marites does not appear to have any strong reason or fiendish motive to fabricate such a grave
charge against appellant and thus expose herself and her family to shame and scandal. A victim of sexual
assault would certainly not be willing to undergo the humiliation of a public trial, let alone testify on the
details of her torment, if she had reasons other than her natural passion to avenge her honor and to
decry a grave injustice done to her.[18] To be sure, complainants testimony, which is untainted with any
proof of ill motive, bears the hallmarks of truth.

For his part, appellant assails Marites inaction in reporting the crime for more than one year. It is not
uncommon for young girls to conceal for some time the assault against their virtue.[19] Barely out of
childhood, Marites could be easily intimidated and cowed into silence.[20] While it is true that it took her
a long time to report her defloration, it must be stressed that she was merely 10 years old when she was
subjected to bestial abuse. Afraid and with no family to assist her, she could not report the incident to
the authorities. It was only when her grandaunt took care of her that she had the courage to do
so. Under the circumstances, it is unreasonable to judge her action by the norms of behavior expected
of mature individuals.[21] The delay in reporting the incident of rape ought not to be taken against her
and cannot be used to weaken her credibility.

Appellants defense merely consists of alibi and bare denial. His claim that he was residing in another
place during the incident does not persuade us. We have held that an accused who raises the defense of
alibi must not only prove his presence at another place at the time of commission of the crime, he must
also establish that it would be physically impossible for him to be at the scene of the crime during the
incident. It must be observed that Barangay Salcedo and Barangay Bato are both within the municipality
of Bansud.Clearly, it is safe to conclude that it was not physically impossible for him to be at the scene of
the crime at that time.

Moreover, firmly established is the rule that alibi and denial are inherently weak and have always been
viewed with disfavor by the courts due to the facility with which they can be concocted.[22] Such defense
warrants the least credibility or none at all[23] and cannot prevail over the positive identification of the
accused by the prosecution witness.[24] Denial is a self-serving negative evidence that cannot be given
greater weight than the declaration of a credible witness who testified on affirmative matters.[25]

The prosecution has not only established beyond reasonable doubt that appellant had carnal knowledge
of Marites, it has likewise proved that, at the time the offense was committed, she was only 10 years old
as shown by her Certificate of Live Birth. Thus, appellant must be held guilty of statutory rape under
paragraph 1, No. 3, Article 335 of the Revised Penal Code, as amended by R.A. 7659, quoted earlier, the
victim being under twelve years of age. It bears stressing that the Information specifically alleges that
Marites was 10 years old when appellant sexually abused her in March 1996. Consequently, he must be
sentenced to reclusion perpetua.

The trial court imposed upon appellant the death penalty on the basis of its conclusion that he is her
guardian. We hold that the lower court erred in this point.

In People vs. Garcia,[26] we held:

In the law on rape, the role of a guardian is provided for in Article 344 of the Revised Penal Code,
specifically as one who, aside from the offended party, her parents or grandparents, is authorized to file
the sworn written complaint to commence the prosecution for that crime. In People vs. De la Cruz (59
Phil. 531 [1934]), it was held that the guardian referred to in the law is either a legal or judicial
guardian as understood in the rules on civil procedure.

xxx

It would not be logical to say that the word guardian in the third paragraph of Article 344 which is
mentioned together with parents and grandparents of the offended party would have a concept
different from the guardian in the recent amendments of Article 335 where he is also mentioned in the
company of parents and ascendants of the victim. In Article 344, the inclusion of the guardian is only to
invest him with the power to sign a sworn written complaint to initiate the prosecution of four crimes
against chastity, while his inclusion in the enumeration of the offenders in Article 335 is to authorize the
imposition of the death penalty on him. With much more reason, therefore, should the restrictive
concept announced in De la Cruz, that is, that he be a legal or judicial guardian, be required in the
latter article.

The Court notes from the transcripts of the proceedings in Congress on this particular point that the
formulators were not definitive on the concept of guardian as it now appears in the attendant
circumstances added to the original provisions of Article 335 of the Code.They took note of the status of
a guardian as contemplated in the law on rape but, apparently on pragmatic considerations to be
determined by the courts on an ad hoc basis, they agreed to just state guardian without the qualification
that he should be a legal or judicial guardian. It was assumed, however, that he should at the very least
be a de facto guardian. Indeed, they must have been aware of jurisprudence that the guardian
envisaged in Article 335 of the Code, even after its amendment by Republic Act No. 4111, would
either be a natural guardian, sometimes referred to as a legal or statutory guardian, or a judicial
guardian appointed by the court over the person of the ward.

xxx

The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of
judicial appointment which impresses upon the guardian the lofty purpose of his office and normally
deters him from violating its objectives.Such considerations do not obtain in appellants case or, for that
matter, any person similarly circumstanced as a mere custodian of a ward or anothers property. The
fiduciary powers granted to a real guardian warrant the exacting sanctions should he betray the trust.
(Emphasis supplied)

A guardian is a person lawfully invested with the power and charged with the duty of taking care of the
person and managing the property and rights of another person who, for defect of age, understanding,
or self-control, is considered incapable of administeringhis own affairs.[27]

There are three kinds of guardians under the law: (a) the legal guardian, who is such by provision of law
without the need of judicial appointment, as in the case of the parents over the persons of their minor
children, or the father, or in his absence the mother, with respect to the property of the minor children
not exceeding P50,000.00 in value;[28] (b) the guardian ad litem, a competent person appointed by the
court for purposes of a particular action or proceeding involving a minor; and (c) the judicial guardian,
one appointed by the court over the person and/or property of the ward to represent the latter in all his
civil acts and transaction.[29]

As shown by the facts in this case, appellant is not Marites guardian, whether natural, legal or
judicial. That he allowed his surname to be used as her surname in her Certificate of Live Birth is
inconsequential. It appears that such arrangement was merely upon Ciprianos request.

At most, appellant was only an uncommitted caretaker of Marites over a limited period of time. Clearly,
he cannot be considered a guardian falling within the ambit of the amendatory provision of Section 11,
Republic Act No. 7659.

Neither is Marites the niece of appellant and hence, a relative within the third civil degree, as alleged in
the Information. The prosecution utterly failed to prove that appellant is legally married to Marites
aunt. In fact, it did not present the marriage contract between them to establish that Marites is
appellants niece, a relative within the third civil degree by affinity. Relationship, as a qualifying
circumstance in rape, must not only be alleged clearly; it must also be proved beyond reasonable doubt,
just as the crime itself.[30]

In view of the failure of the prosecution to prove the qualifying circumstance of guardianship or
relationship, it is error for the trial court to convict appellant for qualified rape and impose upon him the
supreme penalty of death.

Anent the award of damages, we observed that the trial court failed to award moral damages to
Marites.

Moral damages are additionally awarded without need of pleading or proof of the basis thereof.[31] This
is because it is recognized that the victim's injury necessarily results from an abysmal crime to warrant
by itself the award of moral damages. The anguish and the pain she has to endure are evident. Indeed,
the offended party in a rape case is a victim many times over. In our culture, which puts a premium on
the virtue of purity or virginity, rape stigmatizes the victim more than the perpetrator.[32]

WHEREFORE, the appealed Decision dated April 22, 1999 of the Regional Trial Court, Branch 42,
Pinamalayan, Oriental Mindoro in Criminal Case No. P-5690, is MODIFIED in the sense that appellant
MAURICIO WATIWAT is found GUILTY beyond reasonable doubt of the crime of statutory rape and is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the victim Marites
Watiwat P50,000.00 as moral damages, in addition to the civil indemnity of P50,000.00 awarded by the
trial court.

Costs against appellant.

SO ORDERED.
 THIRD DIVISION

G.R. No. 151243 April 30, 2008

LOLITA R. ALAMAYRI, petitioner,

vs.
ROMMEL, ELMER, ERWIN, ROILER and AMANDA, all surnamed PABALE, respondents.

DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court filed by
petitioner Lolita R. Alamayri (Alamayri) seeking the reversal and setting aside of the Decision,2 dated
10 April 2001, of the Court of Appeals in CA-G.R. CV No. 58133; as well as the Resolution,3 dated
19 December 2001 of the same court denying reconsideration of its aforementioned Decision. The
Court of Appeals, in its assailed Decision, upheld the validity of the Deed of Absolute Sale, dated 20
February 1984, executed by Nelly S. Nave (Nave) in favor of siblings Rommel, Elmer, Erwin, Roiler
and Amanda, all surnamed Pabale (the Pabale siblings) over a piece of land (subject property) in
Calamba, Laguna, covered by Transfer Certificate of Title (TCT) No. T-3317 (27604); and, thus,
reversed and set aside the Decision,4 dated 2 December 1997, of the Regional Trial Court (RTC) of
Pasay City, Branch 119 in Civil Case No. 675-84-C.5 The 2 December 1997 Decision of the RTC
declared null and void the two sales agreements involving the subject property entered into by Nave
with different parties, namely, Sesinando M. Fernando (Fernando) and the Pabale siblings; and
ordered the reconveyance of the subject property to Alamayri, as Nave’s successor-in-interest.

There is no controversy as to the facts that gave rise to the present Petition, determined by the Court
of Appeals to be as follows:

This is a Complaint for Specific Performance with Damages filed by Sesinando M. Fernando,
representing S.M. Fernando Realty Corporation [Fernando] on February 6, 1984 before the
Regional Trial Court of Calamba, Laguna presided over by Judge Salvador P. de Guzman,
Jr., docketed as Civil Case No. 675-84-C against Nelly S. Nave [Nave], owner of a parcel of
land located in Calamba, Laguna covered by TCT No. T-3317 (27604). [Fernando] alleged
that on January 3, 1984, a handwritten "Kasunduan Sa Pagbibilihan" (Contract to Sell) was
entered into by and between him and [Nave] involving said parcel of land. However, [Nave]
reneged on their agreement when the latter refused to accept the partial down payment he
tendered to her as previously agreed because she did not want to sell her property to him
anymore. [Fernando] prayed that after trial on the merits, [Nave] be ordered to execute the
corresponding Deed of Sale in his favor, and to pay attorney’s fees, litigation expenses and
damages.

[Nave] filed a Motion to Dismiss averring that she could not be ordered to execute the
corresponding Deed of Sale in favor of [Fernando] based on the following grounds: (1) she
was not fully apprised of the nature of the piece of paper [Fernando] handed to her for her
signature on January 3, 1984. When she was informed that it was for the sale of her property
in Calamba, Laguna covered by TCT No. T-3317 (27604), she immediately returned to
[Fernando] the said piece of paper and at the same time repudiating the same. Her
repudiation was further bolstered by the fact that when [Fernando] tendered the partial down
payment to her, she refused to receive the same; and (2) she already sold the property in
good faith to Rommel, Elmer, Erwin, Roller and Amanda, all surnamed Pabale [the Pabale
siblings] on February 20, 1984 after the complaint was filed against her but before she
received a copy thereof. Moreover, she alleged that [Fernando] has no cause of action
against her as he is suing for and in behalf of S.M. Fernando Realty Corporation who is not a
party to the alleged Contract to Sell. Even assuming that said entity is the real party in
interest, still, [Fernando] cannot sue in representation of the corporation there being no
evidence to show that he was duly authorized to do so.

Subsequently, [the Pabale siblings] filed a Motion to Intervene alleging that they are now the
land owners of the subject property. Thus, the complaint was amended to include [the
Pabale siblings] as party defendants. In an Order dated April 24, 1984, the trial court denied
[Nave’s] Motion to Dismiss prompting her to file a Manifestation and Motion stating that she
was adopting the allegations in her Motion to Dismiss in answer to [Fernando’s] amended
complaint.

Thereafter, [Nave] filed a Motion to Admit her Amended Answer with Counterclaim and
Cross-claim praying that her husband, Atty. Vedasto Gesmundo be impleaded as her co-
defendant, and including as her defense undue influence and fraud by reason of the fact that
she was made to appear as widow when in fact she was very much married at the time of
the transaction in issue. Despite the opposition of [Fernando] and [the Pabale siblings], the
trial court admitted the aforesaid Amended Answer with Counterclaim and Cross-claim.

Still unsatisfied with her defense, [Nave] and Atty. Vedasto Gesmundo filed a Motion to
Admit Second Amended Answer and Amended Reply and Cross-claim against [the Pabale
siblings], this time including the fact of her incapacity to contract for being mentally deficient
based on the psychological evaluation report conducted on December 2, 1985 by Dra.
Virginia P. Panlasigui, M. A., a clinical psychologist. Finding the motion unmeritorious, the
same was denied by the court a quo.

[Nave] filed a motion for reconsideration thereof asseverating that in Criminal Case No.
1308-85-C entitled "People vs. Nelly S. Nave" she raised therein as a defense her mental
deficiency. This being a decisive factor to determine once and for all whether the contract
entered into by [Nave] with respect to the subject property is null and void, the Second
Amended Answer and Amended Reply and Cross-claim against [the Pabale siblings] should
be admitted.

Before the motion for reconsideration could be acted upon, the proceedings in this case was
suspended sometime in 1987 in view of the filing of a Petition for Guardianship of [Nave] with
the Regional Trial Court, Branch 36 of Calamba, Laguna, docketed as SP No. 146-86-C with
Atty. Vedasto Gesmundo as the petitioner. On June 22, 1988, a Decision was rendered in
the said guardianship proceedings, the dispositive portion of which reads:

"Under the circumstances, specially since Nelly S. Nave who now resides with the
Brosas spouses has categorically refused to be examined again at the National
Mental Hospital, the Court is constrained to accept the Neuro-Psychiatric Evaluation
report dated April 14, 1986 submitted by Dra. Nona Jean Alviso-Ramos and the
supporting report dated April 20, 1987 submitted by Dr. Eduardo T. Maaba, both of
the National Mental Hospital and hereby finds Nelly S. Nave an incompetent within
the purview of Rule 92 of the Revised Rules of Court, a person who, by reason of
age, disease, weak mind and deteriorating mental processes cannot without outside
aid take care of herself and manage her properties, becoming thereby an easy prey
for deceit and exploitation, said condition having become severe since the year 1980.
She and her estate are hereby placed under guardianship. Atty. Leonardo C. Paner
is hereby appointed as her regular guardian without need of bond, until further orders
 from this Court. Upon his taking his oath of office as regular guardian, Atty. Paner is
ordered to participate actively in the pending cases of Nelly S. Nave with the end in
view of protecting her interests from the prejudicial sales of her real properties, from
the overpayment in the foreclosure made by Ms. Gilda Mendoza-Ong, and in
recovering her lost jewelries and monies and other personal effects.

SO ORDERED."

Both [Fernando] and [the Pabale siblings] did not appeal therefrom, while the appeal
interposed by spouses Juliano and Evangelina Brosas was dismissed by this Court for failure
to pay the required docketing fees within the reglementary period.

In the meantime, [Nave] died on December 9, 1992. On September 20, 1993, Atty. Vedasto
Gesmundo, [Nave’s] sole heir, she being an orphan and childless, executed an Affidavit of
Self-Adjudication pertaining to his inherited properties from [Nave].

On account of such development, a motion for the dismissal of the instant case and for the
issuance of a writ of execution of the Decision dated June 22, 1988 in SP No. 146-86-C
(petition for guardianship) was filed by Atty. Vedasto Gesmundo on February 14, 1996 with
the court a quo. [The Pabale siblings] filed their Opposition to the motion on grounds that (1)
they were not made a party to the guardianship proceedings and thus cannot be bound by
the Decision therein; and (2) that the validity of the Deed of Absolute Sale executed by the
late [Nave] in their favor was never raised in the guardianship case.

The case was then set for an annual conference. On January 9, 1997, Atty. Vedasto
Gesmundo filed a motion seeking the court’s permission for his substitution for the late
defendant Nelly in the instant case. Not long after the parties submitted their respective pre-
trial briefs, a motion for substitution was filed by Lolita R. Alamayre (sic) [Alamayri] alleging
that since the subject property was sold to her by Atty. Vedasto Gesmundo as evidenced by
a Deed of Absolute Sale, she should be substituted in his stead. In refutation, Atty. Vedasto
Gesmundo filed a Manifestation stating that what he executed is a Deed of Donation and not
a Deed of Absolute Sale in favor of [Alamayri] and that the same was already revoked by him
on March 5, 1997. Thus, the motion for substitution should be denied.

On July 29, 1997, the court a quo issued an Order declaring that it cannot make a ruling as
to the conflicting claims of [Alamayri] and Atty. Vedasto Gesmundo. After the case was heard
on the merits, the trial court rendered its Decision on December 2, 1997, the dispositive
portion of which reads:

"WHEREFORE, judgment is hereby rendered as follows:

1. Declaring the handwritten Contract to Sell dated January 3, 1984 executed by

Nelly S. Nave and Sesinando Fernando null and void and of no force and effect;

2. Declaring the Deed of Absolute Sale dated February 20, 1984 executed by Nelly
S. Nave in favor of the [Pabale siblings] similarly null and void and of no force and
effect;

3. Recognizing Ms. Lolita P. [Alamayri] as the owner of the property covered by TCT
No. 111249 of the land records of Calamba, Laguna;
 4. Ordering the [Pabale siblings] to execute a transfer of title over the property in
favor of Ms. Lolita P. [Alamayri] in the concept of reconveyance because the sale in
their favor has been declared null and void;

5. Ordering the [Pabale siblings] to surrender possession over the property to Ms.
[Alamayri] and to account for its income from the time they took over possession to
the time the same is turned over to Ms. Lolita [Alamayri], and thereafter pay the said
income to the latter;

6. Ordering [Fernando] and the [Pabale siblings], jointly and severally, to pay Ms.
[Alamayri]:

a. attorney’s fees in the sum of P30,000.00; and

b. the costs.6

S.M. Fernando Realty Corporation, still represented by Fernando, filed an appeal with the Court of
Appeals, docketed as CA-G.R. CV No. 58133, solely to question the portion of the 2 December 1997
Decision of the RTC ordering him and the Pabale siblings to jointly and severally pay Alamayri the
amount of P30,000.00 as attorney’s fees.

The Pabale siblings intervened as appellants in CA-G.R. CV No. 58133 averring that the RTC erred
in declaring in its 2 December 1997 Decision that the Deed of Absolute Sale dated 20 February
1984 executed by Nave in their favor was null and void on the ground that Nave was found
incompetent since the year 1980.

The Court of Appeals, in its Decision, dated 10 April 2001, granted the appeals of S.M. Fernando
Realty Corporation and the Pabale siblings. It ruled thus:

WHEREFORE, premises considered, the appeal filed by S. M. Fernando Realty Corporation,

represented by its President, Sesinando M. Fernando as well as the appeal interposed by
Rommel, Elmer, Erwin, Roller and Amanda, all surnamed Pabale, are hereby GRANTED.
The Decision of the Regional Trial Court of Pasay City, Branch 119 in Civil Case No. 675-84-
C is hereby REVERSED and SET ASIDE and a new one rendered upholding the VALIDITY
of the Deed of Absolute Sale dated February 20, 1984.

No pronouncements as to costs.7

Alamayri sought reconsideration of the afore-quoted Decision of the appellate court, invoking the
Decision,8 dated 22 June 1988, of the RTC in the guardianship proceedings, docketed as SP.
PROC. No. 146-86-C, which found Nave incompetent, her condition becoming severe since 1980;
and thus appointed Atty. Leonardo C. Paner as her guardian. Said Decision already became final
and executory when no one appealed therefrom. Alamayri argued that since Nave was already
judicially determined to be an incompetent since 1980, then all contracts she subsequently entered
into should be declared null and void, including the Deed of Sale, dated 20 February 1984, which
she executed over the subject property in favor of the Pabale siblings.

According to Alamayri, the Pabale siblings should be bound by the findings of the RTC in its 22 June
1988 Decision in SP. PROC. No. 146-86-C, having participated in the said guardianship proceedings
through their father Jose Pabale. She pointed out that the RTC explicitly named in its orders Jose
Pabale as among those present during the hearings held on 30 October 1987 and 19 November
1987 in SP. PROC. No. 146-86-C. Alamayri thus filed on 21 November 2001 a Motion to Schedule
Hearing to Mark Exhibits in Evidence so she could mark and submit as evidence certain documents
to establish that the Pabale siblings are indeed the children of Jose Pabale.

Atty. Gesmundo, Nave’s surviving spouse, likewise filed his own Motion for Reconsideration of the
10 April 2001 Decision of the Court of Appeals in CA-G.R. CV No. 58133, asserting Nave’s
incompetence since 1980 as found by the RTC in SP. PROC. No. 146-86-C, and his right to the
subject property as owner upon Nave’s death in accordance with the laws of succession. It must be
remembered that Atty. Gesmundo disputed before the RTC the supposed transfer of his rights to the
subject property to Alamayri, but the court a quo refrained from ruling thereon.

In a Resolution, dated 19 December 2001, the Court of Appeals denied for lack of merit the Motions
for Reconsideration of Alamayri and Atty. Gesmundo.

Hence, Alamayri comes before this Court via the present Petition for Review on Certiorari under
Rule 45 of the Rules of Court, with the following assignment of errors:

THE COURT OF APPEALS ERRED IN HOLDING THAT THE FINDING THAT NELLY S.
NAVE WAS INCOMPETENT IN SPECIAL PROCEEDING NO. 146-86-C ON JUNE 22, 1988
CANNOT RETROACT TO AFFECT THE VALIDITY OF THE DEED OF SALE SHE
EXECUTED ON FEBRUARY 20, 1984 IN FAVOR OF RESPONDENTS PABALES.

II

THE COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION IN SPECIAL

PROCEEDING NO. 146-86-C DATED JUNE 22, 1988 IS NOT BINDING ON
RESPONDENTS PABALES.

III

THE COURT OF APPEALS ERRED IN DENYING PETITIONER’S MOTION TO SCHEDULE

HEARING TO MARK DOCUMENTARY EXHIBITS IN EVIDENCE TO ESTABLISH THE
IDENTITY OF JOSE PABALE AS THE FATHER OF RESPONDENTS PABALES.9

It is Alamayri’s position that given the final and executory Decision, dated 22 June 1988, of the RTC
in SP. PROC. No. 146-86-C finding Nave incompetent since 1980, then the same fact may no longer
be re-litigated in Civil Case No. 675-84-C, based on the doctrine of res judicata, more particularly,
the rule on conclusiveness of judgment.

This Court is not persuaded.

Res judicata literally means "a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment." Res judicata lays the rule that an existing final judgment or decree
rendered on the merits, and without fraud or collusion, by a court of competent jurisdiction, upon any
matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other
actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points and
matters in issue in the first suit.10
It is espoused in the Rules of Court, under paragraphs (b) and (c) of Section 47, Rule 39, which
read:

SEC. 47. Effect of judgments or final orders. – The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final
order, may be as follows:

xxxx

(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating the same thing and under the same title and in the
same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.

The doctrine of res judicata thus lays down two main rules which may be stated as follows: (1) The
judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their
privies to the litigation and constitutes a bar to a new action or suit involving the same cause of
action either before the same or any other tribunal; and (2) Any right, fact, or matter in issue directly
adjudicated or necessarily involved in the determination of an action before a competent court in
which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein
and cannot again be litigated between the parties and their privies whether or not the claims or
demands, purposes, or subject matters of the two suits are the same. These two main rules mark
the distinction between the principles governing the two typical cases in which a judgment may
operate as evidence.11 In speaking of these cases, the first general rule above stated, and which
corresponds to the afore-quoted paragraph (b) of Section 47, Rule 39 of the Rules of Court, is
referred to as "bar by former judgment"; while the second general rule, which is embodied in
paragraph (c) of the same section and rule, is known as "conclusiveness of judgment."

The Resolution of this Court in Calalang v. Register of Deeds provides the following enlightening
discourse on conclusiveness of judgment:

The doctrine res judicata actually embraces two different concepts: (1) bar by former
judgment and (b) conclusiveness of judgment.

The second concept — conclusiveness of judgment — states that a fact or question which
was in issue in a former suit and was there judicially passed upon and determined by a court
of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties
to that action and persons in privity with them are concerned and cannot be again litigated in
any future action between such parties or their privies, in the same court or any other court of
concurrent jurisdiction on either the same or different cause of action, while the judgment
remains unreversed by proper authority. It has been held that in order that a judgment in one
action can be conclusive as to a particular matter in another action between the same parties
or their privies, it is essential that the issue be identical. If a particular point or question is in
issue in the second action, and the judgment will depend on the determination of that
particular point or question, a former judgment between the same parties or their privies will
be final and conclusive in the second if that same point or question was in issue and
 adjudicated in the first suit (Nabus vs. Court of Appeals, 193 SCRA 732 [1991]). Identity of
cause of action is not required but merely identity of issues.

Justice Feliciano, in Smith Bell & Company (Phils.), Inc. vs. Court of Appeals (197 SCRA
201, 210 [1991]), reiterated Lopez vs. Reyes (76 SCRA 179 [1977]) in regard to the
distinction between bar by former judgment which bars the prosecution of a second action
upon the same claim, demand, or cause of action, and conclusiveness of judgment which
bars the relitigation of particular facts or issues in another litigation between the same parties
on a different claim or cause of action.

The general rule precluding the relitigation of material facts or questions which were
in issue and adjudicated in former action are commonly applied to all matters
essentially connected with the subject matter of the litigation. Thus, it extends to
questions necessarily implied in the final judgment, although no specific finding may
have been made in reference thereto and although such matters were directly
referred to in the pleadings and were not actually or formally presented. Under this
rule, if the record of the former trial shows that the judgment could not have been
rendered without deciding the particular matter, it will be considered as having settled
that matter as to all future actions between the parties and if a judgment necessarily
presupposes certain premises, they are as conclusive as the judgment itself.12

Another case, Oropeza Marketing Corporation v. Allied Banking Corporation, further differentiated
between the two rules of res judicata, as follows:

There is "bar by prior judgment" when, as between the first case where the judgment was
rendered and the second case that is sought to be barred, there is identity of parties,
subject matter, and causes of action. In this instance, the judgment in the first case
constitutes an absolute bar to the second action. Otherwise put, the judgment or decree of
the court of competent jurisdiction on the merits concludes the litigation between the parties,
as well as their privies, and constitutes a bar to a new action or suit involving the same cause
of action before the same or other tribunal.

But where there is identity of parties in the first and second cases, but no identity of
causes of action, the first judgment is conclusive only as to those matters actually and
directly controverted and determined and not as to matters merely involved therein. This is
the concept of res judicata known as "conclusiveness of judgment." Stated differently, any
right, fact, or matter in issue directly adjudicated or necessarily involved in the determination
of an action before a competent court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot again be litigated between the
parties and their privies whether or not the claim, demand, purpose, or subject matter of the
two actions is the same.13

In sum, conclusiveness of judgment bars the re-litigation in a second case of a fact or question
already settled in a previous case. The second case, however, may still proceed provided that it will
no longer touch on the same fact or question adjudged in the first case. Conclusiveness of judgment
requires only the identity of issues and parties, but not of causes of action.

Contrary to Alamayri’s assertion, conclusiveness of judgment has no application to the instant

Petition since there is no identity of parties and issues between SP. PROC. No. 146-86-C and Civil
Case No. 675-84-C.

No identity of parties
SP. PROC. No. 146-86-C was a petition filed with the RTC by Atty. Gesmundo for the appointment
of a guardian over the person and estate of his late wife Nave alleging her incompetence.

A guardian may be appointed by the RTC over the person and estate of a minor or an incompetent,
the latter being described as a person "suffering the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of
unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but
by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take
care of themselves and manage their property, becoming thereby an easy prey for deceit and
exploitation."14

Rule 93 of the Rules of Court governs the proceedings for the appointment of a guardian, to wit:

Rule 93

APPOINTMENT OF GUARDIANS

SECTION 1. Who may petition for appointment of guardian for resident. – Any relative,
friend, or other person on behalf of a resident minor or incompetent who has no parent or
lawful guardian, or the minor himself if fourteen years of age or over, may petition the court
having jurisdiction for the appointment of a general guardian for the person or estate, or both,
of such minor or incompetent. An officer of the Federal Administration of the United States in
the Philippines may also file a petition in favor of a ward thereof, and the Director of Health,
in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

SEC. 2. Contents of petition. – A petition for the appointment of a general guardian must
show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The minority or incompetency rendering the appointment necessary or

convenient;

(c) The names, ages, and residences of the relatives of the minor or incompetent,
and of the persons having him in their care;

(d) The probable value and character of his estate;

(e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void the
issuance of letters of guardianship.

SEC. 3. Court to set time for hearing. Notice thereof. – When a petition for the appointment
of a general guardian is filed, the court shall fix a time and place for hearing the same, and
shall cause reasonable notice thereof to be given to the persons mentioned in the petition
residing in the province, including the minor if above 14 years of age or the incompetent
himself, and may direct other general or special notice thereof to be given.

SEC. 4. Opposition to petition. – Any interested person may, by filing a written opposition,
contest the petition on the ground of majority of the alleged minor, competency of the alleged
 incompetent, or the unsuitability of the person for whom letters are prayed, and may pray
that the petition be dismissed, or that letters of guardianship issue to himself, or to any
suitable person named in the opposition.

SEC. 5. Hearing and order for letters to issue. – At the hearing of the petition the alleged
incompetent must be present if able to attend, and it must be shown that the required notice
has been given. Thereupon the court shall hear the evidence of the parties in support of their
respective allegations, and, if the person in question is a minor or incompetent it shall
appoint a suitable guardian of his person or estate, or both, with the powers and duties
hereinafter specified.

xxxx

SEC. 8. Service of judgment. – Final orders or judgments under this rule shall be served
upon the civil registrar of the municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated.

A petition for appointment of a guardian is a special proceeding, without the usual parties, i.e.,
petitioner versus respondent, in an ordinary civil case. Accordingly, SP. PROC. No. 146-86-C bears
the title: In re: Guardianship of Nelly S. Nave for Incompetency, Verdasto Gesmundo y Banayo,
petitioner, with no named respondent/s.

Sections 2 and 3 of Rule 93 of the Rules of Court, though, require that the petition contain the
names, ages, and residences of relatives of the supposed minor or incompetent and those having
him in their care, so that those residing within the same province as the minor or incompetent can be
notified of the time and place of the hearing on the petition.

The objectives of an RTC hearing a petition for appointment of a guardian under Rule 93 of the
Rules of Court is to determine, first, whether a person is indeed a minor or an incompetent who has
no capacity to care for himself and/or his properties; and, second, who is most qualified to be
appointed as his guardian. The rules reasonably assume that the people who best could help the
trial court settle such issues would be those who are closest to and most familiar with the supposed
minor or incompetent, namely, his relatives living within the same province and/or the persons caring
for him.

It is significant to note that the rules do not necessitate that creditors of the minor or incompetent be
likewise identified and notified. The reason is simple: because their presence is not essential to the
proceedings for appointment of a guardian. It is almost a given, and understandably so, that they will
only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so
as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated
to comply therewith.

Hence, it cannot be presumed that the Pabale siblings were given notice and actually took part in
SP. PROC. No. 146-86-C. They are not Nave’s relatives, nor are they the ones caring for her.
Although the rules allow the RTC to direct the giving of other general or special notices of the
hearings on the petition for appointment of a guardian, it was not established that the RTC actually
did so in SP. PROC. No. 146-86-C.

Alamayri’s allegation that the Pabale siblings participated in SP. PROC. No. 146-86-C rests on two
Orders, dated 30 October 198715 and 19 November 1987,16 issued by the RTC in SP. PROC. No.
146-86-C, expressly mentioning the presence of a Jose Pabale, who was supposedly the father of
the Pabale siblings, during the hearings held on the same dates. However, the said Orders by
themselves cannot confirm that Jose Pabale was indeed the father of the Pabale siblings and that he
was authorized by his children to appear in the said hearings on their behalf.

Alamayri decries that she was not allowed by the Court of Appeals to submit and mark additional
evidence to prove that Jose Pabale was the father of the Pabale siblings.

It is true that the Court of Appeals has the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the power to grant and conduct new trials or
further proceedings. In general, however, the Court of Appeals conducts hearings and receives
evidence prior to the submission of the case for judgment.17 It must be pointed out that, in this case,
Alamayri filed her Motion to Schedule Hearing to Mark Exhibits in Evidence on 21 November 2001.
She thus sought to submit additional evidence as to the identity of Jose Pabale, not only after CA-
G.R. CV No. 58133 had been submitted for judgment, but after the Court of Appeals had already
promulgated its Decision in said case on 10 April 2001.

The parties must diligently and conscientiously present all arguments and available evidences in
support of their respective positions to the court before the case is deemed submitted for judgment.
Only under exceptional circumstances may the court receive new evidence after having rendered
judgment;18 otherwise, its judgment may never attain finality since the parties may continually refute
the findings therein with further evidence. Alamayri failed to provide any explanation why she did not
present her evidence earlier. Merely invoking that the ends of justice would have been best served if
she was allowed to present additional evidence is not sufficient to justify deviation from the general
rules of procedure. Obedience to the requirements of procedural rules is needed if the parties are to
expect fair results therefrom, and utter disregard of the rules cannot justly be rationalized by harking
on the policy of liberal construction.19 Procedural rules are tools designed to facilitate the
adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And
while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress,
was never intended to forge a bastion for erring litigants to violate the rules with impunity. The
liberality in the interpretation and application of the rules applies only to proper cases and under
justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is
equally true that every case must be prosecuted in accordance with the prescribed procedure to
insure an orderly and speedy administration of justice.20

Moreover, contrary to Alamayri’s assertion, the Court of Appeals did not deny her Motion to
Schedule Hearing to Mark Exhibits in Evidence merely for being late. In its Resolution, dated 19
December 2001, the Court of Appeals also denied the said motion on the following grounds:

While it is now alleged, for the first time, that the [herein respondents Pabale siblings]
participated in the guardianship proceedings considering that the Jose Pabale mentioned
therein is their late father, [herein petitioner Alamayri] submitting herein documentary
evidence to prove their filiation, even though admitted in evidence at this late stage, cannot
bind [the Pabale siblings] as verily, notice to their father is not notice to them there being no
allegation to the effect that he represented them before the Calamba Court.21

As the appellate court reasoned, even if the evidence Alamayri wanted to submit do prove that the
Jose Pabale who attended the RTC hearings on 30 October 1987 and 19 November 1987 in SP.
PROC. No. 146-86-C was the father of the Pabale siblings, they would still not confirm his authority
to represent his children in the said proceedings. Worth stressing is the fact that Jose Pabale was
not at all a party to the Deed of Sale dated 20 February 1984 over the subject property, which was
executed by Nave in favor of the Pabale siblings. Without proper authority, Jose Pabale’s presence
at the hearings in SP. PROC. No. 146-86-C should not bind his children to the outcome of said
proceedings or affect their right to the subject property.

Since it was not established that the Pabale siblings participated in SP. PROC. No. 146-86-C, then
any finding therein should not bind them in Civil Case No. 675-84-C.

No identity of issues

Neither is there identity of issues between SP. PROC. No. 146-86-C and Civil Case No. 675-84-C
that may bar the latter, by conclusiveness of judgment, from ruling on Nave’s competency in 1984,
when she executed the Deed of Sale over the subject property in favor the Pabale siblings.

In SP. PROC. No. 146-86-C, the main issue was whether Nave was incompetent at the time of filing
of the petition with the RTC in 1986, thus, requiring the appointment of a guardian over her person
and estate.

In the cross-claim of Nave and Atty. Gesmundo against the Pabale siblings in Civil Case No. 675-84-
C, the issue was whether Nave was an incompetent when she executed a Deed of Sale of the
subject property in favor of the Pabale siblings on 20 February 1984, hence, rendering the said sale
void.

While both cases involve a determination of Nave’s incompetency, it must be established at two
separate times, one in 1984 and the other in 1986. A finding that she was incompetent in 1986 does
not automatically mean that she was so in 1984. In Carillo v. Jaojoco,22 the Court ruled that despite
the fact that the seller was declared mentally incapacitated by the trial court only nine days after the
execution of the contract of sale, it does not prove that she was so when she executed the contract.
Hence, the significance of the two-year gap herein cannot be gainsaid since Nave’s mental condition
in 1986 may vastly differ from that of 1984 given the intervening period.

Capacity to act is supposed to attach to a person who has not previously been declared incapable,
and such capacity is presumed to continue so long as the contrary be not proved; that is, that at the
moment of his acting he was incapable, crazy, insane, or out of his mind.23 The burden of proving
incapacity to enter into contractual relations rests upon the person who alleges it; if no sufficient
proof to this effect is presented, capacity will be presumed.24

Nave was examined and diagnosed by doctors to be mentally incapacitated only in 1986, when the
RTC started hearing SP. PROC. No. 146-86-C; and she was not judicially declared an incompetent
until 22 June 1988 when a Decision in said case was rendered by the RTC, resulting in the
appointment of Atty. Leonardo C. Paner as her guardian. Thus, prior to 1986, Nave is still presumed
to be capacitated and competent to enter into contracts such as the Deed of Sale over the subject
property, which she executed in favor of the Pabale siblings on 20 February 1984. The burden of
proving otherwise falls upon Alamayri, which she dismally failed to do, having relied entirely on the
22 June 1988 Decision of the RTC in SP. PROC. No. 146-86-C.

Alamayri capitalizes on the declaration of the RTC in its Decision dated 22 June 1988 in SP. PROC.
No. 146-86-C on Nave’s condition "having become severe since the year 1980."25 But there is no
basis for such a declaration.The medical reports extensively quoted in said Decision, prepared by:
(1) Dr. Nona Jean Alviso-Ramos, dated 14 April 1986,26 and (2) by Dr. Eduardo T. Maaba, dated 20
April 1987,27 both stated that upon their examination, Nave was suffering from "organic brain
syndrome secondary to cerebral arteriosclerosis with psychotic episodes," which impaired her
judgment. There was nothing in the said medical reports, however, which may shed light on when
Nave began to suffer from said mental condition. All they said was that it existed at the time Nave
was examined in 1986, and again in 1987. Even the RTC judge was only able to observe Nave,
which made him realize that her mind was very impressionable and capable of being manipulated,
on the occasions when Nave visited the court from 1987 to 1988. Hence, for this Court, the RTC
Decision dated 22 June 1988 in SP. PROC. No. 146-86-C may be conclusive as to Nave’s
incompetency from 1986 onwards, but not as to her incompetency in 1984. And other than invoking
the 22 June 1988 Decision of the RTC in SP. PROC. No. 146-86-C, Alamayri did not bother to
establish with her own evidence that Nave was mentally incapacitated when she executed the 20
February 1984 Deed of Sale over the subject property in favor of the Pabale siblings, so as to render
the said deed void.

All told, there being no identity of parties and issues between SP. PROC. No. 146-86-C and Civil
Case No. 675-84-C, the 22 June 1988 Decision in the former on Nave’s incompetency by the year
1986 should not bar, by conclusiveness of judgment, a finding in the latter case that Nave still had
capacity and was competent when she executed on 20 February 1984 the Deed of Sale over the
subject property in favor of the Pabale siblings. Therefore, the Court of Appeals did not commit any
error when it upheld the validity of the 20 February 1984 Deed of Sale.

WHEREFORE, premises considered, the instant Petition for Review is hereby DENIED. The
Decision, dated 10 April 2001, of the Court of Appeals in CA-G.R. CV No. 58133, is
hereby AFFIRMED in toto. Costs against the petitioner Lolita R. Alamayri.

SO ORDERED.
 epublic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45622 May 5, 1939

JUAN GOROSTIAGA, plaintiff-appellee,

vs.
MANUELA SARTE, defendant-appellant.

Calleja and Sierra for appellant.

Bonto and Gutierrez Lora for appellee.

MORAN, J.:

On May 27, 1936, Juan Gorostiaga, plaintiff-appellee, institutes an action against Manuela Sarte to
recover the sum of P2,285.51. An answer was filed by Attorney Gregorio A. Sabater in the name of
the defendant, wherein a general denial was made, and several defenses interposed, among them,
that the defendant was physically and mentally incompetent to manage her estate. At the trial, the
defendant did not appear in court and her non-appearance had no been accounted for. On
September 21, 1996, judgment was rendered sentencing the defendant to pay the amount claimed.
On December 23, 1936, a motion under section 113 of Act No. 190 was filed by the general
guardian of the defendant, praying that all the proceedings had against the defendant be declared
null and void for lack of jurisdiction over her person. The motion was denied; hence, this appeal.

There is no question about the facts. On May 18, 1936, that is, nine days prior to the institution of the
action against the defendant, a petition for guardianship was filed with the lower court in favor of the
defendant, on the ground that she was incompetent to manage her estate by reason of her physical
and mental incapacity. After hearing the petition, wherein the depositions of alienists were
presented, the court issued an order declaring that the defendant Manuela Sarte "se halla ficica y
mentalmente incacitada para administrar sus bienes poe razon de debelidad senil, cuya inteligencia
si bien le permite sostener una conversacion por algunos minutos de una manera satisfactoria, no
tiene la consistencia necesaria para atender a sus necesidas y administrar sus propios bienes."

Although this order was issued on December 3, 1936, it relates to the incapacity alleged in the
petition of May 18, 1936. Consequently, the incapacity thus declared existed at least at the date of
the filing of the petition, that is, on May 18, 1936, nine days prior to the institution of the action in the
present case. In fact, according to the evidence relied upon by the lower court, the defendant was
incompetent to manage her affairs for about two or three years prior to her examination by the
alienists. It appears thus clear that during all the proceedings in the case at bar, from the time of the
filing of the complaint to the rendition of the judgment, the defendant was physically and mentally
unfit to manage her affairs, and there having been no summons and notices of the proceedings
served her and her guardian, because no guardian was then appointed for her, the court trying the
action acquired no jurisdiction over her person (sec. 396, No. 4, of Act No. 190).

It is argued that Attorney Gregorio A. Sabater appeared for the defendant in the case and filed an
answer in her behalf and that the attorney's authority is presumed as well as the capacity of the
defendant giving the authority. But this presumption is disputable and it is here entirely rebutted by
no less than an order of the same court declaring the defendant physically and mentally unfit to
manage her estate since at least May 18, 1936. If the defendant was thus incompetent, she could
not have validly authorized the attorney to represent her. And if the authority was given by her
relatives, it was not sufficient except to show the attorney's good faith in appearing in the case.

It is contended that the issue as to the incapacity of the defendant was pleaded in defendant's
answer and was squarely decided and that therefore it cannot be reopened unless on the ground of
newly discovered evidence. That answer was, however, filed by an attorney not validly authorized to
appear for the defendant who had never been in court except when her guardian filed a motion to
quash all the proceedings for lack of jurisdiction. In matters of this kind, affecting the jurisdiction of
the court and the validity of all proceedings, the court, instead of observing a passive attitude, should
take the initiative of, and exercise utmost care in, ascertaining the facts. And although the evidence
gathered at the trial is insufficient, if, after judgment, the lack of jurisdiction is clearly shown, and
there has been no waiver thereof, as in this case where a waiver could not have been possible, it is
the duty of the court to set aside all the proceedings, take the necessary steps to acquire jurisdiction,
and grant a new trial. The position taken by the lower court in this case can hardly be reconciled with
its position in the guardianship proceedings.

Appellee contends that in the motion filed by the guardian under section 113 there is no showing of
mistake, inadvertence, surprise or excusable negligence as grounds for relief provided therein. It is,
however, more than a surprise to the defendant that she be tried and sentenced without valid
summons or notice. And as to the affidavits of merit required to be attached to a motion under
section 113, they are not necessary, as we have already held, where the court acted without
jurisdiction over the defendant's person. (Coombs vs. Santos, 24 Phil., 446.)

Judgment is reversed, all the proceedings had in the lower court are hereby declared null and void,
and the case is remanded to the court below for new trial after the guardian making him a party
defendant. With costs against appellee.

Avanceña, C.J., Villa-Real, Diaz, Laurel, and Concepcion, JJ., concur.