Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985 (When Laws Become Effective)

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
 1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights are
to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
 and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.
Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86675 December 19, 1989 (When laws become effective)

MRCA, INC., petitioner,

vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Judge, Regional Trial court,
National Capital Judicial Region, Branch 168, Pasig, M.M., SPOUSES DOMINGO SEBASTIAN,
JR. & LILIA TIOSECO SEBASTIAN, and EXPECTACION P. TIOSECO, respondents.

Ramon A. Gonzales for petitioner.

Tanjuatco, Oreta, Tanjuatco, Berenguer and Sanvicente for private respondents.

GRIÑO-AQUINO, J.:

The petitioner prays this Court to set aside the decision promulgated on January 18, 1989 by the
Court of Appeals in CA-G.R. No. SP 15745, affirming the order of the Regional Trial Court
dismissing the complaint for non-payment of the proper filing fees as the prayer of the complaint
failed to specify the amounts of moral damages, exemplary damages, attorney's fees and litigation
expenses sought to be recovered by it from the defendants, but left them "to the discretion of this
Honorable Court" or "to be proven during the trial."

Invoking the decision of this Court in Manchester Development Corporation vs. Court of Appeals,
149 SCRA 562, the private respondents (defendants in Civil Case No. 55740 of the Regional Trial
Court of Pasig, Metro Manila, entitled MRCA, Inc. vs. Spouses Domingo Sebastian, Jr., et al." filed a
motion to dismiss the complaint on July 15, 1988. The petitioner opposed the motion, but the trial
court granted it in its order of August 10, 1988 (p. 54, Rollo). The Court of Appeals upheld the trial
court, hence, this petition for review under Rule 45 of the Rules of Court.

Petitioner argues that since the decision in Manchester had not yet been published in the Official
Gazette when its complaint was filed, the ruling therein was ineffective; that said ruling may not be
given retroactive effect because it imposes a new penalty for its non-observance; the dismissal of
the complaint for want of jurisdiction; and, that it should not apply to the present case because the
petitioner herein (plaintiff in the trial court) had no fraudulent intent to deprive the government of the
proper docketing fee, unlike the Manchester case where enormous amounts of damages were
claimed in the body of the complaint, but the amounts were not mentioned in the prayer thereof, to
mislead the clerk of court in computing the filing fees to be paid.

Petitioner's argument regarding the need for publication of the Manchester ruling in the Official
Gazette before it may be applied to other cases is not well taken. As pointed out by the private
respondents in their comment on the petition, publication in the Official Gazette is not a prerequisite
for the effectivity of a court ruling even if it lays down a new rule of procedure, for "it is a doctrine well
established that the procedure of the court may be changed at any time and become effective at
once, so long as it does not affect or change vested rights." (Aguillon vs. Director of Lands, 17 Phil.
508). In a later case, this Court held thus:

It is a well-established rule of statutory construction that statutes regulating the

procedure of the courts will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retrospective in that
sense and to that extent. As the resolution of October 1, 1945, relates to the mode of
procedure, it is applicable to cases pending in courts at the time of its adoption; but it
can not be invoked in and applied to the present case in which the decision had
become final before said resolution became effective. In this case, the motion for
reconsideration filed by the defendant was denied on July 17, 1944, and a second
motion for re-hearing or consideration could not be filed after the expiration of the
period of fifteen days from promulgation of the order or judgment deducting the time
in which the first motion had been pending in this Court (Section 1, Rule 54); for said
period had already expired before the adoption of the resolution on October 1, 1945.
Therefore, the Court cannot now permit or allow the petitioner to file any pleading or
motion in the present case." (People vs. Sumilang, 77 Phil. 765- 766.)

The Manchester ruling was applied retroactively in Sun Insurance Office, Ltd., et al. vs. Asuncion, et
al., G.R. Nos. 7993738, February 13, 1989, a case that was already pending before Manchester was
promulgated.

The complaint in this case was filed on March 24, 1988, or ten months after Manchester was
promulgated on May 7, 1987, hence, Manchester should apply except for the fact that it was
modified in the Sun Insurance case, where we ruled that the court may allow payment of the proper
filing fee "within a reasonable time but in no case beyond the prescriptive or reglementary period."
We quote:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that vests a trial court with jurisdiction over the
subject-matter or nature of the action. Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period. (p. 80, Rollo.)

Intent to cheat the government of the proper filing fees may not be presumed from the petitioner's
omission to specify in the body and prayer of its complaint the amounts of moral and exemplary
damages and attorney's fees that it claims to have suffered and/or incurred in its transaction with the
private respondents. The petitioner might not have computed its damages yet, or probably did not
have the evidence to prove them at the time it filed its complaint. In accordance with our ruling in
Sun Insurance Office, Ltd., the petitioner may be allowed to amend its complaint for the purpose of
specifying, in terms of pesos, how much it claims as damages, and to pay the requisite filing fees
therefor, provided its right of action has not yet prescribed. This the petitioner is ready to do.
WHEREFORE, the petition for review is granted.

The Order of the Regional Trial Court is hereby set aside. The complaint in Civil Case No. 55740
(MRCA, Inc. vs. Domingo Sebastian, Jr. and Lilia Tioseco Sebastian) is reinstated and the petitioner
is allowed to amend the same by specifying the amounts of damages it seeks to recover from the
defendants (private respondents) and to pay the proper filing fees therefor as computed by the Clerk
of Court.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 77735 January 29, 1988 (Non-retroactivity of laws; exceptions)

WILFREDO VERDEJO, petitioner,

vs.
THE HON. COURT OF APPEALS, HON. SOFRONIO G. SAYO, Presiding Judge, RTC, Br. III,
Pasay City, and HERMINIA PATINIO, ET AL., respondents.

RESOLUTION

PADILLA, J.:

Petition for review on certiorari of the decision * rendered by the respondent appellate court, dated 28 November 1986, in CA-G.R. No. SP-
10429 entitled: "Wilfredo Verdejo, petitioner, versus Hon. Sofronio Sayo, etc., et al., respondents", which dismissed the petition to annul and
set aside the order, dated 8 October 1986, directing the issuance of a writ of execution in Civil Case No. 2546-P of the Regional Trial Court
of Pasay City, as well as the Resolution, dated 5 March 1987, which denied the petitioner's motion for reconsideration of said decision of 28
November 1986.

The pertinent facts of the case are as follows:

On 20 December 1984, the herein petitioner filed a complaint against the private respondent
Herminia Patinio and one John Doe before the Regional Trial Court of Pasay City, docketed therein
as Civil Case No. 2546-P, for collection of a sum of money amounting to P60,500.00, which said
Herminia Patinio had allegedly borrowed from him but failed to pay when it became due,
notwithstanding demands. 1

Answering, Herminia Patinio admitted having obtained loans from the petitioner but claimed that the
amount borrowed by her was very much less than the amount demanded in the complaint, which
amount she had already paid or settled, and that the petitioner had exacted or charged interest on
the loan ranging from 10% to 12% per month, which is exorbitant and in gross violation of the Usury
Law. Wherefore she prayed that she be reimbursed the usurious interests charged and paid. She
also asked for damages, attorney's fees and costs of suit. 2

After trial court on 3 September 1986, the trial court rendered Judgment, as follows:

WHEREFORE, judgment is hereby rendered dismissing plaintiff's complaint for lack

of merit.

On defendants' counterclaim plaintiff is hereby ordered to refund to defendants the

amount of P13,890.00 and to further pay to defendants the amount of P5,000.00 as
attorney's fees and the costs of this suit. 3

Counsel for the petitioner received a copy of the trial court's decision on 5 September 1986, and on
19 September 1986, he sent a notice of appeal to the court by special delivery. The notice of appeal
was received by the court on 26 September 1986. On that same day the court also received the
motion for execution filed by the private respondent, Herminia Patinio. 4

The petitioner opposed the motion claiming that he had already filed a notice of appeal through the
mail so that the motion for execution was improper. 5

The private respondent, however, replied that the petitioner's notice of appeal was filed beyond the
reglementary period and reiterated her prayer for the issuance of a writ of execution. 6

Resolving the matter, the trial court issued an Order on 8 October 1986, the dispositive part of which
reads as follows:

WHEREFORE, as plaintiff's Notice of appeal was filed beyond the reglementary

period, the same is hereby DENIED.

As the judgment rendered herein has become final and executory, let the
corresponding Writ of Execution issue to enforce the same. 7

Thereafter, the petitioner filed a petition for certiorari before the Court of Appeals, docketed therein
as CA-G.R. No. SP-10429, to annul said Order of 8 October 1986. 8 The appellate court, however,
as aforestated, dismissed the petition in a Decision dated 28 November 1986. 9 The petitioner filed a
motion for reconsideration of the decision, but his motion was denied in a Resolution dated 5 March
1987. 10

Hence, the petitioner's present recourse.

The only issue in this petition is whether or not the Court should allow an appeal where the notice of
appeal was sent by special delivery mail within the period for perfection of appeals, but received in
court after the expiration of said period.

For the proper exercise of the right to appeal, the petitioner should have complied with Section 1,
Rule 13 of the Rules of Court which reads as follows:

Section 1. Filing with the court, defined.-The Filing of pleadings, appearances,

motions, notice orders and other papers with the court as required by these rules
shall be made by filing them personally with the clerk of the court or by sending them
 by registered mail. In the first case, the clerk shall endorse on the pleading the date
and hour of filing. In the second case, the date of mailing of motions, pleadings, or
any other papers or payments or deposits, as shown by the post office stamp on the
envelope or the registry reciept shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be attached to the record of the
case.

In justifying his failure to comply strictly with the requirements for perfecting an appeal, as
aforestated, the petitioner alleges that his counsel was sick at the time, and in order to beat the
deadline for the filing of the appeal, he mailed the notice of appeal by special delivery mail, not
knowing that it should be sent by registered mail. 11

We find merit in the petition. The Rules of Court expressly provide that the rules should be liberally
construed in order to promote their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding, 12 and in the absence of a clear lack of
merit or intention to delay, a case should not be allowed to go off on procedural points or
technicality. As much as possible, failure of' justice should be avoided. 13

In the instant case, the notice of appeal was sent by special delivery, instead of registered mail.
Considering that said notice of appeal was sent within the period for perfection of appeals by the
petitioner who, not being a lawyer, is not well versed in the finer points of the law, and, hence,
committed an honest mistake; and that the petitioner appears to have a good and valid cause of
action, we find that there was substantial compliance with the rules.

The case involves an alleged violation of the Usury Law, where the petitioner was found by the trial
court to have charged and collected usurious interests from the private respondent on loans which
were first obtained on 15 February 1982, later renewed, and finally culminated with the execution by
private respondent of the Deed of Sale with Right of Repurchase on 17 November 1983. This Court
has ruled in one case 14 that with the promulgation of Central Bank Circular No. 905, series of 1982,
usury has become "legally inexistent" as the lender and the borrower can agree on any interest that
may be charged on the loan. This Circular was also given retroactive effect. But, whether or not this
Circular should also be given retroactive effect and applied in this case is yet to be determined by
the appellate court at the proper time.

Moreover, it appears that the computation of the amount considered as usurious interest is incorrect.
The trial court merely added the amounts paid by the private respondent to the petitioner and,
thereafter, deducted therefrom the amounts given as loan to the private respondent and considered
the excess amount usurious, without apparently considering the lawful interest that may be collected
on said loans. Only usurious interests may be reimbursed.

To prevent a miscarriage of justice, the petitioner should be allowed to prosecute his appeal.

ACCORDINGLY, the petition is GRANTED. The questioned Decision and Resolution issued by the
respondent Court of Appeals on 28 November 1986 and 5 March 1987, respectively, in CA-G.R. No.
SP-10429, as well as the Order issued by the Regional Trial Court of Pasay City in Civil Case No.
2546-P on 8 October 1986, are hereby ANNULLED and SET ASIDE and another one entered
approving the notice of appeal filed by the petitioner. Without costs.

SO ORDERED.

Yap (Chairman), Melencio-Herrera and Sarmiento, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-68385 May 12, 1989 (Ignorance of the Law)

ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late

WARREN TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.

Agrava, Lucero & Gineta for petitioners.

The Office of the Solictor General for public respondents.

CRUZ, J.:

What the petitioner presents as a rather complicated problem is in reality a very simple question
from the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue
to be resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred
in dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.

Appeal from what? That indeed is the question.

But first the facts.

On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the
Philippines, died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son,
Ward Graham, filed an estate tax return on September 16, 1976, with the Philippine Revenue
Representative in San Francisco, U.S.A. 2

On the basis of this return, the respondent Commissioner of Internal Revenue assessed the
decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978.3 This assessment
was protested on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the estate
. 4 The protest was denied by the Commissioner on July 7, 1978.5 No further action was taken by the
estate in pursuit of that protest.

Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit
Court of Oregon 6 Ward Graham, the designated executor, then appointed Ildefonso Elegado, the
herein petitioner, as his attorney-in-fact for the allowance of the will in the Philippines.7

Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First
Instance of Rizal. 8 The will was allowed on December 18, 1978, with the petitioner as ancillary
administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on
June 4, 1980.10
On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87.11 This was protested on behalf of the estate by the Agrava, Lucero and
Gineta Law Office on August 13, 1980.12

While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978.13 He said that this
liability had not yet been paid although the assessment had long become final and executory.

The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980,
against the second assessment of P72,948.87.14 On this understanding, he filed on September 15,
1981, a petition for review with the Court of Tax Appeals challenging the said assessment. 15

The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was
filed during a delay of 195 days) and in the end instead cancelled the protested assessment in a
letter to the decedent's estate dated March 31, 1982.16 This cancellation was notified to the Court of
Tax Appeals in a motion to dismiss on the ground that the protest had become moot and academic.17

The motion was granted and the petition dismissed on April 25, 1984.18 The petitioner then came to
this Court on certiorari under Rule 45 of the Rules of Court.

The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the
decedent should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks
should be assessed as of the time of the owner's death or six months thereafter; and (3) whether the
appeal filed with the respondent court should be considered moot and academic.

We deal first with the third issue as it is decisive of this case.

In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:

Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex
Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila

Sir:

This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a
resident of Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of
demand were issued by this Bureau. One is for the amount of P96,509.35 based on
the first return filed, and the other in the amount of P72,948.87, based on the second
return filed.

It appears that the first assessment of P96,509.35 was issued on February 9, 1978
on the basis of the estate tax return filed on September 16, 1976. The said
assessment was, however, protested in a letter dated March 7, 1978 but was denied
on July 7, 1978. Since no appeal was made within the regulatory period, the same
has become final.

In view thereof, it is requested that you settle the aforesaid assessment for
P96,509.35 within fifteen (15) days upon receipt hereof to the Receivable Accounts
Division, this Bureau, BIR National Office Building, Diliman, Quezon City. The
 assessment for P72,949.57 dated July 3, 1980, referred to above is hereby
cancelled.

Very truly yours,

(SGD.) RUBEN B. ANCHETA Acting Commissioner 19

It is obvious from the express cancellation of the second assessment for P72,948.87 that the
petitioner had been deprived of a cause of action as it was precisely from this assessment that he
was appealing.

In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved.20 As a matter
of fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.

The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the
second assessment did not have the effect of automatically reviving the first. Moreover, the first
assessment is not binding on him because it was based on a return filed by foreign lawyers who had
no knowledge of our tax laws or access to the Court of Tax Appeals.

The petitioner is clutching at straws.

It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the
estate tax return filed subject to investigation by this Office for final determination of the correct
estate tax due from the estate. Any amount that may be found due after said investigation will be
assessed and collected later." 21 It is illogical to suggest that a provisional assessment can
supersede an earlier assessment which had clearly become final and executory.

The second contention is no less flimsy. The petitioner cannot be serious when he argues that the
first assessment was invalid because the foreign lawyers who filed the return on which it was based
were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused
from compliance therewith because of their ignorance?

If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws
in our own country. A more obvious and shallow discrimination than that suggested by the petitioner
is indeed difficult to find.

But the most compelling consideration in this case is the fact that the first assessment is already final
and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment
has become final and executory.

In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion
with the probate court, the respondent Commissioner stressed that "in a letter dated January 29,
1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that
they have paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313
Buendia Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although
he added that such payment had not yet been received.22 This letter was an acknowledgment by the
estate of the validity and finality of the first assessment. Significantly, it has not been denied by the
petitioner.

In view of the finality of the first assessment, the petitioner cannot now raise the question of its
validity before this Court any more than he could have done so before the Court of Tax Appeals.
What the estate of the decedent should have done earlier, following the denial of its protest on July
7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it
received notice of said denial. It was in such appeal that the petitioner could then have raised the
first two issues he now raises without basis in the present petition.

The question of whether or not the shares of stock left by the decedent should be considered
conjugal property or belonging to him alone is immaterial in these proceedings. So too is the time at
which the assessment of these shares of stock should have been made by the BIR. These questions
were not resolved by the Court of Tax Appeals because it had no jurisdiction to act on the
petitioner's appeal from an assessment that had already been cancelled. The assessment being no
longer controversial or reviewable, there was no justification for the respondent court to rule on the
petition except to dismiss it.

If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment
has long become final and executory. If that assessment was not challenged on time and in
accordance with the prescribed procedure, that error — for error it was — was committed not by the
respondents but by the decedent's estate itself which the petitioner represents. So how can he now
complain.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,

Narvasa (Chairman), Griño-Aquino and Medialdea, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 80718 January 29, 1988 (Judicial Decision)

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS
OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.

RESOLUTION

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in
the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30
September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the
decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for
having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had
been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of
judgment and denied their motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the
fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its
Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208),
this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed
the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30,
1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30,
1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still
within the grace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9,
1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the length of time from the expiration of
the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to
file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the Official Gazette before
they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel
as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where
issues have been clarified, consistently reiterated, and published in the advance reports of Supreme
Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA)
and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in
affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which
provides that "the proprietor of a building or structure is responsible for the damage resulting from its
total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-50654 November 6, 1989 (Legal Periods)

RUDY GLEO ARMIGOS, petitioner,

vs.
COURT OF APPEALS, CRISTITO MATA, and JUDGE L. D. CARPIO, in his capacity as Judge of
the Court of First Instance of Davao del Sur, Branch V, respondents.

David W. Natividad for petitioner.

Calamba, Garcia, Geralde & Calamba Law Offices for respondents.

PADILLA, J.:

Review on certiorari of the decisio * of the Court of Appeals, which dismissed the petition filed and
docketed therein as CA-G.R. No. SP-07192-R, entitled: "Rudy Gleo Armigos,
petitioner, versus Judge L.D. Carpio, respondent," and the resolution denying the motion for
reconsideration of said decision.

The undisputed facts are as follows:

The private respondent, Cristito Mata, filed a complaint against the herein petitioner with the
Municipal Court of Digos, Davao del Sur, docketed as Civil Case No. 971, for the collection of
damages and attorney's fees. After trial, judgment was rendered in favor of the private respondent
and against the herein petitioner. A copy of the decision was received by the petitioner on 8 June
1977, and the following day, 9 June 1977, he filed a notice of appeal with the said municipal court,
and on 24 June 1977, he completed the other requirements for the perfection of an appeal, including
the filing of an appeal bond and the payment of the appellate court docket fee. However, when the
case was elevated to the Court of First Instance of Davao del Sur (Branch V) for the consideration of
the appeal, the presiding judge thereof ruled that the appeal was filed beyond the reglementary
period; consequently, he dismissed the appeal.

Whereupon, the petitioner filed a petition for certiorari, mandamus with preliminary injunction with the
Court of Appeals, claiming that from 8 June 1977, when he received a copy of the decision of the
municipal court, to 24 June 1977, when he perfected his appeal, only fifteen (15) days had elapsed
so that the decision of the Court of First Instance of Davao del Sur, dismissing his appeal for having
been filed beyond the reglementary period, is erroneous and contrary to law. The petitioner
contended that the computation of the period to appeal should commence on the hour he received
copy of the decision, so that the first of the 1 5-day period comprising 24 hours is from 4:00 o'clock
p.m. of 9 June 1977 to 4:00 o'clock p.m. of 10 June 1977 and the last day, from 4:00 o'clock p.m. of
23 June 1977 to 4:00 o'clock p.m. of 24 June 1977.

The Court of Appeals, however, rejected the novel interpretation suggested as it would result in
many confusing situations and many unreliable testimonies as to the time a copy of a decision, order
or pleading is received, and cited the case of Republic of the Philippines vs. Encarnacion, 1 where
this Court held that when a law was to be effective upon approval by the President and the President
signed the same on 16 June 1950, the law should be considered to have taken effect not on the
exact hour when the President signed the same on 16 June 1950 but from the very first minute or
hour of said day of 16 June 1950.

The petitioner filed a motion for reconsideration of the appellate court's decision, but his motion was
denied in a resolution promulgated on 7 December 1978.

Hence, the present recourse.

We find no merit in the petition. The rule stated in Article 13 of the Civil Code to the effect that "In
computing a period, the first day shall be excluded, and the last day included" is similar, but not
Identical to Section 4 of the Code of Civil Procedure which provided that "Unless otherwise specially
provided, the time within which an act is required by law to be done shall be computed by excluding
the first day and including the last; and if the last be Sunday or a legal holiday it shall be excluded",
as well as the old Rule 28 of the Rules of Court which stated that "In computing any period of time
prescribed or allowed by the Rules of Court, by order of a court, or by any other applicable statute,
the day of the act, event or default after which the designated period of time begins to run is not to
be included. The last day of the period so computed is to be included, unless it is a Sunday or a
legal holiday, in which event the time shall run until the end of the next day which is neither a
Sunday or a legal holiday." In applying this rule, the Court considered the day as synonymous with
the date and we find no cogent reason to adopt a different view.

Besides, human memory on dates or days is frail and unless the day is an extraordinary one for a
person, there is no reasonable certainty of its correctness. What more for the exact hour when a
pleading, order or decision is received by a party?

Petitioner's suggestion, however, may find application in appeals in habeas corpus cases where the
law requires that such appeals should be made within 48 hours from notice of judgment. 2

While it is true that rules of procedure are to be interpreted liberally so that the real matter in dispute
may be submitted to the judgment of the court, and that the trial court is vested with discretion to
allow or admit an appeal filed out of time, this discretion is not unconditional. There must be
justifiable reason to warrant such action, since the perfection of an appeal in the manner and within
the period laid down by law is not only mandatory but jurisdictional, and in the absence of any
justifying circumstance, the court has no jurisdiction to approve or admit an appeal filed out of
time. 3 In the instant case, the petitioner failed to prove, or even claim, that his failure to appeal on
time was due to fraud, accident, mistake or excusable negligence.

WHEREFORE, the petition is DENIED. With costs against the petitioner.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23678 June 6, 1967 (Conflict Rules)

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

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. 1äwphï1.ñët

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 Bellis.

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. 1äw phï1.ñët

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.3 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.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 88694 January 11, 1993 (Abuse of Right)

ALBENSON ENTERPRISES CORP., JESSE YAP, AND BENJAMIN MENDIONA, petitioners,

vs.
THE COURT OF APPEALS AND EUGENIO S. BALTAO, respondents.

Puruganan, Chato, Chato & Tan for petitioners.

Lino M. Patajo, Francisco Ma. Chanco, Ananiano Desierto and Segundo Mangohig for private
respondent.

BIDIN, J.:

This petition assails the decision of respondent Court of Appeals in

CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiff-appellee vs. Albenson Enterprises
Corporation, et al, defendants-appellants", which modified the judgment of the Regional Trial Court
of Quezon City, Branch XCVIII in Civil Case No. Q-40920 and ordered petitioner to pay private
respondent, among others, the sum of P500,000.00 as moral damages and attorney's fees in the
amount of P50,000.00.

The facts are not disputed.

In September, October, and November 1980, petitioner Albenson Enterprises Corporation (Albenson
for short) delivered to Guaranteed Industries, Inc. (Guaranteed for short) located at 3267 V. Mapa
Street, Sta. Mesa, Manila, the mild steel plates which the latter ordered. As part payment thereof,
Albenson was given Pacific Banking Corporation Check No. 136361 in the amount of P2,575.00 and
drawn against the account of E.L. Woodworks (Rollo, p. 148).

When presented for payment, the check was dishonored for the reason "Account Closed."
Thereafter, petitioner Albenson, through counsel, traced the origin of the dishonored check. From
the records of the Securities and Exchange Commission (SEC), Albenson discovered that the
president of Guaranteed, the recipient of the unpaid mild steel plates, was one "Eugenio S. Baltao."
Upon further inquiry, Albenson was informed by the Ministry of Trade and Industry that E.L.
Woodworks, a single proprietorship business, was registered in the name of one "Eugenio Baltao".
In addition, upon verification with the drawee bank, Pacific Banking Corporation, Albenson was
advised that the signature appearing on the subject check belonged to one "Eugenio Baltao."
After obtaining the foregoing information, Albenson, through counsel, made an extrajudicial demand
upon private respondent Eugenio S. Baltao, president of Guaranteed, to replace and/or make good
the dishonored check.

Respondent Baltao, through counsel, denied that he issued the check, or that the signature
appearing thereon is his. He further alleged that Guaranteed was a defunct entity and hence, could
not have transacted business with Albenson.

On February 14, 1983, Albenson filed with the Office of the Provincial Fiscal of Rizal a complaint
against Eugenio S. Baltao for violation of Batas Pambansa Bilang 22. Submitted to support said
charges was an affidavit of petitioner Benjamin Mendiona, an employee of Albenson. In said
affidavit, the above-mentioned circumstances were stated.

It appears, however, that private respondent has a namesake, his son Eugenio Baltao III, who
manages a business establishment, E.L. Woodworks, on the ground floor of the Baltao Building,
3267 V. Mapa Street, Sta. Mesa, Manila, the very same business address of Guaranteed.

On September 5, 1983, Assistant Fiscal Ricardo Sumaway filed an information against Eugenio S.
Baltao for Violation of Batas Pambansa Bilang 22. In filing said information, Fiscal Sumaway claimed
that he had given Eugenio S. Baltao opportunity to submit controverting evidence, but the latter
failed to do so and therefore, was deemed to have waived his right.

Respondent Baltao, claiming ignorance of the complaint against him, immediately filed with the
Provincial Fiscal of Rizal a motion for reinvestigation, alleging that it was not true that he had been
given an opportunity to be heard in the preliminary investigation conducted by Fiscal Sumaway, and
that he never had any dealings with Albenson or Benjamin Mendiona, consequently, the check for
which he has been accused of having issued without funds was not issued by him and the signature
in said check was not his.

On January 30, 1984, Provincial Fiscal Mauro M. Castro of Rizal reversed the finding of Fiscal
Sumaway and exonerated respondent Baltao. He also instructed the Trial Fiscal to move for
dismissal of the information filed against Eugenio S. Baltao. Fiscal Castro found that the signature in
PBC Check No. 136361 is not the signature of Eugenio S. Baltao. He also found that there is no
showing in the records of the preliminary investigation that Eugenio S. Baltao actually received
notice of the said investigation. Fiscal Castro then castigated Fiscal Sumaway for failing to exercise
care and prudence in the performance of his duties, thereby causing injustice to respondent who
was not properly notified of the complaint against him and of the requirement to submit his counter
evidence.

Because of the alleged unjust filing of a criminal case against him for allegedly issuing a check which
bounced in violation of Batas Pambansa Bilang 22 for a measly amount of P2,575.00, respondent
Baltao filed before the Regional Trial Court of Quezon City a complaint for damages against herein
petitioners Albenson Enterprises, Jesse Yap, its owner, and Benjamin Mendiona, its employee.

In its decision, the lower court observed that "the check is drawn against the account of "E.L.
Woodworks," not of Guaranteed Industries of which plaintiff used to be President. Guaranteed
Industries had been inactive and had ceased to exist as a corporation since 1975. . . . . The
possibility is that it was with Gene Baltao or Eugenio Baltao III, a son of plaintiff who had a business
on the ground floor of Baltao Building located on V. Mapa Street, that the defendants may have been
dealing with . . . ." (Rollo, pp. 41-42).

The dispositive portion of the trial court 's decision reads:

 WHEREFORE, judgment is hereby rendered in favor of plaintiff and against
defendants ordering the latter to pay plaintiff jointly and severally:

1. actual or compensatory damages of P133,350.00;

2. moral damages of P1,000,000.00 (1 million pesos);

3. exemplary damages of P200,000.00;

4. attorney's fees of P100,000.00;

5 costs.

Defendants' counterclaim against plaintiff and claim for damages against Mercantile
Insurance Co. on the bond for the issuance of the writ of attachment at the instance
of plaintiff are hereby dismissed for lack of merit. (Rollo, pp. 38-39).

On appeal, respondent court modified the trial court's decision as follows:

WHEREFORE, the decision appealed from is MODIFIED by reducing the moral

damages awarded therein from P1,000,000.00 to P500,000.00 and the attorney's
fees from P100,000.00 to P50,000.00, said decision being hereby affirmed in all its
other aspects. With costs against appellants. (Rollo, pp. 50-51)

Dissatisfied with the above ruling, petitioners Albenson Enterprises Corp., Jesse Yap, and Benjamin
Mendiona filed the instant Petition, alleging that the appellate court erred in:

1. Concluding that private respondent's cause of action is not one based on

malicious prosecution but one for abuse of rights under Article 21 of the Civil Code
notwithstanding the fact that the basis of a civil action for malicious prosecution is
Article 2219 in relation to Article 21 or Article 2176 of the Civil Code . . . .

2. Concluding that "hitting at and in effect maligning (private respondent) with an

unjust criminal case was, without more, a plain case of abuse of rights by
misdirection" and "was therefore, actionable by itself," and which "became
inordinately blatant and grossly aggravated when . . . (private respondent) was
deprived of his basic right to notice and a fair hearing in the so-called preliminary
investigation . . . . "

3. Concluding that petitioner's "actuations in this case were coldly deliberate and
calculated", no evidence having been adduced to support such a sweeping
statement.

4. Holding the petitioner corporation, petitioner Yap and petitioner Mendiona jointly
and severally liable without sufficient basis in law and in fact.

5. Awarding respondents —

5.1. P133,350.00 as actual or compensatory damages, even in the

absence of sufficient evidence to show that such was actually
suffered.
 5.2. P500,000.00 as moral damages considering that the evidence in
this connection merely involved private respondent's alleged
celebrated status as a businessman, there being no showing that the
act complained of adversely affected private respondent's reputation
or that it resulted to material loss.

5.3. P200,000.00 as exemplary damages despite the fact that

petitioners were duly advised by counsel of their legal recourse.

5.4. P50,000.00 as attorney's fees, no evidence having been

adduced to justify such an award (Rollo, pp. 4-6).

Petitioners contend that the civil case filed in the lower court was one for malicious prosecution.
Citing the case of Madera vs. Lopez (102 SCRA 700 [1981]), they assert that the absence of malice
on their part absolves them from any liability for malicious prosecution. Private respondent, on the
other hand, anchored his complaint for Damages on Articles 19, 20, and 21 ** of the Civil Code.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets
certain standards which may 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 the 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. Although the
requirements of each provision is different, these three (3) articles are all related to each other. As
the eminent Civilist Senator Arturo Tolentino puts it: "With this article (Article 21), combined with
articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has
become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to
conceive of any malevolent exercise of a right which could not be checked by the application of
these articles" (Tolentino, 1 Civil Code of the Philippines 72).

There is however, no hard and fast rule which can be applied to determine whether or not the
principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of
rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision
of law, depends on the circumstances of each case. (Globe Mackay Cable and Radio Corporation
vs. Court of Appeals, 176 SCRA 778 [1989]).

The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty;
(2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20
speaks of the general sanction for all other provisions of law which do not especially provide for their
own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the
exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries
suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1)
There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public
policy; 3) and it is done with intent to injure.

Thus, under any of these three (3) provisions of law, an act which causes injury to another may be
made the basis for an award of damages.
There is a common element under Articles 19 and 21, and that is, the act must be intentional.
However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently". The
trial court as well as the respondent appellate court mistakenly lumped these three (3) articles
together, and cited the same as the bases for the award of damages in the civil complaint filed
against petitioners, thus:

With the foregoing legal provisions (Articles 19, 20, and 21) in focus, there is not
much difficulty in ascertaining the means by which appellants' first assigned error
should be resolved, given the admitted fact that when there was an attempt to collect
the amount of P2,575.00, the defendants were explicitly warned that plaintiff Eugenio
S. Baltao is not the Eugenio Baltao defendants had been dealing with (supra, p. 5).
When the defendants nevertheless insisted and persisted in filing a case — a
criminal case no less — against plaintiff, said defendants ran afoul of the legal
provisions (Articles 19, 20, and 21 of the Civil Code) cited by the lower court and
heretofore quoted (supra).

Defendants, not having been paid the amount of P2,575.00, certainly had the right to
complain. But that right is limited by certain constraints. Beyond that limit is the area
of excess, of abuse of rights. (Rollo, pp.
44-45).

Assuming, arguendo, that all the three (3) articles, together and not independently of each one,
could be validly made the bases for an award of damages based on the principle of "abuse of right",
under the circumstances, We see no cogent reason for such an award of damages to be made in
favor of private respondent.

Certainly, petitioners could not be said to have violated the aforestated principle of abuse of right.
What prompted petitioners to file the case for violation of Batas Pambansa Bilang 22 against private
respondent was their failure to collect the amount of P2,575.00 due on a bounced check which they
honestly believed was issued to them by private respondent. Petitioners had conducted inquiries
regarding the origin of the check, and yielded the following results: from the records of the Securities
and Exchange Commission, it was discovered that the President of Guaranteed (the recipient of the
unpaid mild steel plates), was one "Eugenio S. Baltao"; an inquiry with the Ministry of Trade and
Industry revealed that E.L. Woodworks, against whose account the check was drawn, was
registered in the name of one "Eugenio Baltao"; verification with the drawee bank, the Pacific
Banking Corporation, revealed that the signature appearing on the check belonged to one "Eugenio
Baltao".

In a letter dated December 16, 1983, counsel for petitioners wrote private respondent demanding
that he make good the amount of the check. Counsel for private respondent wrote back and denied,
among others, that private respondent ever transacted business with Albenson Enterprises
Corporation; that he ever issued the check in question. Private respondent's counsel even went
further: he made a warning to defendants to check the veracity of their claim. It is pivotal to note at
this juncture that in this same letter, if indeed private respondent wanted to clear himself from the
baseless accusation made against his person, he should have made mention of the fact that there
are three (3) persons with the same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr. (private
respondent), and Eugenio Baltao III (private respondent's son, who as it turned out later, was the
issuer of the check). He, however, failed to do this. The last two Baltaos were doing business in the
same building — Baltao Building — located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild
steel plates were ordered in the name of Guaranteed of which respondent Eugenio S. Baltao is the
president and delivered to Guaranteed at Baltao building. Thus, petitioners had every reason to
believe that the Eugenio Baltao who issued the bouncing check is respondent Eugenio S. Baltao
when their counsel wrote respondent to make good the amount of the check and upon refusal, filed
the complaint for violation of BP Blg. 22.

Private respondent, however, did nothing to clarify the case of mistaken identity at first hand.
Instead, private respondent waited in ambush and thereafter pounced on the hapless petitioners at a
time he thought was propitious by filing an action for damages. The Court will not countenance this
devious scheme.

The criminal complaint filed against private respondent after the latter refused to make good the
amount of the bouncing check despite demand was a sincere attempt on the part of petitioners to
find the best possible means by which they could collect the sum of money due them. A person who
has not been paid an obligation owed to him will naturally seek ways to compel the debtor to pay
him. It was normal for petitioners to find means to make the issuer of the check pay the amount
thereof. In the absence of a wrongful act or omission or of fraud or bad faith, moral damages cannot
be awarded and that the adverse result of an action does not per se make the action wrongful and
subject the actor to the payment of damages, for the law could not have meant to impose a penalty
on the right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).

In the case at bar, private respondent does not deny that the mild steel plates were ordered by and
delivered to Guaranteed at Baltao building and as part payment thereof, the bouncing check was
issued by one Eugenio Baltao. Neither had private respondent conveyed to petitioner that there are
two Eugenio Baltaos conducting business in the same building — he and his son Eugenio Baltao III.
Considering that Guaranteed, which received the goods in payment of which the bouncing check
was issued is owned by respondent, petitioner acted in good faith and probable cause in filing the
complaint before the provincial fiscal.

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a
sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant
knowing that his charges were false and groundless. Concededly, the mere act of submitting a case
to the authorities for prosecution does not make one liable for malicious prosecution. (Manila Gas
Corporation vs. Court of Appeals, 100 SCRA 602 [1980]). Still, private respondent argues that
liability under Articles 19, 20, and 21 of the Civil Code is so encompassing that it likewise includes
liability for damages for malicious prosecution under Article 2219 (8). True, a civil action for damages
for malicious prosecution is allowed under the New Civil Code, more specifically Articles 19, 20, 26,
29, 32, 33, 35, and 2219 (8) thereof. In order that such a case can prosper, however, the following
three (3) elements must be present, to wit: (1) The fact of the prosecution and the further fact that
the defendant was himself the prosecutor, and that the action was finally terminated with an
acquittal; (2) That in bringing the action, the prosecutor acted without probable cause; (3) The
prosecutor was actuated or impelled by legal malice (Lao vs. Court of Appeals, 199 SCRA 58,
[1991]).

Thus, a party injured by the filing of a court case against him, even if he is later on absolved, may file
a case for damages grounded either on the principle of abuse of rights, or on malicious prosecution.
As earlier stated, a complaint for damages based on malicious prosecution will prosper only if the
three (3) elements aforecited are shown to exist. In the case at bar, the second and third elements
were not shown to exist. It is well-settled that one cannot be held liable for maliciously instituting a
prosecution where one has acted with probable cause. "Probable cause is the existence of such
facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. In other words, a suit will lie only in cases where a legal prosecution has been carried
on without probable cause. The reason for this rule is that it would be a very great discouragement
to public justice, if prosecutors, who had tolerable ground of suspicion, were liable to be sued at law
when their indictment miscarried" (Que vs. Intermediate Appellate Court, 169 SCRA 137 [1989]).

The presence of probable cause signifies, as a legal consequence, the absence of malice. In the
instant case, it is evident that petitioners were not motivated by malicious intent or by sinister design
to unduly harass private respondent, but only by a well-founded anxiety to protect their rights when
they filed the criminal complaint against private respondent.

To constitute malicious prosecution, there must be proof that the prosecution was
prompted by a sinister design to vex and humiliate a person, that it was initiated
deliberately by the defendant knowing that his charges were false and groundless.
Concededly, the mere act of submitting a case to the authorities for prosecution does
not make one liable for malicious prosecution. Proof and motive that the institution of
the action was prompted by a sinister design to vex and humiliate a person must be
clearly and preponderantly established to entitle the victims to damages (Ibid.).

In the case at bar, there is no proof of a sinister design on the part of petitioners to vex or humiliate
private respondent by instituting the criminal case against him. While petitioners may have been
negligent to some extent in determining the liability of private respondent for the dishonored check,
the same is not so gross or reckless as to amount to bad faith warranting an award of damages.

The root of the controversy in this case is founded on a case of mistaken identity. It is possible that
with a more assiduous investigation, petitioners would have eventually discovered that private
respondent Eugenio S. Baltao is not the "Eugenio Baltao" responsible for the dishonored check.
However, the record shows that petitioners did exert considerable effort in order to determine the
liability of private respondent. Their investigation pointed to private respondent as the "Eugenio
Baltao" who issued and signed the dishonored check as the president of the debtor-corporation
Guaranteed Enterprises. Their error in proceeding against the wrong individual was obviously in the
nature of an innocent mistake, and cannot be characterized as having been committed in bad faith.
This error could have been discovered if respondent had submitted his counter-affidavit before
investigating fiscal Sumaway and was immediately rectified by Provincial Fiscal Mauro Castro upon
discovery thereof, i.e., during the reinvestigation resulting in the dismissal of the complaint.

Furthermore, the adverse result of an action does not per se make the act wrongful and subject the
actor to the payment of moral damages. The law could not have meant to impose a penalty on the
right to litigate, such right is so precious that moral damages may not be charged on those who may
even exercise it erroneously. And an adverse decision does not ipso facto justify the award of
attorney's fees to the winning party (Garcia vs. Gonzales, 183 SCRA 72 [1990]).

Thus, an award of damages and attorney's fees is unwarranted where the action was filed in good
faith. If damage results from a person's exercising his legal rights, it is damnum absque
injuria (Ilocos Norte Electric Company vs. Court of Appeals, 179 SCRA 5 [1989]).

Coming now to the claim of private respondent for actual or compensatory damages, the records
show that the same was based solely on his allegations without proof to substantiate the same. He
did not present proof of the cost of the medical treatment which he claimed to have undergone as a
result of the nervous breakdown he suffered, nor did he present proof of the actual loss to his
business caused by the unjust litigation against him. In determining actual damages, the court
cannot rely on speculation, conjectures or guesswork as to the amount. Without the actual proof of
loss, the award of actual damages becomes erroneous (Guilatco vs. City of Dagupan, 171 SCRA
382 [1989]).
Actual and compensatory damages are those recoverable because of pecuniary loss — in business,
trade, property, profession, job or occupation — and the same must be proved, otherwise, if the
proof is flimsy and unsubstantiated, no damages will be given (Rubio vs. Court of Appeals, 141
SCRA 488 [1986]). For these reasons, it was gravely erroneous for respondent court to have
affirmed the award of actual damages in favor of private respondent in the absence of proof thereof.

Where there is no evidence of the other party having acted in wanton, fraudulent or reckless, or
oppressive manner, neither may exemplary damages be awarded (Dee Hua Liong Electrical
Equipment Corporation vs. Reyes, 145 SCRA 488 [1986]).

As to the award of attorney's fees, it is well-settled that the same is the exception rather than the
general rule. Needless to say, the award of attorney's fees must be disallowed where the award of
exemplary damages is eliminated (Article 2208, Civil Code; Agustin vs. Court of Appeals, 186 SCRA
375 [1990]). Moreover, in view of the fact that there was no malicious prosecution against private
respondent, attorney's fees cannot be awarded him on that ground.

In the final analysis, there is no proof or showing that petitioners acted maliciously or in bad faith in
the filing of the case against private respondent. Consequently, in the absence of proof of fraud and
bad faith committed by petitioners, they cannot be held liable for damages (Escritor, Jr. vs.
Intermediate Appellate Court, 155 SCRA 577 [1987]). No damages can be awarded in the instant
case, whether based on the principle of abuse of rights, or for malicious prosecution. The questioned
judgment in the instant case attests to the propensity of trial judges to award damages without basis.
Lower courts are hereby cautioned anew against awarding unconscionable sums as damages
without bases therefor.

WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals in C.A. G.R. C.V.
No. 14948 dated May 13, 1989, is hereby REVERSED and SET ASIDE. Costs against respondent
Baltao.

SO ORDERED.

THIRD DIVISION

G.R. No. 138964 August 9, 2001 (Abuse of right)

VICENTE RELLOSA, CYNTHIA ORTEGA assisted by husband Roberto Ortega, petitioner,

vs.
GONZALO PELLOSIS, INESITA MOSTE, and DANILO RADAM, respondents.

VITUG, J.:

"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." 1 This provision in our law is
not just a declaration of principle for it can in itself constitute, when unduly ignored or violated, a valid
source of a cause of action or defense.

The case seeks to reverse the Court of Appeals in not countenancing an attempt to abridge and
render inutile a legal right to contest an adverse ruling of an agency of government.
Respondents were lessees of a parcel of land, owned by one Marta Reyes, located at San Pascual
Street, Malate, Manila. Respondents had built their houses on the land which, over the years,
underwent continuous improvements. After the demise of Marta, the land was inherited by her son
Victor Reyes. Sometime in 1986, Victor informed respondents that, for being lessees of the land for
more than twenty (20) years, they would have a right of first refusal to buy the land. Sometime in the
early part of 1989, without the knowledge of respondents, the land occupied by them was sold to
petitioner Cynthia Ortega who was able to ultimately secure title to the property in her name.

On 25 May 1989, Cynthia Ortega, filed a petition for condemnation, docketed Condemnation Case
No. 89-05-007, with the Office of the Building Official, City of Manila, of the structures on the land.

On 31 May 1989, respondents filed with the Regional Trial Court of Manila a suit for the "Declaration
of Nullity of the Sale," docketed as Civil Case No. 89-49176, made in favor of petitioner Cynthia
Ortega predicated upon their right of first refusal which was claimed to have been impinged upon the
sale of the land to petitioner Ortega without their knowledge.

After due hearing in the condemnation case, the Office of the Building Official issued a resolution,
dated 27 November 1989, ordering the demolition of the houses of respondents. Copies of the
resolution were served upon respondents and their counsel on 07 December 1989. The following
day, or on 08 December 1989, Cynthia Ortega, together with her father and co-petitioner, Vicente
Rellosa, hired workers to commence the demolition of respondents' houses. Due to the timely
intervention of a mobile unit of the Western Police District, the intended demolition did not take place
following talks between petitioner Rellosa and counsel who pleaded that the demolition be
suspended since the order sought to be implemented was not yet final and executory. On 11
December 1989, respondents filed their appeal contesting the order of the Office of the Building
Official. On 12 December 1989, petitioners once again hired workers and proceeded with the
demolition of respondents' houses.

Resultantly, respondents filed Civil Case No. 89-49176 before the Regional Trial Court of Manila,
Branch 54, praying that petitioners be ordered to pay moral and exemplary damages, as well as
attorney's fee, for the untimely demolition of the houses. After trial, the court dismissed the complaint
of respondents and instead ordered them to pay petitioners moral damages. On appeal, the Court of
Appeals, on the basis of its findings and conclusions, reversed the decision of the trial court and
ordered petitioners to pay respondents the following sums:

"1) Seventy Five Thousand Pesos (P75,000.00), or Twenty Five Thousand Pesos
(P25,000.00) for each appellant, by way of moral damages;"

"2) Seventy Five Thousand Pesos (P75,000.00), or Twenty Five thousand Pesos
(P25,000.00) for each appellant, by way of exemplary damages;"

"3) Fifteen Thousand Pesos (P15,000.00) as and for attorney's fees; and

"4) The costs of suit."2

The appellate court ruled:

"Thus, by the clear provisions of paragraph 23 of the Implementing Rules and Regulations of
PD 1096 (otherwise known as the Building Code), above, appellants, being the parties
adversely affected by the November 27, 1989 Resolution of the Office of the Building Official,
had fifteen (15) days from receipt of a copy of the same within which to perfect an
administrative appeal. Thus, since appellants received a copy of the Resolution on
 December 7, 1989, they had until December 22, 1989 within which to perfect an
administrative appeal and until such time, the said Resolution was not yet final and
executory."

xxx xxx xxx

"It cannot be denied, therefore, that when appellees commenced to demolish appellants'
houses as early as December 8, 1989 and eventually on December 12, 1989, neither the
Resolution of the Building Official nor the Demolition Order itself were final and executory."3

Petitioners filed the instant petition contending that the appellate court gravely erred in ruling that the
premature demolition of respondents' houses entitled them to the award of damages. Petitioners
pointed out that the order of the Office of the Building Official was eventually upheld on appeal by
the Department of Public Works and Highways in its decision of 14 March 1990. Furthermore,
petitioners added, the structures subject matter of the demolition order were declared to be
dangerous structures by the Office of the Building Official and, as such, could be abated to avoid
danger to the public.

The Court rules for affirmance of the assailed decision.

A right is a power, privilege, or immunity guaranteed under a constitution, statute or decisional law,
or recognized as a result of long usage,4 constitutive of a legally enforceable claim of one person
against another.

Petitioner might verily be the owner of the land, with the right to enjoy5 and to exclude any person
from the enjoyment and disposal thereof,6 but the exercise of these rights is not without limitations.
The abuse of rights rule established in Article 19 of the Civil Code requires every person to act with
justice, to give everyone his due; and to observe honesty and good faith.7 When a right is exercised
in a manner which discards these norms resulting in damage to another, a legal wrong is committed
for which the actor can be held accountable. In this instance, the issue is not so much about the
existence of the right or validity of the order of demolition as the question of whether or not
petitioners have acted in conformity with, and not in disregard of, the standard set by Article 19 of
the Civil Code.

At the time petitioners implemented the order of demolition, barely five days after respondents
received a copy thereof, the same was not yet final and executory. The law provided for a fifteen-day
appeal period in favor of a party aggrieved by an adverse ruling of the Office of the Building Official
but by the precipitate action of petitioners in demolishing the houses of respondents (prior to the
expiration of the period to appeal), the latter were effectively deprived of this recourse. The fact that
the order of demolition was later affirmed by the Department of Public Works and Highways was of
no moment. The action of petitioners up to the point where they were able to secure an order of
demolition was not condemnable but implementing the order unmindful of the right of respondents to
contest the ruling was a different matter and could only be held utterly indefensible.

The Court, however, finds the award of P75,000.00 exemplary damages and another of P75,000.00
moral damages for each respondent to be rather excessive given the circumstances; the awards
must be reduced to the reasonable amounts of P20,000.00 exemplary damages and P20,000.00
moral damages.

WHEREFORE, the assailed decision of the Court of Appeals is MODIFIED by reducing the awards
of P75,000.00 exemplary damages and of P75,000.00 moral damages to each respondent reduced
to P20,000.00 exemplary damages and P20,000.00 moral damages for each respondent. In all other
respects, the decision of the appellate court is AFFIRMED. No costs.

SO ORDERED.

Melo, Panganiban and Gonzaga-Reyes, JJ ., concur.

Sandoval-Gutierrez, J ., is on leave.

FIRST DIVISION

G.R. No. 140420 February 15, 2001 (Abuse of right)

SERGIO AMONOY, petitioner,

vs.
Spouses JOSE GUTIERREZ and ANGELA FORNIDA, respondents.

PANGANIBAN, J.:

Damnum absque injuria. Under this principle, the legitimate exercise of a person's rights, even if it
causes loss to another, does not automatically result in an actionable injury. The law does not
prescribe a remedy for the loss. This principle does not, however, apply when there is an abuse of a
person's right, or when the exercise of this right is suspended or extinguished pursuant to a court
order. Indeed, in the availment of one's rights, one must act with justice, give their due, and observe
honesty and good faith

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 21, 1999
Decision1 of the Court of Appeals (CA) in CA-GR CV No. 41451, which set aside the judgment2 of
the Regional Trial Court (RTC) of Tanay, Rizal. The RTC had earlier dismissed the Complaint for
damages filed by herein respondents against petitioner. The dispositive portion of the challenged CA
Decision reads as follows:

"WHEREFORE, the appealed Decision is SET ASIDE, and in its stead judgment is rendered
ordering the defendant-appellee Sergio Amonoy to pay the plaintiffs-appellants bruno and
Bernadina Gutierrez as actual damages the sum of [t]wo [h]undred [f]ifty [t]housand [p]esos
(P250,000.00)."3

Likewise assailed is the October 19, 1999 CA Resolution,4 which denied the Motion for
Reconsideration.

The Facts

The appellate court narrated the factual antecedents of this case as follows:
"This case had its roots in Special Proceedings No. 3103 of Branch I of the CFI of Pasig,
Rizal, for the settlement of the estate of the deceased Julio Cantolos, involving six(6) parcels
of land situated in Tanay Rizal. Amonoy was the counsel of therein Francisca Catolos,
Agnes Catolos, Asuncion Pasamba and Alfonso Formida. On 12 January 1965, the Project
of Partition submitted was approved and xxx two (2) of the said lots were adjudicated to
Asuncion Pasamba and Alfonso Formilda. The Attorney's fees charged by Amonoy was
P27,600.00 and on 20 January 1965 Asuncion Pasamba and Alfonso Formida executed a
deed of real estate mortgage on the said two (2) lots adjudicated to them, in favor of Amonoy
to secure the payment of his attorney's fees. But it was only on 6 August 1969 after the taxes
had been paid, the claims settled and the properties adjudicated, that the estate was
declared closed and terminated.

"Asuncion Pasamba died on 24 February 1969 while Alfonso Fornilda passsed away on 2
July 1969. Among the heirs of the latter was his daughter, plaintiff-appellant Angela
Gutierrez.

"Because his Attorney's fess thus secured by the two lots were not paid, on 21 January 1970
Amonoy filed for their foreclosure in Civil Code4 No. 12726 entitled Sergio Amonoy vs. Heirs
of Asuncion Pasamba and Heirs of Alfonso Fornilda before the CFI of Pasig, Rizal, and this
was assigned to Branch VIII. The heirs opposed, contending that the attorney's fees charged
[were] unconscionable and that the attorney's fees charged [were] unconscionable and that
the agreed sum was only P11,695.92. But on 28 September 1972 judgment was rendered in
favor of Amonoy requiring the heirs to pay within 90 days the P27,600.00 secured by the
mortgage, P11,880.00 as value of the harvests, and P9,645.00 as another round of
attorney's fees. Failing in that, the two (2) lots would be sold at public auction.

"They failed to pay. On 6 February 1973, the said lots were foreclosed and on 23 March
1973 the auction sale was held where Amonoy was the highest bidder at P23,760.00. On 2
May 1973 his bid was judicially confirmed. A deficiency was claimed and to satisfy it another
execution sale was conducted, and again the highest bidder was Amonoy at P12,137.50.

"Included in those sold was the lot on which the Gutierrez spouses had their house.

"More than a year after the Decision in Civil Code No. 12726 was rendered, the said
decedent's heirs filed on 19 December 1973 before the CFI of Pasig, Rixal[,] Civil case No.
18731 entitled Maria Penano, et al vs. Sergio Amonoy, et al, a suit for the annulment thereof.
The case was dismissed by the CFI on 7 November 1977, and this was affirmed by the Court
of Appeals on 22 July 1981.

"Thereafter, the CFI on 25 July 1985 issued a Writ of Possession and pursuant to which a
notice to vacate was made on 26 August 1985. On Amonoy's motion of 24 April 1986, the
Orders of 25 April 1986 and 6 May 1986 were issued for the demolition of structures in the
said lots, including the house of the Gutierrez spouses.

"On 27 September 1985 the petition entitled David Fornilda, et al vs Branch 164 RTC Ivth
Pasig, Deputy Sheriff Joaquin Antonil and Atty. Sergio Amonoy, G.R. No. L-72306, was filed
before the Supreme Court. Among the petitioners was the plaintiff-appellant Angela
Gutierrez. On a twin musiyun (Mahigpit na Musiyon Para Papanagutin Kaugnay ng
Paglalapastangan) with full titles as fanciful and elongated as their Petisyung (Petisyung
Makapagsuri Taglay and Pagpigil ng Utos), a temporary restraining order was granted on 2
June 1986 enjoining the demolition of the petitioners' houses.
 "Then on 5 October 1988 a Decision was rendered in the said G.R. No. L-72306 disposing
that:

"WHEREFORE, Certiorari is granted; the Order of respondent Trial Court, dated 25

July 1985, granting a Writ of Possession, as well as its Orderd, dated 25 April 1986
and 16 May 1986, directing and authorizing respondent Sheriff to demolish the
houses of petitioners Angela and Leocadia Fornilda are hereby ordered returned to
petitioners unless some of them have been conveyed to innocent third persons."5

But by the time the Supreme Court promulgated the abovementioned Decision, respondents' house
had already been destroyed, supposedly in accordance with a Writ of Demolition ordered by the
lower court.

Thus, a Complaint for damages in connection with the destruction of their house was filed by
respondents against petitioner before the RTC on December 15, 1989.

In its January 27, 1993 Decision, the RTC dismissed respondents' suit. On appeal, the CA set aside
the lower court's ruling and ordered petitioner to pay respondents P250,000 as actual damages.
Petitioner then filed a Motion for Reconsideration, which was also denied.

The Issue

In his Memorandum,7 petitioner submits this lone issue for our consideration:

"Whether or not the Court of Appeals was correct was correct in deciding that the petition
[was] liable to the respondents for damages."8

The Court's Ruling

The Petition has no merit.

Main Issue:

Petitioner's Liability

Well-settled is the maxim that damage resulting from the legitimate exercise of a person's rights is a
loss without injury- damnum absque injuria - for which the law gives no remedy.9 In other words, one
who merely exercises one's rights does no actionable injury and cannot be held liable for damages.

Petitioner invokes this legal precept in arguing that he is not liable for the demolition of respondents'
house. He maintains that he was merely acting in accordance with the Writ of Demolition ordered by
the RTC.

We reject this submission. Damnum absque injuria finds no application to this case.

True, petitioner commenced the demolition of respondents' house on May 30, 1986 under the
authority of a Writ of Demolition issued by the RTC. But the records show that a Temporary
Restraining Order (TRO), enjoining the demolition of respondents' house, was issued by the
Supreme Court on June 2, 1986. The CA also found, based on the Certificate of Service of the
Supreme Court process server, that a copy of the TRO was served on petitioner himself on June 4,
1986.
Petitioner, howeverm, did not heed the TRO of this Court. We agree with the CA that he unlawfully
pursued the demolition of respondents' house well until the middle of 1987. This is clear from
Respondent Angela Gutierrez's testimony. The appellate court quoted the following pertinent portion
thereof:10

"Q. On May 30, 1986, were they able to destroy your house?
"A. Not all, a certain portion only
xxx xxx xxx
"Q. Was your house completely demolished?
"A. No, sir.
xxx xxx xxx
"Q. Until when[,] Mrs. Witness?
"A. Until 1987.
"Q. About what month of 1987?
"A. Middle of the year.
"Q. Can you tell the Honorable Court who completed the demolition?
A. The men of Fiscal Amonoy."11

The foregoing disproves the claim of petitioner that the demolition, which allegedly commenced only
on May 30, 1986, was completed the following day. It likewise belies his allegation that the
demolitions had already ceased when he received notice of the TRO.

Although the acts of petitioner may have been legally justified at the outsset, their continuation after
the issuance of the TRO amounted to an insidious abuse of his right. Indubitably, his actions were
tainted with bad faith. Had he not insisted on completing the demolition, respondents would not have
suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an
abuse of a right, but an invalid exercise of a right that had been suspended when he received thae
TRO from this Court on June 4, 1986. By then he was no longer entitled to proceed with the
demolition.

A commentator on this topic explains:

"The exercise of a right ends when the right disappears, and it disappears when it is abused,
especially to the prejudice of others. The mask of a right without the spirit of justcie which
gives it life, is repugnant to the modern concept of social law. It cannot be said that a person
exercises a right when he unnecessarily prejudices another xxx. Over and above the specific
precepts of postive law are the supreme norms of justice xxx; and he who violates them
violates the law. For this reason it is not permissible to abuse our rights to prejudice
others."12

Likewise, in Albenson Enterprises Corp. v. CA,13 the Court discussed the concept of abuse of rights
as follows:

"Artilce 19, known to contain what is commonly referred to as the principle of abuse of rights,
sets certain standards which may 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; recognizes the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be held
responsible xxx."
Clearly then, the demolition of respondents' house by petitioner, despite his receipt of the TRO, was
not only an abuse but also an unlawful exercise of such right. In insisting on his alleged right, he
wantonly violated this Court's Order and wittingly caused the destruction of respondents; house. 1âwphi1.nêt

Obviously, petitioner cannot invoke damnum absque injuria, a principle premised on the valid
exercise of a right.14 Anything less or beyond such exercise will not give rise to the legal protection
that the principle accords. And when damage or prejudice to another is occasioned thereby, liability
cannot be obscured, much less abated.

In the ultimate analysis, petitioner's liability is premised on the obligation to repair or to make whole
the damage caused to another by reason of one's act or omission, whether done intentionally or
negligently and whether or not punishable by law.15

WHEREFORE, the Petition is DENIED and the appealed Decision AFFIRMED. Costs against
petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 100710 September 3, 1991 (Domicile, Residence and Citizenship)

BENJAMIN P. ABELLA, petitioner,
vs.
COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.
G.R. No. 100739 September 3, 1991
ADELINA Y. LARRAZABAL, petitioner,
vs.
COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.
Sixto S. Brillantes, Jr. for petitioner in 100739.
Cesar A. Sevilla for petitioner in 100710.
Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p

The main issue in these consolidated petitions centers on who is the rightful governor of the province
of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of
votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but
who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and
registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12,
Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No.
179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710),
who obtained the second highest number of votes for the position of governor but was not allowed
by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3)
Leopoldo E. Petilla, the vice-governor of the province of. Leyte.

This is the fourth time that the controversy relating to the local elections in February 1, 1988 for
governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are
stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ,
petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF
LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P.
ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and
COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit:

The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004
involving the same parties and the same election in 1988 for the office of provincial governor
of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent
Commission on Elections dismissing the pre-proclamation and disqualification cases filed by
the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial
governor of Leyte in the local election held on February 1, 1988. The private respondent is
the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban
who was disqualified by the Commission on Elections on January 18, 1988, for lack of
residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge
this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was
granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No.
81313]) On January 31, 1988, the day before the election, she filed her own certificate of
candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30
o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a
petition with the provincial election supervisor of Leyte to disqualify her for alleged false
statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This
was immediately transmitted to the main office of the Commission on Elections, which could
not function, however, because all but one of its members had not yet been confirmed by the
Commission on Appointments. De la Cruz then came to this Court, which issued a temporary
restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte
'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor
in the province of Leyte, in the event that she obtains the winning margin of votes in the
canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission
on Elections having been fully constituted, we remanded the petition thereto for appropriate
action, including maintenance or lifting of the Court's temporary restraining order of February
4, 1988. (Id. pp. 182-184)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced
to writing) during the canvass of the election returns, seasonably elevated them to the
Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I.
Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification
case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law
Department of the COMELEC charging the private respondent with falsification and
misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the
public respondent consolidated the pre-proclamation and disqualification cases with the
Second Division.

On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of
the provincial board of canvassers, mostly on the ground that the objection raised were
 merely formal and did not affect the validity of the returns or the ballots, and ordered the
proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp.
18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision,
and the matter was referred to the Law Department for 'preliminary investigation for possible
violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)

The motion for reconsideration of the resolution on the pre-proclamation cases was denied
by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30,
Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on
April 18, 1989, another temporary restraining order to the provincial board of canvassers of
Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or
from proclaiming private respondent Adelina Larrazabal Governor of Leyte.

The motion for reconsideration of the resolution on the qualification case was also denied by
the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No.
88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa
Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at
pp. 511-513)

Disposing of the consolidated petitions, this Court rendered judgment as follows:

1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13,
1989, are affirmed and the petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4,
1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is
ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the
Omnibus Election Code, with authority to maintain or lift our temporary restraining order of
April 18, 1989, according to its own assessment of the evidence against the private
respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the
Governor of Leyte may be ascertained and installed without further delay. (p. 520)

In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining
order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of
Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued.

On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal
as governor.

On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to
declare decision void and/or motion for reconsideration and affirmed the second division's decision.
In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte.

Hence, these petitions.

We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner
Larrazabal, this Court issued a temporary restraining order on August 1, 1991.
 xxx xxx xxx

... [E]ffective immediately and continuing until further orders from this Court, ordering the
respondent on on Elections to CEASE and DESIST from enforcing, implementing and
executing the decision and resolution, respectively dated February 14, 1991 and July 18,
1991.

It appearing that despite the filing of this petition before this Court and during its pendency,
the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial
Governor of Leyte and assumed the governorship as contained in his telegraphic message,
pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court
further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then
prevailing and/or existing before the filing of this petition and to DESIST from assuming the
office of the Governor and from discharging the duties and functions thereof. (Rollo-100739,
p. 204)

In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our
pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section
78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in
G.R. No. 88004.

The argument is not meritorious.

The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R.
No. 88004.

Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710
was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner
Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence
in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of
Ormoc City like her husband who was earlier disqualified from running for the same office. The
COMELEC dismissed the petition and referred the case to its Law Department for proper action on
the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it
rules, should be prosecuted as an election offense under Section 262 of the Code.

This Court reversed and set aside the COMELEC's ruling, to wit:

The Court holds that the dismissal was improper. The issue of residence having been
squarely raised before it, it should not have been shunted aside to the Law Department for a
roundabout investigation of the private respondent's qualification through the filing of a
criminal prosecution, if found to be warranted, with resultant disqualification of the accused in
case of conviction. The COMELEC should have opted for a more direct and speedy process
available under the law, considering the vital public interest involved and the necessity of
resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A.
No. 6646.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
 twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election.

Section 6 of R.A. 6646 states as follows:

Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. ...

xxx xxx xxx

The above-stressed circumstances should explain the necessity for continuing the
investigation of the private respondent's challenged disqualification even after the election
notwithstanding that such matter is usually resolved before the election. Independently of
these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any
reason a candidate is not declared by final judgment before an election to be disqualified ...

In fine, the Court directed the COMELEC to determine the residence qualification of petitioner
Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of
petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the
residence provided by law to qualify her to run for the position of governor in Leyte.

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to
resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la
Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a
registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in
relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at
least twenty-three years of age on election day, a qualified voter registered as such in the
barangay, municipality, city or province where he proposes to be elected, a resident therein
for at least one year at the time of the filing of his certificate of candidacy, and able to read
and write English, Pilipino, or any other local language or dialect.

xxx xxx xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose
charters prohibit their voters from voting for provincial elective officials, shall be independent
of the province. The voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective provincial officials.

The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a
resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter
of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to
Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of
Leyte. They presented testimonial as well as documentary evidence to prove their stance.
On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter
of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her
stand.

The COMELEC ruled against the respondent, now petitioner Larrazabal.

In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither
a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC
disqualified the petitioner as governor of the province of Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the
provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to
run for the position of governor of Leyte. She opines that under "the Election Law, the matter of
determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi
rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City
thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she
had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in
the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40)

As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner
lacks the required residence on the evidence of record to the effect that despite protestations to the
contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the
present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year
before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor
of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In
the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code
was proper and in consonance with human experience. The petitioner did not present evidence to
show that she and her husband maintain separate residences, she at Kananga, Leyte and her
husband at Ormoc City. The second division of the COMELEC in its decision dated February 14,
1991 states:

xxx xxx xxx

But there is the more fundamental issue of residence. The only indications of a change of
residence so far as respondent is concerned are: the address indicated in the application for
cancellation filed by respondent indicating her postal address as Kananga, Leyte, the
annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due
to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a
contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two
parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses
in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses
had decided to buy their property because she wanted to beautify the house for their
residence. She attached as annex the written contract signed by her and the spouses; and
the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting
... the political plan of the Larrazabal clan was discussed, among which were (sic) the
problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that
Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga,
Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have
been staying in Kananga, very often as they have properties in Lonoy and a house in
Mahawan.
 The references to residence in the documents of cancellation and registration are already
assessed for their evidentiary value in relation to the documents themselves above. The
question must therefore be addressed in relation to the testimony of Anastacia Dasigan
Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased
properties in Mahawan, Leyte and that they are seen in the house on the land leased. But
the contract of lease with option to purchase itself indicates as to where the legal residence
of the Jarrazabal is. The pertinent portion states:

SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age,

Filipino, and residents of Ormoc City, Philippines, hereinafter referred to as the LESSEES.

The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence
Certificate No. 155774914 issued in Ormoc City.

The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or
third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that
Inday Larrazabal was going to transfer her registration so she may be able to vote for him.

For the purpose of running for public office, the residence requirement should be read as
legal residence or domicile, not any place where a party may have properties and may visit
from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide. The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their
usual place of abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis
supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96
Phil. 294 [1954]):

xxx xxx xxx

... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in
business, or practice his avocation, is not sufficient to constitute abandonment or loss of
such residence.' ... The determination of a persons legal residence or domicile largely
depends upon intention which may be inferred from his acts, activities and utterances. The
party who claims that a person has abandoned or left his residence or origin must show and
prove pre-ponderantly such abandonment or loss.
 xxx xxx xxx

... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes,
to improve his life, and that, of course, includes study in other places, practice of his
avocation, or engaging in business. When an election is to be held, the citizen who left his
birthplace to improve his lot may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not absent himself from
the place of his professional or business activities; so there he registers as voter as he has
the qualifications to be one and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of origin, has not
forsaken him. ... (at pp. 297-300)

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in
Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she
established her residence in Ormoc City with her husband and considers herself a resident therein.
The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor
present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an
intention to continue her residence therein. It is common among us Filipinos to often visit places
where we formerly resided specially so when we have left friends and relatives therein although for
intents and purposes we have already transferred our residence to other places.

Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner
insists that she is such a registered voter based on the following antecedents: 1) She cancelled her
registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to
Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day
(February 1, 1988) in Kananga, Leyte.

Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of
registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the
records. As the COMELEC stated:

The train of events, which led to respondent's g of her certificate of candidacy on the basis of
her registration started on November 25, 1987, when she allegedly filed all application for
cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in
Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled
upon application of the voter due to transfer of residence.' Thereafter, she registered in
Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was
contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was
submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the
submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election
Registrar's Office with only the poll clerk and the third member because the Chairman of the
Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B".

We find the version pressed by respondent unworthy of belief. The story is marked by so
many bizarre cirumtances not consistent with the ordinary course of events or the natural
behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal

happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it
was not sent to the Board of Election Inspectors in a sealed envelope;
(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988;

(3) The voter's affidavit was delivered by itself without any endorsement or covering letter
from the Election Registrar or anybody else;

(4) The election clerk delivered the application for cancellation only towards the last hour of
the revision day, allegedly at 4:30 P.M., January 9, 1988;

(5) All the members of the Board of Election Inspectors had already signed the Minutes
indicating that no revision of the voter's list was made as of 5:00 PM

(6) The poll clerk and the third member prepared another minutes stating that the election
clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the
minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan,
Kananga, was supposed to have filled up an application for cancellation of his registration in
Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for
cancellation was never submitted in evidence.

(8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17
are far removed from the serial numbers of the other new registrants in November 28, 1987
in the same precinct.

The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and
the poll clerk had written in Part II of the same, closed by the signatures of both officials
showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan,
Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame
Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is
consistent with the list of new voters after the November 28, 1987 for Precinct No. 17,
Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File
of the Commission per certification of the Chief, National Central File Division on January 25,
1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to
the Commission could only have come from the Board of Election Inspectors of Precinct No.
17, after the November 28, 1987 registration, for the Election Registrar could not have had
the affidavits of these new registrants apart from those supplied by the Precinct itself. Why
were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre
series of inadvertence and neglect that spanned Ormoc City and Kananga? This also
explains the certification dated January 29, 1988, of the Election Registrar of Kananga that
as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in
Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that
the same Registrar certified for the first time that there were two voters lists, the first without
the names of the Larrazabals and the second, which appeared only after February 1,
submitted by the Chairman of the Board for Precinct 17 which contained the spouses
Larrazabals' names.

It might also be stressed that one set of voter's list Exh. "G" had the signature of both the
Chairman, poll clerk and third member of the board, while the one which appeared later
which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I".

From the certification of the National Central Files, it appears that the Serial Nos. of the
newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J
 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio
V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits
with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of
the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of
precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in
Kananga, Municipal High School Building. How these documents came to be used in
Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been
explained.

It also takes a lot of straining to believe the story about the effort to cancel registration on
November 25, 1987, which application surfaced before the Board of Election inspectors for
Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by
Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the
purpose of receiving inclusion and exclusion orders from the courts, that the application for
cancellation would be coincidentally found and delivered to the Board of Election Inspectors
for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said
precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion
was received from any court and that the board proceeded with the numbering of a total 229
voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh.
"3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third
member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office
arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal.

It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15,
Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina
Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98.
At the back of the list there is a certification that there was no voter which was included by
court order and that to voters, one Montero and one Salvame were excluded by virtue of
such order. As of January 29, 1988, when the certified true copy of the Voter's List for
Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which
would show what transpired on January 9, 1988, as alleged by the Election Registrar for
Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation
was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the
City Registrar for Ormoc only on February 1, 1990, which for the first time showed
handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma
Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the
entry which purports to have been on January 9, 1988, this evidence could have been used
to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14,
1988. In fact if these entries indicating (sic) were made, they would have been evident in
Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-
C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when
the certification of the list of voters was made and that they were annotated in the voter's list
after that date. This is consistent with Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was
not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and
her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15,
Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27)

The Court is bound by these factual findings as they are supported by substantial evidence:
 In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the
'independence and all the needed concomitant powers' of the Commission on Elections,
Justice Antonio P. Barredo declared that it is but proper that the Court should accord the
greatest measures of presumption of regularity to its course of action ... to the end it may
achieve its designed place in the democratic fabric of our government ... (Abella v.
Larrazabal, supra)

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner
poses an alternative position that her being a registered voter in Ormoc City was no impediment to
her candidacy for the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by law, and component cities whose charters
prohibit their voters from voting for provincial elective officials, shall be independent of the
province. The voters of component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the
Provincial Board of the Province of Leyte — The qualified voters of Ormoc City shall not be
qualified and entitled to vote in the election of the provincial governor and the members of
the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up
with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but
is, nevertheless, considered independent of the province of Leyte to which it is geographically
attached because its charter prohibits its voters from voting for the provincial elective officials. The
question now is whether or not the prohibition against the 'city's registered voters' electing the
provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial
officials.

The petitioner citing section 4, Article X of the Constitution, to wit:

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities and cities and
municipalities with respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.

submits that "while a Component City whose charter prohibits its voters from participating in the
elections for provincial office, is indeed independent of the province, such independence cannot be
equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and
nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the
provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities,
component cities whose charters prohibit their voters from voting for provincial elective officials are
independent of the province. In the same provision, it provides for other component cities within a
province whose charters do not provide a similar prohibition. Necessarily, component cities like
Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated
like highly urbanized cities which are outside the supervisory power of the province to which they are
geographically attached. This independence from the province carries with it the prohibition or
mandate directed to their registered voters not to vote and be voted for the provincial elective offices.
The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated
December 10, 1987 applies to this case. While the cited case involves Olongapo City which is
classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits
registered voters of Ormoc City from voting and being voted for elective offices in the province of
Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to
vote in the election of the provincial governor and the members of the provincial board of the
Province of Leyte' connotes two prohibitions — one, from running for and the second, from voting for
any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong
English" since nowhere in the provision is there any reference to a prohibition against running for
provincial elective office. She states that if the prohibition to run was indeed intended, the provision
should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor."
A comma should have been used after the word qualified and after the word "vote" to clearly indicate
that the phrase "in the election of the provincial governor" is modified separately and distinctly by the
words "not qualified" and the words "not entitled to vote." (Petition, p. 19)

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential
Decree No. 957 in relation to the conjunction and, to wit:

Time of Completion. — Every owner or developer shall construct and provide the facilities,
improvements, infrastructures and other forms of development, including water supply and
lighting facilities, which are offered and indicated in the approved subdivision or
condominium plans. ...

The Court ruled:

We further reject petitioner's strained and tenuous application of the called doctrine of last
antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would
thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of
development' interpreted to mean that the demonstrative Phrase 'which are offered and
indicated in the approved subdivision plans, etc,' refer only to 'other forms of development'
and not to 'facilities, improvements and infrastructures.' While this subserves his purpose,
such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent
words, is illogical and erroneous. The complete and applicable rule is ad proximum
antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57
citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the
nearest antecedent, unless it be prevented by the context. In the present case, the
employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other
forms of development,' far from supporting petitioner's theory, enervates it instead since it is
basic in legal hermeneutics that and is not meant to separate words but is a conjunction
used to denote a joinder or union. (at pp. 81-83)
Applying these principles to the instant case, the conjunction and between the phrase shall not be
qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the
demonstrative phrase "in the election of the provincial governor and the members of the provincial
board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second
division is null and void on the ground that on that date, the term of Commissioner Andres Flores,
one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2,
1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was
confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed
by the President for three years from February 15, 1988 to February 15, 1991.)

The petitioner postulates that the President has no power to fix the terms of office of the
Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With
regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired
on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit:

xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years, without reappointment. Any
appointment to any vacancy shall be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a temporary or acting capacity. In
relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section
15 thereof, to wit:

xxx xxx xxx

The incumbent Members of the Civil Service Commission, the Commission on Elections, and
the Commission on Audit shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become incapacitated to
discharge The duties of their office or appointed to a new term thereunder. In no case shall
any Member serve longer than seven years including service before the ratification of this
Constitution.

There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in
the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]):

xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely
necessary to a decision of the case. If there exists some other ground based on statute or
general law or other grounds of construction, we decide the case on a non-constitutional
determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R.
Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45)

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how
this could validate the holding of an elective office by one who is clearly disqualified from running for
that position and the continued exercise of government powers by one without legal authority to do
so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory
provisions by public officers especially where, as in this case, we merely affirm the decision of the
COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member.

Moreover, under the peculiar circumstances of this case, the decision of the second division of
COMELEC would still be valid under the de facto doctrine.

Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15,
1991. In these three years he exercised his duties and functions as Commissioner. Granting in the
absence of a statute expressly stating when the terms of the COMELEC Chairman and members
commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance
with the constitutional provision that the terms of office in the COMELEC are on a staggered basis
commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a
color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are
considered valid. The Court ruled in the case of Leyte Acting Vice-Governor Aurelio D. Menzon v.
Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991:

And finally, even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least, the petitioner is
a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color
of a known appointment. As revealed by the records, the petitioner was appointed by no less
than the alter ego of the President, the Secretary of Local Government, after which he took
his oath of office before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra. Concededly, the appointment has the color
of validity.

Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next
to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en
banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as
governor disallowed Abella from assuming position of governor in accordance with section 6,
Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on Elections (174
SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him
these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases
were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the
eligibility of the respondents after they had been proclaimed duly elected to the Office from which
they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under
section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of
candidacy for material misrepresentations and was seasonably filed on election day. He, therefore,
avers that since under section 6 of Republic Act 6646 it is provided therein that:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and
the votes case for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered
counted making her a non-candidate, he, who obtained the second highest number of votes should
be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that
the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal
considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief
that she was a qualified candidate for the position of governor. Her votes were counted and she
obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was
repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the
candidates who obtained the second highest number of votes were not allowed to assume the
positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in
Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in
the event a candidate for an elected position who is voted for and who obtains the highest number of
votes is disqualified for not possessing the eligibility requirements at the time of the election as
provided by law, the candidate who obtains the second highest number of votes for the same
position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the
Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to
determine whether or not Larrazabal was qualified to be a candidate for the position of governor in
the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in
the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that
as he obtained only the second highest number of votes in the election, he was obviously not
the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed
elected after the votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect, the second placer won by
default. That decision was supported by eight members of the Court then, (Cuevas, J.,
ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and
Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.)
One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor
of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more
logical and democratic rule. That case, which reiterated the doctrine first announced in 1912
in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although
one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were
on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental idea in all republican forms of government that no one can be declared
 elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid the vote the winner into office or
maintain him there. However the absence of a statute which clearly asserts a
contrary politics and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)

In sum, the Court does not find any reason to reverse and set aside the questioned decision
and resolution of the COMELEC. The COMELEC has not acted without or in excess of
jurisdiction or in grave abuse of discretion.

WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second
division of the Commission on Elections dated February 14, 1991 and the questioned
Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The
temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the
petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 104654 June 6, 1994 (Domicile, Residence and Citizenship)

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT,
BRANCH 28, MANILA and JUAN G. FRIVALDO, respondents.
G.R. No. 105715 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
G.R. No. 105735 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
The Solicitor General for petitioner in G.R. No. 104654.
Yolando F. Lim counsel for private respondent.

QUIASON, J.:
In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared private
respondent, Juan G. Frivaldo, an alien and therefore disqualified from serving as Governor of the
Province of Sorsogon.

Once more, the citizenship of private respondent is put in issue in

these petitions docketed as G.R. No.104654 and G.R. No. 105715 and G.R. No. 105735. The
petitions were consolidated since they principally involve the same issues and parties.

G.R. No. 104654

This is a petition for certiorari under Rule 45 of the Revised Rules of Court in relation to R.A. No.
5440 and Section 25 of the Interim Rules, filed by the Republic of the Philippines: (1) to annul the
Decision dated February 27, 1992 of the Regional Trial Court, Branch 28, Manila, in SP Proc. No.
91-58645, which re-admitted private respondent as a Filipino citizen under the Revised
Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of
allegiance taken by private respondent on February 27, 1992.

On September 20, 1991, petitioner filed a petition for naturalization captioned: "In the Matter of
Petition of Juan G. Frivaldo to be Re-admitted as a Citizen of the Philippines under Commonwealth
Act No. 63" (Rollo, pp. 17-23).

In an Order dated October 7, 1991 respondent Judge set the petition for hearing on March 16, 1992,
and directed the publication of the said order and petition in the Official Gazette and a newspaper of
general circulation, for three consecutive weeks, the last publication of which should be at least six
months before the said date of hearing. The order further required the posting of a copy thereof and
the petition in a conspicuous place in the Office of the Clerk of Court of the Regional Trial Court,
Manila (Rollo, pp. 24-26).

On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of Schedule," where
he manifested his intention to run for public office in the May 1992 elections. He alleged that the
deadline for filing the certificate of candidacy was March 15, one day before the scheduled hearing.
He asked that the hearing set on March 16 be cancelled and be moved to January 24 (Rollo, pp. 27-
28).

The motion was granted in an Order dated January 24, 1992, wherein the hearing of the petition was
moved to February 21, 1992. The said order was not published nor a copy thereof posted.

On February 21, the hearing proceeded with private respondent as the sole witness. He submitted
the following documentary evidence: (1) Affidavit of Publication of the Order dated October 7, 1991
issued by the publisher of The Philippine Star (Exh. "A"); (2) Certificate of Publication of the order
issued
by the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B-1"); (4)
Photocopy of a Citation issued by the National Press Club with private respondent’s picture (Exhs.
"C" and "C-2"); (5) Certificate of Appreciation issued by the Rotary Club of Davao (Exh. "D"); (6)
Photocopy
of a Plaque of Appreciation issued by the Republican College, Quezon City (Exh. "E"); (7) Photocopy
of a Plaque of Appreciation issued by the Davao-Bicol Association (Exh. "F"); (8) Certification issued
by the Records Management and Archives Office that the record of birth of private respondent was
not on file (Exh. "G"); and (8) Certificate of Naturalization issued by the United States District Court
(Exh. "H").
Six days later, on February 27, respondent Judge rendered the assailed Decision, disposing as
follows:

WHEREFORE, the petition is GRANTED. Petitioner JUAN G. FRIVALDO, is re-

admitted as a citizen of the Republic of the Philippines by naturalization, thereby
vesting upon him, all the rights and privileges of a natural born Filipino citizen (Rollo,
p. 33).

On the same day, private respondent was allowed to take his oath of allegiance before respondent
Judge (Rollo, p. 34).

On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for Reconsideration"
was filed by Quiterio H. Hermo. He alleged that the proceedings were tainted with jurisdictional
defects, and prayed for a new trial to conform with the requirements of the Naturalization Law.

After receiving a copy of the Decision on March 18, 1992, the Solicitor General interposed a timely
appeal directly with the Supreme Court.

G.R. No. 105715

This is a petition for certiorari, mandamus with injunction under Rule 65 of the Revised Rules of
Court in relation to Section 5(2) of Article VIII of the Constitution with prayer for temporary restraining
order filed by Raul R. Lee against the Commission on Elections (COMELEC) and private
respondent, to annul the en banc Resolution of the COMELEC, which dismissed his petition
docketed as SPC Case No. 92-273. The said petition sought to annul the proclamation of private
respondent as Governor-elect of the Province of Sorsogon.

Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP) for the position of
governor of the Province of Sorsogon in the May 1992 elections. Private respondent was the official
candidate of the Lakas-National Union of Christian Democrats (Lakas-NUCD) for the same position.

Private respondent was proclaimed winner on May 22, 1992.

On June 1, petitioner filed a petition with the COMELEC to annul the proclamation of private
respondent as Governor-elect of the Province of Sorsogon on the grounds: (1) that the proceedings
and composition of the Provincial Board of Canvassers were not in accordance with law; (2) that
private respondent is an alien, whose grant of Philippine citizenship is being questioned by the State
in G.R. No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner further
prayed that the votes case in favor of private respondent be considered as stray votes, and that he,
on the basis of the remaining valid votes cast, be proclaimed winner.

On June 10, the COMELEC issued the questioned en banc resolution which dismissed the petition
for having been filed out of time, citing Section 19 of R.A. No. 7166. Said section provides that the
period to appeal a ruling of the board of canvassers on questions affecting its composition or
proceedings was three days.

In this petition, petitioner argues that the COMELEC acted with grave abuse of discretion when it
ignored the fundamental issue of private respondent’s disqualification in the guise of technicality.
Petitioner claims that the inclusion of private respondent’s name in the list of registered voters in Sta.
Magdalena, Sorsogon was invalid because at the time he registered as a voter in 1987, he was as
American citizen.

Petitioner further claims that the grant of Filipino citizenship to private respondent is not yet
conclusive because the case is still on appeal before us.

Petitioner prays for: (1) the annulment of private respondent’s proclamation as Governor of the
Province of Sorsogon; (2) the deletion of private respondent’s name from the list of candidates for
the position of governor; (3) the proclamation of the governor-elect based on the remaining votes,
after the exclusion of the votes for private respondent; (4) the issuance of a temporary restraining
order to enjoin private respondent from taking his oath and assuming office; and (5) the issuance of
a writ of mandamus to compel the COMELEC to resolve the pending disqualification case docketed
as SPA Case No. 92-016, against private respondent.

G.R. No. 105735

This is a petition for mandamus under Rule 65 of the Revised Rules of Court in relation to Section
5(2) of Article VIII of the Constitution, with prayer for temporary restraining order. The parties herein
are identical with the parties in G.R. No. 105715.

In substance, petitioner prays for the COMELEC’s immediate resolution of SPA Case No. 92-016,
which is a petition for the cancellation of private respondent’s certificate of candidacy filed on March
23, 1992 by Quiterio H. Hermo, the intervenor in G.R. No. 104654 (Rollo, p. 18).

The petition for cancellation alleged: (1) that private respondent is an American citizen, and therefore
ineligible to run as candidate for the position of governor of the Province of Sorsogon; (2) that the
trial court’s decision
re-admitting private respondent as a Filipino citizen was fraught with legal infirmities rendering it null
and void; (3) that assuming the decision to be valid, private respondent’s oath of allegiance, which
was taken on the same day the questioned decision was promulgated, violated Republic Act No.
530, which provides for a two-year waiting period before the oath of allegiance can be taken by the
applicant; and (4) that the hearing of the petition on February 27, 1992, was held less than four
months from the date of the last publication of the order and petition. The petition prayed for the
cancellation of private respondent’s certificate of candidacy and the deletion of his name from the list
of registered voters in Sta. Magdalena, Sorsogon.

In his answer to the petition for cancellation, private respondent denied the allegations therein and
averred: (1) that Quiterio H. Hermo, not being a candidate for the same office for which private
respondent was aspiring, had no standing to file the petition; (2) that the decision re-admitting him to
Philippine citizenship was presumed to be valid; and (3) that no case had been filed to exclude his
name as a registered voter.

Raul R. Lee intervened in the petition for cancellation of private respondent’s certificate of candidacy
(Rollo, p. 37.).

On May 13, 1992, said intervenor urged the COMELEC to decide the petition for cancellation, citing
Section 78 of the Omnibus Election Code, which provides that all petitions on matters involving the
cancellation of a certificate of candidacy must be decided "not later than fifteen days before
election," and the case of Alonto v. Commission on Election, 22 SCRA 878 (1968), which ruled that
all pre-proclamation controversies should be summarily decided (Rollo,
p. 50).
The COMELEC concedes that private respondent has not yet reacquired his Filipino citizenship
because the decision granting him the same is not yet final and executory (Rollo, p. 63). However, it
submits that the issue of disqualification of a candidate is not among the grounds allowed in a
pre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said petition was filed out of
time.

The COMELEC contends that the preparation for the elections occupied much of its time, thus its
failure to immediately resolve SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of the
COMELEC Rules of Procedure, it is excused from deciding a disqualification case within the period
provided by law for reasons beyond its control. It also assumed that the same action was
subsequently abandoned by petitioner when he filed before it a petition for quo warranto docketed as
EPC No. 92-35. The quo warranto proceedings sought private respondent’s disqualification because
of his American citizenship.

II

G.R. No. 104654

We shall first resolve the issue concerning private respondent’s citizenship.

In his comment to the State’s appeal of the decision granting him Philippine citizenship in G.R. No.
104654, private respondent alleges that the precarious political atmosphere in the country during
Martial Law compelled him to seek political asylum in the United States, and eventually to renounce
his Philippine citizenship.

He claims that his petition for naturalization was his only available remedy for his reacquisition of
Philippine citizenship. He tried to reacquire his Philippine citizenship through repatriation and direct
act of Congress. However, he was later informed that repatriation proceedings were limited to army
deserters or Filipino women who had lost their citizenship by reason of their marriage to foreigners
(Rollo, pp. 49-50). His request to Congress for sponsorship of a bill allowing him to reacquire his
Philippine citizenship failed to materialize, notwithstanding the endorsement of several members of
the House of Representatives in his favor (Rollo, p. 51). He attributed this to the maneuvers of his
political rivals.

He also claims that the re-scheduling of the hearing of the petition to an earlier date, without
publication, was made without objection from the Office of the Solicitor General. He makes mention
that on the date of the hearing, the court was jam-packed.

It is private respondent’s posture that there was substantial compliance with the law and that the
public was well-informed of his petition for naturalization due to the publicity given by the media.

Anent the issue of the mandatory two-year waiting period prior to the taking of the oath of allegiance,
private respondent theorizes that the rationale of the law imposing the waiting period is to grant the
public an opportunity to investigate the background of the applicant and to oppose the grant of
Philippine citizenship if there is basis to do so. In his case, private respondent alleges that such
requirement may be dispensed with, claiming that his life, both private and public, was well-known.
Private respondent cites his achievement as a freedom fighter and a former Governor of the
Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the Philippines is meritorious. The
naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the
decision an anomaly.
Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the
Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is
not for an applicant to decide for himself and to select the requirements which he believes, even
sincerely, are applicable to his case and discard those which be believes are inconvenient or merely
of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino
citizen and one who was never such a citizen. It does not provide a special procedure for the
reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman
who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent.
The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null
and void for failure to comply with the publication and posting requirements under the Revised
Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing
must be published once a week for three consecutive weeks in the Official Gazette and a newspaper
of general circulation respondent cites his achievements as a freedom fighter and a former Governor
of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of

the Philippines is meritorious. The naturalization proceedings in SP Proc.
No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.

Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the
Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is
not for an applicant to decide for himself and to select the requirements which he believes, even
sincerely, are applicable to his case and discard those which he believes are inconvenient or merely
of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino
citizen and one who was never such a citizen. It does not provide a special procedure for the
reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman
who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent.
The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null
and void for failure to comply with the publication and posting requirements under the Revised
Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing
must be published once a week for three consecutive weeks in the Official Gazette and a newspaper
of general circulation. Compliance therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400
[1992]). Moreover, the publication and posting of the petition and the order must be in its full test for
the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).

The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised
Naturalization Law, particularly: (1) that the petitioner is of good moral character; (2) that he resided
continuously in the Philippines for at least ten years; (3) that he is able to speak and write English
and any one of the principal dialects; (4) that he will reside continuously in the Philippines from the
date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a
declaration of intention or if he is excused from said filing, the justification therefor.

The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]).
Likewise, the petition is not supported by the affidavit of at least two credible persons who vouched
for the good moral character of private respondent as required by Section 7 of the Revised
Naturalization Law. Private respondent also failed to attach a copy of his certificate of arrival to the
petition as required by Section 7 of the said law.

The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the
petition was set ahead of the scheduled date of hearing, without a publication of the order advancing
the date of hearing, and the petition itself; (2) the petition was heard within six months from the last
publication of the petition; (3) petitioner was allowed to take his oath of allegiance before the finality
of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting
period.

A decision in a petition for naturalization becomes final only after 30 days from its promulgation and,
insofar as the Solicitor General is concerned, that period is counted from the date of his receipt of
the copy of the decision (Republic v. Court of First Instance of Albay, 60 SCRA 195 [1974]).

Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings
shall be executory until after two years from its promulgation in order to be able to observe if: (1) the
applicant has left the country; (2) the applicant has dedicated himself continuously to a lawful calling
or profession; (3) the applicant has not been convicted of any offense or violation of government
promulgated rules; and (4) the applicant has committed any act prejudicial to the interest of the
country or contrary to government announced policies.

Even discounting the provisions of R.A. No. 530, the courts cannot implement any decision granting
the petition for naturalization before its finality.

G.R. No. 105715

In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino citizen, we have
to grant the petition in G.R. No. 105715 after treating it as a petition for certiorari instead of a petition
for mandamus. Said petition assails the en banc resolution of the COMELEC, dismissing SPC Case
No. 92-273, which in turn is a petition to annul private respondent’s proclamation on three grounds:
1) that the proceedings and composition of the Provincial Board of Canvassers were not in
accordance with law; 2) that private respondent is an alien, whose grant of Filipino citizenship is
being questioned by the State in G.R. No. 104654; and 3) that private respondent is not a duly
registered voter. The COMELEC dismissed the petition on the grounds that it was filed outside the
three-day period for questioning the proceedings
and composition of the Provincial Board of Canvassers under Section 19 of R.A. No. 7166.

The COMELEC failed to resolve the more serious issue — the disqualification of private respondent
to be proclaimed Governor on grounds of lack of Filipino citizenship. In this aspect, the petition is
one for quo warranto. In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), we held that a
petition for quo warranto, questioning the respondent’s title and seeking to prevent him from holding
office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section
253 of the Omnibus Election Code. Furthermore, we explained that "qualifications for public office
are continuing requirements and must be possessed not only at the time of appointment or election
or assumption of office but during the officer’s entire tenure; once any of the required qualification is
lost, his title may be seasonably challenged."

Petitioner’s argument, that to unseat him will frustrate the will of the electorate, is untenable. Both
the Local Government Code and the Constitution require that only Filipino citizens can run and be
elected to public office. We can only surmise that the electorate, at the time they voted for private
respondent, was of the mistaken belief that he had legally reacquired Filipino citizenship.

Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered
stray and that he, being the candidate obtaining the second highest number of votes, be declared
winner. In Labo, Jr. v. COMELEC, 176 SCRA 1 (1989), we ruled that where the candidate who
obtained the highest number of votes is later declared to be disqualified to hold the office to which he
was elected, the candidate who garnered the second highest number of votes is not entitled to be
declared winner (See also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil.
238 [1912]).

G.R. No. 105735

In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the petition in G.R. No.
105735 moot and academic.

WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both GRANTED while the
petition in G.R. No. 105735 is DISMISSED. Private respondent is declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from continuing to serve as GOVERNOR of the Province
of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the Vice-
Governor of the Province of Sorsogon once this decision becomes final and executory. No
pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-20089 December 26, 1964(Concept and Nature of Marriage)

BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete public
humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get
married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his
bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair
today.
 Please do not ask too many people about the reason why — That would only create
a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE

MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced
evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and
exemplary damages; P2,500.00 as attorney's fees; and the costs.

On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and
motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2,
1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at
this stage of the proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City — the latter's residence
— on the possibility of an amicable element. The court granted two weeks counted from August 25,
1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
September 8, 1955 but that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the
parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel
informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has
appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged
excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that
defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence,
must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry
the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not
valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,
December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere
surplusage, because the judgment sought to be set aside was null and void, it having been based on
evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October
30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an
action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-
14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "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."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract
marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4,
1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were
purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn.,
6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard
from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question
is raised as to the award of actual damages. What defendant would really assert hereunder is that
the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.

Per 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. As to exemplary damages, defendant contends that
the same could not be adjudged against him because under Article 2232 of the New Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of
this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's
opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is
hereby affirmed, with costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and
Zaldivar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18630 December 17, 1966 (Concept and Nature of Marriage)
APOLONIO TANJANCO, petitioner,
vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.
P. Carreon and G. O. Veneracion, Jr. for petitioner.
Antonio V. Bonoan for respondents.
REYES, J.B.L., J.:

Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the
Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support
and damages.

The essential allegations of the complaint are to the effect that, from December, 1957, the defendant
(appellee herein), Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age;
that "defendant expressed and professed his undying love and affection for plaintiff who also in due
time reciprocated the tender feelings"; that in consideration of defendant's promise of marriage
plaintiff consented and acceded to defendant's pleas for carnal knowledge; that regularly until
December 1959, through his protestations of love and promises of marriage, defendant succeeded
in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her
pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as
secretary in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff
became unable to support herself and her baby; that due to defendant's refusal to marry plaintiff, as
promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock,
and social humiliation. The prayer was for a decree compelling the defendant to recognize the
unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her support and
that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's
fees.

Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to
state a cause of action.
Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case,
holding with the lower court that no cause of action was shown to compel recognition of a child as
yet unborn, nor for its support, but decreed that the complaint did state a cause of action for
damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows:

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.

The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court
of origin to proceed with the case.

Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are
not permissible in this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, L-
14733, September 30, 1960; Hermosisima vs. Court of Appeals, L-14628, January 29, 1962; and De
Jesus vs. SyQuia, 58 Phil. 886.

We find this appeal meritorious.

In holding that the complaint stated a cause of action for damages, under Article 21 above
mentioned, the Court of Appeals relied upon and quoted from the memorandum submitted by the
Code Commission to the Legislature in 1949 to support the original draft of the Civil Code. Referring
to Article 23 of the draft (now Article 21 of the Code), the Commission stated:

But the Code Commission has gone farther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the following rule:

"ART. 23. 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."

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage either has not been made, or can not be proved.
The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above
eighteen years of age. Neither can any civil action for breach of promise of marriage be filed.
Therefore, though the grievous moral wrong has been committed, and though the girl and
her family have suffered incalculable moral damage, she and her parents cannot bring any
action for damages. But under the proposed article, she and her parents would have such a
right of action.

The Court of Appeals seems to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who has been seduced. The essential
feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27
Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

 To constitute seduction there must in all cases be some sufficient promise or
inducement and the woman must yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is from mutual desire, there is no
seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path
of virtue by the use of some species of arts, persuasions and wiles, which are calculated to
have and do have that effect, and which result in her ultimately submitting her person to the
sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or deception is
the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recover.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of
the female, and the defendant merely affords her the needed opportunity for the commission
of the act. It has been emphasized that to allow a recovery in all such cases would tend to
the demoralization of the female sex, and would be a reward for unchastity by which a class
of adventuresses would be swift to profit." (47 Am. Jur. 662)

Bearing these principles in mind, let us examine the complaint. The material allegations there are as
follows:

I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City,
while defendant is also of legal age, single and residing at 525 Padre Faura, Manila, where
he may be served with summons;

II. That the plaintiff and the defendant became acquainted with each other sometime in
December, 1957 and soon thereafter, the defendant started visiting and courting the plaintiff;

III. That the defendant's visits were regular and frequent and in due time the defendant
expressed and professed his undying love and affection for the plaintiff who also in due time
reciprocated the tender feelings;

IV. That in the course of their engagement, the plaintiff and the defendant as are wont of
young people in love had frequent outings and dates, became very close and intimate to
each other and sometime in July, 1958, in consideration of the defendant's promises of
marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to
have carnal knowledge with him;

V. That subsequent thereto and regularly until about July, 1959 except for a short period in
December, 1958 when the defendant was out of the country, the defendant through his
protestations of love and promises of marriage succeeded in having carnal knowledge with
the plaintiff;

VI. That as a result of their intimate relationship, the plaintiff started conceiving which was
confirmed by a doctor sometime in July, 1959;

VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant
and pleaded with him to make good his promises of marriage, but instead of honoring his
promises and righting his wrong, the defendant stopped and refrained from seeing the
 plaintiff since about July, 1959 has not visited the plaintiff and to all intents and purposes has
broken their engagement and his promises.

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction.
Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without exacting early
fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon
finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made
under Article 21 of the Civil Code, and no other cause of action being alleged, no error was
committed by the Court of First Instance in dismissing the complaint.

Of course, the dismissal must be understood as without prejudice to whatever actions may
correspond to the child of the plaintiff against the defendant-appellant, if any. On that point, this
Court makes no pronouncement, since the child's own rights are not here involved.

FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the
Court of First Instance is affirmed. No costs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.C. No. 932 June 21, 1940 (Marriage as a contract)

In re ATTY. ROQUE SANTIAGO, respondent,
Office of the Solicitor-General Ozaeta as petitioner-complainant.
LAUREL, J.:
This is an administrative case initiated upon complaint of the Solicitor-General against the
respondent Roque Santiago, charging the latter with malpractice and praying that disciplinary action
be taken against him.

It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares
for some nine consecutive years and who was bent on contracting a second marriage, sought the
legal advice of the respondent, who was at the time a practicing and notary public in the Province of
Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that
he could secure a separation from his wife and marry again, and asked him to bring his wife on the
afternoon of the same day, May 29, 1939. This was done and the respondent right then and there
prepared the document Exhibit A in which it was stipulated, among other things, that the contracting
parties, who are husband and wife authorized each other to marry again, at the same time
renouncing or waiving whatever right of action one might have against the party so marrying. After
the execution and acknowledgment of Exhibit A by the parties, the respondent asked the spouses to
shake hands and assured them that they were single and as such could contract another and
subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the
respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if
this document turns out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on
June 11, 1939, contracted a second marriage with Trinidad Aurelio. There is also evidence to show
that the respondent tried to collect for this service the sum of P50, but as the evidence on this point
is not clear and the same is not material in the resolution of the present case, we do not find it
necessary to make any express finding as to whether the full amount or any portion thereof was paid
or, as contended by the respondent, the service were rendered free of charge.

The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea
that seven years separation of husband and wife would entitle either of them to contract a second
marriage and for that reason prepared Exhibit A, but immediately after the execution of said
document he realized that he had made a mistake and for that reason immediately sent for the
contracting parties who, on June 30, 1939, came to his office and signed the deed of cancellation
Exhibit A.

There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit
and Soledad Colares upon the advice of the respondent and prepared by the latter as a lawyer and
acknowledged by him as a notary public is contrary to law, moral, and tends to subvert the vital
foundation of the family. The advice given by the respondent, the preparation and acknowledgment
by him of the contract constitute malpractice which justifies disbarment from the practice of law. The
admission of a lawyer to the practice of law is upon the implied condition that his continued
enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to
society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to
be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the
enjoyment of this professional privilege should be declared terminated. In the present case,
respondent was either ignorant of the applicable provision of the law or carelessly negligent in giving
the complainant legal advice. Drastic action should lead to his disbarment and this is the opinion of
some members of the court. The majority, however, have inclined to follow the recommendation of
the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of
said investigator and the fact that immediately after discovering his mistakes, respondent
endeavored to correct it by making the parties sign another document cancelling the previous one.

The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the
practice of law for a period of one year. So ordered.

Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

A.M. No. 804-CJ May 19, 1975 (Marriage as a contract)

SATURNINO SELANOVA, complainant,
vs.
ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.

RESOLUTION
AQUINO, J.: ñé+ .£ª wph!1

Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of
the law for having prepared and ratified a document dated November 21, 1972, extrajudicially
liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza. One condition of
the liquidation was that either spouse (as the case may be) would withdraw the complaint for
adultery or concubinage which each had filed against the other and that they waived their "right to
prosecute each other for whatever acts of infidelity" either one would commit against the other.

Judge Mendoza in his comment on the charge purposed to convey the impression that he was
aware of the invalidity of the agreement but he nevertheless ratified it and gave it his nihil obstat on
the assurance of the spouses that they would ask the Court of First Instance of Negros Oriental
(where they were residing) to approve the agreement. That pretension is disbelieved by the Judicial
Consultant.

Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree
upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval"
(Par. 4, Art. 191, Civil Code).

He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership
during the marriage "an unqualified and literal legal construction" would lender nugatory the
aforequoted provisions of article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L-23767 and
L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an extrajudicial agreement
for the dissolution during the marriage of the conjugal partnership as long as the agreement is
subsequently approved by the court.

However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that
judicial sanction for the dissolution of the conjugal partnership during the marriage should be
"secured beforehand."

Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was
adversely decided by the Judge. That speculation was denied by Selanova who also belied Judge
Mendoza's version that the complainant and his wife, Avelina Ceniza, "together with their parents",
came to the office of Judge Mendoza and solicited his help in the amicable settlement of their marital
imbroglio.

According to Selanova, in 1972 his father was already dead and his mother was ninety-one years
old. They could not possibly have come to Judge Mendoza's office. Selanova said that only he and
his brother-in-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the persons who
went to the Judge's office. But that version may be inaccurate and oversimplified, considering that
the agreement was signed before Judge Mendoza not only by Selanova but also by his wife and two
witnesses, Lamberts M. Ceniza and Florencio C. Pono.

Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of
April 8, 1975 he asked for a compassionate view of his case considering his forty-three years'
service in the government (he started his public career in 1932 as a policeman and became a justice
of the peace in 1954). He also cited the financial predicament of his big family occasioned by the
delay in the payment of his retirement and terminal leave pay.

The case was not referred to a Judge of the Court of First Instance for investigation because actually
no factual issues necessitate a hearing and presentation of evidence. Respondent Judge admitted
that he was responsible for the execution of the questioned document, an extrajudicial "Liquidation
of Conjugal Properties", which he caused complainant Saturnino Selanova and his wife, Avelina
Ceniza, to sign.

In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by
allocating to the husband a thirteen-hectare riceland and to the wife the residential house and lot.
The last paragraph of the instrument, which licensed either spouse to commit any act of infidelity,
was in effect a ratification of their personal separation. The agreement in question is void because it
contravenes the following provisions of the Civil Code: têñ.£îhqw â£

ART. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

(2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal
partnership of gains or of the absolute community of property between husband and
wife;

xxx xxx xxx

Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of
the conjugal partnership without judicial approval was void (Quintana vs. Lerma, 24 Phil. 285; De
Luna vs. Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP Digest 171,
sec. 29).

On the other hand, disciplinary action had been taken against notaries who authenticated
agreements for the personal separation of spouses wherein either spouse was permitted to commit
acts of infidelity.

Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having
notarized a document containing "an agreement between the husband and the wife which permitted
the husband to take unto himself a concubine and the wife to live in adulterous relationship with
another man, without opposition from either one of them". The document was prepared by another
person.

In that case this Court noted that while adultery and concubinage are private crimes, "they still
remain crimes" and a contract legalizing their commission is "contrary to law, morals and public
order, and as a consequence not judicially recognizable". Since the notary's commission was
already revoked, this Court did not disbar him. The fact that he "may not have realized the full
purport of the document to which he took acknowledgment' was considered mitigating.

Severe censure was also administered to a notary of Cebu City who ratified a document entitled
"Legal Separation", executed by husband and wife, wherein they agreed that they separated
mutually and voluntarily, that they renounced their rights and obligations, and that they authorized
each other to remarry, renouncing any action to which they might be entitled and each promising not
to be a witness against the other. Those covenants are contrary to law, morals and good customs
and tend to subvert the vital foundation of the legitimate family (Biton vs. Momongon, 62 Phil. 7).

In the Santiago case respondent lawyer prepared for a married couple (who had been separated for
nine years) a document wherein it was stipulated, inter alia, that they authorized each other to marry
again, at the same time renouncing whatever right of action one might have against the other. When
the husband inquired if there would be no trouble, respondent lawyer pointed to his diploma which
was hanging on the wall and said: "I would tear that off if this document turns out not to be valid."
The husband remarried. The respondent was suspended from the practice of law for one year for
having been ignorant of the law or being careless in giving legal advice (In re Santiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he
declared that he was married to Vertudes Marquez, from whom he had been separated, their
conjugal partnership having been dissolved, and that he was consorting with Regina S. Balinon his
"new found life-partner," to whom he would "remain loyal and faithful" "as a lawful and devoted
loving husband for the rest of" his life "at all costs". Attorney Justo T. Velayo notarized that affidavit.
This Court reprimanded Velayo and suspended De Leon from the practice of law for three years.

In the instant case, respondent Judge, due to his unawareness of the legal prohibition against
contracts for the personal separation of husband and wife and for the extrajudicial dissolution of their
conjugal partnership, prepared the said void agreement which was acknowledged before him as
"City Judge and Notary Public Ex-Officio". (Because he was admitted to the bar in 1948 and,
consequently, he did not study the new Civil Code in the law school, he might not have been
cognizant of its aforecited article 221).

Taking into account that circumstance and his apparent good faith and honest desire to terminate
the marital conflict between the complainant and his wife, we are of the opinion that a drastic penalty
should not be imposed on him. But he deserves a severe censure for his mistake in preparing and
notarizing the aforementioned immoral and illegal agreement. Such severe reprimand should not be
an obstacle to his enjoyment of retirement privileges, assuming that there are no causes for
depriving him of such benefits.

WHEREFORE, the respondent is severely censured.

SO ORDERED.

EN BANC

[G.R. No. 27972. October 31, 1927.] (Marriage Consent)

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. FELIPE SANTIAGO, Defendant-

Appellant.

Fausto C. Cuizon, for Appellant.

Attorney-General Jaranilla, for Appellee.

SYLLABUS
1. CRIMINAL LAW; RAPE; EXTINGUISHMENT OF CRIMINAL LIABILITY BY MARRIAGE WITH INJURED GIRL;
ILLEGAL MARRIAGE. — After the accused had consummated the crime of rape upon a girl of the age of 15,
niece of his deceased wife, he procured a marriage ceremony to be celebrated on the same day between
himself and the girl, with the evident purpose of extinguishing his criminal liability under the proviso to
section of Act No. 1773 of the Philippine Commission, and without any intention on his part of living
maritally with the girl. Held: That the consent of the girl to the performance of the marriage was vitiated by
duress and that the marriage ceremony had been performed as a mere device of the accused to escape
punishment. Such marriage is therefore illegal and constitutes no obstacle to the prosecution of the accused
for the offense.

2. ID.; AGGRAVATING CIRCUMSTANCE; COMMISSION OF OFFENSE IN AN UNINHABITED PLACE. — An

aggravating circumstance must be as clearly proved as any other element of the crime; and in the instant
case the court refused to find that the aggravating circumstance of the commission of the offense in an
uninhabited place was proved, it appearing that the offense was committed only a few paces from an
important highway and that, after the commission of the offense, food was procured by the accused from a
woman who lived near to the scene of the crime.

DECISION
 STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of Nueva
Ecija, finding the appellant, Felipe Santiago, guilty of the offense of rape and sentencing him to undergo
imprisonment for fourteen years, eight months and one day, reclusion temporal, with the accessories
prescribed by law, requiring him to endow the offended party, Felicita Masilang, in the amount of P500,
without subsidiary imprisonment in case of insolvency, requiring him also to recognize and maintain, at P15
per month, the offspring, if there should be any, as a consequence of the rape, and requiring him further to
pay the costs.

The deceased wife of the appellant was the aunt of Felicita Masilang, aged 18, who was the injured girl in
this case. She is therefore appellant’s niece by marriage, and she calls him uncle. Both are residents of the
municipality of Gapan, in the Province of Nueva Ecija. On November 23, 1926, the appellant asked Felicita,
who was then about 18 years of age, to accompany him across the river on some errand. The girl agreed
and they went over the river together into the municipality of San Leonardo. After crossing the river, the
appellant conducted the girl to a place about twenty paces from the highway where tall grass and other
growth hid them from public view. In this spot the appellant manifested a desire to have sexual intercourse
with the girl, but she refused to give her consent, and he finally, notwithstanding her resistance,
accomplished his purpose by force and against her will.

After the deed had been done the appellant conducted the girl to the house of his uncle, Agaton Santiago,
who lived not far away. They arrived here about 11 a. m., and remained for several hours. In the course of
the afternoon Agaton Santiago brought in a protestant minister who went through the ceremony of marrying
the couple. After this was over the appellant gave the girl a few pesos and sent her home. Her father
happened to be away that night, but upon his return the next day, she told him what had happened, and
this prosecution for rape was started.

The trial court found that the offense of rape had been committed, as above stated, and that the marriage
ceremony was a mere ruse by which the appellant hoped to escape from the criminal consequences of his
act. We concur in this view of the case. The manner in which the appellant dealt with the girl after the
marriage, as well as before, shows that he had no bona fide intention of making her his wife, and the
ceremony cannot be considered binding on her because of duress. The marriage was therefore void for lack
of essential consent, and it supplies no impediment to the prosecution of the wrongdoer.

The Attorney-General suggests that, in fixing the penalty, it would be proper to take into account the
aggravating circumstance that the offense was committed in an uninhabited place. But the evidence fails to
show beyond a reasonable doubt that the crime was committed in despoblado. The incident occurred only a
few paces from the Manila North Road, and it appears that there was an unoccupied house nearby to which
the girl was taken and where food was procured from Florentina Cuizon who lived not far away. It is the
instant doctrine of the court that an aggravating circumstance must be as clearly proved as any other
element of the crime (U. S. v. Binayoh, 35 Phil., 23, 31; Albert, Law on Crimes, pp. 88-89); and we cannot
feel certain, upon the proof before us, that the place of the commission of this offense was remote enough
from habitation or possible aid to make appropriate the estimation of the aggravating circumstance referred
to.

The judgment appealed from is in accordance with law, and will be affirmed. So ordered, with costs against
the Appellant.

Avanceña, C.J., Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.