an action for Recovery of Property and Ownership and Possession,

HEIRS OF TEOFILO G.R. No. 150206

GABATAN, namely: LOLITA thereat commenced by respondent Lourdes Evero Pacana against
GABATAN, POMPEYO GABATAN, Present: petitioners, heirs of Teofilo Gabatan, Jesus Jabinis and Catalino
PEREGRINO GABATAN,
REYNALDO GABATAN, NILA PUNO, C.J.,* Acantilado.
GABATAN and JESUS JABINIS, YNARES-
RIORITA GABATAN SANTIAGO,**
Subject of the present controversy is a 1.1062 hectare parcel
TUMALA and FREIRA GABATAN, CARPIO,***
Petitioners, CORONA, of land, identified as Lot 3095 C-5 and situated at Calinugan,
LEONARDO-DE Balulang, Cagayan de Oro City. This lot was declared for taxation in
-versus- CASTRO, and
BRION,**** JJ. the name of Juan Gabatan. In the complaint before the RTC,
HON. COURT OF respondent alleged that she is the sole owner of Lot 3095 C-5, having
APPEALS andLOURDES EVERO
PACANA, inherited the same from her deceased mother, Hermogena Gabatan
Respondents. Evero (Hermogena). Respondent further claimed that her mother,
Promulgated:
Hermogena, is the only child of Juan Gabatan and his wife, Laureana
March 13, 2009 Clarito. Respondent alleged that upon the death of Juan Gabatan, Lot
x---------------------------------------------------------------------------------- 3095 C-5 was entrusted to his brother, Teofilo Gabatan (Teofilo),
-------x
and Teofilos wife, Rita Gabatan, for administration. It was also
DECISION claimed that prior to her death Hermogena demanded for the return
of the land but to no avail. After Hermogenas death, respondent also
LEONARDO-DE CASTRO, J.:
did the same but petitioners refused to heed the numerous demands
to surrender the subject property. According to respondent, when
Assailed and sought to be set aside in the instant petition for
Teofilo and his wife died, petitioners Jesus Jabinis and Catalino
review on certiorari are the Decision[1] dated April 28, 2000, and
Acantilado took possession of the disputed land despite respondents
Resolution[2] dated September 12, 2001 of the Court of Appeals
demands for them to vacate the same.
(CA), in CA G.R. CV No. 52273. The challenged Decision affirmed
the decision[3] of the Regional Trial Court (RTC) of Cagayan de Oro
In their answer, petitioners denied that respondents mother
City, Branch 19, dated October 20, 1995 in Civil Case No. 89-092,
Hermogena was the daughter of Juan Gabatan with Laureana Clarito
and that Hermogena or respondent is the rightful heir of Juan
Gabatan. Petitioners maintained that Juan Gabatan died single in
1934 and without any issue and that Juan was survived by one
brother and two sisters, namely: Teofilo (petitioners predecessor-in-
interest), Macaria and Justa. These siblings and/or their heirs,
inherited the subject land from Juan Gabatan and have been in
actual, physical, open, public, adverse, continuous and uninterrupted
possession thereof in the concept of owners for more than fifty (50)
years and enjoyed the fruits of the improvements thereon, to the
exclusion of the whole world including respondent. Petitioners
clarified that Jesus Jabinis and Catalino Acantilado have no interest
in the subject land; the former is merely the husband of Teofilos
daughter while the latter is just a caretaker. Petitioners added that a
similar case was previously filed by respondent against Teofilos
wife, Rita Vda. de Gabatan, on February 21, 1978, docketed as Civil
Case No. 5840 but the case was dismissed on May 3, 1983 for lack
of interest. Finally, petitioners contended that the complaint lacks or
states no cause of action or, if there was any, the same has long
prescribed and/or has been barred by laches.
On June 20, 1989, the complaint was amended wherein the
heirs of Teofilo were individually named, to wit: Lolita Gabatan,
Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila
Gabatan and Jesus Jabinis, Riorita Gabatan Tumal and Freira
Gabatan.
On July 30, 1990, petitioners filed an amended answer,
additionally alleging that the disputed land was already covered by
OCT No. P-3316 in the name of the heirs of Juan Gabatan
represented by petitioner Riorita Gabatan (Teofilos daughter).
On October 20, 1995, the RTC rendered a decision in favor
of respondent, the dispositive portion of which reads:
WHEREFORE, judgment is hereby
rendered in favor of the plaintiff and against the
defendants, declaring the plaintiff the owner of Lot
No. 3095 C-5 situated at Calinugan, Balulang,
Cagayan de Oro City; and ordering the defendants
represented by Riorita Gabatan Tumala
to RECONVEY Original Certificate of Title No. P-
3316 in favor of plaintiff Lourdes Evero Pacana, free
of any encumbrance; ordering the defendants to
pay P10,000.00 by way of moral
damages; P10,000.00 as Attorneys fees;
and P2,000.00 for litigation expenses.
SO ORDERED.[4]
Aggrieved, petitioners appealed to the CA whereat their
recourse was docketed as CA-G.R. CV No. 52273.
On April 28, 2000, the CA rendered the herein challenged
Decision affirming that of the RTC. Dispositively, the Decision
reads:
 WHEREFORE, premises considered, the
questioned decision of the lower court dated October
20, 1995 is hereby AFFIRMED. With costs against
appellants.
SO ORDERED.
Discounting petitioners argument that respondent is not
related to Juan Gabatan, the CA declared that respondents claim of
filiation with Juan Gabatan was sufficiently established during
trial. Thus, the CA echoed a long line of jurisprudence that findings
of fact of the trial court are entitled to great weight and are not
disturbed except for cogent reasons, such as when the findings of
fact are not supported by evidence.
The CA likewise gave weight to the Deed of Absolute
Sale[5] executed by Macaria Gabatan de Abrogar, Teofilo,
Hermogena and heirs of Justa Gabatan, wherein Hermogena was
identified as an heir of Juan Gabatan:
x x x HERMOGENA GABATAN, of legal
age, married, Filipino citizen and presently residing
at Kolambugan, Lanao del Norte, Philippines,
as Heir of the deceased, JUAN GABATAN; x x x.
To the CA, the Deed of Absolute Sale on July 30, 1966
containing such declaration which was signed by Teofilo and the
latters nearest relatives by consanguinity, is a tangible proof that they
acknowledged Hermogenas status as the daughter of Juan
Gabatan. Applying Section 38, Rule 130[6] of the Rules of Court on
the declaration against interest, the CA ruled that petitioners could
not deny that even their very own father, Teofilo formally recognized
Hermogenas right to heirship from Juan Gabatan which ultimately
passed on to respondent.
As to the issue of prescription, the CA ruled that petitioners
possession of the disputed property could not ripen into acquisitive
prescription because their predecessor-in-interest, Teofilo, never held
the property in the concept of an owner.
Aggrieved, petitioners are now with this Court via the
present recourse principally contending that the CA committed the
following reversible errors:
FIRST ERROR: The lower court erred in not
declaring that Juan Gabatan died single and without
issue;
SECOND ERROR: The lower court erred in
declaring the plaintiff-appellee (respondent) as the
sole and surviving heir of Juan Gabatan, the only
child of a certain Hermogena Clareto GABATAN;
THIRD ERROR: The lower court erred in
declaring that a certain Hermogena Clareto
GABATAN is the child and sole heir of Juan
Gabatan;
 FOURTH ERROR: The lower court erred in failing
to appreciate by preponderance of evidence in favor
of the defendants-appellants (petitioners) claim that
they and the heirs of Justa and Macaria both
surnamed Gabatan are the sole and surviving heirs of
Juan Gabatan and, therefore, entitled to inherit the
land subject matter hereof;
FIFTH ERROR: The lower court erred in not
declaring that the cause of action of plaintiff-
appellee (respondent) if any, has been barred by
laches and/or prescription.[7]
Before proceeding to the merits of the case, we must pass
upon certain preliminary matters.
In general, only questions of law may be raised in a petition
for review on certiorari under Rule 45 of the Rules of
Court. Questions of fact cannot be the subject of this particular mode
of appeal, for this Court is not a trier of facts.[8] It is not our function
to examine and evaluate the probative value of the evidence
presented before the concerned tribunal upon which its impugned
decision or resolution is based.[9]
However, there are established exceptions to the rule on
conclusiveness of the findings of fact by the lower courts, such as (1)
when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken; (3)
when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts
are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the
findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence
of evidence and contradicted by the evidence on record; and (11)
when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered,
would justify a different conclusion.[10]
Moreover, our rules recognize the broad discretionary power
of an appellate court to waive the lack of proper assignment of errors
and to consider errors not assigned.Thus, the Court is clothed with
ample authority to review rulings even if they are not assigned as
errors in the appeal in these instances: (a) grounds not assigned as
errors but affecting jurisdiction over the subject matter; (b) matters
not assigned as errors on appeal but are evidently plain or clerical
errors within contemplation of law; (c) matters not assigned as errors
on appeal but consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve the interests
of justice or to avoid dispensing piecemeal justice; (d) matters not
specifically assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the issue submitted
which the parties failed to raise or which the lower court ignored; (e)
matters not assigned as errors on appeal but closely related to an
error assigned; and (f) matters not assigned as errors on appeal but
upon which the determination of a question properly assigned, is
dependent. [11]
 In the light of the foregoing established doctrines, we now
proceed to resolve the merits of the case.
The respondents main cause of action in the court a quo is
the recovery of ownership and possession of property. It is
undisputed that the subject property, Lot 3095 C-5, was owned by
the deceased Juan Gabatan, during his lifetime.[12] Before us are two
contending parties, both insisting to be the legal heir(s) of the
decedent.
Jurisprudence dictates that the determination of who are the
legal heirs of the deceased must be made in the proper special
proceedings in court, and not in an ordinary suit for recovery of
ownership and possession of property. This must take precedence
over the action for recovery of possession and ownership. The Court
has consistently ruled that the trial court cannot make a declaration
of heirship in the civil action for the reason that such a declaration
can only be made in a special proceeding. Under Section 3, Rule 1 of
the 1997 Revised Rules of Court, a civil action is defined as one by
which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. It is then decisively clear that the
declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the establishment of a
status or right.[13]
[14]
In the early case of Litam, et al. v. Rivera, this Court ruled
that the declaration of heirship must be made in a special proceeding,
and not in an independent civil action. This doctrine was reiterated
in Solivio v. Court of Appeals[15] where the Court held:
xxx where despite the pendency of the
special proceedings for the settlement of the intestate
estate of the deceased Rafael Litam, the plaintiffs-
appellants filed a civil action in which they claimed
that they were the children by a previous marriage of
the deceased to a Chinese woman, hence, entitled to
inherit his one-half share of the conjugal properties
acquired during his marriage to Marcosa Rivera, the
trial court in the civil case declared that the
plaintiffs-appellants were not children of the
deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera,
and that the latter was his only heir. On appeal to
this Court, we ruled that such declarations (that
Marcosa Rivera was the only heir of the decedent) is
improper, in Civil Case No. 2071, it being within the
exclusive competence of the court in Special
Proceedings No. 1537, in which it is not as yet, in
issue, and, will not be, ordinarily, in issue until the
presentation of the project of partition.
In the more recent case of Milagros Joaquino v. Lourdes
Reyes,[16] the Court reiterated its ruling that matters relating to the
rights of filiation and heirship must be ventilated in the proper
probate court in a special proceeding instituted precisely for the
purpose of determining such rights. Citing the case of Agapay v.
Palang,[17] this Court held that the status of an illegitimate child who
claimed to be an heir to a decedents estate could not be adjudicated
in an ordinary civil action which, as in this case, was for the recovery
of property.
 However, we are not unmindful of our decision Similarly, in the present case, there appears to be only one
[18]
in Portugal v. Portugal-Beltran, where the Court relaxed its rule parcel of land being claimed by the contending parties as their
and allowed the trial court in a proceeding for annulment of title to inheritance from Juan Gabatan. It would be more practical to
determine the status of the party therein as heirs, to wit: dispense with a separate special proceeding for the determination of
the status of respondent as the sole heir of Juan Gabatan, specially in
It appearing, however, that in the present light of the fact that the parties to Civil Case No. 89-092, had
case the only property of the intestate estate of
Portugal is the Caloocan parcel of land, to still voluntarily submitted the issue to the RTC and already presented
subject it, under the circumstances of the case, to their evidence regarding the issue of heirship in these
a special proceeding which could be long, hence,
not expeditious, just to establish the status of proceeding. Also the RTC assumed jurisdiction over the same and
petitioners as heirs is not only impractical; it is consequently rendered judgment thereon.
burdensome to the estate with the costs and expenses
of an administration proceeding. And it is
superfluous in light of the fact that the parties to We GRANT the petition.
the civil case subject of the present case, could
and had already in fact presented evidence before
the trial court which assumed jurisdiction over After a meticulous review of the records of this case, we find
the case upon the issues it defined during pre- insufficient and questionable the basis of the RTC in conferring upon
trial.
respondent the status of sole heir of Juan Gabatan.
In fine, under the circumstances of the
present case, there being no compelling reason to
Respondent, in asserting to be entitled to possession and
still subject Portugals estate to administration
proceedings since a determination of petitioners ownership of the property, pinned her claim entirely on her alleged
status as heirs could be achieved in the civil case status as sole heir of Juan Gabatan. It was incumbent upon her to
filed by petitioners (Vide Pereira v. Court of
Appeals, 174 SCRA 154 [1989]; Intestate Estate of present preponderant evidence in support of her complaint.
Mercado v. Magtibay, 96 Phil. 383 [1955]), the trial
court should proceed to evaluate the evidence
presented by the parties during the trial and render a Under the Civil Code, the filiation of legitimate children is
decision thereon upon the issues it defined during established by any of the following:
pre-trial, x x x. (emphasis supplied)
 ART. 265. The filiation of legitimate children is The parties are trying to outdo with (sic)
proved by the record of birth appearing in the Civil each other by presenting two conflicting Certificate
Register, or by an authentic document or a final (sic) of Live Birth of plaintiff herein, Lourdes Evero
judgment. Pacana, which are Exhibit A for the plaintiff and
Exhibit 1 for the defendants. Which of this (sic) is
ART. 266. In the absence of the titles indicated in genuine, and which is falsified. These (sic) issue is
the preceding article, the filiation shall be proved by crucial and requires serious scrutiny. The Court is of
the continuous possession of status of a legitimate the observation that Exhibit A for the plaintiff which
child. is a certified true copy is in due form and bears the
as is and where is rule. It has the impression of the
ART. 267. In the absence of a record of birth, original certificate. The forms (sic) is an old one
authentic document, final judgment or possession of used in the 1950s. Her mothers maiden name
status, legitimate filiation may be proved by any appearing thereof is Hermogina (sic) Clarito
other means allowed by the Rules of Court and Gabatan. While Exhibit 1, the entries found thereof
special laws. (sic) is handwritten which is very unusual and of
dubious source. The form used is of latest
vintage. The entry on the space for mothers maiden
Here, two conflicting birth certificates[19] of respondent were name is Hermogena Calarito. There seems to be an
presented at the RTC. Respondent, during her direct testimony, apparent attempt to thwart plaintiffs mother filiation
with the omission of the surname Gabatan.
presented and identified a purported certified true copy of her Considering these circumstances alone the Court is
typewritten birth certificate which indicated that her mothers maiden inclined to believe that Exhibit A for the plaintiff is
far more genuine and authentic certificate of live
name was Hermogena Clarito Gabatan. Petitioners, on the other
birth.[20]
hand, presented a certified true copy of respondents handwritten
birth certificate which differed from the copy presented by
Having carefully examined the questioned birth certificates,
respondent. Among the differences was respondents mothers full
we simply cannot agree with the above-quoted findings of the trial
maiden name which was indicated as Hermogena Calarito in the
court. To begin with, Exhibit A, as the trial court noted, was an
handwritten birth certificate.
original typewritten document, not a mere photocopy or facsimile. It
uses a form of 1950s vintage[21] but this Court is unable to concur in
In resolving this particular issue, the trial court ruled in this
the trial courts finding that Exhibit 1[22] was of a later vintage than
wise:
Exhibit A which was one of the trial courts bases for doubting the
authenticity of Exhibit 1. On the contrary, the printed notation on the
upper left hand corner of Exhibit 1 states Municipal Form No. 102
(Revised, January 1945) which makes it an older form than Exhibit
A. Thus, the trial courts finding regarding which form was of more
recent vintage was manifestly contradicted by the evidence on
record. No actual signature appears on Exhibit A except that of a
certain Maximo P. Noriga, Deputy Local Civil Registrar of the
Office of the Local Civil Registrar, Cagayan de Oro City, who
purportedly certified on July 6, 1977 that Exhibit A was a true copy
of respondents birth certificate. The names of the attendant at birth
(Petra Sambaan) and the local civil registrar (J.L. Rivera) in 1950
were typewritten with the notation (Sgd.) also merely typewritten
beside their names. The words A certified true copy: July 6, 1977
above the signature of Maximo P. Noriga on Exhibit A appear to be
inscribed by the same typewriter as the very entries in Exhibit A. It
would seem that Exhibit A and the information stated therein were
prepared and entered only in 1977. Significantly, Maximo P. Noriga
was never presented as a witness to identify Exhibit A. Said
document and the signature of Maximo P. Noriga therein were
identified by respondent herself whose self-serving testimony cannot
be deemed sufficient authentication of her birth certificate.
We cannot subscribe to the trial courts view that since the
entries in Exhibit 1 were handwritten, Exhibit 1 was the one of
dubious credibility. Verily, the certified true copies of the
handwritten birth certificate of respondent (petitioners Exhibits 1 and
8) were duly authenticated by two competent witnesses; namely,
Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the Office
of the City Civil Registrar, Cagayan de Oro City and Maribeth E.
Cacho (Ms. Cacho), Archivist of the National Statistics Office
(NSO), Sta. Mesa, Manila. Both witnesses testified that: (a) as part of
their official duties they have custody of birth records in their
respective offices,[23] and (b) the certified true copy of respondents
handwritten birth certificate is a faithful reproduction of the original
birth certificate registered in their respective offices.[24] Ms. Vidal,
during her testimony, even brought the original of the handwritten
birth certificate before the trial court and respondents counsel
confirmed that the certified true copy (which was eventually marked
as Exhibit 1) was a faithful reproduction of the original.[25] Ms. Vidal
likewise categorically testified that no other copy of respondents
birth certificate exists in their records except the handwritten birth
certificate.[26] Ms. Cacho, in turn, testified that the original of
respondents handwritten birth certificate found in the records of the
NSO Manila (from which Exhibit 8 was photocopied) was the one
officially transmitted to their office by the Local Civil Registry
Office of Cagayan de Oro.[27] Both Ms. Vidal and Ms. Cacho
testified and brought their respective offices copies of respondents
birth certificate in compliance with subpoenas issued by the trial
court and there is no showing that they were motivated by ill will or
bias in giving their testimonies. Thus, between respondents Exhibit
A and petitioners Exhibits 1 and 8, the latter documents deserve to be
given greater probative weight.
 Even assuming purely for the sake of argument that the birth
certificate presented by respondent (Exhibit A) is a reliable
document, the same on its face is insufficient to prove respondents
filiation to her alleged grandfather, Juan Gabatan. All that Exhibit A,
if it had been credible and authentic, would have proven was that
respondents mother was a certain Hermogena Clarito Gabatan. It
does not prove that same Hermogena Clarito Gabatan is the daughter
of Juan Gabatan. Even the CA held that the conflicting certificates of
live birth of respondent submitted by the parties only proved the
filiation of respondent to Hermogena.[28]
It was absolutely crucial to respondents cause of action that
she convincingly proves the filiation of her mother to Juan
Gabatan. To reiterate, to prove the relationship of respondents
mother to Juan Gabatan, our laws dictate that the best evidence of
such familial tie was the record of birth appearing in the Civil
Register, or an authentic document or a final judgment. In the
absence of these, respondent should have presented proof that her
mother enjoyed the continuous possession of the status of a
legitimate child. Only in the absence of these two classes of evidence
is the respondent allowed to present other proof admissible under the
Rules of Court of her mothers relationship to Juan Gabatan.
However, respondents mothers (Hermogenas) birth
certificate, which would have been the best evidence of Hermogenas
relationship to Juan Gabatan, was never offered as evidence at the
RTC. Neither did respondent present any authentic document or final
judgment categorically evidencing Hermogenas relationship to Juan
Gabatan.
Respondent relied on the testimony of her witnesses, Frisco
Lawan, Felicisima Nagac Pacana and Cecilia Nagac Villareal who
testified that they personally knew Hermogena (respondents mother)
and/or Juan Gabatan, that they knew Juan Gabatan was married to
Laureana Clarito and that Hermogena was the child of Juan and
Laureana.However, none of these witnesses had personal knowledge
of the fact of marriage of Juan to Laureana or the fact of birth of
Hermogena to Juan and Laureana. They were not yet born or were
very young when Juan supposedly married Laureana or when
Hermogena was born and they all admitted that none of them were
present at Juan and Laureanas wedding or Hermogenas birth. These
witnesses based their testimony on what they had been told by, or
heard from, others as young children. Their testimonies were, in a
word, hearsay.
Other circumstances prevent us from giving full faith to
respondents witnesses testimonies. The records would show that they
cannot be said to be credible and impartial witnesses. Frisco Lawan
testified that he was the son of Laureana by a man other than Juan
Gabatan and was admittedly not at all related to Juan Gabatan.[29] His
testimony regarding the relationships within the Gabatan family is
hardly reliable. As for Felicisima Nagac Pacana and Cecilia Nagac
Villareal who are children of Justa Gabatan Nagac,[30] this Court is
wary of according probative weight to their testimonies since
respondent admitted during her cross-examination that her
(respondents) husband is the son of Felicisima Nagac Pacana.[31] In
other words, although these witnesses are indeed blood relatives of
petitioners, they are also the mother and the aunt of respondents
husband. They cannot be said to be entirely disinterested in the
outcome of the case.
Aside from the testimonies of respondents witnesses, both
the RTC and the CA relied heavily on a photocopy of a Deed of
Absolute Sale[32] (Exhibit H) presented by respondent and which
appeared to be signed by the siblings and the heirs of the siblings of
Juan Gabatan. In this document involving the sale of a lot different
from Lot 3095 C-5, Hermogena Gabatan as heir of the deceased Juan
Gabatan was indicated as one of the vendors. The RTC deemed the
statement therein as an affirmation or recognition by Teofilo
Gabatan, petitioners predecessor in interest, that Hermogena Gabatan
[33]
was the heir of Juan Gabatan. The CA considered the same
statement as a declaration against interest on the part of Teofilo
[34]
Gabatan.
However, the admission of this Deed of Absolute Sale,
including its contents and the signatures therein, as competent
evidence was vigorously and repeatedly objected to by petitioners
counsel for being a mere photocopy and not being properly
authenticated.[35] After a close scrutiny of the said photocopy of the
Deed of Absolute Sale, this Court cannot uphold the admissibility of
the same.
Under the best evidence rule, when the subject of inquiry is
the contents of a document, no evidence shall be admissible other
than the original document itself.[36]Although the best evidence rule
admits of exceptions and there are instances where the presentation
of secondary evidence would be allowed, such as when the original
is lost or the original is a public record, the basis for the presentation
of secondary evidence must still be established. Thus, in Department
of Education Culture and Sports v. Del Rosario,[37] we held that a
party must first satisfactorily explain the loss of the best or primary
evidence before he can resort to secondary evidence. A party must
first present to the court proof of loss or other satisfactory
explanation for non-production of the original instrument.
In the case at bar, a perusal of the transcript of the testimony
of Felicisima Nagac Pacana (who identified the photocopy of the
Deed of Absolute Sale) plainly shows that she gave no testimony
regarding the whereabouts of the original, whether it was lost or
whether it was recorded in any public office.
There is an ostensible attempt to pass off Exhibit H as an
admissible public document. For this, respondent relied on the
stamped notation on the photocopy of the deed that it is a certified
true xerox copy and said notation was signed by a certain Honesto P.
Velez, Sr., Assessment Officer, who seems to be an officer in the
local assessors office.Regarding the authentication of public
documents, the Rules of Court[38] provide that the record of public
documents, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer
[39]
having legal custody of the record, or by his deputy. The
attestation of the certifying officer must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the
case may be.[40]
To begin with, no proof whatsoever was presented by
respondent that an original of Exhibit H was registered or exists in
the records of the local assessors office.Furthermore, the stamped
certification of Honesto P. Velez is insufficient authentication of
Exhibit H since Velezs certification did not state that Exhibit H was
a true copy from the original. Even worse, Velez was not presented
as a witness to attest that Exhibit H was a true copy from the
original. Indeed, it is highly doubtful that Velez could have made
such an attestation since the assessors office is not the official
repository of original notarized deeds of sale and could not have
been the legal custodian contemplated in the rules.
It is the notary public who is mandated by law to keep an
original of the Deed of Absolute Sale in his notarial register and to
forward the same to the proper court. It is the notary public or the
proper court that has custody of his notarial register that could have
produced the original or a certified true copy thereof. Instead, the
Deed of Absolute Sale was identified by Felicisima Nagac Pacana
who, despite appearing to be a signatory thereto, is not a
disinterested witness and as can be gleaned from her testimony, she
had no personal knowledge of the preparation of the alleged certified
true copy of the Deed of Absolute Sale. She did not even know who
secured a copy of Exhibit H from the assessors office.[41] To be sure,
the roundabout and defective manner of authentication of Exhibit H
renders it inadmissible for the purpose it was offered, i.e. as proof
that Teofilo Gabatan acknowledged or admitted the status of
Hermogena Gabatan as heir of Juan Gabatan.
Even if we are to overlook the lack of proper authentication
of Exhibit H and consider the same admissible, it still nonetheless
would have only provided proof that a certain Hermogena Gabatan
was the heir of Juan Gabatan. Exhibit H does not show the filiation
of respondent to either Hermogena Gabatan or Juan Gabatan. As
discussed above, the only document that respondent produced to
demonstrate her filiation to Hermogena Gabatan (respondents
Exhibit A) was successfully put in doubt by contrary evidence
presented by petitioners.
As for the issue of laches, we are inclined to likewise rule
against respondent. According to respondents own testimony,[42] Juan
Gabatan died sometime in 1933 and thus, the cause of action of the
heirs of Juan Gabatan to recover the decedents property from third
parties or to quiet title to their inheritance accrued in 1933. Yet,
respondent and/or her mother Hermogena, if they were truly the legal
heirs of Juan Gabatan, did not assert their rights as such. It is only in
1978 that respondent filed her first complaint to recover the subject
property, docketed as Civil Case No. 5840, against Rita Gabatan, the
[43]
widow of Teofilo Gabatan. However, that case was dismissed
without prejudice for failure to prosecute.[44] Again, respondent
waited until 1989 to refile her cause of action, i.e. the present
case.[45] She claimed that she waited until the death of Rita Gabatan
[46]
to refile her case out of respect because Rita was then already old.
We cannot accept respondents flimsy reason. It is precisely
because Rita Gabatan and her contemporaries (who might have
personal knowledge of the matters litigated in this case) were
her evidence were the circumstances that (a) she did not come to
court with clean hands for she presented a tampered/altered, if not
outright spurious, copy of her certificate of live birth and (b) she
unreasonably delayed the prosecution of her own cause of action. If
the Court cannot now affirm her claim, respondent has her own self
to blame.
WHEREFORE, the petition is GRANTED. The Court of
Appeals Decision in CA-G.R. CV No. 52273, affirming the decision
of the Regional Trial Court in Civil Case No. 89-092, is
hereby REVERSED and SET ASIDE. The complaint and amended
complaint in Civil Case No. 89-092 are DISMISSED for lack of
merit.
SO ORDERED.

advancing in age and might soon expire that respondent should have
exerted every effort to preserve valuable evidence and speedily
litigate her claim. As we held in Republic of the Philippines v. LUISA KHO MONTAER, G.R. No. 174975
Agunoy: Vigilantibus, sed non dormientibus, jura subveniunt, the law ALEJANDRO MONTAER, JR.,
aids the vigilant, not those who sleep on their rights[O]ne may not LILLIBETH MONTAER-
sleep on a right while expecting to preserve it in its pristine purity.[47] BARRIOS, AND RHODORA
ELEANOR MONTAER-
DALUPAN,
All in all, this Court finds that respondent dismally failed to
substantiate, with convincing, credible and independently verifiable Petitioners, Present:
proof, her assertion that she is the sole heir of Juan Gabatan and thus,
entitled to the property under litigation. Aggravating the weakness of
 This Petition for Certiorari and Prohibition seeks to set aside
PUNO, C.J., Chairperson, the Orders of the Sharia District Court, Fourth Sharia Judicial

- versus - CARPIO, District, Marawi City, dated August 22, 2006[1] and September 21,
2006.[2]
CORONA,

AZCUNA, and On August 17, 1956, petitioner Luisa Kho Montaer, a Roman

SHARIA DISTRICT COURT, LEONARDO-DE CASTRO, JJ. Catholic, married Alejandro Montaer, Sr. at the Immaculate
FOURTH SHARIA JUDICIAL Conception Parish in Cubao, Quezon City.[3]Petitioners Alejandro
DISTRICT, MARAWI CITY,
Montaer, Jr., Lillibeth Montaer-Barrios, and Rhodora Eleanor
LILING DISANGCOPAN, AND
ALMAHLEEN LILING S. Montaer-Dalupan are their children.[4] On May 26, 1995, Alejandro
MONTAER, Montaer, Sr. died.[5]
Respondents. Promulgated:
On August 19, 2005, private respondents Liling Disangcopan and her
daughter, Almahleen Liling S. Montaer, both Muslims, filed a
JANUARY 20, 2009 Complaint for the judicial partition of properties before the Sharia

x----------------------------------------------------------------------------------------- District Court.[6] The said complaint was entitled Almahleen Liling S.
x Montaer and Liling M. Disangcopan v. the Estates and Properties of
Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K.
Montaer, Alejandro Kho Montaer, Jr., and Rhodora Eleanor K.
DECISION
Montaer, and docketed as Special Civil Action No. 7-05.[7] In the said
complaint, private respondents made the following allegations: (1)
PUNO, C.J.: in May 1995, Alejandro Montaer, Sr. died; (2) the late Alejandro
Montaer, Sr. is a Muslim; (3) petitioners are the first family of the
decedent; (4) Liling Disangcopan is the widow of the decedent; (5) On December 12, 2005, private respondents filed a Motion
Almahleen Liling S. Montaer is the daughter of the decedent; for Reconsideration.[12] On December 28, 2005, petitioners filed an
and (6) the estimated value of and a list of the properties Opposition to the Motion for Reconsideration, alleging that the
comprising the estate of the decedent.[8] Private respondents motion for reconsideration lacked a notice of hearing.[13] On January
prayed for the Sharia District Court to order, among others, the 17, 2006, the Sharia District Court denied petitioners
following: (1) the partition of the estate of the decedent; and (2) the opposition.[14]Despite finding that the said motion for
appointment of an administrator for the estate of the decedent.[9] reconsideration lacked notice of hearing, the district court held that
such defect was cured as petitioners were notified of the existence
Petitioners filed an Answer with a Motion to Dismiss mainly on the
of the pleading, and it took cognizance of the said motion.[15] The
following grounds: (1) the Sharia District Court has no jurisdiction
Sharia District Court also reset the hearing for the motion for
over the estate of the late Alejandro Montaer, Sr., because he was a
reconsideration.[16]
Roman Catholic; (2) private respondents failed to pay the correct
amount of docket fees; and (3) private respondents complaint is In its first assailed order dated August 22, 2006, the Sharia
barred by prescription, as it seeks to establish filiation between District Court reconsidered its order of dismissal dated November
Almahleen Liling S. Montaer and the decedent, pursuant to Article 22, 2005.[17] The district court allowed private respondents to
175 of the Family Code.[10] adduce further evidence.[18] In its second assailed order dated
September 21, 2006, the Sharia District Court ordered the
On November 22, 2005, the Sharia District Court dismissed the
continuation of trial, trial on the merits, adducement of further
private respondents complaint. The district court held that
evidence, and pre-trial conference.[19]
Alejandro Montaer, Sr. was not a Muslim, and its jurisdiction
extends only to the settlement and distribution of the estate of Seeking recourse before this Court, petitioners raise the
deceased Muslims.[11] following issues:
 I.
RESPONDENT SHARIA DISTRICT COURTMARAWI
RESPONDENT SHARIA DISTRICT
CITY COMMITTED GRAVE ABUSE OF DISCRETION
COURT MARAWI CITY LACKS JURISDICTION OVER
AMOUNTING TO LACK OF JURISDICTION WHEN IT
PETITIONERS WHO ARE ROMAN CATHOLICS AND
DENIED THE OPPOSITION OF PETITIONERS AND
NON-MUSLIMS.
THEN GRANTED THE MOTION FOR
RECONSIDERATION OF RESPONDENTS LILING
DISANGCOPAN, ET AL. WHICH WAS FATALLY
II. DEFECTIVE FOR LACK OF A NOTICE OF HEARING.

RESPONDENT SHARIA DISTRICT V.

COURT MARAWI CITY DID NOT ACQUIRE
JURISDICTION OVER THE ESTATES AND PROPERTIES
OF THE LATE ALEJANDRO MONTAER, SR. WHICH IS
RESPONDENT SHARIA DISTRICT
NOT A NATURAL OR JURIDICAL PERSON WITH
COURTMARAWI CITY COMMITTED GRAVE ABUSE
CAPACITY TO BE SUED.
OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05
FOR TRIAL EVEN IF THE COMPLAINT PLAINLY
III. REVEALS THAT RESPONDENT ALMAHLEEN LILING S.
MONTAER SEEKS RECOGNITION FROM ALEJANDRO
MONTAER, SR. WHICH CAUSE OF ACTION
RESPONDENT SHARIA DISTRICT COURT DID NOT PRESCRIBED UPON THE DEATH OF ALEJANDRO
ACQUIRE JURISDICTION OVER THE COMPLAINT OF MONTAER, SR. ON MAY 26, 1995.
PRIVATE RESPONDENTS AGAINST PETITIONERS DUE
TO NON-PAYMENT OF THE FILING AND DOCKETING
FEES.

IV.
 ARTICLE 143. Original jurisdiction. (1) The Shari'a
In their Comment to the Petition for Certiorari, private respondents
District Court shall have exclusive original
stress that the Sharia District Court must be given the opportunity jurisdiction over:
to hear and decide the question of whether the decedent is a
xxxx
Muslim in order to determine whether it has jurisdiction.[20]
(b) All cases involving disposition, distribution and
Jurisdiction: Settlement of the Estate of Deceased Muslims settlement of the estate of deceased Muslims,
probate of wills, issuance of letters of
Petitioners first argument, regarding the Sharia District administration or appointment of administrators or
executors regardless of the nature or the aggregate
Courts jurisdiction, is dependent on a question of fact, whether value of the property.
the late Alejandro Montaer, Sr. is a Muslim. Inherent in this
argument is the premise that there has already been a
determination resolving such a question of fact. It bears
The determination of the nature of an action or proceeding is
emphasis, however, that the assailed orders did not determine
controlled by the averments and character of the relief sought in
whether the decedent is a Muslim. The assailed orders did,
the complaint or petition.[21] The designation given by parties to
however, set a hearing for the purpose of resolving this issue.
their own pleadings does not necessarily bind the courts to treat it
according to the said designation. Rather than rely on a falsa
Article 143(b) of Presidential Decree No. 1083,
descriptio or defective caption, courts are guided by the substantive
otherwise known as the Code of Muslim Personal Laws of
averments of the pleadings.[22]
the Philippines, provides that the Sharia District Courts have
exclusive original jurisdiction over the settlement of the estate
Although private respondents designated the pleading filed
of deceased Muslims:
before the Sharia District Court as a Complaint for judicial partition
of properties, it is a petition for the issuance of letters of
administration, settlement, and distribution of the estate of the
decedent. It contains sufficient jurisdictional facts required for the of jurisdiction which is dependent on a question of fact does not
settlement of the estate of a deceased Muslim,[23] such as the fact of render the court to lose or be deprived of its jurisdiction.[29]
Alejandro Montaer, Sr.s death as well as the allegation that he is a
The same rationale applies to an answer with a motion to
Muslim. The said petition also contains an enumeration of the
dismiss.[30] In the case at bar, the Sharia District Court is not
names of his legal heirs, so far as known to the private respondents,
deprived of jurisdiction simply because petitioners raised as a
and a probable list of the properties left by the decedent, which are
defense the allegation that the deceased is not a Muslim. The Sharia
the very properties sought to be settled before a probate court.
District Court has the authority to hear and receive evidence to
Furthermore, the reliefs prayed for reveal that it is the intention of
determine whether it has jurisdiction, which requires an a
the private respondents to seek judicial settlement of the estate of
priori determination that the deceased is a Muslim. If after hearing,
the decedent.[24] These include the following: (1) the prayer for the
the Sharia District Court determines that the deceased was not in fact
partition of the estate of the decedent; and (2) the prayer for the
a Muslim, the district court should dismiss the case for lack of
appointment of an administrator of the said estate.
jurisdiction.
We cannot agree with the contention of the petitioners that
Special Proceedings
the district court does not have jurisdiction over the case because of
an allegation in their answer with a motion to dismiss that Montaer, The underlying assumption in petitioners second argument,
Sr. is not a Muslim. Jurisdiction of a court over the nature of the that the proceeding before the Sharia District Court is an ordinary
action and its subject matter does not depend upon the defenses set civil action against a deceased person, rests on an erroneous
[25] [26]
forth in an answer or a motion to dismiss. Otherwise, understanding of the proceeding before the court a quo. Part of the
jurisdiction would depend almost entirely on the defendant[27] or confusion may be attributed to the proceeding before the Sharia
result in having a case either thrown out of court or its proceedings District Court, where the parties were designated either as plaintiffs
[28]
unduly delayed by simple stratagem. Indeed, the defense of lack or defendants and the case was denominated as a special civil
action. We reiterate that the proceedings before the court a quo are
for the issuance of letters of administration, settlement, and
distribution of the estate of the deceased, which is a special
proceeding. Section 3(c) of the Rules of Court (Rules) defines a
special proceeding as a remedy by which a party seeks to establish a
status, a right, or a particular fact. This Court has applied the Rules,
particularly the rules on special proceedings, for the settlement of
the estate of a deceased Muslim.[31] In a petition for the issuance of
letters of administration, settlement, and distribution of estate, the
applicants seek to establish the fact of death of the decedent and
later to be duly recognized as among the decedents heirs, which
would allow them to exercise their right to participate in the
settlement and liquidation of the estate of the decedent.[32] Here,
the respondents seek to establish the fact of Alejandro Montaer,
Sr.s death and, subsequently, for private respondent Almahleen
Liling S. Montaer to be recognized as among his heirs, if such is the
case in fact.
Petitioners argument, that the prohibition against a
decedent or his estate from being a party defendant in a civil
action[33] applies to a special proceeding such as the settlement of
the estate of the deceased, is misplaced. Unlike a civil action which
has definite adverse parties, a special proceeding has no definite
adverse party. The definitions of a civil action and a special
proceeding, respectively, in the Rules illustrate this difference. A
civil action, in which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a
wrong[34] necessarily has definite adverse parties, who are either the
plaintiff or defendant.[35] On the other hand, a special proceeding,
by which a party seeks to establish a status, right, or a particular
fact,[36] has one definite party, who petitions or applies for a
declaration of a status, right, or particular fact, but no definite
adverse party. In the case at bar, it bears emphasis that the estate
of the decedent is not being sued for any cause of action. As a
special proceeding, the purpose of the settlement of the estate of
the decedent is to determine all the assets of the estate,[37] pay its
liabilities,[38] and to distribute the residual to those entitled to the
same.[39]
Docket Fees
Petitioners third argument, that jurisdiction was not
validly acquired for non-payment of docket fees, is untenable.
Petitioners point to private respondents petition in the
proceeding before the court a quo, which contains an allegation
estimating the decedents estate as the basis for the conclusion In the case at bar, petitioners did not present the clerk
that what private respondents paid as docket fees was of courts assessment of the docket fees. Moreover, the records
insufficient. Petitioners argument essentially involves two do not include this assessment. There can be no determination
aspects: (1) whether the clerk of court correctly assessed the of whether private respondents correctly paid the docket fees
docket fees; and (2) whether private respondents paid the without the clerk of courts assessment.
correct assessment of the docket fees.
Exception to Notice of Hearing
Filing the appropriate initiatory pleading and the
Petitioners fourth argument, that private respondents
payment of the prescribed docket fees vest a trial court with
motion for reconsideration before the Sharia District Court is
jurisdiction over the subject matter.[40] If the party filing the
defective for lack of a notice of hearing, must fail as the unique
case paid less than the correct amount for the docket fees
circumstances in the present case constitute an exception to this
because that was the amount assessed by the clerk of court, the
requirement. The Rules require every written motion to be set for
responsibility of making a deficiency assessment lies with the
hearing by the applicant and to address the notice of hearing to all
same clerk of court.[41] In such a case, the lower court concerned
parties concerned.[45] The Rules also provide that no written motion
will not automatically lose jurisdiction, because of a partys
set for hearing shall be acted upon by the court without proof of
reliance on the clerk of courts insufficient assessment of the
service thereof.[46] However, the Rules allow a liberal construction of
docket fees.[42] As every citizen has the right to assume and trust
its provisions in order to promote [the] objective of securing a just,
that a public officer charged by law with certain duties knows
speedy, and inexpensive disposition of every action and
his duties and performs them in accordance with law, the party
proceeding.[47] Moreover, this Court has upheld a liberal
filing the case cannot be penalized with the clerk of courts
construction specifically of the rules of notice of hearing in cases
insufficient assessment.[43] However, the party concerned will
where a rigid application will result in a manifest failure or
be required to pay the deficiency.[44]
miscarriage of justice especially if a party successfully shows that
the alleged defect in the questioned final and executory judgment is
not apparent on its face or from the recitals contained therein.[48] In
these exceptional cases, the Court considers that no party can even
claim a vested right in technicalities, and for this reason, cases
should, as much as possible, be decided on the merits rather than
on technicalities.[49]
The case at bar falls under this exception. To deny the
Sharia District Court of an opportunity to determine whether it has
jurisdiction over a petition for the settlement of the estate of a
decedent alleged to be a Muslim would also deny its inherent
power as a court to control its process to ensure conformity with
the law and justice. To sanction such a situation simply because of a
lapse in fulfilling the notice requirement will result in a miscarriage
of justice.
In addition, the present case calls for a liberal construction of the
rules on notice of hearing, because the rights of the petitioners
were not affected. This Court has held that an exception to the rules
on notice of hearing is where it appears that the rights of the
adverse party were not affected.[50] The purpose for the notice of
hearing coincides with procedural due process,[51] for the court to
determine whether the adverse party agrees or objects to the
motion, as the Rules do not fix any period within which to file a
reply or opposition.[52] In probate proceedings, what the law
prohibits is not the absence of previous notice, but the absolute
absence thereof and lack of opportunity to be heard.[53] In the case
at bar, as evident from the Sharia District Courts order dated
January 17, 2006, petitioners counsel received a copy of the motion
for reconsideration in question. Petitioners were certainly not
denied an opportunity to study the arguments in the said motion as
they filed an opposition to the same. Since the Sharia District Court
reset the hearing for the motion for reconsideration in the same
order, petitioners were not denied the opportunity to object to the
said motion in a hearing. Taken together, these circumstances show
that the purpose for the rules of notice of hearing, procedural
process, was duly observed.
Prescription and Filiation
Petitioners fifth argument is premature. Again, the Sharia District
Court has not yet determined whether it has jurisdiction to settle
the estate of the decedent. In the event that a special proceeding
for the settlement of the estate of a decedent is pending, questions
regarding heirship, including prescription in relation to recognition
and filiation, should be raised and settled in the said

proceeding.[54] The court, in its capacity as a probate court, has
jurisdiction to declare who are the heirs of the decedent.[55] In the
case at bar, the determination of the heirs of the decedent depends
on an affirmative answer to the question of whether the Sharia
District Court has jurisdiction over the estate of the decedent.
IN VIEW WHEREOF, the petition is DENIED. The Orders of
the Sharia District Court, dated August 22, 2006 and September 21,
2006 respectively, are AFFIRMED. Cost against petitioners.
SO ORDERED.
G.R. No. 159507 April 19, 2006
ANICETO G. SALUDO, JR., Petitioner,
vs.
AMERICAN EXPRESS INTERNATIONAL, INC., and/or IAN
T. FISH and DOMINIC MASCRINAS, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the Petition for Review on Certiorari filed
by Aniceto G. Saludo, Jr. seeking to reverse and set aside the
Decision1 dated May 22, 2003 of the Court of Appeals in CA-
G.R. SP No. 69553. The assailed decision directed the
Regional Trial Court (RTC) of Maasin City, Southern Leyte,
Branch 25 thereof, to vacate and set aside its Orders dated
September 10, 2001 and January 2, 2002 in Civil Case No. R-
3172, and enjoined the presiding judge2 thereof from
conducting further proceedings in said case, except to dismiss
the complaint filed therewith on ground of improper venue. The
petition also seeks to reverse and set aside the appellate
court's Resolution dated August 14, 2003 denying the motion
for reconsideration of the assailed decision.
The factual and procedural antecedents are as follows:
Aniceto G. Saludo, Jr. filed a complaint for damages against
the American Express International, Inc. (AMEX) and/or its
officers Ian T. Fish, Vice-President and Country Manager, and
Dominic Mascrinas, Head of Operations, with the RTC of
Maasin City, Southern Leyte. The case was raffled to Branch
25 of the said court.
The complaint alleged, inter alia, that plaintiff (herein petitioner
Saludo) "is a Filipino citizen, of legal age, and a member of the
House of Representatives and a resident of Ichon, Macrohon,
Southern Leyte, Philippines." On the other hand, defendant
(herein respondent AMEX, Inc.) "is a corporation doing
business in the Philippines and engaged in providing credit
and other credit facilities and allied services with office
address at 4th floor, ACE Building, Rada Street, Legaspi
Village, Makati City." The other defendants (herein
respondents Fish and Mascrinas) are officers of respondent
AMEX, and may be served with summons and other court
processes at their office address.
The complaint's cause of action stemmed from the alleged
wrongful dishonor of petitioner Saludo's AMEX credit card and
the supplementary card issued to his daughter. The first
dishonor happened when petitioner Saludo's daughter used
her supplementary credit card to pay her purchases in the
United States some time in April 2000. The second dishonor
occurred when petitioner Saludo used his principal credit card
to pay his account at the Hotel Okawa in Tokyo, Japan while
he was there with other delegates from the Philippines to
attend the Congressional Recognition in honor of Mr. Hiroshi
Tanaka.
The dishonor of these AMEX credit cards were allegedly
unjustified as they resulted from respondents' unilateral act of
suspending petitioner Saludo's account for his failure to pay its
balance covering the period of March 2000. Petitioner Saludo
denied having received the corresponding statement of
account. Further, he was allegedly wrongfully charged for late
payment in June 2000. Subsequently, his credit card and its
supplementary cards were canceled by respondents on July
20, 2000.
Petitioner Saludo claimed that he suffered great
inconvenience, wounded feelings, mental anguish,
embarrassment, humiliation and besmirched political and
professional standing as a result of respondents' acts which
were committed in gross and evident bad faith, and in wanton,
reckless and oppressive manner. He thus prayed that
respondents be adjudged to pay him, jointly and severally,
actual, moral and exemplary damages, and attorney's fees.
In their answer, respondents specifically denied the allegations
in the complaint. Further, they raised the affirmative defenses
of lack of cause of action and improper venue. On the latter,
respondents averred that the complaint should be dismissed
on the ground that venue was improperly laid because none of
the parties was a resident of Leyte. They alleged that
respondents were not residents of Southern Leyte. Moreover,
notwithstanding the claim in his complaint, petitioner Saludo
was not allegedly a resident thereof as evidenced by the fact
that his community tax certificate, which was presented when
he executed the complaint's verification and certification of
non-forum shopping, was issued at Pasay City. To buttress
their contention, respondents pointed out that petitioner
Saludo's complaint was prepared in Pasay City and signed by
a lawyer of the said city. Respondents prayed for the dismissal
of the complaint a quo.
Thereafter, respondents filed an Opposition to Ex-Parte Motion
(to Set Case for Pre-Trial) and Motion for Preliminary Hearing
(on Affirmative Defense of Improper Venue) to which petitioner
Saludo filed his Comments and/or Objections to the Affirmative
Defense of Improper Venue. He asserted that any allegation
refuting his residency in Southern Leyte was baseless and
unfounded considering that he was the congressman of the
lone district thereof at the time of the filing of his complaint. He
urged the court a quo to take judicial notice of this particular
fact. As a member of Congress, he possessed all the
qualifications prescribed by the Constitution including that of
being a resident of his district. He was also a member of the
Integrated Bar of the Philippines-Southern Leyte Chapter, and
has been such ever since his admission to the Bar. His
community tax certificate was issued at Pasay City only
because he has an office thereat and the office messenger
obtained the same in the said city. In any event, the
community tax certificate is not determinative of one's
residence.
In the Order dated September 10, 2001, the court a quo
denied the affirmative defenses interposed by respondents. It
found the allegations of the complaint sufficient to constitute a
cause of action against respondents. The court a quo likewise
denied respondents' affirmative defense that venue was
improperly laid. It reasoned, thus:
x x x [T]he fact alone that the plaintiff at the time he filed the
complaint was and still is, the incumbent Congressman of the
Lone District of Southern Leyte with residence at Ichon,
Macrohon, Southern Leyte, is enough to dispell any and all
doubts about his actual residence. As a high-ranking
government official of the province, his residence there can be
taken judicial notice of. As such his personal, actual and
physical habitation or his actual residence or place of abode
can never be in some other place but in Ichon, Macrohon,
Southern Leyte. It is correctly stated by the plaintiff, citing the
case of Core v. Core, 100 Phil. 321 that, "residence, for
purposes of fixing venue of an action, is synonymous with
domicile. This is defined as the permanent home, the place to
which, whenever absent for business or pleasure, one intends
to return, and depends on the facts and circumstances, in the
sense that they disclose intent. A person can have but one
domicile at a time. A man can have but one domicile for one
and the same purpose at any time, but he may have numerous
places of residence. Venue could be at place of his residence.
(Masa v. Mison, 200 SCRA 715 [1991])3
Respondents sought the reconsideration thereof but the court
a quo denied the same in the Order dated January 2, 2002.
They then filed with the appellate court a petition for certiorari
and prohibition alleging grave abuse of discretion on the part
of the presiding judge of the court a quo in issuing the
September 10, 2001 and January 2, 2002 Orders. Upon
respondents' posting of a bond, the appellate court issued on
March 14, 2002 a temporary restraining order which enjoined
the presiding judge of the court a quo from conducting further
proceedings in Civil Case No. R-3172.
On May 22, 2003, the appellate court rendered the assailed
decision granting respondents' petition for certiorari as it found
that venue was improperly laid. It directed the court a quo to
vacate and set aside its Orders dated September 10, 2001
and January 2, 2002, and enjoined the presiding judge thereof
from further proceeding in the case, except to dismiss the
complaint.
The appellate court explained that the action filed by petitioner
Saludo against respondents is governed by Section 2, Rule 4
of the Rules of Court. The said rule on venue of personal
actions basically provides that personal actions may be
commenced and tried where plaintiff or any of the principal
plaintiffs resides, or where defendant or any of the principal
defendants resides, at the election of plaintiff.
Venue was improperly laid in the court a quo, according to the
appellate court, because not one of the parties was a resident
of Southern Leyte. Specifically, it declared that petitioner
Saludo was not a resident thereof. The appellate court
pronounced that, for purposes of venue, the residence of a
person is his personal, actual or physical habitation, or his
actual residence or place of abode, which may not necessarily
be his legal residence or domicile provided he resides therein
with continuity and consistency.4
The appellate court quoted the following discussion in Koh v.
Court of Appeals5 where the Court distinguished the terms
"residence" and "domicile" in this wise:
x x x [T]he term domicile is not exactly synonymous in legal
contemplation with the term residence, for it is [an] established
principle in Conflict of Laws that domicile refers to the
relatively more permanent abode of a person while residence
applies to a temporary stay of a person in a given place. In
fact, this distinction is very well emphasized in those cases
where the Domiciliary Theory must necessarily supplant the
Nationality Theory in cases involving stateless persons.
xxxx
"There is a difference between domicile and residence.
Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed permanent
residence to which when absent, one has the intention of
returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is
residence coupled with intention to remain for an unlimited
time. A man can have but one domicile for one and the same
purpose at any time, but he may have numerous places of
residence. His place of residence generally is his place of
domicile, but is not by any means, necessarily so since no
length of residence without intention of remaining will
constitute domicile."6 (Italicized for emphasis)
In holding that petitioner Saludo is not a resident of Maasin
City, Southern Leyte, the appellate court referred to his
community tax certificate, as indicated in his complaint's
verification and certification of non-forum shopping, which was
issued at Pasay City. Similarly, it referred to the same
community tax certificate, as indicated in his complaint for
deportation filed against respondents Fish and Mascrinas.
Under Republic Act No. 7160,7 the community tax certificate
shall be paid in the place of residence of the individual, or in
the place where the principal office of the juridical entity is
located.8 It also pointed out that petitioner Saludo's law office,
which was also representing him in the present case, is in
Pasay City. The foregoing circumstances were considered by
the appellate court as judicial admissions of petitioner Saludo
which are conclusive upon him and no longer required proof.
The appellate court chided the court a quo for stating that as
incumbent congressman of the lone district of Southern Leyte,
judicial notice could be taken of the fact of petitioner Saludo's
residence thereat. No evidence had yet been adduced that
petitioner Saludo was then the congressman of Southern
Leyte and actual resident of Ichon, Macrohon of the said
province.
The appellate court held that, based on his complaint,
petitioner Saludo was actually residing in Pasay City. It faulted
him for filing his complaint with the court a quo when the said
venue is inconvenient to the parties to the case. It opined that
under the rules, the possible choices of venue are Pasay City
or Makati City, or any place in the National Capital Judicial
Region, at the option of petitioner Saludo.
It stressed that while the choice of venue is given to plaintiff,
said choice is not left to his caprice and cannot deprive a
defendant of the rights conferred upon him by the Rules of
Court.9 Further, fundamental in the law governing venue of
actions that the situs for bringing real and personal civil actions
is fixed by the rules to attain the greatest possible convenience
to the party litigants by taking into consideration the maximum
accessibility to them - i.e., to both plaintiff and defendant, not
only to one or the other - of the courts of justice.10
The appellate court concluded that the court a quo should
have given due course to respondents' affirmative defense of
improper venue in order to avoid any suspicion that petitioner
Saludo's motive in filing his complaint with the court a quo was
only to vex and unduly inconvenience respondents or even to
wield influence in the outcome of the case, petitioner Saludo
being a powerful and influential figure in the said province. The
latter circumstance could be regarded as a "specie of forum
shopping" akin to that in Investors Finance Corp. v.
Ebarle11 where the Court mentioned that the filing of the civil
action before the court in Pagadian City "was a specie of
forum shopping" considering that plaintiff therein was an
influential person in the locality.
The decretal portion of the assailed Decision dated May 22,
2003 of the appellate court reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the
challenged orders must be, as they hereby are, VACATED
and SET ASIDE and the respondent judge, or any one acting
in his place or stead, is instructed and enjoined to desist from
further proceeding in the case, except to dismiss it. The
temporary restraining order earlier issued is hereby converted
into a writ of preliminary injunction, upon the posting this time
by petitioners [herein respondents], within five (5) days from
receipt of this decision, of a bond in the amount of Five Million
Pesos (P5,000,000.00), to answer for all damages that private
respondent [herein petitioner] may sustain by reason of the
issuance of such injunction should the Court finally decide that
petitioners are not entitled thereto. Private respondent, if he so
minded, may refile his case for damages before the Regional
Trial Court of Makati City or Pasay City, or any of the Regional
Trial Courts of the National Capital Judicial Region. Without
costs.
SO ORDERED.12
Petitioner Saludo sought the reconsideration of the said
decision but the appellate court, in the Resolution dated
August 14, 2003, denied his motion for reconsideration.
Hence, he filed the instant petition for review with the Court
alleging that:
The Court of Appeals, (Special Fourth Division), in
promulgating the afore-mentioned Decision and Resolution,
has decided a question of substance in a way probably not in
accord with law or with applicable decisions of this Honorable
Court.
(a) the Court of Appeals erred in not taking judicial
notice of the undisputed fact that herein petitioner is
the incumbent congressman of the lone district of
Southern Leyte and as such, he is a residence (sic) of
said district;
(b) the Court of Appeals erred in dismissing the
complaint on the basis of improper venue due to the
alleged judicial admission of herein petitioner;
(c) the Court of Appeals in dismissing the complaint
ignored applicable decisions of this Honorable Court;
and1avvphil.net
(d) the Court of Appeals erred in deciding that herein
petitioner violated the rules on venue, and even
speculated that herein petitioner's motive in filing the
complaint in Maasin City was only to vex the
respondents.13
In gist, the sole substantive issue for the Court's resolution is
whether the appellate court committed reversible error in
holding that venue was improperly laid in the court a quo in
Civil Case No. R-3172 because not one of the parties,
including petitioner Saludo, as plaintiff therein, was a resident
of Southern Leyte at the time of filing of the complaint.
The petition is meritorious.
Petitioner Saludo's complaint for damages against
respondents before the court a quo is a personal action. As
such, it is governed by Section 2, Rule 4 of the Rules of Courts
which reads:
SEC. 2. Venue of personal actions. - All other actions may be
commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the
plaintiff.
The choice of venue for personal actions cognizable by the
RTC is given to plaintiff but not to plaintiff's caprice because
the matter is regulated by the Rules of Court.14 The rule on
venue, like other procedural rules, is designed to insure a just
and orderly administration of justice, or the impartial and
evenhanded determination of every action and
proceeding.15 The option of plaintiff in personal actions
cognizable by the RTC is either the place where defendant
resides or may be found, or the place where plaintiff resides. If
plaintiff opts for the latter, he is limited to that place.16
Following this rule, petitioner Saludo, as plaintiff, had opted to
file his complaint with the court a quo which is in Maasin City,
Southern Leyte. He alleged in his complaint that he was a
member of the House of Representatives and a resident of
Ichon, Macrohon, Southern Leyte to comply with the residency
requirement of the rule.
However, the appellate court, adopting respondents' theory,
made the finding that petitioner Saludo was not a resident of
Southern Leyte at the time of the filing of his complaint. It
hinged the said finding mainly on the fact that petitioner
Saludo's community tax certificate, indicated in his complaint's
verification and certification of non-forum shopping, was
issued at Pasay City. That his law office is in Pasay City was
also taken by the appellate court as negating petitioner
Saludo's claim of residence in Southern Leyte.
The appellate court committed reversible error in finding that
petitioner Saludo was not a resident of Southern Leyte at the
time of the filing of his complaint, and consequently holding
that venue was improperly laid in the court a quo. In Dangwa
Transportation Co., Inc. v. Sarmiento,17 the Court had the
occasion to explain at length the meaning of the term "resides"
for purposes of venue, thus:
In Koh v. Court of Appeals, we explained that the term
"resides" as employed in the rule on venue on personal
actions filed with the courts of first instance means the place of
abode, whether permanent or temporary, of the plaintiff or the
defendant, as distinguished from "domicile" which denotes a
fixed permanent residence to which, when absent, one has the
intention of returning.
"It is fundamental in the law governing venue of actions (Rule
4 of the Rules of Court) that the situs for bringing real and
personal civil actions are fixed by the rules to attain the
greatest convenience possible to the parties-litigants by taking
into consideration the maximum accessibility to them of the
courts of justice. It is, likewise, undeniable that the term
domicile is not exactly synonymous in legal contemplation with
the term residence, for it is an established principle in Conflict
of Laws that domicile refers to the relatively more permanent
abode of a person while residence applies to a temporary stay
of a person in a given place. In fact, this distinction is very well
emphasized in those cases where the Domiciliary Theory must
necessarily supplant the Nationality Theory in cases involving
stateless persons.
"This Court held in the case of Uytengsu v. Republic, 50 O.G.
4781, October, 1954, reversing its previous stand in Larena v.
Ferrer, 61 Phil. 36, and Nuval v. Guray, 52 Phil. 645, that -
'There is a difference between domicile and residence.
Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed permanent
residence to which when absent, one has the intention of
returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited
time. A man can have but one domicile for one and the same
purpose at any time, but he may have numerous places of
residence. His place of residence generally is his place of
domicile, but is not by any means, necessarily so since no
length of residence without intention of remaining will
constitute domicile.' (Italicized for emphasis)
"We note that the law on venue in Courts of First Instance
(Section 2, of Rule 4, Rules of Court) in referring to the parties
utilizes the words 'resides or may be found,' and not 'is
domiciled,' thus:
'Sec. 2(b) Personal actions - All other actions may be
commenced and tried where the defendant or any of the
defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff.'
(Italicized for emphasis)
"Applying the foregoing observation to the present case, We
are fully convinced that private respondent Coloma's
protestations of domicile in San Nicolas, Ilocos Norte, based
on his manifested intention to return there after the retirement
of his wife from government service to justify his bringing of an
action for damages against petitioner in the C.F.I. of Ilocos
Norte, is entirely of no moment since what is of paramount
importance is where he actually resided or where he may be
found at the time he brought the action, to comply substantially
with the requirements of Sec. 2(b) of Rule 4, Rules of Court,
on venue of personal actions." (Koh v. Court of Appeals,
supra, pp. 304-305.)
The same construction of the word "resides" as used in
Section 1, Rule 73, of the Revised Rules of Court, was
enunciated in Fule v. Court of Appeals, et al. (G.R. No. L-
40502) and Fule v. Hon. Ernani C. Paño, et al. (G.R. No. L-
42670), decided on November 29, 1976. Thus, this Court, in
the aforecited cases, stated:
"2. But, the far-ranging question is this: What does the term
'resides' mean? Does it refer to the actual residence or
domicile of the decedent at the time of his death? We lay down
the doctrinal rule that the term 'resides' connotes ex vi termini
'actual residence' as distinguished from 'legal residence or
domicile.' This term 'resides,' like the terms 'residing' and
'residence' is elastic and should be interpreted in the light of
the object or purposes of the statute or rule in which it is
employed. In the application of venue statutes and rules -
Section 1, Rule 73 of the Revised Rules of Court is of such
nature - residence rather than domicile is the significant factor.
Even where the statute uses the word 'domicile' still it is
construed as meaning residence and not domicile in the
technical sense. Some cases make a distinction between the
terms 'residence' and 'domicile' but as generally used in
statutes fixing venue, the terms are synonymous, and convey
the same meaning as the term 'inhabitant.' In other words,
'resides' should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular
sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and also
an intention to make it one's domicile. No particular length of
time of residence is required though; however, the residence
must be more than temporary."18
There is no dispute that petitioner Saludo was the
congressman or the representative of the lone district of
Southern Leyte at the time of filing of his complaint with the
court a quo. Even the appellate court admits this fact as it
states that "it may be conceded that private respondent ever
so often travels to Maasin City, Southern Leyte, because he is
its representative in the lower house."19
As a member of the House of Representatives, petitioner
Saludo was correctly deemed by the court a quo as
possessing the requirements for the said position,20 including
that he was then a resident of the district which he was
representing, i.e., Southern Leyte. Significantly, for purposes
of election law, the term "residence" is synonymous with
"domicile," thus:
x x x [T]he Court held that "domicile" and "residence" are
synonymous. The term "residence," as used in the election
law, imports not only an intention to reside in a fixed place but
also personal presence in that place, coupled with conduct
indicative of such intention. "Domicile" denotes a fixed
permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. x x x21
It can be readily gleaned that the definition of "residence" for
purposes of election law is more stringent in that it is equated
with the term "domicile." Hence, for the said purpose, the term
"residence" imports "not only an intention to reside in a fixed
place but also personal presence in that place, coupled with
conduct indicative of such intention."22When parsed, therefore,
the term "residence" requires two elements: (1) intention to
reside in the particular place; and (2) personal or physical
presence in that place, coupled with conduct indicative of such
intention. As the Court elucidated, "the place where a party
actually or constructively has a permanent home, where he, no
matter where he may be found at any given time, eventually
intends to return and remain, i.e., his domicile, is that to which
the Constitution refers when it speaks of residence for the
purposes of election law."23
On the other hand, for purposes of venue, the less technical
definition of "residence" is adopted. Thus, it is understood to
mean as "the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular
sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and also
an intention to make it one's domicile."24
Since petitioner Saludo, as congressman or the lone
representative of the district of Southern Leyte, had his
residence (or domicile) therein as the term is construed in
relation to election laws, necessarily, he is also deemed to
have had his residence therein for purposes of venue for filing
personal actions. Put in another manner, Southern Leyte, as
the domicile of petitioner Saludo, was also his residence, as
the term is understood in its popular sense. This is because
"residence is not domicile, but domicile is residence coupled
with the intention to remain for an unlimited time."
Reliance by the appellate court on Koh v. Court of Appeals25 is
misplaced. Contrary to its holding,26 the facts of the present
case are not similar to the facts therein. In Koh, the complaint
was filed with the Court of First Instance in San Nicolas, Ilocos
Norte by plaintiff who admitted that he was a resident of
Kamias, Quezon City. Save for the fact that he grew up in San
Nicolas, Ilocos Norte and that he manifested the intent to
return there after retirement, plaintiff therein had not
established that he was actually a resident therein at the time
of the filing of his complaint. Neither did he establish that he
had his domicile therein because although he manifested the
intent to go back there after retirement, the element of
personal presence in that place was lacking. To reiterate,
domicile or residence, as the terms are taken as synonyms,
imports "not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct
indicative of such intention."27
In contrast, petitioner Saludo was the congressman or
representative of Southern Leyte at the time of filing of his
complaint with the court a quo. Absent any evidence to the
contrary, he is deemed to possess the qualifications for the
said position, including that he was a resident therein. And
following the definition of the term "residence" for purposes of
election law, petitioner Saludo not only had the intention to
reside in Southern Leyte, but he also had personal presence
therein, coupled with conduct indicative of such intention. The
latter element, or his bodily presence as an inhabitant in
Southern Leyte, was sufficient for petitioner Saludo to be
considered a resident therein for purposes of venue.
The following ratiocination of the court a quo is apt:
Residence in civil law is a material fact, referring to the
physical presence of a person in a place. A person can have
two or more residences, such as a country residence and a
city residence. (Quetulio v. Ruiz, S.C. Off. Gaz. 156,
Commentaries and Jurisprudence in Civil Law, Vol. 1, page
211, Tolentino). Residence is acquired by living in a place; on
the other hand, domicile can exist without actually living in the
place. The important thing for domicile is that, once residence
has been established in one place, there be an intention to
stay there permanently, even if residence is also established in
some other place.
Thus, if a person lives with his family habitually in Quezon
City, he would have his domicile in Quezon City. If he also has
a house for vacation purposes in the City of Baguio, and
another house in connection with his business in the City of
Manila, he would have residence in all three places (Tolentino,
Commentaries and Jurisprudence on Civil Law, Vol. 1, Page
212, 1990 Edition) so that one[']s legal residence or domicile
can also be his actual, personal or physical residence or
habitation or place of abode if he stays there with intention to
stay there permanently.
In the instant case, since plaintiff has a house in Makati City
for the purpose of exercising his profession or doing business
and also a house in Ichon, Macrohon, Southern Leyte, for
doing business and/or for election or political purposes where
he also lives or stays physically, personally and actually then
he can have residences in these two places. Because it would
then be preposterous to acknowledge and recognize plaintiff
Aniceto G. Saludo, Jr. as congressman of Southern Leyte
without also recognizing him as actually, personally and
physically residing thereat, when such residence is required by
law.28
The fact then that petitioner Saludo's community tax certificate
was issued at Pasay City is of no moment because granting
arguendo that he could be considered a resident therein, the
same does not preclude his having a residence in Southern
Leyte for purposes of venue. A man can have but one domicile
for one and the same purpose at any time, but he may have
numerous places of residence.29
That petitioner Saludo was the congressman or representative
of the lone district of Southern Leyte at the time of the filing of
his complaint was admitted as a fact by the court a quo. In this
connection, it consequently held that, as such, petitioner
Saludo's residence in Southern Leyte, the district he was the
representing, could be taken judicial notice of. The court a quo
cannot be faulted for doing so because courts are allowed "to
take judicial notice of matters which are of public knowledge,
or are capable of unquestionable demonstration, or ought to
be known to judges because of their judicial
functions." 30 Courts are likewise bound to take judicial notice,
without the introduction of evidence, of the law in force in the
Philippines, 31 including its Constitution.
The concept of "facts of common knowledge" in the context of
judicial notice has been explained as those facts that are "so
commonly known in the community as to make it unprofitable
to require proof, and so certainly known to as to make it
indisputable among reasonable men." 32 Moreover, "though
usually facts of 'common knowledge' will be generally known
throughout the country, it is sufficient as a basis for judicial
notice that they be known in the local community where the
trial court sits." 33 Certainly, the fact of petitioner Saludo being
the duly elected representative of Southern Leyte at the time
could be properly taken judicial notice of by the court a quo,
the same being a matter of common knowledge in the
community where it sits.
Further, petitioner Saludo's residence in Southern Leyte could
likewise be properly taken judicial notice of by the court a quo.
It is bound to know that, under the Constitution, one of the
qualifications of a congressman or representative to the House
of Representatives is having a residence in the district in which
he shall be elected.
In fine, petitioner Saludo's act of filing his complaint with the
court a quo cannot be characterized as a "specie of forum-
shopping" or capricious on his part because, under the rules,
as plaintiff, he is precisely given this option.
Finally, respondents' claim that the instant petition for review
was not properly verified by petitioner Saludo deserves scant
consideration.
Section 4, Rule 7 of the Rules of Court reads:
Sec. 4. Verification. - Except when otherwise specifically
required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read
the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic
records.
A pleading required to be verified which contains a verification
based on "information and belief," or upon "knowledge,
information and belief," or lacks proper verification, shall be
treated as an unsigned pleading.
Petitioner Saludo's verification and certification of non-forum
shopping states that he has "read the contents thereof
[referring to the petition] and the same are true and correct of
my own personal knowledge and belief and on the basis of the
records at hand." The same clearly constitutes substantial
compliance with the above requirements of the Rules of Court.
WHEREFORE, premises considered, the petition is
GRANTED. The Decision dated May 22, 2003 and Resolution
dated August 14, 2003 of the Court of Appeals in CA-G.R. SP
No. 69553 are REVERSED and SET ASIDE. The Orders
dated September 10, 2001 and January 2, 2002 of the
Regional Trial Court of Maasin City, Southern Leyte, Branch
25 thereof, in Civil Case No. R-3172 are REINSTATED.
SO ORDERED.