G.R. No. 127920.
August 9, 2005 also filed a motion for her appointment as special
EMILIO B. PACIOLES, JR., IN HIS CAPACITY AS
ADMINISTRATOR AND HEIR OF THE INTESTATE
ESTATE OF MIGUELITA CHING-PACIOLES, Petitioners,
vs.
MIGUELA CHUATOCO-CHING, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Oftentimes death brings peace only to the person who
dies but not to the people he leaves behind. For in death,
a persons estate remains, providing a fertile ground for
discords that break the familial bonds. Before us is
another case that illustrates such reality. Here, a husband
and a mother of the deceased are locked in an
acrimonious dispute over the estate of their loved one.
This is a petition for review on certiorari filed by Emilio B.
Pacioles, Jr., herein petitioner, against Miguela Chuatoco-
Ching, herein respondent, assailing the Court of Appeals
Decision1 dated September 25, 1996 and Resolution 2
dated January 27, 1997 in CA-G.R. SP No. 41571. 3 The
Appellate Court affirmed the Order dated January 17,
1996 of the Regional Trial Court (RTC), Branch 99,
Quezon City denying petitioners motion for partition and
distribution of the estate of his wife, Miguelita Ching-
Pacioles; and his motion for reconsideration.
The facts are undisputed.
On March 13, 1992, Miguelita died intestate, leaving real
properties with an estimated value of P10.5 million, stock
investments worth P518,783.00, bank deposits amounting
to P6.54 million, and interests in certain businesses. She
was survived by her husband, petitioner herein, and their
two minor children.
Consequently, on August 20, 1992, petitioner filed with the
RTC a verified petition4 for the settlement of Miguelitas
estate. He prayed that (a) letters of administration be
issued in his name, and (b) that the net residue of the
estate be divided among the compulsory heirs.
Miguelitas mother, Miguela Chuatoco-Ching, herein
respondent, filed an opposition, specifically to petitioners
prayer for the issuance of letters of administration on the
grounds that (a) petitioner is incompetent and unfit to
exercise the duties of an administrator; and (b) the bulk of
Miguelitas estate is composed of "paraphernal
properties." Respondent prayed that the letters of
administration be issued to her instead. 5 Afterwards, she
administratrix.6
Petitioner moved to strike out respondents opposition,
alleging that the latter has no direct and material interest
in the estate, she not being a compulsory heir, and that
he, being the surviving spouse, has the preferential right
to be appointed as administrator under the law.7
Respondent countered that she has direct and material
interest in the estate because she gave half of her
inherited properties to Miguelita on condition that both of
them "would undertake whatever business endeavor
they decided to, in the capacity of business partners."8
In her omnibus motion9 dated April 23, 1993, respondent
nominated her son Emmanuel Ching to act as special
administrator.
On April 20, 1994, the intestate court issued an order
appointing petitioner and Emmanuel as joint regular
administrators of the estate.10 Both were issued letters of
administration after taking their oath and posting the
requisite bond.
Consequently, Notice to Creditors was published in the
issues of the Manila Standard on September 12, 19, and
26, 1994. However, no claims were filed against the estate
within the period set by the Revised Rules of Court.
Thereafter, petitioner submitted to the intestate court an
inventory of Miguelitas estate.11 Emmanuel did not
submit an inventory.
On May 17, 1995, the intestate court declared petitioner
and his two minor children as the only compulsory heirs of
Miguelita.12
On July 21, 1995, petitioner filed with the intestate court
an omnibus motion13 praying, among others, that an Order
be issued directing the: 1) payment of estate taxes; 2)
partition and distribution of the estate among the
declared heirs; and 3) payment of attorneys fees.
Respondent opposed petitioners motion on the ground
that the partition and distribution of the estate is
"premature and precipitate," considering that there is yet
no determination "whether the properties specified in the
inventory are conjugal, paraphernal or owned in a joint
venture."14 Respondent claimed that she owns the bulk
of Miguelitas estate as an "heir and co-owner." Thus,
she prayed that a hearing be scheduled.
On January 17, 1996, the intestate court allowed the
payment of the estate taxes and attorneys fees but
denied petitioners prayer for partition and distribution of
the estate, holding that it is indeed "premature." The
intestate court ratiocinated as follows:
"On the partition and distribution of the deceaseds
properties, among the declared heirs, the Court finds the
prayer of petitioner in this regard to be premature. Thus, a
hearing on oppositors claim as indicated in her opposition
to the instant petition is necessary to determine whether
the properties listed in the amended complaint filed
by petitioner are entirely conjugal or the paraphernal
properties of the deceased, or a co-ownership
between the oppositor and the petitioner in their
partnership venture."
Petitioner filed a motion for reconsideration but it was
denied in the Resolution dated May 7, 1996.
Forthwith, petitioner filed with the Court of Appeals a
petition for certiorari seeking to annul and set aside the
intestate courts Order dated January 17, 1996 and
Resolution dated May 7, 1996 which denied petitioners
prayer for partition and distribution of the estate for being
premature, indicating that it (intestate court) will first
resolve respondents claim of ownership.
The Appellate Court dismissed the petition for certiorari,
holding that in issuing the challenged Order and
Resolution, the intestate court did not commit grave abuse
of discretion.
The Appellate Court ruled:
"Regarding the second issue raised, respondent judge did
not commit grave abuse of discretion in entertaining
private respondents unsupported claim of ownership
against the estate. In fact, there is no indication that the
probate court has already made a finding of title or
ownership. It is inevitable that in probate proceedings,
questions of collation or of advancement are involved for
these are matters which can be passed upon in the course
of the proceedings. The probate court in exercising its
prerogative to schedule a hearing, to inquire into the
propriety of private respondents claim, is being extremely
cautious in determining the composition of the estate. This
act is not tainted with an iota of grave abuse of discretion."
Petitioner moved for a reconsideration but it was likewise
denied. Hence, this petition for review on certiorari
anchored on the following assignments of error:
"I
RESPONDENT COURTS DECISION WHICH AFFIRMS
THE INTESTATE COURTS ORDER IS A GRAVE ERROR
FOR BEING CONTRARY TO THE SETTLED
JURISPRUDENCE AND POLICY OF THE LAW THAT
ESTATE PROCEEDINGS MUST BE SETTLED
EXPEDITIOUSLY.
II
RESPONDENT COURT COMMITTED GRAVE ERROR
IN SUSTAINING THE INTESTATE COURTS ORDER TO
CONDUCT HEARING ON THE ISSUE OF OWNERSHIP
CLAIM AGAINST THE ESTATE, AS SAID FUNCTION IS
OUTSIDE AND BEYOND THE JURISDICTION OF THE
INTESTATE COURT.
III
RESPONDENT COURT GRAVELY ERRED IN
AFFIRMING THE INTESTATE COURTS ORDER AND
RESOLUTION NOTWITHSTANDING THAT
RESPONDENT CHINGS OWNERSHIP CLAIMS ARE
CONFLICTING, FRIVOLOUS AND BASELESS."
The fundamental issue for our resolution is: May a trial
court, acting as an intestate court, hear and pass upon
questions of ownership involving properties claimed to be
part of the decedents estate?
The general rule is that the jurisdiction of the trial court
either as an intestate or a probate court relates only to
matters having to do with the settlement of the estate and
probate of will of deceased persons but does not extend
to the determination of questions of ownership that
arise during the proceedings.15 The patent rationale for
this rule is that such court exercises special and limited
jurisdiction.16
A well-recognized deviation to the rule is the principle that
an intestate or a probate court may hear and pass upon
questions of ownership when its purpose is to determine
whether or not a property should be included in the
inventory. In such situations the adjudication is merely
incidental and provisional. Thus, in Pastor, Jr. vs. Court of
Appeals,17 we held:
"x x x As a rule, the question of ownership is an
extraneous matter which the probate court cannot resolve
with finality. Thus, for the purpose of determining
whether a certain property should or should not be
included in the inventory of estate properties, the
probate court may pass upon the title thereto, but
such determination is provisional, not conclusive, and
is subject to the final decision in a separate action to
resolve title."
The Court of Appeals relied heavily on the above principle
in sustaining the jurisdiction of the intestate court to
conduct a hearing on respondents claim. Such reliance
is misplaced. Under the said principle, the key
consideration is that the purpose of the intestate or
probate court in hearing and passing upon questions of
ownership is merely to determine whether or not a
property should be included in the inventory. The facts
of this case show that such was not the purpose of the
intestate court.
First, the inventory was not disputed. In fact, in her
Manifestation and Opposition18 dated September 18,
1995, respondent expressly adopted the inventory
prepared by petitioner, thus:
"6. She adopts the inventory submitted by the
petitioner in his Amended Compliance dated October
6, 1994, and filed only on November 4, 1994 not October
5, 1995 as erroneously asserted in Par. 12 of the Omnibus
Motion. Oppositor, however, takes exception to the low
valuation placed on the real estate properties and
reserves her right to submit a more accurate and realistic
pricing on each."
Respondent could have opposed petitioners inventory
and sought the exclusion of the specific properties
which she believed or considered to be hers. But
instead of doing so, she expressly adopted the inventory,
taking exception only to the low valuation placed on the
real estate properties.
And second, Emmanuel, respondents son and
representative in the settlement of Miguelitas estate, did
not submit his own inventory. His mandate, as co-
administrator, is "to submit within three (3) months after
his appointment a true inventory and appraisal of all the
real and personal estate of the deceased which have
come into his possession or knowledge." 19 He could have
submitted an inventory, excluding therefrom those
properties which respondent considered to be hers.
The fact that he did not endeavor to submit one
shows that he acquiesced with petitioners inventory.
Obviously, respondents purpose here was not to obtain
from the intestate court a ruling of what properties should
or should not be included in the inventory. She wanted
something else, i.e., to secure from the intestate court a
final determination of her claim of ownership over
properties comprising the bulk of Miguelitas estate.
The intestate court went along with respondent on this
point as evident in its Resolution 20 dated May 7, 1996,
thus:
"On petitioners motion for partition and distribution of the
estate of the late Miguelita Ching Pacioles, it is believed
that since oppositor had interposed a claim against the
subject estate, the distribution thereof in favor of the heirs
could not possibly be implemented as there is still a need
for appropriate proceedings to determine the propriety of
oppositors claim. It must be mentioned that if it is true that
oppositor owns the bulk of the properties, which she
allegedly placed/registered in the name of the deceased
for convenience, Oppositor, therefore, has a material and
direct interest in the estate and hence, should be given
her day in Court."
It is apparent from the foregoing Resolution that the
purpose of the hearing set by the intestate court was
actually to "determine the propriety of oppositors
(respondents) claim." According to the intestate court, "if
it is true that the oppositor (respondent) owns the
bulk of (Miguelitas) properties," then it means that she
has a "material and direct interest in the estate" and,
hence, "she should be given her day in court." The
intended "day in court" or hearing is geared towards
resolving the propriety of respondents contention that she
is the true owner of the bulk of Miguelitas estate.
Surely, we cannot be deluded by respondents ingenious
attempt to secure a proceeding for the purpose of
resolving her blanket claim against Miguelitas estate.
Although, she made it appear that her only intent was to
determine the accuracy of petitioners inventory, however,
a close review of the facts and the pleadings reveals her
real intention.
Clearly, the RTC, acting as an intestate court, had
overstepped its jurisdiction. Its proper course should have
been to maintain a hands-off stance on the matter. It is
well-settled in this jurisdiction, sanctioned and reiterated in
a long line of decisions, that when a question arises as to
ownership of property alleged to be a part of the estate of
the deceased person, but claimed by some other person
to be his property, not by virtue of any right of inheritance
from the deceased but by title adverse to that of the
deceased and his estate, such question cannot be
determined in the course of an intestate or probate
proceedings. The intestate or probate court has no
jurisdiction to adjudicate such contentions, which
must be submitted to the court in the exercise of its
general jurisdiction as a regional trial court.21
Jurisprudence teaches us that:
"[A] probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the
estate and which are claimed to belong to outside
parties. All that the said court could do as regards said
properties is to determine whether they should or should
not be included in the inventory or list of properties to be
administered by the administrator. If there is no dispute,
well and good, but if there is, then the parties, the
administrator, and the opposing parties have to resort
to an ordinary action for a final determination of the
conflicting claims of title because the probate court
cannot do so."22
Hence, respondents recourse is to file a separate action
with a court of general jurisdiction. The intestate court is
not the appropriate forum for the resolution of her adverse
claim of ownership over properties ostensibly belonging to
Miguelita's estate.
Now, even assuming that the intestate court merely
intended to make a provisional or prima facie
determination of the issue of ownership, still respondents
claim cannot prosper. It bears stressing that the bulk of
Miguelitas estate, as stated in petitioners inventory,
comprises real estates covered by the Torrens System
which are registered either in the name of Miguelita alone
or with petitioner. As such, they are considered the
owners of the properties until their title is nullified or
modified in an appropriate ordinary action. We find this
Courts pronouncement in Bolisay vs. Alcid23 relevant,
thus:
"It does not matter that respondent-administratrix has
evidence purporting to support her claim of ownership, for,
on the other hand, petitioners have a Torrens title in their
favor, which under the law is endowed with incontestability
until after it has been set aside in the manner indicated in
the law itself, which, of course, does not include,
bringing up the matter as a mere incident in special
proceedings for the settlement of the estate of
deceased persons. x x x
x x x In regard to such incident of inclusion or exclusion,
We hold that if a property covered by Torrens Title is
involved, the presumptive conclusiveness of such title
should be given due weight, and in the absence of strong
compelling evidence to the contrary, the holder thereof
should be considered as the owner of the property in
controversy until his title is nullified or modified in an
appropriate ordinary action, particularly, when as in
the case at bar, possession of the property itself is in
the persons named in the title. x x x"
Corrolarily, P.D. 1529, otherwise known as, "The Property
Registration Decree," proscribes collateral attack against
Torrens Title, hence:
"Section 48. Certificate not subject to collateral attack.
A certificate of title shall not be subject to collateral
attack. It cannot be altered, modified or cancelled
except in a direct proceeding in accordance with law."
Significantly, a perusal of the records reveals that
respondent failed to present convincing evidence to
bolster her bare assertion of ownership. We quote her
testimony, thus:
"Q: I now direct your attention to paragraph (5) appearing
on page 1 of this sworn statement of yours which I quote:"
In accordance with the Chinese tradition and culture in the
distribution of properties to the legal heirs, we decided to
give only a token to our daughter Miguelita and leave the
rest to our only son Emmanuel, with the undertaking that
being the son he will take full responsibility of the rest of
the family despite his marriage. Madame witness, do you
recall having stated that in your sworn statement?
A: Yes sir, but it was not carried out.
Q What was actually given to your daughter Miguelita is
only a token, is that right?
A: Not a token, sir, but one half of the share of the estate
was given to Lita and the other half was given to
Emmanuel.
Q: What went to Emmanuel was also , is that right?
A: Yes, sir.
Q: What makes up the one half share of Lita, if you recall?
A: What was given to her were all checks, sir, but I
cannot remember any more the amount.
xxxxxx
Q: Summing up your testimony, Madame, you cannot
itemize the one half share of the estate of Miguelita, is
that right?
A: Yes, sir.
Q: Was there any document covering this partition of
the estate among you, Emmanuel and Miguelita with
respect to the estate of your late husband?
A: If I only knew that this will happen
Q: Samakatuwid po ay walang dokumento?
A: Wala po."24
She further testified as follows: submitted to the Regional Trial Court in the exercise of its
general jurisdiction.29
"Q: Among the properties listed like the various
parcels of land, stocks, investments, bank accounts WHEREFORE, the instant petition is GRANTED. The
and deposits both here and abroad, interests and assailed Decision and Resolution of the Court of Appeals
participation in IFS Pharmaceuticals and Medical in CA-G.R. SP No. 41571 are hereby REVERSED.
Supplies, Inc. and various motor vehicles, per your
pleasure, Madam Witness, how should these SO ORDERED.
properties be partitioned or what should be done with
these properties? According to you earlier, you are
agreeable for the partition of the said properties with
Emil on a 50-50 basis, is that right?

A: Kung ano po ang sa akin, iyon ang dapat na bumalik sa

akin, sir.

Q Halimbawa ay ano po iyon? Real estate properties,

parcels of land located in Pag-Asa, in Silangan, in San
Lazaro, in Sta. Cruz, in San Francisco del Monte and
shares of stock. Alinsunod sa inyo, paano po ang
dapat na partihan o hatian ninyo ni Emil?

A: Kung ano ang sa akin

xxxxxx

Q Ang tanong ko po sa inyo ay ganito, ito po ba ang

inyong iminungkahi kay Emil? Ito po ba ang inyong
paghahatian or hindi?

A: Iyo akin talaga na hindi nila pinaghirapan, sir."25

Unfortunately, respondent could not even specify which of

the properties listed in petitioners inventory belong to her.
Neither could she present any document to prove her
claim of ownership. The consistently changing basis of her
claim did nothing to improve her posture. Initially, she
insisted that the bulk of Miguelitas estate is composed of
paraphernal properties.26 Sensing that such assertion
could not strengthen her claim of ownership, she opted to
change her submission and declare that she and Miguelita
were "business partners" and that she gave to the latter
most of her properties to be used in a joint business
venture.27 Respondent must have realized early on that if
the properties listed in petitioners inventory are
paraphernal, then Miguelita had the absolute title and
ownership over them and upon her death, such properties
would be vested to her compulsory heirs, petitioner herein
and their two minor children.28

At any rate, we must stress that our pronouncements

herein cannot diminish or deprive respondent of whatever
rights or properties she believes or considers to be
rightfully hers. We reiterate that the question of ownership
of properties alleged to be part of the estate must be
G.R. No. 177066 September 11, 2009

JOSELITO MUSNI PUNO (as heir of the late Carlos

Puno), Petitioner,
vs.
PUNO ENTERPRISES, INC., represented by JESUSA
PUNO, Respondent.

DECISION

NACHURA, J.:

Upon the death of a stockholder, the heirs do not

automatically become stockholders of the corporation;
neither are they mandatorily entitled to the rights and
privileges of a stockholder. This, we declare in this petition
for review on certiorari of the Court of Appeals (CA)
Decision1 dated October 11, 2006 and Resolution dated
March 6, 2007 in CA-G.R. CV No. 86137.

The facts of the case follow:

Carlos L. Puno, who died on June 25, 1963, was an

incorporator of respondent Puno Enterprises, Inc. On
March 14, 2003, petitioner Joselito Musni Puno, claiming
to be an heir of Carlos L. Puno, initiated a complaint for
specific performance against respondent. Petitioner
averred that he is the son of the deceased with the latters
common-law wife, Amelia Puno. As surviving heir, he
claimed entitlement to the rights and privileges of his late
father as stockholder of respondent. The complaint thus
prayed that respondent allow petitioner to inspect its
corporate book, render an accounting of all the
transactions it entered into from 1962, and give petitioner
all the profits, earnings, dividends, or income pertaining to
the shares of Carlos L. Puno.2

Respondent filed a motion to dismiss on the ground that

petitioner did not have the legal personality to sue
because his birth certificate names him as "Joselito Musni
Muno." Apropos, there was yet a need for a judicial
declaration that "Joselito Musni Puno" and "Joselito Musni
Muno" were one and the same.

The court ordered that the proceedings be held in

abeyance, ratiocinating that petitioners certificate of live
birth was no proof of his paternity and relation to Carlos L.
Puno.

Petitioner submitted the corrected birth certificate with the

name "Joselito M. Puno," certified by the Civil Registrar of
the City of Manila, and the Certificate of Finality thereof.
To hasten the disposition of the case, the court
conditionally admitted the corrected birth certificate as
genuine and authentic and ordered respondent to file its
answer within fifteen days from the order and set the case
for pretrial.3
On October 11, 2005, the court rendered a Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering
Jesusa Puno and/or Felicidad Fermin to allow the plaintiff
to inspect the corporate books and records of the
company from 1962 up to the present including the
financial statements of the corporation.
The costs of copying shall be shouldered by the plaintiff.
Any expenses to be incurred by the defendant to be able
to comply with this order shall be the subject of a bill of
costs.
SO ORDERED.4
On appeal, the CA ordered the dismissal of the complaint
in its Decision dated October 11, 2006. According to the
CA, petitioner was not able to establish the paternity of
and his filiation to Carlos L. Puno since his birth certificate
was prepared without the intervention of and the
participatory acknowledgment of paternity by Carlos L.
Puno. Accordingly, the CA said that petitioner had no right
to demand that he be allowed to examine respondents
books. Moreover, petitioner was not a stockholder of the
corporation but was merely claiming rights as an heir of
Carlos L. Puno, an incorporator of the corporation. His
action for specific performance therefore appeared to be
premature; the proper action to be taken was to prove the
paternity of and his filiation to Carlos L. Puno in a petition
for the settlement of the estate of the latter.5
Petitioners motion for reconsideration was denied by the
CA in its Resolution6 dated March 6, 2007.
In this petition, petitioner raises the following issues:
I. THE HONORABLE COURT OF APPEALS ERRED IN
NOT RULING THAT THE JOSELITO PUNO IS ENTITLED
TO THE RELIEFS DEMANDED HE BEING THE HEIR OF
THE LATE CARLOS PUNO, ONE OF THE
INCORPORATORS [OF] RESPONDENT
CORPORATION.
II. HONORABLE COURT OF APPEALS ERRED IN
RULING THAT FILIATION OF JOSELITO PUNO, THE
PETITIONER[,] IS NOT DULY PROVEN OR
ESTABLISHED.
III. THE HONORABLE COURT ERRED IN NOT RULING
THAT JOSELITO MUNO AND JOSELITO PUNO REFERS
TO THE ONE AND THE SAME PERSON.
IV. THE HONORABLE COURT OF APPEALS ERRED IN
NOT RULING THAT WHAT RESPONDENT MERELY
DISPUTES IS THE SURNAME OF THE PETITIONER
WHICH WAS MISSPELLED AND THE FACTUAL
ALLEGATION E.G. RIGHTS OF PETITIONER AS HEIR
OF CARLOS PUNO ARE DEEMED ADMITTED
HYPOTHETICALLY IN THE RESPONDENT[S] MOTION
TO DISMISS.
V. THE HONORABLE COURT OF APPEALS
THEREFORE ERRED I[N] DECREEING THAT
PETITIONER IS NOT ENTITLED TO INSPECT THE
CORPORATE BOOKS OF DEFENDANT
CORPORATION.7
The petition is without merit. Petitioner failed to establish
the right to inspect respondent corporations books and
receive dividends on the stocks owned by Carlos L. Puno.
Petitioner anchors his claim on his being an heir of the
deceased stockholder. However, we agree with the
appellate court that petitioner was not able to prove
satisfactorily his filiation to the deceased stockholder;
thus, the former cannot claim to be an heir of the latter.
Incessantly, we have declared that factual findings of the
CA supported by substantial evidence, are conclusive and
binding.8 In an appeal via certiorari, the Court may not
review the factual findings of the CA. It is not the Courts
function under Rule 45 of the Rules of Court to review,
examine, and evaluate or weigh the probative value of the
evidence presented.9
A certificate of live birth purportedly identifying the putative
father is not competent evidence of paternity when there is
no showing that the putative father had a hand in the
preparation of the certificate. The local civil registrar has
no authority to record the paternity of an illegitimate child
on the information of a third person. 10 As correctly
observed by the CA, only petitioners mother supplied the
data in the birth certificate and signed the same. There
was no evidence that Carlos L. Puno acknowledged
petitioner as his son.
As for the baptismal certificate, we have already decreed
that it can only serve as evidence of the administration of
the sacrament on the date specified but not of the veracity
of the entries with respect to the childs paternity.11
In any case, Sections 74 and 75 of the Corporation Code
enumerate the persons who are entitled to the inspection
of corporate books, thus
Sec. 74. Books to be kept; stock transfer agent. x x x.
The records of all business transactions of the corporation
and the minutes of any meeting shall be open to the
inspection of any director, trustee, stockholder or member
of the corporation at reasonable hours on business days
and he may demand, in writing, for a copy of excerpts
from said records or minutes, at his expense.
xxxx
Sec. 75. Right to financial statements. Within ten (10)
days from receipt of a written request of any stockholder
or member, the corporation shall furnish to him its most
recent financial statement, which shall include a balance
sheet as of the end of the last taxable year and a profit or
loss of statement for said taxable year, showing in
reasonable detail its assets and liabilities and the result of
its operations.12
The stockholders right of inspection of the corporations
books and records is based upon his ownership of shares
in the corporation and the necessity for self-protection.
After all, a shareholder has the right to be intelligently
informed about corporate affairs.13 Such right rests upon
the stockholders underlying ownership of the
corporations assets and property.14
Similarly, only stockholders of record are entitled to
receive dividends declared by the corporation, a right
inherent in the ownership of the shares.151avvphi1
Upon the death of a shareholder, the heirs do not
automatically become stockholders of the corporation and
acquire the rights and privileges of the deceased as
shareholder of the corporation. The stocks must be
distributed first to the heirs in estate proceedings, and the
transfer of the stocks must be recorded in the books of the
corporation. Section 63 of the Corporation Code provides
that no transfer shall be valid, except as between the
parties, until the transfer is recorded in the books of the
corporation.16 During such interim period, the heirs stand
as the equitable owners of the stocks, the executor or
administrator duly appointed by the court being vested
with the legal title to the stock.17 Until a settlement and
division of the estate is effected, the stocks of the
decedent are held by the administrator or executor. 18
Consequently, during such time, it is the administrator or
executor who is entitled to exercise the rights of the
deceased as stockholder.
Thus, even if petitioner presents sufficient evidence in this
case to establish that he is the son of Carlos L. Puno, he
would still not be allowed to inspect respondents books
and be entitled to receive dividends from respondent,
absent any showing in its transfer book that some of the
shares owned by Carlos L. Puno were transferred to him.
This would only be possible if petitioner has been
recognized as an heir and has participated in the
settlement of the estate of the deceased.
Corollary to this is the doctrine that a determination of
whether a person, claiming proprietary rights over the
estate of a deceased person, is an heir of the deceased
must be ventilated in a special proceeding instituted
precisely for the purpose of settling the estate of the latter.
The status of an illegitimate child who claims to be an heir
to a decedents estate cannot be adjudicated in an
ordinary civil action, as in a case for the recovery of
property.19 The doctrine applies to the instant case, which
is one for specific performance to direct respondent
corporation to allow petitioner to exercise rights that
pertain only to the deceased and his representatives.
WHEREFORE, premises considered, the petition is
DENIED. The Court of Appeals Decision dated October
11, 2006 and Resolution dated March 6, 2007 are
AFFIRMED.
SO ORDERED.
G.R. No. 118671 January 29, 1996
THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ,
Executor, petitioner,
vs.
THE COURT OF APPEALS (Former Special Sixth
Division), MARIA PILAR RUIZ-MONTES, MARIA
CATHRYN RUIZ, CANDICE ALBERTINE RUIZ, MARIA
ANGELINE RUIZ and THE PRESIDING JUDGE OF THE
REGIONAL TRIAL COURT OF PASIG, respondents.
DECISION
PUNO, J.:
This petition for review on certiorari seeks to annul and set
aside the decision dated November 10, 1994 and the
resolution dated January 5, 1995 of the Court of Appeals
in CA-G.R. SP No. 33045.
The facts show that on June 27, 1987, Hilario M. Ruiz 1
executed a holographic will naming as his heirs his only
son, Edmond Ruiz, his adopted daughter, private
respondent Maria Pilar Ruiz Montes, and his three
granddaughters, private respondents Maria Cathryn,
Candice Albertine and Maria Angeline, all children of
Edmond Ruiz. The testator bequeathed to his heirs
substantial cash, personal and real properties and named
Edmond Ruiz executor of his estate.2
On April 12, 1988, Hilario Ruiz died. Immediately
thereafter, the cash component of his estate was
distributed among Edmond Ruiz and private respondents
in accordance with the decedent's will. For unbeknown
reasons, Edmond, the named executor, did not take any
action for the probate of his father's holographic will.
On June 29, 1992, four years after the testator's death, it
was private respondent Maria Pilar Ruiz Montes who filed
before the Regional Trial Court, Branch 156, Pasig, a
petition for the probate and approval of Hilario Ruiz's will
and for the issuance of letters testamentary to Edmond
Ruiz,3 Surprisingly, Edmond opposed the petition on the
ground that the will was executed under undue influence.
On November 2, 1992, one of the properties of the estate
the house and lot at No. 2 Oliva Street, Valle Verde IV,
Pasig which the testator bequeathed to Maria Cathryn,
Candice Albertine and Maria Angeline 4 was leased out
by Edmond Ruiz to third persons.
On January 19, 1993, the probate court ordered Edmond
to deposit with the Branch Clerk of Court the rental deposit
and payments totalling P540,000.00 representing the one-
year lease of the Valle Verde property. In compliance, on
January 25, 1993, Edmond turned over the amount of
P348,583.56, representing the balance of the rent after
deducting P191,416.14 for repair and maintenance
expenses on the estate.5
In March 1993, Edmond moved for the release of
P50,000.00 to pay the real estate taxes on the real
properties of the estate. The probate court approved the
release of P7,722.00.6
On May 14, 1993, Edmond withdrew his opposition to the
probate of the will. Consequently, the probate court, on
May 18, 1993, admitted the will to probate and ordered the
issuance of letters testamentary to Edmond conditioned
upon the filing of a bond in the amount of P50,000.00. The
letters testamentary were issued on June 23, 1993.
On July 28, 1993, petitioner Testate Estate of Hilario Ruiz,
with Edmond Ruiz as executor, filed an "Ex-Parte Motion
for Release of Funds." It prayed for the release of the rent
payments deposited with the Branch Clerk of Court.
Respondent Montes opposed the motion and concurrently
filed a "Motion for Release of Funds to Certain Heirs" and
"Motion for Issuance of Certificate of Allowance of Probate
Will." Montes prayed for the release of the said rent
payments to Maria Cathryn, Candice Albertine and Maria
Angeline and for the distribution of the testator's
properties, specifically the Valle Verde property and the
Blue Ridge apartments, in accordance with the provisions
of the holographic will.
On August 26, 1993, the probate court denied petitioner's
motion for release of funds but granted respondent
Montes' motion in view of petitioner's lack of opposition. It
thus ordered the release of the rent payments to the
decedent's three granddaughters. It further ordered the
delivery of the titles to and possession of the properties
bequeathed to the three granddaughters and respondent
Montes upon the filing of a bond of P50,000.00.
Petitioner moved for reconsideration alleging that he
actually filed his opposition to respondent Montes's motion
for release of rent payments which opposition the court
failed to consider. Petitioner likewise reiterated his
previous motion for release of funds.
On November 23, 1993, petitioner, through counsel,
manifested that he was withdrawing his motion for release
of funds in view of the fact that the lease contract over the
Valle Verde property had been renewed for another year.7
Despite petitioner's manifestation, the probate court, on
December 22, 1993, ordered the release of the funds to
Edmond but only "such amount as may be necessary to
cover the expenses of administration and allowances for
support" of the testator's three granddaughters subject to
collation and deductible from their share in the inheritance.
The court, however, held in abeyance the release of the
titles to respondent Montes and the three granddaughters
until the lapse of six months from the date of first
publication of the notice to creditors. 8 The court stated
thus:
xxx xxx xxx
After consideration of the arguments set forth
thereon by the parties the court resolves to allow
Administrator Edmond M. Ruiz to take possession
of the rental payments deposited with the Clerk of
Court, Pasig Regional Trial Court, but only such
amount as may be necessary to cover the
expenses of administration and allowances for
support of Maria Cathryn Veronique, Candice
Albertine and Maria Angeli, which are subject to
collation and deductible from the share in the
inheritance of said heirs and insofar as they
exceed the fruits or rents pertaining to them.
 As to the release of the titles bequeathed to
petitioner Maria Pilar Ruiz-Montes and the above-
named heirs, the same is hereby reconsidered
and held in abeyance until the lapse of six (6)
months from the date of first publication of Notice
to Creditors.
WHEREFORE, Administrator Edmond M. Ruiz is
hereby ordered to submit an accounting of the
expenses necessary for administration including
provisions for the support Of Maria Cathryn
Veronique Ruiz, Candice Albertine Ruiz and Maria
Angeli Ruiz before the amount required can be
withdrawn and cause the publication of the notice
to creditors with reasonable dispatch.9
Petitioner assailed this order before the Court of Appeals.
Finding no grave abuse of discretion on the part of
respondent judge, the appellate court dismissed the
petition and sustained the probate court's order in a
decision dated November 10, 199410 and a resolution
dated January 5, 1995.11
Hence, this petition.
Petitioner claims that:
THE PUBLIC RESPONDENT COURT OF
APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN AFFIRMING
AND CONFIRMING THE ORDER OF
RESPONDENT REGIONAL TRIAL COURT OF
PASIG, BRANCH 156, DATED DECEMBER 22,
1993, WHICH WHEN GIVEN DUE COURSE AND
IS EFFECTED WOULD: (1) DISALLOW THE
EXECUTOR/ADMINISTRATOR OF THE ESTATE
OF THE LATE HILARIO M. RUIZ TO TAKE
POSSESSION OF ALL THE REAL AND
PERSONAL PROPERTIES OF THE ESTATE; (2)
GRANT SUPPORT, DURING THE PENDENCY
OF THE SETTLEMENT OF AN ESTATE, TO
CERTAIN PERSONS NOT ENTITLED THERETO;
AND (3) PREMATURELY PARTITION AND
DISTRIBUTE THE ESTATE PURSUANT TO THE
PROVISIONS OF THE HOLOGRAPHIC WILL
EVEN BEFORE ITS INTRINSIC VALIDITY HAS
BEEN DETERMINED, AND DESPITE THE
EXISTENCE OF UNPAID DEBTS AND
12
OBLIGATIONS OF THE ESTATE.
The issue for resolution is whether the probate court, after
admitting the will to probate but before payment of the
estate's debts and obligations, has the authority: (1) to
grant an allowance from the funds of the estate for the
support of the testator's grandchildren; (2) to order the
release of the titles to certain heirs; and (3) to grant
possession of all properties of the estate to the executor of
the will.
On the matter of allowance, Section 3 of Rule 83 of the
Revised Rules of Court provides:
Sec. 3. Allowance to widow and family. The
widow and minor or incapacitated children of a
deceased person, during the settlement of the
estate, shall receive therefrom under the direction
of the court, such allowance as are provided by
law.
Petitioner alleges that this provision only gives the widow
and the minor or incapacitated children of the deceased
the right to receive allowances for support during the
settlement of estate proceedings. He contends that the
testator's three granddaughters do not qualify for an
allowance because they are not incapacitated and are no
longer minors but of legal age, married and gainfully
employed. In addition, the provision expressly states
"children" of the deceased which excludes the latter's
grandchildren.
It is settled that allowances for support under Section 3 of
Rule 83 should not be limited to the "minor or
incapacitated" children of the deceased. Article 188 13 of
the Civil Code of the Philippines, the substantive law in
force at the time of the testator's death, provides that
during the liquidation of the conjugal partnership, the
deceased's legitimate spouse and children, regardless of
their age, civil status or gainful employment, are entitled to
provisional support from the funds of the estate. 14 The law
is rooted on the fact that the right and duty to support,
especially the right to education, subsist even beyond the
age of majority.15
Be that as it may, grandchildren are not entitled to
provisional support from the funds of the decedent's
estate. The law clearly limits the allowance to "widow and
children" and does not extend it to the deceased's
grandchildren, regardless of their minority or incapacity.16
It was error, therefore, for the appellate court to sustain
the probate court's order granting an allowance to the
grandchildren of the testator pending settlement of his
estate.
Respondent courts also erred when they ordered the
release of the titles of the bequeathed properties to private
respondents six months after the date of first publication of
notice to creditors. An order releasing titles to properties of
the estate amounts to an advance distribution of the
estate which is allowed only under the following
conditions:
Sec. 2. Advance distribution in special
proceedings. Nothwithstanding a pending
controversy or appeal in proceedings to settle the
estate of a decedent, the court may, in its
discretion and upon such terms as it may deem
proper and just, permit that such part of the estate
as may not be affected by the controversy or
appeal be distributed among the heirs or legatees,
upon compliance with the conditions set forth in
Rule 90 of these Rules.17
And Rule 90 provides that:
Sec. 1. When order for distribution of residue
made. When the debts, funeral charges, and
expenses of administration the allowance to the
widow, and inheritance tax if any, chargeable to
the estate in accordance with law, have been
paid, the court, on the application of the executor
or administrator, or of a person interested in the
estate, and after hearing upon notice shall assign
the residue of the estate to the persons entitled to
the same, naming them and the proportions or
parts, to which each is entitled, and such persons
may demand and recover their respective shares
from the executor or administrator, or any other
person having the same in his possession. If there
is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment
of the obligations above-mentioned has been
made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said
obligations within such time as the court directs.18
In settlement of estate proceedings, the distribution of the
estate properties can only be made: (1) after all the debts,
funeral charges, expenses of administration, allowance to
the widow, and estate tax have been paid; or (2) before
payment of said obligations only if the distributees or any
of them gives a bond in a sum fixed by the court
conditioned upon the payment of said obligations within
such time as the court directs, or when provision is made
to meet those obligations.19
In the case at bar, the probate court ordered the release of
the titles to the Valle Verde property and the Blue Ridge
apartments to the private respondents after the lapse of
six months from the date of first publication of the notice to
creditors. The questioned order speaks of "notice" to
creditors, not payment of debts and obligations. Hilario
Ruiz allegedly left no debts when he died but the taxes on
his estate had not hitherto been paid, much less
ascertained. The estate tax is one of those obligations that
must be paid before distribution of the estate. If not yet
paid, the rule requires that the distributees post a bond or
make such provisions as to meet the said tax obligation in
proportion to their respective shares in the inheritance. 20
Notably, at the time the order was issued the properties of
the estate had not yet been inventoried and appraised.
It was also too early in the day for the probate court to
order the release of the titles six months after admitting
the will to probate. The probate of a will is conclusive as to
its due execution and extrinsic validity21 and settles only
the question of whether the testator, being of sound mind,
freely executed it in accordance with the formalities
prescribed by law.22 Questions as to the intrinsic validity
and efficacy of the provisions of the will, the legality of any
devise or legacy may be raised even after the will has
been authenticated.23
The intrinsic validity of Hilario's holographic will was
controverted by petitioner before the probate court in his
Reply to Montes' Opposition to his motion for release of
funds24 and his motion for reconsideration of the August
26, 1993 order of the said court. 25 Therein, petitioner
assailed the distributive shares of the devisees and
legatees inasmuch as his father's will included the estate
of his mother and allegedly impaired his legitime as an
intestate heir of his mother. The Rules provide that if there
is a controversy as to who are the lawful heirs of the
decedent and their distributive shares in his estate, the
probate court shall proceed to hear and decide the same
as in ordinary cases.26
Still and all, petitioner cannot correctly claim that the
assailed order deprived him of his right to take possession
of all the real and personal properties of the estate. The
right of an executor or administrator to the possession and
management of the real and personal properties of the
deceased is not absolute and can only be exercised "so
long as it is necessary for the payment of the debts and
expenses of administration,"27 Section 3 of Rule 84 of the
Revised Rules of Court explicitly provides:
Sec. 3. Executor or administrator to retain whole
estate to pay debts, and to administer estate not
willed. An executor or administrator shall have
the right to the possession and management of
the real as well as the personal estate of the
deceased so long as it is necessary for the
 payment of the debts and expenses for
administration.28

When petitioner moved for further release of the funds

deposited with the clerk of court, he had been previously
granted by the probate court certain amounts for repair
and maintenance expenses on the properties of the
estate, and payment of the real estate taxes thereon. But
petitioner moved again for the release of additional funds
for the same reasons he previously cited. It was correct for
the probate court to require him to submit an accounting of
the necessary expenses for administration before
releasing any further money in his favor.

It was relevantly noted by the probate court that petitioner

had deposited with it only a portion of the one-year rental
income from the Valle Verde property. Petitioner did not
deposit its succeeding rents after renewal of the lease. 29
Neither did he render an accounting of such funds.

Petitioner must be reminded that his right of ownership

over the properties of his father is merely inchoate as long
as the estate has not been fully settled and partitioned. 30
As executor, he is a mere trustee of his father's estate.
The funds of the estate in his hands are trust funds and he
is held to the duties and responsibilities of a trustee of the
highest order.31 He cannot unilaterally assign to himself
and possess all his parents' properties and the fruits
thereof without first submitting an inventory and appraisal
of all real and personal properties of the deceased,
rendering a true account of his administration, the
expenses of administration, the amount of the obligations
and estate tax, all of which are subject to a determination
by the court as to their veracity, propriety and justness.32

IN VIEW WHEREOF, the decision and resolution of the

Court of Appeals in CA-G.R. SP No. 33045 affirming the
order dated December 22, 1993 of the Regional Trial
Court, Branch 156, Pasig in SP Proc. No. 10259 are
affirmed with the modification that those portions of the
order granting an allowance to the testator's grandchildren
and ordering the release of the titles to the private
respondents upon notice to creditors are annulled and set
aside.

Respondent judge is ordered to proceed with dispatch in

the proceedings below.

SO ORDERED.

G.R. No. 165744 August 11, 2008
OSCAR C. REYES, petitioner,
vs.
HON. REGIONAL TRIAL COURT OF MAKATI, Branch
142, ZENITH INSURANCE CORPORATION, and
RODRIGO C. REYES, respondents.
DECISION
BRION, J.:
This Petition for Review on Certiorari under Rule 45 of the
Rules of Court seeks to set aside the Decision of the
Court of Appeals (CA)1 promulgated on May 26, 2004 in
CA-G.R. SP No. 74970. The CA Decision affirmed the
Order of the Regional Trial Court (RTC), Branch 142,
Makati City dated November 29, 2002 2 in Civil Case No.
00-1553 (entitled "Accounting of All Corporate Funds and
Assets, and Damages") which denied petitioner Oscar C.
Reyes (Oscar) Motion to Declare Complaint as Nuisance
or Harassment Suit.
BACKGROUND FACTS
Oscar and private respondent Rodrigo C. Reyes (Rodrigo)
are two of the four children of the spouses Pedro and
Anastacia Reyes. Pedro, Anastacia, Oscar, and Rodrigo
each owned shares of stock of Zenith Insurance
Corporation (Zenith), a domestic corporation established
by their family. Pedro died in 1964, while Anastacia died in
1993. Although Pedros estate was judicially partitioned
among his heirs sometime in the 1970s, no similar
settlement and partition appear to have been made with
Anastacias estate, which included her shareholdings in
Zenith. As of June 30, 1990, Anastacia owned 136,598
shares of Zenith; Oscar and Rodrigo owned 8,715,637
and 4,250 shares, respectively.3
On May 9, 2000, Zenith and Rodrigo filed a complaint 4
with the Securities and Exchange Commission (SEC)
against Oscar, docketed as SEC Case No. 05-00-6615.
The complaint stated that it is "a derivative suit initiated
and filed by the complainant Rodrigo C. Reyes to obtain
an accounting of the funds and assets of ZENITH
INSURANCE CORPORATION which are now or formerly
in the control, custody, and/or possession of respondent
[herein petitioner Oscar] and to determine the shares of
stock of deceased spouses Pedro and Anastacia
Reyes that were arbitrarily and fraudulently appropriated
[by Oscar] for himself [and] which were not collated and
taken into account in the partition, distribution, and/or
settlement of the estate of the deceased spouses, for
which he should be ordered to account for all the income
from the time he took these shares of stock, and should
now deliver to his brothers and sisters their just and
respective shares."5 [Emphasis supplied.]
In his Answer with Counterclaim,6 Oscar denied the
charge that he illegally acquired the shares of Anastacia
Reyes. He asserted, as a defense, that he purchased the
subject shares with his own funds from the unissued
stocks of Zenith, and that the suit is not a bona fide
derivative suit because the requisites therefor have not
been complied with. He thus questioned the SECs
jurisdiction to entertain the complaint because it pertains
to the settlement of the estate of Anastacia Reyes.
When Republic Act (R.A.) No. 87997 took effect, the SECs
exclusive and original jurisdiction over cases enumerated
in Section 5 of Presidential Decree (P.D.) No. 902-A was
transferred to the RTC designated as a special
commercial court.8 The records of Rodrigos SEC case
were thus turned over to the RTC, Branch 142, Makati,
and docketed as Civil Case No. 00-1553.
On October 22, 2002, Oscar filed a Motion to Declare
Complaint as Nuisance or Harassment Suit. 9 He claimed
that the complaint is a mere nuisance or harassment suit
and should, according to the Interim Rules of Procedure
for Intra-Corporate Controversies, be dismissed; and that
it is not a bona fide derivative suit as it partakes of the
nature of a petition for the settlement of estate of the
deceased Anastacia that is outside the jurisdiction of a
special commercial court. The RTC, in its Order dated
November 29, 2002 (RTC Order), denied the motion in
part and declared:
A close reading of the Complaint disclosed the
presence of two (2) causes of action, namely: a) a
derivative suit for accounting of the funds and
assets of the corporation which are in the control,
custody, and/or possession of the respondent
[herein petitioner Oscar] with prayer to appoint a
management committee; and b) an action for
determination of the shares of stock of deceased
spouses Pedro and Anastacia Reyes allegedly
taken by respondent, its accounting and the
corresponding delivery of these shares to the
parties brothers and sisters. The latter is not a
 derivative suit and should properly be threshed
out in a petition for settlement of estate.
Accordingly, the motion is denied. However, only
the derivative suit consisting of the first cause of
action will be taken cognizance of by this Court. 10
Oscar thereupon went to the CA on a petition for certiorari,
prohibition, and mandamus11 and prayed that the RTC
Order be annulled and set aside and that the trial court be
prohibited from continuing with the proceedings. The
appellate court affirmed the RTC Order and denied the
petition in its Decision dated May 26, 2004. It likewise
denied Oscars motion for reconsideration in a Resolution
dated October 21, 2004.
Petitioner now comes before us on appeal through a
petition for review on certiorari under Rule 45 of the Rules
of Court.
ASSIGNMENT OF ERRORS
Petitioner Oscar presents the following points as
conclusions the CA should have made:
1. that the complaint is a mere nuisance or harassment
suit that should be dismissed under the Interim Rules of
Procedure of Intra-Corporate Controversies; and
2. that the complaint is not a bona fide derivative suit but
is in fact in the nature of a petition for settlement of estate;
hence, it is outside the jurisdiction of the RTC acting as a
special commercial court.
Accordingly, he prays for the setting aside and annulment
of the CA decision and resolution, and the dismissal of
Rodrigos complaint before the RTC.
THE COURTS RULING
We find the petition meritorious.
The core question for our determination is whether the trial
court, sitting as a special commercial court, has
jurisdiction over the subject matter of Rodrigos complaint.
To resolve it, we rely on the judicial principle that
"jurisdiction over the subject matter of a case is conferred
by law and is determined by the allegations of the
complaint, irrespective of whether the plaintiff is entitled to
all or some of the claims asserted therein."12
JURISDICTION OF SPECIAL COMMERCIAL COURTS
P.D. No. 902-A enumerates the cases over which the SEC
(now the RTC acting as a special commercial court)
exercises exclusive jurisdiction:
SECTION 5. In addition to the regulatory and
adjudicative functions of the Securities and
Exchange Commission over corporations,
partnership, and other forms of associations
registered with it as expressly granted under
existing laws and decrees, it shall have original
and exclusive jurisdiction to hear and decide
cases involving:
a) Devices or schemes employed by or
any acts of the board of directors,
business associates, its officers or
partners, amounting to fraud and
misrepresentation which may be
detrimental to the interest of the public
and/or of the stockholders, partners,
members of associations or organizations
registered with the Commission.
b) Controversies arising out of intra-
corporate or partnership relations,
between and among stockholders,
members, or associates; between any or
all of them and the corporation,
partnership or association of which they
are stockholders, members, or
associates, respectively; and between
such corporation, partnership or
association and the State insofar as it
concerns their individual franchise or right
to exist as such entity; and
c) Controversies in the election or
appointment of directors, trustees,
officers, or managers of such
corporations, partnerships, or
associations.
The allegations set forth in Rodrigos complaint principally
invoke Section 5, paragraphs (a) and (b) above as basis
for the exercise of the RTCs special court jurisdiction. Our
focus in examining the allegations of the complaint shall
therefore be on these two provisions.
Fraudulent Devices and Schemes
The rule is that a complaint must contain a plain, concise,
and direct statement of the ultimate facts constituting the
plaintiffs cause of action and must specify the relief
sought.13 Section 5, Rule 8 of the Revised Rules of Court
provides that in all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be
stated with particularity.14 These rules find specific
application to Section 5(a) of P.D. No. 902-A which speaks
of corporate devices or schemes that amount to fraud or
misrepresentation detrimental to the public and/or to the
stockholders.
In an attempt to hold Oscar responsible for corporate
fraud, Rodrigo alleged in the complaint the following:
3. This is a complaintto determine the shares
of stock of the deceased spouses Pedro and
Anastacia Reyes that were arbitrarily and
fraudulently appropriated for himself [herein
petitioner Oscar] which were not collated and
taken into account in the partition, distribution,
and/or settlement of the estate of the deceased
Spouses Pedro and Anastacia Reyes, for which
he should be ordered to account for all the income
from the time he took these shares of stock, and
should now deliver to his brothers and sisters their
just and respective shares with the corresponding
equivalent amount of P7,099,934.82 plus interest
thereon from 1978 representing his obligations to
the Associated Citizens Bank that was paid for his
account by his late mother, Anastacia C. Reyes.
This amount was not collated or taken into
account in the partition or distribution of the estate
of their late mother, Anastacia C. Reyes.
3.1. Respondent Oscar C. Reyes, through
other schemes of fraud including
misrepresentation, unilaterally, and for his
own benefit, capriciously transferred and took
possession and control of the management of
Zenith Insurance Corporation which is
considered as a family corporation, and other
properties and businesses belonging to Spouses
Pedro and Anastacia Reyes.
xxxx
4.1. During the increase of capitalization of Zenith
Insurance Corporation, sometime in 1968, the
property covered by TCT No. 225324 was illegally
and fraudulently used by respondent as a
collateral.
xxxx
5. The complainant Rodrigo C. Reyes discovered
that by some manipulative scheme, the
shareholdings of their deceased mother, Doa
Anastacia C. Reyes, shares of stocks and [sic]
valued in the corporate books at
P7,699,934.28, more or less, excluding interest
and/or dividends, had been transferred solely in
the name of respondent. By such fraudulent
manipulations and misrepresentation, the
shareholdings of said respondent Oscar C. Reyes
abruptly increased to P8,715,637.00 [sic] and
becomes [sic] the majority stockholder of Zenith
Insurance Corporation, which portion of said
shares must be distributed equally amongst the
brothers and sisters of the respondent Oscar C.
Reyes including the complainant herein.
xxxx
9.1 The shareholdings of deceased Spouses
Pedro Reyes and Anastacia C. Reyes valued at
P7,099,934.28 were illegally and fraudulently
transferred solely to the respondents [herein
petitioner Oscar] name and installed himself
as a majority stockholder of Zenith Insurance
Corporation [and] thereby deprived his brothers
and sisters of their respective equal shares
thereof including complainant hereto.
xxxx
10.1 By refusal of the respondent to account
of his [sic] shareholdings in the company, he
illegally and fraudulently transferred solely in
his name wherein [sic] the shares of stock of
the deceased Anastacia C. Reyes [which] must
be properly collated and/or distributed equally
amongst the children, including the
complainant Rodrigo C. Reyes herein, to their
damage and prejudice.
xxxx
11.1 By continuous refusal of the respondent to
account of his [sic] shareholding with Zenith
Insurance Corporation[,] particularly the number of
shares of stocks illegally and fraudulently
transferred to him from their deceased parents
Sps. Pedro and Anastacia Reyes[,] which are all
subject for collation and/or partition in equal
shares among their children. [Emphasis supplied.]
Allegations of deceit, machination, false pretenses,
misrepresentation, and threats are largely conclusions of
law that, without supporting statements of the facts to
which the allegations of fraud refer, do not sufficiently
state an effective cause of action.15 The late Justice Jose
Feria, a noted authority in Remedial Law, declared that
fraud and mistake are required to be averred with
particularity in order to enable the opposing party to
controvert the particular facts allegedly constituting such
fraud or mistake.16
Tested against these standards, we find that the charges
of fraud against Oscar were not properly supported by the
required factual allegations. While the complaint contained
allegations of fraud purportedly committed by him, these
allegations are not particular enough to bring the
controversy within the special commercial courts
jurisdiction; they are not statements of ultimate facts, but
are mere conclusions of law: how and why the alleged
appropriation of shares can be characterized as "illegal
and fraudulent" were not explained nor elaborated on.
Not every allegation of fraud done in a corporate setting or
perpetrated by corporate officers will bring the case within
the special commercial courts jurisdiction. To fall within
this jurisdiction, there must be sufficient nexus showing
that the corporations nature, structure, or powers were
used to facilitate the fraudulent device or scheme.
Contrary to this concept, the complaint presented a
reverse situation. No corporate power or office was
alleged to have facilitated the transfer of the shares;
rather, Oscar, as an individual and without reference to his
corporate personality, was alleged to have transferred the
shares of Anastacia to his name, allowing him to become
the majority and controlling stockholder of Zenith, and
eventually, the corporations President. This is the
essence of the complaint read as a whole and is
particularly demonstrated under the following allegations:
5. The complainant Rodrigo C. Reyes discovered
that by some manipulative scheme, the
shareholdings of their deceased mother, Doa
Anastacia C. Reyes, shares of stocks and [sic]
valued in the corporate books at P7,699,934.28,
more or less, excluding interest and/or dividends,
had been transferred solely in the name of
respondent. By such fraudulent manipulations
and misrepresentation, the shareholdings of
said respondent Oscar C. Reyes abruptly
increased to P8,715,637.00 [sic] and becomes
[sic] the majority stockholder of Zenith
Insurance Corporation, which portion of said
shares must be distributed equally amongst the
brothers and sisters of the respondent Oscar C.
Reyes including the complainant herein.
xxxx
9.1 The shareholdings of deceased Spouses
Pedro Reyes and Anastacia C. Reyes valued at
P7,099,934.28 were illegally and fraudulently
transferred solely to the respondents [herein
petitioner Oscar] name and installed himself
as a majority stockholder of Zenith Insurance
Corporation [and] thereby deprived his brothers
and sisters of their respective equal shares
thereof including complainant hereto. [Emphasis
supplied.]
In ordinary cases, the failure to specifically allege the
fraudulent acts does not constitute a ground for dismissal
since such defect can be cured by a bill of particulars. In
cases governed by the Interim Rules of Procedure on
Intra-Corporate Controversies, however, a bill of
particulars is a prohibited pleading. 17 It is essential,
therefore, for the complaint to show on its face what are
claimed to be the fraudulent corporate acts if the
complainant wishes to invoke the courts special
commercial jurisdiction.
We note that twice in the course of this case, Rodrigo had
been given the opportunity to study the propriety of
amending or withdrawing the complaint, but he
consistently refused. The courts function in resolving
issues of jurisdiction is limited to the review of the
allegations of the complaint and, on the basis of these
allegations, to the determination of whether they are of
such nature and subject that they fall within the terms of
the law defining the courts jurisdiction. Regretfully, we
cannot read into the complaint any specifically alleged
corporate fraud that will call for the exercise of the courts
special commercial jurisdiction. Thus, we cannot affirm the
RTCs assumption of jurisdiction over Rodrigos complaint
on the basis of Section 5(a) of P.D. No. 902-A.18
Intra-Corporate Controversy
A review of relevant jurisprudence shows a development
in the Courts approach in classifying what constitutes an
intra-corporate controversy. Initially, the main
consideration in determining whether a dispute constitutes
an intra-corporate controversy was limited to a
consideration of the intra-corporate relationship existing
between or among the parties. 19 The types of relationships
embraced under Section 5(b), as declared in the case of
Union Glass & Container Corp. v. SEC,20 were as follows:
a) between the corporation, partnership, or
association and the public;
b) between the corporation, partnership, or
association and its stockholders, partners,
members, or officers;
c) between the corporation, partnership, or
association and the State as far as its franchise,
permit or license to operate is concerned; and
d) among the stockholders, partners, or
associates themselves. [Emphasis supplied.]
The existence of any of the above intra-corporate relations
was sufficient to confer jurisdiction to the SEC, regardless
of the subject matter of the dispute. This came to be
known as the relationship test.
However, in the 1984 case of DMRC Enterprises v. Esta
del Sol Mountain Reserve, Inc.,21 the Court introduced the
nature of the controversy test. We declared in this case
that it is not the mere existence of an intra-corporate
relationship that gives rise to an intra-corporate
controversy; to rely on the relationship test alone will
divest the regular courts of their jurisdiction for the sole
reason that the dispute involves a corporation, its
directors, officers, or stockholders. We saw that there is no
legal sense in disregarding or minimizing the value of the
nature of the transactions which gives rise to the dispute.
Under the nature of the controversy test, the incidents of
that relationship must also be considered for the purpose
of ascertaining whether the controversy itself is intra-
corporate.22 The controversy must not only be rooted in
the existence of an intra-corporate relationship, but must
as well pertain to the enforcement of the parties
correlative rights and obligations under the Corporation
Code and the internal and intra-corporate regulatory rules
of the corporation. If the relationship and its incidents are
merely incidental to the controversy or if there will still be
conflict even if the relationship does not exist, then no
intra-corporate controversy exists.
The Court then combined the two tests and declared that
jurisdiction should be determined by considering not only
the status or relationship of the parties, but also the nature
of the question under controversy.23 This two-tier test was
adopted in the recent case of Speed Distribution, Inc. v.
Court of Appeals:24
 To determine whether a case involves an intra-
corporate controversy, and is to be heard and
decided by the branches of the RTC specifically
designated by the Court to try and decide such
cases, two elements must concur: (a) the status
or relationship of the parties; and (2) the nature of
the question that is the subject of their
controversy.
The first element requires that the controversy
must arise out of intra-corporate or partnership
relations between any or all of the parties and the
corporation, partnership, or association of which
they are stockholders, members or associates;
between any or all of them and the corporation,
partnership, or association of which they are
stockholders, members, or associates,
respectively; and between such corporation,
partnership, or association and the State insofar
as it concerns their individual franchises. The
second element requires that the dispute among
the parties be intrinsically connected with the
regulation of the corporation. If the nature of the
controversy involves matters that are purely civil
in character, necessarily, the case does not
involve an intra-corporate controversy.
Given these standards, we now tackle the question posed
for our determination under the specific circumstances of
this case:
Application of the Relationship Test
Is there an intra-corporate relationship between the parties
that would characterize the case as an intra-corporate
dispute?
We point out at the outset that while Rodrigo holds shares
of stock in Zenith, he holds them in two capacities: in his
own right with respect to the 4,250 shares registered in his
name, and as one of the heirs of Anastacia Reyes with
respect to the 136,598 shares registered in her name.
What is material in resolving the issues of this case under
the allegations of the complaint is Rodrigos interest as an
heir since the subject matter of the present controversy
centers on the shares of stocks belonging to Anastacia,
not on Rodrigos personally-owned shares nor on his
personality as shareholder owning these shares. In this
light, all reference to shares of stocks in this case shall
pertain to the shareholdings of the deceased Anastacia
and the parties interest therein as her heirs.
Article 777 of the Civil Code declares that the
successional rights are transmitted from the moment of
death of the decedent. Accordingly, upon Anastacias
death, her children acquired legal title to her estate (which
title includes her shareholdings in Zenith), and they are,
prior to the estates partition, deemed co-owners thereof. 25
This status as co-owners, however, does not immediately
and necessarily make them stockholders of the
corporation. Unless and until there is compliance with
Section 63 of the Corporation Code on the manner of
transferring shares, the heirs do not become registered
stockholders of the corporation. Section 63 provides:
Section 63. Certificate of stock and transfer of
shares. The capital stock of stock corporations
shall be divided into shares for which certificates
signed by the president or vice-president,
countersigned by the secretary or assistant
secretary, and sealed with the seal of the
corporation shall be issued in accordance with the
by-laws. Shares of stock so issued are personal
property and may be transferred by delivery of the
certificate or certificates indorsed by the owner or
his attorney-in-fact or other person legally
authorized to make the transfer. No transfer,
however, shall be valid, except as between the
parties, until the transfer is recorded in the
books of the corporation so as to show the
names of the parties to the transaction, the
date of the transfer, the number of the
certificate or certificates, and the number of
shares transferred. [Emphasis supplied.]
No shares of stock against which the corporation
holds any unpaid claim shall be transferable in the
books of the corporation.
Simply stated, the transfer of title by means of succession,
though effective and valid between the parties involved
(i.e., between the decedents estate and her heirs), does
not bind the corporation and third parties. The transfer
must be registered in the books of the corporation to make
the transferee-heir a stockholder entitled to recognition as
such both by the corporation and by third parties. 26
We note, in relation with the above statement, that in
Abejo v. Dela Cruz27 and TCL Sales Corporation v. Court
of Appeals28 we did not require the registration of the
transfer before considering the transferee a stockholder of
the corporation (in effect upholding the existence of an
intra-corporate relation between the parties and bringing
the case within the jurisdiction of the SEC as an intra-
corporate controversy). A marked difference, however,
exists between these cases and the present one.
In Abejo and TCL Sales, the transferees held definite and
uncontested titles to a specific number of shares of
the corporation; after the transferee had established
prima facie ownership over the shares of stocks in
question, registration became a mere formality in
confirming their status as stockholders. In the present
case, each of Anastacias heirs holds only an undivided
interest in the shares. This interest, at this point, is still
inchoate and subject to the outcome of a settlement
proceeding; the right of the heirs to specific, distributive
shares of inheritance will not be determined until all the
debts of the estate of the decedent are paid. In short, the
heirs are only entitled to what remains after payment of
the decedents debts;29 whether there will be residue
remains to be seen. Justice Jurado aptly puts it as follows:
 No succession shall be declared unless and until
a liquidation of the assets and debts left by the
decedent shall have been made and all his
creditors are fully paid. Until a final liquidation is
made and all the debts are paid, the right of the
heirs to inherit remains inchoate. This is so
because under our rules of procedure, liquidation
is necessary in order to determine whether or
not the decedent has left any liquid assets
which may be transmitted to his heirs.30
[Emphasis supplied.]
Rodrigo must, therefore, hurdle two obstacles before he
can be considered a stockholder of Zenith with respect to
the shareholdings originally belonging to Anastacia. First,
he must prove that there are shareholdings that will be left
to him and his co-heirs, and this can be determined only in
a settlement of the decedents estate. No such proceeding
has been commenced to date. Second, he must register
the transfer of the shares allotted to him to make it binding
against the corporation. He cannot demand that this be
done unless and until he has established his specific
allotment (and prima facie ownership) of the shares.
Without the settlement of Anastacias estate, there can be
no definite partition and distribution of the estate to the
heirs. Without the partition and distribution, there can be
no registration of the transfer. And without the registration,
we cannot consider the transferee-heir a stockholder who
may invoke the existence of an intra-corporate relationship
as premise for an intra-corporate controversy within the
jurisdiction of a special commercial court.
In sum, we find that insofar as the subject shares of
stock (i.e., Anastacias shares) are concerned Rodrigo
cannot be considered a stockholder of Zenith.
Consequently, we cannot declare that an intra-corporate
relationship exists that would serve as basis to bring this
case within the special commercial courts jurisdiction
under Section 5(b) of PD 902-A, as amended. Rodrigos
complaint, therefore, fails the relationship test.
Application of the Nature of Controversy Test
The body rather than the title of the complaint determines
the nature of an action.31 Our examination of the complaint
yields the conclusion that, more than anything else, the
complaint is about the protection and enforcement of
successional rights. The controversy it presents is purely
civil rather than corporate, although it is denominated as a
"complaint for accounting of all corporate funds and
assets."
Contrary to the findings of both the trial and appellate
courts, we read only one cause of action alleged in the
complaint. The "derivative suit for accounting of the funds
and assets of the corporation which are in the control,
custody, and/or possession of the respondent [herein
petitioner Oscar]" does not constitute a separate cause of
action but is, as correctly claimed by Oscar, only an
incident to the "action for determination of the shares of
stock of deceased spouses Pedro and Anastacia Reyes
allegedly taken by respondent, its accounting and the
corresponding delivery of these shares to the parties
brothers and sisters." There can be no mistake of the
relationship between the "accounting" mentioned in the
complaint and the objective of partition and distribution
when Rodrigo claimed in paragraph 10.1 of the complaint
that:
10.1 By refusal of the respondent to account of
[sic] his shareholdings in the company, he illegally
and fraudulently transferred solely in his name
wherein [sic] the shares of stock of the deceased
Anastacia C. Reyes [which] must be properly
collated and/or distributed equally amongst the
children including the complainant Rodrigo C.
Reyes herein to their damage and prejudice.
We particularly note that the complaint contained no
sufficient allegation that justified the need for an
accounting other than to determine the extent of
Anastacias shareholdings for purposes of distribution.
Another significant indicator that points us to the real
nature of the complaint are Rodrigos repeated claims of
illegal and fraudulent transfers of Anastacias shares by
Oscar to the prejudice of the other heirs of the decedent;
he cited these allegedly fraudulent acts as basis for his
demand for the collation and distribution of Anastacias
shares to the heirs. These claims tell us unequivocally that
the present controversy arose from the parties
relationship as heirs of Anastacia and not as shareholders
of Zenith. Rodrigo, in filing the complaint, is enforcing his
rights as a co-heir and not as a stockholder of Zenith. The
injury he seeks to remedy is one suffered by an heir (for
the impairment of his successional rights) and not by the
corporation nor by Rodrigo as a shareholder on record.
More than the matters of injury and redress, what Rodrigo
clearly aims to accomplish through his allegations of illegal
acquisition by Oscar is the distribution of Anastacias
shareholdings without a prior settlement of her estate an
objective that, by law and established jurisprudence,
cannot be done. The RTC of Makati, acting as a special
commercial court, has no jurisdiction to settle, partition,
and distribute the estate of a deceased. A relevant
provision Section 2 of Rule 90 of the Revised Rules of
Court that contemplates properties of the decedent held
by one of the heirs declares:
Questions as to advancement made or alleged
to have been made by the deceased to any heir
may be heard and determined by the court
having jurisdiction of the estate proceedings;
and the final order of the court thereon shall be
binding on the person raising the questions and
on the heir. [Emphasis supplied.]
Worth noting are this Courts statements in the case of
Natcher v. Court of Appeals:32
Matters which involve settlement and
distribution of the estate of the decedent fall
 within the exclusive province of the probate
court in the exercise of its limited jurisdiction.
xxxx
It is clear that trial courts trying an ordinary
action cannot resolve to perform acts
pertaining to a special proceeding because it is
subject to specific prescribed rules. [Emphasis
supplied.]
That an accounting of the funds and assets of Zenith to
determine the extent and value of Anastacias
shareholdings will be undertaken by a probate court and
not by a special commercial court is completely consistent
with the probate courts limited jurisdiction. It has the
power to enforce an accounting as a necessary means to
its authority to determine the properties included in the
inventory of the estate to be administered, divided up, and
distributed. Beyond this, the determination of title or
ownership over the subject shares (whether belonging to
Anastacia or Oscar) may be conclusively settled by the
probate court as a question of collation or advancement.
We had occasion to recognize the courts authority to act
on questions of title or ownership in a collation or
advancement situation in Coca v. Pangilinan33 where we
ruled:
It should be clarified that whether a particular
matter should be resolved by the Court of First
Instance in the exercise of its general jurisdiction
or of its limited probate jurisdiction is in reality not
a jurisdictional question. In essence, it is a
procedural question involving a mode of practice
"which may be waived."
As a general rule, the question as to title to
property should not be passed upon in the testate
or intestate proceeding. That question should be
ventilated in a separate action. That general rule
has qualifications or exceptions justified by
expediency and convenience.
Thus, the probate court may provisionally pass
upon in an intestate or testate proceeding the
question of inclusion in, or exclusion from, the
inventory of a piece of property without prejudice
to its final determination in a separate action.
Although generally, a probate court may not
decide a question of title or ownership, yet if
the interested parties are all heirs, or the
question is one of collation or advancement,
or the parties consent to the assumption of
jurisdiction by the probate court and the rights of
third parties are not impaired, the probate court
is competent to decide the question of
ownership. [Citations omitted. Emphasis
supplied.]
In sum, we hold that the nature of the present controversy
is not one which may be classified as an intra-corporate
dispute and is beyond the jurisdiction of the special
commercial court to resolve. In short, Rodrigos complaint
also fails the nature of the controversy test.
DERIVATIVE SUIT
Rodrigos bare claim that the complaint is a derivative suit
will not suffice to confer jurisdiction on the RTC (as a
special commercial court) if he cannot comply with the
requisites for the existence of a derivative suit. These
requisites are:
a. the party bringing suit should be a shareholder
during the time of the act or transaction
complained of, the number of shares not being
material;
b. the party has tried to exhaust intra-corporate
remedies, i.e., has made a demand on the board
of directors for the appropriate relief, but the latter
has failed or refused to heed his plea; and
c. the cause of action actually devolves on the
corporation; the wrongdoing or harm having been
or being caused to the corporation and not to the
particular stockholder bringing the suit.34
Based on these standards, we hold that the allegations of
the present complaint do not amount to a derivative suit.
First, as already discussed above, Rodrigo is not a
shareholder with respect to the shareholdings originally
belonging to Anastacia; he only stands as a transferee-
heir whose rights to the share are inchoate and
unrecorded. With respect to his own individually-held
shareholdings, Rodrigo has not alleged any individual
cause or basis as a shareholder on record to proceed
against Oscar.
Second, in order that a stockholder may show a right to
sue on behalf of the corporation, he must allege with some
particularity in his complaint that he has exhausted his
remedies within the corporation by making a sufficient
demand upon the directors or other officers for appropriate
relief with the expressed intent to sue if relief is denied. 35
Paragraph 8 of the complaint hardly satisfies this
requirement since what the rule contemplates is the
exhaustion of remedies within the corporate setting:
8. As members of the same family, complainant
Rodrigo C. Reyes has resorted [to] and exhausted
all legal means of resolving the dispute with the
end view of amicably settling the case, but the
dispute between them ensued.
Lastly, we find no injury, actual or threatened, alleged to
have been done to the corporation due to Oscars acts. If
indeed he illegally and fraudulently transferred Anastacias
shares in his own name, then the damage is not to the
corporation but to his co-heirs; the wrongful transfer did
not affect the capital stock or the assets of Zenith. As
already mentioned, neither has Rodrigo alleged any
particular cause or wrongdoing against the corporation
that he can champion in his capacity as a shareholder on
record.36
In summary, whether as an individual or as a derivative
suit, the RTC sitting as special commercial court has
no jurisdiction to hear Rodrigos complaint since what is
involved is the determination and distribution of
successional rights to the shareholdings of Anastacia
Reyes. Rodrigos proper remedy, under the
circumstances, is to institute a special proceeding for the
settlement of the estate of the deceased Anastacia Reyes,
a move that is not foreclosed by the dismissal of his
present complaint.
WHEREFORE, we hereby GRANT the petition and
REVERSE the decision of the Court of Appeals dated May
26, 2004 in CA-G.R. SP No. 74970. The complaint before
the Regional Trial Court, Branch 142, Makati, docketed as
Civil Case No. 00-1553, is ordered DISMISSED for lack of
jurisdiction.
SO ORDERED.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO,
petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND,
respondents.
PUNO, J.:
This is an appeal by certiorari from the Decision of the
Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30,
1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the
questioned decision of November 19,
1988 of the trial court is hereby
REVERSED and SET ASIDE, and the
petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate
is the holographic will of the late Annie Sand, who
died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero,
Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No.
Q-37171, for allowance of decedent's holographic will.
They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud
or undue influence, and was in every respect capacitated
to dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testament's body nor the signature therein
was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and,
the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan
Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its
sole owner.
Notwithstanding the oppositions, the trial court admitted
the decedent's holographic will to probate. It found, inter
alia:
Considering then that the probate proceedings
herein must decide only the question of identity of
the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its
failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that
the will in question is different from the will actually
executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was
not written in the handwriting of the testatrix which
properly refers to the question of its due
execution, and not to the question of identity of
will. No other will was alleged to have been
executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence
adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted
in Court must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have
been presented and have explicitly and
categorically identified the handwriting with which
the holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be
entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of
the testratix, (private respondent) Clemente Sand
himself has testified in Court that the testatrix was
completely in her sound mind when he visited her
during her birthday celebration in 1981, at or
around which time the holographic will in question
was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of
making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and
the character of the testamentary act . . . The will
itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even
identified the lot number and square meters of the
lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And
considering that she had even written a nursing
book which contained the law and jurisprudence
on will and succession, there is more than
sufficient showing that she knows the character of
the testamentary act.
In this wise, the question of identity of the will, its
due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said
will was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the evidence
adduced have not shown any instance where
improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time
of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It
was also established that she is a very intelligent
person and has a mind of her own. Her
independence of character and to some extent,
her sense of superiority, which has been testified
to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the
undue influence or improper pressure in question
herein only refer to the making of a will and not as
to the specific testamentary provisions therein
which is the proper subject of another proceeding.
Hence, under the circumstances, this Court
cannot find convincing reason for the
disallowance of the will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred
over intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted
herein must be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition
for probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did
not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed without
being dated, and the last disposition has a
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions.
Art. 814: In case of insertion, cancellation, erasure
or alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will
shall be disallowed in any of the following cases:
(a) If not executed and attested as
required by law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and
improper pressure and influence, on the
part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his
will at the time of fixing his signature
thereto.
In the same vein, Article 839 of the New Civil
Code reads:
Art. 839: The will shall be disallowed in
any of the following cases;
(1) If the formalities required by
law have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through
force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue
and improper pressure and
influence, on the part of the
beneficiary or of some other
person;
(5) If the signature of the testator
was procured by fraud;
(6) If the testator acted by mistake
or did not intend that the
instrument he signed should be
his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante,
were not complied with, hence, it disallowed the probate of
said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40
Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805 and
806 of the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will
which must be entirely written, dated, and
signed by the hand of the testator himself.
It is subject to no other form, and may be
made in or out of the Philippines, and
 need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that
is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that
its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to
probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova
132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been noted
under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary
when he said "la omission de la salvedad no
anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de
Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations,
cancellations or insertions were made on the date of the
holographic will or on testator's signature, 9 their presence
does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such
changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688
of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read
as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed only
by persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of
the year, month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate
of a holographic will.
The Court of Appeals further held that decedent Annie
Sand could not validly dispose of the house and lot
located in Cabadbaran, Agusan del Norte, in its entirety.
This is correct and must be affirmed.
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of
the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus,
as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED.
The Decision of the Court of Appeals in CA-G.R. CV No.
22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-
37171, dated November 19, 1988, admitting to probate
the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO,
and UEFEMIA PATIGAS, respondents.

PARDO, J.:

Before us is a petition for review on certiorari of the

decision of the Court of Appeals1 and its resolution
denying reconsideration, ruling:

Upon the unrebutted testimony of appellant

Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic
will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to
probate said will. Reversal of the judgment
appealed from and the probate of the holographic
will in question be called for. The rule is that after
plaintiff has completed presentation of his
evidence and the defendant files a motion for
judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown
no right to relief, if the motion is granted and the
order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his
behalf (Sec, 1 Rule 35 Revised Rules of Court).
Judgment may, therefore, be rendered for
appellant in the instant case.
 Wherefore, the order appealed from is
REVERSED and judgment rendered allowing the
probate of the holographic will of the testator
Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the
holographic will of the deceased, who died on January 16,
1990.
In the petition, respondents claimed that the deceased
Matilde Seo Vda. de Ramonal, was of sound and
disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue influence, and
duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including
all real and personal property was about P400,000.00, at
the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition5 to the petition for probate,
alleging that the holographic will was a forgery and that
the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true
hand" of Matilde Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated or
appearing on will after every disposition is out of the
ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of
the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or
through fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting
their evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal
basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order,
the dispositive portion of which reads:
WHEREFORE, in view of the foregoing
consideration, the Demurrer to Evidence having
being well taken, same is granted, and the petition
for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde
Seo Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of
appeal,8 and in support of their appeal, the respondents
once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the
witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of
Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed.
He produced and identified the records of the case. The
documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying
the basis for comparison of the handwriting of the testatrix,
with the writing treated or admitted as genuine by the
party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro,
was presented to produced and identify the voter's
affidavit of the decedent. However, the voters' affidavit
was not produced for the same was already destroyed
and no longer available.
Matilde Ramonal Binanay, testified that the deceased
Matilde Seo Vda. de Ramonal was her aunt, and that
after the death of Matilde's husband, the latter lived with
her in her parent's house for eleven (11) years from 1958
to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her
signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings,
and deceased always issued receipts. In addition to this,
she (witness Matilde Binanay) assisted the deceased in
posting the records of the accounts, and carried personal
letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time
of the death of Matilde Vda. de Ramonal, she left a
holographic will dated August 30, 1978, which was
personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates,
and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was (Sgd) Matilde Vda de Ramonal
appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and August 30, 1978
documents signed by the deceased in connection with the
proceedings of her late husband, as a result of which he is 4. I bequeath my one (1) hectare land at
familiar with the handwriting of the latter. He testified that Mandumol, Indahag to Evangeline R. Calugay
the signature appearing in the holographic will was similar
to that of the deceased, Matilde Seo Vda. de Ramonal, (Sgd) Matilde Vda de Ramonal
but he can not be sure.
August 30, 1978
The fifth witness presented was Mrs. Teresita Vedad, an
employee of the Department of Environment and Natural 5. Give the 2,500 Square Meters at Sta. Cruz
Resources, Region 10. She testified that she processed Ramonal Village in favor of Evangeline R.
the application of the deceased for pasture permit and Calugay, Helen must continue with the Sta. Cruz,
was familiar with the signature of the deceased, since the once I am no longer around.
signed documents in her presence, when the latter was
applying for pasture permit. (Sgd) Matilde Vda de Ramonal

Finally, Evangeline Calugay, one of the respondents, August 30, 1978

testified that she had lived with the deceased since birth,
and was in fact adopted by the latter. That after a long 6. Bury me where my husband Justo is ever
period of time she became familiar with the signature of buried.
the deceased. She testified that the signature appearing in
the holographic will is the true and genuine signature of
(Sgd) Matilde Vda de Ramonal
Matilde Seo Vda. de Ramonal.
August 30, 1978
The holographic will which was written in Visayan, is
translated in English as follows:
Gene and Manuel:

Instruction
Follow my instruction in order that I will rest
peacefully.
August 30, 1978
Mama
1. My share at Cogon, Raminal Street, for
Evangeline Calugay.
Matilde Vda de Ramonal

(Sgd) Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered
decision9 ruling that the appeal was meritorious. Citing the
August 30, 1978
decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized
2. Josefina Salcedo must be given 1,500 square authority in civil law, the Court of Appeals held:
meters at Pinikan Street.
. . . even if the genuineness of the holographic will
(Sgd) Matilde Vda de Ramonal were contested, we are of the opinion that Article
811 of our present civil code can not be
August 30, 1978 interpreted as to require the compulsory
presentation of three witnesses to identify the
3. My jewelry's shall be divided among: handwriting of the testator, under penalty of
having the probate denied. Since no witness may
1. Eufemia Patigas have been present at the execution of the
holographic will, none being required by law (art.
2. Josefina Salcedo 810, new civil code), it becomes obvious that the
existence of witnesses possessing the requisite
3. Evangeline Calugay qualifications is a matter beyond the control of the
proponent. For it is not merely a question of
finding and producing any three witnesses; they
must be witnesses "who know the handwriting and
signature of the testator" and who can declare
(truthfully, of course, even if the law does not
express) "that the will and the signature are in the
handwriting of the testator." There may be no
available witness acquainted with the testator's
hand; or even if so familiarized, the witness
maybe unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of article
811 may thus become an impossibility. That is
evidently the reason why the second paragraph of
article 811 prescribes that
in the absence of any competent witness referred
to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be
resorted to.
As can be see, the law foresees, the possibility
that no qualified witness ma be found (or what
amounts to the same thing, that no competent
witness may be willing to testify to the authenticity
of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring
that three witnesses be presented if the will is
contested and only one if no contest is had) was
derived from the rule established for ordinary
testaments (CF Cabang vs. Delfianado, 45 PHIL
291; Tolentino v. Francisco, 57 PHIL 742). But it
can not be ignored that the requirement can be
considered mandatory only in case of ordinary
testaments, precisely because the presence of at
least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art.
805). Where the will is holographic, no witness
need be present (art. 10), and the rule requiring
production of three witnesses must be deemed
merely permissive if absurd results are to be
avoided.
Again, under Art. 811, the resort to expert
evidence is conditioned by the words "if the court
deem it necessary", which reveal that what the
law deems essential is that the court should be
convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and
the court is convinced by their testimony that the
will is genuine, it may consider it unnecessary to
call for expert evidence. On the other hand, if no
competent witness is available, or none of those
produced is convincing, the court may still, and in
fact it should resort to handwriting experts. The
duty of the court, in fine, is to exhaust all available
lines of inquiry, for the state is as much interested
as the proponent that the true intention of the
testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the
genuineness of the holographic will were
contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of the
having the probate denied. No witness need be
present in the execution of the holographic will.
And the rule requiring the production of three
witnesses is merely permissive. What the law
deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust all
available lines of inquiry, for the state is as much
interested in the proponent that the true intention
of the testator be carried into effect. And because
the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference
can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay
witnesses.10
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses definitely
and in no uncertain terms testified that the handwriting
and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authenticity of
the holographic will and the handwriting and signature
therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola
vs. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to
the case.
(2) Whether or not the Court of Appeals erred in
holding that private respondents had been able to
present credible evidence to that the date, text,
and signature on the holographic will written
entirely in the hand of the testatrix.
 (3) Whether or not the Court of Appeals erred in Matilde Vda de Ramonal keep herself busy that
not analyzing the signatures in the holographic will time?
of Matilde Seo Vda. de Ramonal.
A. Collecting rentals.
In this petition, the petitioners ask whether the provisions
of Article 811 of the Civil Code are permissive or Q. From where?
mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three A. From the land rentals and commercial
witnesses explicitly declare that the signature in the will is buildings at Pabayo-Gomez streets.12
the genuine signature of the testator.1wphi1.nt
xxx xxx xxx
We are convinced, based on the language used, that
Article 811 of the Civil Code is mandatory. The word Q. Who sometime accompany her?
"shall" connotes a mandatory order. We have ruled that
"shall" in a statute commonly denotes an imperative A. I sometimes accompany her.
obligation and is inconsistent with the idea of discretion
and that the presumption is that the word "shall," when Q. In collecting rentals does she issue receipts?
used in a statute is mandatory.11
A. Yes, sir.13
Laws are enacted to achieve a goal intended and to guide
against an evil or mischief that aims to prevent. In the xxx xxx xxx
case at bar, the goal to achieve is to give effect to the
wishes of the deceased and the evil to be prevented is the
Q. Showing to you the receipt dated 23 October
possibility that unscrupulous individuals who for their
1979, is this the one you are referring to as one of
benefit will employ means to defeat the wishes of the
the receipts which she issued to them?
testator.
A. Yes, sir.
So, we believe that the paramount consideration in the
present petition is to determine the true intent of the
Q. Now there is that signature of Matilde vda. De
deceased. An exhaustive and objective consideration of
Ramonal, whose signature is that Mrs. Binanay?
the evidence is imperative to establish the true intent of
the testator.
A. Matilde vda. De Ramonal.

It will be noted that not all the witnesses presented by the

Q. Why do you say that is the signature of
respondents testified explicitly that they were familiar with
Matilde Vda. De Ramonal?
the handwriting of testator. In the case of Augusto Neri,
clerk of court, Court of First Instance, Misamis Oriental, he
A. I am familiar with her signature.
merely identified the record of Special Proceedings No.
427 before said court. He was not presented to declare
explicitly that the signature appearing in the holographic Q. Now, you tell the court Mrs. Binanay, whether
was that of the deceased. you know Matilde vda de Ramonal kept records of
the accounts of her tenants?
Generosa E. Senon, the election registrar of Cagayan de
Oro City, was presented to identify the signature of the A. Yes, sir.
deceased in the voter's affidavit, which was not even
produced as it was no longer available. Q. Why do you say so?

Matilde Ramonal Binanay, on the other hand, testified A. Because we sometimes post a record of
that: accounts in behalf of Matilde Vda. De Ramonal.

Q. And you said for eleven (11) years Matilde Q. How is this record of accounts made? How is
Vda de Ramonal resided with your parents at this reflected?
Pinikitan, Cagayan de Oro City. Would you tell the
court what was your occupation or how did A. In handwritten.14
 xxx xxx xxx
Q. In addition to collection of rentals, posting
records of accounts of tenants and deed of sale
which you said what else did you do to acquire
familiarity of the signature of Matilde Vda De
Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
15
A. To her creditors.
xxx xxx xxx
Q. You testified that at time of her death she left
a will. I am showing to you a document with its
title "tugon" is this the document you are referring
to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that
handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your
aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and
letters of the deceased, which she either mailed or gave to
her tenants. She did not declare that she saw the
deceased sign a document or write a note.
Further, during the cross-examination, the counsel for
petitioners elicited the fact that the will was not found in
the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by
counsel for the petitioners if the late Matilde Seno
vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of
the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since
as you said this was originally in the possession of
your mother?
A. 1985.17
xxx xxx xxx
Q. Now, Mrs. Binanay was there any particular
reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took
that in the aparador when she died.
Q. After taking that document you kept it with
you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept
the fact about the will from petitioners, the legally adopted
children of the deceased. Such actions put in issue her
motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seo Vda. de
Ramonal.
In the testimony of Ms. Binanay, the following were
established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal
was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly
and she could walk agilely and she could go to
her building to collect rentals, is that correct?
A. Yes, sir.19
xxx xxx xxx
Q. Now, let us go to the third signature of Matilde
Ramonal. Do you know that there are retracings in
the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to
letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de
Ramonal the letter L in Matilde is continued
towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx xxx xxx
Q. Now, that was 1979, remember one year after
the alleged holographic will. Now, you identified a
document marked as Exhibit R. This is dated
January 8, 1978 which is only about eight months
from August 30, 1978. Do you notice that the
signature Matilde Vda de Ramonal is beautifully
written and legible?
A. Yes, sir the handwriting shows that she was
very exhausted.
Q. You just say that she was very exhausted
while that in 1978 she was healthy was not sickly
and she was agile. Now, you said she was
exhausted?
A. In writing.
Q. How did you know that she was exhausted
when you were not present and you just tried to
explain yourself out because of the apparent
inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature
dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that
there is no retracing; there is no hesitancy and the
signature was written on a fluid movement. . . .
And in fact, the name Eufemia R. Patigas here
refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not
only with the questioned signature appearing in
the alleged holographic will marked as Exhibit X
but in the handwriting themselves, here you will
notice the hesitancy and tremors, do you notice
that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was
written, dated and signed in the handwriting of the testator.
She testified that:
Q. You testified that you stayed with the house of
the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the
services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the
church, to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going
to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her
lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you
acquire familiarity of the handwriting of Matilde
Vda de Ramonal?
A. Yes, sir.
 Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx xxx xxx
Q. Now, I am showing to you Exhibit S which is
captioned "tugon" dated Agosto 30, 1978 there is
a signature here below item No. 1, will you tell this
court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why
she was familiar with the handwriting of the deceased was
because she lived with her since birth. She never declared
that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified
that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my
godmother the husband is my godfather. Actually I
am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx xxx xxx
Q. Can you tell this court whether the spouses
Justo Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate
children.25
xxx xxx xxx
Q. You said after becoming a lawyer you practice
your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the
deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of
properties.
Q. When you said assisted, you acted as her
counsel? Any sort of counsel as in what case is
that, Fiscal?
A. It is about the project partition to terminate the
property, which was under the court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is
the amended inventory which is marked as exhibit
N of the estate of Justo Ramonal and there
appears a signature over the type written word
Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de
Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs.
Matilde vda de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that
Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering
professional service to the deceased Matilde Vda
de Ramonal?
A. I can not remember if I have assisted her in
other matters but if there are documents to show
that I have assisted then I can recall. 28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is
titled "tugon", kindly go over this document, Fiscal
Waga and tell the court whether you are familiar
with the handwriting contained in that document
marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose
signature is this?
A. I think this signature here it seems to be the
signature of Mrs. Matilde vda de Ramonal.
 Q. Now, in item No. 2 there is that signature here
of Matilde Vda de Ramonal, can you tell the court
whose signature is this?
A. Well, that is similar to that signature appearing
in the project of partition.
Q. Also in item no. 3 there is that signature
Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the
signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is
being written.
Q. How about this signature in item no. 4, can
you tell the court whose signature is this?
A. The same is true with the signature in item no.
4. It seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said
that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature
of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the
signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her
signature because it is similar to the signature of
the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs.
Singson,31 ruling that the requirement is merely directory
and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that
"the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But on the other hand, also one
must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make
a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which
is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the
handwriting of the deceased.
The will was found not in the personal belongings of the
deceased but with one of the respondents, who kept it
even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the
death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her
lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert.
Even the former lawyer of the deceased expressed doubts
as to the authenticity of the signature in the holographic
will.
A visual examination of the holographic will convince us
that the strokes are different when compared with other
documents written by the testator. The signature of the
testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated
June 16, 1978,35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that
ruling holographic will was in the handwriting by the
deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo vda. de
Ramonal.1wphi1.nt
No costs. BENGZON, J.:

SO ORDERED. On November 20, 1951, Felicidad Esguerra Alto Yap died

of heart failure in the University of Santo Tomas Hospital,
leaving properties in Pulilan, Bulacan, and in the City of
Manila.

On March 17, 1952, Fausto E. Gan initiated them

proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa,

at ganap na pag-iisip, ay nagsasalaysay
na ang aking kayamanan sa bayan ng
Pulilan, Bulacan ay aking ipinamamana
sa aking mga kamag-anakang
sumusunod:

Vicente Esguerra,
Sr. .............................................

Fausto E.
Gan .........................................................

Rosario E.
Gan .........................................................

Filomena
Alto ..........................................................

Beatriz
Alto ..............................................................

At ang aking lahat ng ibang kayamanan

sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa
G.R. No. L-12190 August 30, 1958 halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO- pangalang Felicidad Esguerra-Alto. At
YAP deceased. FAUSTO E. GAN, petitioner-appellant, kung ito ay may kakulangan man ay
vs. bahala na ang aking asawa ang magpuno
ILDEFONSO YAP, oppositor-appellee. upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso
Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
After hearing the parties and considering their evidence,
the Hon. Ramon R. San Jose, Judge, 1 refused to probate
the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
The will itself was not presented. Petitioner tried to
establish its contents and due execution by the statements
in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may
be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it
would be useless if her husband discovered or knew
about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without
any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra
lost no time in transmitting the information, and on the
strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the
tenor above transcribed, in the presence of her niece,
Felina Esguerra (daughter of Vicente), who was invited to
read it. In the afternoon of that day, Felicidad was visited
by a distant relative, Primitivo Reyes, and she allowed him
to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a
cousin, and Rosario Gan Jimenez, a niece. To these she
showed the will, again in the presence of Felina Esguerra,
who read it for the third time.
When on November 19, 1951, Felicidad was confined at
the U.S.T. Hospital for her last illness, she entrusted the
said will, which was contained in a purse, to Felina
Esguerra. But a few hours later, Ildefonso Yap, her
husband, asked Felina for the purse: and being afraid of
him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the
next day shortly before the death of Felicidad. Again,
Felina handed it to him but not before she had taken the
purse to the toilet, opened it and read the will for the last
time.2
From the oppositor's proof it appears that Felicidad
Esguerra had been suffering from heart disease for
several years before her death; that she had been treated
by prominent physicians, Dr. Agerico Sison, Dr. Agustin
Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks
she was treated for the disease; that thereafter she felt
well and after visiting interesting places, the couple
returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household
was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and of by
the Yap spouses. Physician's help was hurriedly called,
and Dr. Tanjuaquio arrived at about 8:00 a.m., found the
patient hardly breathing, lying in bed, her head held high
by her husband. Injections and oxygen were administered.
Following the doctor's advice the patient stayed in bed,
and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra
Yap made no will, and could have made no will on that
day.
The trial judge refused to credit the petitioner's evidence
for several reasons, the most important of which were
these: (a) if according to his evidence, the decedent
wanted to keep her will a secret, so that her husband
would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that
witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is
hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is
improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte
to read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from
her husband she would carry it around, even to the
hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T.
Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of
the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to
accept the oppositor's evidence that Felicidad did not and
could not have executed such holographic will.
In this appeal, the major portion of appellant's brief
discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears
that the same arguments, or most of them, were
presented in the motion to reconsider; but they failed to
induce the court a quo to change its mind. The oppositor's
brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters,
because in our opinion the case should be decided not on
the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of
holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted
only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to
no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and
solemnities provided for wills under Act 190, which for fifty
years (from 1901 to 1950) required wills to be subscribed
by the testator and three credible witnesses in each and
every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their
presence and that they signed in the presence of the
testator and of each other.
The object of such requirements it has been said, is to
close the door against bad faith and fraud, to prevent
substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those
who have no right to succeed the testator would succeed
him and be benefited with the probate of same. (Mendoza
vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off.
Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant
requirements to be fulfilled when such will is submitted to
the courts for allowance. For that purpose the testimony of
one of the subscribing witnesses would be sufficient if
there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang vs. Delfinado, 34
Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the
testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the
genuineness and authenticity of the testament, and the
circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties
of truth and veracity are demanded, since as stated, they
need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the
testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at
any time, be demonstrated to be or not to be in the
hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be
resorted to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in
their opinion of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who
after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50,
Rule 123). And the court, in view of such contradictory
testimony may use its own visual sense, and decide in the
face of the document, whether the will submitted to it has
indeed been written by the testator.
Obviously, when the will itself is not submitted, these
means of opposition, and of assessing the evidence are
not available. And then the only guaranty of authenticity 3
the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic
will be probated upon the testimony of witnesses who
have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is
no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's
hand. The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be
honest and truthful; but they may have been shown a
faked document, and having no interest to check the
authenticity thereof have taken no pains to examine and
compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury,
because no one could prove that they have not "been
shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency
of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting
established, the witness (or witnesses) could simply stick
to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the
court and the oppositor would practically be at the mercy
of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the
law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow
proof (and probate) of a lost or destroyed will by
secondary evidence the testimony of witnesses, in lieu
of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be
validly made here. (See also Sec. 46, Rule 123; Art. 830-
New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic
wills?
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or
stolen4 an implied admission that such loss or theft
renders it useless..
This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who
shall subscribe it and require its identity to be established
by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator
(Art. 691). And if the judge considers that the identity of
the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It
requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they
may make "any statement they may desire to submit with
respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting
such relatives to state whether they know of the will, but
whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the
will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near
relatives the choice of either complying with the will if they
think it authentic, or to oppose it, if they think it spurious. 5
Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a
distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which
they should not be denied by withholding inspection
thereof from them.
We find confirmation of these ideas--about exhibition of
the document itself--in the decision of the Supreme Court
of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary
dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words
having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The
aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall
produce no effect.
Considerando que sentado lo anterior, y
estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea
valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del
ao, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la
expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende
la necesidad de que el documento se encuentre
en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y
sin perjuicio de las acciones que puedan ejercitar
los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in
the Fuero Juzgo, admittedly the basis of the Spanish Civil
Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro
segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ...
annos muestrenla al obispo de la tierra, o al juez
fasta VI meses y el obispo o el juez tomen otros
tales tres escritos, que fuesen fechos por su
mano daquel que fizo la manda; e por aquellos
escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art.
689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be
compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute
the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting
and signature.7
Parenthetically, it may be added that even the French Civil
Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por
Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such
will.8
Under the provisions of Art. 838 of the New Civil Code, we
are empowered to adopt this opinion as a Rule of Court
for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of
the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner
Fausto E. Gan.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills,
ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature of
the wills. In the first, the only guarantee of authenticity is
the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary,
now). The loss of the holographic will entails the loss of
the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince
three witnesses (four with the notary) deliberately to lie.
And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood
that they would be called by the testator, their intimacy
with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to end themselves
to any fraudulent scheme to distort his wishes. Last but
not least, they can not receive anything on account of the
will.
contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner,
we find ourselves sharing the trial judge's disbelief. In
addition to the dubious circumstances described in the
appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who
had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to
give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another
point: if she wanted so much to conceal the will from her
husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged
execution of the will.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure
up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
Wherefore, the rejection of the alleged will must be
sustained.
Judgment affirmed, with costs against petitioner.

Whereas in the case of holographic wills, if oral testimony

were admissible9 only one man could engineer the fraud
this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see
and read the forgery; and the latter, having no interest,
could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely
destroyed it in an "accident" the oppositors have no
way to expose the trick and the error, because the
document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and
only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones,
may go undetected.

If testimonial evidence of holographic wills be permitted,

one more objectionable feature feasibility of forgery
would be added to the several objections to this kind of
wills listed by Castan, Sanchez Roman and Valverde and
other well-known Spanish Commentators and teachers of
Civil Law.10

One more fundamental difference: in the case of a lost

will, the three subscribing witnesses would be testifying to
a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly
G.R. No. L-22734 September 15, 1967

COMMISSIONER OF INTERNAL REVENUE, petitioner,

vs.
MANUEL B. PINEDA, as one of the heirs of deceased
ATANASIO PINEDA, respondent.

BENGZON, J.P., J.:

On May 23, 1945 Atanasio Pineda died, survived by his

wife, Felicisima Bagtas, and 15 children, the eldest of
whom is Manuel B. Pineda, a lawyer. Estate proceedings
were had in the Court of First Instance of Manila (Case
No. 71129) wherein the surviving widow was appointed
administratrix. The estate was divided among and
awarded to the heirs and the proceedings terminated on
June 8, 1948. Manuel B. Pineda's share amounted to
about P2,500.00.

After the estate proceedings were closed, the Bureau of

Internal Revenue investigated the income tax liability of
the estate for the years 1945, 1946, 1947 and 1948 and it
found that the corresponding income tax returns were not
filed. Thereupon, the representative of the Collector of
Internal Revenue filed said returns for the estate on the
basis of information and data obtained from the aforesaid
estate proceedings and issued an assessment for the
following:

1. Deficiency income tax

1945 P135.83
1946 436.95
1947 1,206.91 P1,779.69
Add: 5% surcharge 88.98
1% monthly interest from
November 30, 1953 to
April 15, 1957 720.77
Compromise for late filing 80.00
Compromise for late
payment 40.00

Total amount due P2,707.44

===========
Additional residence tax for P14.50
2.
1945 ===========
3. Real Estate dealer's tax for the P207.50
fourth quarter of 1946 and the ===========
 whole year of 1947
Manuel B. Pineda, who received the assessment,
contested the same. Subsequently, he appealed to the
Court of Tax Appeals alleging that he was appealing "only
that proportionate part or portion pertaining to him as one
of the heirs."
After hearing the parties, the Court of Tax Appeals
rendered judgment reversing the decision of the
Commissioner on the ground that his right to assess and
collect the tax has prescribed. The Commissioner
appealed and this Court affirmed the findings of the Tax
Court in respect to the assessment for income tax for the
year 1947 but held that the right to assess and collect the
taxes for 1945 and 1946 has not prescribed. For 1945 and
1946 the returns were filed on August 24, 1953;
assessments for both taxable years were made within five
years therefrom or on October 19, 1953; and the action to
collect the tax was filed within five years from the latter
date, on August 7, 1957. For taxable year 1947, however,
the return was filed on March 1, 1948; the assessment
was made on October 19, 1953, more than five years from
the date the return was filed; hence, the right to assess
income tax for 1947 had prescribed. Accordingly, We
remanded the case to the Tax Court for further appropriate
proceedings.1
In the Tax Court, the parties submitted the case for
decision without additional evidence.
On November 29, 1963 the Court of Tax Appeals rendered
judgment holding Manuel B. Pineda liable for the payment
corresponding to his share of the following taxes:
Deficiency income tax
1945 P135.83
1946 436.95
Real estate dealer's
fixed tax 4th quarter of
1946 and whole year of
1947 P187.50
The Commissioner of Internal Revenue has appealed to
Us and has proposed to hold Manuel B. Pineda liable for
the payment of all the taxes found by the Tax Court to be
due from the estate in the total amount of P760.28 instead
of only for the amount of taxes corresponding to his share
in the estate.1awphl.nt
Manuel B. Pineda opposes the proposition on the ground
that as an heir he is liable for unpaid income tax due the
estate only up to the extent of and in proportion to any
share he received. He relies on Government of the
Philippine Islands v. Pamintuan2 where We held that "after
the partition of an estate, heirs and distributees are liable
individually for the payment of all lawful outstanding claims
against the estate in proportion to the amount or value of
the property they have respectively received from the
estate."
We hold that the Government can require Manuel B.
Pineda to pay the full amount of the taxes assessed.
Pineda is liable for the assessment as an heir and as a
holder-transferee of property belonging to the
estate/taxpayer. As an heir he is individually answerable
for the part of the tax proportionate to the share he
received from the inheritance.3 His liability, however,
cannot exceed the amount of his share.4
As a holder of property belonging to the estate, Pineda is
liable for he tax up to the amount of the property in his
possession. The reason is that the Government has a lien
on the P2,500.00 received by him from the estate as his
share in the inheritance, for unpaid income taxes 4a for
which said estate is liable, pursuant to the last paragraph
of Section 315 of the Tax Code, which we quote
hereunder:
If any person, corporation, partnership,
joint-account (cuenta en participacion),
association, or insurance company liable
to pay the income tax, neglects or refuses
to pay the same after demand, the
amount shall be a lien in favor of the
Government of the Philippines from the
time when the assessment was made by
the Commissioner of Internal Revenue
until paid with interest, penalties, and
costs that may accrue in addition thereto
upon all property and rights to property
belonging to the taxpayer: . . .
By virtue of such lien, the Government has the right to
subject the property in Pineda's possession, i.e., the
P2,500.00, to satisfy the income tax assessment in the
sum of P760.28. After such payment, Pineda will have a
right of contribution from his co-heirs, 5 to achieve an
adjustment of the proper share of each heir in the
distributable estate.
All told, the Government has two ways of collecting the tax
in question. One, by going after all the heirs and collecting
from each one of them the amount of the tax proportionate
to the inheritance received. This remedy was adopted in
Government of the Philippine Islands v. Pamintuan, supra.
In said case, the Government filed an action against all
the heirs for the collection of the tax. This action rests on
the concept that hereditary property consists only of that
part which remains after the settlement of all lawful claims
against the estate, for the settlement of which the entire
estate is first liable.6 The reason why in case suit is filed
against all the heirs the tax due from the estate is levied
proportionately against them is to achieve thereby two
results: first, payment of the tax; and second, adjustment
of the shares of each heir in the distributed estate as
lessened by the tax.
Another remedy, pursuant to the lien created by Section
315 of the Tax Code upon all property and rights to
property belonging to the taxpayer for unpaid income tax,
is by subjecting said property of the estate which is in the
hands of an heir or transferee to the payment of the tax
due, the estate. This second remedy is the very avenue
the Government took in this case to collect the tax. The
Bureau of Internal Revenue should be given, in instances
like the case at bar, the necessary discretion to avail itself
of the most expeditious way to collect the tax as may be
envisioned in the particular provision of the Tax Code
above quoted, because taxes are the lifeblood of
government and their prompt and certain availability is an
imperious need.7 And as afore-stated in this case the suit
seeks to achieve only one objective: payment of the tax.
The adjustment of the respective shares due to the heirs
from the inheritance, as lessened by the tax, is left to G.R. No. 164108 May 8, 2009
await the suit for contribution by the heir from whom the
Government recovered said tax. ALFREDO HILADO, LOPEZ SUGAR CORPORATION,
FIRST FARMERS HOLDING CORPORATION,
WHEREFORE, the decision appealed from is modified. Petitioners,
Manuel B. Pineda is hereby ordered to pay to the vs.
Commissioner of Internal Revenue the sum of P760.28 as
THE HONORABLE COURT OF APPEALS, THE
deficiency income tax for 1945 and 1946, and real estate
dealer's fixed tax for the fourth quarter of 1946 and for the HONORABLE AMOR A. REYES, Presiding Judge,
whole year 1947, without prejudice to his right of Regional Trial Court of Manila, Branch 21 and
contribution for his co-heirs. No costs. So ordered. ADMINISTRATRIX JULITA CAMPOS BENEDICTO,
Respondents.

DECISION

TINGA, J.:

The well-known sugar magnate Roberto S. Benedicto died

intestate on 15 May 2000. He was survived by his wife,
private respondent Julita Campos Benedicto
(administratrix Benedicto), and his only daughter,
Francisca Benedicto-Paulino.1 At the time of his death,
there were two pending civil cases against Benedicto
involving the petitioners. The first, Civil Case No. 95-9137,
was then pending with the Regional Trial Court (RTC) of
Bacolod City, Branch 44, with petitioner Alfredo Hilado as
one of the plaintiffs therein. The second, Civil Case No.
11178, was then pending with the RTC of Bacolod City,
Branch 44, with petitioners Lopez Sugar Corporation and
First Farmers Holding Corporation as one of the plaintiffs
therein.2

On 25 May 2000, private respondent Julita Campos

Benedicto filed with the RTC of Manila a petition for the
issuance of letters of administration in her favor, pursuant
to Section 6, Rule 78 of the Revised Rules of Court. The
petition was raffled to Branch 21, presided by respondent
Judge Amor A. Reyes. Said petition acknowledged the
value of the assets of the decedent to be P5 Million, "net
of liabilities."3 On 2 August 2000, the Manila RTC issued
an order appointing private respondent as administrator of
the estate of her deceased husband, and issuing letters of
administration in her favor.4 In January 2001, private
respondent submitted an Inventory of the Estate, Lists of
Personal and Real Properties, and Liabilities of the Estate
of her deceased husband.5 In the List of Liabilities
attached to the inventory, private respondent included as
among the liabilities, the above-mentioned two pending
claims then being litigated before the Bacolod City courts. 6
Private respondent stated that the amounts of liability
corresponding to the two cases as P136,045,772.50 for
Civil Case No. 95-9137 and P35,198,697.40 for Civil Case
No. 11178.7 Thereafter, the Manila RTC required private
respondent to submit a complete and updated inventory
and appraisal report pertaining to the estate.8
On 24 September 2001, petitioners filed with the Manila
RTC a Manifestation/Motion Ex Abundanti Cautela, 9
praying that they be furnished with copies of all processes
and orders pertaining to the intestate proceedings. Private
respondent opposed the manifestation/motion, disputing
the personality of petitioners to intervene in the intestate
proceedings of her husband. Even before the Manila RTC
acted on the manifestation/motion, petitioners filed an
omnibus motion praying that the Manila RTC set a
deadline for the submission by private respondent of the
required inventory of the decedents estate. 10 Petitioners
also filed other pleadings or motions with the Manila RTC,
alleging lapses on the part of private respondent in her
administration of the estate, and assailing the inventory
that had been submitted thus far as unverified, incomplete
and inaccurate.
On 2 January 2002, the Manila RTC issued an order
denying the manifestation/motion, on the ground that
petitioners are not interested parties within the
contemplation of the Rules of Court to intervene in the
intestate proceedings.11 After the Manila RTC had denied
petitioners motion for reconsideration, a petition for
certiorari was filed with the Court of Appeals. The petition
argued in general that petitioners had the right to
intervene in the intestate proceedings of Roberto
Benedicto, the latter being the defendant in the civil cases
they lodged with the Bacolod RTC.
On 27 February 2004, the Court of Appeals promulgated a
decision12 dismissing the petition and declaring that the
Manila RTC did not abuse its discretion in refusing to
allow petitioners to intervene in the intestate proceedings.
The allowance or disallowance of a motion to intervene,
according to the appellate court, is addressed to the
sound discretion of the court. The Court of Appeals cited
the fact that the claims of petitioners against the decedent
were in fact contingent or expectant, as these were still
pending litigation in separate proceedings before other
courts.
Hence, the present petition. In essence, petitioners argue
that the lower courts erred in denying them the right to
intervene in the intestate proceedings of the estate of
Roberto Benedicto. Interestingly, the rules of procedure
they cite in support of their argument is not the rule on
intervention, but rather various other provisions of the
Rules on Special Proceedings.13
To recall, petitioners had sought three specific reliefs that
were denied by the courts a quo. First, they prayed that
they be henceforth furnished "copies of all processes and
orders issued" by the intestate court as well as the
pleadings filed by administratrix Benedicto with the said
court.14 Second, they prayed that the intestate court set a
deadline for the submission by administratrix Benedicto to
submit a verified and complete inventory of the estate, and
upon submission thereof, order the inheritance tax
appraisers of the Bureau of Internal Revenue to assist in
the appraisal of the fair market value of the same. 15 Third,
petitioners moved that the intestate court set a deadline
for the submission by the administrator of her verified
annual account, and, upon submission thereof, set the
date for her examination under oath with respect thereto,
with due notice to them and other parties interested in the
collation, preservation and disposition of the estate. 16
The Court of Appeals chose to view the matter from a
perspective solely informed by the rule on intervention.
We can readily agree with the Court of Appeals on that
point. Section 1 of Rule 19 of the 1997 Rules of Civil
Procedure requires that an intervenor "has a legal interest
in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to
be adversely affected by a distribution or other disposition
of property in the custody of the court x x x" While the
language of Section 1, Rule 19 does not literally preclude
petitioners from intervening in the intestate proceedings,
case law has consistently held that the legal interest
required of an intervenor "must be actual and material,
direct and immediate, and not simply contingent and
expectant."17
Nonetheless, it is not immediately evident that intervention
under the Rules of Civil Procedure necessarily comes into
operation in special proceedings. The settlement of
estates of deceased persons fall within the rules of special
proceedings under the Rules of Court, 18 not the Rules on
Civil Procedure. Section 2, Rule 72 further provides that
"[i]n the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable,
applicable to special proceedings."
We can readily conclude that notwithstanding Section 2 of
Rule 72, intervention as set forth under Rule 19 does not
extend to creditors of a decedent whose credit is based on
a contingent claim. The definition of "intervention" under
Rule 19 simply does not accommodate contingent claims.
Yet, even as petitioners now contend before us that they
have the right to intervene in the intestate proceedings of
Roberto Benedicto, the reliefs they had sought then before
the RTC, and also now before us, do not square with their
recognition as intervenors. In short, even if it were
declared that petitioners have no right to intervene in
accordance with Rule 19, it would not necessarily mean
the disallowance of the reliefs they had sought before the
RTC since the right to intervene is not one of those reliefs.
To better put across what the ultimate disposition of this
petition should be, let us now turn our focus to the Rules
on Special Proceedings.
In several instances, the Rules on Special Proceedings
entitle "any interested persons" or "any persons interested
in the estate" to participate in varying capacities in the
testate or intestate proceedings. Petitioners cite these
provisions before us, namely: (1) Section 1, Rule 79,
which recognizes the right of "any person interested" to
oppose the issuance of letters testamentary and to file a
petition for administration;" (2) Section 3, Rule 79, which
mandates the giving of notice of hearing on the petition for
letters of administration to the known heirs, creditors, and
"to any other persons believed to have interest in the
estate;" (3) Section 1, Rule 76, which allows a "person
interested in the estate" to petition for the allowance of a
will; (4) Section 6 of Rule 87, which allows an individual
interested in the estate of the deceased "to complain to
the court of the concealment, embezzlement, or
conveyance of any asset of the decedent, or of evidence
of the decedents title or interest therein;" (5) Section 10 of
Rule 85, which requires notice of the time and place of the
examination and allowance of the Administrators account
"to persons interested;" (6) Section 7(b) of Rule 89, which
requires the court to give notice "to the persons
interested" before it may hear and grant a petition seeking
the disposition or encumbrance of the properties of the
estate; and (7) Section 1, Rule 90, which allows "any
person interested in the estate" to petition for an order for
the distribution of the residue of the estate of the
decedent, after all obligations are either satisfied or
provided for.
Had the claims of petitioners against Benedicto been
based on contract, whether express or implied, then they
should have filed their claim, even if contingent, under the
aegis of the notice to creditors to be issued by the court
immediately after granting letters of administration and
published by the administrator immediately after the
issuance of such notice.19 However, it appears that the
claims against Benedicto were based on tort, as they
arose from his actions in connection with Philsucom,
Nasutra and Traders Royal Bank. Civil actions for tort or
quasi-delict do not fall within the class of claims to be filed
under the notice to creditors required under Rule 86. 20
These actions, being as they are civil, survive the death of
the decedent and may be commenced against the
administrator pursuant to Section 1, Rule 87. Indeed, the
records indicate that the intestate estate of Benedicto, as
represented by its administrator, was successfully
impleaded in Civil Case No. 11178, whereas the other civil
case21 was already pending review before this Court at the
time of Benedictos death.
Evidently, the merits of petitioners claims against
Benedicto are to be settled in the civil cases where they
were raised, and not in the intestate proceedings. In the
event the claims for damages of petitioners are granted,
they would have the right to enforce the judgment against
the estate. Yet until such time, to what extent may they be
allowed to participate in the intestate proceedings?
Petitioners place heavy reliance on our ruling in Dinglasan
v. Ang Chia,22 and it does provide us with guidance on how
to proceed. A brief narration of the facts therein is in order.
Dinglasan had filed an action for reconveyance and
damages against respondents, and during a hearing of the
case, learned that the same trial court was hearing the
intestate proceedings of Lee Liong to whom Dinglasan
had sold the property years earlier. Dinglasan thus
amended his complaint to implead Ang Chia, administrator
of the estate of her late husband. He likewise filed a
verified claim-in-intervention, manifesting the pendency of
the civil case, praying that a co-administrator be
appointed, the bond of the administrator be increased, and
that the intestate proceedings not be closed until the civil
case had been terminated. When the trial court ordered
the increase of the bond and took cognizance of the
pending civil case, the administrator moved to close the
intestate proceedings, on the ground that the heirs had
already entered into an extrajudicial partition of the estate.
The trial court refused to close the intestate proceedings
pending the termination of the civil case, and the Court
affirmed such action.
If the appellants filed a claim in intervention in the intestate
proceedings it was only pursuant to their desire to protect
their interests it appearing that the property in litigation is
involved in said proceedings and in fact is the only
property of the estate left subject of administration and
distribution; and the court is justified in taking cognizance
of said civil case because of the unavoidable fact that
whatever is determined in said civil case will necessarily
reflect and have a far reaching consequence in the
determination and distribution of the estate. In so taking
cognizance of civil case No. V-331 the court does not
assume general jurisdiction over the case but merely
makes of record its existence because of the close
interrelation of the two cases and cannot therefore be
branded as having acted in excess of its jurisdiction.
Appellants' claim that the lower court erred in holding in
abeyance the closing of the intestate proceedings pending
determination of the separate civil action for the reason
that there is no rule or authority justifying the extension of
administration proceedings until after the separate action
pertaining to its general jurisdiction has been terminated,
cannot be entertained. Section 1, Rule 88, of the Rules of
Court, expressly provides that "action to recover real or
personal property from the estate or to enforce a lien
thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced
against the executor or administrator." What practical
value would this provision have if the action against the
administrator cannot be prosecuted to its termination
simply because the heirs desire to close the intestate
proceedings without first taking any step to settle the
ordinary civil case? This rule is but a corollary to the ruling
which declares that questions concerning ownership of
property alleged to be part of the estate but claimed by
another person should be determined in a separate action
and should be submitted to the court in the exercise of its
general jurisdiction. These rules would be rendered
nugatory if we are to hold that an intestate proceedings
can be closed by any time at the whim and caprice of the
heirs x x x23 (Emphasis supplied) [Citations omitted]
It is not clear whether the claim-in-intervention filed by
Dinglasan conformed to an action-in-intervention under
the Rules of Civil Procedure, but we can partake of the
spirit behind such pronouncement. Indeed, a few years
later, the Court, citing Dinglasan, stated: "[t]he rulings of
this court have always been to the effect that in the special
proceeding for the settlement of the estate of a deceased
person, persons not heirs, intervening therein to protect
their interests are allowed to do so to protect the same,
but not for a decision on their action."24
Petitioners interests in the estate of Benedicto may be
inchoate interests, but they are viable interests
nonetheless. We are mindful that the Rules of Special
Proceedings allows not just creditors, but also "any person
interested" or "persons interested in the estate" various
specified capacities to protect their respective interests in
the estate. Anybody with a contingent claim based on a
pending action for quasi-delict against a decedent may be
reasonably concerned that by the time judgment is
rendered in their favor, the estate of the decedent would
have already been distributed, or diminished to the extent
that the judgment could no longer be enforced against it.
In the same manner that the Rules on Special
Proceedings do not provide a creditor or any person
interested in the estate, the right to participate in every
aspect of the testate or intestate proceedings, but instead
provides for specific instances when such persons may
accordingly act in those proceedings, we deem that while
there is no general right to intervene on the part of the
petitioners, they may be allowed to seek certain prayers or
reliefs from the intestate court not explicitly provided for
under the Rules, if the prayer or relief sought is necessary
to protect their interest in the estate, and there is no other
modality under the Rules by which such interests can be
protected. It is under this standard that we assess the
three prayers sought by petitioners.
The first is that petitioners be furnished with copies of all
processes and orders issued in connection with the
intestate proceedings, as well as the pleadings filed by the
administrator of the estate. There is no questioning as to
the utility of such relief for the petitioners. They would be
duly alerted of the developments in the intestate
proceedings, including the status of the assets of the
estate. Such a running account would allow them to
pursue the appropriate remedies should their interests be
compromised, such as the right, under Section 6, Rule 87,
to complain to the intestate court if property of the estate
concealed, embezzled, or fraudulently conveyed.
At the same time, the fact that petitioners interests remain
inchoate and contingent counterbalances their ability to
participate in the intestate proceedings. We are mindful of
respondents submission that if the Court were to entitle
petitioners with service of all processes and pleadings of
the intestate court, then anybody claiming to be a creditor,
whether contingent or otherwise, would have the right to
be furnished such pleadings, no matter how wanting of
merit the claim may be. Indeed, to impose a precedent
that would mandate the service of all court processes and
pleadings to anybody posing a claim to the estate, much
less contingent claims, would unduly complicate and
burden the intestate proceedings, and would ultimately
offend the guiding principle of speedy and orderly
disposition of cases.
Fortunately, there is a median that not only exists, but also
has been recognized by this Court, with respect to the
petitioners herein, that addresses the core concern of
petitioners to be apprised of developments in the intestate
proceedings. In Hilado v. Judge Reyes,25 the Court heard
a petition for mandamus filed by the same petitioners
herein against the RTC judge, praying that they be
allowed access to the records of the intestate
proceedings, which the respondent judge had denied from
them. Section 2 of Rule 135 came to fore, the provision
stating that "the records of every court of justice shall be
public records and shall be available for the inspection of
any interested person x x x." The Court ruled that
petitioners were "interested persons" entitled to access
the court records in the intestate proceedings. We said:
Petitioners' stated main purpose for accessing the records
tomonitor prompt compliance with the Rules governing
the preservation and proper disposition of the assets of
the estate, e.g., the completion and appraisal of the
Inventory and the submission by the Administratrix of an
annual accountingappears legitimate, for, as the plaintiffs
in the complaints for sum of money against Roberto
Benedicto, et al., they have an interest over the outcome
of the settlement of his estate. They are in fact "interested
persons" under Rule 135, Sec. 2 of the Rules of Court x x
x26
Allowing creditors, contingent or otherwise, access to the
records of the intestate proceedings is an eminently
preferable precedent than mandating the service of court
processes and pleadings upon them. In either case, the
interest of the creditor in seeing to it that the assets are
being preserved and disposed of in accordance with the
rules will be duly satisfied. Acknowledging their right to
access the records, rather than entitling them to the
service of every court order or pleading no matter how
relevant to their individual claim, will be less cumbersome
on the intestate court, the administrator and the heirs of
the decedent, while providing a viable means by which the
interests of the creditors in the estate are
preserved.1awphi1
Nonetheless, in the instances that the Rules on Special
Proceedings do require notice to any or all "interested
parties" the petitioners as "interested parties" will be
entitled to such notice. The instances when notice has to
be given to interested parties are provided in: (1) Sec. 10,
Rule 85 in reference to the time and place of examining
and allowing the account of the executor or administrator;
(2) Sec. 7(b) of Rule 89 concerning the petition to
authorize the executor or administrator to sell personal
estate, or to sell, mortgage or otherwise encumber real
estates; and; (3) Sec. 1, Rule 90 regarding the hearing for
the application for an order for distribution of the estate
residue. After all, even the administratrix has
acknowledged in her submitted inventory, the existence of
the pending cases filed by the petitioners.
We now turn to the remaining reliefs sought by petitioners;
that a deadline be set for the submission by administratrix
Benedicto to submit a verified and complete inventory of
the estate, and upon submission thereof: the inheritance
tax appraisers of the Bureau of Internal Revenue be
required to assist in the appraisal of the fair market value
of the same; and that the intestate court set a deadline for
the submission by the administratrix of her verified annual
account, and, upon submission thereof, set the date for
her examination under oath with respect thereto, with due
notice to them and other parties interested in the collation,
preservation and disposition of the estate. We cannot
grant said reliefs.
Section 1 of Rule 83 requires the administrator to return to
the court a true inventory and appraisal of all the real and
personal estate of the deceased within three (3) months
from appointment, while Section 8 of Rule 85 requires the
administrator to render an account of his administration
within one (1) year from receipt of the letters testamentary
or of administration. We do not doubt that there are reliefs
available to compel an administrator to perform either
duty, but a person whose claim against the estate is still
contingent is not the party entitled to do so. Still, even if
the administrator did delay in the performance of these
duties in the context of dissipating the assets of the estate,
there are protections enforced and available under Rule
88 to protect the interests of those with contingent claims
against the estate.
Concerning complaints against the general competence of
the administrator, the proper remedy is to seek the
removal of the administrator in accordance with Section 2,
Rule 82. While the provision is silent as to who may seek
with the court the removal of the administrator, we do not
doubt that a creditor, even a contingent one, would have
the personality to seek such relief. After all, the interest of
the creditor in the estate relates to the preservation of
sufficient assets to answer for the debt, and the general
competence or good faith of the administrator is
necessary to fulfill such purpose.
All told, the ultimate disposition of the RTC and the Court
of Appeals is correct. Nonetheless, as we have explained,
petitioners should not be deprived of their prerogatives
under the Rules on Special Proceedings as enunciated in
this decision.
WHEREFORE, the petition is DENIED, subject to the
qualification that petitioners, as persons interested in the
intestate estate of Roberto Benedicto, are entitled to such
notices and rights as provided for such interested persons
in the Rules on Settlement of Estates of Deceased
Persons under the Rules on Special Proceedings. No
pronouncements as to costs.
SO ORDERED.

G.R. No. 169482 January 29, 2008
IN THE MATTER OF THE PETITION OF HABEAS
CORPUS OF EUFEMIA E. RODRIGUEZ, filed by
EDGARDO E. VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R. PABELLO,
respondents.
DECISION
CORONA, J.:
This is a petition for review1 of the resolutions2 dated
February 2, 2005 and September 2, 2005 of the Court of
Appeals3 in CA-G.R. SP No. 88180 denying the petition
for habeas corpus of Eufemia E. Rodriguez, filed by
petitioner Edgardo Veluz, as well as his motion for
reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly
suffering from a poor state of mental health and
deteriorating cognitive abilities.4 She was living with
petitioner, her nephew, since 2000. He acted as her
guardian.
In the morning of January 11, 2005, respondents Luisa R.
Villanueva and Teresita R. Pabello took Eufemia from
petitioner Veluz house. He made repeated demands for
the return of Eufemia but these proved futile. Claiming that
respondents were restraining Eufemia of her liberty, he
filed a petition for habeas corpus5 in the Court of Appeals
on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present
any convincing proof that respondents (the legally adopted
children of Eufemia) were unlawfully restraining their
mother of her liberty. He also failed to establish his legal
right to the custody of Eufemia as he was not her legal
guardian. Thus, in a resolution dated February 2, 2005, 6
the Court of Appeals denied his petition.
Petitioner moved for reconsideration but it was also
denied.7 Hence, this petition.
Petitioner claims that, in determining whether or not a writ
of habeas corpus should issue, a court should limit itself to
determining whether or not a person is unlawfully being
deprived of liberty. There is no need to consider legal
custody or custodial rights. The writ of habeas corpus is
available not only if the rightful custody of a person is
being withheld from the person entitled thereto but also if
the person who disappears or is illegally being detained is
of legal age and is not under guardianship. Thus, a writ of
habeas corpus can cover persons who are not under the
legal custody of another. According to petitioner, as long
as it is alleged that a person is being illegally deprived of
liberty, the writ of habeas corpus may issue so that his
physical body may be brought before the court that will
determine whether or not there is in fact an unlawful
deprivation of liberty.
In their comment, respondents state that they are the
legally adopted daughters of Eufemia and her deceased
spouse, Maximo Rodriguez. Prior to their adoption,
respondent Luisa was Eufemias half-sister 8 while
respondent Teresita was Eufemias niece and petitioners
sister.9
Respondents point out that it was petitioner and his family
who were staying with Eufemia, not the other way around
as petitioner claimed. Eufemia paid for the rent of the
house, the utilities and other household needs.
Sometime in the 1980s, petitioner was appointed as the
"encargado" or administrator of the properties of Eufemia
as well as those left by the deceased Maximo. As such, he
took charge of collecting payments from tenants and
transacted business with third persons for and in behalf of
Eufemia and the respondents who were the only
compulsory heirs of the late Maximo.
In the latter part of 2002, Eufemia and the respondents
demanded an inventory and return of the properties
entrusted to petitioner. These demands were unheeded.
Hence, Eufemia and the respondents were compelled to
file a complaint for estafa against petitioner in the
Regional Trial Court of Quezon City. Consequently, and by
reason of their mothers deteriorating health, respondents
decided to take custody of Eufemia on January 11, 2005.
The latter willingly went with them. In view of all this,
petitioner failed to prove either his right to the custody of
Eufemia or the illegality of respondents action.
We rule for the respondents. While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation on the
The writ of habeas corpus extends to all cases of illegal filing of the petition.17 Judicial discretion is called for in its
confinement or detention by which any person is deprived issuance and it must be clear to the judge to whom the
of his liberty or by which the rightful custody of a person is petition is presented that, prima facie, the petitioner is
being withheld from the one entitled thereto. 10 It is issued entitled to the writ.18 It is only if the court is satisfied that a
when one is either deprived of liberty or is wrongfully person is being unlawfully restrained of his liberty will the
being prevented from exercising legal custody over petition for habeas corpus be granted.19 If the respondents
another person.11 Thus, it contemplates two instances: (1) are not detaining or restraining the applicant or the person
deprivation of a persons liberty either through illegal in whose behalf the petition is filed, the petition should be
confinement or through detention and (2) withholding of dismissed.20
the custody of any person from someone entitled to such
custody. In this case, the Court of Appeals made an inquiry into
whether Eufemia was being restrained of her liberty. It
In this case, the issue is not whether the custody of found that she was not:
Eufemia is being rightfully withheld from petitioner but
whether Eufemia is being restrained of her liberty. There is no proof that Eufemia is being
Significantly, although petitioner admits that he did not detained and restrained of her liberty by
have legal custody of Eufemia, he nonetheless insists that respondents. Nothing on record reveals that
respondents themselves have no right to her custody. she was forcibly taken by respondents. On the
Thus, for him, the issue of legal custody is irrelevant. What contrary, respondents, being Eufemias adopted
is important is Eufemias personal freedom. children, are taking care of her.21 (emphasis
supplied)
Fundamentally, in order to justify the grant of the writ of
habeas corpus, the restraint of liberty must be in the The Court finds no cogent or compelling reason to disturb
nature of an illegal and involuntary deprivation of freedom this finding.22
of action.12
WHEREFORE, the petition is hereby DENIED.
In general, the purpose of the writ of habeas
corpus is to determine whether or not a Costs against petitioner.
particular person is legally held. A prime
specification of an application for a writ of habeas SO ORDERED.
corpus, in fact, is an actual and effective, and not
merely nominal or moral, illegal restraint of liberty.
"The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom. A
prime specification of an application for a writ of
habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is
to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is
sufficient."13 (emphasis supplied)

In passing upon a petition for habeas corpus, a court or

judge must first inquire into whether the petitioner is being
restrained of his liberty.14 If he is not, the writ will be
refused. Inquiry into the cause of detention will proceed
only where such restraint exists. 15 If the alleged cause is
thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged. 16 Needless to state,
if otherwise, again the writ will be refused.

G.R. No. 182165 November 25, 2009
P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS
ROMEO BAGTAS, RUPERTO BORLONGAN,
EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD
TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P.
MILLAN, ENGR. REDENTOR S. DELA CRUZ, MR.
ANASTACIO L. BORLONGAN, MR. ARTEMIO
ESGUERRA, "TISOY," and JOHN DOES, Petitioners,
vs.
DR. AMANDA T. CRUZ, NIXON T. CRUZ, and
FERDINAND T. CRUZ, Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners1 , employees and members of the local police
force of the City Government of Malolos, challenge the
March 28, 2008 Decision of the Regional Trial Court
(RTC) of Malolos, Branch 10 in a petition for issuance of
writs of amparo and habeas data instituted by
respondents.
The factual antecedents.
Respondent Amanda Cruz (Amanda) who, along with her
husband Francisco G. Cruz (Spouses Cruz), leased a
parcel of land situated at Barrio Guinhawa, Malolos (the
property), refused to vacate the property, despite
demands by the lessor Provincial Government of Bulacan
(the Province) which intended to utilize it for local projects.
The Province thus filed a complaint for unlawful detainer
against the Spouses Cruz before the then Municipal Trial
Court (MTC) of Bulacan, Bulacan.
By Decision of September 5, 1997, the MTC rendered
judgment against the Spouses Cruz, which judgment,
following its affirmance by the RTC, became final and
executory.
The finality of the decision in the ejectment case
notwithstanding, the spouses Cruz refused to vacate the
property. They thereupon filed cases against the Province 2
and the judges who presided over the case. 3 Those cases
were dismissed except their petition for annulment of
judgment lodged before Branch 18 of the RTC of Malolos,
and a civil case for injunction 833-M-2004 lodged before
Branch 10 of the same RTC Malolos.
The Spouses Cruz sought in the case for injunction the
issuance of a permanent writ of injunction to prevent the
execution of the final and executory judgment against
them.
By Order of July 19, 2005, the RTC, finding merit in the
Spouses Cruzes allegation that subsequent events
changed the situation of the parties to justify a suspension
of the execution of the final and executory judgment,
issued a permanent writ of injunction, the dispositive
portion of which reads:
WHEREFORE, the foregoing petitioners Motion for
Reconsideration of the Order dated August 10, 2004 is
hereby GRANTED. Order dated August 10, 2004 is
hereby RECONSIDERED and SET ASIDE. Further, the
verified petition dated November 05, 2002 are hereby
REINSTATED and MADE PERMANENT until the MTC-
Bulacan, Bulacan finally resolves the pending motions of
petitioners with the same determines the metes and
bounds of 400 sq. meters leased premises subject matter
of this case with immediate dispatch. Accordingly,
REMAND the determination of the issues raised by the
petitioners on the issued writ of demolition to the MTC of
Bulacan, Bulacan.
SO ORDERED.4 (Emphasis in the original; underscoring
supplied)
Finding that the fallo of the RTC July 19, 2005 Order
treats, as a suspensive condition for the lifting of the
permanent injunction, the determination of the boundaries
of the property, the Province returned the issue for the
consideration of the MTC. In a Geodetic Engineers
Report submitted to the MTC on August 31, 2007, the
metes and bounds of the property were indicated.
The MTC, by Order of January 2, 2008, approved the
Report and ruled that the permanent injunction which the
RTC issued is ineffective. On motion of the Province, the
MTC, by Order of January 21, 2008, thus issued a Second
Alias Writ of Demolition.
On receiving notice of the January 2, 2008 MTC Order,
the Spouses Cruz filed a motion before Branch 10 of the
RTC for the issuance of a temporary restraining order
(TRO) which it set for hearing on January 25, 2008 on
which date, however, the demolition had, earlier in the
day, been implemented. Such notwithstanding, the RTC
issued a TRO.5 The Spouses Cruz, along with their sons-
respondents Nixon and Ferdinand, thereupon entered the
property, placed several container vans and purportedly
represented themselves as owners of the property which
was for lease.
On February 21, 2008, petitioners Police Superintendent
Felixberto Castillo et al., who were deployed by the City
Mayor in compliance with a memorandum issued by
Governor Joselito R. Mendoza instructing him to "protect,
secure and maintain the possession of the property,"
entered the property.
Amanda and her co-respondents refused to turn over the
property, however. Insisting that the RTC July 19, 2005
Order of Permanent Injunction enjoined the Province from
repossessing it, they shoved petitioners, forcing the latter
to arrest them and cause their indictment for direct
assault, trespassing and other forms of light threats.
Respondents later filed on March 3, 2008 a "Respectful
Motion-Petition for Writ of Amparo and Habeas Data,"
docketed as Special Civil Action No. 53-M-2008, which
was coincidentally raffled to Branch 10 of the RTC
Malolos.
Respondents averred that despite the Permanent
Injunction, petitioners unlawfully entered the property with
the use of heavy equipment, tore down the barbed wire
fences and tents,6 and arrested them when they resisted
petitioners entry; and that as early as in the evening of
February 20, 2008, members of the Philippine National
Police had already camped in front of the property.
On the basis of respondents allegations in their petition
and the supporting affidavits, the RTC, by Order of March
4, 2008, issued writs of amparo and habeas data.7
The RTC, crediting respondents version in this wise:
Petitioners have shown by preponderant evidence that the
facts and circumstances of the alleged offenses examined
into on Writs of Amparo and Habeas Data that there have
been an on-going hearings on the verified Petition for
Contempt, docketed as Special Proceedings No. 306-M-
2006, before this Court for alleged violation by the
respondents of the Preliminary Injunction Order dated July
16, 2005 [sic] in Sp. Civil Action No. 833-M-2002, hearings
were held on January 25, 2008, February 12 and 19,
2008, where the respondents prayed for an April 22, 2008
continuance, however, in the pitch darkness of February
20, 2008, police officers, some personnel from the
Engineering department, and some civilians proceeded
purposely to the Pinoy Compound, converged therein and
with continuing threats of bodily harm and danger and
stone-throwing of the roofs of the homes thereat from
voices around its premises, on a pretext of an ordinary
police operation when enterviewed [sic] by the media then
present, but at 8:00 a.m. to late in the afternoon of
February 21, 2008, zoomed in on the petitioners,
subjecting them to bodily harm, mental torture,
degradation, and the debasement of a human being,
reminiscent of the martial law police brutality, sending chill
in any ordinary citizen,8
rendered judgment, by Decision of March 28, 2008, in
favor of respondents, disposing as follows:
"WHEREFORE, premises considered, the Commitment
Orders and waivers in Crim. Cases Nos. 08-77 for Direct
assault; Crim. Case No. 08-77 for Other Forms of
Trespass; and Crim. Case No. 08-78 for Light Threats are
hereby DECLARED illegal, null and void, as petitioners
were deprived of their substantial rights, induced by
duress or a well-founded fear of personal violence.
Accordingly, the commitment orders and waivers are
hereby SET ASIDE. The temporary release of the
petitioners is declared ABSOLUTE.
Without any pronouncement as to costs.
SO ORDERED."9 (Emphasis in the original; underscoring
supplied)
Hence, the present petition for review on certiorari,
pursuant to Section 1910 of The Rule on the Writ of
Amparo (A.M. No. 07-9-12-SC),11 which is essentially
reproduced in the Rule on the Writ of Habeas Data (A.M.
No. 08-1-16-SC).12
In the main, petitioners fault the RTC for
giving due course and issuing writs of amparo and
habeas data when from the allegations of the petition, the
same ought not to have been issued as (1) the petition in
[sic] insufficient in substance as the same involves
property rights; and (2) criminal cases had already been
filed and pending with the Municipal Trial Court in Cities,
Branch 1, City of Malolos. (Underscoring supplied)
The petition is impressed with merit.
The Court is, under the Constitution, empowered to
promulgate rules for the protection and enforcement of
constitutional rights.13 In view of the heightening
prevalence of extrajudicial killings and enforced
disappearances, the Rule on the Writ of Amparo was
issued and took effect on October 24, 2007 which
coincided with the celebration of United Nations Day and
affirmed the Courts commitment towards
internationalization of human rights. More than three
months later or on February 2, 2008, the Rule on the Writ
of Habeas Data was promulgated.
Section 1 of the Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Emphasis and
underscoring supplied)
Section 1 of the Rule on the Writ of Habeas Data
provides:
Section 1. Habeas Data. The writ of habeas data is a
remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee or
of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the
person, family, home and correspondence of the
aggrieved party. (Emphasis and underscoring supplied)
From the above-quoted provisions, the coverage of the
writs is limited to the protection of rights to life, liberty and
security. And the writs cover not only actual but also
threats of unlawful acts or omissions.
Secretary of National Defense v. Manalo14 teaches:
As the Amparo Rule was intended to address the
intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced
disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or
private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of
law.15 (Underscoring supplied, citations omitted)
To thus be covered by the privilege of the writs,
respondents must meet the threshold requirement that
their right to life, liberty and security is violated or
threatened with an unlawful act or omission. Evidently, the
present controversy arose out of a property dispute
between the Provincial Government and respondents.
Absent any considerable nexus between the acts
complained of and its effect on respondents right to life,
liberty and security, the Court will not delve on the
propriety of petitioners entry into the property.
Apropos is the Courts ruling in Tapuz v. Del Rosario:16
To start off with the basics, the writ of amparo was
originally conceived as a response to the extraordinary
rise in the number of killings and enforced
disappearances, and to the perceived lack of available
and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats
to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under
the prevailing Rules, or as a remedy supplemental to
these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous
and uncertain grounds. Consequently, the Rule on the
Writ of Amparo in line with the extraordinary character of
the writ and the reasonable certainty that its issuance
demands requires that every petition for the issuance of
the writ must be supported by justifying allegations of fact,
to wit:
xxxx
The writ shall issue if the Court is preliminarily satisfied
with the prima facie existence of the ultimate facts
determinable from the supporting affidavits that detail the
circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the
aggrieved party was or is being committed. 17 (Emphasis
and italics in the original, citation omitted)
Tapuz also arose out of a property dispute, albeit between
private individuals, with the petitioners therein branding as
"acts of terrorism" the therein respondents alleged entry
into the disputed land with armed men in tow. The Court
therein held:
On the whole, what is clear from these statements both
sworn and unsworn is the overriding involvement of
property issues as the petition traces its roots to questions
of physical possession of the property disputed by the
private parties. If at all, issues relating to the right to life or
to liberty can hardly be discerned except to the extent that
the occurrence of past violence has been alleged. The
right to security, on the other hand, is alleged only to the
extent of the treats and harassments implied from the
presence of "armed men bare to the waist" and the
alleged pointing and firing of weapons. Notably, none of
the supporting affidavits compellingly show that the
threat to the rights to life, liberty and security of the
petitioners is imminent or continuing. 18 (Emphasis in
the original; underscoring supplied)
It bears emphasis that respondents petition did not show
any actual violation, imminent or continuing threat to their
life, liberty and security. Bare allegations that petitioners
"in unison, conspiracy and in contempt of court, there and
then willfully, forcibly and feloniously with the use of force
and intimidation entered and forcibly, physically
manhandled the petitioners (respondents) and arrested
the herein petitioners (respondents)"19 will not suffice to
prove entitlement to the remedy of the writ of amparo. No
undue confinement or detention was present. In fact,
respondents were even able to post bail for the offenses a
day after their arrest.20
Although respondents release from confinement does not
necessarily hinder supplication for the writ of amparo,
absent any evidence or even an allegation in the petition
that there is undue and continuing restraint on their liberty,
and/or that there exists threat or intimidation that destroys
the efficacy of their right to be secure in their persons, the
issuance of the writ cannot be justified.
That respondents are merely seeking the protection of
their property rights is gathered from their Joint Affidavit,
viz:
xxxx
11. Kami ay humarang at humiga sa harap ng mga heavy
equipment na hawak hawak ang nasabing kautusan ng
RTC Branch 10 (PERMANENT INJUNCTION at RTC
ORDERS DATED February 12, 17 at 19 2008) upang
ipaglaban ang dignidad ng kautusan ng korte, ipaglaban
ang prinsipyo ng "SELF-HELP" at batas ukol sa
"PROPERTY RIGHTS", Wala kaming nagawa ipagtanggol
ang aming karapatan sa lupa na 45 years naming "IN
POSSESSION." (Underscoring supplied)
Oddly, respondents also seek the issuance of a writ of
habeas data when it is not even alleged that petitioners
are gathering, collecting or storing data or information
regarding their person, family, home and correspondence.
As for respondents assertion of past incidents 21 wherein
the Province allegedly violated the Permanent Injunction
order, these incidents were already raised in the injunction
proceedings on account of which respondents filed a case
for criminal contempt against petitioners.22
Before the filing of the petition for writs of amparo and
habeas data, or on February 22, 2008, petitioners even
instituted a petition for habeas corpus which was
considered moot and academic by Branch 14 of the
Malolos RTC and was accordingly denied by Order of April
8, 2008.
More. Respondent Amanda and one of her sons,
Francisco Jr., likewise filed a petition for writs of amparo
and habeas data before the Sandiganbayan, they alleging
the commission of continuing threats by petitioners after
the issuance of the writs by the RTC, which petition was
dismissed for insufficiency and forum shopping.
It thus appears that respondents are not without recourse
and have in fact taken full advantage of the legal system
with the filing of civil, criminal and administrative
charges.231avvphi1
It need not be underlined that respondents petitions for
writs of amparo and habeas data are extraordinary
remedies which cannot be used as tools to stall the
execution of a final and executory decision in a property
dispute.
At all events, respondents filing of the petitions for writs of
amparo and habeas data should have been barred, for
criminal proceedings against them had commenced after
they were arrested in flagrante delicto and proceeded
against in accordance with Section 6, Rule 112 24 of the
Rules of Court. Validity of the arrest or the proceedings
conducted thereafter is a defense that may be set up by
respondents during trial and not before a petition for writs
of amparo and habeas data. The reliefs afforded by the
writs may, however, be made available to the aggrieved
party by motion in the criminal proceedings. 25

WHEREFORE, the petition is GRANTED. The challenged

March 4, 2008 Order of Branch 10 of the Regional Trial
Court of Malolos is DECLARED NULL AND VOID, and its
March 28, 2008 Decision is REVERSED and SET ASIDE.
Special Civil Action No. 53-M-2008 is DISMISSED.

SO ORDERED.

G.R. No. 182795 June 5, 2008

ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO,

MARRIETA PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL.,
respondents.

RESOLUTION

REYES, R.T., J.:

THE present petition filed on May 26, 2008 seeks the

issuance of a Writ of Amparo upon the following premise:

Petitioners were deprived of their liberty, freedom

and/or rights to shelter enshrined and embodied in
our Constitution, as the result of these nefarious
activities of both the Private and Public
Respondents. This ardent request filed before this
Honorable Supreme Court is the only solution to
this problem via this newly advocated principles
incorporated in the Rules the "RULE ON THE
WRIT OF AMPARO."1
It appears that petitioners are settlers in a certain parcel of
land situated in Barangay Manggahan, Pasig City. Their
dwellings/houses have either been demolished as of the
time of filing of the petition, or is about to be demolished
pursuant to a court judgment.
While they attempted to focus on issuance of what they
claimed to be fraudulent and spurious land titles, to wit:
Petitioners herein are desirous to help the
government, the best way they can, to unearth
these so-called "syndicates" clothed with
governmental functions, in cahoots with the
"squatting syndicates" - - - - the low so defines.
If only to give its proper meanings, the
Government must be the first one to cleans (sic)
its ranks from these unscrupulous political
protges. If unabated would certainly ruin and/or
destroy the efficacy of the Torrens System of land
registration in this Country. It is therefore the
ardent initiatives of the herein Petitioners, by way
of the said prayer for the issuance of the Writ of
Amparo, that these unprincipled Land Officials
be summoned to answer their participation in
the issuances of these fraudulent and
spurious titles, NOW, in the hands of the
Private Respondents. The Courts of Justice,
including this Honorable Supreme Court, are
likewise being made to believe that said titles
in the possession of the Private Respondents
were issued untainted with frauds.2
what the petition ultimately seeks is the reversal of this
Courts dismissal of petitions in G.R. Nos. 177448,
180768, 177701, 177038, thus:
That, Petitioners herein knew before hand that:
there can be no motion for reconsideration for the
second or third time to be filed before this
Honorable Supreme Court. As such therefore,
Petitioners herein are aware of the opinion that
this present petition should not in any way be
treated as such motions fore reconsideration.
Solely, this petition is only for the possible
issuance of the writ of amparo, although it might
affect the previous rulings of this Honorable
Supreme Court in these cases, G.R. Nos.
177448, 180768, 177701 and 177038. Inherent
in the powers of the Supreme Court of the
Philippines is to modify, reverse and set aside,
even its own previous decision, that can not
be thwarted nor influenced by any one, but,
only on the basis of merits and evidence. This
is the purpose of this petition for the Writ of
Amparo.3
We dismiss the petition.
The Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of
amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
(Emphasis supplied.)
The threatened demolition of a dwelling by virtue of a final
judgment of the court, which in this case was affirmed with
finality by this Court in G.R. Nos. 177448, 180768,
177701, 177038, is not included among the enumeration
of rights as stated in the above-quoted Section 1 for which
the remedy of a writ of amparo is made available. Their
claim to their dwelling, assuming they still have any
despite the final and executory judgment adverse to them,
does not constitute right to life, liberty and security. There
is, therefore, no legal basis for the issuance of the writ of
amparo.
Besides, the factual and legal basis for petitioners claim to
the land in question is not alleged in the petition at all. The
Court can only surmise that these rights and interest had
already been threshed out and settled in the four cases
cited above. No writ of amparo may be issued unless
there is a clear allegation of the supposed factual and
legal basis of the right sought to be protected.
Under Section 6 of the same rules, the court shall issue
the writ upon the filing of the petition, only if on its face,
the court ought to issue said writ.
Section 6. Issuance of the Writ. Upon the filing
of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its
face it ought to issue. The clerk of court shall
issue the writ under the seal of the court; or in
case of urgent necessity, the justice or the judge
may issue the writ under his or her own hand, and
may deputize any officer or person to serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not be
later than seven (7) days from the date of its
issuance.
Considering that there is no legal basis for its issuance, as
in this case, the writ will not be issued and the petition will
be dismissed outright.

This new remedy of writ of amparo which is made

available by this Court is intended for the protection of the
highest possible rights of any person, which is his or her
right to life, liberty and security. The Court will not spare
any time or effort on its part in order to give priority to
petitions of this nature. However, the Court will also not
waste its precious time and effort on matters not covered
by the writ.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 182161 December 3, 2009

Reverend Father ROBERT P. REYES, Petitioner,
vs.
RAUL M. GONZALEZ, in his capacity as the secretary
of the COURT OF APPEALS, secretary DEPARTMENT
OF JUSTICE, AND COMMISSIONER MARCELINO C.
LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER
OF THE BUREAU OF IMMIGRATION, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
For resolution is the petition for review under Rule 45 of
the Rules of Court, assailing the February 4, 2008
Decision1 of the Court of Appeals (CA) in CA-G.R. No.
00011 which dismissed the petition for the issuance of the
writ of amparo under A.M. No. 07-9-12-SC, as amended. It
also assails the CAs Resolution dated March 25, 2008,
denying petitioners motion for reconsideration of the
aforesaid February 4, 2008 Decision.
The undisputed facts as found by the CA are as follows:
Petitioner was among those arrested in the Manila
Peninsula Hotel siege on November 30, 2007. In the
morning of November 30, 2007, petitioner together with
fifty (50) others, were brought to Camp Crame to await
inquest proceedings. In the evening of the same day, the
Department of Justice (DOJ) Panel of Prosecutors,
composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz
and Aristotle M. Reyes, conducted inquest proceedings to
ascertain whether or not there was probable cause to hold
petitioner and the others for trial on charges of Rebellion
and/or Inciting to Rebellion.
On December 1, 2007, upon the request of the
Department of Interior and Local Government (DILG),
respondent DOJ Secretary Raul Gonzales issued Hold
Departure Order (HDO) No. 45 ordering respondent
Commissioner of Immigration to include in the Hold
Departure List of the Bureau of Immigration and
Deportation (BID) the name of petitioner and 49 others
relative to the aforementioned case in the interest of
national security and public safety.
On December 2, 2007, after finding probable cause
against petitioner and 36 others for the crime of Rebellion
under Article 134 of the Revised Penal Code, the DOJ
Panel of Prosecutors filed an Information docketed as I.S.
No. 2007-1045 before the Regional Trial Court, Branch
150 of Makati City.
On December 7, 2007, petitioner filed a Motion for Judicial
Determination of Probable Cause and Release of the
Accused Fr. Reyes Upon Recognizance asserting that the
DOJ panel failed to produce any evidence indicating his
specific participation in the crime charged; and that under
the Constitution, the determination of probable cause must
be made personally by a judge.
On December 13, 2007, the RTC issued an Order
dismissing the charge for Rebellion against petitioner and
17 others for lack of probable cause. The trial court
ratiocinated that the evidence submitted by the DOJ Panel
of Investigating Prosecutors failed to show that petitioner
and the other accused-civilians conspired and
confederated with the accused-soldiers in taking arms
against the government; that petitioner and other accused-
civilians were arrested because they ignored the call of
the police despite the deadline given to them to come out
from the 2nd Floor of the Hotel and submit themselves to
the police authorities; that mere presence at the scene of
the crime and expressing ones sentiments on electoral
and political reforms did not make them conspirators
absent concrete evidence that the accused-civilians knew
beforehand the intent of the accused-soldiers to commit
rebellion; and that the cooperation which the law penalizes
must be one that is knowingly and intentionally rendered.
On December 18, 2007, petitioners counsel Atty.
Francisco L. Chavez wrote the DOJ Secretary requesting
the lifting of HDO No. 45 in view of the dismissal of
Criminal Case No. 07-3126.
On even date, Secretary Gonzales replied to petitioners
letter stating that the DOJ could not act on petitioners
request until Atty. Chavezs right to represent petitioner is
settled in view of the fact that a certain Atty. J. V. Bautista
representing himself as counsel of petitioner had also
written a letter to the DOJ.
On January 3, 2008, petitioner filed the instant petition
claiming that despite the dismissal of the rebellion case
against petitioner, HDO No. 45 still subsists; that on
December 19, 2007, petitioner was held by BID officials at
the NAIA as his name is included in the Hold Departure
List; that had it not been for the timely intervention of
petitioners counsel, petitioner would not have been able
to take his scheduled flight to Hong Kong; that on
December 26, 2007, petitioner was able to fly back to the
Philippines from Hong Kong but every time petitioner
would present himself at the NAIA for his flights abroad,
he stands to be detained and interrogated by BID officers
because of the continued inclusion of his name in the Hold
Departure List; and that the Secretary of Justice has not
acted on his request for the lifting of HDO No. 45.
Petitioner further maintained that immediate recourse to
the Supreme Court for the availment of the writ is exigent
as the continued restraint on petitioners right to travel is
illegal.
On January 24, 2008, respondents represented by the
Office of the Solicitor General (OSG) filed the Return of
the Writ raising the following affirmative defenses: 1) that
the Secretary of Justice is authorized to issue Hold
Departure Orders under the DOJ Circulars No. 17, Series
of 19982 and No. 18 Series of 20073 pursuant to his
mandate under the Administrative Code of 1987 as ahead
of the principal law agency of the government; 2) that
HDO No. 45 dated December 1, 2007 was issued by the
Sec. Gonzales in the course of the preliminary
investigation of the case against herein petitioner upon the
request of the DILG; 3) that the lifting of HDO No. 45 is
premature in view of public respondents pending Motion
for Reconsideration dated January 3, 2008 filed by the
respondents of the Order dated December 13, 2007 of the
RTC dismissing Criminal Case No. 07-3126 for Rebellion
for lack of probable cause; 4) that petitioner failed to
exhaust administrative remedies by filing a motion to lift
HDO No. 45 before the DOJ; and 5) that the
constitutionality of Circulars No. 17 and 18 can not be
attacked collaterally in an amparo proceeding.
During the hearing on January 25, 2008 at 10:00 a.m. at
the Paras Hall of the Court of Appeals, counsels for both
parties appeared. Petitioners counsel Atty. Francisco
Chavez manifested that petitioner is currently in Hong
Kong; that every time petitioner would leave and return to
the country, the immigration officers at the NAIA detain
and interrogate him for several minutes because of the
existing HDO; that the power of the DOJ Secretary to
issue HDO has no legal basis; and that petitioner did not
file a motion to lift the HDO before the RTC nor the DOJ
because to do so would be tantamount to recognizing the
power of the DOJ Secretary to issue HDO.
For respondents part, the Office of the Solicitor-General
(OSG) maintained that the Secretary of the DOJs power
to issue HDO springs from its mandate under the
Administrative Code to investigate and prosecute
offenders as the principal law agency of the government;
that in its ten-year existence, the constitutionality of DOJ
Circular No. 17 has not been challenged except now; and
that on January 3, 2008, the DOJ Panel of Investigating
Prosecutors had filed a Motion for Reconsideration of the
Order of Dismissal of the trial court.
On February 1, 2008, petitioner filed a Manifestation
attaching thereto a copy of the Order dated January 31,
2008 of the trial court denying respondent DOJs Motion
for Reconsideration for utter lack of merit. The trial court
also observed that the said Motion should be dismissed
outright for being filed out of time. 4
The petition for a writ of amparo is anchored on the
ground that respondents violated petitioners constitutional
right to travel. Petitioner argues that the DOJ Secretary
has no power to issue a Hold Departure Order (HDO) and
the subject HDO No. 45 has no legal basis since Criminal
Case No. 07-3126 has already been dismissed.
On February 4, 2008, the CA rendered the assailed
Decision dismissing the petition and denying the privilege
of the writ of amparo.
Petitioners Motion for Reconsideration5 thereon was also
denied in the assailed Resolution6 dated March 25, 2008.
Hence, the present petition which is based on the
following grounds:
I.
THE DOJ SECRETARYS ARROGATION OF POWER
AND USURPATION OF AUTHORITY TO ISSUE A HOLD
DEPARTURE ORDER CANNOT BE JUSTIFIED
THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY
BEEN "REGULARLY EXERCISED IN THE PAST" OR
HAS "NEVER BEEN QUESTIONED (IN THE PAST).
II.
THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO
INDEPENDENT OF THAT OF THE REGIONAL TRIAL
COURTS, HENCE, PETITIONER CANNOT MERELY
RELY ON THE RESIDUAL POWER OF THE RTC
MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL
SUCH CLAIMED POWER.
III.
THE UTMOST EXIGENCY OF THE PETITION IS
EXEMPLIFIED BY THE CONTINUING ACTUAL
RESTRAINT ON PETITIONERS RIGHT TO TRAVEL
THROUGH THE MAINTENANCE OF HIS NAME IN THE
HDO LIST AND DOES NOT SIMPLY HINGE ON THE
QUESTION OF WHETHER OR NOT PETITIONER WAS
ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.
IV.
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO
STATUTORY BASIS FOR THE DOJ SECRETARYS
CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A
STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO
BE BASED ON ANY STATUTE, HENCE, IT DOES NOT
HAVE THE FORCE OF LAW AND NEED NOT BE
ATTACKED IN A DIRECT PROCEEDING.7
Petitioner maintains that the writ of amparo does not only
exclusively apply to situations of extrajudicial killings and
enforced disappearances but encompasses the whole
gamut of liberties protected by the Constitution. Petitioner
argues that "[liberty] includes the right to exist and the
right to be free from arbitrary personal restraint or
servitude and includes the right of the citizens to be free to
use his faculties in all lawful ways." Part of the right to
liberty guaranteed by the Constitution is the right of a
person to travel.
In their Comment,8 both respondents Secretary Gonzalez
and Commissioner Libanan argue that: 1) HDO No. 45
was validly issued by the Secretary of Justice in
accordance with Department of Justice Circular No. 17,
Series of 1998,9 and Circular No. 18, Series of 2007, 10
which were issued pursuant to said Secretarys mandate
under the Administrative Code of 1987, as head of the
principal law agency of the government, to investigate the
commission of crimes, prosecute offenders, and provide
immigration regulatory services; and; 2) the issue of the
constitutionality of the DOJ Secretarys authority to issue
hold departure orders under DOJ Circulars Nos. 17 and
18 is not within the ambit of a writ of amparo.
The case hinges on the issue as to whether or not
petitioners right to liberty has been violated or threatened
with violation by the issuance of the subject HDO, which
would entitle him to the privilege of the writ of amparo.
The petition must fail.
Section 1 of the Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
The Court, in Secretary of National Defense et al. v.
Manalo et al.,11 made a categorical pronouncement that
the Amparo Rule in its present form is confined to these
two instances of "extralegal killings" and "enforced
disappearances," or to threats thereof, thus:
x x x As the Amparo Rule was intended to address the
intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced
disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or
private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of
law."12
In Tapuz v. Del Rosario, 13 the Court laid down the basic
principle regarding the rule on the writ of amparo as
follows:
To start off with the basics, the writ of amparo was
originally conceived as a response to the extraordinary
rise in the number of killings and enforced
disappearances, and to the perceived lack of available
and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats
to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under
the prevailing Rules, or as a remedy supplemental to
these Rules. What it is not, is a writ to protect concerns
that are purely property or commercial. Neither is it a writ
that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo in line
with the extraordinary character of the writ and the
reasonable certainty that its issuance demands requires
that every petition for the issuance of the writ must be
supported by justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying
the names, personal circumstances, and
addresses of the investigating authority or
individuals, as well as the manner and conduct of
the investigation, together with any report;
(e) The actions and recourses taken by the
petitioner to determine the fate or whereabouts of
 the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just
and equitable reliefs."14
The writ shall issue if the Court is preliminarily satisfied
with the prima facie existence of the ultimate facts
determinable from the supporting affidavits that detail the
circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the
aggrieved party was or is being committed. (Emphasis
supplied)
Here, petitioner invokes this extraordinary remedy of the
writ of amparo for the protection of his right to travel. He
insists that he is entitled to the protection covered by the
Rule on the Writ of Amparo because the HDO is a
continuing actual restraint on his right to travel. The Court
is thus called upon to rule whether or not the right to travel
is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ
of Amparo under Section 1 of the Rules thereon are the
following: (1) right to life; (2) right to liberty; and (3) right to
security.
In Secretary of National Defense et al. v. Manalo et al., 15
the Court explained the concept of right to life in this wise:
While the right to life under Article III, Section 1
guarantees essentially the right to be alive- upon which
the enjoyment of all other rights is preconditioned - the
right to security of person is a guarantee of the secure
quality of this life, viz: "The life to which each person has a
right is not a life lived in fear that his person and property
may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
established and consented to, will protect the security of
his person and property. The ideal of security in life and
property pervades the whole history of man. It touches
every aspect of mans existence." In a broad sense, the
right to security of person "emanates in a persons legal
and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation. It includes the right to exist,
and the right to enjoyment of life while existing, and it is
invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires
of the individual."16
The right to liberty, on the other hand, was defined in the
City of Manila, et al. v. Hon. Laguio, Jr., 17 in this manner:
Liberty as guaranteed by the Constitution was defined by
Justice Malcolm to include "the right to exist and the right
to be free from arbitrary restraint or servitude. The term
cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with which
he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al. 18
thoroughly expounded on the import of the right to
security, thus:
A closer look at the right to security of person would yield
various permutations of the exercise of this right.
First, the right to security of person is "freedom from fear."
In its "whereas" clauses, the Universal Declaration of
Human Rights (UDHR) enunciates that "a world in which
human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as
the highest aspiration of the common people." (emphasis
supplied) Some scholars postulate that "freedom from
fear" is not only an aspirational principle, but essentially an
individual international human right. It is the "right to
security of person" as the word "security" itself means
"freedom from fear." Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of
person.
xxx
The Philippines is a signatory to both the UDHR and the
ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom
from fear" is the right and any threat to the rights to life,
liberty or security is the actionable wrong. Fear is a state
of mind, a reaction; threat is a stimulus, a cause of action.
Fear caused by the same stimulus can range from being
baseless to well-founded as people react differently. The
degree of fear can vary from one person to another with
the variation of the prolificacy of their imagination, strength
of character or past experience with the stimulus. Thus, in
the amparo context, it is more correct to say that the "right
to security" is actually the "freedom from threat." Viewed
in this light, the "threatened with violation" Clause in the
latter part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the earlier
part of the provision.
Second, the right to security of person is a guarantee of
bodily and psychological integrity or security. Article III,
Section II of the 1987 Constitution guarantees that, as a
general rule, ones body cannot be searched or invaded
without a search warrant. Physical injuries inflicted in the
context of extralegal killings and enforced disappearances
constitute more than a search or invasion of the body. It
may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury
increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity
or security of a person.
xxx
Third, the right to security of person is a guarantee of
protection of ones rights by the government. In the
context of the writ of amparo, this right is built into the
guarantees of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right to security
of person (as freedom from threat and guarantee of bodily
and psychological integrity) under Article III, Section 2.
The right to security of person in this third sense is a
corollary of the policy that the State "guarantees full
respect for human rights" under Article II, Section 11 of the
1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not
afford protection to these rights especially when they are
under threat. Protection includes conducting effective
investigations, organization of the government apparatus
to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. x x x
(emphasis supplied) 19
The right to travel refers to the right to move from one
place to another.20 As we have stated in Marcos v.
Sandiganbayan,21 "xxx a persons right to travel is subject
to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether
the accused should be permitted to leave the jurisdiction
for humanitarian reasons is a matter of the courts sound
discretion." 22
Here, the restriction on petitioners right to travel as a
consequence of the pendency of the criminal case filed
against him was not unlawful. Petitioner has also failed to
establish that his right to travel was impaired in the
manner and to the extent that it amounted to a serious
violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy.
In Canlas et al. v. Napico Homeowners Association I
XIII, Inc. et al.,23 this Court ruled that:
This new remedy of writ of amparo which is made
available by this Court is intended for the protection of the
highest possible rights of any person, which is his or her
right to life, liberty and security. The Court will not spare
any time or effort on its part in order to give priority to
petitions of this nature. However, the Court will also not
waste its precious time and effort on matters not covered
by the writ.
We find the direct recourse to this Court inappropriate,
considering the provision of Section 22 of the Rule on the
Writ of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. When a
criminal action has been commenced, no separate petition
for the writ shall be filed. The reliefs under the writ shall be
available by motion in the criminal case.1avvphi1
The procedure under this Rule shall govern the disposition
of the reliefs available under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner
should have filed with the RTC-Makati a motion to lift HDO
No. 45 in Criminal Case No. 07-3126. Petitioner, however,
did not file in the RTC-Makati a motion to lift the DOJs
HDO, as his co-accused did in the same criminal case.
Petitioner argues that it was not the RTC-Makati but the
DOJ that issued the said HDO, and that it is his intention
not to limit his remedy to the lifting of the HDO but also to
question before this Court the constitutionality of the
power of the DOJ Secretary to issue an HDO. 24 We quote
with approval the CAs ruling on this matter:
The said provision [Section 22] is an affirmation by the
Supreme Court of its pronouncement in Crespo v. Mogul 25
that once a complaint or information is filed in court, any
disposition of the case such as its dismissal or its
continuation rests on the sound discretion of the court.
Despite the denial of respondents MR of the dismissal of
the case against petitioner, the trial court has not lost
control over Criminal Case No. 07-3126 which is still
pending before it. By virtue of its residual power, the court
a quo retains the authority to entertain incidents in the
instant case to the exclusion of even this Court. The relief
petitioner seeks which is the lifting of the HDO was and is
available by motion in the criminal case. (Sec. 22, Rule on
the Writ of amparo, supra).26
Even in civil cases pending before the trial courts, the
Court has no authority to separately and directly intervene
through the writ of amparo, as elucidated in Tapuz v. Del
Rosario,27 thus:
Where, as in this case, there is an ongoing civil process
dealing directly with the possessory dispute and the
reported acts of violence and harassment, we see no point
in separately and directly intervening through a writ of
amparo in the absence of any clear prima facie showing
that the right to life, liberty or securitythe personal
concern that the writ is intended to protectis immediately
in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an
application for the issuance of the writ, in a proper case,
by motion in a pending case on appeal or on certiorari,
applying by analogy the provisions on the co-existence of
the writ with a separately filed criminal case.
Additionally, petitioner is seeking the extraordinary writ of
amparo due to his apprehension that the DOJ may deny
his motion to lift the HDO.28 Petitioners apprehension is at
best merely speculative. Thus, he has failed to show any
clear threat to his right to liberty actionable through a
petition for a writ of amparo. The absence of an actual
controversy also renders it unnecessary for us on this
occasion to pass upon the constitutionality of DOJ Circular
No. 17, Series of 1998 (Prescribing Rules and Regulations
Governing the Issuance of Hold Departure Orders); and
Circular No. 18, Series of 2007 (Prescribing Rules and
Regulations Governing the Issuance and Implementation
of Watchlist Orders and for Other Purposes).
WHEREFORE, the petition is DISMISSED. The assailed
Decision of the CA dated February 4, 2008 in CA-G.R. No.
00011 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 182498 June 22, 2010
GEN. AVELINO I. RAZON, JR., Chief, Philippine
National Police (PNP); Police Chief Superintendent
RAUL CASTAEDA, Chief, Criminal Investigation and
Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response; and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY.
FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.
RESOLUTION
BRION, J.:
In our Decision of December 3, 2009, we referred the
present case to the Court of Appeals (CA) for appropriate
proceedings directed at the monitoring of the PNP and
PNP-CIDG investigations, actions and validation of their
results with respect to the enforced disappearance of
Engr. Morced N. Tagitis. In the same Decision, we also
required: (1) the PNP and the PNP-CIDG to present to the
CA a plan of action for further investigation, periodically
reporting their results to the CA for consideration and
action, and (2) the CA to submit to this Court a quarterly
report with its recommendations, copy furnished the
incumbent PNP and PNP-CIDG Chiefs, as petitioners ,and
the respondent, with the first report due at the end of the
first quarter counted from the finality of the Decision.
On February 16, 2010, we issued a Resolution, denying
the petitioners motion for reconsideration and directing
that the case be remanded to the CA for further
proceedings as directed in our Decision of December 3,
2009.1avvphi1
On March 17, 2010, our December 3, 2009 Decision
became final, and an entry of judgment was accordingly
made on May 28, 2010.
Considering the foregoing, the Court resolves to DIRECT
the Court of Appeals to submit to this Court, within ten (10)
days from receipt of this Resolution, its 1st quarterly report
and recommendations, copy furnished the incumbent PNP
and PNP-CIDG Chiefs, and the respondent, as directed in
our Decision of December 3, 2009. The PNP and the
PNP-CIDG are likewise reminded to faithfully and
promptly comply with the directives in our Decision of
December 3, 2009.
SO ORDERED.

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE

CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO,
respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated

from the rest of the world behind secret walls, they are not
separated from the constitutional protection of their basic
rights. The constitution is an overarching sky that covers
all in its protection. The case at bar involves the rights to
life, liberty and security in the first petition for a writ of
Amparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of

the Rules of Court in relation to Section 19 1 of the Rule on
the Writ of Amparo, seeking to reverse and set aside on
both questions of fact and law, the Decision promulgated
by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo,
petitioners, versus The Secretary of National Defense, the
Chief of Staff, Armed Forces of the Philippines,
respondents."

This case was originally a Petition for Prohibition,

Injunction, and Temporary Restraining Order (TRO)2 filed
before this Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein petitioners
(therein respondents) and/or their officers and agents from
depriving them of their right to liberty and other basic
rights. Therein petitioners also sought ancillary remedies,
Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and
equitable reliefs under Article VIII, Section 5(5) 3 of the
1987 Constitution and Rule 135, Section 6 of the Rules of
Court. In our Resolution dated August 24, 2007, we (1)
ordered the Secretary of the Department of National
Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including
but not limited to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and (2) enjoined
them from causing the arrest of therein petitioners, or
otherwise restricting, curtailing, abridging, or depriving
them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1 4 of the 1987
Constitution.5
While the August 23, 2007 Petition was pending, the Rule
on the Writ of Amparo took effect on October 24, 2007.
Forthwith, therein petitioners filed a Manifestation and
Omnibus Motion to Treat Existing Petition as Amparo
Petition, to Admit Supporting Affidavits, and to Grant
Interim and Final Amparo Reliefs. They prayed that: (1)
the petition be considered a Petition for the Writ of
Amparo under Sec. 266 of the Amparo Rule; (2) the Court
issue the writ commanding therein respondents to make a
verified return within the period provided by law and
containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule
and all other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after hearing,
render judgment as required in Sec. 187 of the Amparo
Rule; and (5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the
August 23, 2007 Petition as a petition under the Amparo
Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file with
the CA (Court of Appeals) a verified written return
within five (5) working days from service of the
writ. We REMAND the petition to the CA and
designate the Division of Associate Justice Lucas
P. Bersamin to conduct the summary hearing on
the petition on November 8, 2007 at 2:00 p.m. and
decide the petition in accordance with the Rule on
the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a
decision in favor of therein petitioners (herein
respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT
OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL
DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:
1. To furnish to the petitioners and to this
Court within five days from notice of this
decision all official and unofficial reports of
the investigation undertaken in connection
with their case, except those already on
file herein;
2. To confirm in writing the present places
of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within
five days from notice of this decision.
3. To cause to be produced to this Court
all medical reports, records and charts,
reports of any treatment given or
recommended and medicines prescribed,
if any, to the petitioners, to include a list of
medical and (sic) personnel (military and
civilian) who attended to them from
February 14, 2006 until August 12, 2007
within five days from notice of this
decision.
The compliance with this decision shall be made
under the signature and oath of respondent AFP
Chief of Staff or his duly authorized deputy, the
latter's authority to be express and made apparent
on the face of the sworn compliance with this
directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl
the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one
or two weeks before February 14, 2006, several uniformed
and armed soldiers and members of the CAFGU
summoned to a meeting all the residents of their barangay
in San Idelfonso, Bulacan. Respondents were not able to
attend as they were not informed of the gathering, but
Raymond saw some of the soldiers when he passed by
the barangay hall.11
On February 14, 2006, Raymond was sleeping in their
house in Buhol na Mangga, San Ildefonso, Bulacan. At
past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and
roused him. They asked him if he was Bestre, but his
mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks
and nudged him in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to the ground
face down. He was kicked on the hip, ordered to stand
and face up to the light, then forcibly brought near the
road. He told his mother to follow him, but three soldiers
stopped her and told her to stay.12
Among the men who came to take him, Raymond
recognized brothers Michael de la Cruz, Madning de la
Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all
acted as lookout. They were all members of the CAFGU
and residing in Manuzon, San Ildefonso, Bulacan. He also
recognized brothers Randy Mendoza and Rudy Mendoza,
also members of the CAFGU. While he was being forcibly
taken, he also saw outside of his house two barangay
councilors, Pablo Cunanan and Bernardo Lingasa, with
some soldiers and armed men.13
The men forced Raymond into a white L300 van. Once
inside, he was blindfolded. Before being blindfolded, he
saw the faces of the soldiers who took him. Later, in his 18
months of captivity, he learned their names. The one who
drove the van was Rizal Hilario alias Rollie Castillo, whom
he estimated was about 40 years of age or older. The
leader of the team who entered his house and abducted
him was "Ganata." He was tall, thin, curly-haired and a bit
old. Another one of his abductors was "George" who was
tall, thin, white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was
brought inside the van and made to sit beside Raymond.
Both of them were beaten up. On the road, he recognized
the voice of the person beside him as his brother
Reynaldo's. The van stopped several times until they
finally arrived at a house. Raymond and Reynaldo were
each brought to a different room. With the doors of their
rooms left open, Raymond saw several soldiers
continuously hitting his brother Reynaldo on the head and
other parts of his body with the butt of their guns for about
15 minutes. After which, Reynaldo was brought to his
(Raymond's) room and it was his (Raymond's) turn to be
beaten up in the other room. The soldiers asked him if he
was a member of the New People's Army. Each time he
said he was not, he was hit with the butt of their guns. He
was questioned where his comrades were, how many
soldiers he had killed, and how many NPA members he
had helped. Each time he answered none, they hit him. 15
In the next days, Raymond's interrogators appeared to be
high officials as the soldiers who beat him up would salute
them, call them "sir," and treat them with respect. He was
in blindfolds when interrogated by the high officials, but he
saw their faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high
officials was different from those of the other soldiers. One
of those officials was tall and thin, wore white pants, tie,
and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and
a habeas corpus case filed in connection with the
respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled. But
once they had left, the soldier guards beat him up. When
the guards got drunk, they also manhandled respondents.
During this time, Raymond was fed only at night, usually
with left-over and rotten food.17
On the third week of respondents' detention, two men
arrived while Raymond was sleeping and beat him up.
They doused him with urine and hot water, hit his stomach
with a piece of wood, slapped his forehead twice with a .
45 pistol, punched him on the mouth, and burnt some
parts of his body with a burning wood. When he could no
longer endure the torture and could hardly breathe, they
stopped. They then subjected Reynaldo to the same
ordeal in another room. Before their torturers left, they
warned Raymond that they would come back the next day
and kill him.18
The following night, Raymond attempted to escape. He
waited for the guards to get drunk, then made noise with
the chains put on him to see if they were still awake.
When none of them came to check on him, he managed
to free his hand from the chains and jumped through the
window. He passed through a helipad and firing range and
stopped near a fishpond where he used stones to break
his chains. After walking through a forested area, he came
near a river and an Iglesia ni Kristo church. He talked to
some women who were doing the laundry, asked where
he was and the road to Gapan. He was told that he was in
Fort Magsaysay.19 He reached the highway, but some
soldiers spotted him, forcing him to run away. The soldiers
chased him and caught up with him. They brought him to
another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with
chains until his back bled. They poured gasoline on him.
Then a so-called "Mam" or "Madam" suddenly called,
saying that she wanted to see Raymond before he was
killed. The soldiers ceased the torture and he was
returned inside Fort Magsaysay where Reynaldo was
detained.20
For some weeks, the respondents had a respite from all
the torture. Their wounds were treated. When the wounds
were almost healed, the torture resumed, particularly
when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006,
he was detained in a room enclosed by steel bars. He
stayed all the time in that small room measuring 1 x 2
meters, and did everything there, including urinating,
removing his bowels, bathing, eating and sleeping. He
counted that eighteen people22 had been detained in that
bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were
detained in Fort Magsaysay. They were kept in a small
house with two rooms and a kitchen. One room was made
into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by
their house. They were also sometimes detained in what
he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents.
He checked their body and eyes, took their urine samples
and marked them. When asked how they were feeling,
they replied that they had a hard time urinating, their
stomachs were aching, and they felt other pains in their
body. The next day, two ladies in white arrived. They also
examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They
brought with them the results of respondents' urine test
and advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times.
Thereafter, medicines were sent through the "master" of
the DTU, "Master" Del Rosario alias Carinyoso at Puti.
Respondents were kept in the DTU for about two weeks.
While there, he met a soldier named Efren who said that
Gen. Palparan ordered him to monitor and take care of
them.25
One day, Rizal Hilario fetched respondents in a Revo
vehicle. They, along with Efren and several other armed
men wearing fatigue suits, went to a detachment in
Pinaud, San Ildefonso, Bulacan. Respondents were
detained for one or two weeks in a big two-storey house.
Hilario and Efren stayed with them. While there, Raymond
was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to
Sapang, San Miguel, Bulacan on board the Revo. They
were detained in a big unfinished house inside the
compound of "Kapitan" for about three months. When they
arrived in Sapang, Gen. Palparan talked to them. They
were brought out of the house to a basketball court in the
center of the compound and made to sit. Gen. Palparan
was already waiting, seated. He was about two arms'
length away from respondents. He began by asking if
respondents felt well already, to which Raymond replied in
the affirmative. He asked Raymond if he knew him.
Raymond lied that he did not. He then asked Raymond if
he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be
because he did not believe that Gen. Palparan was an evil
man.27
Raymond narrated his conversation with Gen. Palparan in
his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na
kaharap mo na ako, di ka ba natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng
isang pagkakataon na mabuhay, basta't sundin
n'yo ang lahat ng sasabihin ko... sabihin mo sa
magulang mo - huwag pumunta sa mga rali, sa
hearing, sa Karapatan at sa Human Right dahil
niloloko lang kayo. Sabihin sa magulang at lahat
sa bahay na huwag paloko doon. Tulungan kami
na kausapin si Bestre na sumuko na sa
gobyerno."28
Respondents agreed to do as Gen. Palparan told them as
they felt they could not do otherwise. At about 3:00 in the
morning, Hilario, Efren and the former's men - the same
group that abducted them - brought them to their parents'
house. Raymond was shown to his parents while
Reynaldo stayed in the Revo because he still could not
walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told
him. As they were afraid, Raymond's parents acceded.
Hilario threatened Raymond's parents that if they
continued to join human rights rallies, they would never
see their children again. The respondents were then
brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan
was about to leave. He was talking with the four "masters"
who were there: Arman, Ganata, Hilario and Cabalse. 30
When Gen. Palparan saw Raymond, he called for him. He
was in a big white vehicle. Raymond stood outside the
vehicle as Gen. Palparan told him to gain back his
strength and be healthy and to take the medicine he left
for him and Reynaldo. He said the medicine was
expensive at Php35.00 each, and would make them
strong. He also said that they should prove that they are
on the side of the military and warned that they would not
be given another chance.31 During his testimony,
Raymond identified Gen. Palparan by his picture.32
One of the soldiers named Arman made Raymond take
the medicine left by Gen. Palparan. The medicine, named
"Alive," was green and yellow. Raymond and Reynaldo
were each given a box of this medicine and instructed to
take one capsule a day. Arman checked if they were
getting their dose of the medicine. The "Alive" made them
sleep each time they took it, and they felt heavy upon
waking up.33
After a few days, Hilario arrived again. He took Reynaldo
and left Raymond at Sapang. Arman instructed Raymond
that while in Sapang, he should introduce himself as
"Oscar," a military trainee from Sariaya, Quezon, assigned
in Bulacan. While there, he saw again Ganata, one of the
men who abducted him from his house, and got
acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was
brought to Camp Tecson under the 24 th Infantry Battalion.
He was fetched by three unidentified men in a big white
vehicle. Efren went with them. Raymond was then
blindfolded. After a 30-minute ride, his blindfold was
removed. Chains were put on him and he was kept in the
barracks.35
The next day, Raymond's chains were removed and he
was ordered to clean outside the barracks. It was then he
learned that he was in a detachment of the Rangers.
There were many soldiers, hundreds of them were
training. He was also ordered to clean inside the barracks.
In one of the rooms therein, he met Sherlyn Cadapan from
Laguna. She told him that she was a student of the
University of the Philippines and was abducted in
Hagonoy, Bulacan. She confided that she had been
subjected to severe torture and raped. She was crying and
longing to go home and be with her parents. During the
day, her chains were removed and she was made to do
the laundry.36
After a week, Reynaldo was also brought to Camp
Tecson. Two days from his arrival, two other captives,
Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with "Allan" whose name
they later came to know as Donald Caigas, called
"master" or "commander" by his men in the 24 th Infantry
Battalion. Raymond and Reynaldo were put in the
adjoining room. At times, Raymond and Reynaldo were
threatened, and Reynaldo was beaten up. In the daytime,
their chains were removed, but were put back on at night.
They were threatened that if they escaped, their families
would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp
Tecson. He told the detainees that they should be thankful
they were still alive and should continue along their
"renewed life." Before the hearing of November 6 or 8,
2006, respondents were brought to their parents to
instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp
from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and
holding himself out as a military trainee. He got
acquainted with soldiers of the 24 th Infantry Battalion
whose names and descriptions he stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn,
Karen, and Manuel, were transferred to a camp of the 24 th
Infantry Battalion in Limay, Bataan. There were many huts
in the camp. They stayed in that camp until May 8, 2007.
Some soldiers of the battalion stayed with them. While
there, battalion soldiers whom Raymond knew as "Mar"
and "Billy" beat him up and hit him in the stomach with
their guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean, cook,
and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was
launched, Caigas and some other soldiers brought him
and Manuel with them to take and kill all sympathizers of
the NPA. They were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old man doing
kaingin. The soldiers said he was killed because he had a
son who was a member of the NPA and he coddled NPA
members in his house.40 Another time, in another
"Operation Lubog," Raymond was brought to Barangay
Orion in a house where NPA men stayed. When they
arrived, only the old man of the house who was sick was
there. They spared him and killed only his son right before
Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and
Manuel were transferred to Zambales, in a safehouse
near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house.
Like in Limay, the five detainees were made to do errands
and chores. They stayed in Zambales from May 8 or 9,
2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in
Limay. Raymond, Reynaldo, and Manuel were tasked to
bring food to detainees brought to the camp. Raymond
narrated what he witnessed and experienced in the camp,
viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na
matulog na kami. Nakita ko si Donald na inaayos
ang kanyang baril, at nilagyan ng silenser. Sabi ni
Donald na kung mayroon man kaming makita o
marinig, walang nangyari. Kinaumagahan, nakita
naming ang bangkay ng isa sa mga bihag na
dinala sa kampo. Mayroong binuhos sa kanyang
katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and
ibinaba ng mga unipormadong sundalo mula sa 6
x 6 na trak at dinala sa loob ng kampo. May
naiwang mga bakas ng dugo habang hinihila nila
ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot
sila na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na binugbog. Nakita
kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi
nakita kong pinatay nila iyong isang Ita malapit sa
Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay
ang dinala sa kampo. Ibinaba ang mga bangkay
mula sa pick up trak, dinala ang mga bangkay sa
labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1
kasama niya. Pinakain ko sila. Sabi nila sa akin
na dinukot sila sa Bataan. Iyong gabi, inilabas sila
at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw,
nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel, wala
siyang suot pang-itaas, pinosasan. Nilakasan ng
mga sundalo ang tunog na galing sa istiryo ng
sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel. Sumilip ako sa isang haligi ng
kamalig at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal
ang mga kadena mga 3 o 4 na araw pagkalipas.
Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni
Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si
Manuel, dahil magkakasama na yung tatlo. Sabi
pa ni Donald na kami ni Reynaldo ay magbagong
buhay at ituloy namin ni Reynaldo ang trabaho.
Sa gabi, hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were
brought to Pangasinan, ostensibly to raise poultry for
Donald (Caigas). Caigas told respondents to also farm his
land, in exchange for which, he would take care of the
food of their family. They were also told that they could
farm a small plot adjoining his land and sell their produce.
They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for
Reynaldo) and represent themselves as cousins from
Rizal, Laguna.44
Respondents started to plan their escape. They could see
the highway from where they stayed. They helped farm
adjoining lands for which they were paid Php200.00 or
Php400.00 and they saved their earnings. When they had
saved Php1,000.00 each, Raymond asked a neighbor
how he could get a cellular phone as he wanted to
exchange text messages with a girl who lived nearby. A
phone was pawned to him, but he kept it first and did not
use it. They earned some more until they had saved
Php1,400.00 between them.
There were four houses in the compound. Raymond and
Reynaldo were housed in one of them while their guards
lived in the other three. Caigas entrusted respondents to
Nonong, the head of the guards. Respondents' house did
not have electricity. They used a lamp. There was no
television, but they had a radio. In the evening of August
13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the
radio. When none of the guards awoke and took notice,
Raymond and Reynaldo proceeded towards the highway,
leaving behind their sleeping guards and barking dogs.
They boarded a bus bound for Manila and were thus freed
from captivity.45
Reynaldo also executed an affidavit affirming the contents
of Raymond's affidavit insofar as they related to matters
they witnessed together. Reynaldo added that when they
were taken from their house on February 14, 2006, he
saw the faces of his abductors before he was blindfolded
with his shirt. He also named the soldiers he got
acquainted with in the 18 months he was detained. When
Raymond attempted to escape from Fort Magsaysay,
Reynaldo was severely beaten up and told that they were
indeed members of the NPA because Raymond escaped.
With a .45 caliber pistol, Reynaldo was hit on the back and
punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and
Reynaldo were in Sapang, Reynaldo was separated from
Raymond and brought to Pinaud by Rizal Hilario. He was
kept in the house of Kapitan, a friend of Hilario, in a
mountainous area. He was instructed to use the name
"Rodel" and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a
market in San Jose, del Monte, Bulacan and made to wait
in the vehicle while Hilario was buying. He was also
brought to Tondo, Manila where Hilario delivered boxes of
"Alive" in different houses. In these trips, Hilario drove a
black and red vehicle. Reynaldo was blindfolded while still
in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed by
Fort Magsaysay and Camp Tecson where Reynaldo saw
the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of
respondents Raymond and Reynaldo Manalo. Dr. Molino
specialized in forensic medicine and was connected with
the Medical Action Group, an organization handling cases
of human rights violations, particularly cases where torture
was involved. He was requested by an NGO to conduct
medical examinations on the respondents after their
escape. He first asked them about their ordeal, then
proceeded with the physical examination. His findings
showed that the scars borne by respondents were
consistent with their account of physical injuries inflicted
upon them. The examination was conducted on August
15, 2007, two days after respondents' escape, and the
results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the
Istanbul Protocol in conducting the examination. 47
Petitioners dispute respondents' account of their alleged
abduction and torture. In compliance with the October 25,
2007 Resolution of the Court, they filed a Return of the
Writ of Amparo admitting the abduction but denying any
involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo
were not at any time arrested, forcibly abducted,
detained, held incommunicado, disappeared or
under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed
in their behalf by petitioners' parents before the
Court of Appeals in C.A.-G.R. SP No. 94431
against M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen.
Jovito Palparan, as Commander of the 7 th Infantry
Division in Luzon; Lt. Gen. Hermogenes Esperon,
in his capacity as the Commanding General of the
Philippine Army, and members of the Citizens
Armed Forces Geographical Unit (CAFGU),
namely: Michael dela Cruz, Puti dela Cruz,
Madning dela Cruz, Pula dela Cruz, Randy
Mendoza and Rudy Mendoza. The respondents
therein submitted a return of the writ... On July 4,
2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon,
Jr., then Commanding General of the Philippine
Army, and on September 19, 2006, Maj. (sic)
Jovito S. Palparan, then Commanding General, 7 th
Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a
finding that no evidence was introduced to
establish their personal involvement in the taking
of the Manalo brothers. In a Decision dated June
27, 2007..., it exonerated M/Sgt. Rizal Hilario aka
Rollie Castillo for lack of evidence establishing his
involvement in any capacity in the disappearance
of the Manalo brothers, although it held that the
remaining respondents were illegally detaining the
Manalo brothers and ordered them to release the
latter.48
Attached to the Return of the Writ was the affidavit of
therein respondent (herein petitioner) Secretary of
National Defense, which attested that he assumed office
only on August 8, 2007 and was thus unaware of the
Manalo brothers' alleged abduction. He also claimed that:
7. The Secretary of National Defense does not
engage in actual military directional operations,
neither does he undertake command directions of
the AFP units in the field, nor in any way
micromanage the AFP operations. The principal
responsibility of the Secretary of National Defense
is focused in providing strategic policy direction to
the Department (bureaus and agencies) including
the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by
the Honorable Supreme Court in this case, I have
directed the Chief of Staff, AFP to institute
immediate action in compliance with Section 9(d)
of the Amparo Rule and to submit report of such
compliance... Likewise, in a Memorandum
 Directive also dated October 31, 2007, I have
issued a policy directive addressed to the Chief of
Staff, AFP that the AFP should adopt the following
rules of action in the event the Writ of Amparo is
issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved
party;
(2) to recover and preserve evidence
related to the death or disappearance of
the person identified in the petition which
may aid in the prosecution of the person
or persons responsible;
(3) to identify witnesses and obtain
statements from them concerning the
death or disappearance;
(4) to determine the cause, manner,
location and time of death or
disappearance as well as any pattern or
practice that may have brought about the
death or disappearance;
(5) to identify and apprehend the person
or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders
before a competent court.49
Therein respondent AFP Chief of Staff also submitted his
own affidavit, attached to the Return of the Writ, attesting
that he received the above directive of therein respondent
Secretary of National Defense and that acting on this
directive, he did the following:
3.1. As currently designated Chief of Staff, Armed
Forces of the Philippines (AFP), I have caused to
be issued directive to the units of the AFP for the
purpose of establishing the circumstances of the
alleged disappearance and the recent
reappearance of the petitioners.
3.2. I have caused the immediate investigation
and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct
of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on
November 05, 2007, addressed to the
Commanding General, Philippine Army (Info:
COMNOLCOM, CG, 71D PA and CO 24 IB PA). A
Copy of the Radio Message is attached as
ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted by
the concerned unit relative to the circumstances of
the alleged disappearance of the persons in
whose favor the Writ of Amparo has been sought
for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to
the same units relative to another Petition for the
Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and
Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to establish
the surrounding circumstances of the
disappearances of the petitioners and to bring
those responsible, including any military
personnel if shown to have participated or had
complicity in the commission of the complained
acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be
gathered in the process.50
Also attached to the Return of the Writ was the affidavit of
Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in
G.R. No. 179994, another Amparo case in this Court,
involving Cadapan, Empeo and Merino, which averred
among others, viz:
10) Upon reading the allegations in the Petition
implicating the 24th Infantry Batallion detachment
as detention area, I immediately went to the 24 th
IB detachment in Limay, Bataan and found no
untoward incidents in the area nor any detainees
by the name of Sherlyn Cadapan, Karen Empeo
and Manuel Merino being held captive;
11) There was neither any reports of any death of
Manuel Merino in the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we
made further inquiries with the Philippine National
Police, Limay, Bataan regarding the alleged
detentions or deaths and were informed that none
was reported to their good office;
13) I also directed Company Commander 1 st Lt.
Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a
detention place where Sherlyn Cadapan, Karen
Empeo and Manuel Merino were detained. As
per the inquiry, however, no such beachhouse
was used as a detention place found to have been
used by armed men to detain Cadapan, Empeo
and Merino.51
It was explained in the Return of the Writ that for lack of
sufficient time, the affidavits of Maj. Gen Jovito S.
Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo,
and other persons implicated by therein petitioners could
not be secured in time for the submission of the Return
and would be subsequently submitted.52
Herein petitioners presented a lone witness in the
summary hearings, Lt. Col. Ruben U. Jimenez, Provost
Marshall, 7th Infantry Division, Philippine Army, based in
Fort Magsaysay, Palayan City, Nueva Ecija. The territorial
jurisdiction of this Division covers Nueva Ecija, Aurora,
Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th
Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the
Commanding General of the 7th Infantry Division, Maj.
Gen. Jovito Palaran,55 through his Assistant Chief of
Staff,56 to investigate the alleged abduction of the
respondents by CAFGU auxiliaries under his unit, namely:
CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti;
CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
ex-CAA Marcelo de la Cruz aka Madning; and a civilian
named Rudy Mendoza. He was directed to determine: (1)
the veracity of the abduction of Raymond and Reynaldo
Manalo by the alleged elements of the CAFGU auxiliaries;
and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation
was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw
news about the abduction of the Manalo brothers on the
television, and he was concerned about what was
happening within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for the
purpose of having them execute sworn statements and
conducting an investigation on May 29, 2006. 59 The
investigation started at 8:00 in the morning and finished at
10:00 in the evening. 60 The investigating officer, Technical
Sgt. Eduardo Lingad, took the individual sworn statements
of all six persons on that day. There were no other sworn
statements taken, not even of the Manalo family, nor were
there other witnesses summoned and investigated 61 as
according to Jimenez, the directive to him was only to
investigate the six persons.62
Jimenez was beside Lingad when the latter took the
statements.63 The six persons were not known to Jimenez
as it was in fact his first time to meet them. 64 During the
entire time that he was beside Lingad, a subordinate of his
in the Office of the Provost Marshall, Jimenez did not
propound a single question to the six persons.65
Jimenez testified that all six statements were taken on
May 29, 2006, but Marcelo Mendoza and Rudy Mendoza
had to come back the next day to sign their statements as
the printing of their statements was interrupted by a power
failure. Jimenez testified that the two signed on May 30,
2006, but the jurats of their statements indicated that they
were signed on May 29, 2006.66 When the Sworn
Statements were turned over to Jimenez, he personally
wrote his investigation report. He began writing it in the
afternoon of May 30, 2006 and finished it on June 1,
2006.67 He then gave his report to the Office of the Chief
of Personnel.68
As petitioners largely rely on Jimenez's Investigation
Report dated June 1, 2006 for their evidence, the report is
herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who were
forcibly taken from their respective homes in Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and
thereafter were forcibly disappeared. After the
said incident, relatives of the victims filed a case
for Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela Cruz,
Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza
and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit
(CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz,
aka Pula dated 29 May 2006 in (Exhibit "B")
states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the
concrete building of a church located nearby his
residence, together with some neighbor thereat.
He claims that on 15 February 2006, he was
being informed by Brgy. Kagawad Pablo Umayan
about the abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he was
one of the suspects, he claims that they only
implicated him because he was a CAFGU and
that they claimed that those who abducted the
Manalo brothers are members of the Military and
CAFGU. Subject vehemently denied any
participation or involvement on the abduction of
said victims.
b) Sworn statement of CAA Roman dela Cruz y
Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C")
states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan and a
CAA member based at Biak na Bato Detachment,
San Miguel, Bulacan. He claims that Raymond
and Reynaldo Manalo being his neighbors are
active members/sympathizers of the CPP/NPA
and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in
their province. That at the time of the alleged
abduction of the two (2) brothers and for accusing
him to be one of the suspects, he claims that on
February 14, 2006, he was one of those working
at the concrete chapel being constructed nearby
his residence. He claims further that he just came
only to know about the incident on other day (15
Feb 06) when he was being informed by Kagawad
Pablo Kunanan. That subject CAA vehemently
denied any participation about the incident and
claimed that they only implicated him because he
is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit "O") states
that he is a resident of Brgy. Buhol na Mangga,
San Ildefonso, Bulacan and a member of CAFGU
based at Biak na Bato Detachment. That being a
neighbor, he was very much aware about the
background of the two (2) brothers Raymond and
Reynaldo as active supporters of the CPP NPA in
their Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo.
Being one of the accused, he claims that on 14
February 2006, he was at Brgy. Magmarate, San
Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived
home in their place. He claims further that the only
reason why they implicated him was due to the
fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who killed
his father and for that reason they implicated him
in support of their brother. Subject CAA
vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa
dated May 29, 2006 in (Exhibit "E") states that he
is a resident of Brgy. Marungko, Angat, Bulacan.
He claims that Raymond and Reynaldo Manalo
are familiar to him being his barriomate when he
was still unmarried and he knew them since
childhood. Being one of the accused, he claims
that on 14 February 2006, he was at his residence
in Brgy. Marungko, Angat, Bulacan. He claims that
he was being informed only about the incident
lately and he was not aware of any reason why
the two (2) brothers were being abducted by
alleged members of the military and CAFGU. The
only reason he knows why they implicated him
was because there are those people who are
angry with their family particularly victims of
summary execution (killing) done by their brother
@ KA Bestre Rolando Manalo who is an NPA
leader. He claims further that it was their brother
@ KA BESTRE who killed his father and he was
living witness to that incident. Subject civilian
vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz
dated 29 May 2006 in (Exhibit "F") states that he
is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a
former CAA based at Biak na Bato, San Miguel,
Bulacan. He claims that Raymond and Reynaldo
Manalo are familiar to him being their barrio mate.
He claims further that they are active supporters
of CPP/NPA and that their brother Rolando
Manalo @ KA BESTRE is an NPA leader. Being
one of the accused, he claims that on 14 February
2006, he was in his residence at Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of
the alleged abduction of the two (2) brothers and
learned only about the incident when rumors
reached him by his barrio mates. He claims that
his implication is merely fabricated because of his
relationship to Roman and Maximo who are his
brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the
Chief of Brgy. Tanod and a CAFGU member
based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that he knew very well the
brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are
active supporters or sympathizers of the CPP/NPA
and whose elder brother Rolando Manalo @ KA
BESTRE is an NPA leader operating within the
area. Being one of the accused, he claims that on
14 Feb 2006 he was helping in the construction of
their concrete chapel in their place and he learned
only about the incident which is the abduction of
Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further
that he is truly innocent of the allegation against
him as being one of the abductors and he
considers everything fabricated in order to destroy
his name that remains loyal to his service to the
government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the proof of
linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo
that transpired on 14 February 2006 at Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged
involvement theretofore to that incident is
considered doubtful, hence, no basis to indict
them as charged in this investigation.
Though there are previous grudges between each
families (sic) in the past to quote: the killing of the
father of Randy and Rudy Mendoza by @ KA
BESTRE TN: Rolando Manalo, this will not suffice
to establish a fact that they were the ones who did
the abduction as a form of revenge. As it was also
stated in the testimony of other accused claiming
that the Manalos are active
sympathizers/supporters of the CPP/NPA, this
would not also mean, however, that in the first
place, they were in connivance with the
abductors. Being their neighbors and as members
of CAFGU's, they ought to be vigilant in protecting
their village from any intervention by the leftist
group, hence inside their village, they were fully
aware of the activities of Raymond and Reynaldo
 Manalo in so far as their connection with the
CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case
shows that the alleged charges of abduction
committed by the above named respondents has
not been established in this investigation. Hence,
it lacks merit to indict them for any administrative
punishment and/or criminal liability. It is therefore
concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F.
Dela Cruz, Roman dela Cruz, Randy Mendoza,
and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and
closed.69
In this appeal under Rule 45, petitioners question the
appellate court's assessment of the foregoing evidence
and assail the December 26, 2007 Decision on the
following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN BELIEVING AND
GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN
RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO:
(A) FURNISH TO THE MANALO BROTHER(S)
AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE
INVESTIGATION UNDERTAKEN IN
CONNECTION WITH THEIR CASE, EXCEPT
THOSE ALREADY IN FILE WITH THE COURT;
(B) CONFIRM IN WRITING THE PRESENT
PLACES OF OFFICIAL ASSIGNMENT OF
M/SGT. HILARIO aka ROLLIE CASTILLO AND
DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL
MEDICAL REPORTS, RECORDS AND CHARTS,
AND REPORTS OF ANY TREATMENT GIVEN
OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO
BROTHERS, TO INCLUDE A LIST OF MEDICAL
PERSONNEL (MILITARY AND CIVILIAN) WHO
ATTENDED TO THEM FROM FEBRUARY 14,
2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of
the Rule on the Writ of Amparo (Amparo Rule). Let us
hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring
proposition in the recommendations that resulted from a
two-day National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances sponsored by the
Court on July 16-17, 2007. The Summit was "envisioned
to provide a broad and fact-based perspective on the
issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides
of the political and social spectrum, as well as all the
stakeholders in the justice system" 72 participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo
Rule "in light of the prevalence of extralegal killing and
enforced disappearances."73 It was an exercise for the first
time of the Court's expanded power to promulgate rules to
protect our people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in response
to the Filipino experience of the martial law regime. 74 As
the Amparo Rule was intended to address the intractable
problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings."75 On the other hand, "enforced
disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or
private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of
law."76
The writ of Amparo originated in Mexico. "Amparo" literally
means "protection" in Spanish.77 In 1837, de Tocqueville's
Democracy in America became available in Mexico and
stirred great interest. Its description of the practice of
judicial review in the U.S. appealed to many Mexican
jurists.78 One of them, Manuel Crescencio Rejn, drafted a
constitutional provision for his native state, Yucatan, 79
which granted judges the power to protect all persons in
the enjoyment of their constitutional and legal rights. This
idea was incorporated into the national constitution in
1847, viz:
The federal courts shall protect any inhabitant of
the Republic in the exercise and preservation of
those rights granted to him by this Constitution
and by laws enacted pursuant hereto, against
attacks by the Legislative and Executive powers
of the federal or state governments, limiting
themselves to granting protection in the specific
 case in litigation, making no general declaration
concerning the statute or regulation that motivated
the violation.80
Since then, the protection has been an important part of
Mexican constitutionalism.81 If, after hearing, the judge
determines that a constitutional right of the petitioner is
being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary
measures to restore the petitioner to the full enjoyment of
the right in question. Amparo thus combines the principles
of judicial review derived from the U.S. with the limitations
on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular
cases, but prevents them from using this power to make
law for the entire nation.82
The writ of Amparo then spread throughout the Western
Hemisphere, gradually evolving into various forms, in
response to the particular needs of each country.83 It
became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-attributed "task
of conveying to the world's legal heritage that institution
which, as a shield of human dignity, her own painful
history conceived."84 What began as a protection against
acts or omissions of public authorities in violation of
constitutional rights later evolved for several purposes: (1)
Amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) Amparo contra
leyes for the judicial review of the constitutionality of
statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4)
Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the
protection of peasants' rights derived from the agrarian
reform process.85
In Latin American countries, except Cuba, the writ of
Amparo has been constitutionally adopted to protect
against human rights abuses especially committed in
countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole
gamut of constitutional rights, including socio-economic
rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of
the writ of Amparo only to some constitutional guarantees
or fundamental rights.87
In the Philippines, while the 1987 Constitution does not
explicitly provide for the writ of Amparo, several of the
above Amparo protections are guaranteed by our charter.
The second paragraph of Article VIII, Section 1 of the
1987 Constitution, the Grave Abuse Clause, provides for
the judicial power "to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government." The Clause accords a
similar general protection to human rights extended by the
Amparo contra leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to the
remedy of habeas corpus found in several provisions of
the 1987 Constitution.88 The Clause is an offspring of the
U.S. common law tradition of judicial review, which finds
its roots in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the
Grave Abuse Clause through remedies of injunction or
prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,90 these
remedies may not be adequate to address the pestering
problem of extralegal killings and enforced
disappearances. However, with the swiftness required to
resolve a petition for a writ of Amparo through summary
proceedings and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this hybrid writ
of the common law and civil law traditions - borne out of
the Latin American and Philippine experience of human
rights abuses - offers a better remedy to extralegal killings
and enforced disappearances and threats thereof. The
remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial
evidence to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence
that will require full and exhaustive proceedings. 91
The writ of Amparo serves both preventive and curative
roles in addressing the problem of extralegal killings and
enforced disappearances. It is preventive in that it breaks
the expectation of impunity in the commission of these
offenses; it is curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably yield leads
to subsequent investigation and action. In the long run, the
goal of both the preventive and curative roles is to deter
the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for
"Prohibition, Injunction, and Temporary Restraining
Order"92 to stop petitioners and/or their officers and agents
from depriving the respondents of their right to liberty and
other basic rights on August 23, 2007, 93 prior to the
promulgation of the Amparo Rule. They also sought
ancillary remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access
Orders and other legal and equitable remedies under
Article VIII, Section 5(5) of the 1987 Constitution and Rule
135, Section 6 of the Rules of Court. When the Amparo
Rule came into effect on October 24, 2007, they moved to
have their petition treated as an Amparo petition as it
would be more effective and suitable to the circumstances
of the Manalo brothers' enforced disappearance. The
Court granted their motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners' first argument in disputing the
Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously
erred in believing and giving full faith and credit to
the incredible uncorroborated, contradicted, and
 obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond
Manalo.94
In delving into the veracity of the evidence, we need to
mine and refine the ore of petitioners' cause of action, to
determine whether the evidence presented is metal-strong
to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for
the following causes of action, viz:
Section 1. Petition. - The petition for a writ of
Amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
(emphasis supplied)
Sections 17 and 18, on the other hand, provide for the
degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. - The parties shall establish
their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the
petition are proven by substantial evidence,
the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.
(emphases supplied)
Substantial evidence has been defined as such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.95
After careful perusal of the evidence presented, we affirm
the findings of the Court of Appeals that respondents were
abducted from their houses in Sito Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan on February 14, 2006
and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and
escape of the respondents were narrated by respondent
Raymond Manalo in a clear and convincing manner. His
account is dotted with countless candid details of
respondents' harrowing experience and tenacious will to
escape, captured through his different senses and etched
in his memory. A few examples are the following: "Sumilip
ako sa isang haligi ng kamalig at nakita kong sinisilaban si
Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na
galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang
hiyaw o ungol ni Manuel." 97 "May naiwang mga bakas ng
dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas." 98 "Tumigil ako sa may
palaisdaan kung saan ginamit ko ang bato para tanggalin
ang mga kadena."99 "Tinanong ko sa isang kapit-bahay
kung paano ako makakakuha ng cell phone; sabi ko gusto
kong i-text ang isang babae na nakatira sa malapit na
lugar."100
We affirm the factual findings of the appellate court,
largely based on respondent Raymond Manalo's affidavit
and testimony, viz:
...the abduction was perpetrated by armed men
who were sufficiently identified by the petitioners
(herein respondents) to be military personnel and
CAFGU auxiliaries. Raymond recalled that the six
armed men who barged into his house through
the rear door were military men based on their
attire of fatigue pants and army boots, and the
CAFGU auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula de
la Cruz, all members of the CAFGU and residents
of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during
the abduction. Raymond was sure that three of
the six military men were Ganata, who headed the
abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long
captivity, as narrated by the petitioners, validated
their assertion of the participation of the elements
of the 7th Infantry Division, Philippine Army, and
their CAFGU auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the petitioners
were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka
Bestre, who turned out to be Rolando, the brother
of petitioners.
The efforts exerted by the Military Command to
look into the abduction were, at best, merely
superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the
one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into
the participation of military personnel, but even
then the Provost Marshall should have refrained
from outrightly exculpating the CAFGU auxiliaries
he perfunctorily investigated...
Gen. Palparan's participation in the abduction was
also established. At the very least, he was aware
of the petitioners' captivity at the hands of men in
uniform assigned to his command. In fact, he or
any other officer tendered no controversion to the
firm claim of Raymond that he (Gen. Palparan)
met them in person in a safehouse in Bulacan and
told them what he wanted them and their parents
to do or not to be doing. Gen. Palparan's direct
and personal role in the abduction might not have
been shown but his knowledge of the dire
situation of the petitioners during their long
captivity at the hands of military personnel under
his command bespoke of his indubitable
command policy that unavoidably encouraged and
not merely tolerated the abduction of civilians
without due process of law and without probable
cause.
In the habeas proceedings, the Court, through the
Former Special Sixth Division (Justices Buzon,
chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no
clear and convincing evidence to establish that
M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilario's involvement
could not, indeed, be then established after
Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were
boarded and ferried following the abduction, did
not testify. (See the decision of the habeas
proceedings at rollo, p. 52)
However, in this case, Raymond attested that
Hilario drove the white L-300 van in which the
petitioners were brought away from their houses
on February 14, 2006. Raymond also attested that
Hilario participated in subsequent incidents during
the captivity of the petitioners, one of which was
when Hilario fetched them from Fort Magsaysay
on board a Revo and conveyed them to a
detachment in Pinaud, San Ildefonso, Bulacan
where they were detained for at least a week in a
house of strong materials (Exhibit D, rollo, p. 205)
and then Hilario (along with Efren) brought them
to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the
compound of Kapitan where they were kept for
more or less three months. (Exhibit D, rollo, p.
205) It was there where the petitioners came face
to face with Gen. Palparan. Hilario and Efren also
brought the petitioners one early morning to the
house of the petitioners' parents, where only
Raymond was presented to the parents to relay
the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned
the parents that they would not again see their
sons should they join any rallies to denounce
human rights violations. (Exhibit D, rollo, pp. 205-
206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and
Cabalse) with whom Gen. Palparan conversed on
the occasion when Gen. Palparan required
Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other
occasions when the petitioners saw that Hilario
had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario
in the abduction and forced disappearance of the
petitioners was established. The participation of
other military personnel like Arman, Ganata,
Cabalse and Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court
found them personally involved in the abduction.
We also do, for, indeed, the evidence of their
participation is overwhelming.101
We reject the claim of petitioners that respondent
Raymond Manalo's statements were not corroborated by
other independent and credible pieces of evidence. 102
Raymond's affidavit and testimony were corroborated by
the affidavit of respondent Reynaldo Manalo. The
testimony and medical reports prepared by forensic
specialist Dr. Molino, and the pictures of the scars left by
the physical injuries inflicted on respondents,103 also
corroborate respondents' accounts of the torture they
endured while in detention. Respondent Raymond
Manalo's familiarity with the facilities in Fort Magsaysay
such as the "DTU," as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the "Division Training
Unit,"104 firms up respondents' story that they were
detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-
American Commission on Human Rights, the Commission
considered similar evidence, among others, in finding that
complainant Sister Diana Ortiz was abducted and tortured
by agents of the Guatemalan government. In this case,
Sister Ortiz was kidnapped and tortured in early
November 1989. The Commission's findings of fact were
mostly based on the consistent and credible statements,
written and oral, made by Sister Ortiz regarding her
ordeal.106 These statements were supported by her
recognition of portions of the route they took when she
was being driven out of the military installation where she
was detained.107 She was also examined by a medical
doctor whose findings showed that the 111 circular second
degree burns on her back and abrasions on her cheek
coincided with her account of cigarette burning and torture
she suffered while in detention.108
With the secret nature of an enforced disappearance and
the torture perpetrated on the victim during detention, it
logically holds that much of the information and evidence
of the ordeal will come from the victims themselves, and
the veracity of their account will depend on their credibility
and candidness in their written and/or oral statements.
Their statements can be corroborated by other evidence
such as physical evidence left by the torture they suffered
or landmarks they can identify in the places where they
were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and
testify against them comes as no surprise.
We now come to the right of the respondents to the
privilege of the writ of Amparo. There is no quarrel that the
enforced disappearance of both respondents Raymond
and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while
respondents admit that they are no longer in detention and
are physically free, they assert that they are not "free in
every sense of the word"109 as their "movements continue
to be restricted for fear that people they have named in
their Judicial Affidavits and testified against (in the case of
Raymond) are still at large and have not been held
accountable in any way. These people are directly
connected to the Armed Forces of the Philippines and are,
thus, in a position to threaten respondents' rights to life,
liberty and security."110 (emphasis supplied)
Respondents claim that they are under threat of being
once again abducted, kept captive or even killed,
which constitute a direct violation of their right to security
of person.111
Elaborating on the "right to security, in general,"
respondents point out that this right is "often associated
with liberty;" it is also seen as an "expansion of rights
based on the prohibition against torture and cruel and
unusual punishment." Conceding that there is no right to
security expressly mentioned in Article III of the 1987
Constitution, they submit that their rights "to be kept free
from torture and from incommunicado detention and
solitary detention places112 fall under the general coverage
of the right to security of person under the writ of Amparo."
They submit that the Court ought to give an expansive
recognition of the right to security of person in view of the
State Policy under Article II of the 1987 Constitution which
enunciates that, "The State values the dignity of every
human person and guarantees full respect for human
rights." Finally, to justify a liberal interpretation of the right
to security of person, respondents cite the teaching in
Moncupa v. Enrile113 that "the right to liberty may be
made more meaningful only if there is no undue restraint
by the State on the exercise of that liberty" 114 such as a
requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty" 115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of action
consists in the threat to their right to life and liberty,
and a violation of their right to security.
Let us put this right to security under the lens to
determine if it has indeed been violated as
respondents assert. The right to security or the right to
security of person finds a textual hook in Article III,
Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined personally by the judge...
At the core of this guarantee is the immunity of one's
person, including the extensions of his/her person -
houses, papers, and effects - against government
intrusion. Section 2 not only limits the state's power over a
person's home and possessions, but more importantly,
protects the privacy and sanctity of the person himself. 117
The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz:
118
The purpose of the constitutional guarantee
against unreasonable searches and seizures is to
prevent violations of private security in person and
property and unlawful invasion of the security of
the home by officers of the law acting under
legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams
v. New York, 192 U.S. 858; Alvero v. Dizon, 76
Phil. 637 [1946]). The right to privacy is an
essential condition to the dignity and
happiness and to the peace and security of
every individual, whether it be of home or of
persons and correspondence. (Taada and
Carreon, Political Law of the Philippines, Vol. 2,
139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable
searches and seizures must be deemed absolute
as nothing is closer to a man's soul than the
serenity of his privacy and the assurance of
his personal security. Any interference allowable
can only be for the best causes and reasons. 119
(emphases supplied)
While the right to life under Article III, Section 1 120
guarantees essentially the right to be alive 121 - upon which
the enjoyment of all other rights is preconditioned - the
right to security of person is a guarantee of the secure
quality of this life, viz: "The life to which each person has a
right is not a life lived in fear that his person and property
may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
established and consented to, will protect the security of
his person and property. The ideal of security in life and
property... pervades the whole history of man. It touches
every aspect of man's existence."122 In a broad sense, the
right to security of person "emanates in a person's legal
and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation. It includes the right to exist,
and the right to enjoyment of life while existing, and it is
invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires
of the individual."123
A closer look at the right to security of person would yield
various permutations of the exercise of this right.
First, the right to security of person is "freedom from
fear." In its "whereas" clauses, the Universal Declaration
of Human Rights (UDHR) enunciates that "a world in
which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common
people." (emphasis supplied) Some scholars postulate
that "freedom from fear" is not only an aspirational
principle, but essentially an individual international human
right.124 It is the "right to security of person" as the word
"security" itself means "freedom from fear." 125 Article 3 of
the UDHR provides, viz:
 Everyone has the right to life, liberty and security
of person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article
9(1) of the International Covenant on Civil and Political
Rights (ICCPR) also provides for the right to security of
person, viz:
1. Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of
his liberty except on such grounds and in
accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the
ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom
from fear" is the right and any threat to the rights to life,
liberty or security is the actionable wrong. Fear is a
state of mind, a reaction; threat is a stimulus, a cause of
action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently.
The degree of fear can vary from one person to another
with the variation of the prolificacy of their imagination,
strength of character or past experience with the stimulus.
Thus, in the Amparo context, it is more correct to say that
the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation"
Clause in the latter part of Section 1 of the Amparo Rule is
a form of violation of the right to security mentioned in the
earlier part of the provision.127
Second, the right to security of person is a guarantee
of bodily and psychological integrity or security.
Article III, Section II of the 1987 Constitution guarantees
that, as a general rule, one's body cannot be searched or
invaded without a search warrant. 128 Physical injuries
inflicted in the context of extralegal killings and enforced
disappearances constitute more than a search or invasion
of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of
physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries
constitute a crime against persons because they are an
affront to the bodily integrity or security of a person. 129
Physical torture, force, and violence are a severe invasion
of bodily integrity. When employed to vitiate the free will
such as to force the victim to admit, reveal or fabricate
incriminating information, it constitutes an invasion of both
bodily and psychological integrity as the dignity of the
human person includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which vitiate the
free will shall be used against him (any person
under investigation for the commission of an
offense). Secret detention places, solitary,
incommunicado or other similar forms of detention
are prohibited.
Parenthetically, under this provision, threat and
intimidation that vitiate the free will - although not involving
invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of "freedom
from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under investigation for
the commission of an offense. Victims of enforced
disappearances who are not even under such
investigation should all the more be protected from these
degradations.
An overture to an interpretation of the right to security of
person as a right against torture was made by the
European Court of Human Rights (ECHR) in the recent
case of Popov v. Russia.130 In this case, the claimant,
who was lawfully detained, alleged that the state
authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the
European Convention on Human Rights provides, viz:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law ..." (emphases supplied) Article 3, on
the other hand, provides that "(n)o one shall be subjected
to torture or to inhuman or degrading treatment or
punishment." Although the application failed on the facts
as the alleged ill-treatment was found baseless, the ECHR
relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the
attention of domestic authorities at the time when
they could reasonably have been expected to take
measures in order to ensure his security and to
investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in
custody or to comply with the procedural
obligation under Art.3 to conduct an effective
investigation into his allegations.131 (emphasis
supplied)
The U.N. Committee on the Elimination of Discrimination
against Women has also made a statement that the
protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies
the enjoyment by women of human rights and
fundamental freedoms under general international
law or under specific human rights conventions is
discrimination within the meaning of article 1 of
the Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and
freedoms include . . . the right to liberty and
security of person.132
Third, the right to security of person is a guarantee of
protection of one's rights by the government. In the
context of the writ of Amparo, this right is built into the
guarantees of the right to life and liberty under Article
III, Section 1 of the 1987 Constitution and the right to
security of person (as freedom from threat and
guarantee of bodily and psychological integrity) under
Article III, Section 2. The right to security of person in this
third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II,
Section 11 of the 1987 Constitution. 133 As the government
is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government
does not afford protection to these rights especially when
they are under threat. Protection includes conducting
effective investigations, organization of the government
apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez
Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken in
a serious manner and not as a mere formality
preordained to be ineffective. An investigation
must have an objective and be assumed by the
State as its own legal duty, not as a step taken
by private interests that depends upon the
initiative of the victim or his family or upon their
offer of proof, without an effective search for the
truth by the government.135
This third sense of the right to security of person as a
guarantee of government protection has been interpreted
by the United Nations' Human Rights Committee 136 in not
a few cases involving Article 9 137 of the ICCPR. While the
right to security of person appears in conjunction with the
right to liberty under Article 9, the Committee has ruled
that the right to security of person can exist
independently of the right to liberty. In other words,
there need not necessarily be a deprivation of liberty for
the right to security of person to be invoked. In Delgado
Paez v. Colombia,138 a case involving death threats to a
religion teacher at a secondary school in Leticia,
Colombia, whose social views differed from those of the
Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a
separate paragraph. Its location as a part of
paragraph one could lead to the view that the right
to security arises only in the context of arrest and
detention. The travaux prparatoires indicate that
the discussions of the first sentence did indeed
focus on matters dealt with in the other provisions
of article 9. The Universal Declaration of
Human Rights, in article 3, refers to the right
to life, the right to liberty and the right to
security of the person. These elements have
been dealt with in separate clauses in the
Covenant. Although in the Covenant the only
reference to the right of security of person is
to be found in article 9, there is no evidence
that it was intended to narrow the concept of
the right to security only to situations of
formal deprivation of liberty. At the same time,
States parties have undertaken to guarantee
the rights enshrined in the Covenant. It cannot
be the case that, as a matter of law, States can
ignore known threats to the life of persons
under their jurisdiction, just because that he
or she is not arrested or otherwise detained.
States parties are under an obligation to take
reasonable and appropriate measures to
protect them. An interpretation of article 9
which would allow a State party to ignore
threats to the personal security of non-
detained persons within its jurisdiction would
render totally ineffective the guarantees of the
Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140
which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed,
and restricted in his movements following his release from
detention. In a catena of cases, the ruling of the
Committee was of a similar import: Bahamonde v.
Equatorial Guinea,141 involving discrimination,
intimidation and persecution of opponents of the ruling
party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a
supporter of democratic reform in Zaire; Dias v. Angola,143
involving the murder of the complainant's partner and
the harassment he (complainant) suffered because of
his investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the
chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR)
has interpreted the "right to security" not only as
prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection
of the right to liberty.145 The ECHR interpreted the "right to
security of person" under Article 5(1) of the European
Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case,
the claimant's son had been arrested by state authorities
and had not been seen since. The family's requests for
information and investigation regarding his whereabouts
proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The
ECHR ruled, viz:
... any deprivation of liberty must not only have
been effected in conformity with the substantive
and procedural rules of national law but must
equally be in keeping with the very purpose of
Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that
individual it is incumbent on the authorities to
account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the
authorities to take effective measures to
safeguard against the risk of disappearance
and to conduct a prompt effective
 investigation into an arguable claim that a
person has been taken into custody and has
not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of
person to the case at bar, we now determine whether
there is a continuing violation of respondents' right to
security.
First, the violation of the right to security as freedom
from threat to respondents' life, liberty and security.
While respondents were detained, they were threatened
that if they escaped, their families, including them, would
be killed. In Raymond's narration, he was tortured and
poured with gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A call from a
certain "Mam," who wanted to see him before he was
killed, spared him.
This time, respondents have finally escaped. The
condition of the threat to be killed has come to pass. It
should be stressed that they are now free from captivity
not because they were released by virtue of a lawful order
or voluntarily freed by their abductors. It ought to be
recalled that towards the end of their ordeal, sometime in
June 2007 when respondents were detained in a camp in
Limay, Bataan, respondents' captors even told them that
they were still deciding whether they should be executed.
Respondent Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal
ang mga kadena mga 3 o 4 na araw pagkalipas.
Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.148
The possibility of respondents being executed stared them
in the eye while they were in detention. With their escape,
this continuing threat to their life is apparent, moreso now
that they have surfaced and implicated specific officers in
the military not only in their own abduction and torture, but
also in those of other persons known to have disappeared
such as Sherlyn Cadapan, Karen Empeo, and Manuel
Merino, among others.
Understandably, since their escape, respondents have
been under concealment and protection by private citizens
because of the threat to their life, liberty and security. The
threat vitiates their free will as they are forced to limit their
movements or activities.149 Precisely because respondents
are being shielded from the perpetrators of their
abduction, they cannot be expected to show evidence of
overt acts of threat such as face-to-face intimidation or
written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents'
abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat that
they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security,
and life, actionable through a petition for a writ of Amparo.
Next, the violation of the right to security as
protection by the government. Apart from the failure of
military elements to provide protection to respondents by
themselves perpetrating the abduction, detention, and
torture, they also miserably failed in conducting an
effective investigation of respondents' abduction as
revealed by the testimony and investigation report of
petitioners' own witness, Lt. Col. Ruben Jimenez, Provost
Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very
limited, superficial, and one-sided. He merely relied on the
Sworn Statements of the six implicated members of the
CAFGU and civilians whom he met in the investigation for
the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but
he did not propound a single question to ascertain the
veracity of their statements or their credibility. He did not
call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense
attested that in a Memorandum Directive dated October
31, 2007, he issued a policy directive addressed to the
AFP Chief of Staff, that the AFP should adopt rules of
action in the event the writ of Amparo is issued by a
competent court against any members of the AFP, which
should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant
evidence; identification of witnesses and securing
statements from them; determination of the cause,
manner, location and time of death or disappearance;
identification and apprehension of the person or persons
involved in the death or disappearance; and bringing of
the suspected offenders before a competent court. 150
Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting
on this directive, he immediately caused to be issued a
directive to the units of the AFP for the purpose of
establishing the circumstances of the alleged
disappearance and the recent reappearance of the
respondents, and undertook to provide results of the
investigations to respondents.151 To this day, however,
almost a year after the policy directive was issued by
petitioner Secretary of National Defense on October 31,
2007, respondents have not been furnished the results of
the investigation which they now seek through the instant
petition for a writ of Amparo.
Under these circumstances, there is substantial evidence
to warrant the conclusion that there is a violation of
respondents' right to security as a guarantee of protection
by the government.
In sum, we conclude that respondents' right to security as
"freedom from threat" is violated by the apparent threat to
their life, liberty and security of person. Their right to
security as a guarantee of protection by the government is
likewise violated by the ineffective investigation and
protection on the part of the military.
Finally, we come to the reliefs granted by the Court of
Appeals, which petitioners question.
First, that petitioners furnish respondents all official and
unofficial reports of the investigation undertaken in
connection with their case, except those already in file
with the court.
Second, that petitioners confirm in writing the present
places of official assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court
of Appeals all medical reports, records and charts, and
reports of any treatment given or recommended and
medicines prescribed, if any, to the Manalo brothers,
to include a list of medical personnel (military and
civilian) who attended to them from February 14, 2006
until August 12, 2007.
With respect to the first and second reliefs, petitioners
argue that the production order sought by respondents
partakes of the characteristics of a search warrant. Thus,
they claim that the requisites for the issuance of a search
warrant must be complied with prior to the grant of the
production order, namely: (1) the application must be
under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the
things to be seized; (3) there exists probable cause with
one specific offense; and (4) the probable cause must be
personally determined by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-serving
and vague allegations made by respondent Raymond
Manalo in his unverified declaration and affidavit, the
documents respondents seek to be produced are only
mentioned generally by name, with no other supporting
details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is
not true in the present case as the involvement of
petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production
order under the Amparo Rule should not be confused with
a search warrant for law enforcement under Article III,
Section 2 of the 1987 Constitution. This Constitutional
provision is a protection of the people from the
unreasonable intrusion of the government, not a protection
of the government from the demand of the people such as
respondents.
Instead, the Amparo production order may be likened to
the production of documents or things under Section 1,
Rule 27 of the Rules of Civil Procedure which provides in
relevant part, viz:
Section 1. Motion for production or inspection
order.
Upon motion of any party showing good
cause therefor, the court in which an
action is pending may (a) order any party
to produce and permit the inspection and
copying or photographing, by or on behalf
of the moving party, of any designated
documents, papers, books of accounts,
letters, photographs, objects or tangible
things, not privileged, which constitute or
contain evidence material to any matter
involved in the action and which are in his
possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge
Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and
papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground
that it violated the search and seizure clause. The Court
struck down the argument and held that the subpoena
pertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the
Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff
himself undertook "to provide results of the investigations
conducted or to be conducted by the concerned unit
relative to the circumstances of the alleged disappearance
of the persons in whose favor the Writ of Amparo has
been sought for as soon as the same has been furnished
Higher headquarters."
With respect to the second and third reliefs, petitioners
assert that the disclosure of the present places of
assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, as well as the submission of a list of
medical personnel, is irrelevant, improper, immaterial, and
unnecessary in the resolution of the petition for a writ of
Amparo. They add that it will unnecessarily compromise
and jeopardize the exercise of official functions and duties
of military officers and even unwittingly and unnecessarily
expose them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of
assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and
detention, is relevant in ensuring the safety of respondents
by avoiding their areas of territorial jurisdiction. Such
disclosure would also help ensure that these military
officers can be served with notices and court processes in
relation to any investigation and action for violation of the
respondents' rights. The list of medical personnel is also
relevant in securing information to create the medical
history of respondents and make appropriate medical
interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life,
liberty and security, these rights are snuffed out from
victims of extralegal killings and enforced disappearances.
The writ of Amparo is a tool that gives voice to preys of
silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is
DISMISSED. The Decision of the Court of Appeals dated
December 26, 2007 is affirmed.

SO ORDERED.

G.R. No. 182484 June 17, 2008

DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-

MADRIAGA, LIBERTY M. ASUNCION, LADYLYN
BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA,
EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS,
petitioners,
vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his
capacity as Presiding Judge of RTC Br. 5 Kalibo,
SHERIFF NELSON DELA CRUZ, in his capacity as
Sheriff of the RTC, THE PHILIPPINE NATIONAL
POLICE stationed in Boracay Island, represented by
the PNP STATION COMMANDER, THE HONORABLE
COURT OF APPEALS IN CEBU 18th DIVISION,
SPOUSES GREGORIO SANSON & MA. LOURDES T.
SANSON, respondents.

RESOLUTION

BRION, J.:

Before us for the determination of sufficiency of form and

substance (pursuant to Sections 1 and 4 of Rule 65 of the
Revised Rules of Court; Sections 1 and 5 of the Rule on
the Writ of Amparo;1 and Sections 1 and 6 of the Rule on
the Writ of Habeas Data2) is the petition for certiorari and
for the issuance of the writs of amparo and habeas data
filed by the above-named petitioners against the
Honorable Judge Elmo del Rosario [in his capacity as
presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la
Cruz [in his capacity as Sheriff of the RTC], the Philippine
National Police stationed in Boracay Island, represented
by the PNP Station Commander, the Honorable Court of
Appeals in Cebu, 18th Division, and the spouses Gregorio
Sanson and Ma. Lourdes T. Sanson, respondents.

The petition and its annexes disclose the following

material antecedents:

The private respondents spouses Gregorio Sanson and

Ma. Lourdes T. Sanson (the "private respondents"), filed
with the Fifth Municipal Circuit Trial Court of Buruanga-
Malay, Aklan (the "MCTC") a complaint3 dated 24 April
2006 for forcible entry and damages with a prayer for the
issuance of a writ of preliminary mandatory injunction
against the petitioners Daniel Masangkay Tapuz, Aurora
Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos
Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan
Tapuz and Marian Timbas (the "petitioners") and other
John Does numbering about 120. The private respondents
alleged in their complaint that: (1) they are the registered
owners under TCT No. 35813 of a 1.0093-hectare parcel
of land located at Sitio Pinaungon, Balabag, Boracay,
Malay, Aklan (the "disputed land"); (2) they were the
disputed land's prior possessors when the petitioners -
armed with bolos and carrying suspected firearms and
together with unidentified persons numbering 120 -
entered the disputed land by force and intimidation,
without the private respondents' permission and against
the objections of the private respondents' security men,
and built thereon a nipa and bamboo structure.
In their Answer4 dated 14 May 2006, the petitioners denied
the material allegations of the complaint. They essentially
claimed that: (1) they are the actual and prior possessors
of the disputed land; (2) on the contrary, the private
respondents are the intruders; and (3) the private
respondents' certificate of title to the disputed property is
spurious. They asked for the dismissal of the complaint
and interposed a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January
2007 a decision5 in the private respondents' favor. It found
prior possession - the key issue in forcible entry cases - in
the private respondents' favor, thus:
"The key that could unravel the answer to this
question lies in the Amended Commissioner's
Report and Sketch found on pages 245 to 248 of
the records and the evidence the parties have
submitted. It is shown in the Amended
Commissioner's Report and Sketch that the land
in question is enclosed by a concrete and cyclone
wire perimeter fence in pink and green highlighter
as shown in the Sketch Plan (p. 248). Said
perimeter fence was constructed by the plaintiffs
14 years ago. The foregoing findings of the
Commissioner in his report and sketch
collaborated the claim of the plaintiffs that after
they acquired the land in question on May 27,
1993 through a Deed of Sale (Annex 'A', Affidavit
of Gregorio Sanson, p. 276, rec.), they caused the
construction of the perimeter fence sometime in
1993 (Affidavit of Gregorio Sanson, pp. 271-275,
rec.).
From the foregoing established facts, it could be
safely inferred that the plaintiffs were in actual
physical possession of the whole lot in question
since 1993 when it was interrupted by the
defendants (sic) when on January 4, 2005
claiming to (sic) the Heirs of Antonio Tapuz
entered a portion of the land in question with view
of inhabiting the same and building structures
therein prompting plaintiff Gregorio Sanson to
confront them before BSPU, Police Chief
Inspector Jack L. Wanky and Barangay Captain
Glenn Sacapao. As a result of their
confrontation, the parties signed an Agreement
(Annex 'D', Complaint p. 20) wherein they agreed
to vacate the disputed portion of the land in
question and agreed not to build any structures
thereon.
The foregoing is the prevailing situation of the
parties after the incident of January 4, 2005 when
the plaintiff posted security guards, however,
sometime on or about 6:30 A.M. of April 19, 2006,
the defendants some with bolos and one carrying
a sack suspected to contain firearms with other
John Does numbering about 120 persons by force
and intimidation forcibly entered the premises
along the road and built a nipa and bamboo
structure (Annex 'E', Complaint, p. 11) inside the
lot in question which incident was promptly
reported to the proper authorities as shown by
plaintiffs' Certification (Annex 'F', Complaint, p. 12)
of the entry in the police blotter and on same date
April 19, 2006, the plaintiffs filed a complaint with
the Office of the Lupong Tagapamayapa of
Barangay Balabag, Boracay Island, Malay, Aklan
but no settlement was reached as shown in their
Certificate to File Action (Annex 'G', Complaint, p.
13); hence the present action.
Defendants' (sic) contend in their answer that
'prior to January 4, 2005, they were already
occupants of the property, being indigenous
settlers of the same, under claim of ownership by
open continuous, adverse possession to the
exclusion of other (sic)'. (Paragraph 4, Answer, p.
25).
The contention is untenable. As adverted earlier,
the land in question is enclosed by a perimeter
fence constructed by the plaintiffs sometime in
1993 as noted by the Commissioner in his Report
and reflected in his Sketch, thus, it is safe to
conclude that the plaintiffs where (sic) in actual
physical possession of the land in question from
1993 up to April 19, 2006 when they were ousted
therefrom by the defendants by means of force.
Applying by analogy the ruling of the Honorable
Supreme Court in the case of Molina, et al. vs. De
Bacud, 19 SCRA 956, if the land were in the
possession of plaintiffs from 1993 to April 19,
2006, defendants' claims to an older possession
must be rejected as untenable because
possession as a fact cannot be recognized at the
same time in two different personalities.
Defendants likewise contend that it was the
plaintiffs who forcibly entered the land in question
on April 18, 2006 at about 3:00 o'clock in the
afternoon as shown in their Certification (Annex
'D', Defendants' Position Paper, p. 135, rec.).
The contention is untenable for being inconsistent
with their allegations made to the commissioner
who constituted (sic) the land in question that they
built structures on the land in question only on
April 19, 2006 (Par. D.4, Commissioner's
Amended Report, pp. 246 to 247), after there (sic)
entry thereto on even date.
Likewise, said contention is contradicted by the
categorical statements of defendants' witnesses,
Rowena Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, in their
Joint Affidavit (pp. 143- '144, rec.) [sic]
categorically stated 'that on or about April 19,
2006, a group of armed men entered the property
of our said neighbors and built plastic roofed
tents. These armed men threatened to drive our
said neighbors away from their homes but they
refused to leave and resisted the intruding armed
men'.
From the foregoing, it could be safely inferred that
no incident of forcible entry happened on April 18,
2006 but it was only on April 19, 2006 when the
defendants overpowered by their numbers the
security guards posted by the plaintiffs prior to the
controversy.
Likewise, defendants (sic) alleged burnt and other
structures depicted in their pictures attached as
annexes to their position paper were not noted
and reflected in the amended report and sketch
submitted by the Commissioner, hence, it could
be safely inferred that these structures are built
and (sic) situated outside the premises of the land
in question, accordingly, they are irrelevant to the
instant case and cannot be considered as
evidence of their actual possession of the land in
question prior to April 19, 20066."
The petitioners appealed the MCTC decision to the
Regional Trial Court ("RTC," Branch 6 of Kalibo, Aklan)
then presided over by Judge Niovady M. Marin ("Judge
Marin").
On appeal, Judge Marin granted the private respondents'
motion for the issuance of a writ of preliminary mandatory
injunction through an Order dated 26 February 2007, with
the issuance conditioned on the private respondents'
posting of a bond. The writ7 - authorizing the immediate
implementation of the MCTC decision - was actually
issued by respondent Judge Elmo F. del Rosario (the
"respondent Judge") on 12 March 2007 after the private
respondents had complied with the imposed condition.
The petitioners moved to reconsider the issuance of the
writ; the private respondents, on the other hand, filed a
motion for demolition.
The respondent Judge subsequently denied the
petitioners' Motion for Reconsideration and to Defer
Enforcement of Preliminary Mandatory Injunction in an
Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for
demolition.9 The respondent Judge nevertheless issued
via a Special Order10 a writ of demolition to be
implemented fifteen (15) days after the Sheriff's written
notice to the petitioners to voluntarily demolish their
house/s to allow the private respondents to effectively take
actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the
Court of Appeals, Cebu City, a Petition for Review 11 (under
Rule 42 of the 1997 Rules of Civil Procedure) of the
Permanent Mandatory Injunction and Order of
Demolition of the RTC of Kalibo, Br. 6 in Civil Case
No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued
the Notice to Vacate and for Demolition on 19 March
2008.12
It was against this factual backdrop that the petitioners
filed the present petition last 29 April 2008. The petition
contains and prays for three remedies, namely: a petition
for certiorari under Rule 65 of the Revised Rules of Court;
the issuance of a writ of habeas data under the Rule on
the Writ of Habeas Data; and finally, the issuance of the
writ of amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the
petitioners present factual positions diametrically opposed
to the MCTC's findings and legal reasons. Most
importantly, the petitioners maintain their claims of prior
possession of the disputed land and of intrusion into this
land by the private respondents. The material factual
allegations of the petition - bases as well of the petition for
the issuance of the writ of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed
men sporting 12 gauge shot guns intruded into
the property of the defendants [the land in
dispute]. They were not in uniform. They fired their
shotguns at the defendants. Later the following
day at 2:00 a.m. two houses of the defendants
were burned to ashes.
30. These armed men [without uniforms] removed
the barbed wire fence put up by defendants to
protect their property from intruders. Two of the
armed men trained their shotguns at the
defendants who resisted their intrusion. One of
them who was identified as SAMUEL LONGNO y
GEGANSO, 19 years old, single, and a resident of
Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the
defendants reducing them to ashes. [...]
32. These acts of TERRORISM and (heinous
crime) of ARSON were reported by one of the
HEIRS OF ANTONIO TAPUZ [...]. The terrorists
trained their shotguns and fired at minors
namely IVAN GAJISAN and MICHAEL
MAGBANUA, who resisted their intrusion.
Their act is a blatant violation of the law
penalizing Acts of Violence against women
and children, which is aggravated by the use
of high-powered weapons.
[]
34. That the threats to the life and security of the
poor indigent and unlettered petitioners continue
because the private respondents Sansons have
under their employ armed men and they are
influential with the police authorities owing to their
financial and political clout.
35. The actual prior occupancy, as well as the
ownership of the lot in dispute by defendants and
the atrocities of the terrorists [introduced into the
property in dispute by the plaintiffs] are attested by
witnesses who are persons not related to the
defendants are therefore disinterested witnesses
in the case namely: Rowena Onag, Apolsida
Umambong, Ariel Gac, Darwin Alvarez and
Edgardo Penarada. Likewise, the affidavit of
Nemia T. Carmen is submitted to prove that the
plaintiffs resorted to atrocious acts through hired
men in their bid to unjustly evict the defendants. 13"
The petitioners posit as well that the MCTC has no
jurisdiction over the complaint for forcible entry that the
private respondents filed below. Citing Section 33 of The
Judiciary Reorganization Act of 1980, as amended by
Republic Act No. 7691,14 they maintain that the forcible
entry case in fact involves issues of title to or possession
of real property or an interest therein, with the assessed
value of the property involved exceeding P20,000.00;
thus, the case should be originally cognizable by the RTC.
Accordingly, the petitioners reason out that the RTC - to
where the MCTC decision was appealed - equally has no
jurisdiction to rule on the case on appeal and could not
have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a
writ of habeas data fatally defective, both in
substance and in form. The petition for the issuance
of the writ of amparo, on the other hand, is fatally
defective with respect to content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents
that led to the petition, that the petition for certiorari to
nullify the assailed RTC orders has been filed out of
time. It is not lost on us that the petitioners have a
pending petition with the Court of Appeals (the "CA
petition") for the review of the same RTC orders now
assailed in the present petition, although the petitioners
never disclosed in the body of the present petition the
exact status of their pending CA petition. The CA petition,
however, was filed with the Court of Appeals on 2 August
2007, which indicates to us that the assailed orders (or at
the very least, the latest of the interrelated assailed
orders) were received on 1 August 2007 at the latest. The
present petition, on the other hand, was filed on April 29,
2008 or more than eight months from the time the CA
petition was filed. Thus, the present petition is separated
in point of time from the assumed receipt of the assailed
RTC orders by at least eight (8) months, i.e., beyond the
reglementary period of sixty (60) days 15 from receipt of the
assailed order or orders or from notice of the denial of a
seasonably filed motion for reconsideration.
We note in this regard that the petitioners' counsel stated
in his attached "Certificate of Compliance with Circular #1-
88 of the Supreme Court"16 ("Certificate of Compliance")
that "in the meantime the RTC and the Sheriff issued a
NOTICE TO VACATE AND FOR DEMOLITION not served
to counsel but to the petitioners who sent photo copy of
the same NOTICE to their counsel on April 18, 2008 by
LBC." To guard against any insidious argument that the
present petition is timely filed because of this Notice to
Vacate, we feel it best to declare now that the counting of
the 60-day reglementary period under Rule 65 cannot
start from the April 18, 2008 date cited by the petitioners'
counsel. The Notice to Vacate and for Demolition is not an
order that exists independently from the RTC orders
assailed in this petition and in the previously filed CA
petition. It is merely a notice, made in compliance with one
of the assailed orders, and is thus an administrative
enforcement medium that has no life of its own separately
from the assailed order on which it is based. It cannot
therefore be the appropriate subject of an independent
petition for certiorari under Rule 65 in the context of this
case. The April 18, 2008 date cannot likewise be the
material date for Rule 65 purposes as the above-
mentioned Notice to Vacate is not even directly assailed in
this petition, as the petition's Prayer patently shows. 17
Based on the same material antecedents, we find too that
the petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least,
of forum shopping.
By the petitioners' own admissions, they filed a petition
with the Court of Appeals (docketed as CA - G.R. SP No.
02859) for the review of the orders now also assailed in
this petition, but brought the present recourse to us,
allegedly because "the CA did not act on the petition up to
this date and for the petitioner (sic) to seek relief in the CA
would be a waste of time and would render the case moot
and academic since the CA refused to resolve pending
urgent motions and the Sheriff is determined to enforce a
writ of demolition despite the defect of LACK OF
JURISDICTION."18
Interestingly, the petitioners' counsel - while making this
claim in the body of the petition - at the same time
represented in his Certificate of Compliance19 that:
"x x x
(e) the petitioners went up to the Court of Appeals
to question the WRIT OF PRELIMINARY
INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying
the PETITION because it held that the ORDER
TO VACATE AND FOR DEMOLITION OF THE
HOMES OF PETITIONERS is not capable of
being the subject of a PETITION FOR RELIEF ,
copy of the resolution of the CA is attached
hereto; (underscoring supplied)
(g) Petitioners filed a motion for reconsideration
on August 7, 2007 but up to this date the same
had not been resolved copy of the MR is attached
(sic).
x x x"
The difference between the above representations on
what transpired at the appellate court level is replete with
significance regarding the petitioners' intentions. We
discern -- from the petitioners' act of misrepresenting in
the body of their petition that "the CA did not act on the
petition up to this date" while stating the real Court of
Appeals action in the Certification of Compliance -- the
intent to hide the real state of the remedies the petitioners
sought below in order to mislead us into action on the
RTC orders without frontally considering the action that
the Court of Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to
obtain from us, via the present petition, the same relief
that it could not wait for from the Court of Appeals in CA-
G.R. SP No. 02859. The petitioners' act of seeking against
the same parties the nullification of the same RTC orders
before the appellate court and before us at the same time,
although made through different mediums that are both
improperly used, constitutes willful and deliberate forum
shopping that can sufficiently serve as basis for the
summary dismissal of the petition under the combined
application of the fourth and penultimate paragraphs of
Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65;
and Rule 56, all of the Revised Rules of Court. That a
wrong remedy may have been used with the Court of
Appeals and possibly with us will not save the petitioner
from a forum-shopping violation where there is identity of
parties, involving the same assailed interlocutory orders,
with the recourses existing side by side at the same time.
To restate the prevailing rules, "forum shopping is the
institution of two or more actions or proceedings involving
the same parties for the same cause of action, either
simultaneously or successively, on the supposition that
one or the other court would make a favorable disposition.
Forum shopping may be resorted to by any party against
whom an adverse judgment or order has been issued in
one forum, in an attempt to seek a favorable opinion in
another, other than by appeal or a special civil action for
certiorari. Forum shopping trifles with the courts, abuses
their processes, degrades the administration of justice and
congest court dockets. Willful and deliberate violation of
the rule against it is a ground for summary dismissal of the
case; it may also constitute direct contempt."20
Additionally, the required verification and certification of
non-forum shopping is defective as one (1) of the seven
(7) petitioners - Ivan Tapuz - did not sign, in violation of
Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1,
Rule 65; all in relation with Rule 56 of the Revised Rules
of Court. Of those who signed, only five (5) exhibited their
postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on
its face and on the basis of the supporting attachments, to
be devoid of merit. The MCTC correctly assumed
jurisdiction over the private respondents' complaint, which
specifically alleged a cause for forcible entry and not - as
petitioners may have misread or misappreciated - a case
involving title to or possession of realty or an interest
therein. Under Section 33, par. 2 of The Judiciary
Reorganization Act, as amended by Republic Act (R.A.)
No. 7691, exclusive jurisdiction over forcible entry and
unlawful detainer cases lies with the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts. These first-level courts have had jurisdiction over
these cases - called accion interdictal - even before the
R.A. 7691 amendment, based on the issue of pure
physical possession (as opposed to the right of
possession). This jurisdiction is regardless of the
assessed value of the property involved; the law
established no distinctions based on the assessed value
of the property forced into or unlawfully detained.
Separately from accion interdictal are accion publiciana for
the recovery of the right of possession as a plenary action,
and accion reivindicacion for the recovery of ownership.21
Apparently, these latter actions are the ones the
petitioners refer to when they cite Section 33, par. 3, in
relation with Section 19, par. 2 of The Judiciary
Reorganization Act of 1980, as amended by Republic Act
No. 7691, in which jurisdiction may either be with the first-
level courts or the regional trial courts, depending on the
assessed value of the realty subject of the litigation. As the
complaint at the MCTC was patently for forcible entry, that
court committed no jurisdictional error correctible by
certiorari under the present petition.
In sum, the petition for certiorari should be dismissed
for the cited formal deficiencies, for violation of the
non-forum shopping rule, for having been filed out of
time, and for substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was
originally conceived as a response to the extraordinary
rise in the number of killings and enforced
disappearances, and to the perceived lack of available
and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats
to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under
the prevailing Rules, or as a remedy supplemental to
these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous
and uncertain grounds. Consequently, the Rule on the
Writ of Amparo - in line with the extraordinary character of
the writ and the reasonable certainty that its issuance
demands - requires that every petition for the issuance of
the Pwrit must be supported by justifying allegations of
fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation
is committed with the attendant
circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as well
as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the
petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just
and equitable reliefs."22
The writ shall issue if the Court is preliminarily satisfied
with the prima facie existence of the ultimate facts
determinable from the supporting affidavits that detail the
circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the
aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is
anchored on the factual allegations heretofore quoted, 23
that are essentially repeated in paragraph 54 of the
petition. These allegations are supported by the following
documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena
B. Onag, Apolsida Umambong, Ariel Gac, Darwin
Alvarez and Edgardo Pinaranda, supporting the
factual positions of the petitioners, id., petitioners'
prior possession, private respondents' intrusion
and the illegal acts committed by the private
respondents and their security guards on 19 April
2006;
(b) Unsubscribed Affidavit of Nemia Carmen y
Tapuz, alleging the illegal acts (firing of guns, etc.)
committed by a security guard against minors -
descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y
Samindao, essentially corroborating Nemia's
affidavit;
(d) Certification dated 23 April 2006 issued by
Police Officer Jackson Jauod regarding the
incident of petitioners' intrusion into the disputed
land;
(e) Certification dated 27 April 2006 issued by
Police Officer Allan R. Otis, narrating the
altercation between the Tapuz family and the
security guards of the private respondents,
including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer
Christopher R. Mendoza, narrating that a house
owned by Josiel Tapuz, Jr., rented by a certain
Jorge Buenavente, was accidentally burned by
a fire."
On the whole, what is clear from these statements - both
sworn and unsworn - is the overriding involvement of
property issues as the petition traces its roots to questions
of physical possession of the property disputed by the
private parties. If at all, issues relating to the right to life or
to liberty can hardly be discerned except to the extent that
the occurrence of past violence has been alleged. The
right to security, on the other hand, is alleged only to the
extent of the threats and harassments implied from the
presence of "armed men bare to the waist" and the
alleged pointing and firing of weapons. Notably, none of
the supporting affidavits compellingly show that the
threat to the rights to life, liberty and security of the
petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of
them - the statements of Nemia Carreon y Tapuz and
Melanie Tapuz are practically identical and unsworn. The
Certification by Police Officer Jackson Jauod, on the other
hand, simply narrates what had been reported by one
Danny Tapuz y Masangkay, and even mentions that the
burning of two residential houses was "accidental."
As against these allegations are the cited MCTC factual
findings in its decision in the forcible entry case which
rejected all the petitioners' factual claims. These findings
are significantly complete and detailed, as they were
made under a full-blown judicial process, i.e., after
examination and evaluation of the contending parties'
positions, evidence and arguments and based on the
report of a court-appointed commissioner.
We preliminarily examine these conflicting factual
positions under the backdrop of a dispute (with incidents
giving rise to allegations of violence or threat thereof) that
was brought to and ruled upon by the MCTC;
subsequently brought to the RTC on an appeal that is still
pending; still much later brought to the appellate court
without conclusive results; and then brought to us on
interlocutory incidents involving a plea for the issuance of
the writ of amparo that, if decided as the petitioners
advocate, may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from
satisfied with the prima facie existence of the ultimate
facts that would justify the issuance of a writ of amparo.
Rather than acts of terrorism that pose a continuing threat
to the persons of the petitioners, the violent incidents
alleged appear to us to be purely property-related and
focused on the disputed land. Thus, if the petitioners wish
to seek redress and hold the alleged perpetrators
criminally accountable, the remedy may lie more in the
realm of ordinary criminal prosecution rather than on the
use of the extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the
MCTC findings, as our action may carry the unintended
effect, not only of reversing the MCTC ruling
independently of the appeal to the RTC that is now in
place, but also of nullifying the ongoing appeal process.
Such effect, though unintended, will obviously wreak
havoc on the orderly administration of justice, an
overriding goal that the Rule on the Writ of Amparo does
not intend to weaken or negate.
Separately from these considerations, we cannot fail but
consider too at this point the indicators, clear and patent to
us, that the petitioners' present recourse via the remedy of
the writ of amparo is a mere subterfuge to negate the
assailed orders that the petitioners sought and failed to
nullify before the appellate court because of the use of an
improper remedial measure. We discern this from the
petitioners' misrepresentations pointed out above; from
their obvious act of forum shopping; and from the recourse
itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright
and sufficiently compelling. To be sure, when recourses in
the ordinary course of law fail because of deficient legal
representation or the use of improper remedial measures,
neither the writ of certiorari nor that of amparo -
extraordinary though they may be - will suffice to serve as
a curative substitute. The writ of amparo, particularly,
should not issue when applied for as a substitute for the
appeal or certiorari process, or when it will inordinately
interfere with these processes - the situation obtaining in
the present case.
While we say all these, we note too that the Rule on the
Writ of Amparo provides for rules on the institution of
separate actions,24 for the effect of earlier-filed criminal
actions,25 and for the consolidation of petitions for the
issuance of a writ of amparo with a subsequently filed
criminal and civil action.26 These rules were adopted to
promote an orderly procedure for dealing with petitions for
the issuance of the writ of amparo when the parties resort
to other parallel recourses.
Where, as in this case, there is an ongoing civil process
dealing directly with the possessory dispute and the
reported acts of violence and harassment, we see no point
in separately and directly intervening through a writ of
amparo in the absence of any clear prima facie showing
that the right to life, liberty or security - the personal
concern that the writ is intended to protect - is immediately
in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an
application for the issuance of the writ, in a proper case,
by motion in a pending case on appeal or on certiorari,
applying by analogy the provisions on the co-existence of
the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires
the following material allegations of ultimate facts in a
petition for the issuance of a writ of habeas data:
"(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control
of the data or information, if known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction
of the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and
equitable."
Support for the habeas data aspect of the present petition
only alleges that:
"1. [ ] Similarly, a petition for a WRIT OF
HABEAS DATA is prayed for so that the PNP may
release the report on the burning of the homes of
the petitioners and the acts of violence employed
against them by the private respondents,
furnishing the Court and the petitioners with copy
of the same;
[]
66. Petitioners apply for a WRIT OF HABEAS
DATA commanding the Philippine National Police
[PNP] to produce the police report pertaining to
the burning of the houses of the petitioners in the
land in dispute and likewise the investigation
report if an investigation was conducted by the
PNP."
These allegations obviously lack what the Rule on Writ of
Habeas Data requires as a minimum, thus rendering the
petition fatally deficient. Specifically, we see no concrete
allegations of unjustified or unlawful violation of the right to
privacy related to the right to life, liberty or security. The
petition likewise has not alleged, much less demonstrated,
any need for information under the control of police
authorities other than those it has already set forth as
integral annexes. The necessity or justification for the
issuance of the writ, based on the insufficiency of previous
efforts made to secure information, has not also been
shown. In sum, the prayer for the issuance of a writ of
habeas data is nothing more than the "fishing expedition"
that this Court - in the course of drafting the Rule on
habeas data - had in mind in defining what the purpose of
a writ of habeas data is not. In these lights, the outright
denial of the petition for the issuance of the writ of habeas
data is fully in order.
WHEREFORE, premises considered, we hereby DISMISS
the present petition OUTRIGHT for deficiencies of form
and substance patent from its body and attachments.
SO ORDERED.
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,
vs.
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.
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. 317862 . The assailed decision of the Court
of Appeals upheld the Orders issued by respondents
Judges Hon. Lorenzo B. Veneracion3 and Hon. Jaime T.
Hamoy4 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.
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.
Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-
Vanderlek, Melody K. Lee-Chin, 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-
16746 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.
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
Sheng's 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 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 Cheng's 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 Cheng's death that was to be
published in the newspapers. It was this seemingly
irrational act that piqued private respondents' curiosity, if
not suspicion.7
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 PATIENT'S
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 CHENG's 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.
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 CHENG's 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.
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.
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 CHENG'S true age
at that time was 45 years old.
6. EMMA LEE has no record in the hospital
because, as per complainant's 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 MARCELO's birth on
11 May 1950. KEH SHIOK CHENG's age is 38
years old and at the time of EUSEBIO's 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
EUSEBIO's birth indicate that she had undergone
CEASARIAN SECTION, which Dr. RITA K. LEE
said is not true.
In view of the foregoing facts, the NBI concluded that:
10. In conclusion, as per Chinese General
Hospital Patients Records, it is 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.
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:
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.
SO ORDERED.11
On the other hand, respondent Judge Hamoy issued an
Order dated April 15, 1993 taking cognizance of SP.
PROC. No. C-1674, to wit:
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.
xxx xxx xxx
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 for Certiorari 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.
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 Sheng's 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:
xxx xxx xxx
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
xxx xxx xxx
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 latter's children. There is nothing to impugn as there is
no blood relation at all between Keh Shiok Cheng and
petitioners.19
Further sanctioning private respondents' resort to Rule
108, the Court of Appeals adverted to our ruling in the
leading case of Republic vs. Valencia20 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 petitioner's minor children as
stated in their records of birth 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:
"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 party's case, and where the evidence
has been thoroughly weighed and considered, the
suit or proceeding is 'appropriate.'
The pertinent sections of rule 108 provide:
'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.
"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:
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 RTC-
Kalookan, 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.
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 vs. Republic,25 which is of a later date than
Republic vs. Valencia,26 where this Court reverted to the
doctrine laid down in earlier cases, 27 starting with Ty Kong
Tin vs. Republic,28 prohibiting the extension of the
application of Rule 108 beyond innocuous or harmless
changes or corrections. Petitioners contend that as held in
Go, et al. vs. 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.
At the outset, it should be pointed out that in the cited
case of Labayo-Rowe vs. Republic,30 the reason we
declared null and void the portion of the lower court's
order directing the change of Labayo-Rowe's civil status
and the filiation of one of her children as appearing in the
latter's record of birth, is not because Rule 108 was
inappropriate to effect such changes, but because
Labayo-Rowe's petition before the lower court failed to
implead all indispensable parties to the case.
We explained in this wise:
"x x x 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 x
x.
xxx xxx xxx
"The right of the child Victoria to inherit from her
parents would be substantially impaired if her
status would be changed from 'legitimate' to
'illegitimate'. Moreover, she would be exposed to
humiliation and embarrassment resulting from the
stigma of an illegitimate filiation that she will bear
thereafter. The fact that the notice of hearing of
the petition was published in a newspaper of
general circulation and notice thereof was served
upon the State will not change the nature of the
proceedings taken. Rule 108, like all the other
provisions of the Rules of Court, was promulgated
by the Supreme Court pursuant to its rule-making
authority under Section 13, Article VIII of the 1973
Constitution, which directs that such rules 'shall
not diminish, increase or modify substantive
rights.' If Rule 108 were to be extended beyond
innocuous or harmless changes or corrections of
errors which are visible to the eye or obvious to
the understanding, so as to comprehend
substantial and controversial alterations
 concerning citizenship, legitimacy of paternity or
filiation, or legitimacy of marriage, without
observing the proper proceedings as earlier
mentioned, said rule would thereby become an
unconstitutional exercise which would tend to
increase or modify substantive rights. This
situation is not contemplated under Article 412 of
the Civil Code."31 (italics supplied).
Far from petitioners' theory, this Court's ruling in Labayo-
Rowe vs. Republic32 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. Thus:
"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 x x
x."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 vs. Valencia,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.
It must be conceded, however, that even after Republic
vs. Valencia36 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 vs. Court of
Appeals37 and Republic vs. Labrador38 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 vs. 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:
"This issue has been resolved in Leonor vs. 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 court's ruling granting such petition, the
Court held as follows:
'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 vs. Republic, L-
10869, 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 vs.
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 x x x
.'
'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 Virginia's civil status from married to
single and of their three children from
legitimate to illegitimate x x x '
"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 Zita's
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 vs. Republic40
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:
"x x x 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. vs. Republic42 where the Court said that:
"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 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 (Italics supplied).
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.
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"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."
"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."
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:
"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."
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 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.
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
Article 171 provides:
"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:
"(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."
Petitioner's contention is without merit.
In the recent case of Babiera vs. 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:
"x x x 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
wife's 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
petitioner is an illegitimate child of Hermogena,
but to establish that the former is not the latter's
child at all x x x. ''51
Similarly, we ruled in Benitez-Badua vs. Court of Appeals 52
that:
"Petitioner's insistence on the applicability of
Articles 164, 166, 170 and 171 of the Family Code
III. Petitioners claim that private respondents' cause of
to the case at bench cannot be sustained. x x x.
action had already prescribed as more than five (5) years
had lapsed between the registration of the latest birth
xxx xxx xxx
"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 vs. Intermediate Appellate
Court, 166 SCRA 451, 457 cited in the impugned
decision is apropos, viz:
'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 decedent's 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
among the petitioners in 1960 and the filing of the actions
in December of 1992 and February of 1993.54
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:
"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."
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.55
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 father's
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
mother's (Keh Shiok Cheng's) 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 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 person's
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:
(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 Cheng's
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 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 Cheng's estate which has for its cause of action
the private respondents' right under the New Civil Code to
inherit from their mother's estate.

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. HCISED

WHEREFORE, the petition is hereby DENIED and the

assailed decision of the Court of Appeals dated October
28, 1994 is AFFIRMED.

SO ORDERED.

G.R. No. L-40252 December 29, 1986

ANTONIO CHIAO BEN LIM, petitioner,

vs.
HON. MARIANO A. ZOSA, Judge of the Court of First
Instance of Cebu, Branch V and the local civil
registrar of the City of Cebu, respondents.

CRUZ, J.:

This is an appeal by certiorari from two Orders 1 of the

respondent judge dismissing a petition for the correction of
an allegedly wrong entry in the birth records of Kim
Joseph describing him as a Chinese national instead of a
Filipino citizen.

The petitioner had offered to prove the error through

several pieces of evidence, among them an earlier birth
certificate of Kim Joseph describing him as a Filipino
citizen, the birth certificates of his seven brothers and
sisters all describing them as Filipinos, and a decision of
the Court of Appeals recognizing their grandfather as a
Filipino citizen. 2
On opposition by the local civil registrar of Cebu, 3
however, the respondent judge dismissed the petition and
sustained the contention that only clerical errors were
allowed to be corrected in the summary proceedings
authorized under Article 412 of the Civil Code and Rule
108 of the Rules of Court. Substantial issues like
citizenship were not covered. In effect, it was held the
petition was for a judicial declaration of citizenship, which
was not allowed under existing rules. 4
Article 412 of the Civil Code simply provides: "No entry in
the civil registry shall be changed or corrected without a
judicial order."
In fairness to the respondent judge, there was abundant
jurisprudence to lend support to his Orders at the time
they were issued. Since then, however, the strict doctrine
announced in those cases has been relaxed, most
recently in the case of Republic v. Valencia, 5 supported by
twelve members of this Court with only one other member
not taking part.
In that case (arising, incidentally, also in Cebu City), there
was a petition for the correction in the birth entries of two
persons in the local civil registry, specifically to change
their citizenship from "Chinese" to "Filipino," their status as
children from "legitimate" to "illegitimate," and their
mother's status from "married" to "single." The motion to
dismiss filed by the local civil registrar having been
denied, a full-blown trial was held and the changes sought
were thereafter ordered by the trial court. The Republic of
the Philippines then came to this Court to question the
decision, invoking substantially the same grounds on
which the Orders now being challenged were based.
In a well-reasoned and exhaustive decision, Justice Hugo
E. Gutierrez declared inter alia:
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
established provided the parties aggrieved by the
error avail themselves of the appropriate
adversary proceeding. As a matter of fact, the
opposition of the Solicitor General dated February
20, 1970 while questioning the use of Article 412
of the Civil Code in relation to Rule 108 of the
Revised Rules of Court admits that 'the entries
sought to be corrected should be threshed out in
an appropriate proceeding.
What is meant by 'appropriate adversary
proceedings 'Black's 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. Excludes an adoption
proceeding. (Platt v. Magagnini, 187, p. 716, 718,
110 Was. 39).<re||an1w> 6
xxx xxx xxx
The court's role in hearing the petition to correct
certain entries in the civil registry is to ascertain
the truth about the facts recorded therein.Under
our system of administering justice, truth is best
ascertained or approximated by trial conducted
under the adversary system. 7
xxx xxx xxx
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 party's case, and where the evidence
has been thoroughly weighed and considered, the
suit or proceeding is 'appropriate.'
The pertinent sections of Rule 108 provide:
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 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.
Thus, the persons who must be made parties to a
proceeding concerning the cancellation or
correction of an entry in the civil registrar 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 persons having or claiming any interest under
the entry whose cancellation or correction is
sought.
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.
xxx xxx xxx
We are of the opinion that the petition filed by the
respondent in the lower court by way of a special
proceeding for cancellation and/or correction of
entries in the civil register with the requisite notice
and publication and the recorded proceedings that
actually took place thereafter could very well be
regarded as that proper suit or appropriate action.
8 erroneous entry of whatever nature, procedural
In a number of earlier cases, the Court has ruled that the
birth entry regarding a person's citizenship could not be
changed under Rule 108 as this would involve substantive
rights that the rules of court could not "diminish, increase
or modify" under the Constitution. 9
Thus, in Chua Wee v. Republic, 10 a unanimous Court
declared that, "if Rule 108 were to be extended beyond
innocuous or harmless changes or corrections of errors
which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy
of paternity or filiation, or legitimacy of marriage, said Rule
108 would thereby become unconstitutional for it would be
increasing or modifying substantive rights, which changes
are not authorized under Article 412 of the new Civil
Code."
In Wong v. Republic, 11 however, Justice Vicente Abad
Santos, in a separate concurrence, expressed the view
that Article 412, which Rule 108 was supposed to
implement, "does not say that it applies only to
noncontroversial issues and that the procedure to be used
is summary in nature," adding that "Article 412
contemplates all kinds of issues and all kinds of
procedures." Justice Pacifico de Castro, in a dissenting
opinion, agreed with him and said (speaking also of Article
412) that "no prohibition may be seen from its express
provision, nor by mere implication, against correction of a
substantial error as one affecting the status of a person."
Amplifying on this view, he declared in another dissenting
opinion in Republic v. de la Cruz: 12
It is not accurate to say that Rule 108 would be
rendered unconstitutional if it would allow the
correction of more than mere harmless clerical
error, as it would thereby increase or modify
substantive rights which the Constitution
expressly forbids because Article 412 of the Civil
Code, the substantive law sought to be
implemented by Rule 108, allows only the
correction of innocuous clerical errors not those
affecting the status of persons. As was stressed in
the dissent on the aforesaid Wong Case, Article
412 does not limit in its express terms nor by
mere implication, the correction authorized by it to
that of mere clerical errors. Upon a consideration
of this fact, it would be reasonable and justified to
rule that Article 412 contemplates of correction of
safeguards having only to be provided for, as was
the manifest purpose of Rule 108.
It is worth emphasing that proceedings for the
correction of erroneous entry should not be
 considered as establishing one's status in a legal
manner conclusively beyond dispute or
controversion, for as provided by Article 410 of the
Civil Code, 'the books making up the civil register
and all documents relating thereto ... shall be
prima facie evidence of the facts therein
contained.' Hence, the status as corrected would
not have a superior quality for evidentiary
purpose. Moreover, the correction should not
imply a change of status but a mere rectification of
error to make the matter corrected speak for the
truth. There is, therefore, no increase or
diminution of substantive right, as is the basis for
holding that Rule 108 would be unconstitutional if
held to allow ccrrection of more than mere
harmless and innocuous clerical errors.

The Valencia ruling has in effect adopted the above-stated

views insofar as it now allows changes in the birth entry
regarding a person's citizenship as long as adversary
proceedings are held. Where such a change is ordered,
the Court will not be establishing a substantive right but
only correcting or rectifying an erroneous entry in the civil
registry as authorized by law. In short, Rule 108 of the
Rules of Court provides only the procedure or mechanism
for the proper enforcement of the substantive law
embodied in Article 412 of the Civil Code and so does not
violate the Constitution. We note that in the case at bar
the petition was dismissed outright without a trial being
held, on the justification that it was not permitted. In the
light of the Valencia ruling, the Orders of the respondent
judge must now be reversed, to give way to the
appropriate proceedings necessary to the resolution of the
substantial issue raised by the petitioner. The records
show that the publication requirement has already been
complied with. 13 The next step, therefore, is for the
petitioner and all adverse and interested parties to be
given their day in court in a regular trial on the merits.

WHEREFORE, the challenged Orders are hereby set

aside, and Special Proceeding No. 3596-R of the Regional
Trial Court of Cebu, Branch V, is reinstated for trial on the
merits without delay. No pronouncement as to costs.

SO ORDERED.
 son out of wedlock on May 24, 1992; that she and the
boy's father, Carlos Borbon, were never married; and that
the child is therefore illegitimate and should follow the
mother's surname. The petition impleaded the Local
Registrar of Quezon City and Carlos Villena Borbon as
respondents.3

On April 23, 1997, the trial court issued a notice of hearing

stating:

"Verified petition having been filed by petitioner

Ma. Lourdes Barrientos Eleosida, praying that the
entries in the Certificate of Live Birth of her minor
child, Charles Christian Eleosida Borbon, be
changed and/or corrected, such that, his last
name BORBON be deleted and instead place
therein the name ELEOSIDA, which is the
surname of his mother-petitioner; the entry
"January 10, 1985 Batangas City", be likewise
deleted, since the petitioner and respondent
Carlos Villena Borbon, at the time of the minor's
birth were not legally married; and the surname
BORBON of petitioner Ma. Lourdes E. Borbon
G.R. No. 130277 May 9, 2002
under the column Informant, be also deleted;

MA. LOURDES BARRIENTOS ELEOSIDA, for and in

behalf of her minor child, CHARLES CHRISTIAN
ELEOSIDA, petitioner,
vs.
LOCAL CIVIL REGISTRAR OF QUEZON CITY, and
CARLOS VILLENA BORBON, respondents.
PUNO, J.:
This is a petition for review on certiorari of the Order 1 of
the Regional Trial Court of Quezon City, Branch 89, which
dismissed motu proprio the petition of Ma. Lourdes
Eleosida to correct some entries in the birth certificate of
her son, Charles Christian. The birth certificate shows,
among others, that the child's full name is Charles
Christian Eleosida Borbon. He was born on May 24, 1992
to Ma. Lourdes Barrientos Eleosida and Carlos Villena
Borbon. The birth certificate also indicates that the child's
parents were married on January 10, 1985 in Batangas
City.2
On January 30, 1997, petitioner Ma. Lourdes Eleosida
filed a petition before the Regional Trial Court of Quezon
City seeking to correct the following entries in the birth
certificate of her son, Charles Christian: first, the surname
"Borbon" should be changed to "Eleosida;" second, the
date of the parents' wedding should be left blank; and
third, the informant's name should be "Ma. Lourdes B.
Eleosida," instead of "Ma. Lourdes E. Borbon." In support
of her petition, petitioner alleged that she gave birth to her
NOTICE IS HEREBY GIVEN, that this petition is
set for hearing on June 26, 1997 at 8:30 o'clock in
the morning, in the Session Hall of this Court
sitting at the Ground Floor, Room 118, Hall of
Justice, Quezon City, which is ordered published
once a week for three (3) consecutive weeks, in a
newspaper of general circulation and published in
Metro Manila, to be selected by raffle, at the
expense of the petitioner, at which date, time and
place, the petitioner shall appear and prove her
petition, in that all other persons having or
claiming any interest thereon shall also appear
and show cause why, if any, they have, the
petition shall not be granted.1wphi1.nt
Let copies of this notice be furnished the
petitioner, and together with copies of the petition,
respondent Carlos Villena Borbon; the Offices of
the Local Civil Registrar of Quezon City and the
Solicitor General, who are given fifteen (15) days
from notice of the petition, or from the last date of
publication of such notice, within which to file their
opposition thereto, if any. In the event that the
Solicitor General may not be able to appear on
the scheduled hearing, to designate the City
Prosecutor of Quezon City to appear for and in
behalf of the State.
SO ORDERED."4
On June 26, 1997, the trial court issued another order
setting the date for the presentation of evidence on July
23, 1997. It stated:
"Considering that there is no opposition filed
despite notice to the Solicitor General as
contained in the notice of hearing dated April 23,
1997 requiring that office to file their opposition, if
any, to the petition for correction of entries in the
birth certificate of minor child Charles Christian
Eleosida, the petitioner will be allowed to present
compliance with the jurisdictional requirements
and at the same time initially present evidence on
July 23, 1997, at 8:30 o'clock in the morning." 5
On August 25, 1997, the trial court motu proprio dismissed
the petition for lack of merit. It ruled:
"It is an established jurisprudence that, only
CLERICAL ERRORS OF A HARMLESS AND
INNOCUOUS NATURE like: misspelled name,
occupation of the parents, etc., may be the
subject of a judicial order (contemplated under
Article 412 of the New Civil Code), authorizing
changes or corrections and: NOT as may affect
the CIVIL STATUS, NATIONALITY OR
CITIZENSHIP OF THE PERSONS INVOLVED.
In the present case, it is very clear that the
changes desired by the petitioner will ultimately
affect the CIVIL STATUS OF CHARLES
CHRISTIAN, as she wants the Court to Direct the
Civil Registrar of Quezon City to substitute her
maiden name, ELEOSIDA, with that of BORBON;
to delete the information supplied in ITEM 12,
respecting the date and place of marriage of
parents, on the ground that she was never
married to respondent CARLOS VILLENA
BORBON and amend the information in ITEM 14,
respecting the name of the informant, from MA.
LOURDES E. BORBON to MA. LOURDES B.
ELEOSIDA, and is indicative of petitioner's
intention and device to establish that CHARLES
CHRISTIAN's civil status as ILLEGITIMATE.
With the petition's ultimate purpose on the part of
petitioner to secure judicial order, which would
authorize a change in the civil status of CHARLES
CHRISTIAN, this Court, finds the action improper.
The matters desired to be cancelled and/or
changed by petitioner cannot be considered falling
under the ambit of the words 'clerical errors of a
harmless and innocuous nature.'
WHEREFORE, for LACK OF MERIT, the petition
is now MOTU PROPIO (sic) dismissed."6
Petitioner fled the instant petition for review raising the
issue of whether corrections of entries in the certificate of
live birth pursuant to Article 412 of the Civil Code, in
relation to Rule 108 of the Rules of Court may be allowed
even if the errors to be corrected are substantial and not
merely clerical errors of a harmless and innocuous
nature.7
The Court required the respondents to comment on the
petition. The Office of the Solicitor General (OSG) filed a
Manifestation in Lieu of Comment. The OSG submitted
that even substantial errors in the civil registry may be
corrected provided that the parties aggrieved by the error
avail themselves of the appropriate adversary proceeding.
Thus it argued that even if the petition seeks the
correction and eventual change in the civil status of
Charles Christian, the same can be ordered by the court
as long as all the parties who may be affected by the
entries are notified and represented. 8 Respondent Carlos
Borbon, on the other hand, failed to submit his comment
on the petition despite several notices from this Court.
Hence, on January 24, 2001, the Court dispensed with the
filing of respondent Borbon's comment and gave due
course to the petition.9
We find merit in the petition. Rule 108 of the Revised
Rules of Court provides the procedure for cancellation or
correction of entries in the civil registry. The proceedings
under said rule may either be summary or adversary in
nature. If the correction sought to be made in the civil
register is clerical, then the procedure to be adopted is
summary. If the rectification affects the civil status,
citizenship or nationality of a party, it is deemed
substantial, and the procedure to be adopted is
adversary.10 This is our ruling in Republic vs. Valencia11
where we held that even substantial errors in a civil
registry may be corrected and the true facts established
under Rule 108 provided the parties aggrieved by the
error avail themselves of the appropriate adversary
proceeding. An appropriate adversary suit or proceeding is
one where 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 party's case, and
where the evidence has been thoroughly weighed and
considered. The Court further laid down the procedural
requirements to make the proceedings under Rule 108
adversary, thus:
"The pertinent sections of Rule 108 provide:
 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.1wphi1.nt
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 93)
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, 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.
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'. xxx"12
It is true in the case at bar that the changes sought to be
made by petitioner are not merely clerical or harmless
errors but substantial ones as they would affect the status
of the marriage between petitioner and Carlos Borbon, as
well as the legitimacy of their son, Charles Christian.
Changes of such nature, however, are now allowed under
Rule 108 in accordance with our ruling in Republic vs.
Valencia provided that the appropriate procedural
requirements are complied with. The records show that
upon receipt of the petition, the trial court issued a notice
of hearing setting the hearing on June 26, 1997 at 8:30 in
the morning at Room 118, Hall of Justice, Quezon City.
The trial court likewise ordered the publication of said
notice once a week for three (3) consecutive weeks in a
newspaper of general circulation and its posting in
selected places in Metro Manila. The notice stated that the
petitioner shall prove her petition during said hearing and
all other persons having or claiming any interest thereon
shall also appear and show if there is any reason why the
petition should not be granted. Respondents Carlos
Villena Borbon, the Local Civil Registrar of Quezon City
and the Solicitor General were all furnished with a copy of
the notice of hearing together with a copy of the petition.
On June 26, 1997, the trial court issued a second order
giving the petitioner an opportunity to show compliance
with the jurisdictional requirements and to present
evidence during the hearing set on July 23, 1997. The
foregoing satisfy all the requirements of Rule 108 to make
it an adversary proceeding. It was therefore an error for
the trial court to dismiss the petition motu proprio without
allowing the petitioner to present evidence to support her
petition and all the other persons who have an interest
over the matter to oppose the same.1wphi1.nt
IN VIEW WHEREOF, the petition is GRANTED and the
Order dated August 25, 1997 of the RTC of Quezon City,
Branch 89, subject of the petition at bar is set aside. The
case is REMANDED to the court a quo for further
proceedings.
SO ORDERED.
G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
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 persons 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?

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."

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 mans 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.
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 Peoples 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. Reysio-Cruz, 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.
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. Petitioners misfortune
to be trapped in a mans 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 petitioners first name from
"Rommel Jacinto" to MELY and petitioners
gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari 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 Appeals 7 rendered a
decision8 in favor of the Republic. It ruled that the trial
courts 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 Republics
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
The petition lacks merit.
A Persons 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, 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.
Petitioners 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 ones 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 petitioners 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 prejudice that he might suffer as a result of
using his true and official name.
In sum, the petition in the trial court in so far as it prayed
for the change of petitioners first name was not within that
courts 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
petitioners 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 persons 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 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, 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
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
(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.
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.
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.
"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 term status 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 persons sex is an essential factor in marriage and
family relations. It is a part of a persons 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
petitioners 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
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 persons 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
something that allows a post-operative male-to-female
transsexual to be included in the category "female."
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
petitioners 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 Code 40 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 petitioners 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.

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 statute-based.

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.

G.R. No. 169482 January 29, 2008
IN THE MATTER OF THE PETITION OF HABEAS
CORPUS OF EUFEMIA E. RODRIGUEZ, filed by
EDGARDO E. VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R. PABELLO,
respondents.
DECISION
CORONA, J.:
This is a petition for review1 of the resolutions2 dated
February 2, 2005 and September 2, 2005 of the Court of
Appeals3 in CA-G.R. SP No. 88180 denying the petition
for habeas corpus of Eufemia E. Rodriguez, filed by
petitioner Edgardo Veluz, as well as his motion for
reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly
suffering from a poor state of mental health and
deteriorating cognitive abilities.4 She was living with
petitioner, her nephew, since 2000. He acted as her
guardian.
In the morning of January 11, 2005, respondents Luisa R.
Villanueva and Teresita R. Pabello took Eufemia from
petitioner Veluz house. He made repeated demands for
the return of Eufemia but these proved futile. Claiming that
respondents were restraining Eufemia of her liberty, he
filed a petition for habeas corpus5 in the Court of Appeals
on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present
any convincing proof that respondents (the legally adopted
children of Eufemia) were unlawfully restraining their
mother of her liberty. He also failed to establish his legal
right to the custody of Eufemia as he was not her legal
guardian. Thus, in a resolution dated February 2, 2005, 6
the Court of Appeals denied his petition.
Petitioner moved for reconsideration but it was also
denied.7 Hence, this petition.
Petitioner claims that, in determining whether or not a writ
of habeas corpus should issue, a court should limit itself to
determining whether or not a person is unlawfully being
deprived of liberty. There is no need to consider legal
custody or custodial rights. The writ of habeas corpus is
available not only if the rightful custody of a person is
being withheld from the person entitled thereto but also if
the person who disappears or is illegally being detained is
of legal age and is not under guardianship. Thus, a writ of
habeas corpus can cover persons who are not under the
legal custody of another. According to petitioner, as long
as it is alleged that a person is being illegally deprived of
liberty, the writ of habeas corpus may issue so that his
physical body may be brought before the court that will
determine whether or not there is in fact an unlawful
deprivation of liberty.
In their comment, respondents state that they are the
legally adopted daughters of Eufemia and her deceased
spouse, Maximo Rodriguez. Prior to their adoption,
respondent Luisa was Eufemias half-sister 8 while
respondent Teresita was Eufemias niece and petitioners
sister.9
Respondents point out that it was petitioner and his family
who were staying with Eufemia, not the other way around
as petitioner claimed. Eufemia paid for the rent of the
house, the utilities and other household needs.
Sometime in the 1980s, petitioner was appointed as the
"encargado" or administrator of the properties of Eufemia
as well as those left by the deceased Maximo. As such, he
took charge of collecting payments from tenants and
transacted business with third persons for and in behalf of
Eufemia and the respondents who were the only
compulsory heirs of the late Maximo.
In the latter part of 2002, Eufemia and the respondents
demanded an inventory and return of the properties
entrusted to petitioner. These demands were unheeded.
Hence, Eufemia and the respondents were compelled to
file a complaint for estafa against petitioner in the
Regional Trial Court of Quezon City. Consequently, and by
reason of their mothers deteriorating health, respondents
decided to take custody of Eufemia on January 11, 2005.
The latter willingly went with them. In view of all this,
petitioner failed to prove either his right to the custody of
Eufemia or the illegality of respondents action.
We rule for the respondents.
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived
of his liberty or by which the rightful custody of a person is
being withheld from the one entitled thereto. 10 It is issued
when one is either deprived of liberty or is wrongfully
being prevented from exercising legal custody over
another person.11 Thus, it contemplates two instances: (1)
deprivation of a persons liberty either through illegal
confinement or through detention and (2) withholding of
the custody of any person from someone entitled to such
custody.
In this case, the issue is not whether the custody of
Eufemia is being rightfully withheld from petitioner but
whether Eufemia is being restrained of her liberty.
Significantly, although petitioner admits that he did not
have legal custody of Eufemia, he nonetheless insists that
respondents themselves have no right to her custody.
Thus, for him, the issue of legal custody is irrelevant. What
is important is Eufemias personal freedom.
Fundamentally, in order to justify the grant of the writ of
habeas corpus, the restraint of liberty must be in the
nature of an illegal and involuntary deprivation of freedom
of action.12
In general, the purpose of the writ of habeas
corpus is to determine whether or not a
particular person is legally held. A prime
specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not
merely nominal or moral, illegal restraint of liberty.
"The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom. A
prime specification of an application for a writ of
habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is
to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is
sufficient."13 (emphasis supplied)
In passing upon a petition for habeas corpus, a court or
judge must first inquire into whether the petitioner is being
restrained of his liberty.14 If he is not, the writ will be
refused. Inquiry into the cause of detention will proceed
only where such restraint exists. 15 If the alleged cause is
thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged. 16 Needless to state,
if otherwise, again the writ will be refused.
While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation on the
filing of the petition.17 Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the
petition is presented that, prima facie, the petitioner is
entitled to the writ.18 It is only if the court is satisfied that a
person is being unlawfully restrained of his liberty will the
petition for habeas corpus be granted.19 If the respondents
are not detaining or restraining the applicant or the person
in whose behalf the petition is filed, the petition should be
dismissed.20
In this case, the Court of Appeals made an inquiry into
whether Eufemia was being restrained of her liberty. It
found that she was not:
There is no proof that Eufemia is being
detained and restrained of her liberty by
respondents. Nothing on record reveals that
she was forcibly taken by respondents. On the
contrary, respondents, being Eufemias adopted
children, are taking care of her.21 (emphasis
supplied)
The Court finds no cogent or compelling reason to disturb
this finding.22
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.