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Readings in Statutory Construction No.

Table of Contents
Bascacio v. Secretary of Justice ............................................................................................................ 2
People v. Evangelista .............................................................................................................................. 9
Fule v. CA ............................................................................................................................................... 14
Ross Industrial Construction Co. v. MLRC ......................................................................................... 18
Quizon v. Baltazar .................................................................................................................................. 25
PNB v. CA ............................................................................................................................................... 34
Ombudsman v. De Sahagun ................................................................................................................ 45

Bascacio v. Secretary of Justice

Republic of the Philippines

G.R. No. 109445 November 7, 1994

DRILON in his capacity as Secretary of Justice, respondent.
Amparita S. Sta. Maria for petitioner.

This case presents for determination the scope of the State's liability under
Rep. Act No. 7309, which among other things provides compensation for
persons who are unjustly accused, convicted and imprisoned but on appeal
are acquitted and ordered released.
Petitioner Felicito Basbacio and his son-in-law, Wilfredo Balderrama, were
convicted of frustrated murder and of two counts of frustrated murder for
the killing of Federico Boyon and the wounding of the latter's wife Florida
and his son Tirso, at Palo, Calanuga, Rapu-Rapu, Albay, on the night of
June 26, 1988. The motive for the killing was apparently a land dispute
between the Boyons and petitioner. Petitioner and his son-in-law were
sentenced to imprisonment and ordered immediately detained after their
bonds had been cancelled.

Petitioner and his son-in-law appealed. Only petitioner's appeal proceeded

to judgment, however, as the appeal of the other accused was dismissed
for failure to file his brief.
On June 22, 1992 the Court of Appeals rendered a decision acquitting
petitioner on the ground that the prosecution failed to prove conspiracy
between him and his son-in-law. He had been pointed to by a daughter of
Federico Boyon as the companion of Balderrama when the latter barged
into their hut and without warning started shooting, but the appellate court
ruled that because petitioner did nothing more, petitioner's presence at the
scene of the crime was insufficient to show conspiracy.
Based on his acquittal, petitioner filed a claim under Rep. Act No. 7309,
sec. 3(a), which provides for the payment of compensation to "any person
who was unjustly accused, convicted, imprisoned but subsequently
released by virtue of a judgment of acquittal." 1 The claim was filed with the
Board of Claims of the Department of Justice, but the claim was denied on
the ground that while petitioner's presence at the scene of the killing was
not sufficient to find him guilty beyond reasonable doubt, yet, considering
that there was bad blood between him and the deceased as a result of a
land dispute and the fact that the convicted murderer is his son-in-law,
there was basis for finding that he was "probably guilty."
On appeal, respondent Secretary of Justice affirmed the Board's ruling.
Said the Secretary of Justice in his resolution dated March 11, 1993:
It is believed therefore that the phrase "any person . . .
unjustly accused, convicted and imprisoned" in Section
3(a) of R.A. No. 7309 refers to an individual who was
wrongly accused and imprisoned for a crime he did not
commit, thereby making him "a victim of unjust
imprisonment." In the instant case, however,
Claimant/Appellant cannot be deemed such a victim since
a reading of the decision of his acquittal shows that his
exculpation is not based on his innocence, but upon, in
effect, a finding of reasonable doubt.
Petitioner brought this petition for review on certiorari. Neither Rule 45 nor
Rep. Act No. 7309, however, provides for review by certiorari of the
decisions of the Secretary of Justice. Nonetheless, in view of the

importance of the question tendered, the Court resolved to treat the petition
as a special civil action for certiorari under Rule 65.
Petitioner questions the basis of the respondent's ruling that to be able to
recover under sec. 3(a) of the law the claimant must on appeal be found to
be innocent of the crimes of which he was convicted in the trial court.
Through counsel he contends that the language of sec. 3(a) is clear and
does not call for interpretation. The "mere fact that the claimant was
imprisoned for a crime which he was subsequently acquitted of is already
unjust in itself," he contends. To deny his claim because he was not
declared innocent would be to say that his imprisonment for two years
while his appeal was pending was justified. Petitioner argues that there is
only one requirement for conviction in criminal cases and that is proof
beyond reasonable doubt. If the prosecution fails to present such proof, the
presumption that the accused is innocent stands and, therefore, there is no
reason for requiring that he be declared innocent of the crime before he
can recover compensation for his imprisonment.
Petitioner's contention has no merit. It would require that every time an
accused is acquitted on appeal he must be given compensation on the
theory that he was "unjustly convicted" by the trial court. Such a reading of
sec. 3(a) is contrary to petitioner's professed canon of construction that
when the language of the statute is clear it should be given its natural
meaning. It leaves out of the provision in question the qualifying word
"unjustly" so that the provision would simply read: "The following may file
claims for compensation before the Board: (a) any person who was
accused, convicted, imprisoned but subsequently released by virtue of a
judgment of acquittal."
But sec. 3(a) requires that the claimant be "unjustly accused, convicted
[and] imprisoned." The fact that his conviction is reversed and the accused
is acquitted is not itself proof that the previous conviction was "unjust." An
accused may be acquitted for a number of reasons and his conviction by
the trial court may, for any of these reasons, be set aside. For example, he
may be acquitted not because he is innocent of the crime charged but
because of reasonable doubt, in which case he may be found civilly liable
to the complainant, because while the evidence against him does not
satisfy the quantum of proof required for conviction, it may nonetheless be
sufficient to sustain a civil action for damages. 2 In one case the accused,
an alien, was acquitted of statutory rape with homicide because of doubt as

to the ages of the offended parties who consented to have sex with him.
Nonetheless the accused was ordered to pay moral and exemplary
damages and ordered deported. 3 In such a case to pay the accused
compensation for having been "unjustly convicted" by the trial court would
be utterly inconsistent with his liability to the complainant. Yet to follow
petitioner's theory such an accused would be entitled to compensation
under sec. 3(a).
The truth is that the presumption of innocence has never been intended as
evidence of innocence of the accused but only to shift the burden of proof
that he is guilty to the prosecution. If "accusation is not synonymous with
guilt," 4 so is the presumption of innocence not a proof thereof. It is one
thing to say that the accused is presumed to be innocent in order to place
on the prosecution the burden of proving beyond reasonable doubt that the
accused is guilty. It is quite another thing to say that he is innocent and if
he is convicted that he has been "unjustly convicted." As this Court held in
a case:
Though we are acquitting the appellant for the crime of
rape with homicide, we emphasize that we are not ruling
that he is innocent or blameless. It is only the
constitutional presumption of innocence and the failure of
the prosecution to build an airtight case for conviction
which saved him, not that the facts of unlawful conduct do
not exist. 5
To say then that an accused has been "unjustly convicted" has to do with
the manner of his conviction rather than with his innocence. An accused
may on appeal be acquitted because he did not commit the crime, but that
not necessarily mean that he is entitled to compensation for having been
the victim of an "unjust conviction." If his conviction was due to an error in
the appreciation of the evidence the conviction while erroneous is not
unjust. That is why it is not, on the other hand, correct to say as does
respondent, that under the law liability for compensation depends entirely
on the innocence of the accused.
The phrase "unjustly convicted" has the same meaning as "knowingly
rendering an unjust judgment" in art. 204 of the Revised Penal Code. What
this Court held in In re Rafael C. Climaco 6 applies:

In order that a judge may be held liable for knowingly

rendering an unjust judgment, it must be shown beyond
doubt that the judgment is unjust as it is contrary to law or
is not supported by the evidence, and the same was
made with conscious and deliberate intent to do an
injustice . . . .
To hold a judge liable for the rendition of manifestly unjust
judgment by reason of inexcusable negligence or
ignorance, it must be shown, according to Groizard, that
although he has acted without malice, he failed to
observe in the performance of his duty, that diligence,
prudence and care which the law is entitled to exact in the
rendering of any public service. Negligence and
ignorance are inexcusable if they imply a manifest
injustice which cannot be explained by a reasonable
interpretation. Inexcusable mistake only exists in the legal
concept when it implies a manifest injustice, that is to say,
such injustice which cannot be explained by a reasonable
interpretation, even though there is a misunderstanding or
error of the law applied, yet in the contrary it results,
logically and reasonably, and in a very clear and
indisputable manner, in the notorious violation of the legal
Indeed, sec. 3(a) does not refer solely to an unjust conviction as a result of
which the accused is unjustly imprisoned, but, in addition, to an unjust
accusation. The accused must have been "unjustly accused, in
consequence of which he is unjustly convicted and then imprisoned. It is
important to note this because if from its inception the prosecution of the
accused has been wrongful, his conviction by the court is, in all probability,
also wrongful. Conversely, if the prosecution is not malicious any conviction
even though based on less than the required quantum of proof in criminal
cases may be erroneous but not necessarily unjust.
The reason is that under Rule 112, sec. 4, the question for the prosecutor
in filing a case in court is not whether the accused is guilty beyond
reasonable doubt but only whether "there is reasonable ground to believe
that a crime has been committed and the accused is probably guilty
thereof." Hence, an accusation which is based on "probable guilt" is not an

unjust accusation and a conviction based on such degree of proof is not

necessarily an unjust judgment but only an erroneous one. The remedy for
such error is appeal.
In the case at bar there is absolutely no evidence to show that petitioner's
conviction by the trial court was wrongful or that it was the product of
malice or gross ignorance or gross negligence. To the contrary, the court
had reason to believe that petitioner and his co-accused were in league,
because petitioner is the father-in-law of Wilfredo Balderrama and it was
petitioner who bore the victim a grudge because of a land dispute. Not only
that. Petitioner and his coaccused arrived together in the hut of the victims
and forced their way into it.
The Court of Appeals ruled there was no conspiracy only because there
was no proof that he did or say anything on the occasion. Said the
appellate court.
Both eyewitness testimonies fail to show the appellant
Felicito Basbacio to have committed any act at all. Both
fail to show Felicito Basbacio as having said anything at
all. Both fail to show Felicito Basbacio as having
committed anything in furtherance of a conspiracy to
commit the crimes charged against the defendants. It
seems to be a frail and flimsy basis on which to conclude
that conspiracy existed between actual killer Wilfredo
Balderrama and Felicito Basbacio to commit murder and
two frustrated murders on that night of June 26, 1988. It
may be asked: where was the coming together of the two
defendants to an agreement to commit the crimes of
murder and frustrated murder on two counts? Where was
Basbacio's contribution to the commission of the said
crimes? Basbacio was as the record shows nothing
but part of the dark shadows of that night. . . .
One may take issue with this ruling because precisely conspiracy may be
shown by concert of action and other circumstances. Why was petitioner
with his son-in-law? Why did they apparently flee together? And what about
the fact that there was bad blood between petitioner and the victim
Federico Boyon? These questions may no longer be passed upon in view
of the acquittal of petitioner but they are relevant in evaluating his claim that

he had been unjustly accused, convicted and imprisoned before he was

released because of his acquittal on appeal. We hold that in view of these
circumstances respondent Secretary of Justice and the Board of Claims did
not commit a grave abuse of its discretion in disallowing petitioner's claim
for compensation under Rep. Act No. 7309.
WHEREFORE, the petition is DISMISSED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur.
Feliciano, J., is on leave.

People v. Evangelista
Republic of the Philippines
G.R. No. 110898

February 20, 1996


Branch XXI, 10th Judicial Region, RTC of Misamis Oriental, Cagayan
de Oro City, and GRILDO S. TUGONON, respondents.
Private respondent Grildo S. Tugonan was charged with frustrated
homicide in the Regional Trial Court of Misamis Oriental (Branch 21), the
information against him alleging
That on or about the 26th day of May, 1988, at more or less
9:00 o'clock in the evening at Barangay Publican+.3,
Municipality of Villanueva, Province of Misamis Oriental,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with intent to kill
and with the use of a knife, which he was then conveniently
provided of, did then and there willfully, unlawfully and
feloniously assault, attack and stab Roque T. Bade thereby
inflicting upon him the following injuries, to wit:
Stab wound, right iliac area,
0.5 cm. penetrating non
perforating lacerating posterior
peritoneum, 0,5 cm.
thus performing all the acts of execution which would produce
the crime of Homicide as a consequence but which,

nevertheless, did not produce it by reason of causes

independent of the will of the accused, that is by timely medical
attendance which prevented his death.
CONTRARY TO and in violation of Article 249 in relation to
Article 6 of the Revised Penal Code.
After trial he was found guilty and sentenced to one year of prision
correccional in its minimum period and ordered to pay to the offended party
P5,000.00 for medical expense, without subsidiary imprisonment, and the
costs. The RTC appreciated in his favor the privileged mitigating
circumstances of incomplete self-defense and the mitigating circumstance
of voluntary surrender.
On appeal the Court of Appeals affirmed private respondent's conviction
but modified his sentence by imposing on him an indeterminate penalty of 2
months of arresto mayor, as minimum, to 2 years and 4 months of prision
correccional, as maximum.1
On December 21, 1992, respondent Judge Antonio C. Evangelista of the
RTC set the case for repromulgation on January 4, 1993.
On December 28, 1992, private respondent filed a petition for probation,2
alleging that (1) he possessed all the qualifications and none of the
disqualifications for probation under P.D. No. 968, as amended; (2) the
Court of Appeals has in fact reduced the penalty imposed on him by the
trial court; (3) in its resolution, the Court of Appeals took no action on a
petition for probation which he had earlier filed with it so that the petition
could be filed with the trial court; (4) in the trial court's decision, two
mitigating circumstances of incomplete self-defense and voluntarily
surrender were appreciated in his favor; and (5) in Santos To v. Pao,3 the
Supreme Court upheld the right of the accused to probation
notwithstanding the fact that he had appealed from his conviction by the
trial court.
On February 2, 1993, the RTC ordered private respondent to report for
interview to the Provincial Probation Officer. The Provincial Probation
Officer on the other hand was required to submit his report with
recommendation to the court within 60 days.4

On February 18, 1993, Chief Probation and Parole Officer Isias B.

Valdehueza recommended denial of private respondent's application for
probation on the ground that by appealing the sentence of the trial court,
when he could have then applied for probation, private respondent waived
the right to make his application. The Probation Officer thought the present
case to be distinguishable from Santos To v. Pao in the sense that in this
case the original sentence imposed on private respondent by the trial court
(1 year of imprisonment) was probationable and there was no reason for
private respondent not to have filed his application for probation then,
whereas in Santos To v. Pao the penalty only became probationable after
it had been reduced as a result of the appeal.
On April 16, 1993 Valdehueza reiterated5 his "respectful recommendation
that private respondent's application for probation be denied and that a
warrant of arrest be issued for him to serve his sentence in jail."
The RTC set aside the Probation Officer's recommendation and granted
private respondent's application for probation in its order of April 23, 1993,6
Hence this petition by the prosecution.
The issue in this case is whether the RTC committed a grave abuse of its
discretion by granting private respondent's application for probation despite
the fact that he had appealed from the judgment of his conviction of the trial
The Court holds that it did.
Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D.
No. 986, otherwise known as the Probation Law, for the accused to take his
chances on appeal by allowing probation to be granted even after an
accused had appealed his sentence and failed to obtain an acquittal, just
so long as he had not yet started to serve the sentence.7 Accordingly, in
Santos To v. Pao, it was held that the fact that the accused had appealed
did not bar him from applying for probation especially because it was as a
result of the appeal that his sentence was reduced and made the
probationable limit.
The law was, however, amended by P.D. No. 1990 which took effect on
January 15, 19868 precisely to put a stop to the practice of appealing from
judgments of conviction even if the sentence is probationable for the
purpose of securing an acquittal and applying for probation only if the

accused fails in his bid. Thus, as amended by P.D. No, 1990, 4 of the
Probation Law now reads:
4. Grant of Probation. Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best;
Provided, That no application for probation shall be entertained
or granted if the defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for probation
shall be filed with the trial court. The filing of the application
shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
(Emphasis added).
Since private respondent filed his application for probation on December
28, 1992, after P.D. No. 1990 had taken effect,9 it is covered by the
prohibition that "no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction"
and that "the filing of the application shall be deemed a waiver of the right
to appeal," Having appealed from the judgment of the trial court and having
applied for probation only after the Court of Appeals had affirmed his
conviction, private respondent was clearly precluded from the benefits of
Private respondent argues, however, that a distinction should be drawn
between meritorious appeals (like his appeal notwithstanding the appellate
court's affirmance of his conviction) and unmeritorious appeals. But the law
does not make any distinction and so neither should the Court. In fact if an
appeal is truly meritorious the accused would be set free and not only given
probation. Private respondent's original sentence (1 year of prision
correccional in its minimum period) and the modified sentence imposed by
the Court of Appeals (2 months of arresto mayor, as minimum, to 2 years
and 4 months of prision correccional, as maximum) are probationable.

Thus the fact that he appealed meant that private respondent was taking
his chances which the law precisely frowns upon. This is precisely the evil
that the amendment in P.D. No. 1990 sought to correct, since in the words
of the preamble to the amendatory law, "probation was not intended as an
escape hatch and should not be used to obstruct and delay the
administration of justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated."
The ruling of the RTC that "[h]aving not perfected an appeal against the
Court of Appeals decision, [private respondent] is, therefore, not covered
by [the amendment in] P.D. 1990" is an obvious misreading of the law. The
perfection of the appeal referred in the law refers to the .appeal taken from
a judgment of conviction by the trial court and not that of the appellate
court, since under the law an application for probation is filed with the trial
court which can only grant the same "after it shall have convicted and
sentenced [the] defendant, and upon application by said defendant within
the period for perfecting an appeal. "Accordingly, in Llamado v. Court of
Appeals, 10 it was held that the petitioner who had appealed his sentence
could not subsequently apply for probation.
WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of
the Regional Trial Court of Misamis Oriental (Branch 21) granting probation
to private respondent Grildo S. Tugonon is SET ASIDE.
Regalado, Romero and Puno, JJ., concur.

Fule v. CA
Republic of the Philippines
G.R. No. 79094 June 22, 1988
MANOLO P. FULE, petitioner,
Balagtas P. Ilagan for petitioner.
The Solicitor General for respondent.

This is a Petition for Review on certiorari of the Decision of respondent
Appellate Court, which affirmed the judgment of the Regional Trial Court,
Lucena City, Branch LIV, convicting petitioner (the accused-appellant) of
Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the
basis of the Stipulation of Facts entered into between the prosecution and
the defense during the pre-trial conference in the Trial Court. The facts
stipulated upon read:
a) That this Court has jurisdiction over the person and
subject matter of this case;
b) That the accused was an agent of the Towers
Assurance Corporation on or before January 21, 1981;
c) That on January 21, 1981, the accused issued and
made out check No. 26741, dated January 24, 1981 in
the sum of P2,541.05;

d) That the said check was drawn in favor of the

complaining witness, Roy Nadera;
e) That the check was drawn in favor of the complaining
witness in remittance of collection;
f) That the said check was presented for payment on
January 24, 1981 but the same was dishonored for the
reason that the said checking account was already
g) That the accused Manolo Fule has been properly
Identified as the accused party in this case.
At the hearing of August 23, 1985, only the prosecution presented its
evidence consisting of Exhibits "A," "B" and "C." At the subsequent hearing
on September 17, 1985, petitioner-appellant waived the right to present
evidence and, in lieu thereof, submitted a Memorandum confirming the
Stipulation of Facts. The Trial Court convicted petitioner-appellant.
On appeal, respondent Appellate Court upheld the Stipulation of Facts and
affirmed the judgment of conviction. 1
Hence, this recourse, with petitioner-appellant contending that:
The Honorable Respondent Court of Appeals erred in the
decision of the Regional Trial Court convicting the
petitioner of the offense charged, despite the cold fact
that the basis of the conviction was based solely on the
stipulation of facts made during the pre-trial on August 8,
1985, which was not signed by the petitioner, nor by his
Finding the petition meritorious, we resolved to give due course.
The 1985 Rules on Criminal Procedure, which became effective on
January 1, 1985, applicable to this case since the pre-trial was held on
August 8, 1985, provides:
SEC. 4. Pre-trial agreements must be signed. No
agreement or admission made or entered during the pre-

trial conference shall be used in evidence against the

accused unless reduced to writing and signed by him and
his counsel. (Rule 118) [Emphasis supplied]
By its very language, the Rule is mandatory. Under the rule of statutory
construction, negative words and phrases are to be regarded as mandatory
while those in the affirmative are merely directory (McGee vs. Republic, 94
Phil. 820 [1954]). The use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to impose a
duty which may be enforced (Bersabal vs. Salvador, No. L-35910, July 21,
1978, 84 SCRA 176). And more importantly, penal statutes whether
substantive and remedial or procedural are, by consecrated rule, to be
strictly applied against the government and liberally in favor of the accused
(People vs. Terrado No. L-23625, November 25, 1983, 125 SCRA 648).
The conclusion is inevitable, therefore, that the omission of the signature of
the accused and his counsel, as mandatorily required by the Rules, renders
the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of
the accused, in his memorandum, confirmed the Stipulation of Facts does
not cure the defect because Rule 118 requires both the accused and his
counsel to sign the Stipulation of Facts. What the prosecution should have
done, upon discovering that the accused did not sign the Stipulation of
Facts, as required by Rule 118, was to submit evidence to establish the
elements of the crime, instead of relying solely on the supposed admission
of the accused in the Stipulation of Facts. Without said evidence
independent of the admission, the guilt of the accused cannot be deemed
established beyond reasonable doubt.
Consequently, under the circumstances obtaining in this case, the ends of
justice require that evidence be presented to determine the culpability of
the accused. When a judgment has been entered by consent of an attorney
without special authority, it will sometimes be set aside or reopened
(Natividad vs. Natividad, 51 Phil. 613 [1928]).
WHEREFORE, the judgment of respondent Appellate Court is REVERSED
and this case is hereby ordered RE-OPENED and REMANDED to the
appropriate Branch of the Regional Trial Court of Lucena City, for further
reception of evidence.

Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin,

Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur.
Paras, J., took no part.
Gutierrez, Jr., J., is on leave.

Ross Industrial Construction Co. v. MLRC

Republic of the Philippines
G.R. No. 172409

February 4, 2008


In this Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules of
Civil Procedure, petitioners Roos Industrial Construction, Inc. and Oscar
Tocmo assail the Court of Appeals2 Decision dated 12 January 2006 in
C.A. G.R. SP No. 87572 and its Resolution3 dated 10 April 2006 denying
their Motion for Reconsideration.4
The following are the antecedents.
On 9 April 2002, private respondent Jose Martillos (respondent) filed a
complaint against petitioners for illegal dismissal and money claims such as
the payment of separation pay in lieu of reinstatement plus full backwages,
service incentive leave, 13th month pay, litigation expenses, underpayment
of holiday pay and other equitable reliefs before the National Capital
Arbitration Branch of the National Labor Relations Commission (NLRC),
docketed as NLRC NCR South Sector Case No. 30-04-01856-02.
Respondent alleged that he had been hired as a driver-mechanic sometime
in 1988 but was not made to sign any employment contract by petitioners.
As driver mechanic, respondent was assigned to work at Carmona, Cavite
and he worked daily from 7:00 a.m. to 10:00 p.m. at the rate of P200.00 a
day. He was also required to work during legal holidays but was only paid

an additional 30% holiday pay. He likewise claimed that he had not been
paid service incentive leave and 13th month pay during the entire course of
his employment. On 16 March 2002, his employment was allegedly
terminated without due process.5
Petitioners denied respondents allegations. They contended that
respondent had been hired on several occasions as a project employee
and that his employment was coterminous with the duration of the projects.
They also maintained that respondent was fully aware of this arrangement.
Considering that respondents employment had been validly terminated
after the completion of the projects, petitioners concluded that he is not
entitled to separation pay and other monetary claims, even attorneys fees.6
The Labor Arbiter ruled that respondent had been illegally dismissed after
finding that he had acquired the status of a regular employee as he was
hired as a driver with little interruption from one project to another, a task
which is necessary to the usual trade of his employer.7 The Labor Arbiter
pertinently stated as follows:
x x x If it were true that complainant was hired as project
employee, then there should have been project employment
contracts specifying the project for which complainants
services were hired, as well as the duration of the project as
required in Art. 280 of the Labor Code. As there were four (4)
projects where complainant was allegedly assigned, there
should have been the equal number of project employment
contracts executed by the complainant. Further, for every
project termination, there should have been the equal number
of termination report submitted to the Department of Labor and
Employment. However, the record shows that there is only one
termination [report] submitted to DOLE pertaining to the last
project assignment of complainant in Carmona, Cavite.
In the absence of said project employment contracts and the
corresponding Termination Report to DOLE at every project
termination, the inevitable conclusion is that the complainant
was a regular employee of the respondents.
In the case of Maraguinot, Jr. v. NLRC, 284 SCRA 539, 556
[1998], citing capital Industrial Construction Group v. NLRC,

221 SCRA 469, 473-474 [1993], it was ruled therein that a

project employee may acquire the status of a regular employee
when the following concurs: (1) there is a continuous rehiring of
project employees even after the cessation of a project; and (2)
the tasks performed by the alleged "project employee" are vital,
necessary and indispensable to the usual business or trade of
the employer. Both factors are present in the instant case.
Thus, even granting that complainant was hired as a project
employee, he eventually became a regular employee as there
was a continuous rehiring of this services.
In the instant case, apart from the fact that complainant was not
made to sign any project employment contract x x x he was
successively transferred from one project after another, and he
was made to perform the same kind of work as driver.8
The Labor Arbiter ordered petitioners to pay respondent the aggregate sum
of P224,647.17 representing backwages, separation pay, salary differential,
holiday pay, service incentive leave pay and 13th month pay.9
Petitioners received a copy of the Labor Arbiters decision on 17 December
2003. On 29 December 2003, the last day of the reglementary period for
perfecting an appeal, petitioners filed a Memorandum of Appeal 10 before
the NLRC and paid the appeal fee. However, instead of posting the
required cash or surety bond within the reglementary period, petitioners
filed a Motion for Extension of Time to Submit/Post Surety Bond.11
Petitioners stated that they could not post and submit the required surety
bond as the signatories to the bond were on leave during the holiday
season, and made a commitment to post and submit the surety bond on or
before 6 January 2004. The NLRC did not act on the motion. Thereafter, on
6 January 2004, petitioners filed a surety bond equivalent to the award of
the Labor Arbiter.12
In a Resolution13 dated July 29, 2004, the Second Division of the NLRC
dismissed petitioners appeal for lack of jurisdiction. The NLRC stressed
that the bond is an indispensable requisite for the perfection of an appeal
by the employer and that the perfection of an appeal within the
reglementary period and in the manner prescribed by law is mandatory and

jurisdictional. In addition, the NLRC restated that its Rules of Procedure

proscribes the filing of any motion for extension of the period within which
to perfect an appeal. The NLRC summed up that considering that
petitioners appeal had not been perfected, it had no jurisdiction to act on
said appeal and the assailed decision, as a consequence, has become final
and executory.14 The NLRC likewise denied petitioners Motion for
Reconsideration15 for lack of merit in another Resolution.16 On 11
November 2004, the NLRC issued an entry of judgment declaring its
resolution final and executory as of 9 October 2004. On respondents
motion, the Labor Arbiter ordered that the writ of execution be issued to
enforce the award. On 26 January 2005, a writ of execution was issued.17
Petitioners elevated the dismissal of their appeal to the Court of Appeals by
way of a special civil action of certiorari. They argued that the filing of the
appeal bond evinced their willingness to comply and was in fact substantial
compliance with the Rules. They likewise maintained that the NLRC
gravely abused its discretion in failing to consider the meritorious grounds
for their motion for extension of time to file the appeal bond. Lastly,
petitioners contended that the NLRC gravely erred in issuing an entry of
judgment as the assailed resolution is still open for review.18 On 12 January
2006, the Court of Appeals affirmed the challenged resolution of the NLRC.
Hence, the instant petition.
Before this Court, petitioners reiterate their previous assertions. They insist
on the application of Star Angel Handicraft v. National Labor Relations
Commission, et al.19where it was held that a motion for reduction of bond
may be filed in lieu of the bond during the period for appeal. They aver that
Borja Estate v. Ballad,20which underscored the importance of the filing of a
cash or surety bond in the perfection of appeals in labor cases, had not
been promulgated yet in 2003 when they filed their appeal. As such, the
doctrine in Borja could not be given retroactive effect for to do so would
prejudice and impair petitioners right to appeal. Moreover, they point out
that judicial decisions have no retroactive effect.21
The Court denies the petition.
The Court reiterates the settled rule that an appeal from the decision of the
Labor Arbiter involving a monetary award is only deemed perfected upon
the posting of a cash or surety bond within ten (10) days from such
decision.22 Article 223 of the Labor Code states:

ART. 223. Appeal.Decisions, awards or orders of the Labor

Arbiter are final and executory unless appealed to the
Commission by any or both parties within ten (10) calendar
days from receipt of such decisions, awards, or orders.
In case of a judgment involving a monetary award, an appeal
by the employer may be perfected only upon the posting of a
cash or surety bond issued by a reputable bonding company
duly accredited by the Commission in the amount equivalent to
the monetary award in the judgment appealed from.
Contrary to petitioners assertion, the appeal bond is not merely procedural
but jurisdictional. Without said bond, the NLRC does not acquire jurisdiction
over the appeal.23 Indeed, non-compliance with such legal requirements is
fatal and has the effect of rendering the judgment final and executory.24 It
must be stressed that there is no inherent right to an appeal in a labor
case, as it arises solely from the grant of statute.25
Evidently, the NLRC did not acquire jurisdiction over petitioners appeal
within the ten (10)-day reglementary period to perfect the appeal as the
appeal bond was filed eight (8) days after the last day thereof. Thus, the
Court cannot ascribe grave abuse of discretion to the NLRC or error to the
Court of Appeals in refusing to take cognizance of petitioners belated
While indeed the Court has relaxed the application of this requirement in
cases where the failure to comply with the requirement was justified or
where there was substantial compliance with the rules,26 the overpowering
legislative intent of Article 223 remains to be for a strict application of the
appeal bond requirement as a requisite for the perfection of an appeal and
as a burden imposed on the employer.27 As the Court held in the case of
Borja Estate v. Ballad:28
The intention of the lawmakers to make the bond an
indispensable requisite for the perfection of an appeal by the
employer is underscored by the provision that an appeal may
be perfected "only upon the posting of a cash or surety bond."
The word "only" makes it perfectly clear that the LAWMAKERS

intended the posting of a cash or surety bond by the employer

to be
the exclusive means by which an employers appeal may be
considered completed. The law however does not require its
outright payment, but only the posting of a bond to ensure that
the award will be eventually paid should the appeal fail. What
petitioners have to pay is a moderate and reasonable sum for
the premium of such bond.29
Moreover, no exceptional circumstances obtain in the case at bar which
would warrant a relaxation of the bond requirement as a condition for
perfecting the appeal. It is only in highly meritorious cases that this Court
opts not to strictly apply the rules and thus prevent a grave injustice from
being done30 and this is not one of those cases.
In addition, petitioners cannot take refuge behind the Courts ruling in Star
Angel. Pertinently, the Court stated in Computer Innovations Center v.
National Labor Relations Commission:31
Moreover, the reference in Star Angel to the distinction between
the period to file the appeal and to perfect the appeal has been
pointedly made only once by this Court in Gensoli v. NLRC
thus, it has not acquired the sheen of venerability reserved for
repeatedly-cited cases. The distinction, if any, is not particularly
evident or material in the Labor Code; hence, the reluctance of
the Court to adopt such doctrine. Moreover, the present
provision in the NLRC Rules of Procedure, that "the filing of a
motion to reduce bond shall not stop the running of the period
to perfect appeal" flatly contradicts the notion expressed in Star
Angel that there is a distinction between filing an appeal and
perfecting an appeal.
Ultimately, the disposition of Star Angel was premised on the
ruling that a motion for reduction of the appeal bond necessarily
stays the period for perfecting the appeal, and that the
employer cannot be expected to perfect the appeal by posting
the proper bond until such time the said motion for reduction is
resolved. The unduly stretched-out distinction between the
period to file an appeal and to perfect an appeal was not

material to the resolution of Star Angel, and thus could properly

be considered as obiter dictum.32
Lastly, the Court does not agree that the Borja doctrine should only be
applied prospectively. In the first place, Borja is not a ground-breaking
precedent as it is a reiteration, emphatic though, of long standing
jurisprudence.33 It is well to recall too our pronouncement in Senarillos v.
Hermosisima, et al.34 that the judicial interpretation of a statute constitutes
part of the law as of the date it was originally passed, since the Courts
construction merely establishes the contemporaneous legislative intent that
the interpreted law carried into effect. Such judicial doctrine does not
amount to the passage of a new law but consists merely of a construction
or interpretation of a pre-existing one, as is the situation in this case.35
At all events, the decision of the Labor Arbiter appears to be well-founded
and petitioners ill-starred appeal untenable.
WHEREFORE, the Petition is DENIED. Costs against petitioners.
Quisumbing,Chairperson Carpio, Carpio-Morales, Velasco, Jr., JJ., concur.

Quizon v. Baltazar
Republic of the Philippines
G.R. Nos. L-23779-80 April 29, 1977
HON. JOSE L. BALTAZAR, Municipal Judge of San Fernando,
Pampanga; ELIODORO B. GUINTO, Assistant Provincial Fiscal, of
Pampanga; and CECILIA SANGALANG, respondents.
Lorenzo P. Navarro for petitioners.
Eligio G. Lagman for respondent Cecilia Sangalang.
Eliodoro B. Guinto for and in his own behalf.

Petiion for certiorari and prohibition to declare null and void the orders of
the Municipal Court of San Fernando, Pampanga, issued in Criminal Cases
Nos. 4203, People vs. Federico Quizon and 4204, People vs. Profitisa
Quizon, dated July 11 and August 17, 1964, respectively, denying
petitioners' motion to quash the criminal complaints against them based on
the ground of prescription of the offense of serious oral defamation of which
they were charged, and to prohibit said court from proceeding further with
the said criminal cases, except to dismiss the same.
On May 11, 1964, private respondent, Cecilia Sangalang, with the
assistance of Assistant Provincial Fiscal Eliodoro B. Guinto, who had
conducted the preliminary investigation, filed with respondent court two
separate criminal complaints both for serious oral defamation, the one
against petitioner Federico Quizon in Criminal Case No. 4203 and the other
petitioner Profitisa Quizon in Criminal Case No. 4204, committed,

according to the said complaints on the same day, November 11, 1963.
Upon being called for arraignment, petitioner presented a written motion to
quash contending principally that the offense charged had already
prescribed as of May 9, 1964.
In support of their motion, petitioners argued that by express provision of
Article 90 of the Revised Penal Code, the offense of oral defamation
prescribes in six months and under the authority of People vs. Del Rosario,
97 Phil. 67, the correct computation of said six months for the purposes of
their particular case is as follows:
From Nov. 12 to 30, 1963 there were
19 days
December, 1963 had
31 days
January, 1964 had
31 days
February, 1964 had
29 days
March, 1964 had
31 days
April, 1964 had
30 days
From May 1 to 9, 1964 was a matter of
9 days
From Nov. 12, 1963 to May 9, 1964 were.
180 days

(Page 26, Record.)

Overruling their motion, respondent court reasoned out thus:
The prosecution opposed the motion to dismiss by
making a computation of time as follows:
From Nov. 12 to 30, 1964, there are
19 days
30 days
30 days
30 days
30 days
30 days
From May 1 to 11, 1964, there are
11 days
From Nov. 12, 1963 to May 11, 1964 are
180 days

(Opposition to the Motion to Quash, p. 2)

A study of the provisions of the laws pertinent to the issue
at bar leads one to agree with the mode of computation
submitted by the public prosecutor because Article 90 of
the Revised Penal Code, in providing for the prescriptive
period for oral defamation, speaks of month, not of day,
as the basic unit in reckoning the duration of the
prescription, when it says that "offenses of oral
defamation ... shall prescribe in six months." Article 13 of
the new Civil Code says that "when the laws speak of ...,
months, ..., it shall be understood that ... month ... of thirty
days each ... It says further that "If months are designated
by their name, they shall be computed by the number of
days which they respectively have. Conformably to these
legal provisions and applying the same to the case at bar,
the computation given by the public prosecutor appears to
be correct. The month of November was designated in
the complaint so it will be given the number of days it has
in the calendar which is 30 days. But the succeeding
months of December, January, February, March and
April, which are the months comprised within the
prescriptive period of six (6) months are nowhere
specifically designated by their name, consequently they
should be given the 30-day period of duration in
accordance with the first paragraph of Article 13
aforesaid. It is believed, and the Court so holds, that this
formula or mode of computation is more squarely in
accordance with the one adopted in the case of People
vs. Del Rosario (GR No. L-7234) quoted in the motion to
quash. The month of May, having been designated in the
complaint, was given the number of 31 days it has in the
calendar, the succeeding month of June comprised within
the prescriptive period was given 30-day duration, so it
resulted to be thus:
May 28 to 31
3 days (the 28th was excluded)

30 days
July 27
27 days (the 27th was included) 60 days
In pursuance thereto, the Supreme Court in the Del Rosario Case finally
held that the filing of the action on July 27 was on the 60th day.
If the formula for computation of the defense is to be
followed, Article 13 in so far as a month is to be
understood to be of 30 days, unless the month is
designated by its name, will be rendered nugatory, for the
simple reason that there are months that have 31 days in
the calendar to be reckoned with as they will be within the
prescriptive period. The basic unit of computation used by
the defense is by the day and not by the month of 30-day
duration as provided for in Article 90 of the Revised Penal
Code, the counting of which is to be made in relation to
Article 13 of the Civil Code (new).
The contention of the private prosecutor no longer needs
discussion in view of the conclusion arrived at above. (Pp
37-40, Record.)
Surely, such ratiocination is plainly erroneous. In the case of People vs. del
Rosario, supra, which was properly brought to the attention of the court in
petitioners' motion to quash, this Court held very clearly that:
The pertinent provisions of Articles 90 and 91 of the
Revised Penal Code are as follows:
Art. 90. Prescription of crimes. ...
The offenses of oral defamation and slander
by deed shall prescribe in six months.
Light offenses prescribe in two months.

Art. 91. Computation of prescription of

The period of prescription shall commence to
run from the day on which the crime is
discovered by the offended party, the
authorities or their agents, ...
The court a quo held that in accordance with Article 13 of
the new Civil Code the "month" mentioned in Article 90 of
the Revised Penal Code should be one of 30 days, and
since the period of prescription commences to run from
the day "on which the crime is discovered by the offended
party," i.e., in this case on May 28, 1958 when it was
committed, the two months period provided for the
prescription of the offense already expired when the
information was filed, because the filing was on the 61st
day. The Solicitor General in this appeal argues that in
the same manner that Article 13 of the new Civil Code is
applied to determine the length of the two months period
required for the prescription of the offense, its provision
(of the said Article 13) contained in paragraph 3 which
reads "In computing a period, the first day shall be
excluded, and the last day included" should also be
applied, so that the information should be considered as
filed on the 60th day and not on the 61st day after the
offense has been committed. The resolution of the appeal
involves the determination of two legal issues, first,
whether the prescriptive period should commence from
the very day on which the crime was committed, or from
the day following that in which it was committed, in
accordance with the third paragraph of Article 13 of the
Civil Code of the Philippines, Penal Code should be
understood to be a month of 30 days, instead of the civil
or calendar month.
As to the first question, we note that Article 91 of the
Revised Penal Code provides that the period shall
commence to run from the day on which the offense is
committed or discovered. The title indicates that the

provision merely purports to prescribe the of computing

the period of prescription. In the computation of a period
of time within which an act is to be done, the law in this
jurisdiction has always directed the first day be excluded
and the last included (See section 1, Rule 28 of the Rules
of Court; section 13, Rev. Adm. Code and Art. 13, Civil
Code of the Philippines). And in the case of Surbano vs.
Gloria, 51 Phil., 415, where the question involved was
whether an offense had prescribed, we held that from
February 18 to March 15, 1927 only a period of 25 days
elapsed, because we excluded the first day (February 18)
and included the last day (March 15). The above method
of computation was in force in this jurisdiction even before
the advent of the American regime (Article 7. Spanish
Civil Code). It is logical to presume, therefore, that the
Legislature in enacting Article 91 of the Revised Penal
Code meant or intended to mean that in the computation
of the period provided for therein, the first day is to be
excluded and the last one included, in accord with
existing laws.
We find much sence in the argument of the Solicitor
General, that if the Civil Code of the Philippines is to be
resorted to in the interpretation of the length of the month,
so should it be resorted to in the computation of the
period of prescription. Besides, Article 18 of the Civil
Code (Article 16 of the old Civil Code) expressly directs
that any deficiency in any special law (such as the
Revised Penal Code) must be supplied by its provisions.
As the Revised Penal Code is deficient in that it does not
explicitly define how the period is to be computed, resort
must be had to its Article 13, which contains in detail the
manner of computating a period. We find, therefore that
the trial Court committed error in not excluding the first
day in the computation of the period of prescription of the
The other question is whether a month mentioned in
Article 90 should be considered as the calendar month
and not the 30-day month. It is to be noted that no

provision of the Revised Penal Code defines the length of

the Month. Article 7 of the old Civil Code provided that a
month shall be understood as containing 30 days; but this
concept was modified by section 13 of the Revised
Administrative Code which provides that month means
the civil or calendar month and not the regular 30-day
month (Gutierrez vs. Carpio, 53 Phil., 334). With the
approval of the Civil Code of the Philippines (R.A. No.
386), however, we have reverted to the provisions of the
Spanish Civil Code in accordance with which a month is
to be considered as the regular 30-day month (Article 13).
This provision of the new Civil Code has been intended
for general application in the interpretation of the laws. As
the offense charge in the information in the case at bar
took place on May 28, 1953, after the new Civil Code had
come into effect, this new provisions should apply, and in
accordance therewith the month in Article 90 of the
Revised Penal Code should be understood to mean the
regular 30-day month.
In our conclusion that the term "month" used in the
Revised penal Code should be interpreted in the sense
that the new Civil Code defines the said term, we find
persuasive authority in a decision of the Supreme Court
of Spain. In a case decided by it in the year 1887 (S. de
30 de Marzo de 1887), prior to the approval of the Civil
Code of Spain, it had declared that when the law spoke of
months, it meant the natural month or the solar month, in
the absence of express provisions to the contrary. But
after the promulgation of the Civil Code of Spain, which
provided in its Article 7 a general rule for the interpretation
of the laws, and with particular respect to months, that a
month shall be understood as a 30-day month, said court
held that the two months period for the prescription of a
light offense should be understood to mean 60 days, a
month being a 30-day month. (S. de 6 de Abril de 1895, 3
Viada, p. 45). Similarly we hold that in view of the express
provisions of Article 13 of the new Civil Code the term
"month" used in Article 90 of the Revised Penal Code

should be understood to mean the 30-day month and not

the solar or civil month.
We hold, therefore, that the offense charged in the
information prescribed in 60 days, said period to be
counted by excluding May 28, the commission of the
offense, and we find that when the information was filed
on July 27, 1953 the offense had not yet prescribed
because July 27 is the sixtieth day from May 29. (97 Phil.
In the light of the foregoing pronouncements of this Court, the insistence of
respondents that the factual situation in this case is substantially different
from the one in del Rosario is too tenuous to merit consideration.
Respondents have not shown any ponderous reason why We have to
depart from the above rulings.
Indeed, it being obvious that respondent court disregarded the construction
of the pertinent legal provisions by this Court, the charge of petitioners that
it has committed grave abuse of discretion must be sustained.
As to the contention of respondents that the denial of a motion to quash is
not a ground for certiorari or prohibition, suffice it to state that to allow an
accused to undergo the ordeals of trial and conviction when the information
or complaint against him is patently defective or the offense charged
therein has been indisputably, shown to have already prescribed is unfair
and unjust, for which reason, procedurally, the ordinary remedy of appeal
cannot be plain and adequate.
WHEREFORE, the petition is granted and the criminal complaint in the
aforementioned cases are hereby ordered dismissed. No costs. 1
Fernando (Chairman), Antonio, Aquino, and Martin, JJ., concur.
Concepcion Jr., J., took no part.
Martin J., was designated to sit in the Second Division.


Republic of the Philippines


G.R. No. 98382 May 17, 1993

Santiago, Jr., Vidad, Corpus & Associates for petitioner.
Pedro R. Lazo for spouses-intervenors.
Rosendo G. Tansinsin, Jr. for private respondent.

The notices of sale under Section 3 of Act No. 3135, as amended by Act
No. 4118, on extra-judicial foreclosure of real estate mortgage are required
to be posted for not less than twenty days in at least three public places of
the municipality or city where the property is situated, and if such property
is worth more than four hundred pesos, such notices shall also be
published once a week for at least three consecutive weeks in a newspaper
of general circulation in the municipality or city.
Respondent court, through Justice Filemon Mendoza with whom Justices
Campos, Jr. and Aldecoa, Jr. concurred, construed the publication of the
notices on March 28, April 11 and l2, 1969 as a fatal announcement and
reversed the judgment appealed from by declaring void, inter alia, the

auction sale of the foreclosed pieces of realty, the final deed of sale, and
the consolidation of ownership (p. 27, Rollo).
Hence, the petition at bar, premised on the following backdrop lifted from
the text of the challenged decision:
The facts of the case as related by the trial court are, as
This is a verified complaint brought by the
plaintiff for the reconveyance to him (and
resultant damages) of two (2) parcels of land
mortgaged by him to the defendant Philippine
National Bank (Manila), which the defendant
allegedly unlawfully foreclosed. The defendant
then consolidated ownership unto itself, and
subsequently sold the parcels to third parties.
The amended Answer of the defendant states
on the other hand that the extrajudicial
foreclosure, consolidation of ownership, and
subsequent sale to the third parties were all
valid, the bank therefore counterclaims for
damages and other equitable remedies.
xxx xxx xxx
From the evidence and exhibits presented by
both parties, the Court is of the opinion that
the following facts have been proved: Two
lots, located at Bunlo, Bocaue, Bulacan (the
first covered by Torrens Certificate No. 16743
and possessed of an area of approximately
3,109 square meters: the second covered by
Torrens Certificate No. 5787, possessed of an
area of around 610 square meters, and upon
which stood a residential-commercial building
were mortgaged to the defendant Philippine
National Bank. The lots were under the
common names of the plaintiff (Epifanio dela
Cruz), his brother (Delfin) and his sister

(Maria). The mortgage was made possible

because of the grant by the latter two to the
former of a special power of attorney to
mortgage the lots to the defendant. The lots
were mortgaged to guarantee the following
promissory notes:
(1) a promissory note for Pl2,000.00, dated September 2,
1958, and payable within 69 days (date of maturity
Nov. l0, 1958);
(2) a promissory note for P4,000.00, dated September 22,
1958, and payable within 49 days (date of maturity
Nov. 10, 1958);
(3) a promissory note for P4,000.00, dated June 30, 1.958
and payable within 120 days (date of maturity Nov.
10, 1958) See also Annex C of the complaint itself).
[1 This date of June 30, 1958 is disputed by the plaintiff
who claims that the correct date is June 30, 1961, which
is the date actually mentioned in the promissory note. It is
however difficult to believe the plaintiff's contention since
if it were true and correct, this would mean that nearly
three (3) years elapsed between the second and the third
promissory note; that at the time the third note was
executed, the first two had not yet been paid by the
plaintiff despite the fact that the first two were supposed
to be payable within 69 and 49 days respectively. This
state of affairs would have necessitated the renewal of
said two promissory notes. No such renewal was proved,
nor was the renewal ever alleged. Finally, and this is very
significant: the third mentioned promissory note states
that the maturity date is Nov. 10, 1958. Now then, how
could the loan have been contracted on June 30, 1961? It
will be observed that in the bank records, the third
mentioned promissory note was really executed on June
30, 1958 (See Exhs. 9 and 9-A). The Court is therefore
inclined to believe that the date "June 30, 1961" was a
mere clerical error and hat the true and correct date is

June 1958. However, even assuming that the true and

correct date is June 30, 1961, the fact still remains that
the first two promissory notes had been guaranteed by
the mortgage of the two lots, and therefore, it was legal
and proper to foreclose on the lots for failure to pay said
two promissory notes.
On September 6, 1961, Atty. Ramon de los Reyes of the
bank (PNB) presented under Act No. 3135 a foreclosure
petition of the two mortgaged lots before the Sheriff's
Office at Malolos, Bulacan; accordingly, the two lots were
sold or auctioned off on October 20, 1961 with the
defendant PNB as the highest bidder for P28,908.46. On
March 7, 1963, Sheriff Leopoldo Palad executed a Final
Deed of Sale, in response to a letter-request by the
Manager of the PNB (Malolos Branch). On January 15,
1963 a Certificate of Sale in favor of the defendant was
executed by Sheriff Palad. The final Deed of Sale was
registered in the Bulacan Registry of Property on March
19, 1963. Inasmuch as the plaintiff did not volunteer to
buy back from the PNB the two lots, the PNB sold on
June 4, 1970 the same to spouses Conrado de Vera and
Marina de Vera in a "Deed of Conditional Sale".
(Decision, pp.3-5; Amended Record on Appeal, pp. 9698).
After due consideration of the evidence, the CFI on
January 22, 1978 rendered its Decision, the dispositive
portion of which reads:
the instant complaint against the defendant
Philippine National Bank is hereby ordered
DISMISSED, with costs against the plaintiff.
The Counterclaim against the plaintiff is
likewise DISMISSED, for the Court does not
believe that the complaint had been made in
bad faith.

SO ORDERED. (Decision, p. B.; Amended

Record on Appeal, p. 100)
Not satisfied with the judgment, plaintiff interposed the
present appeal assigning as errors the following:
(page 115, Amended Record on Appeal)
PREMATURE". (page 117, Amended Record on Appeal)


Amended Record on Appeal).
CIRCULATION (pages 117-118, Amended Record on
AND 40713 OF BULACAN (page 8, Amended Record on
AND ATTORNEY'S FEES (page 8. Amended Record on


PLAINTIFF. (page 118, Amended Record on Appeal)."
(Brief for Plaintiff-Appellant, pp. 1-4) (pp. 17-21, Rollo)
With reference to the pertinent issue at hand, respondent court opined:
The Notices of Sale of appellant's foreclosed properties
were published on March 228, April 11 and April 12, 1969
issues of the newspaper "Daily Record" (Amended
Record on Appeal, p. 108). The date March 28, 1969 falls
on a Friday while the dates April 11 and 12, 1969 are on a
Friday and Saturday, respectively. Section 3 of Act No.
3135 requires that the notice of auction sale shall be
"published once a week for at least three consecutive
weeks". Evidently, defendant-appellee bank failed to
comly with this legal requirement. The Supreme Court
has held that:
The rule is that statutory provisions governing
publication of notice of mortgage foreclosure
sales must be strictly complied with, and that
even slight deviations therefrom will invalidate
the notice and render the sale at least
voidable (Jalandoni vs. Ledesma, 64 Phil.
l058. G.R. No. 42589, August 1937 and
October 29, 1937). Interpreting Sec. 457 of
the Code of Civil Procedure (reproduced in
Sec. 18(c) of Rule 39, Rules of Court and in
Sec. 3 of Act No. 3135) in Campomanes vs.
Bartolome and German & Co. (38 Phil. 808,
G.R. No. 1309, October 18, 1918), this Court
held that if a sheriff sells without notice
prescribed by the Code of Civil Procedure
induced thereto by the judgment creditor, and
the purchaser at the sale is the judgment
creditor, the sale is absolutely void and no title
passes. This is regarded as the settled
doctrine in this jurisdiction whatever the rule

may be elsewhere (Boria vs. Addison, 14 Phil.

895, G.R. No. 18010, June 21, 1922).
. . . It has been held that failure to advertise a
mortgage foreclosure sale in compliance with
statutory requirements constitutes a
jurisdictional defect invalidating the sale and
that a substantial error or omission in a notice
of sale will render the notice insufticient and
vitiate the sale (59 C.J.S. 1314). (Tambunting
vs. Court of Appeals, L-48278, November 8,
1988; 167 SCRA 16, 23-24).
In view of the admission of defendant-appellee in its
pleading showing that there was no compliance of the
notice prescribed in Section 3 of Act No. 3135, as
amended by Act 4118, with respect to the notice of sale of
the foreclosed real properties in this case, we have no
choice but to declare the auction sale as absolutely void
in view of the fact that the highest bidder and purchaser in
said auction sale was defendant-appellee bank.
Consequently, the Certificate of Sale, the Final Deed of
Sale and Affidavit of Consolidation are likewise of no legal
efffect. (pp. 24-25, Rollo)
Before we focus our attention on the subject of whether or not there was
valid compliance in regard to the required publication, we shall briefly
discuss the other observations of respondent court vis-a-vis herein private
respondent's ascriptions raised with the appellate court when his suit for
reconveyance was dismissed by the court of origin even as private
respondent does not impugn the remarks of respondent court along this
Although respondent court acknowledged that there was an ambiguity on
the date of execution of the third promissory note (June 30, 1961) and the
date of maturity thereof (October 28, 1958), it was nonetheless established
that the bank introduced sufficient proof to show that the discrepancy was a
mere clerical error pursuant to Section 7, Rule l30 of the Rules of Court.
Anent the second disputation aired by private respondent, the appellate
court observed that inasmuch as the original as well as the subsequent

mortgage were foreclosed only after private respondent's default, the

procedure pursued by herein petitioner in foreclosing the collaterals was
thus appropriate albeit the petition therefor contained only a copy of the
original mortgage.
It was only on the aspect of publication of the notices of sale under Act No.
3135, as amended, and attorney's fees where herein private respondent
scored points which eliminated in the reversal of the trial court's decision.
Respondent court was of the impression that herein petitioner failed to
comply with the legal requirement and the sale effected thereafter must be
adjudged invalid following the ruling of this Court in Tambunting vs. Court
of Appeals (167 SCRA 16 [1988]); p. 8, Decision, p. 24, Rollo). In view of
petitioner's so-called indifference to the rules set forth under Act No. 3135,
as amended, respondent court expressly authorized private respondent to
recover attorney's fees because he was compelled to incur expenses to
protect his interest.
Immediately upon the submission of a supplemental petition, the spouses
Conrado and Marina De Vera filed a petition in intervention claiming that
the two parcels of land involved herein were sold to them on June 4, 1970
by petitioner for which transfer certificates of title were issued in their favor
(p. 40, Rollo). On the other hand, private respondent pressed the idea that
the alleged intervenors have no more interest in the disputed lots in view of
the sale effected by them to Teresa Castillo, Aquilino and Antonio dela
Cruz in 1990 (pp. 105-106, Rollo).
On March 9, 1992, the Court resolved to give due course to the petition and
required the parties to submit their respective memoranda (p. 110, Rollo).
Now, in support of the theory on adherence to the conditions spelled in the
preliminary portion of this discourse, the pronouncement of this Court in
Bonnevie vs. Court of Appeals (125 SCRA [1983]; p. 135, Rollo) is sought
to be utilized to press the point that the notice need not be published for
three full weeks. According to petitioner, there is no breach of the proviso
since after the first publication on March 28, 1969, the second notice was
published on April 11, 1969 (the last day of the second week), while the
third publication on April 12, 1969 was announced on the first day of the
third week. Petitioner thus concludes that there was no violation from the
mere happenstance that the third publication was made only a day after the
second publication since it is enough that the second publication be made

on any day within the second week and the third publication, on any day
within the third week. Moreover, in its bid to rectify its admission in judicio,
petitioner asseverates that said admission alluded to refers only to the
dates of publications, not that there was non-compliance with the
publication requirement.
Private respondent, on the other hand, views the legal question from a
different perspective. He believes that the period between each publication
must never be less than seven consecutive days (p. 4, Memorandum; p.
124, Rollo).
We are not convinced by petitioner's submissions because the disquisition
in support thereof rests on the erroneous impression that the day on which
the first publication was made, or on March 28, 1969, should be excluded
pursuant to the third paragraph of Article 17 of the New Civil Code.
It must be conceded that Article 17 is completely silent as to the definition
of what is a "week". In Concepcion vs. Zandueta (36 O.G. 3139 [1938];
Moreno, Philippine Law Dictionary, Second Ed., 1972, p. 660), this term
was interpreted to mean as a period of time consisting of seven
consecutive days a definition which dovetails with the ruling in E.M.
Derby and Co. vs. City of Modesto, et al. (38 Pac. Rep. 900 [1984]; 1
Paras, Civil Code of the Philippines Annotated, Twelfth Ed., 1989, p. 88; 1
Tolentino, Commentaries and Jurisprudence on th Civil Code, 1990, p. 46).
Following the interpretation in Derby as to the publication of an ordinance
for "at least two weeks" in some newspaper that:
. . . here there is no date or event suggesting the
exclusion of the first day's publication from the
computation, and the cases above cited take this case out
of the rule stated in Section 12, Code Civ. Proc. which
excludes the first day and includes the last;
the publication effected on April 11, 1969 cannot be construed
as sufficient advertisement for the second week because the
period for the first week should be reckoned from March 28,
1969 until April 3, 1969 while the second week should be
counted from April 4, 1969 until April 10, 1969. It is clear that
the announcement on April 11, 1969 was both theoretically and
physically accomplished during the first day of the third week

and cannot thus be equated with compliance in law. Indeed,

where the word is used simply as a measure of duration of time
and without reference to the calendar, it means a period of
seven consecutive days without regard to the day of the week
on which it begins (1 Tolentino, supra at p. 467 citing Derby).
Certainly, it would have been absurd to exclude March 28, 1969 as
reckoning point in line with the third paragraph of Article 13 of the New Civil
Code, for the purpose of counting the first week of publication as to the last
day thereof fall on April 4, 1969 because this will have the effect of
extending the first week by another day. This incongruous repercussion
could not have been the unwritten intention of the lawmakers when Act No.
3135 was enacted. Verily, inclusion of the first day of publication is in
keeping with the computation in Bonnevie vs. Court of Appeals (125 SCRA
122 [1983]) where this Court had occasion to pronounce, through Justice
Guerrero, that the publication of notice on June 30, July 7 and July 14,
1968 satisfied the publication requirement under Act No. 3135. Respondent
court cannot, therefore, be faulted for holding that there was no compliance
with the strict requirements of publication independently of the so- called
admission in judicio.
WHEREFORE, the petitions for certiorari and intervention are hereby
dismissed and the decision of the Court of Appeals dated April 17, 1991 is
hereby affirmed in toto.
Feliciano, Bidin, Davide and Romero, JJ., concur.

Ombudsman v. De Sahagun
Republic of the Philippines
G.R. No. 167982

August 13, 2008


BASSIG, respondent.*
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court assailing the Decision1 dated April 28, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 78008 which set aside the Orders dated
March 10, 2003 and June 24, 2003 of the petitioner Office of the
Ombudsman in OMB-ADM-0-00-0721.
The material antecedents are as follows:
On November 13, 1992, respondent Raidis J. Bassig, Chief of the
Research and Publications Division of the Intramuros Administration,
submitted a Memorandum to then Intramuros Administrator Edda V.
Henson (Henson) recommending that Brand Asia, Ltd. be commissioned to
produce a video documentary for a television program, as well implement a
media plan and marketing support services for Intramuros.
On November 17, 1992, the Bids and Awards Committee (BAC) of the
Intramuros Administration, composed of respondent Merceditas de
Sahagun, as Chairman, with respondent Manuela T. Waquiz and
Dominador C. Ferrer, Jr. (Ferrer), as members, submitted a
recommendation to Henson for the approval of the award of said contract
to Brand Asia, Ltd. On the same day, Henson approved the
recommendation and issued a Notice of Award to Brand Asia, Ltd.

On November 23, 1992, a contract of service to produce a video

documentary on Intramuros for TV program airing was executed between
Henson and Brand Asia, Ltd. On December 1, 1992, a Notice to Proceed
was issued to Brand Asia, Ltd.
On June 2, 1993, the BAC, with Augusto P. Rustia (Rustia) as additional
member, recommended to Henson the approval of the award of contract for
print collaterals to Brand Asia, Ltd. On the same day, Henson approved the
recommendation and issued a Notice of Award/Notice to Proceed to Brand
Asia, Ltd.
On June 22, 1993, a contract of services to produce print collaterals was
entered between Henson and Brand Asia, Ltd.
On March 7, 1995, an anonymous complaint was filed with the Presidential
Commission Against Graft and Corruption (PGAC) against Henson in
relation to the contracts entered into with Brand Asia, Ltd.
On November 30, 1995, Henson was dismissed from the service by the
Office of the President upon recommendation of the PGAC which found
that the contracts were entered into without the required public bidding and
in violation of Section 3 (a) and (e) of Republic Act (R.A.) No. 3019, or the
Anti-Graft and Corrupt Practices Act.
On August 8, 1996, an anonymous complaint was filed with the
Ombudsman against the BAC in relation to the latters participation in the
contracts with Brand Asia, Ltd. for which Henson was dismissed from
On September 5, 2000, Fact-Finding Intelligence Bureau (FFIB) filed
criminal and administrative charges against respondents, along with Ferrer
and Rustia, for violation of Section 3 (a) and (c) of R.A. No. 3019 in relation
to Section 1 of Executive Order No. 302 and grave misconduct, conduct
grossly prejudicial to the best interest of the service and gross violation of
Rules and Regulations pursuant to the Administrative Code of 1987,
docketed as OMB-0-00-1411 and OMB-ADM-0-00-0721, respectively.2
OMB-0-00-1411 was dismissed on February 27, 2002 for lack of probable
In his proposed Decision4 dated June 19, 2002, Graft Investigation Officer
II Joselito P. Fangon recommended the dismissal of OMB-ADM-0-00-0721.

However, then Ombudsman Simeon V. Marcelo disapproved the

recommendation. In an Order5 dated March 10, 2003, he held that there
was substantial evidence to hold respondents administratively liable since
the contracts awarded to Brand Asia, Ltd. failed to go through the required
procedure for public bidding under Executive Order No. 301 dated July 26,
1987. Respondents and Ferrer were found guilty of grave misconduct and
dismissed from service. Rustia was found guilty of simple misconduct and
suspended for six months without pay.
On March 17, 2003, respondents, along with Rustia, filed a Motion for
On June 24, 2003, Ombudsman Marcelo issued an Order7 partially
granting the motion for reconsideration. Respondents and Ferrer were
found guilty of the lesser offense of simple misconduct and suspended for
six months without pay. Rustia's suspension was reduced to three months.
Dissatisfied, respondents filed a Petition for Review8 with the CA assailing
the Orders dated March 10, 2003 and June 24, 2003 of the Ombudsman.
On April 28, 2005, the CA rendered a Decision9 setting aside the Orders
dated March 10, 2003 and June 24, 2003 of the Ombudsman. The CA held
that respondents may no longer be prosecuted since the complaint was
filed more than seven years after the imputed acts were committed which
was beyond the one year period provided for by Section 20 (5) of Republic
Act (R.A.) No. 6770, otherwise known as "The Ombudsman Act of 1989";
and that the nature of the function of the Ombudsman was purely
recommendatory and it did not have the power to penalize erring
government officials and employees. The CA relied on the following
statement made by the Court in Tapiador v. Office of the Ombudsman,10 to
x x x Besides, assuming arguendo, that petitioner [Tapiador] was
administratively liable, the Ombudsman has no authority to
directly dismiss the petitioner from the government service,
more particularly from his position in the BID. Under Section 13,
subparagraph 3, of Article XI of the 1987 Constitution, the
Ombudsman can only "recommend" the removal of the public
official or employee found to be at fault, to the public official
concerned.11 (Emphasis supplied)

Hence, the present petition raising the following issues (1) whether Section
20 (5) of R.A. No. 6770 prohibits administrative investigations in cases filed
more than one year after commission, and (2) whether the Ombudsman
only has recommendatory, not punitive, powers against erring government
officials and employees.
The Court rules in favor of the petitioner.
The issues in the present case are settled by precedents.
On the first issue, well-entrenched is the rule that administrative offenses
do not prescribe.12 Administrative offenses by their very nature pertain to
the character of public officers and employees. In disciplining public officers
and employees, the object sought is not the punishment of the officer or
employee but the improvement of the public service and the preservation of
the publics faith and confidence in our government.13
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions. The Office of the Ombudsman may not
conduct the necessary investigation of any administrative act or
omission complained of if it believes that:
(5) The complaint was filed after one year from the occurrence of the
act or omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or omission if the
complaint was filed after one year from the occurrence of the complained
act or omission.
In Melchor v. Gironella,14 the Court held that the period stated in Section
20(5) of R.A. No. 6770 does not refer to the prescription of the offense but
to the discretion given to the Ombudsman on whether it would investigate a
particular administrative offense. The use of the word "may" in the provision
is construed as permissive and operating to confer discretion.15 Where the
words of a statute are clear, plain and free from ambiguity, they must be
given their literal meaning and applied without attempted interpretation.16

In Filipino v. Macabuhay,17 the Court interpreted Section 20 (5) of R.A. No.

6770 in this manner:
Petitioner argues that based on the abovementioned provision
[Section 20(5) of RA 6770)], respondent's complaint is barred by
prescription considering that it was filed more than one year after the
alleged commission of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature
and not mandatory as petitioner contends. When used in a statute, it
is permissive only and operates to confer discretion; while the word
"shall" is imperative, operating to impose a duty which may be
enforced. Applying Section 20(5), therefore, it is discretionary upon
the Ombudsman whether or not to conduct an investigation on a
complaint even if it was filed after one year from the occurrence
of the act or omission complained of. In fine, the complaint is
not barred by prescription.18 (Emphasis supplied)
The declaration of the CA in its assailed decision that while as a general
rule the word "may" is directory, the negative phrase "may not" is
mandatory in tenor; that a directory word, when qualified by the word "not,"
becomes prohibitory and therefore becomes mandatory in character, is not
plausible. It is not supported by jurisprudence on statutory construction.
As the Court recently held in Office of the Ombudsman v. Court of
Appeals,19 Section 20 of R.A. No. 6770 has been clarified by Administrative
Order No. 17,20 which amended Administrative Order No. 07, otherwise
known as the Rules of Procedure of the Office of the Ombudsman. Section
4, Rule III21 of the amended Rules of Procedure of the Office of the
Ombudsman reads:
Section 4. Evaluation. - Upon receipt of the complaint, the same
shall be evaluated to determine whether the same may be:
a) dismissed outright for any grounds stated under Section 20 of
Republic Act No. 6770, provided, however, that the dismissal
thereof is not mandatory and shall be discretionary on the part
of the Ombudsman or the Deputy Ombudsman concerned;

b) treated as a grievance/request for assistance which may be

referred to the Public Assistance Bureau, this Office, for appropriate
action under Section 2, Rule IV of this Rules;
c) referred to other disciplinary authorities under paragraph 2, Section
23, R.A. 6770 for the taking of appropriate administrative
d) referred to the appropriate office/agency or official for the conduct
of further fact-finding investigation; or
e) docketed as an administrative case for the purpose of
administrative adjudication by the Office of the Ombudsman.
(Emphasis supplied)
It is, therefore, discretionary upon the Ombudsman whether or not to
conduct an investigation of a complaint even if it was filed after one year
from the occurrence of the act or omission complained of.
Thus, while the complaint herein was filed only on September 5, 2000, or
more than seven years after the commission of the acts imputed against
respondents in November 1992 and June 1993, it was within the authority
of the Ombudsman to conduct the investigation of the subject complaint.
On the second issue, the authority of the Ombudsman to determine the
administrative liability of a public official or employee, and to direct and
compel the head of the office or agency concerned to implement the
penalty imposed is likewise settled.
In Ledesma v. Court of Appeals,22 the Court has ruled that the statement in
Tapiador that made reference to the power of the Ombudsman to impose
an administrative penalty was merely an obiter dictum and could not be
cited as a doctrinal declaration of this Court, thus:
x x x [A] cursory reading of Tapiador reveals that the main point of the
case was the failure of the complainant therein to present substantial
evidence to prove the charges of the administrative case. The
statement that made reference to the power of the Ombudsman
is, at best, merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying interpretations, as
what precisely is before us in this case. Hence, it cannot be cited as

a doctrinal declaration of this Court nor is it safe from judicial

examination.23 (Emphasis supplied)
In Estarija v. Ranada,24 the Court reiterated its pronouncements in
Ledesma and categorically stated:
x x x [T]he Constitution does not restrict the powers of the
Ombudsman in Section 13, Article XI of the 1987 Constitution, but
allows the Legislature to enact a law that would spell out the powers
of the Ombudsman. Through the enactment of Rep. Act No. 6770,
specifically Section 15, par. 3, the lawmakers gave the Ombudsman
such powers to sanction erring officials and employees, except
members of Congress, and the Judiciary. To conclude, we hold that
Sections 15, 21, 22 and 25 of Republic Act No. 6770 are
constitutionally sound. The powers of the Ombudsman are not
merely recommendatory. His office was given teeth to render this
constitutional body not merely functional but also effective. Thus, we
hold that under Republic Act No. 6770 and the 1987 Constitution,
the Ombudsman has the constitutional power to directly remove
from government service an erring public official other than a
member of Congress and the Judiciary.25 (Emphasis supplied)
The power of the Ombudsman to directly impose administrative sanctions
has been repeatedly reiterated in the subsequent cases of Barillo v.
Gervasio,26 Office of the Ombudsman v. Madriaga,27 Office of the
Ombudsman v. Court of Appeals,28 Balbastro v. Junio,29 Commission on
Audit, Regional Office No. 13, Butuan City v. Hinampas,30 Office of the
Ombudsman v. Santiago,31 Office of the Ombudsman v. Lisondra,32 and
most recently in Deputy Ombudsman for the Visayas v. Abugan33 and
continues to be the controlling doctrine.
In fine, it is already well-settled that the Ombudsman's power as regards
the administrative penalty to be imposed on an erring public officer or
employee is not merely recommendatory. The Ombudsman has the power
to directly impose the penalty of removal, suspension, demotion, fine,
censure, or prosecution of a public officer or employee, other than a
member of Congress and the Judiciary, found to be at fault, within the
exercise of its administrative disciplinary authority as provided in the
Constitution, R.A. No. 6770, as well as jurisprudence. This power gives the

said constitutional office teeth to render it not merely functional, but also
Thus, the CA committed a reversible error in holding that the case had
already prescribed and that the Ombudsman does not have the power to
penalize erring government officials and employees.
WHEREFORE, the petition is GRANTED. The Decision dated April 28,
2005 of the Court of Appeals in CA-G.R. SP No. 78008 is REVERSED and
SET ASIDE. The Order dated June 24, 2003 of the Office of the
Ombudsman is REINSTATED.