Trustee

G.R. No. L-16708 October 31, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO all surnamed PEREZ Y TUASON, PHILIPPINE NATIONAL BANK, Judicial Guardian of BENIGNO PEREZ, ANTONIO M. PEREZ, judicial guardian-appellant, vs. J. ANTONIO ARANETA, trustee-appellee. Alfonso Felix, Jr. for judicial guardian-appellant. Araneta and Araneta for trustee-appellee. CONCEPCION, J.: This is an appeal by writ of error from an order of the Court of First Instance of Rizal denying a motion of appellant, Antonio M. Perez, as judicial guardian of his children, the minors Benigno, Angela, and Antonio, all surnamed Perez y Tuason. In pursuance of the provisions of the will of the late Angela S. Tuason which was probated in Special Proceedings No. 585 of said Court appellee J. Antonio Araneta was on March 24, 1950, appointed, in Special Proceedings No. Q-73 of the same Court, as trustee of property bequeathed by the deceased to some of her heirs, including her grandchildren, the aforementioned minors. On October 4, 1950, appellee moved for the approval of accounts and the fixing of his compensation as such trustee. Appellant's wife, Angela I. Tuason, hereafter referred to as Mrs. Perez, as well as the mother and guardian at the time, of said minors, objected thereto and urged the court to remove appellee as trustee and appoint the Philippine Trust in his place and to revoke, not only certain sale made by him, but, also, an order of the court dated March 24, 1950, granting him the power to sell trust properties without special judicial authorization therefor. Subsequently, appellant joined his wife in seeking this relief. After appropriate proceedings, said Court issued on December 23, 1950, an order approving said accounts, deferring action on the compensation of the trustee, modifying in part said order of March 24, 1950, and denying the motion of Mrs. Perez. The pertinent part of the aforementioned order of December 23, 1950, reads as follows: It being established that the trust was expressly created by the deceased, we shall now examine whether the trustee comes under the active supervision of the Court and whether our order of March 24, 1950, granting to said trustee authority to sell the trust res without the need of judicial authorization erroneous or not. The Court accepts in view urged by the trustee that only when the testator "has omitted in his will to appoint a trustee" may the Court appoint one. This is in a accordance with Section 2, Rule 99, of the Rules of Court. When an express trust has been created, the powers of the trust shall be determined by the trust instrument itself. In this particular case, the trustee J. Antonio Araneta was given "amplios poderes de vender los mismos". The testatrix emphasizes her desire that the trustee shall have ample powers when in another part of her will she states that the powers of said trustee shall be "los poderes mas amplios permitidos por la ley". There is nothing against the law for a trustor to grant to the trustee ample powers, and when the deceased Angela S. Tuason granted said powers to the trustee, she emphasized her intention that in the exercise of said powers by the trustee, there should be no court supervision. "By the terms of trust, it may be left to the discretion of the trustee whether or not to exercise a power, or where he is directed to exercise the power, the time and manner of its exercise may be left to his discretion. To the extent to which the trustee

has discretion, the Court will not control his exercise as long as he do not exceed the limits of the discretion conferred upon him. The court will not substitute its own judgment for his . . . . The cases are numerous in which it has been held that where discretion is conferred upon the trustee with respect to the exercise of a power, the court will not interfere with him in his exercise or failure to exercise the power so long as he is not guilty of an abuse of discretion. (Scott on Trusts, Vol. 2, Sec. 187)" Such being the case, there is no reason for the court to intervene in the execution by the trustee of the powers granted to him by the trustor. We conclude, therefore, that our order of March 24, 1950 granting authority to the trustee J. Antonio Araneta to sell the trust res without judicial authority is correct. For the purpose, however, of safeguarding the interests of the beneficiaries of this trust, said order is hereby amended as follows: (a) That the bond of the trustee is hereby increased from P10,000.00 to P30,000.00 and the premium for the bond (P30,000.00) shall be for the account of the trust; (b) That the Trustee may sell, encumber or otherwise dispose of any of the trust res without the need of judicial authorization; provided, that if the amount involved exceeds P30,000.00, the trustee shall notify the natural guardians or the judicial guardian in case there be one appointed by the Court of the beneficiaries ten (10) days before the proposed sale or encumbrance is executed, and in case the amount involved be P30,000.00 or less, the trustee shall advise said guardians within ten (10) days after executing a deed of sale or encumbrance. WHEREFORE, (1) the accounts filed by the trustee as per Annexes A, B, and C attached to his motion of October 5, 1950 are hereby approved; (2) the petition of trustee to fix his compensation is hereby deferred until such time as he shall present it again; (3) the petition filed by the parents of the minors for the removal of the trustee J. Antonio Araneta is hereby denied. Likewise, their petition that the Philippine Trust Co. or Atty. Frank W. Brady be appointed co-trustee denied; 4) the petition that the sale of the bed in favor of Antonio Tuason, Jr. be revoked is hereby denied; and (5) the petition that the order of this court, dated March 24, 1950, giving the trustee power to sell without the need of judicial authorization be revoked is also hereby denied. A reconsideration of this order having been denied, & Mrs. Perez filed with the Supreme Court a petition G.R. No. L-6182 thereof for certiorari, with preliminary injunction, to annul said orders of March 24 and December 23, 1950. A writ of preliminary injunction was issued this by Court soon thereafter. In a decision promulgated April 13, 1955, we denied said petition and dissolved said writ of preliminary injunction. In pursuance of the aforementioned orders of March 24 and December 23, 1950, appellee wrote on June 23, 1959, to appellant, as the then judicial guardian of said minor a letter informing him of a proposed sale to Ortigas & Co., Ltd., of several lots under trusteeship, located in Marikina, Rizal, and aggregating 42.6091 hectares, at the rate of P2.93 a square meter. We quote from said communicable petition: Pursuant to the order of the Court of First Instance of Quezon City in trusteeship proceeding No. Q-73, I with to advise you that ten (10) days after your receipt of this letter, I, in my capacity as trustee in said proceedings, shall execute deed of sale with mortgage in favor of

Ortigas & Company Limited Partnership, the following lots located at Marikina which form part of the trust estate: T.C.T. No. (Rizal) 22395 " " " " 22396 " " Area (Sq m.) 249 138,682 273 159,054 21,089 24,040 7,968 74,736

Lote No. 49-C-3-A-3-C-1-A-2 49-C-3-A-3-C-2-A-2-B 49-C-3-A-3-C-1-A-1 49-C-3-A-3-C-2-A-2-A 49-C-3-A-3-C-2-A-7 49-C-3-A-3-C-3-A-3-1-4 49-C-3-A-3-C-3-A-3-A-4-A1 49-C-3-A-3-C-3-A-3-A-4-A3

Psd. 29965 " " " 18247 29965 " "

The price is P1,250,000.00 payable under the following conditions: 1. Upon acceptance of the proposal, the sum of P20,000.00. 2. Upon signing the deed of sale with mortgage, the sum of P300,000.00. 3. The balance shall be paid within a period of one and a half-years, with interest at 6% per annum. 4. The property must be sold from all liens and encumbrances, particularly a guarantee that there are no squatters. 5. Broker's commission shall be for buyer's account. Three (3) days later, appellant informed appellee by letter (Exhibit C) of his (appellant's) objections to the proposed sale. Moreover, on July 1, 1959 appellant filed, in the trusteeship proceedings, a motion praying for a writ of preliminary injunction to restrain appellee from proceeding with the sale. Subsequently, the Philippine National Bank, as guardian of the estate of Benigno Perez y Tuason, one of the heirs of Angela I. Tuason, deceased, adopted said motion of appellant herein as its own. At the instance of appellant, a notice of lis pendenswas, on July 29, 1959, annotated on the original certificates of title to the property in question. After due hearing, the lower court issued an order, dated October 15, 1959, denying appellant's motion and petition for a writ of preliminary injunction. Hence, this appeal by Antonio M. Perez. The Philippine National Bank has not joined him in the appeal. Subsequently, appellee effected the sale aforementioned to Ortigas & Co., Ltd.

The main issues are: (1) whether or not the sum of P2.93 per square meter agreed upon with Ortigas & Co., Ltd., is the fair market value of the property aforementioned; and (2) whether the sale thereof would be injurious to the interest of the beneficiaries or cestui que trust. With respect to the first issue, appellant maintains that the fair market value of the property above referred to is P5.00 a square meter, as stated in the report (Exhibit E) of his realty estate expert, Mr. A. Varias. It appears from this report that the conclusion therein reached by Mr. A. Varias is based upon (a) some offers to sell properties located in the vicinity of the one involved in this case; and (b) certain sales of real estate specified in the report. However, offers to sell are not competent evidence of the fair market value of a property. Said offers to sell are no better than offers to buy, which have been held be inadmissible as proof of said value. (City of Manila Estrada, 25 Phil. 208; Manila Railroad Co. vs. Aguila 35 Phil. 118; City of Davao vs. Dacudao L-3741, May 2, 1952.) Indeed, . . . To imagine a sale without a buyer would be absurd, for if there is no buyer the commodity would bring nothing . . . . In discussing the term "market value" the author of a well-known treaties on the subject of damages observes that to make a market there must be both buying and selling; and the "market value" says he, is that reasonable sum which the property would bring on a fair sale by a man willing but not obliged to sell to a man willing but not obliged to buy. (Sedgewick on Damages, sec. 245; cited in Compagnie Franco-Indo Chinoise vs. Deutsch-Australiache, 39 Phil. 474.) The aforementioned report relies, also, upon the sale a lot of 9,679 square meters at P5.70 a square meter and two (2) sales each of lot of 20,000 square meters and a sale of a lot of 281,452 square meters, at P4.00 square meter. These transactions can not serve as basis for the determination of the value of the property in dispute for the lands involved in the former are much smaller than the latter, the area of which is 426,091 square meters, and it is a matter of common knowledge that the price becomes lesser as the size of the property sold becomes bigger. Moreover, the lands covered by said transactions do not appear to be in the vicinity of the property in litigation. What is more, no effort has been made to prove that the nature and condition of the former are analogous, or at least, comparable to those of the latter. In Manila Railroad Co. vs. Mitchell (49 Phil. 801), this Court held: . . . The exhibits were clearly inadmissible in evidence and properly rejected by the (lower) court. In order that such evidence may be admitted, it is necessary that the properties sold be in the immediate neighborhood or within the zone of the commercial activity with which the condemned property is identified. (Emphasis supplied.) Upon the other hand, it appears that in 1955 the Universal Textile Mills bought a lot of 110,004 square meters near the trust properties in question at P2.50 a square meter, whereas a land of 213,458 square meters, situated in the same neighborhood, was, in 1956, acquired by the Manila Bay Spinning Mill, at P1.50 a square meter. Again, prior to the sale of said trust properties to Ortigas & Co., Ltd. offers to purchase the same neighborhood were made by United Laboratories, Inc. and one Mr. Philipps at P2.50 and P2.70, respectively, a square meter. It would thus appear that the price of P2.93 a square meter agreed upon with Ortigas & Co., Ltd. is fairly representative of the market value of said land, and this is borne out by the testimony of Arturo Ruis and Lauro Marquez, the real estate brokers who took the witness stand for herein appellee. It is next urged that the sale of the property in question is not only unnecessary, but also injurious to the minors represented by appellant herein, by reason of possible devaluation, and high income

taxes. This pretense is predicated, however, upon sheer speculation. Furthermore, the last will and testament of Angela S. Tuason, in pursuance of which the trust was established, provides that: Cuarta. Instituyo como mis unicos herederos a mis mencionados tres hijos a razon de una novena parte del caudal hereditario que dejare para cada uno de rellos. Lego a mi hijo Antonio otra porcion equivalente a dos novenas partes del caudal hereditario. Lego asi mismo a mis nietos que fueren hijos de mi hija Nieves, otra porcion equivalents a dos novenas partes del caudal hereditario. Y finalmeinte lego a mis nietos que fueren hijos de mi hija Angela otra porcion equivalente a dos novenas partes del caudal hereditario. Dichos tres legados, sin embargo, estansuietos a la manda que se menciona en el parrafo siguiente Los dos legados a favor de mis mencionados nietos seran administrados por mi Albacea J. Antonio Araneta (y en defecto de este, su hermano, Salvador Araneta), con amplios poderes de Nender los mismos, y con su producto adquirir otros bienes, y con derecho a cobrar por su administracion, honorarios razonables Los poderes de dicho administrador seran los de un trustee con los poderes mas amplias permitidos por la ley Debera sin embargo, rendir trimestral mente cuenta de su administracion a los legatarios que fueren mayores de edad y a los tutores de los que fueren menores de edad Y asimismo debera hacerles entrega de la participacion que a cada legatario corresponda en las rentas netas de la administracion. La administracion sobre un grupo cesara cuando todos mis nietos de dicho grupo llegaren a su mayoria de edad, y una mayoria de los mismos acordaren la terminacion de la administracion. Por nietos debe entenderse so nolamente a los nietos varones sino tambien a los nietos mujeres. Referring to this provision of said will, we had occasion to say in G.R. No. L-6182: . . . throughout clause 4 of the will, one can see that the testatrix placed implicit confidence and trust in Araneta whom she designated as trustee, and for him to continue for a long time, not only until the minor children of Angela S. Tuason including those yet unborn, attained the age of majority but only when a majority of them decided to end the trust. In short, the trustor had such faith and confidence appellee that she relied fully upon his judgment and discretion. The exercise thereof by appellees should not be disturbed, therefore, except upon clear proof of fraud or bad faith, or unless the transaction in question is manifestly prejudicial to the interest of the minors aforementioned petitioned. Such is not the situation obtaining in the present case. WHEREFORE, the orders appealed from are hereby affirmed, with costs against the appellant. It is so ordered.

Adoption
1. IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, G.R. Nos. 168992-93 Present:

PUNO, C.J., Chairperson, Petitioner. CARPIO, x - - - - - - - - - - - - - - - - - - - - - - - x CORONA, LEONARDO-DE CASTRO, and IN RE: PETITION FOR BERSAMIN, JJ. ADOPTION OF MICHAEL JUDE P. LIM, Promulgated: MONINA P. LIM, Petitioner. May 21, 2009 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO, J.:

The Case This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision[1] dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the childrens parents. The children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.[3] Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4] The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname Lim in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. Thereafter, petitioner decided to adopt the children by availing of the amnesty[5] given under Republic Act No. 8552[6] (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old. Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.[7] Michael also gave his consent to his adoption as shown in his Affidavit of Consent.[8] Petitioners husband Olario likewise executed an Affidavit of Consent[9] for the adoption of Michelle and Michael. In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown.[10] The DSWD issued a similar Certification for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code. Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities. Hence, the present petition.

Issue Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

The Courts Ruling Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She argues that joint parental authority is not

necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. We deny the petition. Joint Adoption by Husband and Wife It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4 th) degree of consanguinity or affinity of the Filipino spouses; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these qualifications were shown and proved during the trial. These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and

physical character and well-being.[13] The father and the mother shall jointly exercise parental authority over the persons of their common children.[14] Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.[15] It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age[16] emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life.[17] However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:
ARTICLE V EFFECTS OF ADOPTION SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the

relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled[20] such as support[21] and successional rights.[22] We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. [23] But, as we have ruled in Republic v. Vergara:[24]
We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner. Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. SO ORDERED.

2. [G.R. No. 143989.

July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as DR. MELVIN S. LAHOM), respondent. DECISION
VITUG, J.:

The bliss of marriage and family would be to most less than complete without children. The realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition was issued that made all the more intense than before the feeling of affection of the spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City changed the name Jose Melvin Sibulo to Jose Melvin Lahom. A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred 7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had made known his desire to revoke respondents adoption, but was prevented by petitioners supplication, however with his further request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future. x x x x xxx x x

10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo. x x x x xxx x x

13. That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga to see her once a year.

14. That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a leg ailment, and those were the times when petitioner would need most the care and support from a love one, but respondent all the more remained callous and utterly indifferent towards petitioner which is not expected of a son. 15. That herein respondent has recently been jealous of petitioners nephews and nieces whenever they would find time to visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner. 16. That in view of respondents insensible attitude resulting in a strained and uncomfortable relationship between him and petitioner, the latter has suffered wounded feelings, knowing that after all respondents only motive to his adoption is his expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes, has been negated for which reason there is no more basis for its existence, hence this petition for revocation.
[1]

Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of adoption. Section 19 of Article VI of R.A. No. 8552 now reads: SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. (emphasis supplied) Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A.

No. 8552. Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where the ground for rescission of the adoption vested under the regime of then Article 348 of the Civil Code and Article 192 of the Family Code.
[2] [3]

In an order, dated 28 April 2000, the trial court held thusly: On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No. 99-11-07 SC. On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not, admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil. 365). Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed there is lack of cause of action. Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be respected. Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said right should have been exercised within the period allowed by the Rules. From the averments in the petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more than five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court) WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed.
[4]

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552? 2. In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide some insights on the subject. In ancient times, the Romans undertook adoption to assure male heirs in the family. The continuity of the adopters family was the primary purpose of adoption and all matters relating to it basically focused on the rights of the adopter. There was hardly any mention about the rights of
[5]

the adopted. Countries, like Greece, France, Spain and England, in an effort to preserve inheritance within the family, neither allowed nor recognized adoption. It was only much later when adoption was given an impetus in law and still later when the welfare of the child became a paramount concern. Spain itself which previously disfavored adoption ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its way to the archipelago. The Americans came and introduced their own ideas on adoption which, unlike most countries in Europe, made the interests of the child an overriding consideration. In the early part of the century just passed, the rights of children invited universal attention; the Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948, followed by the United Nations Declarations of the Rights of the Child, were written instruments that would also protect and safeguard the rights of adopted children. The Civil Code of the Philippines of 1950 on adoption, later modified by the Child and Youth Welfare Code and then by the Family Code of the Philippines, gave immediate statutory acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the Convention of the Rights of the Child. The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed with social and moral responsibility, and that its underlying intent was geared to favor the adopted child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it affirmed the legitimate status of the adopted child, not only in his new family but also in the society as well. The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption.
[6] [7] [8] [9] [10] [11] [12] [13] [14]

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the Family Code, the laws then in force. The concept of vested right is a consequence of the constitutional guaranty of due process that expresses a present fixed interestwhich in right reason and natural justice is protected against arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested. Rights are considered vested when the right to enjoyment is a present interest, absolute, unconditional, and perfect or fixed and irrefutable.
[15] [16] [17] [18] [19]

In Republic vs. Court of Appeals, a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth
[20]

Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought by either spouse or both of them. After the trial court had rendered its decision and while the case was still pending on appeal, the Family Code of the Philippines (Executive Order No. 209),mandating joint adoption by the husband and wife, took effect. Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by the husband. The Court concluded that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. The petition to adopt Jason, having been filed with the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according to the Court had become vested. In Republic vs. Miller, spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to formalize Michaels adoption having theretofore been taken into their care. At the time the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while on appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children. The Republic then prayed for the withdrawal of the adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled that the controversy should be resolved in the light of the law governing at the time the petition was filed.
[21]

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of adoption granted in 1975. By then, the new law, had already abrogated and repealed the right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court should now hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force, no longer could be pursued.
[22]

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the fiveyear bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in statutory privileges. While adoption has often been referred to in the context of a right, the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created by statute. It is a privilege that is governed by the states determination on what it may deem to
[23] [24] [25]

be for the best interest and welfare of the child. Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the State. Concomitantly, a right of actiongiven by statute may be taken away at anytime before it has been exercised.
[26] [27] [28]

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lexwould be the hackneyed truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude him from having a share in the disposable portion of his estate. WHEREFORE, the AFFIRMED. No costs. SO ORDERED. assailed judgment of the court a quo is

3. G.R. No. 118870.

March 29, 1996]

NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ,respondents. DECISION
ROMERO, J.:

Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of resolving conflicts, the most celebrated case being that when his authority was invoked to determine the identity of the real mother as between two women claiming the same infant. Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one.

In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have rightful custody of a child who bears in his person both their genes. While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a decision have arrived at diametrically opposite conclusions. It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the other. On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boys father Ray C. Perez, reversing the trial courts decision to grant custody to Nerissa Z. Perez, the childs mother. Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner herein, is a registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20, 1992. Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house in Mandaue City,Cebu. She also sought medical attention for her successive miscarriages in New York. She became a resident alien in February 1992. Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife, however, he had only a tourist visa and was not employed. On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S. She alleged that they came home only for a five-week vacation and that they all had round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working. She was supposed to come back immediately after winding up her affairs there. When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on good terms. That their love for each other was fading became apparent from their serious quarrels. Petitioner did not want to live near her in-laws and rely solely on her husbands meager income of P5,000.00. She longed to be with her only child but he was being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior)
1

with her husband and in-laws. She wished for her son to grow up with his mother. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He maintained that it would not be difficult to live here since they have their own home and a car. They could live comfortably on his P 15,000.00 monthly income as they were not burdened with having to pay any debts.
2

Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite mediation by the priest who solemnized their marriage, the couple failed to reconcile. On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus asking respondent Ray C. Perez to surrender the custody of their son, Ray Z. Perez II, to her.
3

On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa Perez, citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The dispositive portion of the Order reads: WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the custody of their child Ray Cortes Perez II, his passport and roundtrip ticket to herein petitioner with a warning that if he will escape together with the child for the purpose of hiding the minor child instead of complying with this Order, that warrant for his arrest will be issued. SO ORDERED.
4

Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial courts order and awarded custody of the boy to his father.
5

Petitioners motion for reconsideration having been denied, she filed the instant petition for review where the sole issue is the custody of Ray Perez II, now three years old.
6

Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa Perez custody over Ray II even if the child is under seven years old. It held that granting custody to the boys father would be for the childs best interest and welfare.
7

Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child. It is sad that petitioner and private respondent have not found it in their hearts to understand each other and live together once again as a family. Separated in fact, they now seek the Courts assistance in the matter of custody or parental authority over the child. The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the mother complement each other in giving nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child. By precept and example, they mold his character during his crucial formative years. However, the Courts intervention is sought in order that a decision may be made as to which parent shall be given custody over the young boy. The Courts duty is to determine whether Ray Perez II will be better off with petitioner or with private respondent. We are not called upon to declare which party committed the greater fault in their domestic quarrel. When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides: ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Italics supplied) Since the Code does not qualify the word separation to mean legal separation decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms.
8

The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides: SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age,

unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor. (Italics supplied) The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word shall in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San JoseLacson, the Court declared:
9

The use of the word shall in Article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court.
10 11

The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child; those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation. (Report of the Code Commission, p. 12)
12

The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the childs age to five years.
13

The general rule that a child under seven years of age shall not be separated from his mother finds its raison detre in the basic need of a child for his mothers loving care. Only the most compelling of reasons shall justify the courts awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past
14

the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.
15 16 17 18

It has long been settled that in custody cases, the foremost consideration is always the Welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
19 20

Courts invariably look into all relevant factors presented by the contending parents, such as their material resources, social and moral situations.
21

In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against her. The records, however, show that she is employed in a New York hospital and was, at the time the petition was filed, still abroad. She testified that she intends to apply for a job elsewhere, presumably to improve her work environment and augment her income, as well as for convenience. The Court takes judicial notice of the fact that a registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private respondent, a doctor who by his own admission could not find employment there, petitioner immediately got a job in New York. Considering her skill and experience, petitioner should find no difficulty in obtaining work elsewhere, should she desire to do so.
22 23 24

The decision under review casts doubt on petitioners capability to take care of the child, particularly since she works on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the child until he is able to take care of himself. Others go on leave from work until such time as the child

can be entrusted to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids or yayas under the eagle eyes of the mother. Third, private respondents work schedule was not presented in evidence at the trial. Although he is a general practitioner, the records merely show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. Hence, respondent courts conclusion that his work schedule is flexible (and h)e can always find time for his son is not well-founded. Fourth, the fact that private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioners work schedule cited in the respondent courts decision is not necessarily permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish upon her child the utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate time for him. Finally, it does not follow that petitioner values her career more than her family simply because she wants to work in the United States. There are any number of reasons for a persons seeking a job outside the country, e.g. to augment her income for the familys benefit and welfare, and for psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from her job to be able to construct a house for the family in Mandaue City. The record describes sketchily the relations between Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not exert earnest efforts and make sacrifices to save her marriage.
25 26

It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated several times over a period of six years to finally bear one, only for the infant to be snatched from her before he has even reached his first year. The mothers role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mothers love has been immortalized times without number, finding as it does, its justification, not in fantasy but in reality. WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as well as its Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is immediately executory. SO ORDERED.

Habeas Corpus
DAVID VS. COURT OF APPEALS 250 SCRA 82 PONENTE: JUSTICE MENDOZA FACTS: 1. Petitioner Daisie David worked as secretary of private respondent Ramon Villar, a businessman. 2. Private respondent is a married man and the father of four children, all grown-up. 3. The relationship between Daisie and Ramon developed into an intimate one, as a result Christopher J was born to them followed by two more children, both girls. 4. Private respondents wife knew of the relationship when Daisie took Christopher J to Ramons house. 5. After this, the children of Daisie were freely brought by Ramon to his house as they were eventually accepted by his legal family. 6. In summer 1991, Ramon asked Daisie to allow Christopher J, then 6 years old to go with his family to Boracay. 7. Daisie agreed, but after the trip Ramon refused to give back the child. 8. Daisie filed a petitioner for Habeas Corpus on behalf of Christopher J. 9. The RTC rendered judgment in favor of Daisie, granting rightful custody to the natural mother. 10. The CA reversed on appeal holding that Habeas Corpus was not proper; the question of custody of a minor child may be decided in a Habeas Corpus case contemplates a situation where the parents are married to each other but are separated. 11. Hence this petition. ISSUE: Is the remedy of Habeas Corpus proper? HELD: It is indeed true, as the CA observed that the determination of the right to the custody of minor children is relevant in cases where the parents, who are married to each other, are for some reason separated from each other. It does not follow, however, that it cannot arise in any other situation. For example, in the case of SALVANA VS. GAELA (55 PHIL 680), it was held that the writ of habeas corpus is the proper remedy to enable parents to regain the custody of a minor daughter even though the latter be in the custody of a third person of her free will because the parents were compelling her to marry a man against her will. In the case at bar, Christopher J is an illegitimate child since at the time of his conception, his father, private respondent Ramon R. Villar, was married to another woman other than the childs mother. As such pursuant to Article 176 of the family Code, Christopher J is under the parental authority of his mother, the herein petitioner, who, as a consequence of such authority, is entitled to have custody of him. Since, admittedly, petitioner has been deprived of her rightful custody of her child by private respondent, she is entitled to the issuance of the writ of Habeas Corpus. The fact that private respondent has recognized the minor child may be a ground for ordering him to give support to the latter, but not for giving him custody of the child. Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. That petitioner receives help from her parents and sister for the support of the three children is not a

point against her. Cooperation , compassion, love and concern for every member of the family are characteristics of the close family ties that bind the Filipino family and have made it what it is. 2. Madrinian vs madrinian Gr 159347 July 12, 2007

FIRST DIVISION FELIPE N. MADRIAN, Petitioner, G.R. No. 159374 Present: PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ,* CORONA, AZCUNA and GARCIA,** JJ.

- versus-

FRANCISCA R. MADRIAN, Respondent.

Promulgated: July 12, 2007

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

DECISION CORONA, J.: When a family breaks up, the children are always the victims. The ensuing battle for custody of the minor children is not only a thorny issue but also a highly sensitive and heart-rending affair. Such is the case here. Even the usually technical subject of jurisdiction became emotionally charged.

Petitioner Felipe N. Madrian and respondent Francisca R. Madrian were married on July 7, 1993 in Paraaque City. They resided in San Agustin Village, Brgy. Moonwalk, Paraaque City. Their union was blessed with three sons and a daughter: Ronnick, born on January 30, 1994; Phillip, born on November 19, 1996; Francis Angelo, born on May 12, 1998 and Krizia Ann, born on December 12, 2000. After a bitter quarrel on May 18, 2002, petitioner allegedly left their conjugal abode and took their three sons with him to Ligao City, Albay and subsequently to Sta. Rosa, Laguna. Respondent sought the help of her parents and parents-in-law to patch things up between her and petitioner to no avail. She then brought the matter to the Lupong Tagapamayapa in their barangay but this too proved futile. Thus respondent filed a petition for habeas corpus of Ronnick, Phillip and Francis Angelo in the Court of Appeals, alleging that petitioners act of leaving the conjugal dwelling and going to Albay and then to Laguna disrupted the education of their children and deprived them of their mothers care. She prayed that petitioner be ordered to appear and produce their sons before the court and to explain why they should not be returned to her custody. Petitioner and respondent appeared at the hearing on September 17, 2002. They initially agreed that petitioner would return the custody of their three sons to respondent. Petitioner,

however,

had

change

of

heart[1] and

decided

to

file

memorandum. On September 3, 2002, petitioner filed his

memorandum[2] alleging that respondent was unfit to take custody of their three sons because she was habitually drunk, frequently went home late at night or in the wee hours of the morning, spent much of her time at a beer house and neglected her duties as a mother. He claimed that, after their squabble on May 18, 2002, it was respondent who left, taking their daughter with her. It was only then that he went to Sta. Rosa, Laguna where he worked as a tricycle driver. He submitted a certification from the principal of the Dila Elementary School in Sta. Rosa, Laguna that Ronnick and Phillip were enrolled there. He also questioned the jurisdiction of the Court of Appeals claiming that under Section 5(b) of RA 8369 (otherwise known as the Family Courts Act of 1997) family courts have exclusive original jurisdiction to hear and decide the petition for habeas corpus filed by respondent.[3] For her part, respondent averred that she did not leave their home on May 18, 2002 but was driven out by petitioner. She alleged that it was petitioner who was an alcoholic, gambler and drug addict. Petitioners alcoholism and drug addiction impaired his mental faculties, causing him to commit acts of violence against her and their children. The situation was aggravated by the fact that their home was adjacent to that of her in-laws who frequently meddled in their personal problems.[4]

On October 21, 2002, the Court of Appeals[5] rendered a decision[6] asserting its authority to take cognizance of the petition and ruling that, under Article 213 of the Family Code, respondent was entitled to the custody of Phillip and Francis Angelo who were at that time aged six and four, respectively, subject to the visitation rights of petitioner. With respect to Ronnick who was then eight years old, the court ruled that his custody should be determined by the proper family court in a special proceeding on custody of minors under Rule 99 of the Rules of Court. Petitioner moved for reconsideration of the Court of Appeals decision but it was denied. Hence, this recourse. Petitioner challenges the jurisdiction of the Court of Appeals over the petition for habeas corpus and insists that jurisdiction over the case is lodged in the family courts under RA 8369. He invokes Section 5(b) of RA 8369:
Section 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: xxx xxx xxx

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; xxx xxx xxx

Petitioner is wrong.

In Thornton v. Thornton,[7] this Court resolved the issue of the Court of Appeals jurisdiction to issue writs of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions:
The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors. xxx xxx xxx

We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction overhabeas corpus cases involving the custody of minors. xxx xxx xxx

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 [An Act Expanding the Jurisdiction of the Court of Appeals] and BP 129 [The Judiciary Reorganization Act of 1980] are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs ofhabeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue.[8] (emphases supplied)

The jurisdiction of the Court of Appeals over petitions for habeas corpus was further affirmed by A.M. No. 03-03-04-SC (April 22, 2004) in Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors:
In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that: Section 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. xxx xxx xxx The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved.[9] (emphases supplied)

We note that after petitioner moved out of their Paraaque residence on May 18, 2002, he twice transferred his sons to provinces covered by different judicial regions. This situation is

what

theThornton interpretation

of

RA

8369s

provision

on

jurisdiction precisely addressed:

[The reasoning that by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended them to be the sole courts which can issue writs of habeas corpus] will result in an iniquitous situation, leaving individuals like [respondent] without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed [RA 8369].[10]

Moreover, a careful reading of Section 5(b) of RA 8369 reveals that family courts are vested with original exclusive jurisdiction in custody cases, not in habeas corpus cases. Writs of habeas corpuswhich may be issued exclusively by family courts under Section 5(b) of RA 8369 pertain to the ancillary remedy that may be availed of in conjunction with a petition for custody of minors under Rule 99 of the Rules of Court. In other words, the issuance of the writ is merely ancillary to the custody case pending before the family court. The writ must be issued by the same court to avoid splitting of jurisdiction, conflicting decisions, interference by a coequal court and judicial instability. The rule therefore is: when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other

means necessary to carry it into effect may be employed by such court or officer.[11] Once a court acquires jurisdiction over the subject matter of a case, it does so to the exclusion of all other courts, including related incidents and ancillary matters. Accordingly, the petition is hereby DENIED. Costs against petitioner.

3. 3L 16779 March
G.R. No. L-16779 March 30, 1921

LEE YICK HON, petitioner-appellee, vs. THE INSULAR COLLECTOR OF CUSTOMS, defendant-appellant. Attorney-General Feria for appellant. No appearance for appellee. STREET, J.: This is an appeal by the Insular Collector of Customs from the action of the Court of First Instance of Manila in imposing upon him a fine of P50 for an alleged contempt of court. The circumstances connected with the incident which gave rise to the proceeding are these: It appears that on July 23, 1920, a petition for the writ of habeas corpus was filed in the Court of First Instance of Manila by one Lee Yick Hon, alleging he had lately arrived from China at the port of Manila with a view to entering the Philippine Islands, but was presented from so doing by the Insular Collector of Customs, who was detaining him for deportation. Upon the presiding in Sala IV of said court, cited the collector to appear and show cause in writing why the writ of habeas corpus should not be issued as prayed. This citation was served at about 11 a.m., at which house arrangement had already been perfected for the deportation of Lee Yick Hon on a boat scheduled to leave Manila for Hongkong at noon on the same day; and either by oversight or design the Insular Collector failed to contermand the order for his embarcation on that boat. The result was that Lee Yick Hon was deported within two or three hours after the Insular Collector had been served with the citation to show cause in the habeas corpusproceeding. Thereupon contempt proceedings were instituted against the Insular Collector, with the result already stated. We are of the opinion that the action of the lower court in imposing fine on the appellant cannot be sustained; and the judgment must accordingly be reserved.

The conditions under which a person can be punished for contempt are precisely defined in sections 231 and 232 of the Code of Civil Procedure; and unless the reprobated conduct legitimately falls under those provisions, it cannot be punished as for contempt. The first of these sections contemplates misbehavior in the presence of the court or so near the court of judge as to obstruct the administration of justice. With this situation we are not here concerned, as the act which constitutes the alleged contempt was committed away from the presence of the court and if punishable at all, it falls under subsection (1) of section 232, wherein it is declared that nay person may be punished as for contempt who is guilty of "disobedience of or resistance to a lawful writ, process, order, judgment, or command of the court or injunction granted by a court or judge." In this case before us, if it be asked what lawful writ, process, order, judgment or command of the court or judge below was disobeyed or resisted by the appellant, the answer must be: None whatever. The citation that was served upon the appellant required him to appear at a stated time in the Court of First Instance of Manila and show cause if any there might be, why the writ prayed for should not issue. That citation was literally complied with when, on July 30, 1920, the AttorneyGeneral, on behalf of the Insular Collector, filed his answer, wherein it was in effect stated that the case of Lee Yick Hon had been regularly passed upon by the special Board of Inquiry, and that it had been found that he had entered the Philippine Islands in contravention of the Immigration and Exclusion Acts, wherefore the Insular Collector had ordered his deportation. That answer, so far as appears in this case, has not been found to be false or insufficient; and the sole ground relied upon to sustain the judgment finding the appellant guilty to contempt is that by allowing Lee Yick Hon to be deported under the conditions stated he has frustrated the possible issuance of the writ of habeas corpus for which application had been made. At this point attention should be directed to the fact that the order to show cause, a copy of which was served on the Insular Collector of Customs on July 23, 1920, is not the peremptory writ of habeas corpus, unconditionally commanding the respondent to have the body of the detained person before the court at a time and place therein specified. The requisites of the peremptory writ of habeas corpus are stated in section 533 of the Code of Civil Procedure; and appropriate forms are supplied in section 534 of said Code and in section 82 of General Orders, No. 58. The order served in the case before us was merely a preliminary citation requiring the respondent to appear and show cause why the peremptory writ should not be granted. The practice of issuing a preliminary citation of this character, upon applications for the writ of habeas corpus, has, as all legal practitioners are aware, become common in our courts; and upon considerations of practical convenience, the usage has must be commend it, in cases where the necessity for the immediate issuance of the peremptory writ is not manifest. Nevertheless in a case like that now before us, it is necessary to take account of the difference between the preliminary citation and the real writ of habeas corpus; and when advertence is had to this point, and the actual terms of the citation are considered, it is at one obvious that the appellant did not put himself in contempt by allowing Lee Yick Hon to be deported. Of course if the judge issuing the citation had his attention directed to the fact that the deportation of Lee Yick Hon was imminent, and there had been any reason to fear that the Collector of Customs might proceed with his deportation notwithstanding the service of the bare citation, his Honor could have penned a few additional words, adding to the citation an admonition to the effect that the petitioner should not be deported until his application for the writ of habeas corpus should be heard. If a temporary restraining order of that kind had been issued, it would no doubt have been respected. In proceeding against a person alleged to be guilty of contempt of court, it is not to be forgotten that such proceedings are commonly treated as criminal in their nature even when the acts complained of are incidents of civil actions. For this reason the mode of procedure and rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. (6 R. C. L., p. 530.) Moreover, it is well settled that a person cannot be held liable for

contempt in the violation of an injunction or in fact of any judicial order unless the act which is forbidden or required to be done is clearly and exactly defined, so as to leave no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required. (U.S. vs. Atchison, etc., R. Co., 146 Fed., 176, 183.) A party cannot be punished for contempt in failing to do something not specified in the order. (13 C. J., 15.) In the case before us, the deportation of the petitioner was not forbidden by any order of the court, and hence that act cannot be considered as disobedience to the court. Upon principle the point is clear; and although no case exactly identical with the present one has been called to our attention from the decisions of American courts, something very similar is found in Ex parte Lake (37 Tex. Crim. Rep. 656; 66 Am. St. Rep. 848). The facts involved in that case were these: One Edwards had been charged with the commission of a criminal offense in Oklahoma, but he fled to the State of Texas; and upon requisition from the Governor of Oklahoma, a warrant was issued by the Governor of Texas for his arrest in that State. Upon his being arrested, application was made in his behalf before on of the Texas courts for the writ ofhabeas corpus to secure his release. During the period when the propriety of granting the writ was under consideration in said court, one Lake, the legally appointed extradition agent, acting under the authority of a proper warrant issued by the Governor of Texas, obtained the custody of Edwards from the sheriff who had him in charge and hurriedly departed with the prisoner for Oklahoma. The result was that the proceedings upon the application for the writ habeas corpus were frustrated and the writ was in fact never issued as occurred in the case now before us. The judge before whom the application for the writ of habeas corpus was pending thereupon caused Lake to be arrested and fined him 50 dollars for the supposed contempt. It was held by the Texas Court of Criminal Appeals that his action could not be sustained and the judgment was reversed. Among the reasons stated for this decision was the fact that the alleged contemner has disobeyed no order issued by the judge, for there was none of any character made in the case, "and there was no order, decree, writ, or any other process in existence, forbidding him form doing just what he did". Speaking further of this aspect of the case, the court said: "We have found no case authorizing punishment by contempt for such conduct as is attributed to Lake, and we believe none can be found. The authorities have been closely and exhaustively examined, and the rule deducible therefrom, is that unless the court has jurisdiction of the supposed contemner, or some order, decree, or process has been resisted or disobeyed, the court has no jurisdiction to punish for contempt. Jurisdiction over the party will not confer power to punish for contempt unless some order, decree, or process has been disobeyed or the party is guilty of some act of the nature of malpractice in the case, or has disobeyed the reasonable rules of the court". (Ex parte Lake, supra.) The considerations found in that decision are applicable to the case now before us and corroborate the conclusion to be inevitably drawn form our own provisions relative to contempt, namely, that the deportation of Lee Yick Hon by the Insular Collector under the circumstances stated was not a contempt of court. Judgment is reversed and the defendant absolved, with costs de oficio. So ordered. Mapa, C.J. and Villamor, J., concur.

Separate Opinions MALCOLM, J., dissenting:

I am in complete accord with the decision of Judge of First Instance Concepcion finding Vicente Aldanese, Insular Collector for Customs, guilty of contempt of court and sentencing him to pay a nominal fine of P50. This action of the trial court was justified, considering that the Collector of Customs deported a Chinese alien claiming to be a member to the household of the Consul-General for China, during the pendency of the habeas corpusproceedings, in disregard of a judicial order, and to the great prejudice of the rights of the alien. A brief narration of the facts of record will serve to demonstrate the correctness of the foregoing statements. The Chinaman Lee Yick Hon arrived at the port of Manila and asked for admission into the Philippine Islands on the ground that he was the cook of the Chinese Consul-General. He was refused admission by a Board of Special Inquiry. The Insular Collector of Customs, in a decision filed on July 22, 1920, affirmed the findings of the Board of Special Inquiry and ordered that the alien be deported from the Philippine Islands to China. Immediately on receipt of this order, counsel for the alien filed in the Court of First Instance of Manila a petition for a writ of habeas corpusin which, among other things, it was alleged that the respondent Collector of Customs held the petitioner for the purpose of deportation. Early on the morning of July 23, 1920, the Honorable Pedro Concepcion, Judge of Fist Instance, Issued an order directed to the Collector of Customs requiring his appearance before the Judge of First Instance one week later to show cause why the writ of habeas corpus prayed for should not issue. This order of the court was served on the Insular Collector of Customs by Antonio de la Cruz, deputy sheriff of the city of Manila, in company with a representative of the counsel for the petitioner, at approximately 10.30 on the morning of July 23. Mr. Aldanese was told "Que ese chino se va a deportar y por eso la orden es esta." (That that Chinaman will be deported and therefore this is the order.) Nevertheless, on the same afternoon at about 4 o'clock, the Chinese petitioner was placed on a boat and deported to Hongkong. It appears that when the Insular Collector of Customs received the order of Judge Concepcion, he merely passed it on to Mr. Obieta of the same office, with this notation: "Forward these paper with the case to the Attorney-General. V. A." Mr. Obieta found the papers on his desk at about 3 o'clock in the afternoon, and forwarded them to Mr. Sotelo, the chief of the immigration division. Mr. Sotelo received the order on the following morning, that is, subsequent to the deportation of the alien. Apparently, the Insular Collector of Customs had no exact knowledge of what had actually occured, for on July 24, he signed a letter requesting the Attorney-General to represent the interests of the Government in the case. This the Attorney-General did by filing an answer on July 30, 1920, or exactly one week after the Chinaman had been sent out of the country. These facts constitute, in my opinion, constructive con-tempt. Paraphrasing the definitions of contempt, there has been a disregard of, or disobedience to, the orders of a judicial body. An act has been done not in the presence of the court but at a distance, which tends to belittle, to obstruct, to interrupt, and to embarrass the administration of justice. It matters not that Mr. Aldanese had no malicious intention of refusing obedience to an order of the court, for it is the action done which determined whether a contempt has been committed. In the words of Chief Justice Taney, "As regards the question whether a contempt has or has not been committed, it does not depend on the intention of the party, but upon the act he has done. It is a conclusion of law from the act; disobedience to the legitimate authority of the court is, by law, a contempt, unless the party can show sufficient causes to excuse it." (Wartman vs. Wartman [1853], 29 Fed. Cas. No. 17210.) Whether intentionally or unintentionally, whether maliciously or negligently, the result is as disastrous to the rights of the person who might possibly have been granted admission to the Philippine Islands. Fines for contempt of court at least have the merit of making customs officials more careful in the performance of their duties. Faulty Governmental routine should not be permitted to defeat a writ as fundamental in nature as is habeas corpus. It is said, however, by the majority, that for there to have been a contempt of court, the order issued by the judge should not only have been one requiring attendance to show cause why the writ should

not issue, but should further have contained a clause in the nature of a preliminary injunction. There is no gainsaying that a negative always makes an affirmative stronger. At the same time it is not usually considered necessary for courts to explain their meaning by restating it in an opposite manner. The order issued by Judge Concepcion was a judicial one, a replica of hundreds of other, which should have been respected by the respondent. Instead, the action of the respondent made compliance impossible and served to defeat the petition for habeas corpus. From the moment the order was received by the respondent, the person of the petitioner was technically in the custody of the law, and when the respondent interfered with such custody a contempt of court was committed. It is not desired by this opinion to criticize unduly the conduct of the Insular Collector of Customs. It is only desired to uphold the hands of the lower court in the legitimate performance of its functions, and to make known that such orders must be respected.

WRIT OF AMPARO 1. Daniel Tapuz vs. Hon del Rosario

EN BANC DANIEL MASANGKAY TAPUZ, AURORA TAPUZMADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, PUNO, C.J., IVAN TAPUZ AND MARIAN TIMBAS, QUISUMBING, Petitioners, YNARESSANTIAGO, CARPIO, AUSTRIAMARTINEZ, HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in BoracayIsland, represented by the PNP STATION CORONA, CARPIO MORALES,
*

G.R. No. 182484 Present:

- versus -

COMMANDER, THE HONORABLE COURT OF APPEALS IN CEBU 18thDIVISION, SPOUSES GREGORIO SANSON & MA.LOURDES T. SANSON, Respondents.

AZCUNA, TINGA, CHICONAZARIO,

*

VELASCO, JR., NACHURA, REYES,

LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated:

June 17, 2008 x------------------------------------------------------------------------------------------ x

RESOLUTION BRION, J.: Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;[1] and Sections 1 and 6 of the Rule

on the Writ of Habeas Data[2]) is the petition for certiorari and for the issuance of the writs of amparo and habeas data filed by the above-named petitioners against the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine National Police stationed in Boracay Island, represented by the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses Gregorio Sanson and Ma. Lourdes T.Sanson, respondents. The petition and its annexes disclose the following material antecedents: The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the private respondents), filed with the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the MCTC) a complaint[3] dated 24 April 2006 for forcible entryand damages with a prayer for the issuance of a writ of preliminary mandatory injunction against the petitioners Daniel MasangkayTapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuzand Marian Timbas (the petitioners) and other John Does numbering about 120. The private respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813 of a 1.0093hectare parcel of land located at Sitio Pinaungon, Balabag,Boracay, Malay, Aklan (the disputed land); (2) they were the disputed lands prior possessors when the petitioners armed with bolos and carrying suspected firearms and together with unidentified persons numbering 120 - entered the disputed land by force and intimidation, without the private respondents permission and against the objections of the private respondents security men, and built thereon a nipa and bamboo structure. In their Answer[4] dated 14 May 2006, the petitioners denied the material allegations of the complaint. They essentially claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary, the private respondents are the intruders; and (3) the private respondents certificate of title to the disputed property is spurious. They asked for the dismissal of the complaint and interposed a counterclaim for damages.

The MCTC, after due proceedings, rendered on 2 January 2007 a decision[5] in the private respondents favor. It found prior possession the key issue in forcible entry cases - in the private respondents favor, thus: The key that could unravel the answer to this question lies in the Amended Commissioners Report and Sketch found on pages 245 to 248 of the records and the evidence the parties have submitted. It is shown in the Amended Commissioners Report and Sketch that the land in question is enclosed by a concrete and cyclone wire perimeter fence in pink and green highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and sketch collaborated the claim of the plaintiffs that after they acquired the land in question on May 27, 1993 through a Deed of Sale (Annex A, Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual physical possession of the whole lot in question since 1993 when it was interrupted by the defendants (sic) when on January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in question with view of inhabiting the same and building structures therein prompting plaintiff Gregorio Sanson to confront them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapao. As a result of their confrontation, the parties signed an Agreement (Annex D, Complaint p. 20) wherein they agreed to vacate the disputed portion of the land in question and agreed not to build any structures thereon. The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when the plaintiff posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006, the defendants some with bolos and one carrying a sack suspected to

contain firearms with other John Does numbering about 120 persons by force and intimidation forcibly entered the premises along the road and built a nipa and bamboo structure (Annex E, Complaint, p. 11) inside the lot in question which incident was promptly reported to the proper authorities as shown by plaintiffs Certification (Annex F, Complaint, p. 12) of the entry in the police blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was reached as shown in their Certificate to File Action (Annex G, Complaint, p. 13); hence the present action. Defendants (sic) contend in their answer that prior to January 4, 2005, they were already occupants of the property, being indigenous settlers of the same, under claim of ownership by open continuous, adverse possession to the exclusion of other (sic). (Paragraph 4, Answer, p. 25). The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter fence constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his Report and reflected in his Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual physical possession of the land in question from 1993 up to April 19, 2006 when they were ousted therefrom by the defendants by means of force. Applying by analogy the ruling of the Honorable Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants claims to an older possession must be rejected as untenable because possession as a fact cannot be recognized at the same time in two different personalities. Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question on April 18, 2006 at about 3:00

oclock in the afternoon as shown in their Certification (Annex D, Defendants Position Paper, p. 135, rec.). The contention is untenable for being inconsistent with their allegations made to the commissioner who constituted (sic) the land in question that they built structures on the land in question only on April 19, 2006 (Par. D.4, Commissioners Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date. Likewise, said contention is contradicted by the categorical statements of defendants witnesses, Rowena Onag, Apolsida Umambong, ArielGac, Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143- 144, rec.) *sic] categorically stated that on or about April 19, 2006, a group of armed men entered the property of our said neighbors and built plastic roofed tents. These armed men threatened to drive our said neighbors away from their homes but they refused to leave and resisted the intruding armed men. From the foregoing, it could be safely inferred that no incident of forcible entry happened on April 18, 2006 but it was only on April 19, 2006 when the defendants overpowered by their numbers the security guards posted by the plaintiffs prior to the controversy. Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached as annexes to their position paper were not noted and reflected in the amended report and sketch submitted by the Commissioner, hence, it could be safely inferred that these structures are built and (sic) situated outside the premises of the land in question, accordingly, they are irrelevant to the instant case and cannot be considered as evidence of their actual possession of the land in question prior to April 19, 2006 .
[6]

The petitioners appealed the MCTC decision to the Regional Trial Court (RTC, Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin (Judge Marin). On appeal, Judge Marin granted the private respondents motion for the issuance of a writ of preliminary mandatory injunction through an Order dated 26 February 2007, with the issuance conditioned on the private respondents posting of a bond. The writ[7] authorizing the immediate implementation of the MCTC decision was actually issued by respondent Judge Elmo F.del Rosario (the respondent Judge) on 12 March 2007 after the private respondents had complied with the imposed condition. The petitioners moved to reconsider the issuance of the writ; the private respondents, on the other hand, filed a motion for demolition. The respondent Judge subsequently denied the petitioners Motion for Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in an Order dated 17 May 2007[8]. Meanwhile, the petitioners opposed the motion for demolition.[9] The respondent Judge nevertheless issued via a Special Order[10] a writ of demolition to be implemented fifteen (15) days after the Sheriffs written notice to the petitioners to voluntarily demolish their house/s to allow the private respondents to effectively take actual possession of the land. The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for Review[11] (under Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction and Order of Demolition of the RTC ofKalibo, Br. 6 in Civil Case No. 7990. Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19 March 2008.[12] It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The petition contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the Revised Rules of Court; the issuance of a writ of habeas data under the Rule on the Writ of Habeas

Data; and finally, the issuance of the writ of amparo under the Rule on the Writ ofAmparo. To support the petition and the remedies prayed for, the petitioners present factual positions diametrically opposed to theMCTCs findings and legal reasons. Most importantly, the petitioners maintain their claims of prior possession of the disputed land and of intrusion into this land by the private respondents. The material factual allegations of the petition bases as well of the petition for the issuance of the writ of amparo read:
29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into the property of the defendants [the land in dispute]. They were not in uniform. They fired their shotguns at the defendants. Later the following day at 2:00 a.m. two houses of the defendants were burned to ashes.

30. These armed men [without uniforms] removed the barbed wire fence put up by defendants to protect their property from intruders. Two of the armed men trained their shotguns at the defendants who resisted their intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice.

31. The armed men torched two houses of the defendants reducing them to ashes. [...]

32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors namely IVAN GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant violation of the law penalizing Acts of Violence against women and children, which is aggravated by the use of high-powered weapons.

[]

and

34. That the threats to the life and security of the poor indigent unlettered petitioners continue because the private

respondents Sansonshave under their employ armed men and they are influential with the police authorities owing to their financial and political clout. 35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and the atrocities of the terrorists [introduced into the property in dispute by the plaintiffs] are attested by witnesses who are persons not related to the defendants are therefore disinterested witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit ofNemia T. Carmen is submitted to prove that the plaintiffs resorted to atrocious acts through hired men in their bid to unjustly evict the defendants.
[13]

The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that the private respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691,[14] they maintain that the forcible entry case in fact involves issues of title to or possession of real property or an interest therein, with the assessed value of the property involved exceeding P20,000.00; thus, the case should be originally cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC decision was appealed equally has no jurisdiction to rule on the case on appeal and could not have validly issued the assailed orders.

OUR RULING

We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally defective with respect to content and substance.

The Petition for Certiorari

We conclude, based on the outlined material antecedents that led to the petition, that the petition for certiorari to nullify the assailed RTC orders has been filed out of time. It is not lost on us that the petitioners have a pending petition with the Court of Appeals (the CA petition) for the review of the same RTC orders now assailed in the present petition, although the petitioners never disclosed in the body of the present petition the exact status of their pending CA petition. The CA petition, however, was filed with the Court of Appeals on 2 August 2007, which indicates to us that the assailed orders (or at the very least, the latest of the interrelated assailed orders) were received on 1 August 2007 at the latest. The present petition, on the other hand, was filed on April 29, 2008 or more than eight months from the time the CA petition was filed. Thus, the present petition is separated in point of timefrom the assumed receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of sixty (60) days[15] from receipt of the assailed order or orders or from notice of the denial of a seasonably filed motion for reconsideration.

We note in this regard that the petitioners counsel stated in his attached Certificate of Compliance with Circular #1-88 of the Supreme Court[16] (Certificate of Compliance) that in the meantime the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC. To guard against any insidious argument that the present petition is timely filed because of this Notice to Vacate, we feel it best to declare now that the counting of the 60-day reglementary period under Rule 65 cannot start from theApril 18, 2008 date cited by the petitioners counsel. The Notice to Vacate and for Demolition is not an order that exists independently from the RTC orders assailed in this petition and in the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed orders, and is thus an administrative enforcement medium that has no life of its own separately from the assailed order on which it is based. It cannot therefore be the appropriate subject of an independent petition for certiorari under Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be the material date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even directly assailed in this petition, as the petitions Prayer patently shows.[17]

Based on the same material antecedents, we find too that the petitioners have been guilty of willful and deliberate misrepresentation before this Court and, at the very least, of forum shopping.

By the petitioners own admissions, they filed a petition with the Court of Appeals (docketed as CA G.R. SP No. 02859) for the review of the orders now also assailed in this petition, but brought the present recourse to us, allegedly because the CA did not act on the petition up to this date and for the petitioner (sic) to seek relief in the CA would be a waste of time and would render the case moot and academic since the CA refused to

resolve pending urgent motions and the Sheriff is determined to enforce a writ of demolition despite the defect of LACK OF JURISDICTION.[18]

Interestingly, the petitioners counsel - while making this claim in the body of the petition - at the same time represented in his Certificate of Compliance[19] that:
x x x

(e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY INJUNCTION copy of the petition is attached (sic);

(f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being the subject of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto; (underscoring supplied)

(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same had not been resolved copy of the MR is attached(sic).

x x x

The difference between the above representations on what transpired at the appellate court level is replete with significance regarding the petitioners intentions. We discern -- from the petitioners act of misrepresenting in the body of their petition that the CA did not act on the petition up to this date while stating the real Court of Appeals action in the Certification of Compliance -- the intent to hide the real state of the remedies the petitioners sought below in order to mislead us into action on the RTC orders without frontally considering the action that the Court of Appeals had already undertaken.

At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the same relief that it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners act of seeking against the same parties the nullification of the same RTC orders before the appellate court and before us at the same time, although made through different mediums that are both improperly used, constitutes willful and deliberate forum shopping that can sufficiently serve as basis for the summary dismissal of the petition under the combined application of the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with us will not save the petitioner from a forum-shopping violation where there is identity of parties, involving the same assailed interlocutory orders, with the recourses existing side by side at the same time.

To restate the prevailing rules, forum shopping is the institution of two or more actions or proceedings involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition. Forum shopping may be resorted to by any party against whom an adverse judgment or order has been issued in one forum, in an attempt to seek a favorable opinion in another, other than by appeal or a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the administration of justice and congest court dockets. Willful and deliberate violation of the rule against it is a ground for summary dismissal of the case; it may also constitute direct contempt.[20]

Additionally, the required verification and certification of non-forum shopping is defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5) exhibited their postal identification cards with the Notary Public.

In any event, we find the present petition for certiorari, on its face and on the basis of the supporting attachments, to be devoid of merit. The MCTC

correctly assumed jurisdiction over the private respondents complaint, which specifically alleged a cause for forcible entry and not as petitioners may have misread or misappreciated a case involving title to or possession of realty or an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and unlawful detainer cases lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts have had jurisdiction over these cases called accion interdictal even before the R.A. 7691 amendment, based on the issue of pure physical possession (as opposed to the right of possession). This jurisdiction is regardless of the assessed value of the property involved; the law established no distinctions based on the assessed value of the property forced into or unlawfully detained. Separately from accion interdictal are accion publiciana for the recovery of the right of possession as a plenary action, and accion reivindicacion for the recovery of ownership.[21] Apparently, these latter actions are the ones the petitioners refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may either be with the first-level courts or the regional trial courts, depending on the assessed value of the realty subject of the litigation. As the complaint at the MCTC was patently for forcible entry, that court committed no jurisdictional error correctible by certiorari under the present petition.

In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies.

The Writ of Amparo

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or

threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.[22]

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.

The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore quoted,[23] that are essentially repeated in paragraph 54 of the petition. These allegations are supported by the following documents:

(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting the factual positions of the petitioners, id., petitioners prior possession, private respondents intrusion and the illegal acts committed by the private respondents and their security guards on 19 April 2006;

(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.) committed by a security guard against minors descendants of Antonio Tapuz;

(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemias affidavit;

(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the incident of petitioners intrusion into the disputed land;

(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the altercation between theTapuz family and the security guards of the private respondents, including the gunpoking and shooting incident involving one of the security guards;

(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire.

On the whole, what is clear from these statements - both sworn and unsworn - is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the threats and harassments implied from the presence of armed men bare to the waist and the alleged pointing and firing of weapons. Notably, none of the

supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing.

A closer look at the statements shows that at least two of them the statements of Nemia Carreon y Tapuz and Melanie Tapuzare practically identical and unsworn. The Certification by Police Officer Jackson Jauod, on the other hand, simply narrates what had been reported by one Danny Tapuz y Masangkay, and even mentions that the burning of two residential houses was accidental.

As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case which rejected all the petitioners factual claims. These findings are significantly complete and detailed, as they were made under a full-blown judicial process, i.e., after examination and evaluation of the contending parties positions, evidence and arguments and based on the report of a court-appointed commissioner.

We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with incidents giving rise to allegations of violence or threat thereof) that was brought to and ruled upon by the MCTC; subsequently brought to the RTC on anappeal that is still pending; still much later brought to the appellate court without conclusive results; and then brought to us on interlocutory incidents involving a plea for the issuance of the writ of amparo that, if decided as the petitioners advocate, may render the pending RTC appeal moot.

Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.

Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the unintended effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is now in place, but also of nullifying the ongoing appeal process. Such effect, though unintended, will obviously wreak havoc on the orderly administration of justice, an overriding goal that the Rule on the Writ of Amparo does not intend to weaken or negate.

Separately from these considerations, we cannot fail but consider too at this point the indicators, clear and patent to us, that the petitioners present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an improper remedial measure. We discern this from the petitioners misrepresentations pointed out above; from their obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes the situation obtaining in the present case.

While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the institution of separate actions,[24] for the effect of earlier-filed criminal actions,[25] and for the consolidation of petitions for the issuance of a writ ofamparo with a subsequently filed criminal and civil action.[26] These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses.

Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clearprima facie showing that the right to life, liberty or security the personal concern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.

The Writ of Habeas Data Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate facts in a petition for the issuance of a writ of habeas data:

(a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.

Support for the habeas data aspect of the present petition only alleges that:

1. * + Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report on the burning of the homes of the petitioners and the acts of violence employed against them by the private respondents, furnishing the Court and the petitioners with copy of the same;

*+

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise the investigation report if an investigation was conducted by the PNP.

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the fishing expedition that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies of form and substance patent from its body and attachments. SO ORDERED.

2. GR 186640
GEN. ALEXANDER B. YANO, Chief of Staff, Armed Forces of the Philippines, LT. GEN. VICTOR S. IBRADO, Commanding General, Philippine Army, and MAJ. GEN. RALPH A. VILLANUEVA, Commander, 7th Infantry Division, Philippine Army, Petitioners, G.R. No. 186640 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,

- versus -

ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. CLEOFAS SANCHEZ and MARCIANA MEDINA, Respondents. Promulgated:
February 11, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: On December 28, 2007, respondent Cleofas Sanchez (Cleofas) filed before this Court a petition docketed as G.R. No. 180839 for issuance of a Writ of Amparo with Motion for Production and Inspection directed against Gen. Hermogenes Esperon (Gen. Esperon), the then Chief of Staff of the Armed Forces of the Philippines (AFP). On January 2, 2008, the Court[1] resolved to issue a Writ of Amparo and ordered Gen. Esperon to make a verified return of the writ before Court of Appeals Justice Edgardo Sundiam, who was ordered to hear and decide the case which was eventually redocketed as CA-G.R. SP No. 00010 WR/A. Cleofas amended her petition[2] on January 14, 2008 to include herein corespondent Marciana Medina (Marciana) as therein additional petitioner, and to implead other military officers[3] including Lt. Ali Sumangil (Lt. Sumangil) and Sgt. Gil Villalobos[4](Sgt. Villalobos) as therein additional respondents. In the Amended Petition, Cleofas and Marciana (respondents) alleged that on September 17, 2006 at around 8:00 p.m., their respective sons Nicolas Sanchez and Heherson Medina were catching frogs outside their home in Sitio Dalin, Barangay Bueno, Capas, Tarlac; that at around 1:00 a.m. of the next day, September 18, 2006, Nicolas wives Lourdez and Rosalie Sanchez, who were then at home, heard gunshots and saw armed men in soldiers uniforms passing by; that at around

4:00 a.m. of the same day, Lourdez and Rosalie went out to check on Nicolas and Heherson but only saw their caps, slippers, pana and airgun for catching frogs, as well as bloodstains; and that they immediately reported the matter to the barangay officials. Respondents narrated that they, together with other family members, proceeded on September 19, 2006 to the Capas Station of the Philippine National Police (PNP). Accompanied by officials of the National Commission on Indigenous Peoples (NCIP),[5]they also tried to search for Nicolas and Heherson at the Camp Detachment of the 71st Infantry Batallion of the Philippine Army (Army) in Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, Tarlac City, but to no avail. Furthermore, respondents alleged that Josephine Galang Victoria, also known as Antonina Galang (Josephine), niece of a neighbor, later informed them that she had seen two men inside Camp Servillano Aquino of the Northern Luzon Command (Nolcom) in San Miguel, Tarlac City on September 21, 2006, whom Josephine later identified as Nicolas and Heherson (the victims) after respondents had shown her their photographs; and that Josephine informed them that she saw the victims again on September 24, 2006 and November 1, 2006,[6] this time at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, where she had occasion to talk to Lt. Sumangil and Sgt. Villalobos. Respondents filed a case on December 21, 2006 before the Commission on Human Rights (CHR), which endorsed[7] the same to the Ombudsman for appropriate action. Contending that the victims life, liberty and security had been and continued to be violated on account of their forced disappearance, respondents prayed for the issuance of a writ of Amparo, the production of the victims bodies during the hearing on the Writ, the inspection of certain military camps, [8] the issuance of temporary and permanent protection orders, and the rendition of judgment under Section 18 of the Rule on the Writ of Amparo.[9] Meanwhile, a consolidated Return of the Writ,[10] verified by Gen. Esperon, Lt. Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as

Commander of the Armys 7th Infantry Division, and Lt. Col. Victor Bayani (Lt. Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom in Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen. Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a Return of the Writ upon his return from an official trip abroad. In their Return, the military officers denied having custody of the victims. They posited that the proper remedy of respondents was to file a petition for the issuance of a Writ of Habeas Corpus, since the petitions ultimate objective was the production of the bodies of the victims, as they were allegedly abducted and illegally detained by military personnel;[11] that the petition failed to indicate the matters required by paragraphs (c), (d) and (e), Section 5 of the Rule on the Writ of Amparo, such that the allegations were incomplete to constitute a cause of action, aside from being based on mere hearsay evidence, and are, at best, speculative; that respondents failed to present the affidavits of some other competent persons which would clearly validate their claim that the military violated the victims right to life, liberty or security by abducting or detaining them; and that the petition did not allege any specific action or inaction attributable to the military officers with respect to their duties; or allege that respondents took any action by filing a formal complaint or visiting the military camps adverted to in order to verify Josephines claim that she saw the victims on two different occasions inside the camps, or that they took efforts to follow up on the PNP Capas Stations further action on their complaint.[12] Denying he violated the victims right to life, liberty and security, Gen. Esperon specifically asserted that, in compliance with the Defense Secretarys directive in relation to cases of Writ of Amparo against the AFP, he issued directives to the Nolcom Commander and the Armys Commanding General to investigate and establish the circumstances surrounding reported disappearances of victims insofar as the claim on the possible involvement of the military units was concerned; and undertook to bring any military personnel involved, when warranted by the evidence, to the bar of justice.[13] Maj. Gen. Gomez likewise denied having custody or knowledge of the whereabouts of the victims, stating that it was not army policy to abduct civilians

in his area of responsibility,[14] and that he was away on official business at the time of the alleged disappearance of the victims.[15] Lt. Col. Bayani attested that he was designated Camp Commander only on September 1, 2007 and thus had no personal knowledge about the victims alleged disappearance or abduction on September 18, 2006; that he was informed by his immediate predecessor that no individuals were detained in the camp as it did not even have detention facilities; and that in compliance with Gen. Esperons directive, their command was conducting further investigation to verify the allegations in the petition.[16] Lt. Sumangil denied having spoken to Josephine inside the camp on September 24, 2006, on which date civilians were not allowed to enter except on official missions or when duly authorized to conduct transactions inside the camp. He thus concluded that Josephine lied in claiming to have seen the two victims inside the Camp of the Bravo Company of the 71 st Infantry Batallion inside Hacienda Luisita on September 24, 2006 or at any time thereafter. He instead recounted that on September 24, 2006, he spoke for the first and only time, but only at the gate of the camp, with a person who identified herself as Antonina Galang, who informed him about the disappearance of the victims since September 18, 2006. Warning him that these men were members of the New Peoples Army (NPA), she advised him not to entertain any queries or complaints relative to their alleged disappearance.[17] Sgt. Villalobos echoed Sumangils disclaimer about having any of the victims in his custody or meeting anyone named Josephine Victoria, or about the latter having entered the camps kitchen to drink water. Lt. Gen. Yano stated that upon his return from his official functions overseas, he immediately inquired on the actions taken on the case. He averred that he had never participated directly or indirectly; or consented, permitted or sanctioned any illegal or illegitimate military operations. He declared that it had always been his policy to respect human rights and uphold the rule of law, and to bring those who violated the law before the court of justice.

In opposing the request for issuance of inspection and production orders, the military officers posited that apart from compromising national security should entry into these military camps/bases be allowed, these orders partook of the nature of a search warrant, such that the requisites for the issuance thereof must be complied with prior to their issuance. They went on to argue that such request relied solely on bare, self-serving and vague allegations contained in Josephines affidavit, for aside from merely mentioning that she saw Nicolas and Heherson on board an army truck near the Nolcom gate and, days later, inside the kitchen of the 71st Infantry Battalion Camp inside Hacienda Luisita and while logging outside said camp, Josephine had stated nothing more to ascertain the veracity of the places where she allegedly saw Nicolas and Heherson.[18] On whether the impleaded military officers were either directly or indirectly connected with the disappearance of the victims, the appellate court, after hearing, absolved, by the assailed Decision of September 17, 2008,[19] Gen. Esperon, Lt. Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of evidence linking them to the disappearances, and further ruled as follows:
All said, this Court is convinced that petitioners have not adequately and convincingly established any direct or indirect link between respondents individual military officers and the disappearances of Nicolas and Heherson. Neither did the concerned Philippine Army Units have exerted fully their efforts to investigate and unearth the truth and bring the culprits before the bar of justice. The concerned Philippine Army units (such as the Northern Command and the 7th Infantry Division, which had jurisdiction over the place of disappearance of Nicolas and Heherson, should exert extraordinary diligence to follow all possible leads to solve the disappearances of Nicolas and Heherson. The Philippine Army should be reminded of its constitutional mandate as the protector of the people and the State. RELIEFS While as We stated hereinbefore that We could not find any link between respondents individual military officers to the disappearance of Nicolas and Heherson, nonetheless, the fact remains that the two men are

still missing. Hence, We find it equitable to grant petitioners some reliefs in the interest of human rights and justice as follows: 1. Inspections of the following camps: Camp Servillano Aquino, San Miguel, Tarlac City, any military camp of the 7th Infantry Division located in Aqua Farm, Hacienda Luisita, Tarlac City, within reasonable working hours of any day except when the military camp is on red alert status. 2. Thorough and Impartial Investigation for the appropriate Investigating Unit of the Philippine Army at Camp Servillano Aquino and the Philippine Army, 7th Infantry Division in Fort Magsaysay to conduct their respective investigation of all angles pertaining to the disappearances of Nicolas and Heherson and to immediately file charges against those found guilty and submit their written report to this Court within three (3) months from notice. SO ORDERED.[20] (underscoring supplied)

The military officers filed a Motion for Partial Reconsideration (Motion), arguing in the main that since respondents failed to prove the allegations in their petition by substantial evidence, the appellate court should not have granted those reliefs.[21] The appellate court denied the Motion by the assailed Resolution of March 3, 2009.[22] Taking up the cudgels for the military, Gen. Alexander Yano,[23] Lt. Gen. Victor Ibrado,[24] and Maj. Gen. Ralph Villanueva[25] (petitioners) filed the present petition for review of the appellate courts assailed issuances, faulting it for
. . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE WRIT OF AMPARO PURSUANT TO SECTION 18 OF THE RULE ON THE WRIT OF AMPARO DESPITE ITS FINDING THAT RESPONDENTS FAILED TO PROVE THEIR ALLEGATIONS IN THEIR PETITION FOR AMPARO BY SUBSTANTIAL EVIDENCE. . . . [AND] . . . DIRECTING PETITIONERS TO:

(A) ALLOW RESPONDENTS TO INSPECT CAMP SERVILLANO AQUINO, NORTH LUZON COMMAND, PHILIPPINE ARMY, SAN MIGUEL, TARLAC CITY AND ANY MILITARY CAMP OF THE 7TH INFANTRY DIVISION LOCATED IN AQUA FARM, HACIENDA LUISITA, TARLAC CITY; AND. (B) CONDUCT THOROUGH AND IMPARTIAL INVESTIGATION OF THE DISAPPEARANCE OF THE AGGRIEVED PARTIES, FILE CHARGES AGAINST THOSE FOUND GUILTY AND SUBMIT WRITTEN REPORT WITHIN THREE MONTHS FROM [26] NOTICE. (emphasis and underscoring supplied)

The Court finds merit in the petition. In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate court resolved the case on the basis of the credibility of Josephine as a witness. It arrived at the following findings:
To prove that these two military officers took or have custody of Nicolas and Heherson, petitioners presented Josephine Galang Victoria, also known as Antonina Galang, a niece of petitioner Cleofas Sanchez neighbor, who allegedly saw Nicolas and Heherson inside Camp Servillano Aquino on September 21, 2006 when she visited her uncle, a certain Major Henry Galang, who is allegedly living inside the camp; that a few days later, she again saw Nicolas and Heherson at Aqua Farm at Hacienda Luisita, where the camp of Bravo Company of the 71st Infantry Battalion is located and where Heherson was seen sweeping the floor and Nicolas was seen cooking, having wounds in their legs near the feet as if sustained from a gunshot wound; that on November 1, 2006, she went back upon advice of Lt. Sumangil to give her a cellfone which Tech. Sgt. Villalobos handed to her for her to know where Nicolas and Heherson will be brought; that they [sic] saw the two outside getting some woods under the watchful eye of a soldier when Sumangil kicked Nicolas for being slow and thereafter, she did not see the two anymore.

While Josephine Galang Victorias story of how she saw the subject two missing persons (Nicolas and Heherson) appeared initially as plausible, however, her credibility as a witness had been successfully destroyed by the following witnesses presented by the respondents. 1) Barangay Captain Rodolfo P. Supan of Cut-Cut II, Tarlac City, attested that she knows a certain woman named Josephine Galang Victoria who introduces herself as Antonina Galang, niece through the cousin of his wife and a long-time resident of Cut-Cut II since birth until she lived with her partner Philip Victoria and they still visit and goes to her auntie or siblings house; that he knows the reputation of Josephine Victoria as bad regarding her telling the truth, her truthfulness and integrity, known to fool others and invents stories for money reasons, that she cannot be trusted even if she is under oath before God and the State. 2) As if that is not yet enough, Gloria Galang Mansalay testified that she is a resident of Cut-Cut II since birth in 1964 and she knows Josephine Galang Victoria because she is her niece being the daughter of her older brother; that she even took care of Antonina as a child but her general reputation in telling the truth, her fidelity and integrity is bad, known to fool others, a liar and invent [sic] stories for reason of money. 3) Clarita Galang Ricafrente saying that she is a resident of Cutcut II and Antonina Galang is a niece and attested the same negative reputations against Antonina. It appears that said negative testimonies of Josephine Galang Victorias relatives were never successfully rebutted by her and the Court gives credence to them. No ill motive [sic] were established against the said witnesses to testify against Antonina Galang. Furthermore, Antonina Galang stated that she was in Camp Servillano Aquino when she first saw Nicolas and Heherson riding in an army truck because she was visiting her uncle, Major Henry Galang, allegedly living in the camp. Parenthetically, this story of Antonina Galang was put to doubt. TSG Edgard Reyes who attested that as a meter reader in the camp, Major Galang was no longer residing there in September 2006. This testimony and revelation of TSG Reyes only bolstered the testimonies of the other witnesses on Antonina Galangs penchant to invent stories or tell a lie.

In sum, We are not inclined to give credence to the claims of Antonina Galang that the two missing person [sic] she saw first in Camp Servillano Aquino and later, in Aqua Farm, were Nicolas and Heherson. Notably, Antonina Galang never did see the faces of the two but were known to her through photographs. Certainly, there may be a difference between photographs and the faces in person. To be noted also is that even the two wives of Nicolas did not make an express attestation that they saw Nicolas and Heherson in the company of those armed men who passed their place in the early morning of September 18, 2006.[27] (underscoring supplied)

NOTABLY, respondents neither moved for reconsideration nor appealed the appellate courts September 17, 2008 Decision. The entrenched procedural rule in this jurisdiction is that a party who did not appeal cannot assign such errors as are designed to have the judgment modified. All that said appellee can do is to make a counter-assignment of errors or to argue on issues raised at the trial only for the purpose of sustaining the judgment in his favor, even on grounds not included in the decision of the court a quoor raised in the appellants assignment of errors or arguments.[28] This tenet is enshrined as one of the basic principles in our rules of procedure, specifically to avoid ambiguity in the presentation of issues, facilitate the setting forth of arguments by the parties, and aid the court in making its determinations. A party who fails to acquire complete relief from a decision of the court has various remedies to correct an omission by the court. He may move for a correction or clarification of judgment, or even seek its modification through ordinary appeal. There is thus no basis for the Court to skip the rule and excuse herein respondents for failure to properly avail themselves of the remedies in the face of the parties contentions that have remained disputed.[29] What is thus left for the Court to resolve is the issue of whether the [30] grant of the RELIEFS by the appellate court after finding want of substantial evidence are valid and proper.

Sections 17 and 18 of the Amparo Rule lay down the requisite standard of proof necessary to prove either partys claim, viz:
SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claim by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. The Court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphasis and underscoring supplied)

The requisite standard of proof substantial evidence speaks of the clear intent of the Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in resolving amparo petitions. To the appellate court, the evidence adduced in the present case failed to measure up to that standard substantial evidence which a reasonable mind might accept as adequate to support a conclusion. Since respondents did not avail of any remedy against the adverse judgment, the appellate courts decision is, insofar as it concerns them, now beyond the ambit of review.

Meanwhile, the requirement for a government official or employee to observe extraordinary diligence in the performance of duty stresses the extraordinary measures expected to be taken in safeguarding every citizens constitutional rights as well as in the investigation of cases of extra-judicial killings and enforced disappearances.[31] The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs. In line with this, Section 14 of the Amparo Rule provides for interim or provisional reliefs that the courts may grant in order to, inter alia, protect the witnesses and the rights of the parties, and preserve all relevant evidence, viz:
SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

(b) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (emphasis and underscoring supplied)

These provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. For the appellate court to, in the present case, still order the inspection of the military camps and order the army units to conduct an investigation into the disappearance of Nicolas and Heherson after it absolved petitioners is thus not in order. The reliefs granted by the appellate court to respondents are not in sync with a finding that petitioners could not be held accountable for the disappearance of the victims. Respondents posit that there appears to be some shared confusion as to whether the reliefs granted by the appellate court are final or interlocutory. They thus implore this Court to modify the appellate courts judgment by considering the reliefs as temporary or interlocutory and by adding thereto an order for the production of logbooks and reports.[32] At this late stage, respondents can no longer avail themselves of their stale remedies in the guise of praying for affirmative reliefs in their Comment. No modification of judgment could be granted to a party who did not appeal.[33] If respondents believed that the September 17, 2008 Decision of the appellate court was merely interlocutory, they had every opportunity to question the conclusion of said court, but they did not. They could have opposed petitioners motion for reconsideration filed with the appellate court, it being a prohibited pleading[34] under the Amparo Rule, but they did not. WHEREFORE, the petition is GRANTED. The assailed September 17, 2008 Decision and March 3, 2009 Resolution of the Court of Appeals, insofar as it grants the assailed earlier-quoted reliefs are SET ASIDE. SO ORDERED.
3.RAYMUND MANALO

fACTS: Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to the CAFGU on the suspicion that they were members and supporters of the NPA. After 18 months of detention and torture, the brothers escaped on August 13, 2007. Ten days after their escape, they filed a Petition for Prohibition, Injunction, and Temporary Restraining Order to stop the military officers and agents from depriving them of their right to liberty and other basic rights. While the said case was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. The Manalos subsequently filed a manifestation and omnibus motion to treat their existing petition as amparo petition. On December 26, 2007, the Court of Appeals granted the privilege of the writ of amparo. The CA ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos and the court with all official and unofficial investigation reports as to the Manalos custody, confirm the present places of official assignment of two military officials involved, and produce all medical reports and records of the Manalo brothers while under military custody. The Secretary of National Defense and the Chief of Staff of the AFP appealed to the SC seeking to reverse and set aside the decision promulgated by the CA. HELD: In upholding the CA decision, the Supreme Court ruled that there is a continuing violation of the Manalos right to security. xxx The Writ of Amparo is the most potent remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. xxx Understandably, since their escape, the Manalos have been under concealment and protection by private citizens because of the threat to their life, liberty, and security. The circumstances of respondents abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo, the Court explained. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008) Distinguish the production order under the Rule on the Writ of Amparo from a search warrant. SUGGESTED ANSWER: The production order under the Rule on the Writ of Amparo should not be confused with a search warrant for law enforcement under Art. III, sec. 2 of the 1987 Constitution. It said that the production order should be likened to the production of documents or things under sec. 1, Rule 27 of the Rules of Civil Procedure which states that upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

HABEAS DATA 1. Meralco vs. Lim

G.R. 05 October 2010 PONENTE: Carpio Morales, J.

No.

184769

PARTIES: 1. PETITIONERS: MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA 2. RESPONDENTS: ROSARIO GOPEZ LIM NATURE: Petition for review on certiorari PROCEDURAL BACKGROUND: 1. Regional Trial Court: Original petition for issuance of a writ of habeas data 2. Supreme Court: Appealed to the Supreme Court by way of a petition for review on certiorari pursuant to the Rules on the Writ of Habeas Data

FACTS: Respondent Rosario G. Lim, also known as Cherry Lim, is an administrative clerk at the Manila Electric Company (MERALCO). On 04 June 2008, an anonymous letter was posted at the door of the Metering Office of the Administration building of MERALCO Plaridel, Bulacan. The letter reads: Cherry Lim: MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA LOOB. Copies of the letter were also inserted in the lockers of MERALCO linesmen. In a Memorandum dated 04 July 2008, Alexander Deyto, Head of MERALCOs Human Resource Staffing, directed the transfer of respondent to MERALCOs Alabang Sector in Muntinlupa as A/F OTMS Clerk, effective July 18, 2008 in light of the receipt of reports that there were accusations and threats directed against [her] from unknown individuals and which could possibly compromise [her] safety and security. The respondent however, did not agree with her transfer and filed an appeal with Ruben A. Sapitula, VicePresident and Head of MERALCOs Human Resource Administration, and requested for a dialogue so she could voice her concerns and misgivings on the matter, claiming that the punitive nature of the transfer amounted to a denial of due process. She likewise claimed the grueling travel from her residence in Pampanga to Alabang and back entails, and violation of the provisions on job security of their Collective Bargaining Agreement (CBA). Respondent thus requested for the deferment of the implementation of her transfer pending resolution of the issues she raised.

No response to her request having been received, respondent filed a petition for the issuance of a writ of habeas data against petitioners before the Regional Trial Court (RTC) of Bulacan. She claimed petitioners unlawful act and omission consisting of their continued failure and refusal to provide her with details or information about the alleged report which MERALCO purportedly received concerning threats to her safety and security amount to a violation of her right to privacy in life, liberty and security, correctible by habeas data. Additionally, respondent prayed for the issuance of a Temporary Restraining Order (TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang Sector. In its Decision dated 22 September 2008, the RTC granted respondents petition including the issuance of a writ of preliminary injunction directing petitioners to desist from implementing respondents transfer until such time that petitioners comply with the disclosures required. The trial court justified its ruling by declaring that recourse to a writ of habeas data should extend not only to victims of extra-legal killings and political activists but also to ordinary citizens, like respondent whose rights to life and security are jeopardized by petitioners refusal to provide her with information or data on the reported threats to her person. Thus, the petition for review. PERTINENT ISSUE: Whether or not the remedy of habeas data may be properly issued to protect purely property or commercial concerns where there is no clear showing of any unjustifiable or unlawful violation of the right to privacy in relation to the rights to life, liberty, and security. ANSWER: No. SUPREME COURT RULINGS: PROPRIETY OF THE REMEDY OF HABEAS DATA The remedy of habeas data can only be invoked to protect the right to privacy in relation to the rights to life, liberty, and security The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce ones right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a persons right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules. The Writ of Habeas Data cannot be invoked in labor disputes where there is no unlawful violation of the right to life, liberty, or security Castillo v. Cruz (G.R. No. 182165, November 25, 2009) underscores the emphasis laid down in Tapuz v. del Rosario (G. R. No. 182484, June 17, 2008) that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondents reservations on the real reasons for her transfer a legitimate concern respecting the terms and conditions of ones employment are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters. In another vein, there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondents right to privacy vis-a-vis the right to life, liberty or security. To argue that petitioners refusal to disclose the contents of reports allegedly received on the threats to respondents

safety amounts to a violation of her right to privacy is at best speculative. Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as highly suspicious, doubtful or are just mere jokes if they existed at all. And she even suspects that her transfer to another place of work betray[s] the real intent of management and could be a punitive move. Her posture unwittingly concedes that the issue is labor-related. DISPOSITIVE: The Supreme Court granted the petition for review on certiorari. The assailed decision of the trial court was reversed and set aside.

2.Castillo vs. Amanda cruz

Castillo v. Cruz G.R. 25 November 2009 PONENTE: Carpio Morales, J. PARTIES: 1. 1. PETITIONERS: P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS, RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR. REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR. ARTEMIO ESGUERRA, TISOY, and JOHN DOES 2. RESPONDENTS: DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ NATURE: Petition for review on certiorari PROCEDURAL BACKGROUND: 1. Regional Trial Court: Petition for issuance of a writ of amparo and writ of habeas data 2. Supreme Court: Appeal to the Supreme Court by way of a Petition for Review on Certiorari pursuant to the Rules on the Writ of Amparo No. 182165

FACTS: Spouses Francisco and Amanda Cruz leased a parcel of land located at Barrio Guinhawa, Malolos, Bulacan from the Provincial Government of Bulacan. However, the Provincial Government of Bulacan intended to use the property for projects, thus upon expiry of the lease, it demanded that the respondents vacate the property. When the respondents refused to heed its demands, it filed an action for unlawful detainer before the M unicipal Trial Court (MTC) of Bulacan, Bulacan. The MTC rendered judgment against the respondents which was affirmed on appeal by the Regional Trial Court (RTC) of Bulacan. The judgment for ejectment became final and executory. Despite the said judgment, respondents refused to vacate the property and filed cases against the Provincial Government of Bulacan and the judges who presided over the case. Notwithstanding the cases filed by the respondents, judgment for ejectment was executed on 25 January 2008 pursuant to a Second Alias Writ of Demolition issued by the MTC. However, the RTC of Malolos, Bulacan acted favorably on an application for a temporary restraining order (TRO) by the respondents.

Thus, the Spouses Cruz, along with their sonsrespondents Nixon and Ferdinand, thereupon entered the property, placed several container vans and purportedly represented themselves as owners of the property which was for lease. In response, the Mayor of Malolos sought assistance from the Philippine National Police who were led by Police Superintendent Felixberto Castillo and sought to protect, secure and maintain the possession of the property. The respondents, however, refused to surrender possession invoking a prior permanent injunction issued by the RTC of Malolos which they claimed enjoined the Provincial Government of Bulacan from repossessing the property. On 03 March 2008, respondents herein filed for a Respectful Motion-Petition for Writ of Amparo and Habeas Data alleging that despite the permanent injunction, petitioners entered the property and arrested the respondents when they attempted to resist the entry. The RTC of Malolos granted the petition for amparo and habeas data as the respondents has sufficiently proven that the petitioners committed acts subjecting the former to bodily harm, mental torture, degradation, and the debasement of a human being, reminiscent of the martial law police brutality, sending chill in any ordinary citizen. PERTINENT ISSUES: 1. Whether or not the remedies of amparo and habeas data are proper in cases involving property disputes without a showing of a considerable nexus between the acts complained of and its effect on respondents right to life, liberty and security. 2. Whether or not the privilege of amparo may still be granted despite the dismissal of the case for qualified theft against Guisande.

ANSWER: 1. No 2. No. SUPREME COURT RULINGS: PROPRIETY OF THE REMEDY OF AMPARO The remedy of amparo can only be invoked to protect the right to life, liberty, and security Under the Rules on the Writ of Amparo and Habeas Data, the coverage of the writs is limited to the protection of rights to life, liberty, and security although the writs cover not only actual but also threats of unlawful acts or omissions. As was held in Secretary of National Defense v. Manalo, the Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances, its coverage, in its present form, is confined to these two instances or to threats thereof. Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. Thus, to be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents.

Absent any considerable nexus between the acts complained of and its effect on respondents right to life, liberty and security, the Court will not delve on the propriety of petitioners entry into the property. It bears emphasis that respondents petition did not show any actual violation, imminent or continuing threat to their life, liberty and security. Bare allegations that petitioners in unison, conspiracy and in contempt of court, there and then willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly, physically manhandled the petitioners (respondents) and arrested the herein petitioners (respondents) will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after thei r arrest. Habeas data cannot be invoked when respondents are not gathering, collecting, or storing data or information Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting or storing data or information regarding their person, family, home and correspondence. More importantly, respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition for writs of amparo and habeas data before the Sandiganbayan, they alleging the commission of continuing threats by petitioners after the issuance of the writs by the RTC. Such petition was correctly dismissed for insufficiency and forum shopping. It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges. It need not be underlined that respondents petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute. An independent action for Amparo and Habeas Data is improper once criminal proceedings have been commenced; must be raised by motion in the criminal proceedings At all events, respondents filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings. It bears stressing that nowhere in the transcript of the CA hearing on December 3, 2009, nor in the Order recited in open court by Justice Pizarro, is there an affirmation of petitioner Sos claim that the confinement of accused Guisande at the NCMH was illegal. Neither were the respective acts performed by respondents Judge Tacla and Dr. Vicente in ascertaining the mental condition of accused Guisande to withstand trial declared unlawful. On the contrary, the NCMH, a well-reputed government forensic facility, albeit not held in high regard by petitioner Sos and accused Guisandes family, had assessed Guisande fit for trial. The Rules on the Writs of habeas corpus and amparo are clear; the act or omission or the threatened act or omission complained of confinement and custody for habeas corpus and violations of, or threat to violate, a persons life, liberty, and security for amparo cases should be illegal or unlawful. As was held in Rubrico v. Macapagal-Arroyo, the privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that

vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations. On the other hand, in Ampatuan v. Macaraig, the Court held that the general purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained of his liberty. If he is not, the writ will be refused. Inquiry into the cause of detention will proceed only where such restraint exists. If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner discharged. Needless to state, if otherwise, again the writ will be refused. In the cases at bar, the question before the CA was correctly limited to which hospital, the NCMH or a medical facility of accuseds own choosing, accused Guisande should be referred for treatment of a supposed mental condition. In addition, we note that it was procedurally proper for the RTC to ask the NCMH for a separate opinion on accuseds mental fitness to be arraigned and stand trial. Be that as it may, the CA allowed the transfer of accused to St. Clares Medical Center under the custody of Dr. Rene Yat. Notwithstanding, Guisande remained in custody of the law to answer for the non-bailable criminal charge against her, and was simply allowed to pursue medical treatment in the hospital and from a doctor of her choice. DISPOSITIVE: The Supreme Court granted the Supreme Court granted the petition for review on certiorari. Accordingly, the 04 March 2008 Order of the RTC of Malolos, Bulacan is declared null and void, and its 28 March 2008 Decision is reversed and set aside. The Supreme Court likewise dismissed Special Civil Action No. 53-M-2008.

3. Roxas vs. GMA

Roxas G.R. 07 September 2010 PONENTE: Perez, J. PARTIES: 1. 2. PETITIONER: MELISSA ROXAS RESPONDENTS: PRESIDENT GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN BANGIT, PC/SIPT/ LEON NILO DELA CRUZ, MAJ.GEN. RALPH VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, DEX, RC, and ROSE NATURE: Petition for Review on Certiorari PROCEDURAL BACKGROUND: 1. Supreme Court: Petition for the issuance of Writs of Amparo and Habeas Data v. No. Macapagal-Arroyo 189155

2.

Court of Appeals: Upon order of the Supreme Court, the Court of Appeals summarily heard the Original Action for Petition of Amparo. Thereafter, the Court of Appeals issued a judgment which is the subject of the present Petition for Review on Certiorari.

FACTS: Melissa Roxas, an American citizen of Filipino descent, while in the United States, enrolled in an exposure program to the Philippines with the group Bagong Alyansang Makabayan-United States of America (BAYAN- USA) of which she is a member. On 19 May 2009, after doing survey work in Tarlac, Roxas and her companions rested in the house of Mr. Jesus Paolo in Sitio Bagong Sikat. While Roxas and her companions were resting, 15 heavily armed men in civilian clothes forcibly entered the house and dragged them inside a van. When they alighted from the van, she was informed that she is being detained for being a member of Communist Party of the Philippines-New Peoples Army (CPP-NPA). She was then separated from her companions and was brought to a room, from where she could hear sounds of gunfire, noise of planes taking off and landing, and some construction bustle. She was interrogated and tortured for 5 straight days to convince her to abandon her communist beliefs. She was informed by a person named RC that those who tortured her came from the Special Operations Group and that she was abducted because her name is included in the Order of Battle. On 25 May 2009, Roxas was finally released and was given a cellular phone with a sim card. She was sternly warned not to report the incident to the group Karapatan or something untoward will happen to her and her family. After her release, Roxas continued to receive calls from RC thru the cell phone given to her. Out of apprehension, she threw the phone and the sim card. Hence, on 01 June 2009, Roxas filed a petition for the issuance of Writs of Amparo and Habeas Data before the Supreme Court, impleading the high-ranking officials of military and Philippine National Police (PNP), on the belief that it was the government agents who were behind her abduction and torture. On 09 June 2009, the Supreme Court issued the writs and referred the case to the Court of Appeals for hearing, reception of evidence and appropriate action. The Court of Appeals granted the privilege of writs of amparo and habeas data. However, the court a quo absolved the respondents because it was not convinced that the respondents were responsible for the abduction and torture of Roxas. Aggrieved, Roxas filed an appeal with the Supreme Court. PERTINENT ISSUES: 1. Whether or not the doctrine of command responsibility is applicable in an amparo petition. 2. 3. Whether or not circumstantial evidence with regard to the identity and affiliation of the perpetrators is enough ground for the issuance of the privilege of the writ of amparo. Whether or not substantial evidence to prove actual or threatened violation of the right to privacy in life, liberty or security of the victim is necessary before the privilege of the writ may be extended.

ANSWERS: 1. No.

2. 3.

It depends. Direct evidence of identity, when obtainable must be preferred over mere circumstantial evidence. Yes.

SUPREME COURT RULINGS: 1. DOCTRINE OF COMMAND RESPONSIBILITY AND THE WRIT OF AMPARO Command responsibility as justification in impleading respondents is legally inaccurate The use of the doctrine of command responsibility as justification in impleading the respondents in her amparo petition, is legally inaccurate, if not incorrect. Such doctrine is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition. The Writ of Amparo as a protective remedy As held in the case of Rubrico v. Arroyo, the writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty or security. It does not fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law. Since the application of command responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo proceeding. However, the inapplicability of the doctrine of command responsibility does not preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleaded not actually on the basis of command responsibilitybut rather on the ground of their responsibility, or at least accountability. 2. EVIDENCE REQUIRED IN AMPARO PROCEEDINGS In amparo proceedings, direct evidence of identity must be preferred over mere circumstantial evidence In amparo proceedings, the weight that may be accorded to parallel circumstances as evidence of military involvement depends largely on the availability or non-availability of other pieces of evidence that has the potential of directly proving the identity and affiliation of the perpetrators. Direct evidence of identity, when obtainable, must be preferred over mere circumstantial evidence based on patterns and similarity, because the former indubitably offers greater certainty as to the true identity and affiliation of the perpetrators. 3. EVIDENCE REQURED IN HABEAS DATA PROCEEDINGS Substantial evidence of an actual or threatened violation of the right to privacy in life, liberty or security of the victim is an indispensable requirement before the privilege of the writ may be extended An indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim. In the case at bar, Roxas failed to show that there is an actual or threatened violation of such right. Hence, until such time that any of the respondents were found to be actually responsible for the abduction and torture of Roxas, any inference regarding the existence of reports being kept in violation of the petitioners right to privacy becomes farfetched, and premature. The Court must, at least in the meantime, strike down the grant of the privilege of the writ of habeas data. DISPOSITIVE: The Supreme Court affirmed the decision of the Court of Appeals. However, it modified the directive of the Court of the Appeals for further investigation, as follows: 1. Appointing the CHR as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the persons described in the

cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any 2. other leads relevant to petitioners abduction and torture. Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing investigation of the CHR, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioners abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws. 3. Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision. 4. Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and to (b) provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court. The Supreme Court likewise referred the case back to the Court of Appeals, for the purposes of monitoring compliance with the above directives and determining whether, in light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible or, at least, accountable. After making such determination, the Court of Appeals shall submit its own report with recommendation to the Supreme Court for its consideration. It was declared that the Court of Appeals will continue to have jurisdiction over this case in order to accomplish its tasks under this decision.

CHANGE OF NAME
G.R. No. 189476 February 2, 2011

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. JULIAN EDWARD EMERSON COSETENG-MAGPAYO (A.K.A. JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG), Respondent. DECISION CARPIO MORALES, J.: Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng Magpayo (respondent) is the son of Fulvio M. Magpayo Jr. and Anna Dominique Marquez-Lim Coseteng who, as respondents certificate of live birth1shows, contracted marriage on March 26, 1972. Claiming, however, that his parents were never legally married, respondent filed on July 22, 2008 at the Regional Trial Court (RTC) of Quezon City a Petition to change his name to Julian Edward Emerson Marquez Lim Coseteng. The petition, docketed as SPP No. Q-0863058, was entitled "IN RE PETITION FOR CHANGE OF NAMEOF JULIAN EDWARD EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG." In support of his petition, respondent submitted a certification from the National Statistics Office stating that his mother Anna Dominique "does not appear in [its] National Indices of Marriage."2 Respondent also submitted his academic records from elementary up to

college3 showing that he carried the surname "Coseteng," and the birth certificate of his child where "Coseteng" appears as his surname.4 In the 1998, 2001 and 2004 Elections, respondent ran and was elected as Councilor of Quezon Citys 3rd District using the name "JULIAN M.L. COSETENG."5 On order of Branch 77 of the Quezon City RTC,6 respondent amended his petition by alleging therein compliance with the 3-year residency requirement under Section 2, Rule 103] of the Rules of Court.7 The notice setting the petition for hearing on November 20, 2008 was published in the newspaper Broadside in its issues of October 31-November 6, 2008, November 7-13, 2008, and November 1420, 2008.8 And a copy of the notice was furnished the Office of the Solicitor General (OSG). No opposition to the petition having been filed, an order of general default was entered by the trial court which then allowed respondent to present evidence ex parte.9 By Decision of January 8, 2009,10 the trial court granted respondents petition and directed the Civil Registrar ofMakati City to: 1. Delete the entry "March 26, 1972" in Item 24 for "DATE AND PLACE OF MARRIAGE OF PARTIES" [in herein respondents Certificate of live Birth]; 2. Correct the entry "MAGPAYO" in the space for the Last Name of the [respondent] to "COSETENG"; 3. Delete the entry "COSETENG" in the space for Middle Name of the [respondent]; and 4. Delete the entry "Fulvio Miranda Magpayo, Jr." in the space for FATHER of the [respondent] (emphasis and underscoring supplied; capitalization in the original) The Republic of the Philippines (Republic) filed a motion for reconsideration but it was denied by the trial court by Order of July 2, 2009,11 hence, it, thru the OSG, lodged the present petition for review to the Court on pure question of law. The Republic assails the decision in this wise: I. . . . THE PETITION FOR CHANGE OF NAMEINVOLVES THE CHANGE OF [RESPONDENTS] CIVIL STATUS FROM LEGITIMATE TO ILLEGITIMATE AND, THEREFORE, SHOULD BE MADE THROUGH APPROPRIATE ADVERSARIAL PROCEEDINGS II. THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN IT DIRECTED THE DELETION OF THE NAME OF RESPONDENTS FATHER FROM HIS BIRTH CERTIFICATE.12 (emphasis and underscoring supplied) The Republic contends that the deletion of the entry on the date and place of marriage of respondents parents from his birth certificate has the effect of changing his civil status from legitimate to illegitimate, hence, any change in civil status of a person must be effected through an appropriate adversary proceeding.13 The Republic adds that by ordering the deletion of respondents parents date of marriage and the name of respondents father from the entries in respondents birth certificate,14 the trial court exceeded its jurisdiction, such order not being in accord with respondents prayer reading:

WHEREFORE, premises considered, it is most respectfully prayed that the Honorable Court issue an orderallowing the change of name of petitioner from JULIAN EDWARD EMERSON COSETENG MAGPAYO to JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG, and that the Honorable Court order the Local Civil Registrar and all other relevant government agencies to reflect the said change of name in their records. Petitioner prays for other reliefs deemed proper under the premises.15 (underscoring supplied) Respondent counters that the proceeding before the trial court was adversarial in nature. He cites the serving of copies of the petition and its annexes upon the Civil Registrar of Makati, the Civil Registrar General, and the OSG; the posting of copies of the notice of hearing in at least four public places at least ten days before the hearing; the delegation to the OSG by the City Prosecutor of Quezon City to appear on behalf of the Republic; the publication of the notice of hearing in a newspaper of general circulation for three consecutive weeks; and the fact that no oppositors appeared on the scheduled hearing.16 The petition is impressed with merit. A person can effect a change of name under Rule 103 (CHANGE OF NAME) using valid and meritorious grounds including (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence such as legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.17 Respondents reason for changing his name cannot be considered as one of, or analogous to, recognized grounds, however. The present petition must be differentiated from Alfon v. Republic of the Philippines.18 In Alfon, the Court allowed the therein petitioner, Estrella Alfon, to use the name that she had been known since childhood in order to avoid confusion. Alfon did not deny her legitimacy, however. She merely sought to use the surname of her mother which she had been using since childhood. Ruling in her favor, the Court held that she was lawfully entitled to use her mothers surname, adding that the avoidance of confusion was justification enough to allow her to do so. In the present case, however, respondent denies his legitimacy. The change being sought in respondents petition goes so far as to affect his legal status in relation to his parents. It seeks to change his legitimacy to that of illegitimacy. Rule 103 then would not suffice to grant respondents supplication. Labayo-Rowe v. Republic19 categorically holds that "changes which may affect the civil status from legitimate to illegitimate . . . are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings . . ." Since respondents desired change affects his civil status from legitimate to illegitimate, Rule 108 applies. It reads: SECTION 1. Who may file petition.Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the [RTC] of the province where the corresponding civil registry is located.

xxxx SEC. 3. Parties.When cancellation or correction of an entry in the civil register is sought, the civil registrar andall persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. (emphasis, italics and underscoring supplied) Rule 108 clearly directs that a petition which concerns ones civil status should be filed in the civil registry in which the entry is sought to be cancelled or corrected that of Makati in the present case, and "all persons who have or claim any interest which would be affected thereby" should be made parties to the proceeding. As earlier stated, however, the petition of respondent was filed not in Makati where his birth certificate was registered but in Quezon City. And as the above-mentioned title of the petition filed by respondent before the RTC shows, neither the civil registrar of Makati nor his father and mother were made parties thereto. Respondent nevertheless cites Republic v. Capote20 in support of his claim that his change of name was effected through an appropriate adversary proceeding. Republic v. Belmonte,21 illuminates, however: The procedure recited in Rule 103] regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry are separate and distinct. They may not be substituted one for the other for the sole purpose of expediency. To hold otherwise would render nugatory the provisions of the Rules of Court allowing the change of ones name or the correction of entries in the civil registry only upon meritorious grounds. . . . (emphasis, capitalization and underscoring supplied) Even assuming arguendo that respondent had simultaneously availed of these two statutory remedies, respondent cannot be said to have sufficiently complied with Rule 108. For, as reflected above, aside from improper venue, he failed to implead the civil registrar of Makati and all affected parties as respondents in the case. Republic v. Labrador22 mandates that "a petition for a substantial correction or change of entries in the civil registry should have as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby." It cannot be gainsaid that change of status of a child in relation to his parents is a substantial correction or change of entry in the civil registry. Labayo-Rowe23 highlights the necessity of impleading indispensable parties in a petition which involves substantial and controversial alterations. In that case, the therein petitioner Emperatriz Labayo-Rowe (Emperatriz) filed a petition for the correction of entries in the birth certificates of her children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil Registry of San Fernando, Pampanga. Emperatriz alleged that her name appearing in the birth certificates is Beatriz, which is her nickname, but her full name is Emperatriz; and her civil status appearing in the birth certificate of her

daughter Victoria as "married" on "1953 Bulan" are erroneous because she was not married to Vicente Miclat who was the one who furnished the data in said birth certificate. The trial court found merit in Emperatrizs petition and accordingly directed the local civil registrar to change her name appearing in her childrens birth certificates from Beatriz to Emperatriz; and to correct her civil status in Victorias birth certificate from "married" to "single" and the date and place of marriage to "no marriage." On petition before this Court after the Court of Appeals found that the order of the trial court involved a question of law, the Court nullified the trial courts order directing the change of Emperatriz civil status and the filiation of her child Victoria in light of the following observations: x x x x Aside from the Office of the Solicitor General, all other indispensable parties should have been maderespondents. They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be notified or represented. The truth is best ascertained under an adversary system of justice. The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from "legitimate" to "illegitimate." Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that such rules "shall not diminish, increase or modify substantive rights." If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code.24 (emphasis, italics and underscoring supplied) As for the requirement of notice and publication, Rule 108 provides: SEC. 4. Notice and publication.Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition.The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. (emphasis and underscoring supplied) A reading of these related provisions readily shows that Rule 108 clearly mandates two sets of notices to different "potential oppositors." The first notice is that given to the "persons named in the petition" and the second (which is through publication) is that given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties, such as creditors. That two sets of notices are mandated under the above-quoted Section 4 is validated by the subsequent Section 5, also above-quoted, which provides for two periods (for the two types of

"potential oppositors") within which to file an opposition (15 days from notice or from the last date of publication). This is the overriding principle laid down in Barco v. Court of Appeals.25 In that case, Nadina Maravilla (Nadina) filed a petition for correction of entries in the birth certificate of her daughter June from June Salvacion Maravilla to June Salvacion "Gustilo," Armando Gustilo being, according to Nadina, her daughters real father. Gustilo in fact filed before the trial court a "CONSTANCIA" wherein he acknowledged June as his daughter. The trial court granted the petition. After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals a petition for annulment of the Order of the trial court granting the change of Junes family name to Gustilo. Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy Ann Gustilo, filed before the appellate court a motion for intervention, alleging that Mary Joy had a legal interest in the annulment of the trial courts Order as Mary Joy was, by Barcos claim, also fathered by Gustilo. The appellate court dismissed the petition for annulment and complaint-in-intervention. On appeal by Barco, this Court ruled that she should have been impleaded in Nadinas petition for correction of entries of the birth certificate of Mary Joy. But since a petitioner, like Nadina, is not expected to exhaustively identify all the affected parties, the subsequent publication of the notice cured the omission of Barco as a party to the case. Thus the Court explained: Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was affected by the petition for correction, as any judicial determination that June was the daughter of Armando would affect her wards share in the estate of her father. It cannot be established whether Nadina knew of Mary Joys existence at the time she filed the petition for correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108 would know of all the parties whose interests may be affected by the granting of a petition. For example, a petitioner cannot be presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. x x x x.
1aw phi 1

xxxx The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108 but were inadvertently left out. x x x x.26 (emphasis, italics and underscoring supplied) Meanwhile, in Republic v. Kho,27 Carlito Kho (Carlito) and his siblings named the civil registrar as the sole respondent in the petition they filed for the correction of entries in their respective birth certificates in the civil registry of Butuan City, and correction of entries in the birth certificates of Carlitos minor children. Carlito and his siblings requested the correction in their birth certificates of the citizenship of their mother Epifania to "Filipino," instead of "Chinese," and the deletion of the word "married" opposite the phrase "Date of marriage of parents" because their parents Juan and Epifania were not married. And Carlito requested the correction in the birth certificates of their children of his and his wifes date of marriage to reflect the actual date of their marriage as appearing in their marriage certificate. In the course of the hearing of the petition, Carlito also sought the correction of the name of his wife from Maribel to "Marivel." The Khos mother Epifania took the witness stand where she declared that she was not married to Juan who died before the filing of the Khos petition.

The trial court granted the petition. On the issue of whether the failure to implead Marivel and the Khos parents rendered the trial of the petition short of the required adversary proceedings and the trial courts judgment void, this Court held that when all the procedural requirements under Rule 108 are followed, the publication of the notice of hearing cures the failure to implead an indispensable party. In so ruling, the Court noted that the affected parties were already notified of the proceedings in the case since the petitionersiblings Khos were the ones who initiated the petition respecting their prayer for correction of their citizenship, and Carlito respecting the actual date of his marriage to his wife; and, with respect to the Khos petition for change of their civil status from legitimate to illegitimate, their mother Epifania herself took the witness stand declaring that she was not married to their father. What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule 108 to implead the civil registrar and the parties who would naturally and legally be affected by the grant of a petition for correction or cancellation of entries. Non-impleading, however, as party-respondent of one who is inadvertently left out or is not established to be known by the petitioner to be affected by the grant of the petition or actually participates in the proceeding is notified through publication. IN FINE, when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 of the Rules of Court is mandated. WHEREFORE, the petition is, in light of the foregoing discussions, GRANTED. The January 8, 2009 Decision of Branch 77 of the Regional Trial Court of Quezon City in SP Proc. No. Q-0863058 is NULLIFIED. SO ORDERED.

CANCELLATION OF CORRECTION OF ENTRIES IN THE COURT

G.R. No. 186027 December 8, 2010

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MERLYN MERCADERA through her Attorney-in-Fact, EVELYN M. OGA, Respondent. DECISION MENDOZA, J.: This petition for review on certiorari assails the December 9, 2008 Decision1 of the Court of Appeals (CA), in CA G.R. CV No. 00568-MIN, which affirmed the September 28, 2005 Order of the Regional Trial Court of Dipolog City, Branch 8 (RTC), in a petition for correction of entries, docketed as Special Proceedings No. R-3427 (SP No. R-3427), filed by respondent Merlyn Mercadera (Mercadera) under Rule 108 of the Rules of Court. The Factual and Procedural Antecedents On June 6, 2005, Merlyn Mercadera (Mercadera), represented by her sister and duly constituted Attorney-in-Fact, Evelyn M. Oga (Oga), sought the correction of her given name as it appeared in

her Certificate of Live Birth - fromMarilyn L. Mercadera to Merlyn L. Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic Act No. 9048 (R.A. No. 9048).2 Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the case may be, is now authorized to effect the change of first name or nickname and the correction of clerical or typographical errors in civil registry entries. "Under said law, jurisdiction over applications for change of first name is now primarily lodged with administrative officers. The law now excludes the change of first name from the coverage of Rules 103 until and unless an administrative petition for change of name is first filed and subsequently denied"3 and removes "correction or changing of clerical errors in entries of the civil register from the ambit of Rule 108." Hence, what is left for the scope of operation of the rules are substantial changes and corrections in entries of the civil register.4 The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the correction unless a court order was obtained "because the Civil Registrar therein is not yet equipped with a permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048."5 Mercadera was then constrained to file a Petition For Correction of Some Entries as Appearing in the Certificate of Live Birth under Rule 108 before the Regional Trial Court of Dipolog City (RTC). The petition was docketed as Special Proceedings No. R-3427 (SP No. R3427). Section 2 of Rule 108 reads: SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)changes of name. [Underscoring supplied] Upon receipt of the petition for correction of entry, the RTC issued an order, dated June 10, 2005, which reads: Finding the petition sufficient in form and substance, notice is hereby given that the hearing of said petition is set on JULY 26, 2005 at 8:30 oclock in the morning, at the Session Hall of Branch 8, this Court, Bulwagan ng Katarungan, Dipolog City, on which date, time and place, anyone appearing to contest the petition shall state in writing his grounds there[for], serving a copy thereof to the petitioner and likewise file copies with this Court on or before the said date of hearing. Let this order be published at the expense of petitioner once a week for three (3) consecutive weeks in a newspaper edited and published in Dipolog City and of general circulation therein, the City of Dapitan and the province of Zamboanga del Norte, and copies hereof be furnished to the Office of the Solicitor General of (sic) 134 Amorsolo St., Legaspi Village, Makati, Metro Manila, the City Civil Registrar of Dipolog, and posted on the bulletin boards of the City Hall of Dipolog, the Provincial Capitol Building, and of this Court. IT IS SO ORDERED. The Office of the Solicitor General (OSG) entered its appearance for the Republic of the Philippines and deputized the Office of the City Prosecutor to assist in the case only on the very day of the hearing. This prompted the court to reset the hearing on September 5, 2005. On said day, there being no opposition, counsel for Mercadera moved for leave of court to present evidence ex parte.

Without any objection from the City Prosecutor, the trial court designated the branch clerk of court to receive evidence for Mercadera. On September 15, 2005, the testimony of Oga and several photocopies of documents were formally offered and marked as evidence to prove that Mercadera never used the name "Marilyn" in any of her public or private transactions. On September 26, 2005, the RTC issued an order6 admitting Exhibits "A" to "I"7 and their submarkings, as relevant to the resolution of the case. The following facts were gathered from documentary evidence and the oral testimony of Oga, as reported by the lower court: Petitioner Merlyn M. Mercadera was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso U. Mercadera and Norma C. Lacquiao. The fact of her birth was reported to the Office of the City Civil Registrar of Dipolog City on September 8, 1970. It was recorded on page 68, book no. 9, in the Registry of Births of said civil registry. In the certification of birth dated May 9, 2005 issued by the same registry, her given name appears as Marilyn and not Merlyn (Exhibit "C"). On September 29, 1979, petitioner was baptized according to the rites and ceremonies of the United Church of Christ in the Philippines. As reflected in her certificate of baptism issued by said church, she was baptized by the name Merlyn L. Mercadera (Exhibit "D"). In her elementary diploma issued by the Paaralang Sentral ng Estaka, Dipolog City; her high school diploma issued by the Zamboanga del Norte School of Arts and Trades, Dipolog City; and college diploma issued by the Silliman University, Dumaguete City, where she earned the degree of Bachelor of Secondary Education, uniformly show her name as Merlyn L. Mercadera (Exhibits "E", "F", and "G"). Presently, she is working in U.P. Mindanao, Buhangin, Davao City. Her certificate of membership issued by the Government Service Insurance System also bears his [sic] complete name as Merlyn Lacquiao Mercadera (Exhibit "H"). When she secured an authenticated copy of her certificate of live birth from the National Statistics Office, she discovered that her given name as registered is Marilyn and not Merlyn; hence, this petition. In its September 28, 2005 Decision,8 the RTC granted Mercaderas petition and directed the Office of the City Civil Registrar of Dipolog City to correct her name appearing in her certificate of live birth, Marilyn Lacquiao Mercadera, to MERLYN Lacquiao Mercadera. Specifically, the dispositive portion of the RTC Decision reads: WHEREFORE, the petition is GRANTED. Accordingly, the Office of the City Civil Registrar of Dipolog City is hereby directed to correct the given name of petitioner appearing in her certificate of live birth, from Marilyn Lacquiao Mercadera to MERLYN Lacquiao Mercadera. In a four-page decision, the RTC ruled that the documentary evidence presented by Mercadera sufficiently supported the circumstances alleged in her petition. Considering that she had used "Merlyn" as her given name since childhood until she discovered the discrepancy in her Certificate of Live Birth, the RTC was convinced that the correction was justified. The OSG timely interposed an appeal praying for the reversal and setting aside of the RTC decision. It mainly anchored its appeal on the availment of Mercadera of the remedy and procedure under

Rule 108. In its Brief9 filed with the CA, the OSG argued that the lower court erred (1) in granting the prayer for change of name in a petition for correction of entries; and (2) in admitting the photocopies of documentary evidence and hearsay testimony of Oga. For the OSG, the correction in the spelling of Mercaderas given name might seem innocuous enough to grant but "it is in truth a material correction as it would modify or increase substantive rights."10 What the lower court actually allowed was a change of Mercaderas given name, which would have been proper had she filed a petition under Rule 103 and proved any of the grounds therefor. The lower court, "may not substitute one for the other for purposes of expediency."11 Further, because Mercadera failed to invoke a specific ground recognized by the Rules, the lower courts order in effect allowed the change of ones name in the civil registry without basis. The CA was not persuaded. In its December 9, 2008 Decision, 12 the appellate court affirmed the questioned RTC Order in CA-G.R. CV No. 00568-MIN. The CA assessed the controversy in this wise: Appellants insistence that the petition should have been filed under Rule 103 and not Rule 108 of the Rules of Court is off the mark. This Court does not entertain any doubt that the petition before the trial court was one for the correction on an entry in petitioners Certificate of Live Birth and not one in which she sought to change her name. In Co v. Civil Register of Manila, G.R. No. 138496, February 23, 2004, the High Court reiterated the distinction between the phrases "to correct" and "to change." Said the High Court: To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute. Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed or corrected or distinguished on the basis of the effect that the correction or change may be. Such entries include not only those clerical in nature but also substantial errors. After all, the role of the Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded therein. That appellee sought to correct an entry and not to change her name is patent to the Court from the allegations in her petition, specifically, paragraphs 7 and 8 thereof xxxx Anent the RTCs error in admitting the photocopies of Mercaderas documentary evidence and in vesting probative value to Ogas testimony, the CA cited the well-established rule that "evidence not objected to may be admitted and may be validly considered by the court in arriving at its judgment."13 On March 6, 2009, the OSG filed the present petition. On behalf of Mercadera, the Public Attorneys Office (PAO) filed its Comment14 on July 3, 2009. The OSG declined to file a reply claiming that its petition already contained an exhaustive discussion on the following assigned errors:15 I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE CHANGE IN RESPONDENTS NAME UNDER RULE 103. II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN CONSIDERING SECONDARY EVIDENCE. Rule 103 procedurally governs judicial petitions for change of given name or surname, or both, pursuant to Article 376 of the Civil Code.16 This rule provides the procedure for an independent special proceeding in court to establish the status of a person involving his relations with others, that is, his legal position in, or with regard to, the rest of the community.17 In petitions for change of name, a person avails of a remedy to alter the "designation by which he is known and called in the community in which he lives and is best known."18 When granted, a persons identity and interactions are affected as he bears a new "label or appellation for the convenience of the world at large in addressing him, or in speaking of, or dealing with him."19 Judicial permission for a change of name aims to prevent fraud and to ensure a record of the change by virtue of a court decree. The proceeding under Rule 103 is also an action in rem which requires publication of the order issued by the court to afford the State and all other interested parties to oppose the petition. When complied with, the decision binds not only the parties impleaded but the whole world. As notice to all, publication serves to indefinitely bar all who might make an objection. "It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it."20 Essentially, a change of name does not define or effect a change of ones existing family relations or in the rights and duties flowing therefrom. It does not alter ones legal capacity or civil status.21 However, "there could be instances where the change applied for may be open to objection by parties who already bear the surname desired by the applicant, not because he would thereby acquire certain family ties with them but because the existence of such ties might be erroneously impressed on the public mind."22 Hence, in requests for a change of name, "what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced x x x mindful of the consequent results in the event of its grant x x x."23 Rule 108, on the other hand, implements judicial proceedings for the correction or cancellation of entries in the civil registry pursuant to Article 412 of the Civil Code.24 Entries in the civil register refer to "acts, events and judicial decrees concerning the civil status of persons,"25 also as enumerated in Article 408 of the same law.26Before, only mistakes or errors of a harmless and innocuous nature in the entries in the civil registry may be corrected under Rule 108 and substantial errors affecting the civil status, citizenship or nationality of a party are beyond the ambit of the rule. In the abandoned case of Chua Wee v. Republic,27 this Court declared that, x x x if Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would be increasing or modifying substantive rights, which changes are not authorized under Article 412 of the new Civil Code." In the latter case of Wong v. Republic,28 however, Justice Vicente Abad Santos, in a separate concurrence, opined that Article 412, which Rule 108 implements, contemplates all kinds of issues and all types of procedures because "the provision does not say that it applies only to noncontroversial issues and that the procedure to be used is summary in nature." In Republic v. Judge De la Cruz,29 the dissenting opinion penned by Justice Pacifico De Castro echoed the same view:

It is not accurate to say that Rule 108 would be rendered unconstitutional if it would allow the correction of more than mere harmless clerical error, as it would thereby increase or modify substantive rights which the Constitution expressly forbids because Article 412 of the Civil Code, the substantive law sought to be implemented by Rule 108, allows only the correction of innocuous clerical errors not those affecting the status of persons. As was stressed in the dissent on the aforesaid Wong Case, Article 412 does not limit in its express terms nor by mere implication, the correction authorized by it to that of mere clerical errors. x x x it would be reasonable and justified to rule that Article 412 contemplates of correction of erroneous entry of whatever nature, procedural safeguards having only to be provided for, as was the manifest purpose of Rule 108. x x x proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, x x x the books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained. Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. x x x Finally in Republic v. Valencia,30 the above stated views were adopted by this Court insofar as even substantial errors or matters in a civil registry may be corrected and the true facts established, provided the parties aggrieved avail themselves of the appropriate adversary proceeding. "If the purpose of the petition is merely to correct the clerical errors which are visible to the eye or obvious to the understanding, the court may, under a summary procedure, issue an order for the correction of a mistake. However, as repeatedly construed, changes which may affect the civil status from legitimate to illegitimate, as well as sex, are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings depending upon the nature of the issues involved. Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted x x x."31 "Where such a change is ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. In short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the Constitution."32 In the case at bench, the OSG posits that the conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous error but a material correction tantamount to a change of name which entails a modification or increase in substantive rights. For the OSG, this is a substantial error that requires compliance with the procedure under Rule 103, and not Rule 108. It appears from these arguments that there is, to some extent, confusion over the scope and application of Rules 103 and Rule 108. Where a "change of name" will necessarily be reflected by the corresponding correction in an entry, as in this case, the functions of both rules are often muddled. While there is no clear-cut rule to categorize petitions under either rule, this Court is of the opinion that a resort to the basic distinctions between the two rules with respect to alterations in a persons registered name can effectively clear the seeming perplexity of the issue. Further, a careful evaluation of circumstances alleged in the petition itself will serve as a constructive guide to determine the propriety of the relief prayed for. The "change of name" contemplated under Article 376 and Rule 103 must not be confused with Article 412 and Rule 108. A change of ones name under Rule 103 can be granted, only on grounds provided by law. In order to justify a request for change of name, there must be a proper and

compelling reason for the change and proof that the person requesting will be prejudiced by the use of his official name. To assess the sufficiency of the grounds invoked therefor, there must be adversarial proceedings.33 In petitions for correction, only clerical, spelling, typographical and other innocuous errors in the civil registry may be raised. Considering that the enumeration in Section 2, Rule 10834 also includes "changes of name," the correction of a patently misspelled name is covered by Rule 108. Suffice it to say, not all alterations allowed in ones name are confined under Rule 103. Corrections for clerical errors may be set right under Rule 108. This rule in "names," however, does not operate to entirely limit Rule 108 to the correction of clerical errors in civil registry entries by way of a summary proceeding. As explained above, Republic v. Valencia is the authority for allowing substantial errors in other entries like citizenship, civil status, and paternity, to be corrected using Rule 108 provided there is an adversary proceeding. "After all, the role of the Court under Rule 108 is to ascertain the truths about the facts recorded therein."35 A serious scrutiny of this petition reveals a glaring lack of support to the OSGs assumption that Mercadera intended to change her name under Rule 103. All that the petition propounded are swift arguments on the alleged procedural flaws of Mercaderas petition before the RTC. In the same vein, no concrete contention was brought up to convince this Court that the dangers sought to be prevented by the adversarial proceedings prescribed in Rule 103 are attendant in this case. Instead, the RTC found the documents presented by Mercadera to have satisfactorily shown that she had been known as MERLYN ever since, discounting the possibility that confusion, or a modification of substantive rights might arise. Truth be told, not a single oppositor appeared to contest the petition despite full compliance with the publication requirement. Thus, the petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a misspelled given name. To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute."36 From the allegations in her petition, Mercadera clearly prayed for the lower court "to remove the faults or error" from her registered given name "MARILYN," and "to make or set aright" the same to conform to the one she grew up to, "MERLYN." It does not take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling. Mercadera even attempted to avail of the remedy allowed by R.A. No. 9048 but she unfortunately failed to enjoy the expediency which the law provides and was constrained to take court action to obtain relief. Thus, the petition was clear in stating: 7. That as such, there is a need to correct her given name as appearing in her Certificate of Live Birth from MARILYN to MERLYN to conform to her true and correct given name that she had been using and had been known within the community x x x. 8. That herein petitioner went to the Office of the Local Civil Registrar of Dipolog City and requested them to effect such correction in her Certificate of Live Birth, however, the Local Civil Registrar of Dipolog City will not effect such correction unless an order is obtained by herein petitioner from this Honorable Court because the Local Civil Registrar therein is not yet equipped with permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048, hence the filing of this petition. [Emphases supplied] Indeed, there are decided cases involving mistakes similar to Mercaderas case which recognize the same a harmless error. In Yu v. Republic37 it was held that "to change Sincio to Sencio which merely involves the substitution of the first vowel i in the first name into the vowel e amounts

merely to the righting of a clerical error." In Labayo-Rowe v. Republic,38 it was held that the change of petitioners name from "Beatriz Labayo/Beatriz Labayu" to "Emperatriz Labayo" was a mere innocuous alteration wherein a summary proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto and Zenaida P. Caranto, the correction involved the substitution of the letters "ch" for the letter "d," so that what appears as "Midael" as given name would read "Michael." In the latter case, this Court, with the agreement of the Solicitor General, ruled that the error was plainly clerical, such that, "changing the name of the child from Midael C. Mazon to Michael C. Mazon cannot possibly cause any confusion, because both names can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig)."39 In this case, the use of the letter "a" for the letter "e," and the deletion of the letter "i," so that what appears as "Marilyn" would read as "Merlyn" is patently a rectification of a name that is clearly misspelled. The similarity between "Marilyn" and "Merlyn" may well be the object of a mix- up that blemished Mercaderas Certificate of Live Birth until her adulthood, thus, her interest to correct the same. The CA did not allow Mercadera the change of her name. What it did allow was the correction of her misspelled given name which she had been using ever since she could remember. It is worthy to note that the OSGs reliance on Republic vs. Hernandez40 is flawed. In that case, this Court said that "a change in a given name is a substantial matter" and that it "cannot be granted by means of any other proceeding that would in effect render it a mere incident or an offshoot of another special proceeding." While this Court stands true to the ruling in Hernandez, the said pronouncement therein was stated in a different tenor and, thus, inapplicable to this case. Hernandez was decided against an entirely different factual milieu. There was a petition for adoption that must not have led to a corresponding change in the adoptees given name because "it would be procedurally erroneous to employ a petition for adoption to effect a change of name in the absence of a corresponding petition for the latter relief at law." In the present case, the issue is the applicability of either Rule 103 or Rule 108 and the relief sought by Mercadera can in fact be granted under the latter. This Court finds no attempt on the part of Mercadera to render the requirements under Rule 103 illusory as in Hernandez. Besides, granting that Rule 103 applies to this case and that compliance with the procedural requirements under Rule 108 falls short of what is mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial proceeding before the lower court. The publication and posting of the notice of hearing in a newspaper of general circulation and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an adverse proceeding. The fact that no one opposed the petition, including the OSG, did not deprive the court of its jurisdiction to hear the same and did not make the proceeding less adversarial in nature. Considering that the OSG did not oppose the petition and the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were procedurally defective. Indeed, it has become unnecessary to further discuss the reasons why the CA correctly affirmed the findings of the lower court especially in admitting and according probative value to the evidence presented by Mercadera. WHEREFORE, the December 9, 2008 Decision of the Court of Appeals in CA-G.R. CV No. 00568MIN is AFFIRMED. SO ORDERED.
Judicial approval of voluntary recognition of minor natural children Arnel L. Agustin v. Court of Appeals, 460 SCRA 315 (2005)

[G.R. No. 162571. June 15, 2005]

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents. DECISION
CORONA, J.:

At issue in this petition for certiorari is whether or not the Court of Appeals (CA) gravely erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision and resolution upholding the resolution and order of the trial court, which denied petitioners motion to dismiss private respondents complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing.
[1] [2] [3] [4]

Respondents Fe Angela and her son Martin Prollamante sued Martins alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch 106.
[5]

In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels insistence on abortion, Fe decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later refused Fes repeated requests for Martins support despite his adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having fathered the child. On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fes leg. This incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support.
[6]

In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in 1998, long before Martins conception. He claimed that Fe had at least one other secret lover. Arnel

admitted that their relationship started in 1993 but he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she proved to be scheming and overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and family. Unable to bear the prospect of losing his wife and children, Arnel terminated the affair although he still treated her as a friend such as by referring potential customers to the car aircon repair shop where she worked. Later on, Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the child as his because their last intimacy was sometime in 1998. Exasperated, Fe started calling Arnels wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated that he had no alternative but to move on but without bumping or hitting any part of her body. Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martins birth certificate were falsified. The CTC erroneously reflected his marital status as single when he was actually married and that his birth year was 1965 when it should have been 1964.
[7] [8] [9] [10]

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to consider any proposal to settle the case.
[11]

On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court.
[12]

Arnel opposed said motion by invoking his constitutional right against selfincrimination. He also moved to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support if not recognized by the putative father. In his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for cancellation of his name appearing in Martins birth certificate (docketed as Civil Case No. Q-02-46669). He
[13] [14]

attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was forged. The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed the trial court. Thus, this petition. In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioners constitutional right to privacy and right against self-incrimination.
[15]

The petition is without merit. First of all, the trial court properly denied the petitioners motion to dismiss because the private respondents complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiffs primary right and the defendants corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged.
[16]

In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship long before the childs conception and birth. It is undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no right to demand and petitioner has no obligation to give support. Preliminaries aside, we now tackle the main issues. Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the childs birth certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a

separate suit under Article 283 in relation to Article 265 of the Civil Code and Section 1, Rule 105 of the Rules of Court.
[17] [18] [19]

The petitioners contentions are without merit. The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals, we allowed the integration of an action to compel recognition with an action to claim ones inheritance:
[20]

In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said: The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a

successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x x The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs x x x; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother x x x. In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Underscoring supplied) Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings. On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy and right against selfincrimination as guaranteed under the 1987 Constitution. These contentions have no merit. Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for. In the 1995 case of People v. Teehankee where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied).
[21]

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals, promulgated in 1997, we cautioned against the use of DNA because DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father.
[22]

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals:
[23]

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with our en bancdecision in People v. Vallejo where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile.
[24]

A year later, in People v. Janson, we acquitted the accused charged with rape for lack of evidence because doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!
[25]

In 2004, in Tecson, et al. v. COMELEC where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated:
[26]

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing Moreover, in our en banc decision in People v. Yatar, we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence:
[27]

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth

of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victims vagina were used to positively identify the accused Joel Kawit Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows: The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of selfincrimination. These include photographs, hair, and other bodily substances. We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery, expulsion of morphine from ones mouth and the tracing of ones foot to determine its identity with bloody footprints. In Jimenez v. Caizares, we even authorized the examination of a womans genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were
[28] [29] [30] [31] [32] [33] [34]

constitutionally sound. DNA testing and its results, per our ruling in Yatar, are now similarly acceptable.
[35]

Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres, where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said:
[36]

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures, and the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. Petitioners case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same.
[37] [38]

DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general acceptance. Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence.
[39]

The case of Wilson v. Lumb shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA tests:
[40] [41]

516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such

acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity. (b) An acknowledgment of paternity executed pursuant to section one hundred elevenk of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signators filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a partys challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the childs paternity and shall make a finding of paternity, if appropriate, in accordance with this article. Neither signators legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the childs birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district that provides the mother with such services. (c) A determination of paternity made by any other state, whether established through the parents acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act.

(emphasis supplied) DNA testing also appears elsewhere in the New York Family Court Act: 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the courts own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not
[42]

prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied) In R.E. v. C.E.W., a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W., previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception, maintained an adulterous relationship.
[43]

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., the 4th Department of the New York Supreme Courts Appellate Division allowed G.G., who had been adjudicated as T.M.H.s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the childs father. In this case, G.G. only requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.s father, sought an increase in his support obligation to her.
[44]

In Greco v. Coleman, the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary:
[45]

As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement(current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNApaternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man--the putative father. Allowing parties the option of entering into private agreements in lieu of proving

paternity eliminated the risk that the mother would be unable meet her burden of proof. It is worth noting that amendments to Michigans Paternity law have included the use of DNA testing:
[46]

722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling; compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary disposition. Sec. 6. (1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following: (a) Enter a default judgment at the request of the appropriate party. (b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal. (2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks. xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNAidentification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall

conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA. (6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules. this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied) In Rafferty v. Perkins, the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage:
[47]

The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing. In S.J.F. and J.C.F. v. R.C.W., the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld.
[48]

The case of Kohl v. Amundson, decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity. In this case, Kohl, having excluded himself as the father of Amundsons child through DNA testing, was able to have the default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said (w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages.
[49]

In M.A.S. v. Mississippi Dept. of Human Services, another case decided by the Supreme Court of Mississippi, it was held that even if paternity was established through an earlier agreed order of filiation, child support and
[50]

visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams.
[51]

The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioners motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. In Land Bank of the Philippines v. the Court of Appeals where we dismissed a special civil action for certiorari under Rule 65, we discussed at length the nature of such a petition and just what was meant by grave abuse of discretion:
[52] [53]

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decisionnot the jurisdiction of the court to render said decisionthe same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct. Epilogue For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED.

Constitution of family home Spouses Kelley v. Planters Products, Inc., 557 SCRA 499 (2008)
SPOUSES AUTHER G. KELLEY, JR. and DORIS A. KELLEY, Complainants, G.R. No. 172263

-versus-

Present: PUNO, C.J., Chairperson, CARPIO, CORONA, AZCUNA and

LEONARDO-DE CASTRO, JJ. PLANTERS PRODUCTS, INC. and JORGE A. RAGUTANA,[1] Respondents.

Promulgated: July 9, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RESOLUTION CORONA, J.: Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment from respondent Planters Products, Inc. (PPI) in 1989. Due to Authers failure to pay despite demand, PPI filed an action for sum of money against him in the Regional Trial Court of Makati City, Branch 57 (RTC Makati City). This was docketed as Civil Case No. 91-904. After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of execution. Pursuant thereto, respondent sheriff Jorge A. Ragutana sold on execution real property covered by TCT No. 15079 located in Naga City. A certificate of sale was issued in favor of PPI as the highest bidder. After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley (Doris) filed a motion to dissolve or set aside the notice of levy in the RTC Makati City on the ground that the subject property was their family home which was exempt from execution. Petitioners motion was denied for failure to comply with the three-day notice requirement. Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the alleged family home with damages against Ragutana and PPI in the Regional Trial Court of Naga City, Branch 19 (RTC Naga City). This was

docketed as Civil Case No. 2000-0188. The case was, however, dismissed for lack of jurisdiction and lack of cause of action. The dismissal was upheld by the CA.

Petitioners

now

come

to

us

in

this

petition

for

review

on

certiorari contending that the CA erred in upholding the dismissal of Civil Case No. 2000-0188 by the RTC Naga City. They claim that Doris was a stranger[2] to Civil Case No. 91-904 (in the RTC Makati City) who could not be forced to litigate therein. Petitioners anchor their action in Civil Case No. 2000-0188 on their contention that TCT No. 15079 is the Kelley family home. No doubt, a family home is generally exempt from execution[3] provided it was duly constituted as such. There must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried head of a family. [4] It must be the house where they and their family actually reside and the lot on which it is situated.[5] The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family. [6] The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas and P200,000 in rural areas.[7] Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and

are prospectively entitled to the benefits accorded to a family home under the Family Code.[8] The exemption is effective from the time of the constitution of the family home as such and lasts as long as any of its beneficiaries actually resides therein.[9] Moreover, the debts for which the family home is made answerable must have been incurred after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the alleged family home must be shown to have been constituted either judicially or extrajudicially pursuant to the Civil Code. The rule, however, is not absolute. The Family Code, in fact, expressly provides for the following exceptions:
Article 155. The family home shall be exempt from execution, forced sale or attachment except: (1) (2) (3) (4) For non-payment of taxes; For debts incurred prior to the constitution of the family home; For debts secured by a mortgage on the premises before or after such constitution; and For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. xxx xxx xxx

Article 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum amount allowed by law in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. xxx xxx xxx

We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial court that TCT No. 15079 is in fact their family home as constituted in accordance with the requirements of law. This is in consonance with our ruling in Gomez v. Sta. Ines[10] where we held: [The husband and children] were not parties to the Pasig RTC case and are third-party claimants who became such only after trial in the previous case had been terminated and the judgment therein had become final and executory. Neither were they indispensable nor necessary parties in the Pasig RTC case, and they could not therefore intervene in said case. As strangers to the original case, respondents cannot be compelled to present their claim with the Pasig RTC which issued the writ of execution.xxx

In said case, the alleged family home was sold on execution by the sheriff of the Pasig RTC. The husband and children of the judgment debtor filed a complaint for annulment of sale of the levied property in Bayombong, Nueva Vizcaya where the alleged family home was situated. As they were considered strangers to the action filed in the Pasig RTC, we ruled that the Nueva Vizcaya RTC had jurisdiction over the complaint and that they could vindicate their alleged claim to the levied property there.[11] WHEREFORE, Civil Case No. 2000-0188 captioned Spouses Auther G. Kelley, Jr. and Doris A. Kelley v. Planters Products, Inc. and Jorge A. Ragutana is hereby REINSTATED and this case is hereby REMANDED to the Regional Trial Court of Naga City, Branch 19 for determination whether or not the property covered by TCT No. 15079 is a duly constituted family home and therefore exempt from execution. SO ORDERED.