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G.R. No.

159747 April 13, 2004


SIMEON V. MARCELO, respondents.



On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo
Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who
occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II


4. The said crime was committed as follows:

4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by
Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint.

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying
Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of
command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives
in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe is the only program that
would solve the ills of society. . . . (Emphasis supplied).

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit:

1. That I am a member of the Communication Electronics and Information Systems Services, Armed Forces of the Philippines
with the rank of Major;

2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP)
Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and
told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP)
pamphlet. I took the pamphlet but never had the time to read it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would
be discussed and that there would be a special guest;

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located
somewhere in San Juan, Metro Manila;
6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns
within the framework of NRP and we were likewise served with dinner;

7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived
together with another fellow who was later introduced as Capt. Turingan;

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan;

9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the
judiciary, the executive branch and the like;

10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this
point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru
force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic
processes because the people who are in power will not give up their positions as they have their vested interests to protect."
After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I
then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung
kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue
further questions;

11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the
government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will
run the new government. He further said that some of us will resign from the military service and occupy civilian positions in
the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next

12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact".
He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife
and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old
alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and
pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape.
He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed;

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I
followed what Senator HONASAN did;

14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "kaya
nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place;

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due
to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain
Alejano that their group had already deeply established their network inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told
me that when the group arrives at the Malacaang Compound for "D-DAY", my task is to switch off the telephone PABX that
serves the Malacaang complex. I told him that I could not do it. No further conversation ensued and he left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes,
Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4th meeting that I attended,
having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the
banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the
letter "I";

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR
GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat".
(Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ
Panel for brevity) sent a subpoena to petitioner for preliminary investigation.
On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's
jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the
Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be
filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to
the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion.

Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply.

On September 10, 2003, the DOJ Panel issued an Order, to wit:

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1,
2003, complainant filed a Comment/Opposition to the said motion.

The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case.

In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample
opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and
controverting evidence on or before September 23, 2003.1

Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel
and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on
the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to
conduct the preliminary investigation.

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted
their respective comments.

The Court heard the parties in oral arguments on the following issues:

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over
the charge of coup d'etat against petitioner;

2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of
1989; and

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the
petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to
conduct preliminary investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are:

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including

2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the
preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is ultra
vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due
to lack of publication, hence null and void.

4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the
jurisdiction to conduct the preliminary investigation.

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the
issue involved therein is determinative of the validity of the preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-
Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases.

The arguments of respondent DOJ Panel are:

1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III,
Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513.

2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual
allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the
acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ
over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code.
It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ
and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and
purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal
Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the
purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion
of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or
rule or any norm of discretion.

The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that
the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the
Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as
amended by R.A. No. 7975 and R.A. No. 8249.

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public
officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB
to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA
627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but
must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman
to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize
DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary
to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be
published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or
penalty. It does not regulate the conduct of persons or the public, in general.

The Court finds the petition without merit.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987
Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides:

Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which
shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions:

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis

and Section 1 of P.D. 1275, effective April 11, 1978, to wit:

SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby
created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be
composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution
Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the
investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under
paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power
to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and
the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the

and Mabanag vs. Lopez Vito.2

The Court is not convinced.

Paragraph (1) of Section 13, Article XI of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper, or inefficient.

does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the
intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the

Instead, paragraph (8) of the same Section 13 of the Constitution provides:

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by

Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of the government, the investigation of such cases.

. (Emphasis supplied)

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and
procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and
Modifying Certain Rules of Procedure of the Ombudsman, to wit:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including
those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or
inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both.

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two
classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The
difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as
distinguished from the authority to prosecute, such cases.

The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator
or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular
capacities or as deputized Ombudsman prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the
Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the
Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between
the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by
regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority
to prosecute cases.

It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence,
focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the

Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigating agency of the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with
other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several
decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared:

A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary
investigation vested on the Ombudsman is exclusive.3

Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case:

Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such
cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the
PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial
courts and municipal circuit trial court.

In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable
by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation
under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take
over at any stage of such investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied)

A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority of Section 13 (1)
of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus:

As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed
in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x
when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also
empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public
official x x x and to recommend his prosecution" (Sec. 13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public
official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the
Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the
performance of official duty. Since the law does not distinguish, neither should we.

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority,
is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others
involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or
dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to
create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or
omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes
perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-
feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of
office" (Sec. 16, R.A. 6770).


Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public
officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or
related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official
powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and honest
investigative body, like the Ombudsman, is greatest.6

At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and the Deloso case.
However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the
Ombudsman to investigate.

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to investigate and
prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary and not an
exclusive authority, thus:

The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any illegal act
or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority
"is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged."

Petitioners finally assert that the information and amended information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545
(1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the part of any
public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the
Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the non-involvement
of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority of the
panel of prosecutors to file and prosecute the information or amended information.

In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of
sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the
investigation.9 (Emphasis supplied)

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial
fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held:

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou.
However, by way of amplification, we feel the need for tracing the history of the legislation relative to the jurisdiction of
Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former.

In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux.

These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan; (b) Pres.
Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree
No. 1860; and (e) Pres. Decree No. 1861.

The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows:

'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise:

'(a) Exclusive original jurisdiction in all cases involving:


(2) Other offenses or felonies committed by public officers and employees in relation to their office,
including those employed in government-owned or controlled corporation, whether simple or complexed
with other crimes, where the penalty prescribed by law is higher that prision correccional or imprisonment
for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned in this
paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six
(6) years or a fine of P6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court."

A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the
Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and the
penalty prescribed be higher then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11

Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is
wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by
public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This
phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the
Ombudsman can acquire primary jurisdiction on its power to investigate.

It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and
the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same
class of persons or things, or object, or cover the same specific or particular subject matter.

It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is
expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi ," or every statute must be so construed
and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of
Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken
into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes
relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied)

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses,
aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have
been committed by public officers or employees in relation to their office.

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not
give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies
such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving
violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in
the exercise of its primary jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their
respective prosecutors in the conduct of their investigations, to wit:


Series of 1995




In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion
centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call
upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his
office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as
"an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose
presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the
OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints
against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and
informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized
prosecutors of the ombudsman.

Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have
agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers
and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to
office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the
ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office
of the ombudsman.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation
to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city
prosecutor, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the
preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal
informations shall be forwarded to the appropriate approving authority.

4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the
provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their
respective offices against public officers and employees.

Manila, Philippines, October 5, 1995.

(signed) (signed)


Secretary Ombudsman
Department of Justice Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the
Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective
territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by
the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary
of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to
dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied)

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses
cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original
jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy
for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his
deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written
authority of the Ombudsman or his deputy.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has
deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him.

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order
No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize
and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against
public officers and employees.

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities
or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-
DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary
investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate
the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in
the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary
investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible.
We agree with and adopt the Ombudsman's dissertation on the matter, to wit:

Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that
OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be

As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954)
that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this,
on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law,
regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties:
said precedent, to date, has not yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any
penal provision or prescribe a mandatory act or prohibit any, under pain or penalty.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that:

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their
duties. (at page 454. emphasis supplied)

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman,
outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of
preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published.14

Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with
salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding
that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31
position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him.

The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that
fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of
the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the
information against the petitioner; and to which court should the information be filed considering the presence of other respondents in
the subject complaint.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

Republic of the Philippines


G.R. No. L-15127 May 30, 1961

EMETERIO CUI, plaintiff-appellant,

ARELLANO UNIVERSITY, defendant-appellee.

G.A.S. Sipin, Jr., for plaintiff-appellant.

E. Voltaire Garcia for defendant-appellee.


Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant Arellano University from
plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon.

In the language of the decision appealed from:

The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the respective
oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff,

before the school year 1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory
law course plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law
studies in the defendant university up to and including the first semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of
the College of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the
defendant university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his
connection with defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos
University, plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the college of law
of the Abad Santos University graduating from the college of law of the latter university.

Plaintiff, during all the time he was studying law in defendant university was awarded scholarship grants, for scholastic merit, so
that his semestral tuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to
him. The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first semester
up to and including the first semester of his last year in the college of law or the fourth year, is in total P1,033.87.

After graduating in law from Abad Santos University he applied to take the bar examination. To secure permission to take the
bar he needed the transcripts of his records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the
needed transcripts. The defendant refused until after he had paid back the P1,033 87 which defendant refunded to him as above
stated. As he could not take the bar examination without those transcripts, plaintiff paid to defendant the said sum under
protest. This is the sum which plaintiff seeks to recover from defendant in this case.

Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the following contract
covenant and agreement:

"In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer to another school
without having refunded to the University (defendant) the equivalent of my scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject of
"Scholarship," addressed to "All heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to
deserving students for excellence in scholarship or for leadership in extra-curricular activities. Such inducements to poor but
gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students
concerned continue in the same school nullifies the principle of merit in the award of these scholarships.

2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The
amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient
students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to
attract and keep students in a school.

3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect that
they could not transfer to other schools since their credentials would not be released unless they would pay the fees
corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being
denied on this ground, it reserves the right to authorize such transfer.

that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on
his right to secure the transcript of his record in defendant University, without being required to refund the sum of P1,033.87; that the
Bureau of Private Schools upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the
latter refused to issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a
written order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial
action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that
he could take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000 as
moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses of litigation.

In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the provisions of its contract
with plaintiff are valid and binding and that the memorandum above-referred to is null and void. It, likewise, set up a counterclaim for
P10,000.00 as damages, and P3,000 as attorney's fees.

The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the former
waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash, is valid or not.

The lower court resolved this question in the affirmative, upon the ground that the aforementioned memorandum of the Director of
Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that, although the contractual
provision "may be unethical, yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and simply
because he wanted to follow the example of his uncle."

Moreover, defendant maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void
because said officer had no authority to issue it, and because it had been neither approved by the corresponding department head nor
published in the official gazette.

We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had sufficient reasons or not
to transfer from defendant University to the Abad Santos University. The nature of the issue before us, and its far reaching effects,
transcend personal equations and demand a determination of the case from a high impersonal plane.

Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the
opinion that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid memorandum merely
incorporates a sound principle of public policy.

As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant,

There is one more point that merits refutation and that is whether or not the contract entered into between Cui and Arellano
University on September 10, 1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245
Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts are limited to a consideration of the
Constitution, the judicial decisions, the statutes, and the practice of government officers.' It might take more than a government
bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of
government officials as one of the four factors in determining a public policy of the state. It has been consistently held in
America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice
will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public
welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A.
811; Veazy vs. Allen, 173 N.Y. 359).

If Arellano University understood clearly the real essence of scholarships and the motives which prompted this office to issue
Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a
direct violation of our Memorandum and an open challenge to the authority of the Director of Private Schools because the
contract was repugnant to sound morality and civic honesty.

And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read:

'In order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing
to be done, contravenes some established interest of society, or is inconsistent with sound policy and good moralsor tends
clearly to undermine the security of individual rights.

The policy enunciated in Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to
keep outstanding students in school to bolster its prestige. In the understanding of that university scholarships award is a business
scheme designed to increase the business potential of an education institution. Thus conceived it is not only inconsistent with
sound policy but also good morals.

But what is morals? Manresa has this definition. It is good customs; those generally accepted principles of morality which have
received some kind of social and practical confirmation.

The practice of awarding scholarships to attract students and keep them in school is not good customs nor has it received some
kind of social and practical confirmation except in some private institutions as in Arellano University. The University of the
Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to
gifted children, does not require scholars to reimburse the corresponding value of the scholarships if they transfer to other
schools. So also with the leading colleges and universities of the United States after which our educational practices or policies
are patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in school for their
propaganda mine but to reward merit or help gifted students in whom society has an established interest or a first lien.
(Emphasis supplied.)

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendant to pay to the
plaintiff the sum of P1,033.87, with interest thereon at the legal rate from September 1, 1954, date of the institution of this case, as well
as the costs, and dismissing defendant's counterclaim. It is so ordered.
Republic of the Philippines


G.R. No. L-65425 November 5, 1987

SANTIAGO), respondents.


In its resolution dated September 27, 1983, the respondent Intermediate Appellate Court, 1 speaking through Justice Porfirio V, Sison,
ordered, in part, the petitioners to accept the sum of P5,600.00 from the private respondent as repurchase price of the lots described in
the "Compraventa" and, thereafter, to execute a Deed of Repurchase to effect transfer over ownership over the same properties to the
private respondent.

This ruling was a complete reversal of the earlier decision, 2 dated June 28, 1.978, penned by Justice Paras, of the Court of Appeals, in
the same case, affirming the trial court's dismissal of the private respondent's complaint.

The petitioners, feeling aggrieved and astonished by the complete turnaround of the respondent court, come to Us with this petition for
review by certiorari.

The antecedent facts are undisputed.

This case brings us back almost half a century ago, on March 21, 1941, when a document entitled "Compraventa," written entirely in the
Spanish language, involving three parcels of land, was executed by the private respondent's predecessors-in-interest, h and his brother,
Luis Santiago, in favor of Cirilio Leal the deceased father of some of the petitioners, Pursuant to this "Compraventa," the title over the
three parcels of land in the name of the vendors was cancelled and a new one was issued in the name of Cirilo Leal who immediately
took possession and exercised ownership over the said lands. When Cirilo died on December 10, 1959, the subject lands were inherited
by his six children, who are among the petitioners, and who caused the consolidation and subdivision of the properties among

Between the years 1960 and 1965, the properties were either mortgaged or leased by the petitioners-children of Cirilo Leal to their co-

Sometime before the agricultural year 1966-1967, Vicente Santiago approached the petitioners and offered re- repurchase the subject
properties. Petitioners, however, refused the offer. Consequently, Vicente Santiago instituted a complaint for specific performance before
the then Court of First Instance of Quezon City on August 2, 1967.

All the trial, the court a quo rendered its decision,-dismissing the complaint on the ground that the same was still premature considering
that there was, as yet, no sale nor any alienation equivalent to a sale. Not satisfied with this decision, the private respondent appealed to
the Court of Appeals and the latter, acting through the Fourth Division and with Justice Edgardo Paras as ponente affirmed the decision
of the court a quo.

The petitioners seasonably filed a motion to amend the dispositive portion of the decision so as to include an order for the cancellation
of the annotations at the back of the Transfer certificates of Title issued in their favor. The private respondent,-on the other hand, filed a-
timely motion for reconsideration of the above decision and an opposition to petitioners' motion to amend. These incidents were not
resolved until then Court of Appeals was abolished and in lieu of which the Intermideate Appellate Court was established In view of the
said reorganization, case was reassigned to the Fourth Civil in this cases Division.
Resolving the abovestated motion for reconsideration, the respondent court, in a resolution penned by Justice Sison and promulgated on
September 27, 1983, ruled, as follows:

WHEREFORE, Our decision of June 28, 1978 is hereby reversed and set aside and another one is rendered ordering:
(1) defendants-appellees surnamed Leal to accept the sum of P5,600.00 from plaintiff-appellant (substituted by Salud
M. Santiago) as repurchase price of the lots described in the "Compraventa" of March 21, 1941, and thereafter to
execute a deed of repurchase sufficient in law to transfer ownership of the properties to appellant Salud M. Santiago,
the same to be done within five (5) days from payment; (2) ordering the same defendants Leals and defendant
Clemente Samario to indemnify appellant in the sum of P3,087.50 as rental for the year 1967-1968 and the same
amount every year thereafter; (3) ordering an the defendants jointly and severally to pay the sum of Pl,500.00 as
attorney's fees and other expenses of litigation; and (4) ordering defendant Register of Deeds of Rizal to cancel
Transfer Certificate of Title No. 42535 in the names of Vicente Santiago and Luis Santiago upon presentation of the
deed of sale herein ordered to be executed by the appellees in favor of Salud M. Santiago and to issue thereof another
Transfer Certificate of Title in the name alone of Salud M. Santiago. No costs here and in the courts (sic) below.


Verily, the well-spring whence the present controversy arose is the abovementioned "Compraventa," more particularly paragraph (b)
thereof, to wit:

xxx xxx xxx

(b) En caso de venta, no podran vender a otros dichos tres lotes de terreno sino al aqui vendedor Vicente Santiago, o
los herederos o sucesores de este por el niismo precio de CINCO MIL SEISCIENTOS PESOS (P5,600.00) siempre y
cuando estos ultimos pueden hacer la compra. 3

xxx xxx xxx

which is now the subject of varying and conflicting interpretations.

xxx xxx xxx

It is admitted by both parties that the phrase "they shall not sell to others these three lots but only to the seller Vicente Santiago or to his
heirs or successors" is an express prohibition against the sale of the lots described in the "Compraventa" to third persons or strangers to the
contract. However, while private respondent naturally lauds the resolution of Justice Sison, which sustains the validity of this prohibition,
the petitioners, on the other hand, endorse the decision penned by Justice Paras, which states, in part:

xxx xxx xxx

Finally, there is grave doubt re the validity of the ostensible resolutory condition here, namely, the prohibition to sell
the lots to persons other than the vendor (appellant); uncertainly, a prohibition to alienate should not exceed at most
a period of twenty years, otherwise there would be subversion of public policy, which naturally frowns on
unwarranted restrictions on the right of ownership. 4

xxx xxx xxx

We agree with the Paras ponencia.

Contracts are generally binding between the parties, their assigns and heirs; however, under Art. 1255 of the Civil Code of Spain, which is
applicable in this instance, pacts, clauses, and conditions which are contrary to public order are null and void, thus, without any binding

Parenthetically, the equivalent provision in the Civil Code of the Philippines is that of Art. 1306, which states: "That contracting parties
may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy. Public order signifies the public weal public policy. 5 Essentially, therefore,
public order and public policy mean one and the same thing. Public policy is simply the English equivalent of "order publico" in Art. 1255
of the Civil Code of Spain. 6

One such condition which is contrary to public policy is the present prohibition to sell to third parties, because the same virtually
amounts to a perpetual restriction to the right of ownership, specifically the owner's right to freely dispose of his properties. This, we
hold that any such prohibition, indefinite and stated as to time, so much so that it shall continue to be applicable even beyond the
lifetime of the original parties to the contract, is, without doubt, a nullity. In the light of this pronouncement, we grant the petitioners'
prayer for the cancellation of the annotations of this prohibition at the back of their Transfer Certificates 'Title.

It will be noted, moreover, that the petitioners have never sold, or even attempted to sell, the properties subject of the "Compraventa. "

We now come to what we believe is the very issue in this case which is, whether or not under the aforequoted paragraph (b) of the
"Compraventa" a right of repurchase in favor of the private respondent exist.

The ruling of the Fourth Division (Justice Paras) is that the said stipulation does not grant a right to repurchase. Contrarily, the resolution
of the Fourth Civil Cases Division (Justice P. V. Sison) interpreted the same provision as granting the right to repurchase subject to a
condition precedent.

Thus, the assailed Resolution, reversing the earlier decision of the same respondent court, ruled

xxx xxx xxx

The all-importartant phrase "en caso de venta," must of necessity refer to the sale of the properties either by Cirilo or
his heirs to the Santiago brothers themselves or to their heirs, including appellants Vicente Santiago including appellants
Vicente Santiago and Salud M Santiago, for the same sum of P5,600.00, "siempre y cuando estos ultimos pueden hacer
la compra" (when the latter shall be able to buy it).

xxx xxx xxx

... We repeat, The words envision the situation contemplated by the contracting parties themselves, the resale of the
lots to their owners, and NOT to a sale of the lots to third parties or strangers to the contracts. ... 7

xxx xxx xxx

The law provides that for conventional redemption to take place, the vendor should reserve, in no uncertain terms, the right to
repurchase the thing sold.8 Thus, the right to redeem must be expressly stipulated in the contract of sale in order that it may have legal

In the case before us, we cannot and any express or implied grant of a right to repurchase, nor can we infer, from any word or words in
the questioned paragraph, the existence of any such right. The interpretation in the resolution (Justice Sison) is rather strained. The phrase
"in case case" of should be construed to mean "should the buyers wish to sell which is the plain and simple import of the words, and not
"the buyers should sell," which is clearly a contorted construction of the same phrase. The resort to Article 1373 of the Civil Code of the
Philippines is erroneous. The subject phrase is patent and unambiguous, hence, it must not be given another interpretation

But even assuming that such a right of repurchase is granted under the "Compraventa," the petitioner correctly asserts that the same has
already prescribed. Under Art. 1508 of the Civil Code of Spain (Art,. 1606 of the Civil Code of the Philippines), the right to redeem or
repurchase, in the absence of an express agreement as to time, shall last four years from the date of the contract. In this case then, the
right to repurchase, if it was at four guaranteed under in the "Compraventa," should have been exercise within four years from March 21,
1941 (indubitably the date of execution of the contract), or at the latest in 1945.

In the respondent court's resolution, it is further ruled that the right to repurchase was given birth by the condition precedent provided
for in the phrase "siempre y cuando estos ultimos pueden hacer la compra" (when the buyer has money to buy). In other words, it is the
respondent court's contention that the right may be exercised only when the buyer has money to buy. If this were so, the second
paragraph of Article 1508 would apply there is agreement as to the time, although it is indefinite, therefore, the right should be
exercised within ten years, because the law does not favor suspended ownership. Since the alleged right to repurchase was attempted to
be exercised by Vicente Santiago only in 1966, or 25 years from the date of the contract, the said right has undoubtedly expired.

WHEREFORE, in view of the foregoing, the Resolution dated September 27, 1983, of the respondent court is SET ASIDE and the Decision
promulgated on June 28, 1978 is hereby REINSTATED. The annotations of the prohibition to sell at the back of TCT Nos. 138837,
138838, 138839, 138840, 138841, and 138842 are hereby ordered CANCELLED. Costs against the private respondent.

Republic of the Philippines


G.R. No. L-68470 October 8, 1985


HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and
RICHARD UPTON respondents.


In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983
and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion
for Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that
they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two
children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982;
and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in
Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and
asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage
the conjugal property.

Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings
before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11,

The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the
Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are
neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion
was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari
proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of
jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider
the petition filed in this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he
made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not
established through conjugal funds, and that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to
public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent,
after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other
regime. The pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the
Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San
Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of
incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly stated in
the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in
the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things
necessary and proper to represent me, without further contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the
Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the
policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may
obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this
case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce
dissolves the marriage.

As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to
change the existing status or domestic relation of husband and wife, and to free them both from the bond. The
marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not
marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation
before said Court from asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still
subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of
his Court.

Without costs.

Republic of the Philippines


G.R. No. L-23678 June 6, 1967


EDWARD A. BELLIS, ET AL., heirs-appellees.


This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964,
approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he
divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of
administration are paid for, his distributable estate should be divided, in trust, in the following order and manner:

(a) $240,000.00 to his first wife, Mary E. Mallen;

(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and

(c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the
Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the
form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it
released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three
requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of
Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to
her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the
testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven
legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the
ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted
on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order
overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon
Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to
this Court to raise the issue of which law must apply Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a
domicile of another.

In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So
that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same
would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi
would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law
rule of Texas, it should not be presumed different from ours.

Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to
Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said
property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed
upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.

Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated
Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art.
10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific
provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added
a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not
intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine
estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's
intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867,
870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with
his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16
of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there
are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

G.R. No. 132344 February 17, 2000


ROMEO A. JADER, respondent.


May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the
requirements for graduation when such is not the case? This is the issue in the instant petition for review premised on the following
undisputed facts as summarized by the trial court and adopted by the Court of Appeals (CA),1 to wit:

Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first semester of his last year (School year
1987-1988), he failed to take the regular final examination in Practice Court I for which he was given an incomplete grade
(Exhibits "2", also Exhibit "H"). He enrolled for the second semester as fourth year law student (Exhibit "A") and on February 1,
1988 he filed an application for the removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits "H-2", also
Exhibit "2") which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the examination on
March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a grade of five (5). (Exhibits "H-4", also
Exhibits "2-L", "2-N").1wphi1.nt

In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who among the fourth year
students should be allowed to graduate. The plaintiff's name appeared in the Tentative List of Candidates for graduation for the
Degree of Bachelor of Laws (LL.B) as of Second Semester (1987-1988) with the following annotation:


Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with S.O. (Exhibits "3", "3-C-1", "3-C-2").

The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was scheduled on the 16th of April
1988 at 3:00 o'clock in the afternoon, and in the invitation for that occasion the name of the plaintiff appeared as one of the
candidates. (Exhibits "B", "B-6", "B-6-A"). At the foot of the list of the names of the candidates there appeared however the
following annotation:

This is a tentative list Degrees will be conferred upon these candidates who satisfactorily complete requirements as
stated in the University Bulletin and as approved of the Department of Education, Culture and Sports (Exhibit "B-7-A").

The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus, during the program of which
he went up the stage when his name was called, escorted by her (sic) mother and his eldest brother who assisted in placing the
Hood, and his Tassel was turned from left to right, and he was thereafter handed by Dean Celedonio a rolled white sheet of
paper symbolical of the Law Diploma. His relatives took pictures of the occasion (Exhibits "C" to "C-6", "D-3" to "D-11").

He tendered a blow-out that evening which was attended by neighbors, friends and relatives who wished him good luck in the
forthcoming bar examination. There were pictures taken too during the blow-out (Exhibits "D" to "D-1").

He thereafter prepared himself for the bar examination. He took a leave of absence without pay from his job from April 20,
1988 to September 30, 1988 (Exhibit "G") and enrolled at the pre-bar review class in Far Eastern University. (Exhibits "F" to "F-
2"). Having learned of the deficiency he dropped his review class and was not able to take the bar examination.2
Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental anguish, serious anxiety, besmirched
reputation, wounded feelings and sleepless nights when he was not able to take the 1988 bar examinations arising from the latter's
negligence. He prayed for an award of moral and exemplary damages, unrealized income, attorney's fees, and costs of suit.

In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to believe that he completed the
requirements for a Bachelor of Laws degree when his name was included in the tentative list of graduating students. After trial, the lower
court rendered judgment as follows:

WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and against the defendant ordering
the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal
rate of interest from the filing of the complaint until fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as
attorney's fees and the cost of suit.

Defendant's counterclaim is, for lack of merit, hereby dismissed.


which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The dispositive portion of the CA
decision reads:

WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED with the MODIFICATION that
defendant-appellee, in addition to the sum adjudged by the lower court in favor of plaintiff-appellant, is also ORDERED to pay
plaintiff-appellant the amount of FIFTY THOUSAND (P50,000.00) PESOS for moral damages. Costs against defendant-appellee.


Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a petition for review under Rule 45 of
the Rules of Court, arguing that it has no liability to respondent Romeo A. Jader, considering that the proximate and immediate cause of
the alleged damages incurred by the latter arose out of his own negligence in not verifying from the professor concerned the result of his
removal exam.

The petition lacks merit.


When a student is enrolled in any educational or learning institution, a contract of education is entered into between said institution and
the student. The professors, teachers or instructors hired by the school are considered merely as agents and administrators tasked to
perform the school's commitment under the contract. Since the contracting parties are the school and the student, the latter is not duty-
bound to deal with the former's agents, such as the professors with respect to the status or result of his grades, although nothing prevents
either professors or students from sharing with each other such information.

The Court takes judicial notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her
students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice and information to each
and every student as to whether he or she had already complied with all the requirements for the conferment of a degree or whether
they would be included among those who will graduate.

Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the
educational institution's way of announcing to the whole world that the students included in the list of those who will be conferred a
degree during the baccalaureate ceremony have satisfied all the requirements for such degree.

Prior or subsequent to the ceremony, the school has the obligation to promptly inform the student of any problem involving the latter's
grades and performance and also most importantly, of the procedures for remedying the same.

Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already
commenced preparing for the bar exams, cannot be said to have acted in good faith. Absence of good faith must be sufficiently
established for a successful prosecution by the aggrieved party in a suit for abuse of right under Article 19 of the Civil Code.

Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of
the law, together with the absence of all information or belief of facts, would render the transaction unconscientious.5 It is the school
that has access to those information and it is only the school that can compel its professors to act and comply with its rules, regulations
and policies with respect to the computation and the prompt submission of grades. Students do not exercise control, much less influence,
over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their
compliance with the school's rules and orders. Being the party that hired them, it is the school that exercises general supervision and
exclusive control over the professors with respect to the submission of reports involving the students' standing. Exclusive control means
that no other person or entity had any control over the instrumentality which caused the damage or injury.6

The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and
the supervision of faculty and student services.7 He must see to it that his own professors and teachers, regardless of their status or
position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the
rules of the school, for instance by not promptly submitting a student's grade, is not only imputable to the professor but is an act of the
school, being his employer.

Considering further, that the institution of learning involved herein is a university which is engaged in legal education, it should have
practiced what it inculcates in its students, more specifically the principle of good dealings enshrined in Articles 19 and 20 of the Civil
Code which states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the

Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is
impossible for human foresight to provide specifically in statutory law.8 In civilized society, men must be able to assume that others will
do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act
affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with
whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance
under conditions of civilized society.9 Schools and professors cannot just take students for granted and be indifferent to them, for
without the latter, the former are useless.

Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the
former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission
can support a claim for damages.10 Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of
the cause naturally calculated to produce them would make the erring party liable.11

Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It
cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after
graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades at any time because a
student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner's
liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing
that he had satisfied all requirements for the course. Worth quoting is the following disquisition of the respondent court:

It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been informed during the
deliberation that the professor in Practice Court I gave plaintiff-appellant a failing grade. Yet, defendant-appellee still did not
inform plaintiff-appellant of his failure to complete the requirements for the degree nor did they remove his name from the
tentative list of candidates for graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant
failed in Practice Court I, again included plaintiff-appellant's name in the "tentative list of candidates for graduation which was
prepared after the deliberation and which became the basis for the commencement rites program. Dean Tiongson reasons out
that plaintiff-appellant's name was allowed to remain in the tentative list of candidates for graduation in the hope that the latter
would still be able to remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did not
explain how plaintiff appellant Jader could have done something to complete his deficiency if defendant-appellee university did
not exert any effort to inform plaintiff-appellant of his failing grade in Practice Court I.12

Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to
respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it.13 The modern
tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit.14 If mere fault or
negligence in one's acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him
liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in
good faith, but not when he acts with negligence or abuse.15

However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual damages, we hold that respondent
should NOT have been awarded moral damages. We do not agree with the Court of Appeals' findings that respondent suffered shock,
trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very
least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar
examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those
pertaining to his academic achievement, are in order. Given these considerations, we fail to see how respondent could have suffered
untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If
respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the
requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does
not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of
requirements which the prospective examinee must meet.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner is ORDERED to PAY
respondent the sum of Thirty-five Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per annum computed
from the date of filing of the complaint until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs
of the suit. The award of moral damages is DELEIED.1wphi1.nt


Republic of the Philippines



G.R. No. 81262 August 25, 1989


Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio Corporation (GLOBE MACKAY) in a
dual capacity as a purchasing agent and administrative assistant to the engineering operations manager. In 1972, GLOBE MACKAY
discovered fictitious purchases and other fraudulent transactions for which it lost several thousands of pesos.

According to private respondent it was he who actually discovered the anomalies and reported them on November 10, 1972 to his
immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry who was then the Executive Vice-President and General
Manager of GLOBE MACKAY.

On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry confronted him by stating that he
was the number one suspect, and ordered him to take a one week forced leave, not to communicate with the office, to leave his table
drawers open, and to leave the office keys.

On November 20, 1972, when private respondent Tobias returned to work after the forced leave, petitioner Hendry went up to him
and called him a "crook" and a "swindler." Tobias was then ordered to take a lie detector test. He was also instructed to submit specimen
of his handwriting, signature, and initials for examination by the police investigators to determine his complicity in the anomalies.

On December 6,1972, the Manila police investigators submitted a laboratory crime report (Exh. "A") clearing private respondent of
participation in the anomalies.

Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G. Fernandez, who on December 10, 1972,
submitted a report (Exh. "2") finding Tobias guilty. This report however expressly stated that further investigation was still to be

Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum suspending Tobias from work preparatory to the filing of
criminal charges against him.

On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after investigating other documents
pertaining to the alleged anomalous transactions, submitted a second laboratory crime report (Exh. "B") reiterating his previous finding
that the handwritings, signatures, and initials appearing in the checks and other documents involved in the fraudulent transactions were
not those of Tobias. The lie detector tests conducted on Tobias also yielded negative results.
Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the report of the private investigator,
was, by its own terms, not yet complete, petitioners filed with the City Fiscal of Manila a complaint for estafa through falsification of
commercial documents, later amended to just estafa. Subsequently five other criminal complaints were filed against Tobias, four of which
were for estafa through Falsification of commercial document while the fifth was for of Article 290 of' the Revised Penal Code
(Discovering Secrets Through Seizure of Correspondence).lwph1.t Two of these complaints were refiled with the Judge Advocate
General's Office, which however, remanded them to the fiscal's office. All of the six criminal complaints were dismissed by the fiscal.
Petitioners appealed four of the fiscal's resolutions dismissing the criminal complaints with the Secretary of Justice, who, however,
affirmed their dismissal.

In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his employment has been terminated
effective December 13, 1972. Whereupon, Tobias filed a complaint for illegal dismissal. The labor arbiter dismissed the complaint. On
appeal, the National Labor Relations Commission (NLRC) reversed the labor arbiter's decision. However, the Secretary of Labor, acting
on petitioners' appeal from the NLRC ruling, reinstated the labor arbiter's decision. Tobias appealed the Secretary of Labor's order with
the Office of the President. During the pendency of the appeal with said office, petitioners and private respondent Tobias entered into a
compromise agreement regarding the latter's complaint for illegal dismissal.

Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO). However, petitioner Hendry, without
being asked by RETELCO, wrote a letter to the latter stating that Tobias was dismissed by GLOBE MACKAY due to dishonesty.

Private respondent Tobias filed a civil case for damages anchored on alleged unlawful, malicious, oppressive, and abusive acts of
petitioners. Petitioner Hendry, claiming illness, did not testify during the hearings. The Regional Trial Court (RTC) of Manila, Branch IX,
through Judge Manuel T. Reyes rendered judgment in favor of private respondent by ordering petitioners to pay him eighty thousand
pesos (P80,000.00) as actual damages, two hundred thousand pesos (P200,000.00) as moral damages, twenty thousand pesos
(P20,000.00) as exemplary damages, thirty thousand pesos (P30,000.00) as attorney's fees, and costs. Petitioners appealed the RTC
decision to the Court of Appeals. On the other hand, Tobias appealed as to the amount of damages. However, the Court of Appeals, an
a decision dated August 31, 1987 affirmed the RTC decision in toto. Petitioners' motion for reconsideration having been denied, the
instant petition for review on certiorari was filed.

The main issue in this case is whether or not petitioners are liable for damages to private respondent.

Petitioners contend that they could not be made liable for damages in the lawful exercise of their right to dismiss private respondent.

On the other hand, private respondent contends that because of petitioners' abusive manner in dismissing him as well as for the inhuman
treatment he got from them, the Petitioners must indemnify him for the damage that he had suffered.

One of the more notable innovations of the New Civil Code is the codification of "some basic principles that are to be observed for the
rightful relationship between human beings and for the stability of the social order." [REPORT ON THE CODE COMMISSION ON THE
PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the old Code which
merely stated the effects of the law, but failed to draw out its spirit, incorporated certain fundamental precepts which were "designed to
indicate certain norms that spring from the fountain of good conscience" and which were also meant to serve as "guides for human
conduct [that] should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and
dominance of justice" (Id.) Foremost among these principles is that pronounced in Article 19 which provides:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act
with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on
all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal
because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a
manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of
human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages
under either Article 20 or Article 21 would be proper.

Article 20, which pertains to damage arising from a violation of law, provides that:

Art. 20. Every person who contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter
for the same.
However, in the case at bar, petitioners claim that they did not violate any provision of law since they were merely exercising their legal
right to dismiss private respondent. This does not, however, leave private respondent with no relief because Article 21 of the Civil Code
provides that:

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.

This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury" [Id.] should "vouchsafe adequate legal remedy for that untold number of moral
wrongs which it is impossible for human foresight to provide for specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No.
L-27155, May 18,1978, 83 SCRA 237, 247].

In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. While the
Court has not hesitated to apply Article 19 whether the legal and factual circumstances called for its application [See for e.g., Velayo v.
Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250,
December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391; United General Industries, Inc, v. Paler
G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether
or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision
of law, depends on the circumstances of each case. And in the instant case, the Court, after examining the record and considering certain
significant circumstances, finds that all petitioners have indeed abused the right that they invoke, causing damage to private respondent
and for which the latter must now be indemnified.

The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who reported the possible existence of
anomalous transactions, petitioner Hendry "showed belligerence and told plaintiff (private respondent herein) that he was the number
one suspect and to take a one week vacation leave, not to communicate with the office, to leave his table drawers open, and to leave his
keys to said defendant (petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute. But regardless of
whether or not it was private respondent Tobias who reported the anomalies to petitioners, the latter's reaction towards the former
upon uncovering the anomalies was less than civil. An employer who harbors suspicions that an employee has committed dishonesty
might be justified in taking the appropriate action such as ordering an investigation and directing the employee to go on a leave.
Firmness and the resolve to uncover the truth would also be expected from such employer. But the high-handed treatment accorded
Tobias by petitioners was certainly uncalled for. And this reprehensible attitude of petitioners was to continue when private respondent
returned to work on November 20, 1972 after his one week forced leave. Upon reporting for work, Tobias was confronted by Hendry
who said. "Tobby, you are the crook and swindler in this company." Considering that the first report made by the police investigators
was submitted only on December 10, 1972 [See Exh. A] the statement made by petitioner Hendry was baseless. The imputation of guilt
without basis and the pattern of harassment during the investigations of Tobias transgress the standards of human conduct set forth in
Article 19 of the Civil Code. The Court has already ruled that the right of the employer to dismiss an employee should not be confused
with the manner in which the right is exercised and the effects flowing therefrom. If the dismissal is done abusively, then the employer is
liable for damages to the employee [Quisaba v. Sta. Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA
771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA 107] Under the circumstances of the
instant case, the petitioners clearly failed to exercise in a legitimate manner their right to dismiss Tobias, giving the latter the right to
recover damages under Article 19 in relation to Article 21 of the Civil Code.

But petitioners were not content with just dismissing Tobias. Several other tortious acts were committed by petitioners against Tobias
after the latter's termination from work. Towards the latter part of January, 1973, after the filing of the first of six criminal complaints
against Tobias, the latter talked to Hendry to protest the actions taken against him. In response, Hendry cut short Tobias' protestations by
telling him to just confess or else the company would file a hundred more cases against him until he landed in jail. Hendry added that,
"You Filipinos cannot be trusted." The threat unmasked petitioner's bad faith in the various actions taken against Tobias. On the other
hand, the scornful remark about Filipinos as well as Hendry's earlier statements about Tobias being a "crook" and "swindler" are clear
violations of 'Tobias' personal dignity [See Article 26, Civil Code].

The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in October 1974, stating that Tobias had
been dismissed by GLOBE MACKAY due to dishonesty. Because of the letter, Tobias failed to gain employment with RETELCO and as a
result of which, Tobias remained unemployed for a longer period of time. For this further damage suffered by Tobias, petitioners must
likewise be held liable for damages consistent with Article 2176 of the Civil Code. Petitioners, however, contend that they have a "moral,
if not legal, duty to forewarn other employers of the kind of employee the plaintiff (private respondent herein) was." [Petition, p. 14;
Rollo, p. 15]. Petitioners further claim that "it is the accepted moral and societal obligation of every man to advise or warn his fellowmen
of any threat or danger to the latter's life, honor or property. And this includes warning one's brethren of the possible dangers involved
in dealing with, or accepting into confidence, a man whose honesty and integrity is suspect" [Id.]. These arguments, rather than justify
petitioners' act, reveal a seeming obsession to prevent Tobias from getting a job, even after almost two years from the time Tobias was

Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias. Petitioners contend that there is no case
against them for malicious prosecution and that they cannot be "penalized for exercising their right and prerogative of seeking justice by
filing criminal complaints against an employee who was their principal suspect in the commission of forgeries and in the perpetration of
anomalous transactions which defrauded them of substantial sums of money" [Petition, p. 10, Rollo, p. 11].

While sound principles of justice and public policy dictate that persons shall have free resort to the courts for redress of wrongs and
vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)], the right to institute criminal prosecutions can not be
exercised maliciously and in bad faith [Ventura v. Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila
Electric Co., G.R. No. L-13016, May 31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints should not be used as
a weapon to force an alleged debtor to pay an indebtedness. To do so would be a clear perversion of the function of the criminal
processes and of the courts of justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA 536 the Court upheld the
judgment against the petitioner for actual and moral damages and attorney's fees after making a finding that petitioner, with persistence,
filed at least six criminal complaints against respondent, all of which were dismissed.

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design to vex and humiliate a person
and that it was initiated deliberately by the defendant knowing that the charges were false and groundless [Manila Gas Corporation v.
CA, G.R. No. L-44190, October 30,1980, 100 SCRA 602]. Concededly, the filing of a suit by itself, does not render a person liable for
malicious prosecution [Inhelder Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere dismissal by the fiscal of the
criminal complaint is not a ground for an award of damages for malicious prosecution if there is no competent evidence to show that the
complainant had acted in bad faith [Sison v. David, G.R. No. L-11268, January 28,1961, 1 SCRA 60].

In the instant case, however, the trial court made a finding that petitioners acted in bad faith in filing the criminal complaints against
Tobias, observing that:


Defendants (petitioners herein) filed with the Fiscal's Office of Manila a total of six (6) criminal cases, five (5) of which
were for estafa thru falsification of commercial document and one for violation of Art. 290 of the Revised Penal Code
"discovering secrets thru seizure of correspondence," and all were dismissed for insufficiency or lack of evidence." The
dismissal of four (4) of the cases was appealed to the Ministry of Justice, but said Ministry invariably sustained the
dismissal of the cases. As above adverted to, two of these cases were refiled with the Judge Advocate General's Office
of the Armed Forces of the Philippines to railroad plaintiffs arrest and detention in the military stockade, but this was
frustrated by a presidential decree transferring criminal cases involving civilians to the civil courts.


To be sure, when despite the two (2) police reports embodying the findings of Lt. Dioscoro Tagle, Chief Document
Examiner of the Manila Police Department, clearing plaintiff of participation or involvement in the fraudulent
transactions complained of, despite the negative results of the lie detector tests which defendants compelled plaintiff to
undergo, and although the police investigation was "still under follow-up and a supplementary report will be
submitted after all the evidence has been gathered," defendants hastily filed six (6) criminal cases with the city Fiscal's
Office of Manila, five (5) for estafa thru falsification of commercial document and one (1) for violation of Art. 290 of
the Revised Penal Code, so much so that as was to be expected, all six (6) cases were dismissed, with one of the
investigating fiscals, Asst. Fiscal de Guia, commenting in one case that, "Indeed, the haphazard way this case was
investigated is evident. Evident likewise is the flurry and haste in the filing of this case against respondent Tobias," there
can be no mistaking that defendants would not but be motivated by malicious and unlawful intent to harass, oppress,
and cause damage to plaintiff.


[RTC Decision, pp. 5-6; Rollo, pp. 235-236].

In addition to the observations made by the trial court, the Court finds it significant that the criminal complaints were filed during the
pendency of the illegal dismissal case filed by Tobias against petitioners. This explains the haste in which the complaints were filed, which
the trial court earlier noted. But petitioners, to prove their good faith, point to the fact that only six complaints were filed against Tobias
when they could have allegedly filed one hundred cases, considering the number of anomalous transactions committed against GLOBE
MACKAY. However, petitioners' good faith is belied by the threat made by Hendry after the filing of the first complaint that one
hundred more cases would be filed against Tobias. In effect, the possible filing of one hundred more cases was made to hang like the
sword of Damocles over the head of Tobias. In fine, considering the haste in which the criminal complaints were filed, the fact that they
were filed during the pendency of the illegal dismissal case against petitioners, the threat made by Hendry, the fact that the cases were
filed notwithstanding the two police reports exculpating Tobias from involvement in the anomalies committed against GLOBE MACKAY,
coupled by the eventual dismissal of all the cases, the Court is led into no other conclusion than that petitioners were motivated by
malicious intent in filing the six criminal complaints against Tobias.
Petitioners next contend that the award of damages was excessive. In the complaint filed against petitioners, Tobias prayed for the
following: one hundred thousand pesos (P100,000.00) as actual damages; fifty thousand pesos (P50,000.00) as exemplary damages;
eight hundred thousand pesos (P800,000.00) as moral damages; fifty thousand pesos (P50,000.00) as attorney's fees; and costs. The trial
court, after making a computation of the damages incurred by Tobias [See RTC Decision, pp. 7-8; Rollo, pp. 154-1551, awarded him the
following: eighty thousand pesos (P80,000.00) as actual damages; two hundred thousand pesos (P200,000.00) as moral damages;
twenty thousand pesos (P20,000.00) as exemplary damages; thirty thousand pesos (P30,000.00) as attorney's fees; and, costs. It must be
underscored that petitioners have been guilty of committing several actionable tortious acts, i.e., the abusive manner in which they
dismissed Tobias from work including the baseless imputation of guilt and the harassment during the investigations; the defamatory
language heaped on Tobias as well as the scornful remark on Filipinos; the poison letter sent to RETELCO which resulted in Tobias' loss
of possible employment; and, the malicious filing of the criminal complaints. Considering the extent of the damage wrought on Tobias,
the Court finds that, contrary to petitioners' contention, the amount of damages awarded to Tobias was reasonable under the

Yet, petitioners still insist that the award of damages was improper, invoking the principle of damnum absque injuria. It is argued that
"[t]he only probable actual damage that plaintiff (private respondent herein) could have suffered was a direct result of his having been
dismissed from his employment, which was a valid and legal act of the defendants-appellants (petitioners herein).lwph1.t " [Petition,
p. 17; Rollo, p. 18].

According to the principle of damnum absque injuria, damage or loss which does not constitute a violation of a legal right or amount to
a legal wrong is not actionable [Escano v. CA, G.R. No. L-47207, September 25, 1980, 100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil,
542 (1915); The Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987]. This principle finds no application in
this case. It bears repeating that even granting that petitioners might have had the right to dismiss Tobias from work, the abusive manner
in which that right was exercised amounted to a legal wrong for which petitioners must now be held liable. Moreover, the damage
incurred by Tobias was not only in connection with the abusive manner in which he was dismissed but was also the result of several
other quasi-delictual acts committed by petitioners.

Petitioners next question the award of moral damages. However, the Court has already ruled in Wassmer v. Velez, G.R. No. L-20089,
December 26, 1964, 12 SCRA 648, 653, that [p]er express provision of Article 2219 (10) of the New Civil Code, moral damages are
recoverable in the cases mentioned in Article 21 of said Code." Hence, the Court of Appeals committed no error in awarding moral
damages to Tobias.

Lastly, the award of exemplary damages is impugned by petitioners. Although Article 2231 of the Civil Code provides that "[i]n quasi-
delicts, exemplary damages may be granted if the defendant acted with gross negligence," the Court, in Zulueta v. Pan American World
Airways, Inc., G.R. No. L- 28589, January 8, 1973, 49 SCRA 1, ruled that if gross negligence warrants the award of exemplary damages,
with more reason is its imposition justified when the act performed is deliberate, malicious and tainted with bad faith. As in
the Zulueta case, the nature of the wrongful acts shown to have been committed by petitioners against Tobias is sufficient basis for the
award of exemplary damages to the latter.

WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. CV No. 09055 is AFFIRMED.


Republic of the Philippines



G.R. No. L-44748 August 29, 1986



O. Pythogoras Oliver for respondents.

Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals, modifying the decision of the trial court in a civil
case for recovery of damages against petitioner corporation by reducing the award to private respondent Loreto Dionela of moral
damages from P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000.

The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the offended party, Loreto
Dionela, reading as follows:



115 PM


(p. 19, Annex "A")

Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only wounded his feelings but
also caused him undue embarrassment and affected adversely his business as well because other people have come to know of said
defamatory words.

Defendant corporation as a defense, alleges that the additional words in Tagalog was a private joke between the sending and receiving
operators and that they were not addressed to or intended for plaintiff and therefore did not form part of the telegram and that the
Tagalog words are not defamatory.

The telegram sent through its facilities was received in its station at Legaspi City. Nobody other than the operator manned the teletype
machine which automatically receives telegrams being transmitted. The said telegram was detached from the machine and placed inside a
sealed envelope and delivered to plaintiff, obviously as is. The additional words in Tagalog were never noticed and were included in the
telegram when delivered.

The trial court in finding for the plaintiff ruled as follows:

There is no question that the additional words in Tagalog are libelous. They clearly impute a vice or defect of the
plaintiff. Whether or not they were intended for the plaintiff, the effect on the plaintiff is the same. Any person reading
the additional words in Tagalog will naturally think that they refer to the addressee, the plaintiff. There is no indication
from the face of the telegram that the additional words in Tagalog were sent as a private joke between the operators
of the defendant.

The defendant is sued directly not as an employer. The business of the defendant is to transmit telegrams. It will open
the door to frauds and allow the defendant to act with impunity if it can escape liability by the simple expedient of
showing that its employees acted beyond the scope of their assigned tasks.

The liability of the defendant is predicated not only on Article 33 of the Civil Code of the Philippines but on the
following articles of said Code:

ART. 19.- Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

ART. 20.-Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the
latter for the same.

There is sufficient publication of the libelous Tagalog words. The office file of the defendant containing copies of
telegrams received are open and held together only by a metal fastener. Moreover, they are open to view and
inspection by third parties.

It follows that the plaintiff is entitled to damages and attorney's fees. The plaintiff is a businessman. The libelous
Tagalog words must have affected his business and social standing in the community. The Court fixes the amount of
P40,000.00 as the reasonable amount of moral damages and the amount of P3,000.00 as attorney's fee which the
defendant should pay the plaintiff. (pp. 15-16, Record on Appeal)

The respondent appellate court in its assailed decision confirming the aforegoing findings of the lower court stated:

The proximate cause, therefore, resulting in injury to appellee, was the failure of the appellant to take the necessary or
precautionary steps to avoid the occurrence of the humiliating incident now complained of. The company had not
imposed any safeguard against such eventualities and this void in its operating procedure does not speak well of its
concern for their clientele's interests. Negligence here is very patent. This negligence is imputable to appellant and not
to its employees.

The claim that there was no publication of the libelous words in Tagalog is also without merit. The fact that a carbon
copy of the telegram was filed among other telegrams and left to hang for the public to see, open for inspection by a
third party is sufficient publication. It would have been otherwise perhaps had the telegram been placed and kept in a
secured place where no one may have had a chance to read it without appellee's permission.

The additional Tagalog words at the bottom of the telegram are, as correctly found by the lower court, libelous per se,
and from which malice may be presumed in the absence of any showing of good intention and justifiable motive on
the part of the appellant. The law implies damages in this instance (Quemel vs. Court of Appeals, L-22794, January 16,
1968; 22 SCRA 44). The award of P40,000.00 as moral damages is hereby reduced to P15,000.00 and for attorney's
fees the amount of P2,000.00 is awarded. (pp. 22-23, record)

After a motion for reconsideration was denied by the appellate court, petitioner came to Us with the following:


The Honorable Court of Appeals erred in holding that Petitioner-employer should answer directly and primarily for
the civil liability arising from the criminal act of its employee.


The Honorable Court of Appeals erred in holding that there was sufficient publication of the alleged libelous telegram
in question, as contemplated by law on libel.


The Honorable Court of Appeals erred in holding that the liability of petitioner-company-employer is predicated on
Articles 19 and 20 of the Civil Code, Articles on Human Relations.


The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4, Record)

Petitioner's contentions do not merit our consideration. The action for damages was filed in the lower court directly against respondent
corporation not as an employer subsidiarily liable under the provisions of Article 1161 of the New Civil Code in relation to Art. 103 of the
Revised Penal Code. The cause of action of the private respondent is based on Arts. 19 and 20 of the New Civil Code (supra). As well as
on respondent's breach of contract thru the negligence of its own employees. 1

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a
message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes
to transmit the message accurately. There is no question that in the case at bar, libelous matters were included in the message transmitted,
without the consent or knowledge of the sender. There is a clear case of breach of contract by the petitioner in adding extraneous and
libelous matters in the message sent to the private respondent. As a corporation, the petitioner can act only through its employees. Hence
the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable
directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general public availing of the services of the
petitioner of an effective and adequate remedy. In most cases, negligence must be proved in order that plaintiff may recover. However,
since negligence may be hard to substantiate in some cases, we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for
itself), by considering the presence of facts or circumstances surrounding the injury.

WHEREFORE, premises considered, the judgment of the appellate court is hereby AFFIRMED. SO ORDERED.
PHILIPPINES, respondents.



On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @
Robinhood Padilla, i.e.:

"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions;

"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber revolver."[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal
possession of firearms and ammunitions under P.D. 1866[2] thru the following Information:[3]

"That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession
and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short
magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and
one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and
permit to carry and possess the same.


The lower court then ordered the arrest of petitioner,[5] but granted his application for bail.[6] During the arraignment on January 20,
1993, a plea of not guilty was entered for petitioner after he refused, [7] upon advice of counsel,[8] to make any plea.[9] Petitioner
waived in writing his right to be present in any and all stages of the case.[10]

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime
charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21
years of reclusion perpetua, as maximum".[11]

Petitioner filed his notice of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of Appeals,[13] the Solicitor-
General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail
bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's
conviction,[14] the dispositive portion of which reads:

"WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore,
the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No.
JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of
Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National
Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal
to the Supreme Court. This shall be immediately executory.The Regional Trial Court is further directed to submit a report
of compliance herewith.


Petitioner received a copy of this decision on July 26, 1995.[16] On August 9, 1995 he filed a "motion for reconsideration (and to recall
the warrant of arrest)"[17] but the same was denied by respondent court in its September 20, 1995 Resolution, [18] copy of which was
received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review
on certiorari with application for bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a "second
supplemental petition"[21] and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-
General[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996.[23] The
Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner
to file his reply.[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this
Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a
complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.[25]
The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the
Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6,
TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While
inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to
remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he
said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle
had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a
vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny
Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-
9, ibid).

"Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway
giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the
Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p.
10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p.
10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the
general direction to the north (p. 11, ibid).

"Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid).

"He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle
(p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15,
1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate
number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby
Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend
the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake
Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito
Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of
Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to
cover the distance between their office and the Abacan bridge (p. 9, ibid).

"Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the
Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On
board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3
Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid).

"In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a
flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up
with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he
proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the
Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10,
TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon
learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-
11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident
emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging
in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge.

"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When
the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched
on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path
of the vehicle forcing it to stop (p. 11, ibid).

"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the
vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and
put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p.
13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived
and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which
appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted
with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993),
its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand
alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was
covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him
about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the
place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid).

"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on
board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the
matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to
appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p.
12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands
with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because
appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right
pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his
vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying
a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by
opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at
the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He
asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-
27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p.
28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid).

"The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant
voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine
(pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two
additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been
interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street
beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp.
5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them
for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three
firearms (pp. 16-18, TSN, January 25, 1994).

"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record
Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms
confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919
and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification
dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of
Robinhood C. Padilla (p. 10, ibid)."

Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course
thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and
Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel
punishment proscribed by the 1987 Constitution.

After a careful review of the records[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra
firma, notwithstanding the Solicitor-General's change of heart.

Anent the first defense, petitioner questions the legality of his arrest.

There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the
Abacan bridge illegal.

Warrantless arrests are sanctioned in the following instances:[28]

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it.
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.

Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to
commit an offense, (ii) in the presence of the arresting officer or private person.[29] Both elements concurred here, as it has been
established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who
then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the
offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene." [30] As testified to by Manarang, he
heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and
thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report
to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2
Miranda already positioned near the bridge who effected the actual arrest of petitioner.[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not
at the scene of the hit and run.[32] We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were
nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It
was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could
have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover,
it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely
through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported
and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion
in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. [33] The exigent
circumstances of - hot pursuit,[34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in
which speed is essential and delay improvident.[35] The Court acknowledges police authority to make the forcible stop since they had
more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal
activity.[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-
16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm
and ammunitions) and this time in the presence of a peace officer.[37]

Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just
committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual
apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw
for themselves the fast approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported by Manarang), and the
dented hood and railings thereof.[39] These formed part of the arresting police officer's personal knowledge of the facts indicating that
petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon
verified personal knowledge and not on unreliable hearsay information.[40]

Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before
the accused enters his plea.[41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in
the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.[42] Likewise, by applying for bail,
petitioner patently waived such irregularities and defects.[43]

We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of
which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of property is valid,[44] are as follows:

1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of
Court[45] and by prevailing jurisprudence[46],

2. Seizure of evidence in "plain view", the elements of which are:[47]

(a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;

(b). the evidence was inadvertently discovered by the police who had the right to be where they

(c). the evidence must be immediately apparent, and

(d). "plain view" justified mere seizure of evidence without further search.[48]

3. search of a moving vehicle.[49] Highly regulated by the government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal activity.[50]

4. consented warrantless search, and

5. customs search.

In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and
ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that
which is concealed.[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain
view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket
respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16
armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying
horizontally near the driver's seat.[52]Thus it has been held that:

"(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to
discover a criminal offense being committed by any person, they are not precluded from performing their duties as police
officers for the apprehension of the guilty person and the taking of the corpus delicti."[53]

"Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a

With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the
police.[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure [56], and that his failure to
quash the information estopped him from assailing any purported defect.[57]

Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and
vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest
(first instance). Once the lawful arrest was effected, the police may undertake a protective search[58] of the passenger compartment and
containers in the vehicle[59] which are within petitioner's grabbing distance regardless of the nature of the offense. [60] This satisfied the
two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate
control[61] and (ii) the search was contemporaneous with the arrest.[62] The products of that search are admissible evidence not excluded
by the exclusionary rule.Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless
search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or
cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.[63]

Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed
civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order[64] and
Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del
Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be established, viz.:

(1) the existence of the subject firearm and,

(2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to

The first element is beyond dispute as the subject firearms and ammunitions [66] were seized from petitioner's possession via a valid
warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the
prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable
evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were
mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive
observation. Thus:
"Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before
the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence
adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had
been apprehended on October 26, 1992.

"Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject
firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he
could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the
Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of
apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that
appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial
presentation of his evidence in court, appellant could have produced these documents to belie the charged against
him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms.

"Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts
and Mission Order authorizing appellant to possess and carry the subject firearms.

"At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was
issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the
defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without
subpoena on January 13, 1994."[67]

The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really
issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical
purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at
home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would
grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and
agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive
of the AFP Chief of Staff, is explicit in providing that:

"VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and
other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or

"IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal
means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in
respect to such violation."[68]

which directive petitioner failed to heed without cogent explanation.

The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the
prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he
did not authorize anyone to sign in his behalf.[69] His surname thereon, we note, was glaringly misspelled as "Durembes." [70] In addition,
only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines
on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum
Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized
source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order
covers "Recom 1-12-Baguio City,"[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher
Headquarters"[73] which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March
5, 1988 Memorandum of the Secretary of Defense which pertinently provides that:

"No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding
Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property
book, and that report of such action has been reported to higher AFP authority."

Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well.

What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear
in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a
Mission Order, a fact admitted by petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and
Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:

"No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is
included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation
for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure
its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other
major services of the AFP, INP and NBI, or at higher levels of command."[75]

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows:
"If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the
regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the
service they are rendering."

That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the
testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's
confiscated firearms are not licensed or registered in the name of the petitioner.[76] Thus:

"Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any?

"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial
No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-
16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that
licensed and/or registered in the name of one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9
mm with Serial No. TCT 8214?
"A. Yes, sir.

"Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case?

"A. Yes, sir.[77]

xxx xxx xxx

And the certification which provides as follows:

Republic of the Philippines

Department of the Interior and Local Government
Camp Crame, Quezon City

"PNPFEO5 28 November 1992

"C E R T I F I C A T I O N


"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal
9mm with serial number TCT8214 covered by License No. RL M76C4476687.

"Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as
of this date:

M16 Baby Armalite SN-RP131120

Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723

"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina
of 29 San Juan St., Capitol Pasig, MM under Re-Registered License.

"This certification is issued pursuant to Subpoena from City of Angeles.




Sr. Inspector, PNP
Chief, Records Branch" [78]

In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms
and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the
second element of illegal possession of firearm.[79] In People vs. Tobias,[80] we reiterated that such certification is sufficient to show that
a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was
overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence [81] that an M-16
rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,[82] as in the
case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason,
and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded
by the Court with respect and finality.[83]

Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-
subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since
the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He stresses that the penalty of 17 years and 4 months to 21
years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.[85]

The contentions do not merit serious consideration.

The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense
for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it
stands.[ And until its repeal, respondent court cannot be faulted for applying P.D. 1866 which abrogated the previous statutes adverted
to by petitioner.

Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for
simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The
fact that the punishment authorized by the statute is severe does not make it cruel and unusual.'(24 C.J.S., 1187-1188). Expressed in other
terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly
disproportionate to the nature of the offense as to shock the moral sense of the community' "[88]

It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that
determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or
unusual if within statutory limits.[89]

Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in
question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,[90] as in this case. In fact, the
constitutionality of P.D. 1866 has been upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws on
illegal possession of firearms [are not] contrary to any provision of the Constitution. . ."[92] Appellant's grievance on the wisdom of the
prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That
question falls exclusively within the province ofCongress which enacts them and the Chief Executive who approves or vetoes them. The
only function of the courts, we reiterate, is to interpret and apply the laws.

With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion
temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case
of People v. Lian[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of
firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years
(12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as
maximum. This is discernible from the following explanation by the Court:

"In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding
special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken
from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be
applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in
said Section 1, that is, 18 years, 8 months and 1 day to 20 years.

"This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general
prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as
aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion
temporal in its medium period.[95]

WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the
crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED
to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum.


Republic of the Philippines



G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

VICENTA F. ESCAO, ET AL., defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177,
denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife
and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a
second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially prominent Filipino family of
Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of
one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita
Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-
born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta
returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and
they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her
clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went
back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college.
Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because
Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke
(t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration
to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the
Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26
February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from
San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the
letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar
Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March
1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a
"jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent
as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis
Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then
Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice
because of her non-appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her
purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was
approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in
the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely
mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D").
On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him,
has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended
on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and
discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through
its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta
claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied
that they had in any way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the
exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's
fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the

2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to
each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of
majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain
Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to
solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant
in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which
was the marriage law in force at the time) expressly provided that

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent.
(Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil
effects,3 and this is emphasized by section 27 of said marriage act, which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or
several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that
the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively
proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts
as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the
archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for
divorce implies an admission that her marriage to plaintiff was valid and binding.

Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she
charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and
assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly,
Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and
undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950
from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject
to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of
the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even
use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute
divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds
shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens
could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil
Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good
customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon
in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and
scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them
to sojourn abroad and obtain absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily
because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the
mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and
second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent
and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil
Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband
constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree
of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and
rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act
(Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when
Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to
the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-
mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in
that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro,
celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband
and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the
estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged
natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the
Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce,
are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and,
therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the
territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto
vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the
duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say
that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated
the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony
of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by
Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he
expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and
"sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows
nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and
breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of
Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that
the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto
Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their
daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an
alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural
that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur.

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her
subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask
that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of
malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the
marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction
between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for
alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his
or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable
where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees
it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's
welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of
a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or
unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good
faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his
child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more
frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given
to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and
pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While
this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and
circumstances. Court actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take
into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and
its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c)
that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid,
being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the
indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine
that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety,
the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said
defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded
to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is
not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort,
subsequently to the foreign decree of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree
of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or
unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and
attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao,
P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
Republic of the Philippines


G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,



In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a
criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of
marriage pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The
respondent judge ruled in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant City Fiscal
Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance of
Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the
complaint of private respondent Paz B. Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic Relations Court of
Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September 26, 1978, which action was
docketed as Civil Case No. E-02627.

Said civil case was based on the ground that private respondent consented to entering into the marriage, which was petitioner Donato's
second one, since she had no previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30,

Petitioner Donato's answer in the civil case for nullity interposed the defense that his second marriage was void since it was solemnized
without a marriage license and that force, violence, intimidation and undue influence were employed by private respondent to obtain
petitioner's consent to the marriage.

Prior to the solemnization of the subsequent or second marriage, petitioner and private respondent had lived together and deported
themselves as husband and wife without the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit
executed by them on September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of
the New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the proceedings of said
case contending that Civil Case No. E-02627 seeking the annulment of his second marriage filed by private respondent raises a prejudicial
question which must first be determined or decided before the criminal case can proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case No. 43554 for
bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that
the proceedings in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of proceedings the
ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than that cited by respondent judge
in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit. Hence, the
present petition for certiorari and prohibition with preliminary injunction.
A PREJUDICIAL QUESTION has been defined to be one which arises in a case, the resolution of which question is a logical antecedent of
the issue involved in said case, and the cognizance of which pertains to another tribunal.

It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related
to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case,
the guilt or innocence of the accused would necessarily be determined.

A prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed, because howsoever
the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in a
criminal case.5


The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the Juvenile and Domestic
Relations Court touching upon the nullity of the second marriage is not determinative of petitioner Donato's guilt or innocence in the
crime of bigamy. Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for
annulment of the second marriage on the ground that her consent was obtained through deceit.

Petitioner Donato raised the argument that the second marriage should have been declared null and void on the ground of force, threats
and intimidation allegedly employed against him by private respondent only sometime later when he was required to answer the civil
action for anulment of the second marriage.

The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that:

The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy case does not
mean that "prejudicial questions" are automatically raised in civil actions as to warrant the suspension of the case. In
order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the
accused, it must be shown that the petitioner's consent to such marriage must be the one that was obtained by means
of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the
basis of his conviction for the crime of bigamy.

The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy on February
27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it was the
second spouse, not the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And
it was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party complaint against the
first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and
intimidation. Assuming that the first marriage was null and void on the ground alleged by petitioner, the fact would
not be material to the outcome of the case. Parties to the marriage should not be permitted to judge for themselves its
nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the
marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the
marriage exists.

Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy.

The lower court therefore, has not abused much less gravely abused, its discretion in failing to suspend the hearing as
sought by petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained by the use of
threats, force and intimidation.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it should be the one
applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different.

In the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second marriage while a
previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of duress, as
contra-distinguished from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a
complaint for annulment of the second marriage on the ground that her consent was obtained through deceit since she was not aware
that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second
marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present
case, there is as yet no such judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial questions since a case
for annulment of marriage can be considered as a prejudicial question to the bigamy case against the accused only if it is proved that the
petitioner's consent to such marriage was obtained by means of duress, violence and intimidation in order to establish that his act in the
subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction. The preceding elements do not
exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The records reveal that
prior to petitioner's second marriage on September 26, 1978, he had been living with private respondent Paz B. Abayan as husband and
wife for more than five years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by private
respondent through force, violence, intimidation and undue influence in entering a subsequent marriage is belled by the fact that both
petitioner and private respondent executed an affidavit which stated that they had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was
private respondent who eventually filed the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was filed on
September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that petitioner came up with the
story that his consent to the marriage was secured through the use of force, violence, intimidation and undue influence. Petitioner also
continued to live with private respondent until November 1978, when the latter left their abode upon learning that Leonilo Donato was
already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier order. There is no
pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the criminal action for bigamy can be

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated April 14, 1980
should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no pronouncement as to


Republic of the Philippines



G.R. No. L-40895 November 6, 1975

MILAGROS DE LA CRUZ, petitioner,

HON. JUDGE BIENVENIDO EJERCITO, Court of First Instance of Pampanga and Angeles City, Branch IV; TEODORO DAVID, City Fiscal
of Angeles City, and PEOPLE OF THE PHILIPPINES, thru the Office of the SOLICITOR GENERAL, respondents. .


On May 20, 1974 Milagros de la Cruz was charged with bigamy in the Court of First Instance of Pampanga, Angeles City Branch IV for
having married Sergeant Dominick L. Gaccino on September 15, 1973 while her prior marriage to Teodoro G. David was undissolved.
The information was filed at the instance of her first husband (Criminal Case No. 3128).

On August 1, 1974 Milagros de la Cruz filed in the same court at its San Fernando Branch III a complaint for the annulment of her
marriage to Sergeant Gaccino on the ground of duress (Civil Case No. 4188).

Defendant Gaccino did not answer the complaint. Judge Mariano Castaeda, Jr. ordered the Provincial Fiscal to investigate whether
there was a collusion between the parties. A special counsel of the Fiscal's office reported that there was no collusion. .
On December 16, 1974 Judge Castaeda rendered a decision annulling the marriage of Milagros de la Cruz to Gaccino. No appeal was
taken from that decision. It became final. In view of the annulment of her second marriage, Milagros de la Cruz filed on January 27,
1975 a motion to dismiss the bigamy charge. The private prosecutor and the prosecuting fiscal opposed the motion.

Judge Bienvenido Ejercito denied it in his order of May 27, 1975 on the ground that the decision in the annulment case is not controlling
in the criminal case because the parties and the issues in the two cases are not the same.

That refusal of Judge Ejercito to dismiss the bigamy case, not withstanding the judicial pronouncement that her second marriage was a
nullity, prompted Milagros de la Cruz to file the instant special civil action of certiorari and prohibition.

The issue is whether the bigamy case became moot or untenable after the second marriage, on which the prosecution for bigamy is
based, was annulled.

The City Fiscal of Angeles City contends that the lower court acted correctly in denying the motion to dismiss the bigamy charge. He
argues that the decision in the annulment case should be set up as a defense by Milagros de la Cruz during the trial and that it would not
justify the outright dismissal of the criminal case.

On the other hand, the Solicitor General manifested that the stand of Milagros de la Cruz should be sustained because one element of
bigamy is that the alleged second marriage, having all the requisites, would be valid were it not for the subsistence of the first marriage
(People vs. Mora Dumpo, 62 Phil. 246, 248; Merced vs. Hon. Diez, 109 Phil. 155; Zapanta vs. Montesa, 114 Phil. 1227).


We hold that the finding in the annulment case that the second marriage contracted by Milagros de la Cruz with Sergeant Gaccino was a
nullity is determinative of her innocence and precludes the rendition of a verdict that she committed bigamy. To try the criminal case in
the face of such a finding would be unwarranted.

As noted by Groizard, it is essential "que el segundo matrimonio 'ha de constituir un acto solemne en que concurran los requisitos
exigidos para la existencia del sacramento o del contrato' " (2 Cuello Calon, Derecho Penal, 12th ed., p. 675, note 2). As pointed out in
the Merced case, supra, it is necessary in a prosecution for bigamy that the second marriage be declared valid if its validity was
questioned in a civil action.

And even supposing arguendo that the decree annulling the second marriage was questionable or erroneous because it was issued in a
judgment by default, still that would not prevent the decree from having legal effect. "An erroneous judgment is not a void judgment"
(Chereau vs. Fuentebella, 43 Phil. 216).

WHEREFORE, the lower court's order of May 27, 1975, denying the motion to dismiss of Milagros de la Cruz, is set aside. The writ of
prohibition is granted. No Costs.


[G.R. No. 126746. November 29, 2000]

ARTHUR TE, petitioner, vs. COURT OF APPEALS, and LILIANA CHOA, respondents.



Before us is a petition for review on certiorari which seeks to reverse the Decision of the Court of Appeals Tenth Division, dated 31
August 1994 in CA-G.R. SP No. 23971[1] and CA-G.R. SP No. 26178[2]and the Resolution dated October 18, 1996 denying petitioners
motion for reconsideration.
The facts of the case are as follows:

Petitioner Arthur Te and private respondent Liliana Choa were married in civil rites on September 14, 1988. They did not live
together after the marriage although they would meet each other regularly. Not long after private respondent gave birth to a girl on
April 21, 1989, petitioner stopped visiting her.[3]
On May 20, 1990, while his marriage with private respondent was subsisting, petitioner contracted a second marriage with a certain
Julieta Santella (Santella).[4]

On the basis of a complaint-affidavit filed by private respondent sometime in June 1990, when she learned about petitioners
marriage to Santella, an information charging petitioner with bigamy was filed with the Regional Trial Court (RTC) of Quezon City on
August 9, 1990.[5] This case was docketed as Criminal Case No. Q-90-14409.[6]

Meanwhile, on July 20, 1990, petitioner filed in the RTC of Quezon City an action for the annulment of his marriage to private
respondent on the ground that he was forced to marry her. He alleged that private respondent concealed her pregnancy by another
man at the time of their marriage and that she was psychologically incapacitated to perform her essential marital obligations.[7]

On November 8, 1990, private respondent also filed with the Professional Regulation Commission (PRC) an administrative case
against petitioner and Santella for the revocation of their respective engineering licenses on the ground that they committed acts of
immorality by living together and subsequently marrying each other despite their knowledge that at the time of their marriage, petitioner
was already married to private respondent. With respect to petitioner, private respondent added that he committed an act of
falsification by stating in his marriage contract with Santella that he was still single.[8]

After the prosecution rested its case in the criminal case for bigamy, petitioner filed a demurrer to evidence with leave of court and
motion to inhibit the trial court judge for showing antagonism and animosity towards petitioners counsel during the hearings of said case.

The trial court denied petitioners demurrer to evidence in an Order dated November 28, 1990 which stated that the same could
not be granted because the prosecution had sufficiently established a prima facie case against the accused.[9] The RTC also denied
petitioners motion to inhibit for lack of legal basis.[10]

Petitioner then filed with the Court of Appeals a petition for certiorari, alleging grave abuse of discretion on the part of the trial
court judge, Judge Cezar C. Peralejo, for (1) exhibiting antagonism and animosity towards petitioners counsel; (2) violating the
requirements of due process by denying petitioners [motion for reconsideration and] demurrer to evidence even before the filing of the
same; (3) disregarding and failing to comply with the appropriate guidelines for judges promulgated by the Supreme Court; and (4)
ruling that in a criminal case only prima facie evidence is sufficient for conviction of an accused. This case was docketed as CA-G.R. SP
No. 23971.[11]

Petitioner also filed with the Board of Civil Engineering of the PRC (PRC Board), where the administrative case for the revocation
of his engineering license was pending, a motion to suspend the proceedings therein in view of the pendency of the civil case for
annulment of his marriage and criminal case for bigamy in Branches 106 and 98, respectively of the RTC of Quezon City.[12]
When the Board denied the said motion in its Order dated July 16, 1991,[13] petitioner filed with the Court of Appeals another
petition for certiorari, contending that the Board gravely abused its discretion in: (1) failing to hold that the resolution of the annulment
case is prejudicial to the outcome of the administrative case pending before it; (2) not holding that the continuation of proceedings in the
administrative case could render nugatory petitioners right against self-incrimination in this criminal case for bigamy against him; and (3)
making an overly-sweeping interpretation that Section 32 of the Rules and Regulations Governing the Regulation and Practice of
Professionals does not allow the suspension of the administrative proceeding before the PRC Board despite the pendency of criminal
and/or administrative proceedings against the same respondent involving the same set of facts in other courts or tribunals. This petition
was docketed as CA-G.R. SP No. 26178.[14]

The two petitions for certiorari were consolidated since they arose from the same set of facts.

On 31 August 1994, the Court of Appeals, Tenth Division, rendered the assailed decision in the consolidated petitions. The
appellate court upheld the RTCs denial of the motion to inhibit due to petitioners failure to show any concrete evidence that the trial
court judge exhibited partiality and had prejudged the case.

It also ruled that the denial of petitioners motion to suspend the proceedings on the ground of prejudicial question was in accord
with law.[15]

The Court of Appeals likewise affirmed the RTCs denial of the demurrer to evidence filed by petitioner for his failure to set forth
persuasive grounds to support the same, considering that the prosecution was able to adduce evidence showing the existence of the
elements of bigamy.[16]

Neither did the appellate court find grave abuse of discretion on the part of the Boards Order denying petitioners motion to
suspend proceedings in the administrative case on the ground of prejudicial question. Respondent court held that no prejudicial question
existed since the action sought to be suspended is administrative in nature, and the other action involved is a civil case.[17]

Petitioner thereafter filed a motion for reconsideration of the decision of the Court of Appeals but the same was denied.[18]
Hence, petitioner filed the instant petition raising the following issues:





The petition has no merit.

While the termination of Civil Case No. Q-90-6205 for annulment of petitioners marriage to private respondent has rendered the
issue of the propriety of suspending both the criminal case for bigamy before the RTC of Quezon City, Branch 98 and the administrative
case for revocation of petitioners engineering license before the PRC Board moot and academic, the Court shall discuss the issue of
prejudicial question to emphasize the guarding and controlling precepts and rules.[20]

A PREJUDICIAL QUESTION has been defined as one based on a fact distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.[21] The
rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.[22]

The Court of Appeals did not err when it ruled that the pendency of the civil case for annulment of marriage filed by petitioner
against private respondent did not pose a prejudicial question which would necessitate that the criminal case for bigamy be suspended
until said civil case is terminated.

The outcome of the civil case for annulment of petitioners marriage to private respondent had no bearing upon the determination
of petitioners innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that
the first marriage be subsisting at the time the second marriage is contracted. [23] Petitioners argument that the nullity of his marriage to
private respondent had to be resolved first in the civil case before the criminal proceedings could continue, because a declaration that
their marriage was void ab initio would necessarily absolve him from criminal liability, is untenable.

The ruling in People vs. Mendoza[24] and People vs. Aragon[25] cited by petitioner that no judicial decree is necessary to establish
the invalidity of a marriage which is void ab initio has been overturned. The prevailing rule is found in Article 40 of the Family Code,
which was already in effect at the time of petitioners marriage to private respondent in September 1988. Said article states that the
absolute nullity of a previous marriage may not be invoked for purposes of remarriage unless there is a final judgment declaring such
previous marriage void. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared
otherwise in a judicial proceeding.[26] In Landicho vs. Relova,[27] we held that:

Parties to a marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the judgment of competent
courts and only when the nullity of a marriage is so declared can it be held as void, and so long as there is no such declaration the
presumption of marriage exists.[28]

It is clear from the foregoing that the pendency of the civil case for annulment of petitioners marriage to private respondent did not
give rise to a prejudicial question which warranted the suspension of the proceedings in the criminal case for bigamy since at the time of
the alleged commission of the crime, their marriage was, under the law, still valid and subsisting.

Neither did the filing of said civil case for annulment necessitate the suspension of the administrative proceedings before the PRC
Board. As discussed above, the concept of prejudicial question involves a civil and a criminal case. We have previously ruled that there
is no prejudicial question where one case is administrative and the other is civil.[29]

Furthermore, Section 32 of the Rules and Regulations Governing the Regulation and Practice of Professionals of the PRC Board
expressly provides that the administrative proceedings before it shall not be suspended notwithstanding the existence of a criminal and/or
civil case against the respondent involving the same facts as the administrative case:

The filing or pendency of a criminal and/or civil cases in the courts or an administrative case in another judicial body against an examinee
or registered professional involving the same facts as in the administrative case filed or to be filed before the Board shall neither suspend
nor bar the proceeding of the latter case. The Board shall proceed independently with the investigation of the case and shall render
therein its decision without awaiting for the final decision of the courts or quasi-judicial body.

It must also be noted that the allegations in the administrative complaint before the PRC Board are not confined to the issue of the
alleged bigamous marriage contracted by petitioner and Santella.Petitioner is also charged with immoral conduct for continued failure to
perform his obligations as husband to private respondent and as father to their child, and for cohabiting with Santella without the benefit
of marriage.[30] The existence of these other charges justified the continuation of the proceedings before the PRC Board.

Petitioner also contends that the Court of Appeals erred in upholding the trial courts denial of his demurrer to evidence in the
criminal case for bigamy, arguing that the prosecution failed to establish the existence of both the first and second marriages beyond
reasonable doubt. Petitioner claims that the original copy of marriage contract between him and private respondent was not presented,
the signatures therein were not properly identified and there was no showing that the requisites of a valid marriage were complied
with. He alleges further that the original copy of the marriage contract between him and Santella was not presented, that no proof that
he signed said contract was adduced, and that there was no witness presented to show that a second marriage ceremony participated in
by him ever took place.[31]

We are not persuaded. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court, and its ruling
on the matter shall not be disturbed in the absence of a grave abuse of such discretion. [32] In this case, the Court of Appeals did not find
any grave abuse of discretion on the part of the trial court, which based its denial of the demurrer on two grounds: first, the prosecution
established a prima facie case for bigamy against the petitioner; and second, petitioners allegations in the demurrer were insufficient to
justify the grant of the same. It has been held that the appellate court will not review in a special civil action for certiorari the
prosecutions evidence and decide in advance that such evidence has or has not yet established the guilt of the accused beyond reasonable
doubt.[33] In view of the trial courts finding that a prima facie case against petitioner exists, his proper recourse is to adduce evidence in
his defense.[34]

The Court also finds it necessary to correct petitioners misimpression that by denying his demurrer to evidence in view of the
existence of a prima facie case against him, the trial court was already making a pronouncement that he is liable for the offense
charged. As correctly held by the Court of Appeals, the order of the RTC denying the demurrer was not an adjudication on the merits
but merely an evaluation of the sufficiency of the prosecutions evidence to determine whether or not a full-blown trial would be
necessary to resolve the case.[35] The RTCs observation that there was a prima facie case against petitioner only meant that the
prosecution had presented sufficient evidence to sustain its proposition that petitioner had committed the offense of bigamy, and unless
petitioner presents evidence to rebut the same, such would be the conclusion.[36] Said declaration by the RTC should not be construed as
a pronouncement of petitioners guilt. It was precisely because of such finding that the trial court denied the demurrer, in order that
petitioner may present evidence in his defense and allow said court to resolve the case based on the evidence adduced by both parties.

Lastly, petitioner contends that his motion to inhibit Judge Peralejo in Criminal Case No. Q-90-14409 should have been granted
since said judge exhibited partiality and bias against him in several instances.First, when petitioner manifested that he would file a motion
for reconsideration of the denial of his motion to suspend the proceedings in said case, the judge said such motion was dilatory and
would be denied even though the motion for reconsideration had not yet been filed. Second, when petitioners counsel manifested that
he had just recovered from an accident and was not physically fit for trial, the judge commented that counsel was merely trying to delay
the case and required said counsel to produce a medical certificate to support his statement. Third, when petitioner manifested that he
was going to file a demurrer to evidence, the judge characterized the same as dilatory and declared that he would deny the
same. According to petitioner, the judges hostile attitude towards petitioners counsel as shown in the foregoing instances justified the
grant of his motion to inhibit.

We agree with the appellate court that the grounds raised by petitioner against Judge Peralejo did not conclusively show that the
latter was biased and had prejudged the case.[37] In People of the Philippines vs. Court of Appeals,[38] this Court held that while bias and
prejudice have been recognized as valid reasons for the voluntary inhibition of a judge under Section 1, Rule 137, the rudimentary rule is
that the mere suspicion that a judge is partial is not enough. There should be clear and convincing evidence to prove the charge of bias
and partiality.[39]

Furthermore, since the grounds raised by petitioner in his motion to inhibit are not among those expressly mentioned in Section 1,
Rule 137 of the Revised Rules of Court, the decision to inhibit himself lay within the sound discretion of Judge Peralejo. Said provision of
law states:

Section 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or
affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in the case, for just and valid reasons other than those
mentioned above.

Thus, it was not mandatory that the judge inhibit himself from hearing and deciding the case.

This Court does not find any abuse of discretion by respondent judge in denying petitioners motion to inhibit. The test for
determining the propriety of the denial of said motion is whether petitioner was deprived a fair and impartial trial. [40] The instances
when Judge Peralejo allegedly exhibited antagonism and partiality against petitioner and/or his counsel did not deprive him of a fair and
impartial trial. As discussed earlier, the denial by the judge of petitioners motion to suspend the criminal proceeding and the demurrer to
evidence are in accord with law and jurisprudence. Neither was there anything unreasonable in the requirement that petitioners counsel
submit a medical certificate to support his claim that he suffered an accident which rendered him unprepared for trial. Such requirement
was evidently imposed upon petitioners counsel to ensure that the resolution of the case was not hampered by unnecessary and
unjustified delays, in keeping with the judges duty to disposing of the courts business promptly.[41]

WHEREFORE, the petition is hereby DENIED for lack of merit.