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SECOND DIVISION

REPUBLIC OF THEPHILIPPINES,
Petitioner,

G.R. No. 170340

Page

CHANGE OF NAME /CORRECTION / CANCELLATION OF ENTRIES IN


THE CIVIL REGISTRY

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Atty. Arceno
deletion of the word married opposite the phrase Date of marriage of
parents because his parents, Juan Kho and Epifania Inchoco (Epifania),
were allegedly not legally married.
The same request to delete the married status of their parents
from their respective birth certificates was made by Carlitos siblings
Michael, Mercy Nona, and Heddy Moira.

Present:
- versus -

CARLITO I. KHO, MICHAEL KHO, MERCY


NONA KHO-FORTUN, HEDDY MOIRA KHOSERRANO, KEVIN DOGMOC KHO (Minor), and
KELLY DOGMOC KHO (Minor),
Respondents.

With respect to the birth certificates of Carlitos children, he prayed that the
date of his and his wifes marriage be corrected from April 27,
QUISUMBING,* J., Chairperson
1989 to January 21, 2000, the date appearing in their marriage certificate.
CARPIO,**
CARPIO MORALES,
The Local Civil Registrar of Butuan City was impleaded as
TINGA, and
respondent.
VELASCO, JR., JJ.
On April 23, 2001, Carlito et al. filed an Amended Petition [3] in which it was
additionally prayed that Carlitos second name of John be deleted from his
PROMULGATED:
record of birth; and that the name and citizenship of Carlitos father in his
(Carlitos) marriage certificate be corrected from John Kho to Juan Kho and
Filipino to Chinese, respectively.

June 29, 2007


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

As required, the petition was published for three consecutive


weeks[4] in Mindanao Daily Patrol-CARAGA, a newspaper of general
circulation, after which it was set for hearing on August 9, 2001.

DECISION

In a letter of June 18, 2001 addressed to the trial court, the city
civil registrar[5] stated her observations and suggestions to the proposed
corrections in the birth records of Carlito and his siblings but interposed no
objections to the other amendments.

CARPIO MORALES, J.:


Challenged via petition for review on certiorari is the October 27,
2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78124
which affirmed the September 4, 2002 Decision [2] of the Regional Trial
Court (RTC) of Butuan City, Branch 5 granting the prayer of respondents
Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy
Moira Kho-Serrano for the correction of entries in their birth certificates as
well as those of Carlitos minor children Kevin and Kelly Dogmoc Kho.
The undisputed facts are as follows:

On the scheduled hearing of the petition on August 9, 2001, only


the counsel for respondents appeared as the Office of the Solicitor General
(OSG) had yet to enter its appearance for the city civil registrar. The trial
court thus reset the hearing to October 9, 2001.[6] On September 14, 2001,
[7]
the OSG entered its appearance with an authorization to the city
prosecutor of Butuan City to appear in the case and render assistance to it
(the OSG).

On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and
Heddy Moira filed before the RTC of Butuan City a verified petition for
correction of entries in the civil registry of Butuan City to effect changes in
their respective birth certificates. Carlito also asked the court in behalf of
his minor children, Kevin and Kelly, to order the correction of some entries
in their birth certificates.

On January 31, 2002, respondents presented documentary


evidence showing compliance with the jurisdictional requirements of the
petition. They also presented testimonial evidence consisting of the
testimonies of Carlito and his mother, Epifania. During the same hearing,
an additional correction in the birth certificates of Carlitos children was
requested to the effect that the first name of their mother be rectified from
Maribel to Marivel.

In the case of Carlito, he requested the correction in his birth certificate of


the citizenship of his mother to Filipino instead of Chinese, as well as the

By Decision[8] of September 4, 2002, the trial court directed the


local civil registrar of Butuan City to correct the entries in the record of

Additionally, the trial court ordered the correction of the birth


certificates of the minor children of Carlito to reflect the date of marriage of
Carlito and Marivel Dogmoc (Marivel) as January 21, 2000, instead of April
27, 1989, and the name Maribel as Marivel.
With respect to the marriage certificate of Carlito and Marivel, the
corrections ordered pertained to the alteration of the name of Carlitos
father from John Kho to Juan Kho and the latters citizenship from Filipino
to Chinese.
Petitioner, Republic of the Philippines, appealed the RTC Decision
to the CA, faulting the trial court in granting the petition for correction of
entries in the subject documents despite the failure of respondents to
implead the minors mother, Marivel, as an indispensable party and to offer
sufficient evidence to warrant the corrections with regard to the questioned
married status of Carlito and his siblings parents, and the latters
citizenship.
Petitioner also faulted the trial court for ordering the change of the
name Carlito John Kho to Carlito Kho for non-compliance with jurisdictional
requirements for a change of name under Rule 103 of the Rules of Court.
By the assailed Decision of October 27, 2005, the CA denied
petitioners appeal and affirmed the decision of the trial court.
The CA found that Rule 108 of the Revised Rules of Court, which
outlines the proper procedure for cancellation or correction of entries in the
civil registry, was observed in the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate
court held that the correction of their mothers first name from Maribel to
Marivel was made to rectify an innocuous error.
As for the change in the date of the marriage of Carlito and
Marivel, albeit the CA conceded that it is a substantial alteration, it held
that the date would not affect the minors filiation from legitimate to
illegitimate considering that at the time of their respective births in 1991
and 1993, their father Carlitos first marriage was still subsisting as it had
been annulled only in 1999.
In light of Carlitos legal impediment to marry Marivel at the time
they were born, their children Kevin and Kelly were illegitimate. It followed,

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birth of Carlito, as follows: (1) change the citizenship of his mother from
Chinese to Filipino; (2) delete John from his name; and (3) delete the word
married opposite the date of marriage of his parents. The last correction
was ordered to be effected likewise in the birth certificates of respondents
Michael, Mercy Nona, and Heddy Moira.

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Atty. Arceno
the CA went on to state, that Marivel was not an indispensable party to the
case, the minors having been represented by their father as required under
Section 5 of Rule 3[9] of the Revised Rules of Court.
Further, the CA ruled that although Carlito failed to observe the
requirements of Rule 103 of the Rules of Court, he had complied
nonetheless with the jurisdictional requirements for correction of entries in
the civil registry under Rule 108 of the Rules of Court. The petition for
correction of entry in Carlitos birth record, it noted, falls under letter o of
the enumeration under Section 2 of Rule 108.
In the present petition, petitioner contends that since the changes
sought by respondents were substantial in nature, they could only be
granted through an adversarial proceeding in which indispensable parties,
such as Marivel and respondents parents, should have been notified or
impleaded.
Petitioner further contends that the jurisdictional requirements to
change Carlitos name under Section 2 of Rule 103 of the Rules of Court
were not satisfied because the Amended Petition failed to allege Carlitos
prior three-year bona fide residence in Butuan City, and that the title of the
petition did not state Carlitos aliases and his true name as Carlito John I.
Kho. Petitioner concludes that the same jurisdictional defects attached to
the change of name of Carlitos father.
The petition fails.
It can not be gainsaid that the petition, insofar as it sought to
change the citizenship of Carlitos mother as it appeared in his birth
certificate and delete the married status of Carlitos parents in his and his
siblings respective birth certificates, as well as change the date of marriage
of Carlito and Marivel involves the correction of not just clerical errors of a
harmless and innocuous nature.[10] Rather, the changes entail substantial
and controversial amendments.
For the change involving the nationality of Carlitos mother as
reflected in his birth certificate is a grave and important matter that has a
bearing and effect on the citizenship and nationality not only of the
parents, but also of the offspring.[11]
Further, the deletion of the entry that Carlitos and his siblings
parents were married alters their filiation from legitimate to illegitimate,
with significant implications on their successional and other rights.
Clearly, the changes sought can only be granted in an adversary
proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre:

In Republic v. Valencia,[13] however, this Court ruled, and has since


repeatedly ruled, that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108.[14]
It is undoubtedly true that if the subject matter
of a petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving
nationality or citizenship, which is indisputably substantial
as well as controverted, affirmative relief cannot be
granted in a proceeding summary in nature. However, it
is also true that a right in law may be enforced and
a wrong may be remedied as long as the
appropriate remedy is used. This Court adheres to
the principle that even substantial errors in a civil
registry may be corrected and the true facts
establishedprovided the parties aggrieved by the
error avail themselves of the appropriate adversary
proceeding.
xxxx
What is meant by appropriate adversary proceeding?
Blacks Law Dictionary defines adversary proceeding[] as follows:
One having opposing parties; contested, as
distinguished from an ex parte application, one of which
the party seeking relief has given legal warning to the
other party, and afforded the latter an opportunity to
contest it. x x x [15] (Emphasis, italics and underscoring
supplied)
The enactment in March 2001 of Republic Act No. 9048, otherwise known
as AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR
THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL

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x x x. The philosophy behind this requirement lies in the


fact that the books making up the civil register and all
documents relating thereto shall be prima facie evidence
of the facts therein contained. If the entries in the civil
register could be corrected or changed through
mere summary proceedings and not through
appropriate action wherein all parties who may be
affected by the entries are notified or represented,
the door to fraud or other mischief would be set
open, the consequence of which might be
detrimental and far reaching. x x x (Emphasis
supplied)

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Atty. Arceno
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN
THE CIVIL REGISTER WITHOUT NEED OF JUDICIAL ORDER, has been
considered to lend legislative affirmation to the judicial precedence that
substantial corrections to the civil status of persons recorded in the civil
registry may be effected through the filing of a petition under Rule 108. [16]
Thus, this Court in Republic v. Benemerito[17] observed that the
obvious effect of Republic Act No. 9048 is to make possible the
administrative correction of clerical or typographical errors or change of
first name or nickname in entries in the civil register, leaving to Rule 108
the correction of substantial changes in the civil registry in appropriate
adversarial proceedings.
When all the procedural requirements under Rule 108 are thus
followed, the appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is satisfied. [18] The
pertinent provisions of Rule 108 of the Rules of Court read:
SEC. 3. Parties. When cancellation or correction
of an entry in the civil registrar is sought, the civil
registrar and all 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 in 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)
There is no dispute that the trial courts Order [19] setting the
petition for hearing and directing any person or entity having interest in
the petition to oppose it was posted[20]as well as published for the required
period; that notices of hearings were duly served on the Solicitor General,
the city prosecutor of Butuan and the local civil registrar; and that trial was
conducted on January 31, 2002 during which the public prosecutor, acting
in behalf of the OSG, actively participated by cross-examining Carlito and
Epifania.

A similar issue was earlier raised in Barco v. Court of Appeals.


That case stemmed from a petition for correction of entries in the birth
certificate of a minor, June Salvacion Maravilla, to reflect the name of her
real father (Armando Gustilo) and to correspondingly change her
surname. The petition was granted by the trial court.
[21]

Barco, whose minor daughter was allegedly fathered also by


Gustilo, however, sought to annul the trial courts decision, claiming that
she should have been made a party to the petition for correction. Failure to
implead her deprived the RTC of jurisdiction, she contended.
In dismissing Barcos petition, this Court held that the publication
of the order of hearing under Section 4 of Rule 108 cured the failure to
implead an indispensable party.
The essential requisite for allowing substantial
corrections of entries in the civil registry is that the true
facts be established in an appropriate adversarial
proceeding. This is embodied in Section 3, Rule 108 of
the Rules of Court, which states:
Section
3. Parties.
When
cancellation
or
correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made
parties to the proceeding.
xxxx
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. x
x x.
Yet, even though Barco was not impleaded in
the petition, the Court of Appeals correctly pointed out
that the defect was cured by compliance with Section 4,
Rule 108, which requires notice by publication x x x.
xxxx

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What surfaces as an issue is whether the failure to implead


Marivel and Carlitos parents rendered the trial short of the required
adversary proceeding and the trial courts judgment void.

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Atty. Arceno
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
xxxx
Verily, a petition for correction is an action in
rem, an action against a thing and not against a
person. The decision on the petition binds not only the
parties thereto but the whole world. An in remproceeding
is validated essentially through publication. Publication is
notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to
be established. 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.[22]
Given the above ruling, it becomes unnecessary to rule on whether Marivel
or respondents parents should have been impleaded as parties to the
proceeding. It may not be amiss to mention, however, that during the
hearing on January 31, 2002, the city prosecutor who was acting as
representative of the OSG did not raise any objection to the non-inclusion
of Marivel and Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was
unaware of the proceedings to correct the entries in her childrens birth
certificates, especially since the notices, orders and decision of the trial
court were all sent to the residence [23] she shared with Carlito and the
children.
It is also well to remember that the role of the court in hearing a
petition to correct certain entries in the civil registry is to ascertain the
truth about the facts recorded therein.[24]
With respect to the date of marriage of Carlito and Marivel, their
certificate of marriage[25] shows that indeed they were married on January
21, 2000, not on April 27, 1989.Explaining the error, Carlito declared that
the date April 27, 1989 was supplied by his helper, adding that he was not
married to Marivel at the time his sons were born because his previous
marriage was annulled only in 1999. [26] Given the evidence presented by
respondents, the CA observed that the minors were illegitimate at birth,
hence, the correction would bring about no change at all in the nature of
their filiation.

The documentary evidence supporting the deletion from Carlitos


and his siblings birth certificates of the entry Married opposite the date of
marriage of their parents, moreover, consisted of a certification issued on
November 24, 1973 by St. Joseph (Butuan City) Parish priest Eugene van
Vught stating that Juan Kho and Epifania had been living together as
common law couple since 1935 but have never contracted marriage legally.
[28]

A certification from the office of the city registrar, which was


appended to respondents Amended Petition, likewise stated that it has no
record of marriage between Juan Kho and Epifania.[29] Under the
circumstances, the deletion of the word Married opposite the date of
marriage of parents is warranted.
With respect to the correction in Carlitos birth certificate of his
name from Carlito John to Carlito, the same was properly granted under
Rule 108 of the Rules of Court. As correctly pointed out by the CA, the
cancellation or correction of entries involving changes of name falls under
letter o of the following provision of Section 2 of Rule 108:[30]
Section 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
separation; (e) judgments of annulment 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. (Emphasis and
underscoring supplied)

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With respect to Carlitos mother, it bears noting that she declared


at the witness stand that she was not married to Juan Kho who died in
1959.[27] Again, that testimony was not challenged by the city prosecutor.

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The correction of the mothers citizenship from Chinese to Filipino
as appearing in Carlitos birth record was also proper. Of note is the fact
that during the cross examination by the city prosecutor of Epifania, he did
not deem fit to question her citizenship. Such failure to oppose the
correction prayed for, which certainly was not respondents fault, does not
in any way change the adversarial nature of the proceedings.
Also significant to note is that the birth certificates of Carlitos
siblings uniformly stated the citizenship of Epifania as Filipino. To disallow
the correction in Carlitos birth record of his mothers citizenship would
perpetuate an inconsistency in the natal circumstances of the siblings who
are unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the
correction of the name of Carlitos wife from Maribel to Marivel. The mistake
is clearly clerical or typographical, which is not only visible to the eyes, but
is also obvious to the understanding [34] considering that the name reflected
in the marriage certificate of Carlito and his wife is Marivel.
Apropos is Yu v. Republic[35] which held that changing the
appellants Christian name of Sincio to Sencio amounts merely to the
righting of a clerical error. The change of name from Beatriz Labayo/Beatriz
Labayu to Emperatriz Labayo was also held to be a mere innocuous
alteration, which can be granted through a summary proceeding. [36] The
same ruling holds true with respect to the correction in Carlitos marriage
certificate of his fathers name from John Kho to Juan Kho. Except in said
marriage certificate, the name Juan Kho was uniformly entered in the birth
certificates of Carlito and of his siblings.[37]
WHEREFORE, the Petition is DENIED. The Decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.

Hence, while the jurisdictional requirements of Rule 103 (which


governs petitions for change of name) were not complied with, observance
of the provisions of Rule 108 suffices to effect the correction sought for.
More importantly, Carlitos official transcript of record from
the Urious College in Butuan City,[31] certificate of eligibility from the Civil
Service Commission,[32] and voter registration record[33] satisfactorily show
that he has been known by his first name only. No prejudice is thus likely
to arise from the dropping of the second name.

FIRST DIVISION

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Atty. Arceno

REPUBLIC OF THE PHILIPPINES, Petitioner, v. TRINIDAD R.A.


CAPOTE, Respondent.
DECISION
CORONA, J.:
This Petition for Review on Certiorari 1 seeks to set aside the Court of
Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128,
which affirmed the decision of the Regional Trial Court (RTC), Branch 23 of
San Juan, Southern Leyte dated September 14, 1999 granting a petition
for change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of her
ward from Giovanni N. Gallamaso to Giovanni Nadores on September 9,
1998. In Special Proceeding No. R-481,3 Capote as Giovanni's guardian ad
litem averred:
xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor
GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years old
and both are residents of San Juan, Southern Leyte where they can be
served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N.
Gallamaso by virtue of a court order in Special [Proc.] No. R-459, dated
[August 18, 1998] xxx xxx authorizing her to file in court a petition for
change of name of said minor in accordance with the desire of his mother
[who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San Juan,
Southern Leyte, Philippines for more than fifteen (15) years prior to the
filing of this instant petition, the former since 1970 while the latter since
his birth [in 1982];

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[G.R. NO. 157043 : February 2, 2007]

4. The minor was left under the care of [respondent] since he was yet nine
(9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of
Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,
1982 [,] prior to the effectivity of the New Family Code and as such, his
mother used the surname of the natural father despite the absence of
marriage between them; and [Giovanni] has been known by that name
since birth [as per his birth certificate registered at the Local Civil Register
of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and
up to the present, failed to take up his responsibilities [to him] on matters
of financial, physical, emotional and spiritual concerns. [Giovanni's pleas]
for attention along that line [fell] on deaf ears xxx xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and he
desires to have his surname changed to that of his mother's surname;
8. [Giovanni's] mother might eventually petition [him] to join her in the
United States and [his] continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his] status as natural child;
andcralawlibrary
9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI
NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to effect
the change of name on Giovanni's birth certificate. Having found
respondent's petition sufficient in form and substance, the trial court gave
due course to the petition.5 Publication of the petition in a newspaper of
general circulation in the province of Southern Leyte once a week for three
consecutive weeks was likewise ordered.6 The trial court also directed that
the local civil registrar be notified and that the Office of the Solicitor
General (OSG) be sent a copy of the petition and order.7

After the reception of evidence, the trial court rendered a decision ordering
the change of name from Giovanni N. Gallamaso to Giovanni Nadores. 8
From this decision, petitioner Republic of the Philippines, through the OSG,
filed an appeal with a lone assignment of error: the court a quo erred in
granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as
required, the CA affirmed the RTC decision ordering the change of name. 9
In this petition, the Republic contends that the CA erred in affirming the
trial court's decision which granted the petition for change of name despite
the non-joinder of indispensable parties.10 Petitioner cites Republic of the
Philippines v. Labrador11 and claims that the purported parents and all
other persons who may be adversely affected by the child's change of
name should have been made respondents to make the proceeding
adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization which
serves to distinguish him from all others; this symbol is his
name."13 Understandably, therefore, no person can change his name or
surname without judicial authority.14 This is a reasonable requirement for
those seeking such change because a person's name necessarily affects his
identity, interests and interactions. The State must be involved in the
process and decision to change the name of any of its citizens.
The Rules of Court provides the requirements and procedure for change of
name. Here, the appropriate remedy is covered by Rule 103,15 a separate
and distinct proceeding from Rule 108 on mere cancellation and correction
of entries in the civil registry (usually dealing only with innocuous or
clerical errors thereon).16

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Since there was no opposition to the petition, respondent moved for leave
of court to present her evidence ex parte before a court-appointed
commissioner. The OSG, acting through the Provincial Prosecutor, did not
object; hence, the lower court granted the motion.

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The issue of non-joinder of alleged indispensable parties in the action
before the court a quo is intertwined with the nature of the proceedings
there. The point is whether the proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case
since the reason for their conduct is expediency. This, according to
petitioner, is not sufficient to deal with substantial or contentious issues
allegedly resulting from a change of name, meaning, legitimacy as well as
successional rights.17 Such issues are ventilated only in adversarial
proceedings wherein all interested parties are impleaded and due process
is observed.18
When Giovanni was born in 1982 (prior to the enactment and effectivity of
the Family Code of the Philippines),19 the pertinent provision of the Civil
Code then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally use
the surname of the father. If recognized by only one of the parents, a
natural child shall employ the surname of the recognizing parent.
(emphasis ours)
Based on this provision, Giovanni should have carried his mother's
surname from birth. The records do not reveal any act or intention on the
part of Giovanni's putative father to actually recognize him. Meanwhile,
according to the Family Code which repealed, among others, Article 366 of
the Civil Code:
Art. 176. Illegitimate children shall use the surname and shall be
under the parental authorityof their mother, and shall be entitled to
support in conformity with this Code. xxx xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of Name and/or
Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan
Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. The Family Code
gives legitimate children the right to bear the surnames of the father and
the mother, while illegitimate children shall use the surname of their

Applying these laws, an illegitimate child whose filiation is not


recognized by the father bears only a given name and his mother'
surname, and does not have a middle name.The name of the
unrecognized illegitimate child therefore identifies him as such. It is
only when the illegitimate child is legitimated by the subsequent marriage
of his parents or acknowledged by the father in a public document or
private handwritten instrument that he bears both his mother's surname as
his middle name and his father's surname as his surname, reflecting his
status as a legitimated child or an acknowledged child.rbl
r l l lbrr
21

The foregoing discussion establishes the significant connection of a


person's name to his identity, his status in relation to his parents and his
successional rights as a legitimate or illegitimate child. For sure, these
matters should not be taken lightly as to deprive those who may, in any
way, be affected by the right to present evidence in favor of or against
such change.
The law and facts obtaining here favor Giovanni's petition. Giovanni availed
of the proper remedy, a petition for change of name under Rule 103 of the
Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the
evidence presented during the hearing of Giovanni's petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is entitled to
change his name as he was never recognized by his father while his mother
has always recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also to his best
interest as it will facilitate his mother's intended petition to have him join
her in the United States. This Court will not stand in the way of the
reunification of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner 22 in support of
its position deal with cancellation or correction of entries in the civil
registry, a proceeding separate and distinct from the special proceedings
for change of name. Those cases deal with the application and

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mother, unless their father recognizes their filiation, in which case they
may bear the father's surname.

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Atty. Arceno
interpretation of Rule 108 of the Rules of Court while this case was
correctly filed under Rule 103. Thus, the cases cited by petitioner are
irrelevant and have no bearing on respondent's case. While the OSG is
correct in its stance that the proceedings for change of name should be
adversarial, the OSG cannot void the proceedings in the trial court on
account of its own failure to participate therein. As the CA correctly ruled:
The OSG is correct in stating that a petition for change of name must be
heard in an adversarial proceeding. Unlike petitions for the cancellation or
correction of clerical errors in entries in the civil registry under Rule 108 of
the Rules of Court, a petition for change of name under Rule 103 cannot be
decided through a summary proceeding. There is no doubt that this
petition does not fall under Rule 108 for it is not alleged that the entry in
the civil registry suffers from clerical or typographical errors. The relief
sought clearly goes beyond correcting erroneous entries in the civil
registry, although by granting the petition, the result is the same in that a
corresponding change in the entry is also required to reflect the change in
name. In this regard, [appellee] Capote complied with the
requirement for an adversarial proceeding by posting in a
newspaper of general circulation notice of the filing of the petition.
The lower court also furnished the OSG a copy thereof. Despite the
notice, no one came forward to oppose the petition including the
OSG. The fact that no one opposed the petition did not deprive the
court of its jurisdiction to hear the same nor does it make the
proceeding less adversarial in nature.The lower court is still expected
to exercise its judgment to determine whether the petition is meritorious or
not and not merely accept as true the arguments propounded. Considering
that the OSG neither opposed the petition nor 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 not adversarial
enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief has given legal
warning to the other party and afforded the latter an opportunity to contest
it.24 Respondent gave notice of the petition through publication as required
by the rules.25 With this, all interested parties were deemed notified and
the whole world considered bound by the judgment therein. In addition,
the trial court gave due notice to the OSG by serving a copy of the petition
on it. Thus, all the requirements to make a proceeding adversarial were
satisfied when all interested parties, including petitioner as represented by
the OSG, were afforded the opportunity to contest the petition.

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WHEREFORE, the petition is hereby DENIED and the January 13, 2003
decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.

SPEC PRO CASES Until the End


Atty. Arceno
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,
represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of
entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to
drop his middle name and have his registered name changed from Julian
Lin Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB and
raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to
parents Anna Lisa Wang and Sing-Foe Wang who were then not yet
married to each other. When his parents subsequently got married on
September 22, 1998, ...they executed a deed of legitimation of their son so
that the child's name was changed from Julian Lin Carulasan to Julian Lin
Carulasan Wang'.

SECOND DIVISION
[G.R. NO. 159966. March 30, 2005]
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF
JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG,
to be amended/corrected as JULIAN LIN WANG, JULIAN LIN
WANG, duly represented by his mother ANNA LISA
WANG, Petitioners, v. CEBU CITY CIVIL REGISTRAR, duly
represented by the Registrar OSCAR B. MOLO, Respondents.
DECISION
TINGA, J.:

The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a
long time because they will let him study there together with his sister
named Wang Mei Jasmine who was born in Singapore'. Since in Singapore
middle names or the maiden surname of the mother are not carried in a
person's name, they anticipate that Julian Lin Carulasan Wang will be
discriminated against because of his current registered name which carries
a middle name. Julian and his sister might also be asking whether they are
brother and sister since they have different surnames. Carulasan sounds
funny in Singapore's Mandarin language since they do not have the letter
"R" but if there is, they pronounce it as "L." It is for these reasons that the
name of Julian Lin Carulasan Wang is requested to be changed to Julian Lin
Wang.1
On 30 April 2003, the RTC rendered a decision denying the petition. 2 The
trial court found that the reason given for the change of name sought in
the petition that is, that petitioner Julian may be discriminated against
when studies in Singapore because of his middle name did not fall within

Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.4 The trial court maintained that
the Singaporean practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child who intends to
study there. The dropping of the middle name would be tantamount to
giving due recognition to or application of the laws of Singapore instead of
Philippine law which is controlling. That the change of name would not
prejudice public interest or would not be for a fraudulent purpose would not
suffice to grant the petition if the reason for the change of name is itself
not reasonable.5
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)6 arguing that the trial court has decided a question of substance not
theretofore determined by the Court, that is: whether or not dropping the
middle name of a minor child is contrary to Article 1747 of the Family Code.
Petitioner contends that "[W]ith globalization and mixed marriages, there is
a need for the Supreme Court to rule on the matter of dropping of family
name for a child to adjust to his new environment, for consistency and
harmony among siblings, taking into consideration the "best interest of the
child."8 It is argued that convenience of the child is a valid reason for
changing the name as long as it will not prejudice the State and others.
Petitioner points out that the middle name "Carulasan" will cause him
undue embarrassment and the difficulty in writing or pronouncing it will be
an obstacle to his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court to have
denied the petition for change of name until he had reached the age of
majority for him to decide the name to use, contrary to previous
cases9 decided by this Court that allowed a minor to petition for change of
name.10

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the grounds recognized by law. The trial court ruled that the change sought
is merely for the convenience of the child. Since the State has an interest
in the name of a person, names cannot be changed to suit the convenience
of the bearers. Under Article 174 of the Family Code, legitimate children
have the right to bear the surnames of the father and the mother, and
there is no reason why this right should now be taken from petitioner
Julian, considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide whether
he will change his name by dropping his middle name.3

10

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Atty. Arceno
The Court required the Office of the Solicitor General (OSG) to comment on
the petition. The OSG filed its Comment11 positing that the trial court
correctly denied the petition for change of name. The OSG argues that
under Article 174 of the Family Code, legitimate children have the right to
bear the surnames of their father and mother, and such right cannot be
denied by the mere expedient of dropping the same. According to the OSG,
there is also no showing that the dropping of the middle name "Carulasan"
is in the best interest of petitioner, since mere convenience is not sufficient
to support a petition for change of name and/or cancellation of entry.12 The
OSG also adds that the petitioner has not shown any compelling reason to
justify the change of name or the dropping of the middle name, for that
matter. Petitioner's allegation that the continued use of the middle name
may result in confusion and difficulty is allegedly more imaginary than real.
The OSG reiterates its argument raised before the trial court that the
dropping of the child's middle name could only trigger much deeper
inquiries regarding the true parentage of petitioner. Hence, while petitioner
Julian has a sister named Jasmine Wei Wang, there is no confusion since
both use the surname of their father, Wang. Even assuming that it is
customary in Singapore to drop the middle name, it has also not been
shown that the use of such middle name is actually proscribed by
Singaporean law.13
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right, so
that before a person can be authorized to change his name given him
either in his certificate of birth or civil registry, he must show proper or
reasonable cause, or any compelling reason which may justify such
change. Otherwise, the request should be denied.14
The touchstone for the grant of a change of name is that there be 'proper
and reasonable cause' for which the change is sought.15 To justify a request
for change of name, petitioner must show not only some proper or
compelling reason therefore but also that he will be prejudiced by the use
of his true and official name. Among the grounds for change of name which
have been held valid are: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a
legal consequence, as in legitimation; (c) when the change will avoid
confusion; (d) when one has continuously used and been known since

In granting or denying petitions for change of name, the question of proper


and reasonable cause is left to the sound discretion of the court. The
evidence presented need only be satisfactory to the court and not all the
best evidence available. 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 in support thereof, mindful of
the consequent results in the event of its grant and with the sole
prerogative for making such determination being lodged in the courts. 17
The petition before us is unlike other petitions for change of name, as it
does not simply seek to change the name of the minor petitioner and adopt
another, but instead seeks to drop the middle name altogether. Decided
cases in this jurisdiction involving petitions for change of name usually deal
with requests for change of surname. There are only a handful of cases
involving requests for change of the given name18 and none on requests for
changing or dropping of the middle name. Does the law allow one to drop
the middle name from his registered name? We have to answer in the
negative.
A discussion on the legal significance of a person's name is relevant at this
point. We quote, thus:
'For all practical and legal purposes, a man's name is the designation by
which he is known and called in the community in which he lives and is
best known. It is defined as the word or combination of words by which a
person is distinguished from other individuals and, also, as the label or
appellation which he bears for the convenience of the world at large
addressing him, or in speaking of or dealing with him. Names are used
merely as one method of indicating the identity of persons; they are
descriptive of persons for identification, since, the identity is the essential
thing and it has frequently been held that, when identity is certain, a
variance in, or misspelling of, the name is immaterial.

Page

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.16

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Atty. Arceno
The names of individuals usually have two parts: the given name or proper
name, and the surname or family name. The given or proper name is that
which is given to the individual at birth or baptism, to distinguish him from
other individuals. The name or family name is that which identifies the
family to which he belongs and is continued from parent to child. The given
name may be freely selected by the parents for the child; but the surname
to which the child is entitled is fixed by law.
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2) It is
obligatory in certain respects, for nobody can be without a name. (3) It is
fixed, unchangeable, or immutable, at least at the start, and may be
changed only for good cause and by judicial proceedings. (4) It is outside
the commerce of man, and, therefore, inalienable and intransmissible by
act inter vivos or mortis causa. (5) It is imprescriptible.19
This citation does not make any reference to middle names, but this does
not mean that middle names have no practical or legal significance. Middle
names serve to identify the maternal lineage or filiation of a person as well
as further distinguish him from others who may have the same given name
and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father.20 The Family Code
gives legitimate children the right to bear the surnames of the father and
the mother,21 while illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which case they
may bear the father's surname.22
Applying these laws, an illegitimate child whose filiation is not recognized
by the father bears only a given name and his mother's surname, and does
not have a middle name. The name of the unrecognized illegitimate child
therefore identifies him as such. It is only when the illegitimate child is
legitimated by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten instrument that he
bears both his mother's surname as his middle name and his father's
surname as his surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.

Petitioner theorizes that it would be for his best interest to drop his middle
name as this would help him to adjust more easily to and integrate himself
into Singaporean society. In support, he citesOshita v.
Republic23 and Calderon v. Republic,24 which, however, are not apropos
both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother,
Buena Bartolome, and a Japanese father, Kishimatsu Oshita, sought to
change her name from Antonina B. Oshita to Antonina Bartolome. The
Court granted her petition based on the following considerations: she had
elected Philippine citizenship upon reaching the age of majority; her other
siblings who had also elected Philippine citizenship have been using their
mother's surname; she was embarrassed to bear a Japanese surname
there still being ill feeling against the Japanese due to the last World War;
and there was no showing that the change of name was motivated by a
fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an
illegitimate minor child acting through her mother who filed the petition in
her behalf, to change her name to Gertudes Josefina Calderon, taking the
surname of her stepfather, Romeo C. Calderon, her mother's husband. The
Court held that a petition for change of name of an infant should be
granted where to do is clearly for the best interest of the child. The Court
took into consideration the opportunity provided for the minor petitioner to
eliminate the stigma of illegitimacy which she would carry if she continued
to use the surname of her illegitimate father. The Court pronounced that
justice dictates that every person be allowed to avail of any opportunity to
improve his social standing as long as doing so he does not cause prejudice
or injury to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,25 in arguing that although Article 174 of
the Family Code gives the legitimate child the right to use the surnames of
the father and the mother, it is not mandatory such that the child could use
only one family name, even the family name of the mother. In Alfon, the

Page

Accordingly, the registration in the civil registry of the birth of such


individuals requires that the middle name be indicated in the certificate.
The registered name of a legitimate, legitimated and recognized illegitimate
child thus contains a given or proper name, a middle name, and a
surname.

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Atty. Arceno
petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella
Alfon, sought to change her name from Maria Estrella Veronica Primitiva
Duterte (her name as registered in the Local Civil Registry) to Estrella S.
Alfon (the name she had been using since childhood, in her school records
and in her voter's registration). The trial court denied her petition but this
Court overturned the denial, ruling that while Article 364 of the Civil Code
states that she, as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use the surname
of herm other to which she is entitled. In addition, the Court found that
there was ample justification to grant her petition, i.e., to avoid confusion.
Weighing petitioner's reason of convenience for the change of his name
against the standards set in the cases he cites to support his contention
would show that his justification is amorphous, to say the least, and could
not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases are
not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the petitioners
were already of age when they filed their petitions for change of name.
Being of age, they are considered to have exercised their discretion and
judgment, fully knowing the effects of their decision to change their
surnames. It can also be unmistakably observed that the reason for the
grant of the petitions for change of name in these two cases was the
presence of reasonable or compelling grounds therefore. The Court,
in Oshita, recognized the tangible animosity most Filipinos had during that
time against the Japanese as a result of World War II, in addition to the
fact of therein petitioner's election of Philippine citizenship. In Alfon, the
Court granted the petition since the petitioner had been known since
childhood by a name different from her registered name and she had not
used her registered name in her school records and voter's registration
records; thus, denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of name filed
by a mother in behalf of her illegitimate minor child. Petitioner cites this
case to buttress his argument that he does not have to reach the age of
majority to petition for change of name. However, it is manifest
in Calderon that the Court, in granting the petition for change of name,
gave paramount consideration to the best interests of the minor petitioner
therein.

Page

In the case at bar, the only reason advanced by petitioner for the dropping
his middle name is convenience. However, how such change of name would
make his integration into Singaporean society easier and convenient is not
clearly established. That the continued use of his middle name would cause
confusion and difficulty does not constitute proper and reasonable cause to
drop it from his registered complete name.

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Atty. Arceno

In addition, petitioner is only a minor. Considering the nebulous foundation


on which his petition for change of name is based, it is best that the matter
of change of his name be left to his judgment and discretion when he
reaches the age of majority.26 As he is of tender age, he may not yet
understand and appreciate the value of the change of his name and
granting of the same at this point may just prejudice him in his rights
under our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SECOND DIVISION
SO ORDERED.

[G.R. No. 118387. October 11, 2001.]


MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE,
HELEN LEE, CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and TIU
CHUAN, Petitioners, v. COURT OF APPEALS and HON. LORENZO B.
VENERACION and HON. JAIME T. HAMOY, in their capacities as
Presiding Judge of Branch 47, Regional Trial Court of Manila and
Branch 130, Regional Trial Court of Kalookan City, respectively and
RITA K. LEE, LEONCIO LEE TEK SHENG in their personal capacities
and ROSA K. LEE-VANDERLEK, MELODY K. LEE-CHIN, LUCIA K. LEE
TEK SHENG, JULIAN K. LEE, HENRY K. LEE, MARTIN K. LEE,
VICTORIANO K. LEE, NATIVIDAD K. LEE-MIGUEL, and THOMAS K.
LEE, represented by RITA K. LEE, Respondents.
DECISION

DE LEON, JR., J.:

This Petition for Review on Certiorari, with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, seeks
the reversal of the Decision 1 of the Court of Appeals dated October 28,
1994 in CA-G.R. SP NO. 31786 2 . The assailed decision of the Court of
Appeals upheld the Orders issued by respondents Judges Hon. Lorenzo B.

This is a story of two (2) sets of children sired by one and the same man
but begotten of two (2) different mothers. One set, the private respondents
herein, are the children of Lee Tek Sheng and his lawful wife, Keh Shiok
Cheng. The other set, the petitioners herein, are allegedly children of Lee
Tek Sheng and his concubine, Tiu Chuan.chanrob1es virtua1 1aw 1ibrary
Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K. LeeChin, Lucia K. Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee, Martin K.
Lee, Victoriano K. Lee, Natividad K. Lee-Miguel and Thomas K. Lee
(hereinafter referred to as private respondents) filed two (2) separate
petitions for the cancellation and/or correction of entries in the records of
birth of Marcelo Lee, Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee,
Catalino K. Lee, Eusebio Lee, and Emma Lee (hereinafter referred to as
petitioners). On December 2, 1992, the petition against all petitioners, with
the exception of Emma Lee, was filed before the Regional Trial Court (RTC)
of Manila and docketed as SP. PROC. NO. 92-63692 5 and later assigned to
Branch 47 presided over by respondent Judge Lorenzo B. Veneracion. On
February 3, 1993, a similar petition against Emma Lee was filed before the
RTC of Kalookan and docketed as SP. PROC. NO. C-1674 6 and assigned to
the sala of respondent Judge Jaime T. Hamoy of Branch 130.
Both petitions sought to cancel and/or correct the false and erroneous
entries in all pertinent records of birth of petitioners by deleting and/or
canceling therein the name of "Keh Shiok Cheng" as their mother, and by
substituting the same with the name "Tiu Chuan", who is allegedly the
petitioners true birth mother.
The private respondents alleged in their petitions before the trial courts
that they are the legitimate children of spouses Lee Tek Sheng and Keh
Shiok Cheng who were legally married in China sometime in 1931. Except
for Rita K. Lee who was born and raised in China, private respondents
herein were all born and raised in the Philippines.chanrob1es virtua1 1aw
1ibrary
Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in the
Philippines from China of a young girl named Tiu Chuan. She was
introduced by Lee Tek Sheng to his family as their new housemaid but far
from becoming their housemaid, Tiu Chuan immediately became Lee Tek
Shengs mistress. As a result of their illicit relations, Tiu Chuan gave birth
to petitioners.
Unknown to Keh Shiok Cheng and private respondents, every time Tiu
Chuan gave birth to each of the petitioners, their common father, Lee Tek

Page

Veneracion 3 and Hon. Jaime T. Hamoy 4 taking cognizance of two (2)


separate petitions filed by private respondents before their respective salas
for the cancellation and/or correction of entries in the records of birth of
petitioners pursuant to Rule 108 of the Revised Rules of Court.

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Atty. Arceno
Sheng, falsified the entries in the records of birth of petitioners by making
it appear that petitioners mother was Keh Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who gave maternal care and
guidance to the petitioners. They all lived in the same compound Keh Shiok
Cheng and private respondents were residing in. All was well, therefore,
before private respondents discovery of the dishonesty and fraud
perpetrated by their father, Lee Tek Sheng.
The tides turned after Keh Shiok Chengs demise on May 9, 1989. Lee Tek
Sheng insisted that the names of all his children, including those of
petitioners, be included in the obituary notice of Keh Shiok Chengs death
that was to be published in the newspapers. It was this seemingly irrational
act that piqued private respondents curiosity, if not suspicion. 7chanrob1es
virtua1 1aw 1ibrary
Acting on their suspicion, the private respondents requested the National
Bureau of Investigation (NBI) to conduct an investigation into the matter.
After investigation and verification of all pertinent records, the NBI
prepared a report that pointed out, among others, the false entries in the
records of birth of petitioners, specifically the following.
1. As per Birth Certificate MARCELO LEE (Annex F-1), their father, LEE TEK
SHENG made it appear that he is the 12th child of Mrs. KEH SHIOK CHENG,
but upon investigation, it was found out that her Hospital Records, the
mother who gave birth to MARCELO LEE had given birth for the 1st time,
as per diagnosis of the attending physician, Dr. R. LIM, it was "GRAVIDA I,
PARA I" which means "first pregnancy, first live birth delivery" (refer to:
MASTER PATIENTS RECORDS SUMMARY Annex I). Also, the age of the
mother when she gave birth to MARCELO LEE as per record was only 17
years old, when in fact and in truth, KEH SHIOK CHENGs age was then
already 38 years old. The address used by their father in the Master Patient
record was also the same as the Birth Certificate of MARCELO LEE (2425
Rizal Avenue, Manila). The name of MARCELO LEE was recorded under
Hospital No. 221768, page 73.chanrob1es virtua1 1aw 1ibrary
2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made to
appear that ALBINA LEE was the third child which is without any rationality,
because the 3rd child of KEH SHIOK CHENG is MELODY LEE TEK SHENG
(Annex E-2). Note also, that the age of the mother as per Hospital Records
jump (sic) from 17 to 22 years old, but the only age gap of MARCELO LEE
and ALBINA LEE is only 2 years.
3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was made to
appear that MARIANO LEE was the 5th child, but the truth is, KEH SHIOK
CHENGs 5th child is LUCIA LEE TEK SHENG (Annex E-4). As per Hospital
Record, the age of KEH SHIOK CHENG was only 23 years old, while the
actual age of KEH SHIOK CHENG, was then already 40 years old.

Based on the birth record of MARIANO LEE in 1953, the recorded age of
KEH SHIOK CHENG was 23 years old. Two years after PABLO LEE was born
in 1955, the difference is only 2 years, so it is impossible for PABLO LEE to
be the 16th child of KEH SHIOK CHENG, as it will only mean that she have
(sic) given birth at that impossible age.
5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made to
appear that she is the 6th child of KEH SHIOK CHENG, but as per Birth
Certificate of JULIAN LEE (Annex E-5), he is the true 6th child of KEH
SHIOK CHENG. Per Hospital Record, KEH SHIOK CHENG is only 28 years
old, while KEH SHIOK CHENGS true age at that time was 45 years
old.chanrob1es virtua1 1aw 1ibrary
6. EMMA LEE has no record in the hospital because, as per complainants
allegation, she was born at their house, and was later admitted at Chinese
General Hospital.
7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was made to
appear that he is the 14th child of KEH SHIOK CHENG, and that the age of
KEH SHIOK CHENG a.k.a. Mrs. LEE TEK SHENG, jumped from 28 years old
at the birth of HELEN LEE on 23 August 1957 to 38 years old at the birth of
CATALINO LEE on 22 April 1959.
8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of KEH
SHIOK CHENG, the age of the mother is 48 years old. However, as per
Hospital Record, the age of Mrs. LEE TEK SHENG, then was only 39 years
old. Considering the fact, that at the time of MARCELOs birth on 11 May
1950. KEH SHIOK CHENGs age is 38 years old and at the time of
EUSEBIOs birth, she is already 48 years old, it is already impossible that
she could have given birth to 8 children in a span of only 10 years at her
age. As per diagnosis, the alleged mother registered on EUSEBIOs birth
indicate that she had undergone CEASARIAN SECTION, which Dr. RITA K.
LEE said is not true.

Page

4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made to


appear that PABLO LEE was the 16th child of KEH SHIOK CHENG which is
impossible to be true, considering the fact that KEH SHIOK CHENG have
stopped conceiving after her 11th child. Also as per Hospital Record, the
age of the mother was omitted in the records. If PABLO LEE is the 16th
child of KEH SHIOK CHENG, it would only mean that she have (sic) given
birth to her first born child at the age of 8 to 9 years, which is impossible
to be true.

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Atty. Arceno
very obvious that the mother of these 8 children is certainly not KEH
SHIOK CHENG, but a much younger woman, most probably TIU CHUAN.
Upon further evaluation and analysis by these Agents, LEE TEK SHENG, is
in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform
with his grand design of making his 8 children as their own legitimate
children, consequently elevating the status of his 2nd family and secure
their future. The doctor lamented that this complaint would not have been
necessary had not the father and his 2nd family kept on insisting that the 8
children are the legitimate children of KEH SHIOK CHENG. 8
It was this report that prompted private respondents to file the petitions for
cancellation and/or correction of entries in petitioners records of birth with
the lower courts.chanrob1es virtua1 1aw 1ibrary
The petitioners filed a motion to dismiss both petitions SP. PROC. NO.
92-63692 and SP. PROC. NO. C-1674 on the grounds that: (1) resort to
Rule 108 is improper where the ultimate objective is to assail the
legitimacy and filiation of petitioners; (2) the petition, which is essentially
an action to impugn legitimacy was filed prematurely; and (3) the action to
impugn has already prescribed. 9
On February 12, 1993, respondent Judge Veneracion denied the motion to
dismiss SP. PROC. NO. 92-63692 for failure of the herein petitioners
(defendants in the lower court) to appear at the hearing of the said motion.
10 Then on February 17, 1993, Judge Veneracion issued an Order, the
pertinent portion of which, reads as follows:chanrob1es virtual 1aw library
Finding the petition to be sufficient in form and substance, the same is
hereby given due course. Let this petition be set for hearing on March 29,
1993 at 8:30 in the morning before this Court located at the 5th Floor of
the City Hall of Manila.
Notice is hereby given that anyone who has any objection to the petition
should file on or before the date of hearing his opposition thereto with a
statement of the grounds therefor.
Let a copy of this Order be published, at the expense of the petitioners,
once a week for three (3) consecutive weeks in a newspaper of general
circulation in the Philippines.
Let copies of the verified petition with its annexes and of this Order be
served upon the Office of the Solicitor General, and the respondents, and
be posted on the Bulletin Board of this Court, also at the expense of the
petitioners.

In view of the foregoing facts, the NBI concluded that:chanrob1es virtual


1aw library

SO ORDERED. 11

10. In conclusion, as per Chinese General Hospital Patients Records, it is

On the other hand, respondent Judge Hamoy issued an Order dated April

It appearing from the documentary evidence presented and marked by the


petitioners that the Order of the Court setting the case for hearing was
published in "Media Update" once a week for three (3) consecutive weeks,
that is on February 20, 27, and March 6, 1993 as evidenced by the
Affidavit of Publication and the clippings attached to the affidavit, and by
the copies of the "Media Update" published on the aforementioned dates;
further, copy of the order setting the case for hearing together with copy of
the petition had been served upon the Solicitor General, City Prosecutor of
Kalookan City, Civil Registrar of Kalookan City and the private respondents,
the Court holds that the petitioners have complied with the jurisdictional
requirements for the Court to take cognizance of this case.chanrob1es
virtua1 1aw 1ibrary
x

SO ORDERED. 12
Petitioners attempts at seeking a reconsideration of the above-mentioned
orders of Judge Veneracion and Judge Hamoy failed, hence their recourse
to the Court of Appeals via a Petition forCertiorari and Prohibition with
Application for the Issuance of a Temporary Restraining Order and/or Writ
of Preliminary Injunction. Petitioners averred that respondents judges had
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed orders allowing the petitions for the
cancellation and/or correction of entries in petitioners records of birth to
prosper in the lower courts.
In their petition before the Court of Appeals, the petitioners raised the
following arguments: (1) Rule 108 is inappropriate for impugning the
legitimacy and filiation of children; (2) Respondents judges are sanctioning
a collateral attack against the filiation and legitimacy of children; (3)
Respondents judges are allowing private respondents to impugn the
legitimacy and filiation of their siblings despite the fact that their
undisputed common father is still alive; (4) Respondents judges are
entertaining petitions which are already time-barred; and (5) The petitions
below are part of a forum-shopping spree. 13
Finding no merit in petitioners arguments, the Court of Appeals dismissed
their petition in a Decision dated October 28, 1994. 14 Petitioners Motion
for Reconsideration of the said decision was also denied by the Court of
Appeals in a Resolution dated December 19, 1994. 15
Hence, this petition.

Page

15, 1993 taking cognizance of SP. PROC. No. C-1674, to wit:chanrob1es


virtual 1aw library

16

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Atty. Arceno
1. Petitioners contend that resort to Rule 108 of the Revised Rules of Court
is improper since private respondents seek to have the entry for the name
of petitioners mother changed from "Keh Shiok Cheng" to "Tiu Chuan" who
is a completely different person. What private respondents therefore seek
is not merely a correction in name but a declaration that petitioners were
not born of Lee Tek Shengs legitimate wife, Keh Shiok Cheng, but of his
mistress, Tiu Chuan, in effect a "bastardization of petitioners." 16
Petitioners thus label private respondents suits before the lower courts as
a collateral attack against their legitimacy in the guise of a Rule 108
proceeding.
Debunking petitioners above contention, the Court of Appeals
observed:chanrob1es virtual 1aw library
x

As correctly pointed out by the private respondents in their comment . . .,


the proceedings are simply aimed at establishing a particular fact, status
and/or right. Stated differently, the thrust of said proceedings was to
establish the factual truth regarding the occurrence of certain events which
created or affected the status of persons and/or otherwise deprived said
persons of rights. 17
x

It is precisely the province of a special proceeding such as the one outlined


under Rule 108 of the Revised Rules of Court to establish the status or
right of a party, or a particular fact. 18 The petitions filed by private
respondents for the correction of entries in the petitioners records of birth
were intended to establish that for physical and/or biological reasons it was
impossible for Keh Shiok Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary to petitioners
contention that the petitions before the lower courts were actually actions
to impugn legitimacy, the prayer therein is not to declare that petitioners
are illegitimate children of Keh Shiok Cheng, but to establish that the
former are not the latters children. There is nothing to impugn as there is
no blood relation at all between Keh Shiok Cheng and petitioners.
19chanrob1es virtua1 1aw 1ibrary
Further sanctioning private respondents resort to Rule 108, the Court of
Appeals adverted to our ruling in the leading case of Republic v. Valencia
20 where we affirmed the decision of Branch XI of the then Court of First
Instance (CFI) of Cebu City ordering the correction in the nationality and
civil status of petitioners minor children as stated in their records of birth

"Provided the trial court has conducted proceedings where all relevant facts
have been fully and properly developed, where opposing counsel have been
given opportunity to demolish the opposite partys case, and where the
evidence has been thoroughly weighed and considered, the suit or
proceeding is appropriate.
The pertinent sections of rule 108 provide:chanrob1es virtual 1aw library
SECTION 3. Parties. When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the
proceeding.
SECTION 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 in a
week for three (3) consecutive weeks in a newspaper of general circulation
in the province.
SECTION 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.
"Thus, the persons who must be made parties to a proceeding concerning
the cancellation or correction of an entry in the civil register are (1) the
civil registrar, and (2) all persons who have or claim any interest which
would be affected thereby. Upon the filing of the petition, it becomes the
duty of the court to (1) issue an order fixing the time and place for the
hearing of the petition, and (2) cause the order for hearing to be published
once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. The following are likewise entitled to oppose the
petition: (1) the civil registrar, and (2) any person having or claiming
any interest under the entry whose cancellation or correction is sought.

Page

from "Chinese" to "Filipino", and "legitimate" to "illegitimate", respectively.


Although recognizing that the changes or corrections sought to be effected
are not mere clerical errors of a harmless or innocuous nature, this Court,
sitting en banc, held therein that even substantial errors in a civil register
may be corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate adversary
proceeding. 21 In the said case, we also laid down the rule that a
proceeding for correction and/or cancellation of entries in the civil register
under Rule 108 ceases to be summary in nature and takes on the
characteristics of an appropriate adversary proceeding when all the
procedural requirements under Rule 108 are complied with. Thus we
held:jgc:chanrobles.com.ph

17

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Atty. Arceno
"If all these procedural requirements have been followed, a petition for
correction and/or cancellation of entries in the record of birth even if filed
and conducted under Rule 108 of the Revised Rules of Court can no longer
be described as "summary." There can be no doubt that when an
opposition to the petition is filed either by the Civil Registrar or any person
having or claiming any interest in the entries sought to be cancelled and/or
corrected and the opposition is actively prosecuted, the proceedings
thereon become adversary proceedings." 22 (Emphasis supplied.)
To the mind of the Court of Appeals, the proceedings taken in both
petitions for cancellation and/or correction of entries in the records of birth
of petitioners in the lower courts are appropriate adversary proceedings.
We agree. As correctly observed by the Court of Appeals:chanrob1es
virtual 1aw library
In the instant case, a petition for cancellation and/or correction of entries
of birth was filed by private respondents and pursuant to the order of the
RTC-Manila, dated February 17, 1993, a copy of the order setting the case
for hearing was ordered published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the Philippines. In the RTCKalookan, there was an actual publication of the order setting the case for
hearing in "Media Update" once a week for three (3) consecutive weeks. In
both cases notices of the orders were ordered served upon the Solicitor
General, the Civil Registrars of Manila and Kalookan and upon the
petitioners herein. Both orders set the case for hearing and directed the
Civil Registrars and the other respondents in the case below to file their
oppositions to the said petitions. A motion to dismiss was consequently
filed by herein petitioners Marcelo, Mariano, Pablo, Helen, Catalino and
Eusebio, all surnamed Lee, and Albina Lee-Young in the RTC-Manila, and an
opposition was filed by Emma Lee in the RTC-Kalookan.chanrob1es virtua1
1aw 1ibrary
In view of the foregoing, we hold that the petitions filed by the private
respondents in the courts below by way of a special proceeding cancellation
and/or correction of entries in the civil registers with the requisite parties,
notices and publications could very well be regarded as that proper suit or
appropriate action. 23 (Emphasis supplied.)
The petitioners assert, however, that making the proceedings adversarial
does not give trial courts the license to go beyond the ambit of Rule 108
which is limited to those corrections contemplated by Article 412 of the
New Civil Code or mere clerical errors of a harmless or innocuous nature.
24 The petitioners point to the case of Labayo-Rowe v. Republic, 25 which
is of a later date than Republic v. Valencia, 26 where this Court reverted to
the doctrine laid down in earlier cases, 27 starting with Ty Kong Tin v.
Republic, 28 prohibiting the extension of the application of Rule 108

At the outset, it should be pointed out that in the cited case of LabayoRowe v. Republic, 30 the reason we declared null and void the portion of
the lower courts order directing the change of Labayo-Rowes civil status
and the filiation of one of her children as appearing in the latters record of
birth, is not because Rule 108 was inappropriate to effect such changes,
but because Labayo-Rowes petition before the lower court failed to
implead all indispensable parties to the case.
We explained in this wise:jgc:chanrobles.com.ph
". . . An appropriate proceeding is required wherein all the indispensable
parties should be made parties to the case as required under Section 3,
Rule 108 of the Revised Rules of Court.
"In the case before Us, since only the Office of the Solicitor General was
notified through the Office of the Provincial Fiscal, representing the
Republic of the Philippines as the only respondent, the proceedings taken,
which is summary in nature, is short of what is required in cases where
substantial alterations are sought. Aside from the Office of the Solicitor
General, all other indispensable parties should have been made
respondents. 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 . . . .
x

"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

Page

beyond innocuous or harmless changes or corrections. Petitioners contend


that as held in Go, Et. Al. v. Civil Registrar, 29 allowing substantial changes
under Rule 108 would render the said rule unconstitutional as the same
would have the effect of increasing or modifying substantive rights.

18

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Atty. Arceno
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." 31 (Emphasis
supplied).
Far from petitioners theory, this Courts ruling in Labayo-Rowe v. Republic
32 does not exclude recourse to Rule 108 of the Revised Rules of Court to
effect substantial changes or corrections in entries of the civil register. The
only requisite is that the proceedings under Rule 108 be an appropriate
adversary proceeding as contra-distinguished from a summary
proceeding.chanrob1es virtua1 1aw 1ibrary
Thus:jgc:chanrobles.com.ph
"If the purpose of the petition [for cancellation and/or correction of entries
in the civil register] 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 . . ." 33 (Emphasis supplied.)
It is true that in special proceedings formal pleadings and a hearing may be
dispensed with, and the remedy granted upon mere application or motion.
But this is not always the case, as when the statute expressly provides. 34
Hence, a special proceeding is not always summary. One only has to take a
look at the procedure outlined in Rule 108 to see that what is contemplated
therein is not a summary proceeding per se. Rule 108 requires publication
of the petition three (3) times, i.e., once a week for three (3) consecutive
weeks (Sec.4). The Rule also requires inclusion as parties of all persons
who claim any interest which would be affected by the cancellation or
correction (Sec. 3). The civil registrar and any person in interest are also
required to file their opposition, if any, within fifteen (15) days from notice
of the petition, or from the last date of publication of such notice (Sec. 5).
Last, but not the least, although the court may make orders expediting the
proceedings, it is after hearing that the court shall either dismiss the
petition or issue an order granting the same (Sec. 7).
Thus, we find no reason to depart from our ruling in Republic v. Valencia,

It must be conceded, however, that even after Republic v. Valencia 36


there continues to be a seesawing of opinion on the issue of whether or not
substantial corrections in entries of the civil register may be effected by
means of Rule 108 in relation to Article 412 of the New Civil Code. The
more recent cases of Leonor v. Court of Appeals 37 and Republic v.
Labrador 38 do seem to signal a reversion to the Ty Kong Tin ruling which
delimited the scope of application of Article 412 to clerical or typographical
errors in entries of the civil register.
In Republic v. Labrador, the Court held that Rule 108 cannot be used to
modify, alter or increase substantive rights, such as those involving the
legitimacy or illegitimacy of a child. We ruled thus:jgc:chanrobles.com.ph
"This issue has been resolved in Leonor v. Court of Appeals. In that case,
Respondent Mauricio Leonor filed a petition before the trial court seeking
the cancellation of the registration of his marriage to Petitioner Virginia
Leonor. He alleged, among others, the nullity of their legal vows arising
from the "non-observance of the legal requirements for a valid marriage."
In debunking the trial courts ruling granting such petition, the Court held
as follows:chanrob1es virtual 1aw library
On its face, the Rule would appear to authorize the cancellation of any
entry regarding "marriages" in the civil registry for any reason by the mere
filing of a verified petition for the purpose. However, it is not as simple as it
looks. Doctrinally, the only errors that can be canceled or corrected under
this Rule are typographical or clerical errors, not material or substantial
ones like the validity or nullity of a marriage. A clerical error is one which is
visible to the eyes or obvious to the understanding; error made by a clerk
or a transcriber; a mistake in copying or writing (Black v. Republic, L10869, Nov. 28, 1958); or some harmless and innocuous change such as a
correction of name that is clearly misspelled or of a misstatement of the
occupation of the parent (Ansalada v. Republic, L-10226, Feb. 14, 1958).
Where the effect of a correction in a civil registry will change the civil
status of petitioner and her children from legitimate to illegitimate, the
same cannot be granted except only in an adversarial . . . .
Clearly and unequivocally, the summary procedure under Rule 108, and for
that matter under Article 412 of the Civil Code cannot be used by Mauricio
to change his and Virginias civil status from married to single and of their
three children from legitimate to illegitimate. . . .
"Thus, where the effect of a correction of an entry in a civil registry will
change the status of a person from "legitimate to "illegitimate," as in Sarah

Page

35 that Rule 108, when all the procedural requirements thereunder are
followed, is the appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.

19

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Atty. Arceno
Zitas case, the same cannot be granted in summary proceedings." 39
It is, therefore, high time that we put an end to the confusion sown by
pronouncements seemingly in conflict with each other, and perhaps, in the
process, stem the continuing influx of cases raising the same substantial
issue.
The basis for the pronouncement that extending the scope of Rule 108 to
substantial corrections is unconstitutional is embodied in the early case of
Ty Kong Tin v. Republic 40 that first delineated the extent or scope of the
matters that may be changed or corrected pursuant to Article 412 of the
New Civil Code. The Supreme Court ruled in this case
that:jgc:chanrobles.com.ph
". . . . After a mature deliberation, the opinion was reached that what was
contemplated therein are mere corrections of mistakes that are clerical in
nature and not those that may affect the civil status or the nationality or
citizenship of the persons involved. If the purpose of the petition is merely
a clerical error then the court may issue an order in order that the error or
mistake may be corrected. If it refers to a substantial change, which affects
the status or citizenship of a party, the matter should be threshed out in a
proper action depending upon the nature of the issue involved. Such action
can be found at random in our substantive and remedial laws the
implementation of which will naturally depend upon the factors and
circumstances that might arise affecting the interested parties. This opinion
is predicated upon the theory that the procedure contemplated in article
412 is summary in nature which cannot cover cases involving controversial
issues." 41
This doctrine was taken a step further in the case of Chua Wee, Et. Al. v.
Republic 42 where the Court said that:jgc:chanrobles.com.ph
"From the time the New Civil Code took effect on August 30, 1950 until the
promulgation of the Revised Rules of Court on January 1, 1964, there was
no law nor rule of court prescribing the procedure to secure judicial
authorization to effect the desired innocuous rectifications or alterations in
the civil register pursuant to Article 412 of the New Civil Code. Rule 108 of
the Revised Rules of Court now provides for such a procedure which should
be limited solely to the implementation of Article 412, the substantive law
on the matter of correcting entries in the civil register. 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 of Art. VIII of
the Constitution, which directs that such rules of court shall not diminish
or 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, said Rule 108 would

We venture to say now that the above pronouncements proceed from a


wrong premise, that is, the interpretation that Article 412 pertains only to
clerical errors of a harmless or innocuous nature, effectively excluding from
its domain, and the scope of its implementing rule, substantial changes
that may affect nationality, status, filiation and the like. Why the limited
scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily
answer this question except to opine that the procedure contemplated in
Article 412 is summary in nature and cannot, therefore, cover cases
involving controversial issues. Subsequent cases have merely echoed the
Ty Kong Tin doctrine without, however, shedding light on the
matter.chanrob1es virtua1 1aw 1ibrary
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a
summary procedure.
First of all, Article 412 is a substantive law that provides as
follows:jgc:chanrobles.com.ph
"No entry in a civil register shall be changed or corrected, without a judicial
order."cralaw virtua1aw library
It does not provide for a specific procedure of law to be followed except to
say that the corrections or changes must be effected by judicial order. As
such, it cannot be gleaned therefrom that the procedure contemplated for
obtaining such judicial order is summary in nature.
Secondly, it is important to note that Article 412 uses both the terms
"corrected" and "changed." In its ordinary sense, to correct means to make
or set right" ; "to remove the faults or errors from" 44 while to change
means "to replace something with something else of the same kind or with
something that serves as a substitute." 45 The provision neither qualifies
as to the kind of entry to be changed or corrected nor does it distinguish
on the basis of the effect that the correction or change may have. Hence, it
is proper to conclude that all entries in the civil register may be changed or
corrected under Article 412. What are the entries in the civil register? We
need not go further than Articles 407 and 408 of the same title to find the
answer.
"Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register."cralaw virtua1aw library
"Art. 408. The following shall be entered in the civil register:chanrob1es
virtual 1aw library

Page

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." 43 (Emphasis supplied).

20

SPEC PRO CASES Until the End


Atty. Arceno
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name."cralaw
virtua1aw library
It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the Ty
Kong Tin pronouncement that Article 412 does not contemplate matters
that may affect civil status, nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412 from the rest of the
articles in Title XVI, Book I of the New Civil Code, in clear contravention of
the rule of statutory construction that a statute must always be construed
as a whole such that the particular meaning to be attached to any word or
phrase is ascertained from the context and the nature of the subject
treated. 46
Thirdly, Republic Act No. 9048 47 which was passed by Congress on
February 8, 2001 substantially amended Article 412 of the New Civil Code,
to wit:jgc:chanrobles.com.ph
"SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations."cralaw virtua1aw library
The above law speaks clearly. Clerical or typographical errors in entries of
the civil register are now to be corrected and changed without need of a
judicial order and by the city or municipal civil registrar or consul general.
The obvious effect is to remove from the ambit of Rule 108 the correction
or changing of such errors in entries of the civil register. Hence, what is left
for the scope of operation of Rule 108 are substantial changes and
corrections in entries of the civil register. This is precisely the opposite of
what Ty Kong Tin and other cases of its genre had said, perhaps another
indication that it was not sound doctrine after all.
It may be very well said that Republic Act No. 9048 is Congress response
to the confusion wrought by the failure to delineate as to what exactly is
that so-called summary procedure for changes or corrections of a harmless
or innocuous nature as distinguished from that appropriate adversary
proceeding for changes or corrections of a substantial kind. For we must
admit that though we have constantly referred to an appropriate adversary
proceeding, we have failed to categorically state just what that procedure

II. The petitioners contend that the private respondents have no cause of
action to bring the cases below as Article 171 of the Family Code allows the
heirs of the father to bring an action to impugn the legitimacy of his
children only after his death. 48

Page

is. Republic Act No. 9048 now embodies that summary procedure while
Rule 108 is that appropriate adversary proceeding. Be that as it may, the
case at bar cannot be decided on the basis of Republic Act No. 9048 which
has prospective application. Hence, the necessity for the preceding
treatise.

21

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Atty. Arceno
petitioner is an illegitimate child of Hermogena, but to establish that the
former is not the latters child at all. . . . 51
Similarly, we ruled in Benitez-Badua v. Court of Appeals 52
that:jgc:chanrobles.com.ph
"Petitioners insistence on the applicability of Articles 164, 166, 170 and
171 of the Family Code to the case at bench cannot be sustained.. . . .
x

Article 171 provides:jgc:chanrobles.com.ph


"The heirs of the husband may impugn the filiation of the child within the
period prescribed in the preceding article only in the following
cases:jgc:chanrobles.com.ph
"(1) If the husband should die before the expiration of the period fixed for
bringing this action;
"(2) If he should die after the filing of the complaint, without having
desisted therefrom; or
"(3) If the child was born after the death of the husband."cralaw virtua1aw
library
Petitioners contention is without merit.
In the recent case of Babiera v. Catotal, 49 we upheld the decision of the
Court of Appeals that affirmed the judgment of the RTC of Lanao del Norte
declaring the birth certificate of one Teofista Guinto as null and void ab
initio, and ordering the Local Civil Registrar of Iligan City to cancel the
same from the Registry of Live Births. We ruled therein that private
respondent Presentacion Catotal, child of spouses Eugenio Babiera and
Hermogena Cariosa, had the requisite standing to initiate an action to
cancel the entry of birth of Teofista Babiera, another alleged child of the
same spouses because she is the one who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit.
50
We likewise held therein that:jgc:chanrobles.com.ph
". . . Article 171 of the Family Code is not applicable to the present case. A
close reading of the provision shows that it applies to instances in which
the father impugns the legitimacy of his wifes child. The provision,
however, presupposes that the child was the undisputed offspring of the
mother. The present case alleges and shows that Hermogena did not give
birth to petitioner. In other words, the prayer therein is not to declare that

"A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged
not be the child of nature or biological child of a certain couple. Rather,
these articles govern a situation where a husband (or his heirs) denies as
his own a child of his wife. Thus, under Article 166, it is the husband who
can impugn the legitimacy of said child by proving: (1) it was physically
impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the
child; (2) that for biological or other scientific reasons, the child could not
have been his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or undue influence.
Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file
the action impugning the legitimacy of said child. Doubtless then, the
appellate court did not err when it refused to apply these articles to the
case at bench. For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by Isabel. Rather,
their clear submission is that petitioner was not born to Vicente and Isabel.
Our ruling in Cabatbat-Lim v. Intermediate Appellate Court, 166 SCRA 451,
457 cited in the impugned decision is apropos, viz:chanrob1es virtual 1aw
library
Petitioners recourse to Article 263 of the New Civil Code [now Art. 170 of
the Family Code] is not well taken. This legal provision refers to an action
to impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedents child at
all. Being neither legally adopted child, nor an acknowledged natural child,
nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir
of the deceased." 53
III. Petitioners claim that private respondents cause of action had already

We disagree. As correctly pointed out by the Court of Appeals, inasmuch as


no law or rule specifically prescribes a fixed time for filing the special
proceeding under Rule 108 in relation to Article 412 of the New Civil Code,
it is the following provision of the New Civil Code that
applies:jgc:chanrobles.com.ph
"Art. 1149. other actions whose periods are not fixed in this Code or in
other laws must be brought within five years from the time the right of
action accrues."cralaw virtua1aw library
The right of action accrues when there exists a cause of action, which
consists of three (3) elements, namely: a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; b) an
obligation on the part of the defendant to respect such right; and c) an act
or omission on the part of such defendant violative of the right of the
plaintiff. It is only when the last element occurs or takes place that it can
be said in law that a cause of action has arisen. 55chanrob1es virtua1 1aw
1ibrary
It is indubitable that private respondents have a cause of action. The last
element of their cause of action, that is, the act of their father in falsifying
the entries in petitioners birth records, occurred more than thirty (30)
years ago. Strictly speaking, it was upon this occurrence that private
respondents right of action or right to sue accrued. However, we must take
into account the fact that it was only sometime in 1989 that private
respondents discovered that they in fact had a cause of action against
petitioners who continue to use said falsified birth records.
Hence, it would result in manifest injustice if we were to deprive private
respondents of their right to establish the truth about a fact, in this case,
petitioners true mother, and their real status, simply because they had
discovered the dishonesty perpetrated upon them by their common father
at a much later date. This is especially true in the case of private
respondents who, as their fathers legitimate children, did not have any
reason to suspect that he would commit such deception against them and
deprive them of their sole right to inherit from their mothers (Keh Shiok
Chengs) estate. It was only sometime in 1989 that private respondents
suspicions were aroused and confirmed. From that time until 1992 and
1993, less than five (5) years had lapsed.
Petitioners would have us reckon the five-year prescriptive period from the
date of the registration of the last birth among the petitioners-siblings in
1960, and not from the date private respondents had discovered the false
entries in petitioners birth records in 1989. Petitioners base their position

Page

prescribed as more than five (5) years had lapsed between the registration
of the latest birth among the petitioners in 1960 and the filing of the
actions in December of 1992 and February of 1993. 54

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Atty. Arceno
on the fact that birth records are public documents, hence, the period of
prescription for the right of action available to the private respondents
started to run from the time of the registration of their birth certificates in
the Civil Registry.
We cannot agree with petitioners thinking on that point.
It is true that the books making up the Civil Register and all documents
relating thereto are public documents and shall be prima facie evidence of
the facts therein contained. 56 Petitioners liken their birth records to land
titles, public documents that serve as notice to the whole world.
Unfortunately for the petitioners, this analogy does not hold water. Unlike a
title to a parcel of land, a persons parentage cannot be acquired by
prescription. One is either born of a particular mother or not. It is that
simple.
IV. Finally, petitioners accuse private respondents of forum shopping. They
enumerate the other actions filed by private respondents against them
prior to the filing of their Rule 108 petitions in the lower courts, as
follows:chanrob1es virtual 1aw library
(1) A criminal complaint for falsification of entries in the birth certificates
filed against their father as principal and against defendants as alleged
accessories;
(2) A petition for the cancellation of the naturalization certificate of their
father, Lee Tek Sheng; and
(3) A petition for partition of Keh Shiok Chengs estate. 57
According to the petitioners, all the three (3) actions above-mentioned, as
well as the Rule 108 petitions, subject of the case before us, raise the
common issue of whether petitioners are the natural children of Keh Shiok
Cheng or Tiu Chuan. They contend that in all these cases, the judge or
hearing officer would have to resolve this issue in order to determine
whether or not to grant the relief prayed for. 58
Forum shopping is present when in the two or more cases pending there is
identity of parties, rights or causes of action and reliefs sought. 59 Even a
cursory examination of the pleadings filed by private respondents in their
various cases against petitioners would reveal that at the very least there
is no identity of rights or causes of action and reliefs prayed for. The
present case has its roots in two (2) petitions filed under Rule 108, the
purpose of which is to correct and/or cancel certain entries in petitioners
birth records. Suffice it to state, the cause of action in these Rule 108
petitions and the relief sought therefrom are very different from those in
the criminal complaint against petitioners and their father which has for its
cause of action, the commission of a crime as defined and penalized under

Page

the Revised Penal Code, and which seeks the punishment of the accused;
or the action for the cancellation of Lee Tek Sheng naturalization certificate
which has for its cause of action the commission by Lee Tek Sheng of an
immoral act, and his ultimate deportation for its object; or for that matter,
the action for partition of Keh Shiok Chengs estate which has for its cause
of action the private respondents right under the New Civil Code to inherit
from their mothers estate.

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Atty. Arceno

We therefore concur in the finding of the Court of Appeals that there is no


forum shopping to speak of in the concept that this is described and
contemplated in Circular No. 28-91 of the Supreme Court.chanrob1es
virtua1 law library
WHEREFORE, the petition is hereby DENIED and the assailed decision of
the Court of Appeals dated October 28, 1994 is AFFIRMED.
SO ORDERED.

SECOND DIVISION
[G. R. No. 120587 - January 20, 2004]
MILAGROS M. BARCO, as the Natural Guardian and Guardian Ad
Litem of MARY JOY ANN GUSTILO, Petitioner, v. COURT OF APPEALS
(SPECIAL SIXTEENTH DIVISION), REGIONAL TRIAL COURT (BR.
133-MAKATI), NCJR; THE LOCAL CIVIL REGISTRAR OF MAKATI; and
NADINA G. MARAVILLA, Respondents.
DECISION
TINGA, J.:
The story behind the present petition is a portrait of dysfunction. The
familial situation of the parties is complicated, to say the least. The judicial
conferment of the status of illegitimacy on a daughter who is by law
legitimate has created a tangled braid of various legal doctrines that, like
the Gordian knot of yore, is in this case ultimately unbound through one
fell swoop of the sword.

Despite the notation in Junes birth certificate, Nadina subsequently claimed


that all along, the real father of her child was Armando Gustilo ("Gustilo"),
a former Congressman with whom she maintained a relationship. At the
time of Junes birth, Gustilo was married to one Consuelo Caraycong, who
would later perish in the MV Don Juan naval accident of 1981. 4 On 21
August 1982, Nadina and Gustilo were married in the United States. 5 This
marriage took place two and a half years before Nadinas marriage to
Francisco was alleged to have been annulled in the Philippines. On 12
March 1985, Nadina apparently was able to obtain a judicial declaration
annulling her marriage to Francisco.6
On 17 March 1983, Nadina filed in her own name a Petition for Correction
of Entries in the Certificate of Birth of her daughter June with the Regional
Trial Court ("RTC") of Makati.7 Therein, she alleged that she had been living
separately from her lawful spouse Francisco since February of 1977, and
that Gustilo was the real father of June.8 She claimed that she did not allow
Francisco to have any sexual congress with her within the first 20 days of
the three hundred days preceding the birth of June.9 She prayed that the
Local Civil Registrar of Makati be directed to correct the birth certificate of
June to the effect that the latters full name be made "June Salvacion C.
Gustilo," and that the name of her father be changed from "Francisco
Maravilla" to "Armando Gustilo." Notably, Francisco affixed his signature to
the Petition signifying his conformity thereto.10
On 20 March 1983. Gustilo filed a "Constancia," wherein he acknowledged
June as his daughter with Nadina, and that he was posing no objection to
Nadinas petition.11
The Petition was docketed as SP Proc. No. M-130. On 26 July 1983, the
RTC, in accordance with Rule 108 of the Rules of Court, issued an Order

Page

On 24 December 1970, private respondent Nadina Maravilla ("Nadina")


married Francisco Maravilla ("Francisco"). By February of 1977, the
spouses had opted to live separately,1 and in February of the following year
they obtained an ecclesiastical annulment of marriage issued by the
Catholic Diocese of Bacolod City.2 On 9 June 1978, Nadina gave birth to a
daughter named June Salvacion ("June") in Makati, Metro Manila. Junes
birth certificate listed Francisco Maravilla as the father, and Maravilla as the
childs surname.3 Nadina signed the birth certificate shortly after it was
accomplished.

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Atty. Arceno
setting the case for hearing and directing that a copy of the order be
published once a week for three consecutive weeks in a newspaper of
general circulation. On 7 September 1983, Nadina filed an Amended
Petition,12this time impleading Francisco and Gustilo as respondents.
Correspondingly, the RTC amended the Order on 22 September 1983 to
reflect the additional impleaded parties.13
The Office of the Solicitor General filed a Motion to Dismiss the petition on
the ground that the RTC "had no jurisdiction over the subject matter
and/or the nature of th[e] suit."14 They cited various jurisprudence holding
that only innocuous or clerical errors may be corrected under a Rule 108
petition for correction of entries, and that the Petition seeks changes "are
substantial and controversial in character which directly affect the filiation
and legitimacy of petitioners daughter." 15 On 23 February 1984, the Motion
to Dismiss was denied by the RTC, which also subsequently denied
a Motion for Reconsideration thereto filed by the Solicitor General.
On 7 January 1985, the RTC issued an Order ("RTC Order") granting the
petition and ordering the requested corrections to be effected. The RTC
considered the claim of Nadina that she had relied completely on her uncle
William R. Veto16 to facilitate the preparation of Junes birth certificate, that
it was through his inadvertence that the mistaken entries were made, and
that she was in intense physical discomfort when she had affixed her
signature to the birth certificate containing the incorrect entries. 17 The RTC
also noted that Francisco had signified his conformity to the action by
signing the original petition, and that Gustilo had manifested through
a Constancia dated 20 March 1983 that he was acknowledging June as his
daughter and expressing no objection to the petition.18
Gustilo died in 19 December 1986.19 Two estate proceedings arose from his
death, one lodged in Makati,20 the other in Harris County, Texas.21 Among
the participants in both estate proceedings was Jose Vicente Gustilo ("Jose
Vicente"), allegedly a biological child of Gustilo.22 On 5 March 1993, he filed
with the Court of Appeals a Petition23 seeking the annulment of the
RTC Order of 7 January 1985 which had effected changes in the civil status
of June. Jose Vicente amended his Petition in July of 1993 to implead
Nadina as an indispensable party.24 In her Comment, Nadina countered
that Jose Vicente had not sufficiently proven that he was a child of
Armando, and there was neither extrinsic fraud or lack of jurisdiction that
would justify the annulment of the RTC Order.25 Nadina also pointed out
that the Makati intestate court had approved a compromise agreement

After the Court of Appeals commenced hearings on the petition, petitioner


Milagros Barco ("Barco"), on 11 January 1994, filed in her capacity as the
natural guardian and/or guardian ad litem of her daughter, Mary Joy Ann
Gustilo ("Mary Joy"), a Motion for Intervention with a Complaint-inIntervention attached thereto.28 Barco alleged that Mary Joy had a legal
interest in the annulment of the RTC Order as she was likewise fathered by
Gustilo. In her Complaint-in-Intervention, Barco claimed that she and
Gustilo had maintained a relationship since 1967, and to them was born
Mary Joy in 1977.29 Barco also alleged that she actually moved in with
Gustilo after the death of the latters wife in 1980, and maintained her
affair with Gustilo until 1983, when she was purportedly supplanted by
Nadina as Gustilos common-law companion after Gustilo had become
gravely ill.30
After the parties had filed their respective memoranda, the Court of
Appeals rendered a Decision on 13 March 1995, dismissing both
the Petition and the Complaint-in-Intervention.31 The appellate court held
that neither Jose Vicente nor Barco were able to establish the existence of
lack of jurisdiction and extrinsic fraud, the two grounds that would justify
the annulment of a final judgment.32 It ruled that while Jose Vicente and
Barco had not been made parties in the Petition for Correction, the
subsequent notice and publication of the Order setting the case for hearing
served as constructive notice to all parties who might have an interest to
participate in the case. The publication of the Order conferred upon the
RTC the jurisdiction to try and decide the case.33 It also found no merit in
Jose Vicentes claim that he learned of the RTC Order only in November of
1992, pointing out that as early as 1987, he filed a pleading with the
intestate court alleging that Junes birth certificate had been amended to
record the name of her true father.34
Only the intervenor Barco filed a Motion for Reconsideration35 of the Court
of Appeals Decision, which the appellate court denied on 16 May
1995.36 Thus, Barco filed the present Petition for Review on

Page

wherein the parties had agreed that the only heirs of the decedent
Armando are "the surviving spouse, Nadina G. Gustilo, the daughter, June
Salvacion G. Gustilo, the son, Jose Vicente Gustilo III, and another
daughter, Mary Joy Ann Gustilo." 26 However, this compromise agreement
was subsequently voided on petition by Jose Vicente to the Court of
Appeals, on the ground that the Civil Code prohibited compromise as to the
civil status of persons.27

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Atty. Arceno
Certiorari seeking the reversal of the Court of Appeals Decision and the
annulment of the 1985 RTCOrder.
Before this Court, Barco assails that RTC Order on the ground of lack of
jurisdiction. That was the same ground she invoked in the Court of
Appeals. Specifically, she raises the following issues:
1) Barco should have been made a party to the Nadinas petition and the
failure to implead her deprived the RTC of jurisdiction;
2) This RTC could not have entertained Nadinas petition, since the Courts
ruling in a long line of cases, beginning with Republic v. Valencia,37 that a
petition for correction of entries in the civil register is not limited to
innocuous or clerical mistakes, applies only to citizenship cases;
3) The petition for correction was filed out of time, as Article 263 of the
Civil Code of 1950 sets a prescriptive period for impugning the legitimacy
of a child which is one year from the recording of birth in the Civil Registry,
if the husband should be in the same place, or in a proper case, any of his
heirs;
4) Nadinas petition should have been treated as a petition for change of
name, which can only be filed by the person whose name is sought to be
changed;
5) The RTC Order contravenes the legal presumption that children born
during the pendency of a marriage are legitimate and the rule that
legitimate children cannot adopt the surname of a person who is not their
father; and
6) The RTC should have excluded as hearsay the Constancia allegedly
signed by Gustilo and that the surrounding circumstances under which it
was issued gave reason to doubt its authenticity and credibility.
Interestingly, the questions that Barco raised would tickle the fancies of
erudite civilists yearning for a challenge. However, the ultimate resolution
of this case hinges on whether the de rigueurrequirements of the
extraordinary remedy of annulment of judgment have been satisfied.

The recourse is equitable in character, allowed only in exceptional cases, as


where there is no available or other adequate remedy. Annulment of
judgments is a remedy long authorized and sanctioned in our
jurisdiction.38 As far back as 1918, this Court in Banco Espaol-Filipino v.
Palanca39recognized the availability of a direct attack of a final judgment on
the ground that it is void for want of jurisdiction. In Reyes v. Datu40we held
that the validity of a final judgment or order of the court may be attacked
only by a direct action or proceeding or by motion in another case on the
ground of lack of jurisdiction.
Yet, it was only in the 1997 Rules of Civil Procedure that for the first time
the procedure for the annulment of judgments or final orders and
resolutions in civil cases of regional trial courts, through a petition before
the Court of Appeals, was formally provided. Rule 47 thereof under which
the procedure was integrated incorporates settled jurisprudence on
annulment of judgment.
Statutory basis for the remedy was laid way back in 1980, with the
enactment of The Judiciary Reorganization Act of 1980.41 Section 9 thereof
vests in the Court of Appeals exclusive original jurisdiction over actions for
annulment of judgments of the lower courts.
Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly provides
only two grounds for annulment of judgment, namely: extrinsic fraud and
lack of jurisdiction. This express limitation is significant since previous
jurisprudence recognized other grounds as well.42 The underlying reason is
traceable to the notion that annulling final judgments goes against the
grain of finality of judgment. Litigation must end and terminate sometime
and somewhere, and it is essential to an effective administration of justice
that once a judgment has become final the issue or cause involved therein
should be laid to rest. The basic rule of finality of judgment is grounded on
the fundamental principle of public policy and sound practice that at the
risk of occasional error, the judgment of courts and the award of quasijudicial agencies must become final at some definite date fixed by
law.43 Even if the rule on annulment of judgment is grounded on equity, the
relief is of an extraordinary character, and not as readily available as the
remedies obtaining to a judgment that is not yet final.

Page

First, a brief revisit of the action to annul judgment.

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Atty. Arceno
There are two aspects of jurisdiction which are vital for disposition of this
case - jurisdiction over thenature of the action or subject matter, and
jurisdiction over the parties.44 Barco claims that the RTC failed to satisfy
both aspects of jurisdiction. She opines that the RTC did not acquire
jurisdiction over the parties due to the failure to implead her as a party to
the petition for correction. On the other hand, the remaining issues that
she raises as errors put into question whether the RTC had jurisdiction over
the subject matter of Nadinas petition.
We shall first tackle the question of whether the RTC had acquired
jurisdiction over Barco and all other indispensable parties to the petition for
correction.
The essential requisite for allowing substantial corrections of entries in the
civil registry is that the true facts be established in an appropriate
adversarial proceeding. This is embodied in Section 3, Rule 108 of the
Rules of Court, which states:
Section 3. Parties When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
The Court of Appeals held that jurisdiction over the parties was properly
acquired through the notice by publication effected in conformity with
Section 4 of Rule 108. Barco assails this holding and claims that the failure
to implead her as a party to the petition for correction deprived the RTC of
jurisdiction.
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. The fact that Nadina amended her petition to

Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance with
Section 4, Rule 108, which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by 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.
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. The Court of Appeals correctly noted:
The publication being ordered was in compliance with, and borne out by
the Order of January 7, 1985. The actual publication of the September 22,
1983 Order, conferred jurisdiction upon the respondent court to try and
decide the case. While "nobody appeared to oppose the instant petition"
during the December 6, 1984 hearing, that did not divest the court from its
jurisdiction over the case and of its authority to continue trying the case.
For, the rule is well-settled, that jurisdiction, once acquired continues until
termination of the case.45
Verily, a petition for correction is an action in rem, an action against a thing
and not against a person.46The decision on the petition binds not only the
parties thereto47 but the whole world.48 Anin rem proceeding is validated
essentially through publication.49 Publication is notice to the whole world
that the proceeding has for its object to bar indefinitely all who might be
minded to make an objection of any sort against the right sought to be
established.50 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.51
Since the RTC properly acquired jurisdiction over the parties, what remains
for determination is whether it had acquired jurisdiction over Nadinas cause
of action. It should be emphasized that jurisdiction over the nature of the

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implead Francisco and Gustilo indicates earnest effort on her part to


comply with Section 3 as quoted above.

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Atty. Arceno
action or the subject matter is conferred by law. This Courts recent holding
in Durisol Philippines, Inc. v. Court of Appeals52is instructive in this regard:
[I]t should be stressed that in a petition for annulment of judgment based
on lack of jurisdiction, petitioner must show not merely an abuse of
jurisdictional discretion but an absolute lack of jurisdiction. Lack of
jurisdiction means absence of or no jurisdiction, that is, the court should
not have taken cognizance of the petition because the law does not vest it
with jurisdiction over the subject matter.53
The question of whether a court has jurisdiction over the subject matter
can be answered simply by determining if on the basis of the complaint or
petition the court has, under the law, the power to hear and decide the
case. Barcos remaining arguments are to be tested against this standard.
One of Barcos striking assertions is that the general rule still is that the
jurisdiction of the court in the correction of entries in the civil register is
limited to innocuous or clerical mistakes, as what she insinuates as the
apparent contrary holding in Republic v. Valencia54applies only to
citizenship cases.
Since the promulgation of the Valencia ruling in 1986 the Court has
repeatedly ruled that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing themselves of
the appropriate adversarial proceeding. Barco, by seeking to limit the
application of the Valencia doctrine to citizenship cases, is flogging a dead
horse. This argument was debunked in subsequent cases,55notably the
recent case of Lee v. Court of Appeals.56The exhaustive disquisition therein
of Justice Sabino de Leon should preclude any further arguments on the
scope of Rule 108.
The Court in Lee acknowledged that there existed a line of decided cases,
some of them decided afterValencia, stating that Rule 108 cannot be used
to effect substantial corrections in entries of the civil register.57 The
doctrine was traced back to the 1954 case of Ty Kong Tin v. Republic,58 the
rationale of which the Court reevaluated in Lee:
We venture to say now that the above pronouncements proceed from a
wrong premise, that is, the interpretation that Article 412 pertains only to

The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a
summary procedure.
First of all, Article 412 is a substantive law that provides as follows:
"No entry in a civil register shall be changed or corrected, without a judicial
order."
It does not provide for a specific procedure of law to be followed except to
say that the corrections or changes must be effected by judicial order. As
such, it cannot be gleaned therefrom that the procedure contemplated for
obtaining such judicial order is summary in nature.
Secondly, it is important to note that Article 412 uses both the terms
"corrected" and "changed." In its ordinary sense, to correct means "to
make or set right;" "to remove the faults or errors from" while to change
means "to replace something with something else of the same kind or with
something that serves as a substitute". The provision neither qualifies as to
the kind of entry to be changed or corrected nor does it distinguish on the
basis of the effect that the correction or change may have. Hence, it is
proper to conclude that all entries in the civil register may be changed or
corrected under Article 412. What are the entries in the civil register? We
need not go further than Articles 407 and 408 of the same title to find the
answer.
"Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register."
"Art. 408. The following shall be entered in the civil register:

Page

clerical errors of a harmless or innocuous nature, effectively excluding from


its domain, and the scope of its implementing rule, substantial changes
that may affect nationality, status, filiation and the like. Why the limited
scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily
answer this question except to opine that the procedure contemplated in
Article 412 is summary in nature and cannot, therefore, cover cases
involving controversial issues. Subsequent cases have merely echoed the
Ty Kong Tin doctrine without, however, shedding light on the matter.

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Atty. Arceno
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name."
It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the Ty
Kong Tin pronouncement that Article 412 does not contemplate matters
that may affect civil status, nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412 from the rest of the
articles in Title XVI, Book I of the New Civil Code, in clear contravention of
the rule of statutory construction that a statute must always be construed
as a whole such that the particular meaning to be attached to any word or
phrase is ascertained from the context and the nature of the subject
treated.59
Lee also points out that Republic Act No. 9048, enacted in 2001, has
effectively changed the nature of a proceeding under Rule 108. Under this
new law, "clerical or typographical errors and change of first name or
nickname" may now be corrected or changed by the concerned city or
municipal registrar or consul general, without need of any judicial order.
The obvious effect is to remove from the ambit of Rule 108 the correction
or changing of such errors in entries of the civil register. Hence, what is left
for the scope of operation of Rule 108 are substantial changes and
corrections in entries of the civil register.60
It may be very well said that Republic Act No. 9048 is Congresss response
to the confusion wrought by the failure to delineate as to what exactly is
that so-called summary procedure for changes or corrections of a harmless
or innocuous nature as distinguished from that appropriate adversary
proceeding for changes or corrections of a substantial kind. For we must
admit that though we have constantly referred to an appropriate adversary
proceeding, we have failed to categorically state just what that procedure
is. Republic Act No. 9048 now embodies that summary procedure while
Rule 108 is that appropriate adversary proceeding. xxx61
Republic Act No. 9048 may not find application in this case, yet it is clearly
another indicium of how entrenched the Valencia ruling is today. With the

Next, Barco argues that the petition for correction had prescribed under
the Civil Code; and that the petition for correction should be treated as a
petition for change of name which can only be filed by the person whose
name is sought to be changed. These arguments can be decided jointly.
They both are not well taken as they cannot allude to a lack of jurisdiction
that would render the RTC Ordersubject to annulment.
Assuming arguendo that Nadinas petition for correction had prescribed
and/or that the action seeking the change of name can only be filed by the
party whose name is sought to be changed, this does not alter the reality
that under the law the Makati RTC had jurisdiction over the subject matter
of the petition for correction. The Judiciary Reorganization Act of 1980, the
applicable law at the time, clearly conferred on the Makati RTC exclusive
original jurisdiction in all civil actions in which the subject of the litigation is
incapable of pecuniary estimation.62 In complementation of grant of
jurisdiction, Section 1 of Rule 108 provides that the verified petition to the
cancellation or correction of any entry relating thereto should be filed with
the Court of First Instance (now Regional Trial Court) of the province where
the corresponding civil registry is located.
Prescription and lack of capacity to bring action cannot be ignored by a
court of law in properly resolving an action, to the extent that a finding
that any of these grounds exist will be sufficient to cause the dismissal of
the action.63 Yet, the existence of these grounds does not oust the court
from its power to decide the case. Jurisdiction cannot be acquired through,
waived, enlarged or diminished by any act or omission of the
parties.64 Contrariwise, lack of capacity to sue and prescriptions as grounds
for dismissal of an action may generally be rendered unavailing, if not
raised within the proper period.65
It thus follows that assuming that the petition for correction had
prescribed, or that Nadina lacked the capacity to file the action which led to
the change of her daughters name, the fact that the RTC granted

Page

enactment of the law, the legislature acknowledged the potency of the


ruling. To repeat, substantial corrections to the civil status of persons
recorded in the civil registry may be effected through the filing of a petition
under Rule 108. Any further attempt to limit the scope of application of
Rule 108 runs against the wall of judicial precedent cemented by legislative
affirmation.

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Atty. Arceno
the Order despite the existence of these two grounds only characterizes the
decision as erroneous. An erroneous judgment is one though rendered
according to the course and practice of the court is contrary to law.66 It is
not a void judgment.67
As for Barcos remaining arguments, they similarly fail, as the worst they
could establish is that the RTC Order is an erroneous judgment.
Barco correctly notes, however, that the RTC erred in directing that the
name of Nadinas daughter be changed from "June Salvacion Maravilla" to
"June Salvacion Gustilo." Following the trial courts determination that
Gustilo was the father of June, but prescinding from the conclusive
presumption of legitimacy for the nonce assuming it could be done, the
child would obviously be illegitimate. The applicable laws mandate that
June, as an illegitimate child, should bear the surname of her mother, and
not the father.68 From another perspective, the RTCs error in ordering the
change of name is merely an error in the exercise of jurisdiction which
neither affects the courts jurisdiction over Nadinas petition nor constitutes
a ground for the annulment of a final judgment. As the seminal case
of Herrera v. Barretto69 explains:
xxx Jurisdiction should therefore be distinguished from the exercise of
jurisdiction. The authority to decide a cause at all, and not the decision
rendered therein, is what makes up jurisdiction. Where there is jurisdiction
of the person and subject matter xxx the decision of all other questions
arising in the case is but an exercise of that jurisdiction.70
In the same vein, it is of no moment that the RTC Order contravenes the
legal presumption accorded June of being the legitimate child of Francisco
and Nadina.71 A review of the records does indicate the insufficiency of the
evidence offered to defeat the presumption, against which the only
evidence admissible is the physical impossibility of the husbands having
access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child. 72 It seems that the RTC
relied primarily on the testimony of Nadina in adjudging that Gustilo, and
not Francisco, was the father of June. Yet, Article 256 of the Civil Code
renders ineffectual any pronouncement against legitimacy made by the
mother.73 The testimony proffered by the mother has no probative value as
regards Junes paternity. The RTCs cognizance of Gustilos Constancia might
likewise be subject to critical scrutiny.74 But the Court is now precluded

The law sanctions the annulment of certain judgments which, though final,
are ultimately void. Annulment of judgment is an equitable principle not
because it allows a party-litigant another opportunity to reopen a judgment
that has long lapsed into finality but because it enables him to be
discharged from the burden of being bound to a judgment that is an
absolute nullity to begin with. The inevitable conclusion is that the
RTC Order, despite its apparent flaws, is not null and void, and thus cannot
be annulled. Consequently, the Court of Appeals committed no reversible
error in issuing the assailed decision.
This Court has been constrained in the past to leave erroneous decisions as
they were.75 Our fealty to justice in its pristine form the upholding of "right"
over "wrong" is equipoised with our adherence to due process, and the
rules that emanate from that principle. The Court takes great care in
drafting rules of procedure so that the axioms that govern the legal
battleground may live up to Justice Frankfurters approximation of due
process as "the embodiment of the sporting idea of fair play." 76Due process
dictates that litigants be afforded a reasonable opportunity to attack
erroneous judgments and be shielded from the adverse effects of void
judgments. Due process likewise demands that a party, after trekking the
long road of litigation should be permitted to enjoy the fruits of an
auspicious final judgment. Absent any convincing demonstration that the
RTC Order is patently null and void, there is no reason under law and
jurisprudence to upset it, given the reality that it has long become final.
WHEREFORE, the above premises considered, the Petition is hereby
dismissed for lack of merit. Costs against petitioner.
SO ORDERED.

Page

from reviewing the RTCs appreciation of the evidence, however erroneous


it may be, because the Order is already final. The RTCs possible
misappreciation of evidence is again at most, an error in the exercise of
jurisdiction, which is different from lack of jurisdiction. These purported
errors do not extend to the competence of the RTC to decide the matter
and as such does not constitute a valid ground to annul the final order.

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Atty. Arceno
FIRST DIVISION
[G.R. NO. 174689 : October 22, 2007]
ROMMEL JACINTO DANTES SILVERIO, Petitioner, v. REPUBLIC OF
THE PHILIPPINES,Respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice.
All of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a person's sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?cra lawlibrary
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."

From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People's
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of the
Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. ReysioCruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.

Page

He further alleged that he is a male transsexual, that is, "anatomically


male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood. 1 Feeling trapped in a man's
body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation.
His attempts to transform himself to a "woman" culminated on January 27,
2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand.
He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact undergone the procedure.

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Atty. Arceno
Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and acted
like a woman, now possesses the physique of a female. Petitioner's
misfortune to be trapped in a man's body is not his own doing and should
not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioner's first name
from "Rommel Jacinto" to MELY and petitioner's gender from "Male"
to FEMALE.5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition forcertiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor
of the Republic. It ruled that the trial court's decision lacked legal basis.
There is no law allowing the change of either name or sex in the certificate
of birth on the ground of sex reassignment through surgery. Thus, the
Court of Appeals granted the Republic's petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied.9 Hence, this
petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.10

A Person's First Name Cannot Be Changed On the Ground of Sex


Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present
sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. - No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,

Page

The petition lacks merit.

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Atty. Arceno
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which change of first name may
be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. - The petition
for change of first name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted
with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
Petitioner's basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a
change of name does not alter one's legal capacity or civil status. 18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner's first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name, he must present proper
or reasonable cause or any compelling reason justifying such change. 19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any

In sum, the petition in the trial court in so far as it prayed for the change of
petitioner's first name was not within that court's primary jurisdiction as
the petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioner's petition in so far as the change of his first
name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a person's sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far asclerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23

Page

prejudice that he might suffer as a result of using his true and official
name.

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Atty. Arceno
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality,
age, status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408
of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:


SECTION 2. Definition of Terms. - As used in this Act, the following terms
shall mean:
xxx

xxx

xxx

To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a substitute." 26 The
birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct.
No correction is necessary.

"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not. The comprehensive termstatus' include such
matters as the beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession.28 (emphasis supplied)
A person's sex is an essential factor in marriage and family relations. It is a
part of a person's legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall
be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner's cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. - The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the

Page

Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.

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Atty. Arceno
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the father
is not known, of the mother alone; (d) civil status of parents; (e) place
where the infant was born; and (f) such other data as may be required in
the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
person's sex made at the time of his or her birth, if not attended by
error,30 is immutable.31
When words are not defined in a statute they are to be given their common
and ordinary meaning in the absence of a contrary legislative intent. The
words "sex," "male" and "female" as used in the Civil Register Law and
laws concerning the civil registry (and even all other laws) should therefore
be understood in their common and ordinary usage, there being no
legislative intent to the contrary. In this connection, sex is defined as "the
sum of peculiarities of structure and function that distinguish a male from a
female"32 or "the distinction between male and female."33 Female is "the
sex that produces ova or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing ova."35 Thus, the words
"male" and "female" in everyday understanding do not include persons who
have undergone sex reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known meaning are presumed to
have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued
that the term "sex" as used then is something alterable through surgery or

For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioner's first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the
changes sought by petitioner will substantially reconfigure and greatly alter
the laws on marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities under Rule
131 of the Rules of Court,41 among others. These laws underscore the
public policy in relation to women which could be substantially affected if
petitioner's petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law,
not to make or amend it.

Page

something that allows a post-operative male-to-female transsexual to be


included in the category "female."

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Atty. Arceno
In our system of government, it is for the legislature, should it choose to
do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statutebased.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends
to confer on a person who has undergone sex reassignment the privilege to
change his name and sex to conform with his reassigned sex, it has to
enact legislation laying down the guidelines in turn governing the
conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when
a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or on
anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed
an ordeal. However, the remedies petitioner seeks involve questions of
public policy to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

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Atty. Arceno

SECOND DIVISION
[G.R. NO. 166676, September 12, 2008]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JENNIFER B.
CAGANDAHAN, Respondent.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision 1 dated
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan,
Laguna, which granted the Petition for Correction of Entries in Birth
Certificate filed by Jennifer B. Cagandahan and ordered the following
changes of entries in Cagandahan's birth certificate: (1) the name "Jennifer
Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female"
to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition
for Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of
Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and
was registered as a female in the Certificate of Live Birth but while growing
up, she developed secondary male characteristics and was diagnosed to
have Congenital Adrenal Hyperplasia (CAH) which is a condition where
persons thus afflicted possess both male and female characteristics. She
further alleged that she was diagnosed to have clitoral hyperthropy in her
early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that
her ovarian structures had minimized, she has stopped growing and she
has no breast or menstrual development. She then alleged that for all
interests and appearances as well as in mind and emotion, she has become
a male person. Thus, she prayed that her birth certificate be corrected such
that her gender be changed from female to male and her first name be
changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three


(3) consecutive weeks and was posted in conspicuous places by the sheriff
of the court. The Solicitor General entered his appearance and authorized
the Assistant Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondent's condition is known as CAH. He
explained that genetically respondent is female but because her body
secretes male hormones, her female organs did not develop normally and
she has two sex organs - female and male. He testified that this condition
is very rare, that respondent's uterus is not fully developed because of lack
of female hormones, and that she has no monthly period. He further
testified that respondent's condition is permanent and recommended the
change of gender because respondent has made up her mind, adjusted to
her chosen role as male, and the gender change would be advantageous to
her.
The RTC granted respondent's petition in a Decision dated January 12,
2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is
entitled to the reliefs prayed [for]. Petitioner has adequately presented to
the Court very clear and convincing proofs for the granting of his petition.
It was medically proven that petitioner's body produces male hormones,
and first his body as well as his action and feelings are that of a male. He
has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth [c]ertificate
of Jennifer Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records, voter's registry,
baptismal certificate, and other pertinent records are hereby amended to
conform with the foregoing corrected data.
SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT


HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
"SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENT'S
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES
NOT MAKE HER A "MALE"4
Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex
or gender, from female to male, on the ground of her medical condition
known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103
and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while the
local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court,
respondent's petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondent's petition is fatally
defective since it failed to state that respondent is a bona fide resident of
the province where the petition was filed for at least three (3) years prior
to the date of such filing as mandated under Section 2(b), Rule 103 of the
Rules of Court.6 The OSG argues that Rule 108 does not allow change of
sex or gender in the birth certificate and respondent's claimed medical
condition known as CAH does not make her a male. 7
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the Petition
for Correction of Birth Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on December 16,
2003 and all pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true sex/gender,9 change of sex
or gender is allowed under Rule 108,10 and respondent substantially
complied with the requirements of Rules 103 and 108 of the Rules of
Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME

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THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING


THAT:
I.

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Atty. Arceno
SECTION 1. Venue. - A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he resides,
[or, in the City of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. - A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where
the petition is filed for at least three (3) years prior to the date of such
filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. - If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall
fix a date and place for the hearing thereof, and shall direct that a copy of
the order be published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circulation published in
the province, as the court shall deem best. The date set for the hearing
shall not be within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
SEC. 4. Hearing. - Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed
in the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner, adjudge that such
name be changed in accordance with the prayer of the petition.
SEC. 6. Service of judgment. - Judgments or orders rendered in connection
with this rule shall be furnished the civil registrar of the municipality or city
where the court issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. - Any person interested in any act,
event, order or decree concerning the civil status of persons which has

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.
SEC. 3. Parties. - When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all 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.
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.
SEC. 6. Expediting proceedings. - The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.
SEC. 7. Order. - After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because
respondent's petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is required to be made a
party in a proceeding for the correction of name in the civil registry. He is
an indispensable party without whom no final determination of the case
can be had.12Unless all possible indispensable parties were duly notified of

Page

been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is located.

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Atty. Arceno
the proceedings, the same shall be considered as falling much too short of
the requirements of the rules.13 The corresponding petition should also
implead as respondents the civil registrar and all other persons who may
have or may claim to have any interest that would be affected
thereby.14 Respondent, however, invokes Section 6,15 Rule 1 of the Rules of
Court which states that courts shall construe the Rules liberally to promote
their objectives of securing to the parties a just, speedy and inexpensive
disposition of the matters brought before it. We agree that there is
substantial compliance with Rule 108 when respondent furnished a copy of
the petition to the local civil registrar.
The determination of a person's sex appearing in his birth certificate is a
legal issue and the court must look to the statutes. In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without
a judicial order.
Together with Article 37616 of the Civil Code, this provision was amended
by Republic Act No. 904817 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a judicial
order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of
the Rules of Court the correction of such errors. Rule 108 now applies only
to substantial changes and corrections in entries in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408
of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like

CAH is one of many conditions21 that involve intersex anatomy. During the
twentieth century, medicine adopted the term "intersexuality" to apply to
human beings who cannot be classified as either male or female. 22 The
term is now of widespread use. According to Wikipedia, intersexuality "is
the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An organism with
intersex may have biological characteristics of both male and female
sexes."
Intersex individuals are treated in different ways by different cultures. In
most societies, intersex individuals have been expected to conform to
either a male or female gender role.23 Since the rise of modern medical
science in Western societies, some intersex people with ambiguous
external genitalia have had their genitalia surgically modified to resemble
either male or female genitals.24More commonly, an intersex individual is
considered as suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for recognition
of the various degrees of intersex as variations which should not be subject
to outright denial. "It has been suggested that there is some middle ground
between the sexes, a `no-man's land' for those individuals who are neither
truly `male' nor truly `female'"25 The current state of Philippine statutes
apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there
is no basis for a change in the birth certificate entry for gender. But if we
determine, based on medical testimony and scientific development showing
the respondent to be other than female, then a change in the
subject's birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently

Page

respondent, with this condition produces too much androgen, a male


hormone. A newborn who has XX chromosomes coupled with CAH usually
has a (1) swollen clitoris with the urethral opening at the base, an
ambiguous genitalia often appearing more male than female; (2) normal
internal structures of the female reproductive tract such as the ovaries,
uterus and fallopian tubes; as the child grows older, some features start to
appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.

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Atty. Arceno
and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However,
respondent's body system naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous genitalia and the
phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification would
be what the individual, like respondent, having reached the age of
majority, with good reason thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body produces high levels of
male hormones (androgen) there is preponderant biological support for
considering him as being male. Sexual development in cases of intersex
persons makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong
medication,26 to force his body into the categorical mold of a female but he
did not. He chose not to do so. Nature has instead taken its due course in
respondent's development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as one's sexuality and
lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment
in order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the
mold of a female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with his intersex
anatomy. To him belongs the human right to the pursuit of happiness and
of health. Thus, to him should belong the primordial choice of what courses
of action to take along the path of his sexual development and maturation.
In the absence of evidence that respondent is an "incompetent"> 27 and in
the absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection
under the law, the Court affirms as valid and justified the respondent's
position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature;
and (2) how an individual deals with what nature has handed out. In other
words, we respect respondent's congenital condition and his mature
decision to be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with his unordinary state and
thus help make his life easier, considering the unique circumstances in this

As for respondent's change of name under Rule 103, this Court has held
that a change of name is not a matter of right but of judicial discretion, to
be exercised in the light of the reasons adduced and the consequences that
will follow.28 The trial court's grant of respondent's change of name from
Jennifer to Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that respondent's change of name merely
recognizes his preferred gender, we find merit in respondent's change of
name. Such a change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republic's petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Page

case.

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Atty. Arceno

THIRD DIVISION
[G.R. No. 111994. December 29, 1994.]
SOTENIA GONO-JAVIER, TEBURCIO GONO, ANUNCIACION G.
JAVIER, GERMANA G. GULAY, LUCIO GONO, RAMON GONO,
ALFREDO GONO and MANUEL GONO, Petitioners, v. THE HON.
COURT OF APPEALS, RESTITUTA CASOCOT, FERMIN CASOCOT,
ALICIA YONSON, ADRIANO CASOCOT, CARLOS MONTE DE RAMOS,
REGINA DUGLAS and NONITO MARAVE, Respondents.

DECISION

VITUG, J.:

Juan Casocot, the alleged natural grandfather of petitioners, was said to


have owned during his lifetime five (5) parcels of land in Nasipit, Agusan,
covered by Tax Declaration ("T.D.") No. 2667, 3227, 1209, 738 and 2666.
On 13 February 1978, petitioners filed a case with the Regional Trial Court
("RTC") of Butuan City for the recovery of ownership and possession of the
above five (5) parcels which they claimed were merely held in trust for
them by private respondents. Petitioners averred that they were the
children of deceased Catalino Gono, an acknowledged natural child of Juan
Casocot, who, by intestate succession, should thus be held to be the
owners of the property. Additionally, they asserted that petitioner
Anunciacion Gono-Javier purchased the parcels of land on 20 June 1956
from the Provincial Government of Agusan following the levy thereof (on 28
May 1956) for tax delinquency.chanrobles law library
In their answer, private respondents, all nephews and nieces of Juan
Casocot except for Carlos Monte de Ramos, a grandnephew, and Nonito
Marave, a stranger, to whom a portion of one of the parcels of land had
been sold, contended that since the complaint had failed to state that
Catalino Gono had been recognized by Juan Casocot earlier in a record of
birth or in a will, an independent action for voluntary recognition should
have first been instituted to permit any intestate successional right to
legally pass to petitioners. Also alleged in the answer was that, with the
exception of the parcel covered by T.D. No. 738, the questioned property

Page

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR


NATURAL CHILDREN

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Atty. Arceno
had been sold by Juan Casocot to private respondents Restituta and Fermin
Casocot on 19 April 1960 and a portion to private respondent Marave.
Private respondents belied the claim that petitioner Gono-Javier purchased
the property from the Provincial Government of Agusan. Finally, the
defense of prescription was raised on the ground that private respondents
had been in possession of the disputed property in good faith and for value
for more than 17 years before petitioners action was instituted.
After trial, the Butuan RTC rendered judgment for petitioners declaring
them to be the lawful owners of the property. The court, in rejecting the
claim of ownership made by private respondents, opined that the deed of
sale executed by Juan Casocot on 19 April 1960, when he was already 80
years old, in favor of respondents Restituta and Fermin Casocot was
absolutely simulated and void. It ruled that petitioners father, Catalino
Gono, had been duly recognized by Juan Casocot since 1954 to be his
natural child that thereby entitled petitioners to inherit the parcels of land
in question. The trial court likewise held that the property had been sold to
petitioner Anunciacion Gono-Javier on 05 and 20 June 1956 after it had
been levied by the Provincial Government for non-payment of taxes.
The trial court thus nullified Transfer Certificate of Title ("TCT") No. RT-349,
issued in the names of Restituta and Fermin Casocot, with respect to the
parcel of land covered by T.D. No. 1209, and all certificates of title issued in
the names of transferees, Felipe Yonson, Alicia Yonson, Adriano Casocot,
Carlos Monte de Ramos, Regina Duglas, Restituta, Fermin Casocot and
Nonito Marave.
On appeal by private respondents, the Court of Appeals reversed the trial
courts decision, and ordered the dismissal of the complaint by petitioners
for the recovery of title and possession of the disputed parcels. The
appellate court ratiocinated and concluded:jgc:chanrobles.com.ph
"First. The trial court declared Catalino Gono to be the acknowledged
natural child of Juan Casocot on the basis of a statement in a deed of
donation which he made in favor of Eugenia Gonzales, widow of Catalino
Gono, to the effect that among the reasons for making the donation was
the fact that the donee is the surviving spouse of my son had with my
common law wife. (Exh. G).
"The deed of donation conveyed to Eugenia Gonzales the parcel of land
covered by TD 738 (Exh. E). It was made on march 29, 1954, about 11
years after the death of Catalino Gono in 1942 or 1943. In the first place,
the statement therein describing Eugenia Gonzales the surviving spouse of
my son had with my common law wife is only, if at all, an indirect
acknowledgment of Catalino Gono as the son of Juan Casocot. This falls
short of the requirement that the voluntary recognition of a natural child
must be expressly made either in the record of birth, or in a will, or in a
statement before the court of record or in any authentic writing. (Civil

"In the second place, according to the testimony of plaintiff-appellee


Sotenia Gono herself, Catalino Gono died in 1942 or 1943. (TSN, p. 24,
Dec. 10, 1980). On the other hand, his supposed acknowledgment was
made only in 1954. Now, art. 281 requires that if the child is of age, his
recognition must be with his consent. Obviously, therefore, it was not
possible for Catalino Gono to have given his consent, even if the indirect
reference to him in the deed of donation as the son of Juan Casocot were
considered a sufficient acknowledgment.
"For these reasons, it was error for the trial court to declare the plaintiffappellees, the children of Catalino Gono, to be the owners of the four
parcels of land covered by TD No. 2667 (Exh. B), TD No. 3227 (Exh. C), TD
No. 1209 (Exh. D), and TD No. 2666 (Exh. F) by right of inheritance.
"Second. Nor may the plaintiff-appellees base their claim of ownership on
the fact that one of them (Anunciacion Gono-Javier) allegedly repurchased
the lands in question after they had been forfeited to the Province of
Agusan for nonpayment of taxes. The records show that while it is true that
Anunciacion Gono-Javier was issued a certificate of Repurchase of Real
Property after Sale (Exh. N) on June 20, 1956, it is equally true that on
February 3, 1959, she was refunded the amount she had paid. This is
evidenced by a municipal voucher issued on February 3, 1959 (Exh. P) by
which she acknowledged receipt of P850.00 from Eduardo V. Amber,
Treasurer of Nasipit, Agusan, from the partial payment previously made by
Juan Casocot for taxes covering the period May, 29, 1956 to February 2,
1959. Indeed, the Final Bill of Sale (Exh. M) to her, dated February 3,
1959, which had been prepared, was never executed as the Provincial
Treasurer of Agusan never signed it, apparently because the day (February
2, 1959), Juan Casocot had repurchased the properties. That is the reason
why on February 3, 1959 a municipal voucher (Exh. P) for the payment of
P850.00 to Anunciacion G. Javier was made and Anunciacion G. Javier was
actually refunded what she had paid. The trial court, therefore, erred in
holding that, in the alternative, plaintiff-appellees are owners of the lands
in question by virtue of a right of repurchase from the Provincial
Government of Agusan.
"Third. The four parcels of land covered by TD No. 2667 (Exh. B), TD No.
3227 (Exh. C), TD No. 12009 (Exh. D), and TD No. 2666 (Exh. F) were sold
to Restituta and Fermin Casocot by virtue of a deed of sale made by Juan
Casocot on April 19, 1960. However, the trial court declared the sale to be
simulated and therefore void based on its finding that Juan Casocot was
already in his 80s when he signed the contract in 1960. There is, however,
no proof that he did not know the contents of the documents or that he did
not intend the deed of sale at all. The trial court unwarrantedly theorized
that because the properties were valuable properties, Juan Casocot could
not have intended to sell them.

Page

Code, art. 278).

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Atty. Arceno
"Indeed, the fact is that the deed of sale was duly notarized and the notary
public, Atty. Noli G. Cortel, testified that from his observation, there was
nothing either in the mental or physical condition of Juan Casocot to
indicate that he was not in the full possession of his mental faculties when
he executed the deed of sale in favor of Restituta and Fermin Casocot.
Moreover, Atty. Cortel testified that he interpreted the contents of the
document in the Visayan dialect to Juan Casocot and that afterward Juan
Casocot voluntarily affixed his signature to the document. (TSN, pp. 9, 1112, Sept. 6, 1991). Needless to say, a public document, which is executed
with all the solemnities of the law, should not be set aside on such slender
grounds as those cited by the trial court.
"Fourth. The trial court also erred in not ruling that the present action is
barred by the order of Court of First Instance of Agusan in Civil Case No.
896 (Juan Casocot v. Restituta Casocot and Fermin Casocot), dismissing a
complaint for the nullification of the deed of sale. (Exh. U) That order,
issued on August 10, 1965, became final and it constitutes res judicata in
this case, as no appeal appears to have been taken from it. The trial court
found the dismissal erroneous allegedly because Juan Casocot had not
been notified of the hearing on July 24, 1965 in Civil case No. 896. But the
trial court did not have the power to reopen that case. It was improper for
it to do so, since the order of dismissal was final.
"WHEREFORE, the decision appealed from is REVERSED and the complaint
in this case is DISMISSED in so far as it seeks the recovery of the title and
possession of the four parcels of land covered by TD No. 2667 (Exh. B), TD
No. 3227 (Exh. C), TD No. 1209 (Exh. D), TD No. 2666 (Exh. F). In other
respects, the decision appealed from is AFFIRMED. 1
In this petition for review, petitioners raise the following assignment of
errors:jgc:chanrobles.com.ph
"1. The appellate court gravely erred in reversing the trial courts decision
holding that Catalino Gono was the acknowledged natural child of Juan
Casocot by his common law wife, and that the deceased Juan Casocots
declaration in his deed of donation to Eugenia Gonzales, wife of Catalino
Gono, that the deceased was giving the land in donation to the surviving
wife of my son is sufficient recognition.
"2. The appellate court gravely erred in reversing the trial courts decision
holding that when the land in question was sold at public auction or failure
to pay taxes the same was brought by Anunciacion Gono-Javier who is one
of the petitioners herein, hence the questioned land belongs to the
petitioners.
"3. The appellate court gravely erred in reversing the trial courts decision
holding that the alleged sale between the late Juan Casocot and the private

"4. The appellate court gravely erred in ruling that the action for recovery
of possession and ownership filed by the herein petitioners with the trial
court is barred by the dismissal of the complaint for nullification of the
Deed of Sale filed by the deceased Juan Casocot himself during his lifetime,
which was dismissed, for his failure to attend the hearing wherein he was
not notified. 2
Petitioners first assignment of error would have been impressed with merit
had the acknowledgment in the deed of donation in 1954 been extended to
Catalino prior to his death some time in 1942 or 1943. Juan Casocot
himself died in 1964. Article 278 of the New Civil Code, the law applicable
in 1954, 3 provided:chanrob1es virtual 1aw library
Art. 278. Recognition shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing. (Emphasis
supplied).
The statement made in the deed of donation, a public document, executed
by Juan Casocot in favor of Eugenia Gonzales, widow of Catalino, i.e., that
among the reasons for the donation was that the donee was "the surviving
spouse of my son with my common law wife," would have well been explicit
enough or, at the very least, sufficient to make it fall within the purview of
the doctrine of incidental recognition. Unfortunately for petitioners,
however, the recognition came too late. The donation, whereon the
questioned statement appeared, was made on 29 march 1954, or about 11
years after the death of Catalino in 1942 or 1943.
The provisions of the Civil Code 4 on acknowledgment would really indicate
that voluntary acknowledgment can legally be effected only during the
lifetime of both the acknowledging parent and the acknowledged
illegitimate child. When that voluntary recognition is so timely made, as
above, an action for its judicial declaration can survive the death of either
or both parties (see Gaspay, Jr. v. Court of Appeals, G.R. No. 102372, 15
November 1994). The reason for this latter rule is that the due recognition
of an illegitimate child in a record of birth, a will, a statement before a
court of record, or in any authentic writing (Art. 278, Civil Code) is, in
itself, a consummated act or acknowledgment of the child, and no further
court action is required (see Divinagracia v. Bellosillo, 143 SCRA 356),
albeit not prohibited, to yet have it declared as such. When a party is so
minded as to still bring an action on the basis of such voluntary
acknowledgment, no time frame for initiating it would obviously be a
constraint.
Parenthetically, where, a claim for recognition is predicated on other
evidence merely tending to prove paternity, i.e., outside of a record of
birth, a will, a statement before a court of record or an authentic writing,

Page

respondents herein were simulated hence null and void.

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Atty. Arceno
judicial action within the applicable statute of limitations 5 is essential in
order to establish the childs acknowledgment; it is only a ground for the
child to compel, by a judicial action, recognition by his assumed parent. 6
Petitioners, in their second and third assignment of errors, would want us
to reverse the Court of Appeals in finding: (a) that while petitioner
Anunciacion Gono-Javier was issued a Certificate of Repurchase (Exh. "N")
on 20 June 1956, she was, however, fully refunded for the price paid and
actual redemption was, in truth, made by Juan Casocot and (b) that the
deed of sale executed by Juan Casocot, duly notarized, was validly
executed. These factual findings by the appellate court, having been amply
explained and substantiated by it, should not further be disturbed.
Petitioners take issue, finally, with the Court of Appeals in holding that
petitioners action to nullify the deed of sale to private respondents is, in
any event, barred by the order of dismissal thereof by the then Court of
First Instance of Agusan in Civil Case No. 896, entitled "Juan Casocot v.
Restituta Casocot and Fermin Casocot." Suffice it to say that an
unconditional dismissal of an action for failure to prosecute under Section
3, Rule 17, of the Rules of Court is with prejudice and has the effect of an
adjudication on the merits (Guanzon v. Mapa, 7 SCRA 457; Insular Veneer,
Inc. v. Plan, 73 SCRA 1).
All told, we find no valid justification for sustaining the petition.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED. Costs
against petitioners.
SO ORDERED.

FIRST DIVISION
[G.R. No. 46746. March 15, 1990.]
LIGAYA GAPUSAN-CHUA, Petitioner, v. COURT OF APPEALS and
PROSPERO PARCON,Respondents.
Citizens Legal Assistance Office for Petitioner.
Gil B. Parreno for Respondent.

SYLLABUS

1. CIVIL LAW; FILIATION; RECOGNITION OF NATURAL CHILDREN;


VOLUNTARY AND COMPULSORY RECOGNITION; DISTINGUISHED.
Recognition of natural children may be voluntary or compulsory. Voluntary
recognition, it has been said, "is an admission of the fact of paternity or
maternity by the presumed parent, expressed in the form prescribed by
the Civil Code. Its essence lies in the avowal of the parent that the child is
his; the formality is added to make the admission incontestable, in view of
its consequences." The form is prescribed by Article 278 of the Civil Code,
earlier adverted to; it provides that a voluntary recognition "shall be made
in the record of birth, a will, a statement before a court of record, or in any
authentic writing." Compulsory recognition is sometimes also called judicial
recognition, to distinguish it from that which is a purely voluntary act of the
parent. It is recognition decreed by final judgment of a competent court. It
is governed by Articles 283 and 284, setting forth the cases in which the
father or mother, respectively, is obliged to recognize a natural child, and
Article 285, providing that generally, the action for recognition of natural
children may be brought only during the lifetime of the presumed parents.
2. ID.; ID.; ID.; JUDICIAL APPROVAL, NOT NECESSARY IF RECOGNITION
IS VOLUNTARILY MADE. The matter of whether or not judicial approval is
needful for the efficacy of voluntary recognition is dealt with in Article 281
of the Civil Code. ART. 281. A child who is of age cannot be recognized
without his consent. When the recognition of a minor does not take place in
a record of birth or in a will, judicial approval shall be necessary. A minor
can in any case impugn the recognition within four years following the
attainment of his majority. In other words, judicial approval is not needed if
a recognition is voluntarily made 1) of a person who is of age, only his
consent being necessary; or 2) of a minor whose acknowledgment is

Page

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Atty. Arceno
effected in a record of birth or in a will. It is admitted on all sides that no
judicial action or proceeding was ever brought during the lifetime of Felisa
to compel her to recognize Ligaya as her daughter. It is also evident that
Ligayas recognition as Felisas daughter was not made in a record of birth
or a will, a circumstance which would have made judicial approval
unnecessary, only her own consent to the recognition being required. The
acknowledgment was made in authentic writings, and hence, conformably
with the legal provisions above cited, judicial approval thereof was needed
if the writings had been executed during Ligayas minority. In other words,
the question of whether or not the absence of judicial approval negated the
effect of the writings as a mode of recognition of Ligaya is dependent upon
the latters age at the time the writings were made.
3. ID.; ID.; ID.; INSTANCES WHEN JUDICIAL APPROVAL OF RECOGNITION
OF MINOR IS NEEDED. Judicial approval is needful if the recognition of
the minor is effected, not through a record of birth or in a will but through
a statement in a court of record or an authentic document. In any case the
individual recognized can impugn the recognition within four years
following the attainment of his majority.
4. ID.; ID.; ID.; "AUTHENTIC WRITING", DEFINED. "An authentic
writing for purposes of voluntary recognition . . . (is) understood as a
genuine or indubitable writing of the father" (or mother), including "a
public instrument (one acknowledged before a notary public or other
competent official with the formalities required by law), and, of course, a
public or official document in accordance with Section 20, Rule 132 of the
Rules of Court. The sworn statement of assets and liabilities filed by Felisa
Parcon is a public document, having been executed and submitted
pursuant to a requirement of the law. So it has been held by this Court.
5. ID.; ID.; ID.; CONSENT REQUIRED IN VOLUNTARY RECOGNITION OF A
PERSON OF AGE MAYBE GIVEN EXPRESSLY OR TACITLY. The consent
required by Article 281 of a person of age who has been voluntarily
recognized may be given expressly or tacitly. Assuming then that Ligaya
was of age at the time of her voluntary recognition, the evidence shows
that she has in fact consented thereto. Her consent to her recognition is
not only implicit from her failure to impugn it at any time before her
mothers death, but is made clearly manifest and conclusive by her
assertion of that recognition in the judicial proceeding for the settlement of
her mothers estate as basis for her rights thereto. Assuming on the other
hand, that she was a minor at the time of her recognition, and therefore
judicial approval of the recognition was necessary, the absence thereof was
cured by her ratification of that recognition, after having reached the age
of majority, by her initiation of the proceedings for the settlement of her
deceased mothers estate on the claim precisely that she was the
decedents acknowledged natural daughter.
6. ID.; ID.; ID.; LACK OR INSUFFICIENCY OF JUDICIAL APPROVAL; NOT A

DECISION

NARVASA, J.:

Felisa Gapusan Parcon died intestate and without legitimate issue on April
6, 1966 in Bacolod City. Neither her surviving spouse, Prospero Parcon, nor
her other known relatives three (3) sisters and a nephew - made any
move to settle her estate judicially.chanrobles virtual lawlibrary
It was Ligaya Gapusan-Chua, claiming to be an acknowledged natural
daughter of Felisa Gapusan Parcon, who instituted judicial proceedings for
the settlement of the latters estate. About a year and eight months after
Felisas demise, or on January 15, 1968, Ligaya filed with the Court of First
Instance of Negros Occidental a petition for the settlement of the estate
and for issuance of letters of administration in her favor. 1 She also sought
her designation as Special Administratrix pending her appointment as
regular administratrix. 2
By Order dated January 16, 1968, the Court appointed Ligaya Special
Administratrix of Felisa Parcons estate.
On April 22, 1968, Prospero Parcon, Felisa Parcons surviving husband, filed
a motion for reconsideration of the Order of January 16, 1968. 3 He denied
that Ligaya was an acknowledged natural child of his deceased wife, and
applied for his own appointment as administrator of his wifes estate. 4
Hearings were had on the issue of Ligayas claimed filiation. Ligaya
presented, among other proofs, 5 the following documents:chanrob1es
virtual 1aw library
a) Felisa Parcons sworn statement of assets and liabilities wherein Ligaya

Page

DEFECT AVAILABLE TO THE RECOGNIZING PARENT. The requirement of


judicial approval imposed by Article 281 is clearly intended for the benefit
of the minor. "The lack of judicial approval can not impede the effectivity of
the acknowledgment made. The judicial approval is for the protection of
the minor against any acknowledgment made to his prejudice." "Therefore,
the lack or insufficiency of such approval is NOT a defect available to the
recognizing parent but one which the minor may raise or waive. If after
reaching majority the minor consents to the acknowledgment, the lack of
judicial approval should make no difference. Implied consent to the
acknowledgment may be shown (e.g.,) by such acts as keeping, even after
reaching the age of majority, the acknowledgment papers and the use of
the parents surname."

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Atty. Arceno
is named and described as the daughter of Felisa (Exh. 4);
b) Felisa Parcons application for GSIS life insurance in which Ligaya is set
out as her (Felisas) daughter (Exh. 3);
c) Check No. 44046 of the Government Service Insurance System in the
sum of P505.50 paid to her (Ligaya) as her share in the death benefits due
the heirs of Felisa Parcon (Exh. 2); and
d) a family photograph, showing Ligaya beside the deceased (Exh. 1).
Prospero Parcon, on the other hand, sought to demonstrate that Ligayas
exhibits did not constitute conclusive proof of her claimed status of
acknowledged natural child, for the reason that:chanrob1es virtual 1aw
library
a) another document, Felisas application for membership in Negros
Occidental Teachers Federation (NOTF), merely named Ligaya as her
"adopted daughter;"
b) in the distribution of death benefits pursuant to the decedents GSIS
insurance policy, supra, Ligaya was allocated only P500.00 whereas
Prospero received P1,000.00; and
c) Mrs. Leticia Papasin (Felisas sister) and Vice-Mayor Solomon Mendoza
travelled from afar to affirm before the Probate Court on the witness stand
that Ligaya was not the daughter of Felisa, 6 Mrs. Papasins testimony
being that in 1942 an unknown "drifter" had sold Ligaya, then an infant, to
Felisa.
The Probate Court found for Ligaya. Its Order dated April 16, 1969
disposed as follows: 7
"WHEREFORE, it is hereby declared that petitioner is the acknowledged
natural child of the late Felisa Gapusan, and for being the next of kin of the
deceased (Rule 78, Rules of Court), she is hereby appointed regular
administratrix of the properties of the above-mentioned deceased with the
same bond given by her as special administratrix, with costs against the
oppositors." chanrobles law library
On appeal seasonably perfected, the Court of Appeals (Fourth Division), in
a Decision dated April 13, 1977, (1) set aside the Probate Courts Order of
January 16, 1968 (appointing Ligaya Special Administratrix) and of April
16, 1969 (declaring her the decedents acknowledged natural child and
appointing her regular administratrix), and (2) appointed Prospero Parcon
regular administrator of his wifes estate. In that Courts view, the evidence
at best showed merely that Ligaya had been treated as a daughter by
Felisa, but that this did "not constitute acknowledgment" but "only a

Here, Ligaya insists that the evidence submitted by her does indeed
sufficiently establish her status as the acknowledged natural child of Felisa
Parcon, and that her appointment as regular administratrix is justified by
law and jurisprudence.
More particularly, she contends that the sworn statement of assets and
liabilities, a public document submitted by the decedent pursuant to a legal
requirement therefor, and the latters application for life insurance were in
law indubitable recognition by her mother of her status as an
acknowledged natural child, voluntarily made, and were adequate
foundation for a judicial declaration of her status as heir. These statements,
she alleges, were "authentic writings" in contemplation of Article 278 of the
Civil Code:chanrob1es virtual 1aw library
ART. 278. Recognition shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing."cralaw
virtua1aw library
These, she contends, together with her treatment as a daughter by Felisa
a fact found to have been established by the evidence by both the Trial
Court and the Court of Appeals eliminate all doubt about the juridical
verity of her recognition as a natural child.
Prospero Parcon disagrees. He argues that, as ruled by the Court of
Appeals, the statements designating Ligaya as Felisas daughter merely
furnished ground for Ligaya to compel recognition by action which,
however, should have been brought during the lifetime of the putative
parent in accordance with Article 285 of the Civil Code, reading as
follows:chanrobles law library
ART. 285. The action for the recognition of natural children may be brought
only during the lifetime of the presumed parents, except in the following
cases:chanrob1es virtual 1aw library
(1) If the father or mother died during the minority of the child, in which
case the latter may file the action before the expiration of four years from
the attainment of his majority;
(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.
In this case, the action must be commenced within four years from the

Page

ground to compel recognition;" and that Ligaya had failed to establish that
she had been acknowledged by Felisa in accordance with Article 278 of the
Civil Code (Article 131 of the Civil Code of 1889). Appeal has in turn been
taken from this judgment to this Court by Ligaya Gapusan-Chua.

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Atty. Arceno
finding of the document.
Since, Parcon continues, no such action was instituted prior to the death of
Felisa, proof of the "authentic document" (sworn statement of assets and
liabilities) in the proceedings for the settlement of the latters estate was
inefficacious as basis for a declaration of filiation or heirship.
The issue thus presented is whether or not Felisas sworn statement of
assets and liabilities and her application for insurance are "authentic
writings" which effectively operated as a recognition of Ligaya GapusanChua as her natural child, even if no action was brought by the latter to
compel the former, during her lifetime, to recognize her as such.
Recognition of natural children may be voluntary or compulsory. 8
Voluntary recognition, it has been said, "is an admission of the fact of
paternity or maternity by the presumed parent, expressed in the form
prescribed by the Civil Code. Its essence lies in the avowal of the parent
that the child is his; the formality is added to make the admission
incontestable, in view of its consequences." 9 The form is prescribed by
Article 278 of the Civil Code, earlier adverted to; it provides that a
voluntary recognition "shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing." 10
Compulsory recognition is sometimes also called judicial recognition, to
distinguish it from that which is a purely voluntary act of the parent. 11 It
is recognition decreed by final judgment of a competent court. It is
governed by Articles 283 and 284, setting forth the cases in which the
father or mother, respectively, is obliged to recognize a natural child, and
Article 285, providing that generally, the action for recognition of natural
children may be brought only during the lifetime of the presumed parents.
12
The matter of whether or not judicial approval is needful for the efficacy of
voluntary recognition is dealt with in Article 281 of the Civil Code. 13
ART. 281. A child who is of age cannot be recognized without his consent.
When the recognition of a minor does not take place in a record of birth or
in a will, judicial approval shall be necessary.
A minor can in any case impugn the recognition within four years following
the attainment of his majority.
In other words, judicial approval is not needed if a recognition is voluntarily
made
1) of a person who is of age, only his consent being necessary; or

On the other hand, judicial approval is needful if the recognition of the


minor is effected, not through a record of birth or in a will but through a
statement in a court of record or an authentic document. In any case the
individual recognized can impugn the recognition within four years
following the attainment of his majority. 14
Now, there are no less than three (3) writings submitted in evidence in this
case in which Felisa Gapusan Parcon describes Ligaya Gapusan-Chua as her
daughter, viz.:chanrob1es virtual 1aw library
a) Felisas sworn statement of assets and liabilities, in which she names
and describes Ligaya as her daughter (Exh. 4);
b) her application for GSIS life insurance in which she again describes
Ligaya as her daughter (Exh. 3); and
c) her application for membership in the Negros Occidental Teachers
Federation, where she names Ligaya as her "adopted daughter" (Exh. 1).
Each of these writings is undoubtedly an "authentic writing" within the
contemplation of Article 278. "An authentic writing for purposes of
voluntary recognition . . . (is) understood as a genuine or indubitable
writing of the father" (or mother), including "a public instrument (one
acknowledged before a notary public or other competent official with the
formalities required by law), 15 and, of course, a public or official
document in accordance with Section 20, Rule 132 of the Rules of Court.
The sworn statement of assets and liabilities filed by Felisa Parcon is a
public document, having been executed and submitted pursuant to a
requirement of the law. So it has been held by this Court. 16 The other two
writings above mentioned are, to be sure, not public documents, but this is
of no moment; neither of them has to be a public document in order to be
categorized as an "authentic writing." It is enough that they are the
genuine or indubitable writings of Felisa Gapusan Parcon. That in one of the
writings, Felisas application for membership in the Negros Occidental
Teachers Federation, Felisa describes Ligaya as her "adopted" daughter is
also inconsequential. It may be explained by her reluctance to confess
publicly to her colleagues in the teaching profession that she had borne a
child out of wedlock. It is in any case a categorical avowal by Felisa that
Ligaya is indeed her daughter, an admission entirely consistent with the
two other authentic writings executed by her in which she acknowledges
Ligaya to be her daughter without qualification. Moreover, if these three (3)
writings are considered in conjunction with the undisputed fact that Ligaya
had been continuously treated by Felisa as her daughter, the proposition
that Ligaya was indeed Felisas daughter becomes well nigh

Page

2) of a minor whose acknowledgment is effected in a record of birth or in a


will.

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Atty. Arceno
conclusive.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
It is admitted on all sides that no judicial action or proceeding was ever
brought during the lifetime of Felisa to compel her to recognize Ligaya as
her daughter. It is also evident that Ligayas recognition as Felisas
daughter was not made in a record of birth or a will, a circumstance which
would have made judicial approval unnecessary, only her own consent to
the recognition being required. The acknowledgment was made in
authentic writings, and hence, conformably with the legal provisions above
cited, judicial approval thereof was needed if the writings had been
executed during Ligayas
minority. 17 In other words, the question of whether or not the absence of
judicial approval negated the effect of the writings as a mode of recognition
of Ligaya is dependent upon the latters age at the time the writings were
made.
The point need not be belabored, however. For whether Ligaya were still a
minor or already of age at the time of her recognition in the authentic
writings mentioned, that circumstance would be immaterial in the light of
the attendant facts.
In the first place, the consent required by Article 281 of a person of age
who has been voluntarily recognized may be given expressly or tacitly. 18
Assuming then that Ligaya was of age at the time of her voluntary
recognition, the evidence shows that she has in fact consented thereto. Her
consent to her recognition is not only implicit from her failure to impugn it
at any time before her mothers death, but is made clearly manifest and
conclusive by her assertion of that recognition in the judicial proceeding for
the settlement of her mothers estate as basis for her rights thereto.
Assuming on the other hand, that she was a minor at the time of her
recognition, and therefore judicial approval of the recognition was
necessary, the absence thereof was cured by her ratification of that
recognition, after having reached the age of majority, by her initiation of
the proceedings for the settlement of her deceased mothers estate on the
claim precisely that she was the decedents acknowledged natural
daughter. 19 The requirement of judicial approval imposed by Article 281 is
clearly intended for the benefit of the minor. "The lack of judicial approval
can not impede the effectivity of the acknowledgment made. The judicial
approval is for the protection of the minor against any acknowledgment
made to his prejudice." 20 "Therefore, the lack or insufficiency of such
approval is NOT a defect available to the recognizing parent but one which
the minor may raise or waive. If after reaching majority the minor consents
to the acknowledgment, the lack of judicial approval should make no
difference. Implied consent to the acknowledgment may be shown (e.g.,)
by such acts as keeping, even after reaching the age of majority, the
acknowledgment papers and the use of the parents surname." 21

WHEREFORE, the challenged decision of the Court of Appeals (Fourth


Division) dated April 13, 1977 is hereby REVERSED AND SET ASIDE, and
the Orders of the Probate Court dated January 16, 1968 appointing
Ligaya Gapusan-Chua Special Administratrix and of April 16, 1969
declaring said Ligaya Gapusan-Chua the decedents acknowledged natural
child and appointing her regular administratrix are REINSTATED AND
HEREBY AFFIRMED, without pronouncement as to costs.
SO ORDERED.

Page

Upon the foregoing facts and considerations, Ligaya Gapusan Chua must be
held to be a voluntarily acknowledged natural child of Felisa Gapusan
Parcon. She is therefore entitled, in accordance with Article 282 of the Civil
Code, to bear her mothers surname, and to receive the hereditary portion
accorded to her by the Code.chanrobles.com:cralaw:red

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Atty. Arceno

[G.R. No. 76873. October 26, 1989.]


DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO & DOMINADOR,
all surnamed UYGUANGCO, Petitioners, v. COURT OF APPEALS,
Judge SENEN PEARANDA and GRACIANO BACJAO
UYGUANGCO, Respondents.
Constantino G. Jaraulla, for Petitioners.
Anthony Santos for Respondents.

SYLLABUS

1. PERSONS AND FAMILY RELATIONS, ILLEGITIMATE CHILD; CLAIMED


FILIATION ALLOWED TO BE ESTABLISHED BY ANY OTHER MEANS
ALLOWED BY THE RULES OF COURT AND SPECIAL LAWS. The
illegitimate child is now also allowed to establish his claimed filiation by
"any other means allowed by the Rules of Court and special laws," like his
baptismal certificate, a judicial admission, a family Bible in which his name
has been entered, common reputation respecting his pedigree, admission
by silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court.
2. ID.; ID.; ACTION TO PROVE FILIATION REQUIRED TO BE BROUGHT
DURING THE LIFETIME OF THE ALLEGED PARENT. The problem of the
private respondent, however, is that, since he seeks to prove his filiation
under the second paragraph of Article 172 of the Family Code, his action is
now barred because of his alleged fathers death in 1975. The second
paragraph of this Article 175 reads as follows: The action must be brought
within the same period specified in Article 173, except when the action is
based on the second paragraph of Article 172, in which case the action
may be brought during the lifetime of the alleged parent. (Emphasis
supplied.) It is clear that the private respondent can no longer be allowed
at this time to introduce evidence of his open and continuous possession of
the status of an illegitimate child or prove his alleged filiation through any
of the means allowed by the Rules of Court or special laws. The simple
reason is that Apolinario Uyguangco is already dead and can no longer be
heard on the claim of his alleged sons illegitimate filiation.
3. ID.; ID.; ID.; RATIONALE OF THE RULE. In her Handbook on the
Family Code of the Philippines, Justice Alicia Sempio-Diy explains the

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FIRST DIVISION

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Atty. Arceno
rationale of the rule, thus: "It is a truism that unlike legitimate children
who are publicly recognized, illegitimate children are usually begotten and
raised in secrecy and without the legitimate family being aware of their
existence. Who then can be sure of their filiation but the parents
themselves? But suppose the child claiming to be the illegitimate child of a
certain person is not really the child of the latter? The putative parent
should thus be given the opportunity to affirm or deny the childs filiation,
and this, he or she cannot do if he or she is already dead."cralaw virtua1aw
library
4. ID.; ID.; ID.; ACTION BARED BY DEATH OF ALLEGED PARENT.
Gracianos complaint is based on his contention that he is the illegitimate
child of Apolinario Uyguangco, whose estate is the subject of the partition
sought. If this claim can no longer be proved in an action for recognition,
with more reason should it be rejected in the said complaint, where the
issue of Gracianos filiation is being raised only collaterally. The complaint is
indeed a circumvention of Article 172, which allows proof of the illegitimate
childs filiation under the second paragraph thereof only during the lifetime
of the alleged parent. Considering that the private respondent has, as we
see it, established at least prima facie proof of his alleged filiation, we find
it regrettable that his action should be barred under the said article. But
that is the law and we have no choice but to apply it.

DECISION

CRUZ, J.:

The issue before the Court is not the status of the private respondent, who
has been excluded from the family and inheritance of the petitioners. What
we are asked to decide is whether he should be allowed to prove that he is
an illegitimate child of his claimed father, who is already dead, in the
absence of the documentary evidence required by the Civil
Code.chanrobles.com : virtual law library
The trial court said he could and was sustained by the respondent Court of
Appeals. 1 The latter court held that the trial judge had not committed any
grave abuse of discretion or acted without jurisdiction in allowing the
private respondent to prove his filiation. Moreover, the proper remedy was
an ordinary appeal and not a petition for prohibition. The petitioners ask for
a reversal of these rulings on the ground that they are not in accordance
with law and jurisprudence.
Apolinario Uyguangco died intestate in 1975, leaving his wife, Dorotea, four
legitimate children (her co-petitioners herein), and considerable properties

Graciano alleged that he was born in 1952 to Apolinario Uyguangco and


Anastacia Bacjao and that at the age of 15 he moved to his fathers
hometown at Medina, Misamis Oriental, at the latters urging and also of
Dorotea and his half-brothers. Here he received support from his father
while he was studying at the Medina High School, where he eventually
graduated. He was also assigned by his father, without objection from the
rest of the family, as storekeeper at the Uyguangco store in Mananom from
1967 to 1973. 4
In the course of his presentation of evidence at the trial, the petitioners
elicited an admission from Graciano that he had none of the documents
mentioned in Article 278 to show that he was the illegitimate son of
Apolinario Uyguangco. 5 These are "the record of birth, a will, a statement
before a court of record, or (in) any authentic writing." The petitioners
thereupon moved for the dismissal of the case on the ground that the
private respondent could no longer prove his alleged filiation under the
applicable provisions of the Civil Code. 6
Specifically, the petitioners argued that the only evidence allowed under
Article 278 to prove the private respondents claim was not available to him
as he himself had admitted. Neither could he now resort to the provisions
of Article 285 because he was already an adult when his alleged father died
in 1975, and his claim did not come under the exceptions. The said article
provides as follows:chanrob1es virtual 1aw library
ART. 285. The action for the recognition of natural children may be brought
only during the lifetime of the presumed parents, except in the following
cases:chanrob1es virtual 1aw library
(1) If the father or mother died during the minority of the child, in which
case the latter may file the action before the expiration of four years from
the attainment of his majority;
(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.
In this case, the action must be commenced within four years from the
finding of the document.chanrobles.com : virtual law library
As earlier related, the motion to dismiss was denied, prompting the
petitioners to seek relief in vain from the respondent court. In the case
now before us, the petitioners reiterate and, emphasize their position that

Page

which they divided among themselves. 2 Claiming to be an illegitimate son


of the deceased Apolinario, and having been left out in the extrajudicial
settlement of his estate, Graciano Bacjao Uyguangco filed a complaint for
partition against all the petitioners. 3

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Atty. Arceno
allowing the trial to proceed would only be a waste of time and effort. They
argue that the complaint for partition is actually an action for recognition
as an illegitimate child, which, being already barred, is a clear attempt to
circumvent the said provisions. The private respondent insists, on the other
hand, that he has a right to show under Article 283 that he is "in
continuous possession of the status of a child of his alleged father by the
direct acts of the latter or of his family."cralaw virtua1aw library
We find that this case must be decided under a new if not entirely
dissimilar set of rules because the parties have been overtaken by events,
to use the popular phrase. The Civil Code provisions they invoke have been
superseded, or at least modified, by the corresponding articles in the
Family Code, which became effective on August 3, 1988.
Under the Family Code, it is provided that:chanrob1es virtual 1aw library
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The following provision is therefore also available to the private respondent
in proving his illegitimate filiation:chanrob1es virtual 1aw library
Art. 172. The filiation of legitimate children is established by any of the
following:chanrob1es virtual 1aw library
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:chanrob1es virtual 1aw library
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
While the private respondent has admitted that he has none of the
documents mentioned in the first paragraph (which are practically the
same documents mentioned in Article 278 of the Civil Code except for the
"private handwritten instrument signed by the parent himself"), he insists
that he has nevertheless been "in open and continuous possession of the
status of an illegitimate child," which is now also admissible as evidence of
filiation.
Thus, he claims that he lived with his father from 1967 until 1973,
receiving support from him during that time; that he has been using the

It must be added that the illegitimate child is now also allowed to establish
his claimed filiation by "any other means allowed by the Rules of Court and
special laws," like his baptismal certificate, a judicial admission, a family
Bible in which his name has been entered, common reputation respecting
his pedigree, admission by silence, the testimonies of witnesses, and other
kinds of proof admissible under Rule 130 of the Rules of Court. 8
The problem of the private respondent, however, is that, since he seeks to
prove his filiation under the second paragraph of Article 172 of the Family
Code, his action is now barred because of his alleged fathers death in
1975. The second paragraph of this Article 175 reads as
follows:chanrob1es virtual 1aw library
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent. (Emphasis supplied.)
It is clear that the private respondent can no longer be allowed at this time
to introduce evidence of his open and continuous possession of the status
of an illegitimate child or prove his alleged filiation through any of the
means allowed by the Rules of Court or special laws. The simple reason is
that Apolinario Uyguangco is already dead and can no longer be heard on
the claim of his alleged sons illegitimate filiation.chanrobles law library
In her Handbook on the Family Code of the Philippines, Justice Alicia
Sempio-Diy explains the rationale of the rule, thus: "It is a truism that
unlike legitimate children who are publicly recognized, illegitimate children
are usually begotten and raised in secrecy and without the legitimate
family being aware of their existence. Who then can be sure of their
filiation but the parents themselves? But suppose the child claiming to be
the illegitimate child of a certain person is not really the child of the latter?
The putative parent should thus be given the opportunity to affirm or deny
the childs filiation, and this, he or she cannot do if he or she is already
dead." 9
Finally, it must be observed that the provisions invoked by the parties are
among those affected by the following articles in the Family

Page

surname Uyguangco without objection from his father and the petitioners
as shown in his high school diploma, a special power of attorney executed
in his favor by Dorotea Uyguangco, and another one by Sulpicio
Uyguangco; that he has shared in the profits of the copra business of the
Uyguangcos, which is a strictly family business; that he was a director,
together with the petitioners, of the Alu and Sons Development
Corporation, a family corporation; and that in the addendum to the original
extrajudicial settlement concluded by the petitioners he was given a share
in his deceased fathers estate. 7

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Code:chanrob1es virtual 1aw library
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic
Act No. 386, otherwise known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of
Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof, inconsistent
herewith are hereby repealed.
Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws.
Gracianos complaint is based on his contention that he is the illegitimate
child of Apolinario Uyguangco, whose estate is the subject of the partition
sought. If this claim can no longer be proved in an action for recognition,
with more reason should it be rejected in the said complaint, where the
issue of Gracianos filiation is being raised only collaterally. The complaint is
indeed a circumvention of Article 172, which allows proof of the illegitimate
childs filiation under the second paragraph thereof only during the lifetime
of the alleged parent.
Considering that the private respondent has, as we see it, established at
least prima facie proof of his alleged filiation, we find it regrettable that his
action should be barred under the said article. But that is the law and we
have no choice but to apply it. Even so, the Court expresses the hope that
the parties will arrive at some kind of rapprochement, based on fraternal
and moral ties if not the strict language of the law, that will allow the
private respondent an equitable share in the disputed estate. Blood should
tell.
WHEREFORE, the petition is GRANTED, and Civil Case No. 9067 in the
Regional Trial Court of Misamis Oriental, Branch 20, is hereby DISMISSED.
It is so ordered.chanrobles.com : virtual law library
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

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FAMILY HOME
FIRST DIVISION

son Audie Salinas;


b. P10,000.00 for the loss of earnings by reason of the death of said Audie
Salinas;
c. the sum of P5,000.00 as burial expenses of Audie Salinas; and
d. the sum of P5,000.00 by way of moral damages.

[G.R. No. 86355. May 31, 1990.]

2. Plaintiffs-appellants Culan-Culan:chanrob1es virtual 1aw library

JOSE MODEQUILLO, Petitioner, v. HON. AUGUSTO V. BREVA,


FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO
CULAN-CULAN and DEPUTY SHERIFF FERNANDO
PLATA,Respondents.
Josefina Brandares-Almazan for Petitioner.
ABC Law Offices for Private Respondents.

a. the sum of P5,000.00 for hospitalization expenses of Renato CulanCulan; and


b. P5,000.00 for moral damages.
3. Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for
attorneys fees and litigation expenses.
All counterclaims and other claims are hereby dismissed." 1

DECISION

GANCAYCO, J.:

The issue in this petition is whether or not a final judgment of the Court of
Appeals in an action for damages may be satisfied by way of execution of a
family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in
CA-G.R. CV No. 09218 entitled "Francisco Salinas, Et. Al. v. Jose
Modequillo, Et Al.," the dispositive part of which read as follows:cralawnad
"WHEREFORE, the decision under appeal should be, as it is hereby,
reversed and set aside. Judgment is hereby rendered finding the
defendants-appellees Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered to pay jointly and severally
to:chanrob1es virtual 1aw library
1. Plaintiffs appellants, the Salinas spouses:chanrob1es virtual 1aw library
a. the amount of P30,000.00 by way of compensation for the death of their

The said judgment having become final and executory, a writ of execution
was issued by the Regional Trial Court of Davao City to satisfy the said
judgment on the goods and chattels of the defendants Jose Modequillo and
Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land located at
Poblacion Malalag, Davao del Sur containing an area of 600 square meters
with a market value of P34,550.00 and assessed value of P7,570.00 per
Tax Declaration No. 87-0008-01359, registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del Sur; and a
parcel of agricultural land located at Dalagbong, Bulacan, Malalag, Davao
del Sur containing an area of 3 hectares with a market value of P24,130.00
and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848
registered in the name of Jose Modequillo in the office of the Provincial
Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was filed by
defendant Jose Modequillo alleging therein that the residential land located
at Poblacion Malalag is where the family home is built since 1969 prior to
the commencement of this case and as such is exempt from execution,
forced sale or attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof; and that the
judgment debt sought to be enforced against the family home of defendant
is not one of those enumerated under Article 155 of the Family Code. As to
the agricultural land although it is declared in the name of defendant it is
alleged to be still part of the public land and the transfer in his favor by the
original possessor and applicant who was a member of a cultural minority

In an order dated August 26, 1988, the trial court denied the motion. A
motion for reconsideration thereof was filed by defendant and this was
denied for lack of merit on September 2, 1988.chanrobles virtual lawlibrary
Hence, the herein petition for review on certiorari wherein it is alleged that
the trial court erred and acted in excess of its jurisdiction in denying
petitioners motion to quash and/or to set aside levy on the properties and
in denying petitioners motion for reconsideration of the order dated August
26, 1988. Petitioner contends that only a question of law is involved in this
petition. He asserts that the residential house and lot was first occupied as
his family residence in 1969 and was duly constituted as a family home
under the Family Code which took effect on August 4, 1988. Thus,
petitioner argues that the said residential house and lot is exempt from
payment of the obligation enumerated in Article 155 of the Family Code;
and that the decision in this case pertaining to damages arising from a
vehicular accident took place on March 16, 1976 and which became final in
1988 is not one of those instances enumerated under Article 155 of the
Family Code when the family home may be levied upon and sold on
execution. It is further alleged that the trial court erred in holding that the
said house and lot became a family home only on August 4, 1988 when the
Family Code became effective, and that the Family Code cannot be
interpreted in such a way that all family residences are deemed to have
been constituted as family homes at the time of their occupancy prior to
the effectivity of the said Code and that they are exempt from execution
for the payment of obligations incurred before the effectivity of said Code;
and that it also erred when it declared that Article 162 of the Family Code
does not state that the provisions of Chapter 2, Title V have a retroactive
effect.
Articles 152 and 153 of the Family Code provide as
follows:jgc:chanrobles.com.ph
"Art. 152. The family home, constituted jointly by the husband and the wife
or by an unmarried head of a family, is the dwelling house where they and
their family reside, and the land on which it is situated."cralaw virtua1aw
library
"Art. 153. The family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides therein,
the family home continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the extent of the
value allowed by law."cralaw virtua1aw library
Under the Family Code, a family home is deemed constituted on a house

Page

was not approved by the proper government agency. An opposition thereto


was filed by the plaintiffs.

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Atty. Arceno
and lot from the time it is occupied as a family residence, There is no need
to constitute the same judicially or extrajudicially as required in the Civil
Code. If the family actually resides in the premises, it is, therefore, a
family home as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit to
the spouses or head of the family who owns the home.
Article 155 of the Family Code also provides as
follows:jgc:chanrobles.com.ph
"Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:chanrob1es virtual 1aw library
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such
constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building."cralaw virtua1aw library
The exemption provided as aforestated is effective from the time of the
constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon
the effectivity of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987 (1988 being
a leap year).chanrobles law library : red
The contention of petitioner that it should be considered a family home
from the time it was occupied by petitioner and his family in 1969 is not
well-taken. Under Article 162 of the Family Code, it is provided that "the
provisions of this Chapter shall also govern existing family residences
insofar as said provisions are applicable." It does not mean that Articles
152 and 153 of said Code have a retroactive effect such that all existing
family residences are deemed to have been constituted as family homes at
the time of their occupation prior to the effectivity of the Family Code and
are exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code. Article 162 simply means that all existing
family residences at the time of the effectivity of the Family Code, are
considered family homes and are prospectively entitled to the benefits

Is the family home of petitioner exempt from execution of the money


judgment aforecited? No. The debt or liability which was the basis of the
judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both preceded the effectivity
of the Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code.
As to the agricultural land subject of the execution, the trial court correctly
ruled that the levy to be made by the sheriff shall be on whatever rights
the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur.
Grio-Aquino, J., is on leave.

Page

accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.

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Page

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ABSENTEES
THIRD DIVISION
[G.R. NO. 163604 : May 6, 2005]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. THE HON. COURT OF
APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO
JOMOC, Respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse
Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City,
Regional Trial Court, Branch 35, by Order of September 29, 1999,1 granted
the petition on the basis of the Commissioner's Report 2 and accordingly
declared the absentee spouse, who had left his petitioner-wife nine years
earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited
Article 41, par. 2 of the Family Code. Said article provides that for the
purpose of contracting a valid subsequent marriageduring the subsistence
of a previous marriage where the prior spouse had been absent for four
consecutive years, the spouse present must institute summary
proceedings for the declaration of presumptive death of the absentee
spouse, without prejudice to the effect of the reappearance of the absent
spouse.
The Republic, through the Office of the Solicitor General, sought to appeal
the trial court's order by filing a Notice of Appeal.3

By Order of November 22, 1999s,4 the trial court, noting that no record of
appeal was filed and served "as required by and pursuant to Sec. 2(a),
Rule 41 of the 1997 Rules of Civil Procedure, the present case being a
special proceeding," disapproved the Notice of Appeal.
The Republic's Motion for Reconsideration of the trial court's order of
disapproval having been denied by Order of January 13, 2000,5 it filed a
Petition for Certiorari6 before the Court of Appeals, it contending that the
declaration of presumptive death of a person under Article 41 of the Family
Code is not a special proceeding or a case of multiple or separate appeals
requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the Republic's
petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form.
It failed to attach to its petition a certified true copy of the assailed Order
dated January 13, 2000[denying its Motion for Reconsideration of the
November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the
petition questioned the [trial court's] Order dated August 15, 1999, which
declared Clemente Jomoc presumptively dead, likewise for having been
issued with grave abuse of discretion amounting to lack of jurisdiction, yet,
not even a copy could be found in the records. On this score alone, the
petition should have been dismissed outright in accordance with Sec. 3,
Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve deeper
into the substantive issue of the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration
of the presumptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial court a
record on appeal to perfect its appeal. Otherwise, if the petition is an
ordinary action, the period to appeal is 15 days from notice or decision or
final order appealed from and the appeal is perfected by filing a notice of
appeal (Section 3, Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is
one by which a party sues another for the enforcement or protection of a

Considering the aforementioned distinction, this Court finds that the


instant petition is in the nature of a special proceeding and not an
ordinary action. The petition merely seeks for a declaration by the trial
court of the presumptive death of absentee spouse Clemente Jomoc. It
does not seek the enforcement or protection of a right or the prevention or
redress of a wrong. Neither does it involve a demand of right or a cause of
action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January
13, 2000 denying OSG's Motion for Reconsideration of the Order dated
November 22, 1999 disapproving its Notice of Appeal was correctly
issued. The instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its Notice of
Appeal, a record on appeal in accordance with Section 19 of the Interim
Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41
of the Rules of Court . . . (Emphasis and underscoring supplied)rl
lbrr
The Republic (petitioner) insists that the declaration of presumptive death
under Article 41 of the Family Code is not a special proceeding involving
multiple or separate appeals where a record on appeal shall be filed and
served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates
the cases wherein multiple appeals are allowed and a record on appeal is
required for an appeal to be perfected. The petition for the declaration of
presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.

Page

right, or the prevention of redress of a wrong" while a special proceeding


under Section 3(c) of the same rule is defined as "a remedy by which a
party seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

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The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. 'Rules of special
proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
By Resolution of December 15, 2004,8 this Court, noting that copy of the
September 27, 2004 Resolution9 requiring respondent to file her comment
on the petition was returned unserved with postmaster's notation "Party
refused," Resolved to consider that copy deemed served upon her.

(l) Constitution of family home;


(m) Declaration of absence and death;

Sec. 2. Applicability of rules of civil actions. 'In the absence of special


provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. (Underscoring
supplied)rllbrr
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not
the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)rllbrr
Upon the other hand, Article 41 of the Family Code, upon which the trial
court anchored its grant of the petition for the declaration of presumptive
death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouses had been absent for four
consecutive years and the spouse present had a well-founded belief that
the absent spouses was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions
of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose pf contracting the subsequent marriage under the
preceding paragraph, the spouses present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of a reappearance of
the absent spouse. (Emphasis and underscoring supplied)rl
lbrr
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal,
invoked by the trial court in disapproving petitioner's Notice of Appeal,
provides:

Page

(n) Cancellation or correction of entries in the civil registry.

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Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its original jurisdiction shall be
taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where
the law or these Rules so require. In such cases, the record on appeal
shall be filed and served in like manner. (Emphasis and underscoring
supplied)rllbrr
xxx
By the trial court's citation of Article 41 of the Family Code, it is gathered
that the petition of Apolinaria Jomoc to have her absent spouse declared
presumptively dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose is a "summary
proceeding," following above-quoted Art. 41, paragraph 2 of the Family
Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN THE FAMILY LAW, contains the following provision, inter
alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in
this Title shall applyin all cases provided for in this Codes
requiring summary court proceedings.Such cases shall be decided in
an expeditious manner without regard to technical rules. (Emphasis
and underscoring supplied)rllbrr
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for the

That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic
Act No. 386, otherwise known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of
Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations rules and regulations, or parts thereof, inconsistent
therewith are hereby repealed, (Emphasis and underscoring supplied),

Page

filing of a Record on Appeal. It being a summary ordinary proceeding, the


filing of a Notice of Appeal from the trial court's order sufficed.

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DECISION

GONZAGA-REYES, J.:

This is a petition for review of the decision 1 of the Court of Appeals in CAG.R. SP Case No. 44306 affirming the orders dated October 22, 1996 and
February 12, 1997 of the Regional Trial Court, Branch 4, Manila. These
orders dismissed the appeal of petitioner from the orders dated April 2,
1981 and April 30,1985 of the same Regional Trial Court.chanrob1es
virtua1 1aw 1ibrary
The facts of the case are as follows:chanrob1es virtual 1aw library

seals the case in petitioner's favor.


Finally, on the alleged procedural flaw in petitioner's petition before the
appellate court. Petitioner's failure to attach to his petition before the
appellate court a copy of the trial court's order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not necessarily
fatal, for the rules of procedure are not to be applied in a technical sense.
Given the issue raised before it by petitioner, what the appellate court
should have done was to direct petitioner to comply with the rule.
As for petitioner's failure to submit copy of the trial court's order granting
the petition for declaration of presumptive death, contrary to the appellate
court's observation that petitioner was also assailing it, petitioner's 8-page
petition10 filed in said court does not so reflect, it merely having assailed
theorder disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for
appropriate action in light of the foregoing discussion.SO ORDERED.
APPEALS IN SPECIAL PROCEEDINGS
THIRD DIVISION
[G.R. No. 138731. December 11, 2000.]
TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, Petitioner,
v. ROSALINA C. BIASCAN, Respondent.

On June 3, 1975, private respondent Rosalina J. Biascan filed a petition, 2


denominated as Special Proceeding No. 98037 at the then Court of First
Instance, Branch 4, Manila praying for her appointment as administratrix of
the intestate estate of Florencio Biascan and Timotea Zulueta. In an Order
dated August 13, 1975, private respondent was appointed as regular
administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of
Florencio Biascan entered her appearance as Oppositor-Movant in SP. Proc.
No. 98037. 3 Simultaneous with her appearance, she filed a pleading
containing several motions including a motion for intervention, a motion for
the setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her appointment as
administratrix of the estate of Florencio Biascan. 4
After an exchange of pleadings between the parties, Judge Serafin Cuevas,
then presiding judge of CFI Manila, Branch 4, issued an Omnibus Order 5
dated November 13, 1975 which, among others, granted Marias
intervention and set for trial the motion to set aside the Orders appointing
respondent as administratrix.
On April 2, 1981, the trial court issued an Order 6 resolving that: (1) Maria
is the lawful wife of Florencio; (2) respondent and her brother are the
acknowledged natural children of Florencio; (3) all three are the legal heirs
of Florencio who are entitled to participate in the settlement proceedings;
(4) the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and
appraisal of private respondent be deferred. Maria, through her counsel,
received a copy of this April 2,1981 Order on April 9,1981. 7
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2,

On November 15, 1981, the fourth floor of the City Hall of Manila was
completely gutted by fire. The records of the settlement proceedings were
among those lost in the fire. Thus, on January 2,1985, private respondent
filed a Petition for Reconstitution 10 of the said records.
Due to the delay caused by the fire and the reconstitution of the records, it
was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4
issued an Order 11 denying Marias June 6, 1981 Motion for
Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the
subject of settlement proceedings. Atty. Marcial F. Lopez was appointed as
interim special administrator and engaged the services of the Siguion
Reyna Montecillo and Ongsiako Law Offices on behalf of the estate.
On August 21, 1996, the law firm was allegedly made aware of and given
notice of the April 30, 1985 Order when its associate visited Branch 4 of
the Regional Trial Court of Manila to inquire about the status of the case.
The associate checked the records if there was proof of service of the April
30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but
he discovered that there was none. 12 He was able to secure a certification
13 from the Clerk of Court of the Regional Trial Court of Manila, Branch 4
which stated that there was no proof of service of the Order dated April 30,
1985 contained in the records of SP. Proc. No. 98037.
A Notice of Appeal 14 dated April 22, 1996 was filed by petitioner from the
Orders dated April 2, 1981 and April 30, 1985 of the trial court. While the
said notice of appeal was dated April 22, 1996, the stamp of the trial court
on the first page of the notice dearly indicated that the same was received
by the trial court on September 20, 1996. A Record of Appeal 15 dated
September 20, 1996 was likewise filed by petitioner.
On October 22,1996, the trial court issued an Order 16 denying petitioners
appeal on the ground that the appeal was filed out of time. The trial court
ruled that the April 2, 1981 Order which was the subject of the appeal
already became final as the Motion for Reconsideration thereof was filed
sixty-five (65) days after petitioner received the same. In addition, the
court ruled that the notice of appeal itself was filed manifestly late as the
same was filed more than 11 years after the issuance of the June 11, 1985
Order denying petitioners Motion for Reconsideration. The Motion for
Reconsideration dated November 13, 1996 of petitioner was likewise
denied by the trial court in an Order 17 dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition for Certiorari with
Prayer for Mandatory Injunction 18 with the Court of Appeals questioning

Page

1981 Order, Maria filed her motion for reconsideration 8 which private
respondent opposed. 9

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Atty. Arceno
the October 12,1996 and February 12,1997 Orders of the Regional Trial
Court.chanrob1es virtua1 1aw 1ibrary
In a Decision 19 dated February 16, 1999, the First Division of the Court of
Appeals denied the petition for certiorari of petitioner. Petitioners Motion
for Reconsideration was likewise denied by the appellate court in a
Resolution 20 dated May 18,1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth the
following ground for the reversal of the decision of the appellate
court:jgc:chanrobles.com.ph
"THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT)
HAS SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF
MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF
JUDICIAL PROCEEDINGS IN ISSUING THE ASSAILED 16 FEBRUARY 1999
DECISION AND THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE
ERRONEOUS FINDING OF THE TRIAL COURT THAT THE ORDER DATED
APRIL 2, 1981 BECAME FINAL AND EXECUTORY DESPITE THE FACT THAT
NO OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO
RULING AS REGARDS ITS TIMELINESS WAS MADE." 21
There is no merit in the petition.
Section 1, Rule 109 of the Rules of Court enumerates the orders and
judgments in special proceedings which may be the subject of an appeal.
Thus:jgc:chanrobles.com.ph
"SECTION 1. Orders or judgments from which appeals maybe taken. An
interested person may appeal in a special proceeding from an order or
judgment rendered by a Regional Trial Court or a Juvenile and Domestic
Relations Court, where such order or judgment:chanrob1es virtual 1aw
library
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the
distributive shares of the estate to which such person is entitled;
(c) Allows, or disallows, in whole or in part, any claim against the estate of
a deceased person, or any claim presented on behalf of the estate in offset
to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing,

(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for new trial or for reconsideration."cralaw virtua1aw
library
An appeal is allowed in these aforesaid cases as these orders, decrees or
judgments issued by a court in a special proceeding constitute a final
determination of the rights of the parties so appealing. 22 In contrast,
interlocutory orders are not appealable as these are merely incidental to
judicial proceedings. In these cases, the court issuing such orders retains
control over the same and may thus modify, rescind, or revoke the same
on sufficient grounds at any time before final judgment. 23
In the instant case, the Order dated April 2,1981 of the trial court decreed,
among others, that Maria Manuel Vda. De Biascan, the lawful wife of the
deceased Florencio Biascan, private respondent Rosalina Biascan and her
brother, German Biascan, are entitled to participate in the settlement
proceedings. Moreover, the said Order likewise denied Marias motion to set
aside the order appointing private respondent as regular administratrix of
the estate. These rulings of the trial court were precisely questioned by
Maria in her Motion for Reconsideration dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina Biascan
and German Biascan were entitled to participate in the settlement
proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the
Rules of Court as a proper subject of appeal. By so ruling, the trial court
has effectively determined that The three persons are the lawful heirs of
the deceased. As such, the same may be me proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioners motion to set
aside the order appointing private respondent as the regular administratrix
of the estate of Florencio Bisacan is likewise a proper subject of an appeal.
We have previously held that an order of the trial court appointing a
regular administrator of a deceased persons estate is a final determination
of the rights of the parties thereunder, and is thus, appealable. 24 This is in
contrast with an order appointing a special administrator who is appointed
only for a limited time and for a specific purpose. Because of the temporary
character and special character of this appointment, the Rules deem it not
advisable for any party to appeal from said temporary appointment. 25
Considering however that private respondent has already been appointed
as regular administratrix of the estate of Florencio Biascan, her
appointment as such may be questioned before the appellate court by way
of appeal.chanrob1es virtua1 1aw 1ibrary
It is thus clear that the Order dated April 2, 1981 may be the proper

Page

except that no appeal shall be allowed from the appointment of a special


administrator; and

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subject of an appeal in a special proceeding. In special proceedings, such
as the instant proceeding for settlement of estate, the period of appeal
from any decision or final order rendered therein is thirty (30) days, a
notice of appeal and a record on appeal being required. 26 The appeal
period may only be interrupted by the filing of a motion for new trial or
reconsideration. Once the appeal period expires without an appeal or a
motion for reconsideration or new trial being perfected, the decision or
order becomes final.
With respect to the Order dated April 2, 1981 issued by the trial court,
petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-ininterest, received a copy of the same of April 9, 1981. Applying these rules,
Maria or her counsel had thirty (30) days or until May 9 within which to file
a notice of appeal with record on appeal. She may also file a motion for
reconsideration, in which case the appeal period is deemed interrupted.
Considering that it was only on June 6,1981, or a full fifty-eight (58) days
after receipt of the order, that a motion for reconsideration was filed, it is
clear that the same was filed out of time. As such, when the said motion
for reconsideration was filed, there was no more appeal period to interrupt
as the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the trial
court did not become final and executory as no opposition on its timeliness
was filed and no ruling as regards its timeliness was made. Petitioner
argues that although its motion for reconsideration was denied in the Order
dated April 30, 1985, the denial was made on grounds other than its failure
to ask for a reconsideration within the period prescribed by law. As such,
petitioner concludes, any procedural defect attending the Motion for
Reconsideration was deemed cured when the trial court, in its Order dated
April 30, 1985, took cognizance of the same and rendered its ruling
thereon.
There is no merit in this argument.
It is well-settled that judgments or orders become final and executory by
operation of law and not by judicial declaration. Thus, finality of a
judgment becomes a fact upon the lapse of the reglementary period of
appeal if no appeal is perfected 27 or motion for reconsideration or new
trial is filed. The trial court need not even pronounce the finality of the
order as the same becomes final by operation of law. In fact, the trial court
could not even validly entertain a motion for reconsideration filed after the
lapse of the period for taking an appeal. 28 As such, it is of no moment
that the opposing party failed to object to the timeliness of the motion for
reconsideration or that the court denied the same on grounds other than
timeliness considering that at the time the motion was filed, the Order
dated April 2, 1981 had already become final and executory. Being final
and executory, the trial court can no longer alter, modify, or reverse the

Even if we assume that the Motion for Reconsideration filed by petitioner


had the effect of suspending the running of the appeal period for the April
2,1981 Order, it is clear that petitioners notice of appeal of the orders of
the trial court was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the time
during which a motion to set aside the judgment or order or for a new trial
shall be deducted from the period from which to make an appeal. The rule
further states that where the motion was filed during office hours of the
last day of the appeal period, the appeal must be perfected within the day
following that in which the party appealing received notice of the denial of
said motion.
The Order of the trial court denying petitioners Motion for Reconsideration
of the April 2, 1981 Order was issued on April 30, 1985. Allegedly,
petitioner was only made aware of this April 30, 1985 Order on August 21,
1996 when it inquired from the trial court about the status of the case.
Giving petitioner the benefit of the doubt that it had indeed received notice
of the order denying its motion for reconsideration on August 21, 1996, it
follows that petitioner only had until the following day or on August 22,
1996 within which to perfect the appeal.
At this point, we note with disapproval petitioners attempt to pass off its

Page

questioned order. 29 The subsequent filing of the motion for


reconsideration cannot disturb the finality of the judgment or order. 30

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Notice of Appeal as having been filed on August 22, 1996. In all its
pleadings before this Court and the Court of Appeals, petitioner insists that
its Notice of Appeal was filed the day after it secured the August 21, 1996
Certification from the trial court. While the Notice of Appeal was ostensibly
dated August 22, 1996, it is clear from the stamp 31 of the trial court that
the same was received only on September 20, 1996. Moreover, in the
Order dated October 22, 1996 of the trial court denying petitioners appeal,
the court clearly stated that the Notice of Appeal with accompanying
Record on Appeal was filed on September 20, 1996.chanrob1es virtua1
1aw 1ibrary
Considering that it is clear from the records that petitioners notice of
appeal was filed on September 20, 1996, the same was clearly filed out of
time as it only had until August 22, 1996 within which to file the said
pleading. And while the rules on special proceedings recognize that a
motion for extension of time to file the notice of appeal and record of
appeal may be granted, 32 no such motion was ever filed by petitioner
before the trial court. Consequently, the trial court committed no error
when it dismissed the appeal of petitioner.
WHEREFORE, premises considered, we hereby DISMISS the petition for
lack of merit. The decision dated February 16, 1999 and the Resolution
dated May 18,1999 of the Court of Appeals are hereby AFFIRMED.
SO ORDERED.