1st Week Cases

G.R. No. L-63915 April 24, 1985

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.

G.R. No. 199113

RENATO M. DAVID, Petitioner,

vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:

This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8,
2011 of the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the
petition for certiorari filed by Renato(petitioner)M. David. Petitioner assailed the
Order2 dated March 22, 2011 of the Municipal Trial Court (MTC) of Socorro, Oriental
Mindoro denying his motion for redetermination of probable cause.

The factual antecedents:

In 1974, petitioner migrated to Canada where he became a Canadian citizen by

naturalization. Upon their retirement, petitioner and his wife returned to the Philippines.
Sometime in 2000, they purchased a 600-square meter lot along the beach in Tambong,
Gloria, Oriental Mindoro where they constructed a residential house. However, in the year
2004, they came to know that the portion where they built their house is public land and
part of the salvage zone.

On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject
land with the Department of Environment and Natural Resources (DENR) at the Community
Environment and Natural Resources Office (CENRO) in Socorro. In the said application,
petitioner indicated that he is a Filipino citizen.

Private respondent Editha A. Agbay opposed the application on the ground that petitioner,
a Canadian citizen, is disqualified to own land. She also filed a criminal complaint for
falsification of public documents under Article 172 of the Revised Penal Code (RPC) (I.S. No.
08-6463) against the petitioner.

Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic
Act No. 9225,4 (R.A. 9225) as evidenced by Identification Certificate No. 266-10-075 issued
by the Consulate General of the Philippines (Toronto) on October 11, 2007.

In his defense, petitioner averred that at the time he filed his application, he had intended
to re-acquire Philippine citizenship and that he had been assured by a CENRO officer that he
could declare himself as a Filipino. He further alleged that he bought the property from the
Agbays who misrepresented to him that the subject property was titled land and they have
the right and authority to convey the same. The dispute had in fact led to the institution of
civil and criminal suits between him and private respondent’s family.

On January 8, 2008, 6 the Office of the Provincial Prosecutor issued its Resolution7 finding
probable cause to indict petitioner for violation of Article 172 of the RPC and recommending
the filing of the corresponding information in court. Petitioner challenged the said
resolution in a petition for review he filed before the Department of Justice (DOJ).

On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that
petitioner’s subsequent re-acquisition of Philippine citizenship did not cure the defect in his
MLA which was void ab initio.8

In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by
the DOJ which held that the presence of the elements of the crime of falsification of public
document suffices to warrant indictment of the petitioner notwithstanding the absence of
any proof that he gained or intended to injure a third person in committing the act of
falsification.9 Consequently, an information for Falsification of Public Document was filed
before the MTC (Criminal Case No. 2012) and a warrant of arrest was issued against the
petitioner.

On February 11, 2011, after the filing of the Information and before his arrest, petitioner
filed an Urgent Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting
the provisions of the law relied upon by petitioner, the said court denied the motion,
holding that R.A. 9225 makes a distinction between those who became foreign citizens
during its effectivity, and those who lost their Philippine citizenship before its enactment
when the governing law was Commonwealth Act No. 6311 (CA 63). Since the crime for which
petitioner was charged was alleged and admitted to have been committed on April 12, 2007
before he had re- acquired his Philippine citizenship, the MTC concluded that petitioner was
at that time still a Canadian citizen. Thus, the MTC ordered:

WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit,
the motion is DENIED.

SO ORDERED.12

In his motion for reconsideration, 13 petitioner questioned the foregoing order denying him
relief on the ground of lack of jurisdiction and insisted that the issue raised is purely legal.
He argued that since his application had yet to receive final evaluation and action by the
DENR Region IV-B office in Manila, it is academic to ask the citizenship of the applicant
(petitioner) who had re-acquired Philippine citizenship six months after he applied for lease
of public land. The MTC denied the motion for reconsideration.14

Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule
65, alleging grave abuse of discretion on the part of the MTC. He asserted that first,
jurisdiction over the person of an accused cannot be a pre-condition for the re-
determination of probable cause by the court that issues a warrant of arrest; and second,
the March 22, 2011 Order disregarded the legal fiction that once a natural-born Filipino
citizen who had been naturalized in another country re-acquires his citizenship under R.A.
9225, his Filipino citizenship is thus deemed not to have been lost on account of said
naturalization.

In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification
was already consummated as petitioner has not yet re-acquired his Philippine citizenship,
and his subsequent oath to re-acquire Philippine citizenship will only affect his citizenship
status and not his criminal act which was long consummated prior to said oath of allegiance.

On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari
after finding no grave abuse of discretion committed by the lower court, thus:

ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any
remedy or recourse because he can proceed to trial where he can make use of his claim to
be a Filipino citizen as his defense to be adjudicated in a full blown trial, and in case of
conviction, to appeal such conviction.

SO ORDERED.17

Petitioner is now before us arguing that –

A. By supporting the prosecution of the petitioner for falsification, the lower court
has disregarded the undisputed fact that petitioner is a natural-born Filipino citizen,
and that by re-acquiring the same status under R.A. No. 9225 he was by legal fiction
"deemed not to have lost" it at the time of his naturalization in Canada and through
the time when he was said to have falsely claimed Philippine citizenship.

B. By compelling petitioner to first return from his legal residence in Canada and to
surrender or allow himself to be arrested under a warrant for his alleged false claim
to Philippine citizenship, the lower court has pre-empted the right of petitioner
through his wife and counsel to question the validity of the said warrant of arrest
against him before the same is implemented, which is tantamount to a denial of due
process.18

In his Comment, the Solicitor General contends that petitioner’s argument regarding the
retroactivity of R.A. 9225 is without merit.1âwphi1 It is contended that this Court’s rulings
in Frivaldo v. Commission on Elections19 and Altarejos v. Commission on Elections20 on the
retroactivity of one’s re- acquisition of Philippine citizenship to the date of filing his
application therefor cannot be applied to the case of herein petitioner. Even assuming for
the sake of argument that such doctrine applies in the present situation, it will still not work
for petitioner’s cause for the simple reason that he had not alleged, much less proved, that
he had already applied for reacquisition of Philippine citizenship before he made the
declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that
in falsification of public document, it is not necessary that the idea of gain or intent to injure
a third person be present. As to petitioner’s defense of good faith, such remains to be a
defense which may be properly raised and proved in a full- blown trial.

On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General
opines that in seeking an affirmative relief from the MTC when he filed his Urgent Motion
for Re-determination of Probable Cause, petitioner is deemed to have submitted his person
to the said court’s jurisdiction by his voluntary appearance. Nonetheless, the RTC correctly
ruled that the lower court committed no grave abuse of discretion in denying the
petitioner’s motion after a judicious, thorough and personal evaluation of the parties’
arguments contained in their respective pleadings, and the evidence submitted before the
court.

In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification
for representing himself as a Filipino in his Public Land Application despite his subsequent
re-acquisition of Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC
properly denied petitioner’s motion for re-determination of probable cause on the ground
of lack of jurisdiction over the person of the accused (petitioner).

R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003,"
was signed into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2
and 3 of said law read:

SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine
citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have reacquired Philippine citizenship upon taking the following oath of
allegiance to the Republic:

"I ______________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that
I recognize and accept the supreme authority of the Philippines and will maintain true faith
and allegiance thereto; and that I impose this obligation upon myself voluntarily without
mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath. (Emphasis supplied)

While Section 2 declares the general policy that Filipinos who have become citizens of
another country shall be deemed "not to have lost their Philippine citizenship," such is
qualified by the phrase "under the conditions of this Act." Section 3 lays down such
conditions for two categories of natural-born Filipinos referred to in the first and second
paragraphs. Under the first paragraph are those natural-born Filipinos who have lost their
citizenship by naturalization in a foreign country who shall re-acquire their Philippine
citizenship upon taking the oath of allegiance to the Republic of the Philippines. The second
paragraph covers those natural-born Filipinos who became foreign citizens after R.A. 9225
took effect, who shall retain their Philippine citizenship upon taking the same oath. The
taking of oath of allegiance is required for both categories of natural-born Filipino citizens
who became citizens of a foreign country, but the terminology used is different, "re-
acquired" for the first group, and "retain" for the second group.
The law thus makes a distinction between those natural-born Filipinos who became foreign
citizens before and after the effectivity of R.A. 9225. Although the heading of Section 3 is
"Retention of Philippine Citizenship", the authors of the law intentionally employed the
terms "re-acquire" and "retain" to describe the legal effect of taking the oath of allegiance
to the Republic of the Philippines. This is also evident from the title of the law using both re-
acquisition and retention.

In fine, for those who were naturalized in a foreign country, they shall be deemed to have
re-acquired their Philippine citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by which Philippine citizenship may be
lost. As its title declares, R.A. 9225 amends CA 63 by doing away with the provision in the
old law which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual citizenship,21 and also provides for
the procedure for re-acquiring and retaining Philippine citizenship. In the case of those who
became foreign citizens after R.A. 9225 took effect, they shall retain Philippine citizenship
despite having acquired foreign citizenship provided they took the oath of allegiance under
the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A.
9225. He asserts that in criminal cases, that interpretation of the law which favors the
accused is preferred because it is consistent with the constitutional presumption of
innocence, and in this case it becomes more relevant when a seemingly difficult question of
law is expected to have been understood by the accused, who is a non-lawyer, at the time
of the commission of the alleged offense. He further cites the letter-reply dated January 31,
201122 of the Bureau of Immigration (BI) to his query, stating that his status as a natural-
born Filipino will be governed by Section 2 of R.A. 9225.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship
was made clear in the discussion of the Bicameral Conference Committee on the
Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on August 18,
2003, where Senator Franklin Drilon was responding to the query of Representative
Exequiel Javier:

REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate
version, "Any provision of law on the contrary notwithstanding, natural-born citizens of the
Philippines who, after the effectivity of this Act, shall… and so forth, ano, shall retain their
Philippine citizenship.

Now in the second paragraph, natural-born citizens who have lost their citizenship by
reason of their naturalization after the effectivity of this Act are deemed to have
reacquired…

THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens
who acquired foreign citizenship after the effectivity of this act are considered to have
retained their citizenship. But natural-born citizens who lost their Filipino citizenship before
the effectivity of this act are considered to have reacquired. May I know the distinction? Do
you mean to say that natural-born citizens who became, let’s say, American citizens after
the effectivity of this act are considered natural-born?

Now in the second paragraph are the natural-born citizens who lost their citizenship before
the effectivity of this act are no longer natural born citizens because they have just
reacquired their citizenship. I just want to know this distinction, Mr. Chairman.

THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and
reacquisition. The reacquisition will apply to those who lost their Philippine citizenship by
virtue of Commonwealth Act 63.Upon the effectivity -- assuming that we can agree on this,
upon the effectivity of this new measure amending Commonwealth Act 63, the Filipinos
who lost their citizenship is deemed to have reacquired their Philippine citizenship upon the
effectivity of the act.

The second aspect is the retention of Philippine citizenship applying to future

instances. So that’s the distinction.

REP. JAVIER. Well, I’m just asking this question because we are here making distinctions
between natural-born citizens. Because this is very important for certain government
positions, ‘no, because natural-born citizens are only qualified for a specific…

THE CHAIRMAN (SEN. DRILON). That is correct.

REP. JAVIER. ...positions under the Constitution and under the law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions,
yes. But just for purposes of the explanation, Congressman Javier, that is our
conceptualization. Reacquired for those who previously lost [Filipino citizenship] by virtue
of Commonwealth Act 63, and retention for those in the future. (Emphasis supplied)

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of
R.A. 9225, he belongs to the first category of natural- born Filipinos under the first
paragraph of Section 3 who lost Philippine citizenship by naturalization in a foreign country.
As the new law allows dual citizenship, he was able to re-acquire his Philippine citizenship
by taking the required oath of allegiance.

For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is
not necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such
reacquisition because R.A. 9225 itself treats those of his category as having already lost
Philippine citizenship, in contradistinction to those natural-born Filipinos who became
foreign citizens after R.A. 9225 came into force. In other words, Section 2 declaring the
policy that considers Filipinos who became foreign citizens as not to have lost their
Philippine citizenship, should be read together with Section 3, the second paragraph of
which clarifies that such policy governs all cases after the new law’s effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to
Section 3 on the particular application of reacquisition and retention to Filipinos who
became foreign citizens before and after the effectivity of R.A. 9225.

Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise
misplaced. Courts adopt an interpretation more favorable to the accused following the
time-honored principle that penal statutes are construed strictly against the State and
liberally in favor of the accused.23 R.A. 9225, however, is not a penal law.

Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the
RPC refers to falsification by a private individual, or a public officer or employee who did not
take advantage of his official position, of public, private, or commercial documents. The
elements of falsification of documents under paragraph 1, Article 172 of the RPC are:

(1)that the offender is a private individual or a public officer or employee who did
not take advantage of his official position;

(2)that he committed any of the acts of falsification enumerated in Article 171 of the
RPC; and

(3)that the falsification was committed in a public, official or commercial

document.26

Petitioner made the untruthful statement in the MLA, a public document, that he is a
Filipino citizen at the time of the filing of said application, when in fact he was then still a
Canadian citizen. Under CA 63, the governing law at the time he was naturalized as
Canadian citizen, naturalization in a foreign country was among those ways by which a
natural-born citizen loses his Philippine citizenship. While he re-acquired Philippine
citizenship under R.A. 9225 six months later, the falsification was already a consummated
act, the said law having no retroactive effect insofar as his dual citizenship status is
concerned. The MTC therefore did not err in finding probable cause for falsification of public
document under Article 172, paragraph 1.

The MTC further cited lack of jurisdiction over the person of petitioner accused as ground
for denying petitioner’s motion for re- determination of probable cause, as the motion was
filed prior to his arrest. However, custody of the law is not required for the adjudication of
reliefs other than an application for bail.27 In Miranda v. Tuliao,28 which involved a motion
to quash warrant of arrest, this Court discussed the distinction between custody of the law
and jurisdiction over the person, and held that jurisdiction over the person of the accused is
deemed waived when he files any pleading seeking an affirmative relief, except in cases
when he invokes the special jurisdiction of the court by impugning such jurisdiction over his
person. Thus:

In arguing, on the other hand, that jurisdiction over their person was already acquired by
their filing of the above Urgent Motion, petitioners invoke our pronouncement, through
Justice Florenz D. Regalado, in Santiago v. Vasquez:
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his
person, is accomplished either by his pleading to the merits (such as by filing a motion to
quash or other pleadings requiring the exercise of the court’s jurisdiction thereover,
appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the
same is intended to obtain the provisional liberty of the accused, as a rule the same cannot
be posted before custody of the accused has been acquired by the judicial authorities either
by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and
jurisdiction over the person. Custody of the law is required before the court can act upon the
application for bail, but is not required for the adjudication of other reliefs sought by the
defendant where the mere application therefor constitutes a waiver of the defense of lack
of jurisdiction over the person of the accused. Custody of the law is accomplished either by
arrest or voluntary surrender, while jurisdiction over the person of the accused is acquired
upon his arrest or voluntary appearance. One can be under the custody of the law but not
yet subject to the jurisdiction of the court over his person, such as when a person arrested
by virtue of a warrant files a motion before arraignment to quash the warrant. On the other
hand, one can be subject to the jurisdiction of the court over his person, and yet not be in
the custody of the law, such as when an accused escapes custody after his trial has
commenced. Being in the custody of the law signifies restraint on the person, who is
thereby deprived of his own will and liberty, binding him to become obedient to the will of
the law. Custody of the law is literally custody over the body of the accused. It includes, but
is not limited to, detention.

xxxx

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify
that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to
the jurisdiction of the court. As we held in the aforecited case of Santiago, seeking an
affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary
appearance.

xxxx

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the
person of the accused is deemed waived by the accused when he files any pleading
seeking an affirmative relief, except in cases when he invokes the special jurisdiction of
the court by impugning such jurisdiction over his person.Therefore, in narrow cases
involving special appearances, an accused can invoke the processes of the court even
though there is neither jurisdiction over the person nor custody of the law. However, if a
person invoking the special jurisdiction of the court applies for bail, he must first submit
himself to the custody of the law.29 (Emphasis supplied)

Considering that petitioner sought affirmative relief in filing his motion for re-determination
of probable cause, the MTC clearly erred in stating that it lacked jurisdiction over his person.
Notwithstanding such erroneous ground stated in the MTC's order, the RTC correctly ruled
that no grave abuse of discretion was committed by the MTC in denying the said motion for
lack of merit.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial
Court of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No.
2012) is hereby AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.
G.R. No. 46623 December 7, 1939

MARCIAL KASILAG, petitioner,

vs.
RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL
ROSARIO, respondents.

Luis M. Kasilag for petitioner.

Fortunato de Leon for respondents.

IMPERIAL, J.:

This is an appeal taken by the defendant-petitioner from the decision of the Court of
Appeals which modified that rendered by the court of First Instance of Bataan in civil case
No. 1504 of said court and held: that the contract Exhibit "1" is entirely null and void and
without effect; that the plaintiffs-respondents, then appellants, are the owners of the
disputed land, with its improvements, in common ownership with their brother Gavino
Rodriguez, hence, they are entitled to the possession thereof; that the defendant-petitioner
should yield possession of the land in their favor, with all the improvements thereon and
free from any lien; that the plaintiffs-respondents jointly and severally pay to the
defendant-petitioner the sum of P1,000 with interest at 6 percent per annum from the date
of the decision; and absolved the plaintiffs-respondents from the cross-complaint relative to
the value of the improvements claimed by the defendant-petitioner. The appealed decision
also ordered the registrar of deeds of Bataan to cancel certificate of title No. 325, in the
name of the deceased Emiliana Ambrosio and to issue in lieu thereof another certificate of
title in favor of the plaintiffs-respondents and their brother Gavino Rodriguez, as undivided
owners in equal parts, free of all liens and incumbrances except those expressly provided by
law, without special pronouncement as to the costs.

The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the
aforesaid civil case to the end that they recover from the petitioner the possession of the
land and its improvements granted by way of homestead to Emiliana Ambrosio under
patent No. 16074 issued on January 11, 1931, with certificate of title No. 325 issued by the
registrar of deeds of Bataan on June 27, 1931 in her favor, under section 122 of Act No. 496,
which land was surveyed and identified in the cadastre of the municipality of Limay,
Province of Bataan, as lot No. 285; that the petitioner pay to them the sum of P650 being
the approximate value of the fruits which he received from the land; that the petitioner sign
all the necessary documents to transfer the land and its possession to the respondents; that
he petitioner be restrained, during the pendency of the case, from conveying or
encumbering the land and its improvements; that the registrar of deeds of Bataan cancel
certificate of title No. 325 and issue in lieu thereof another in favor of the respondents, and
that the petitioner pay the costs of suit.

The petitioner denied in his answer all the material allegations of the complaint and by way
of special defense alleged that he was in possession of the land and that he was receiving
the fruits thereof by virtue of a mortgage contract, entered into between him and the
deceased Emiliana Ambrosio on May 16, 1932, which was duly ratified by a notary public;
and in counterclaim asked that the respondents pay him the sum of P1,000 with 12 per cent
interest per annum which the deceased owed him and that, should the respondents be
declared to have a better right to the possession of the land, that they be sentenced to pay
him the sum of P5,000 as value of all the improvements which he introduced upon the
land.lawphil.net

On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public
deed:

"This agreement, made and entered into this 16th day of May, 1932, by and between
Emiliana Ambrosio, Filipino, of legal age, widow and resident of Limay, Bataan, P.L.,
hereinafter called the party of the first part, and Marcial Kasilag, Filipino, of legal age,
married to Asuncion Roces, and resident at 312 Perdigon Street, Manila, P.L., hereinafter
called party of the second part.

WITNESSETH: That the parties hereto hereby covenant and agree to and with each
other as follows:

ARTICLE I. That the party of the first part is the absolute registered owner of a parcel
of land in the barrio of Alngan, municipality of Limay, Province of Bataan, her title
thereto being evidenced by homestead certificate of title No. 325 issued by the
Bureau of Lands on June 11, 1931, said land being lot No. 285 of the Limay Cadastre,
General Land Registration Office Cadastral Record No. 1054, bounded and described
as follows:

Beginning at point marked 1 on plan E-57394, N. 84º 32' W. 614.82 m. from B.B.M. No. 3,
thence N. 66º 35' E. 307.15 m. to point "2"; S. 5º 07' W. to point "5"; S.6º 10' E. 104.26 m. to
point "4"; S. 82º 17' W. to point "5"; S. 28º 53' W. 72.26 m. to point "6"; N. 71º 09' W. to
point "7"; N. 1º 42' E. 173.72 m. to point 1, point of beginning, "Containing an area of
6.7540 hectares. "Points 1,2,6 and 7, B.L.; points 3,4 and 5, stakes; points 4, 5 and 6 on bank
of Alangan River. "Bounded on the North, by property claimed by Maria Ambrosio; on the
East, by Road; on the South, by Alangan River and property claimed by Maxima de la Cruz;
and on the West, by property claimed by Jose del Rosario. "Bearing true. Declination 0º 51'
E. "Surveyed under authority of sections 12-22, Act No. 2874 and in accordance with
existing regulations of the Bureau of Lands, by Mamerto Jacinto, public land surveyor, on
July 8, 1927 and approved on February 25, 1931.

ARTICLE II. That the improvements on the above described land consist of the
following:

Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one
(1) tamarind and six (6) boñga trees.

ARTICLE III. That the assessed value of the land is P940 and the assessed value of the
improvements is P860, as evidenced by tax declaration No. 3531 of the municipality
of Limay, Bataan.
ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000)
Philippine currency, paid by the party of second part to the party of the first part,
receipt whereof is hereby acknowledged, the party of the first part hereby
encumbers and hypothecates, by way of mortgage, only the improvements
described in Articles II and III hereof, of which improvements the party of the first
part is the absolute owner.

ARTICLE V. That the condition of said mortgage is such that if the party of the first
part shall well and truly pay, or cause to paid to the party of the second part, his
heirs, assigns, or executors, on or before the 16th day of November, 1936, or four
and one-half (4½) years after date of the execution of this instrument, the aforesaid
sum of one thousand pesos (P1,000) with interest at 12 per cent per annum, then
said mortgage shall be and become null and void; otherwise the same shall be and
shall remain in full force and effect, and subject to foreclosure in the manner and
form provided by law for the amount due thereunder, with costs and also attorney's
fees in the event of such foreclosure.lawphil.net

ARTICLE VI. That the party of the first part shall pay all taxes and assessments which
are or may become due on the above described land and improvements during the
term of this agreement.

ARTICLE VII. That within thirty (30) days after date of execution of this agreement,
the party of the first part shall file a motion before the Court of First Instance at
Balanga, Bataan, P. I., requesting cancellation of Homestead Certificate of Title No.
325 referred to in Article I hereof and the issuance, in lieu thereof, of a certificate of
title under the provisions of Land Registration Act No. 496, as amended by Act 3901.

ARTICLE III. It if further agreed that if upon the expiration of the period of time (4½)
years stipulated in this mortgage, the mortgagor should fail to redeem this
mortgage, she would execute a deed of absolute sale of the property herein
described for the same amount as this mortgage, including all unpaid interests at the
rate of 12 per cent per annum, in favor of the mortgagee.

ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not
approved by the Court, the foregoing contract of sale shall automatically become
null and void, and the mortgage stipulated under Article IV and V shall remain in full
force and effect.

In testimony whereof, the parties hereto have hereunto set their hands the day and
year first herein before written.

(Sgd.) MARCIAL KASILAG

(Sgd.) EMILIANA AMBROSIO

Signed in the presence of:

(Sgd.) ILLEGIBLE
 (Sgd.) GAVINO RODRIGUEZ.

PHILIPPINE ISLANDS } ss.

BALANGA, BATAAN } ss.

Before me this day personally appeared Emiliana Ambrosio without cedula by reason
of her sex, to me known and known to me to be the person who signed the
foregoing instrument, and acknowledged to me that she executed the same as her
free and voluntary act and deed.

I hereby certify that this instrument consists of three (3) pages including this page of
the acknowledgment and that each page thereof is signed by the parties to the
instrument and the witnesses in their presence and in the presence of each other,
and that the land treated in this instrument consists of only one parcel.

In witness whereof I have hereunto set my hand and affixed my notarial seal, this
16th day of May, 1932.

(Sgd.) NICOLAS NAVARRO

Notary Public

My commission expires December 31, 1933.

Doc. No. 178

Page 36 of my register
Book No. IV

One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that
Emiliana Ambrosio was unable to pay the stipulated interests as well as the tax on the land
and its improvements. For this reason, she and the petitioner entered into another verbal
contract whereby she conveyed to the latter the possession of the land on condition that
the latter would not collect the interest on the loan, would attend to the payment of the
land tax, would benefit by the fruits of the land, and would introduce improvements
thereon. By virtue of this verbal contract, the petitioner entered upon the possession of the
land, gathered the products thereof, did not collect the interest on the loan, introduced
improvements upon the land valued at P5,000, according to him and on May 22, 1934 the
tax declaration was transferred in his name and on March 6, 1936 the assessed value of the
land was increased from P1,020 to P2,180.

After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the
conclusion and so held that the contract entered into by and between the parties, set out in
the said public deed, was one of absolute purchase and sale of the land and its
improvements. And upon this ruling it held null and void and without legal effect the entire
Exhibit 1 as well as the subsequent verbal contract entered into between the parties,
ordering, however, the respondents to pay to the petitioner, jointly and severally, the loan
of P1,000 with legal interest at 6 per cent per annum from the date of the decision. In this
first assignment of error the petitioner contends that the Court of Appeals violated the law
in holding that Exhibit 1 is an absolute deed of sale of the land and its improvements and
that it is void and without any legal effect.

The cardinal rule in the interpretation of contracts is to the effect that the intention of the
contracting parties should always prevail because their will has the force of law between
them. Article 1281 of the Civil Code consecrates this rule and provides, that if the terms of a
contract are clear and leave no doubt as to the intention of the contracting parties, the
literal sense of its stipulations shall be followed; and if the words appear to be contrary to
the evident intention of the contracting parties, the intention shall prevail. The contract set
out in Exhibit 1 should be interpreted in accordance with these rules. As the terms thereof
are clear and leave no room for doubt, it should be interpreted according to the literal
meaning of its clauses. The words used by the contracting parties in Exhibit 1 clearly show
that they intended to enter into the principal contract of loan in the amount of P1,000, with
interest at 12 per cent per annum, and into the accessory contract of mortgage of the
improvements on the land acquired as homestead, the parties having moreover, agreed
upon the pacts and conditions stated in the deed. In other words, the parties entered into a
contract of mortgage of the improvements on the land acquired as homestead, to secure
the payment of the indebtedness for P1,000 and the stipulated interest thereon. In clause V
the parties stipulated that Emiliana Ambrosio was to pay, within four and a half years, or
until November 16, 1936, the debt with interest thereon, in which event the mortgage
would not have any effect; in clause VI the parties agreed that the tax on the land and its
improvements, during the existence of the mortgage, should be paid by the owner of the
land; in clause VII it was covenanted that within thirty days from the date of the contract,
the owner of the land would file a motion in the Court of First Instance of Bataan asking that
certificate of title No. 325 be cancelled and that in lieu thereof another be issued under the
provisions of the Land Registration Act No. 496, as amended by Act No. 3901; in clause VIII
the parties agreed that should Emiliana Ambrosio fail to redeem the mortgage within the
stipulated period of four years and a half, she would execute an absolute deed of sale of the
land in favor of the mortgagee, the petitioner, for the same amount of the loan of P1,000
including unpaid interest; and in clause IX it was stipulated that in case the motion to be
presented under clause VII should be disapproved by the Court of First Instance of Bataan,
the contract of sale would automatically become void and the mortgage would subsist in all
its force.

Another fundamental rule in the interpretation of contracts, not less important than those
indicated, is to the effect that the terms, clauses and conditions contrary to law, morals and
public order should be separated from the valid and legal contract and when such
separation can be made because they are independent of the valid contract which
expresses the will of the contracting parties. Manresa, commenting on article 1255 of the
Civil Code and stating the rule of separation just mentioned, gives his views as follows:

On the supposition that the various pacts, clauses or conditions are valid, no
difficulty is presented; but should they be void, the question is as to what extent
 they may produce the nullity of the principal obligation. Under the view that such
features of the obligation are added to it and do not go to its essence, a criterion
based upon the stability of juridical relations should tend to consider the nullity as
confined to the clause or pact suffering therefrom, except in case where the latter,
by an established connection or by manifest intention of the parties, is inseparable
from the principal obligation, and is a condition, juridically speaking, of that the
nullity of which it would also occasion. (Manresa, Commentaries on the Civil Code,
Volume 8, p. 575.)

The same view prevails in the Anglo-American law, as condensed in the following words:

Where an agreement founded on a legal consideration contains several promises, or

a promise to do several things, and a part only of the things to be done are illegal,
the promises which can be separated, or the promise, so far as it can be separated,
from the illegality, may be valid. The rule is that a lawful promise made for a lawful
consideration is not invalid merely because an unlawful promise was made at the
same time and for the same consideration, and this rule applies, although the
invalidity is due to violation of a statutory provision, unless the statute expressly or
by necessary implication declares the entire contract void. . . . (13 C. J., par. 470, p.
512; New York Cent. etc. R. Co. v. Gray, 239 U.S., 583; 60 Law ed., 451; U.S. v. Mora,
97 U.S., 413, 24 Law. ed., 1017; U.S. v. Hodson, 10 Wall, 395; 19 Law ed. 937;
Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed., 520; U.S. v. Bradly, 10 Pet. 343, 9 Law.
ed., 448; Borland v. Prindle, 144 Fed 713; Western Union Tel. Co. v. Kansas Pac. R.
Co., 4 Fed., 284; Northern Pac. R. Co. v. U.S., 15 Ct. Cl., 428.)

Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1,
we stated that the principal contract is that of loan and the accessory that of mortgage of
the improvements upon the land acquired as a homestead. There is no question that the
first of these contract is valid as it is not against the law. The second, or the mortgage of the
improvements, is expressly authorized by section 116 of Act No. 2874, as amended by
section 23 of Act No. 3517, reading:

SEC. 116. Except in favor of the Government or any of its branches, units or
institutions, or legally constituted banking corporations, lands acquired under the
free patent or homestead provisions shall not be subject to encumbrance or
alienation from the date of the approval of the application and for a term of five
years from and after the date of issuance of the patent or grant, nor shall they
become liable to the satisfaction of any debt contracted prior to the expiration of
said period; but the improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.

It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana
Ambrosio fail to redeem the mortgage within the stipulated period of four and a half years,
by paying the loan together with interest, she would execute in favor of the petitioner an
absolute deed of sale of the land for P1,000, including the interest stipulated and owing.
The stipulation was verbally modified by the same parties after the expiration of one year,
in the sense that the petitioner would take possession of the land and would benefit by the
fruits thereof on condition that he would condone the payment of interest upon the loan
and he would attend to the payment of the land tax. These pacts made by the parties
independently were calculated to alter the mortgage a contract clearly entered into,
converting the latter into a contract of antichresis. (Article 1881 of the Civil Code.) The
contract of antichresis, being a real encumbrance burdening the land, is illegal and void
because it is legal and valid.

The foregoing considerations bring us to the conclusion that the first assignment of error is
well-founded and that error was committed in holding that the contract entered into
between the parties was one of absolute sale of the land and its improvements and that
Exhibit 1 is null and void. In the second assignment of error the petitioner contends that the
Court of Appeals erred in holding that he is guilty of violating the Public Land Act because he
entered into the contract, Exhibit 1. The assigned error is vague and not specific. If it
attempts to show that the said document is valid in its entirety, it is not well-founded
because we have already said that certain pacts thereof are illegal because they are
prohibited by section 116 of Act No. 2874, as amended.

In the third assignment of error the petitioner insists that his testimony, as to the verbal
agreement entered into between him and Emiliana Ambrosio, should have been accepted
by the Court of Appeals; and in the fourth and last assignment of error the same petitioner
contends that the Court of Appeals erred in holding that he acted in bad faith in taking
possession of the land and in taking advantage of the fruits thereof, resulting in the denial of
his right to be reimbursed for the value of the improvements introduced by him.

We have seen that subsequent to the execution of the contract, Exhibit 1, the parties
entered into another verbal contract whereby the petitioner was authorized to take
possession of the land, to receive the fruits thereof and to introduce improvements
thereon, provided that he would renounce the payment of stipulated interest and he would
assume payment of the land tax. The possession by the petitioner and his receipt of the
fruits of the land, considered as integral elements of the contract of antichresis, are illegal
and void agreements because, as already stated, the contract of antichresis is a lien and
such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of
Appeals held that the petitioner acted in bad faith in taking possession of the land because
he knew that the contract he made with Emiliana Ambrosio was an absolute deed of sale
and, further, that the latter could not sell the land because it is prohibited by section 116.
The Civil Code does not expressly define what is meant by bad faith, but section 433
provides that "Every person who is unaware of any flaw in his title, or in the manner of its
acquisition, by which it is invalidated, shall be deemed a possessor in good faith"; and
provides further, that "Possessors aware of such flaw are deemed possessors in bad faith".
Article 1950 of the same Code, covered by Chapter II relative to prescription of ownership
and other real rights, provides, in turn, that "Good faith on the part of the possessor
consists in his belief that the person from whom he received the thing was the owner of the
same, and could transmit the title thereto." We do not have before us a case of prescription
of ownership, hence, the last article is not squarely in point. In resume, it may be stated that
a person is deemed a possessor in bad faith when he knows that there is a flaw in his title or
in the manner of its acquisition, by which it is invalidated.
Borrowing the language of Article 433, the question to be answered is whether the
petitioner should be deemed a possessor in good faith because he was unaware of any flaw
in his title or in the manner of its acquisition by which it is invalidated. It will be noted that
ignorance of the flaw is the keynote of the rule. From the facts found established by the
Court of Appeals we can neither deduce nor presume that the petitioner was aware of a
flaw in his title or in the manner of its acquisition, aside from the prohibition contained in
section 116. This being the case, the question is whether good faith may be premised upon
ignorance of the laws. Manresa, commenting on article 434 in connection with the
preceding article, sustains the affirmative. He says:

"We do not believe that in real life there are not many cases of good faith founded upon an
error of law. When the acquisition appears in a public document, the capacity of the parties
has already been passed upon by competent authority, and even established by appeals
taken from final judgments and administrative remedies against the qualification of
registrars, and the possibility of error is remote under such circumstances; but,
unfortunately, private documents and even verbal agreements far exceed public documents
in number, and while no one should be ignorant of the law, the truth is that even we who
are called upon to know and apply it fall into error not infrequently. However, a clear,
manifest, and truly unexcusable ignorance is one thing, to which undoubtedly refers article
2, and another and different thing is possible and excusable error arising from complex legal
principles and from the interpretation of conflicting doctrines.

But even ignorance of the law may be based upon an error of fact, or better still,
ignorance of a fact is possible as to the capacity to transmit and as to the
intervention of certain persons, compliance with certain formalities and appreciation
of certain acts, and an error of law is possible in the interpretation of doubtful
doctrines. (Manresa, Commentaries on the Spanish Civil Code. Volume IV, pp. 100,
101 and 102.)

According to this author, gross and inexcusable ignorance of law may not be the basis of
good faith, but possible, excusable ignorance may be such basis. It is a fact that the
petitioner is not conversant with the laws because he is not a lawyer. In accepting the
mortgage of the improvements he proceeded on the well-grounded belief that he was not
violating the prohibition regarding the alienation of the land. In taking possession thereof
and in consenting to receive its fruits, he did not know, as clearly as a jurist does, that the
possession and enjoyment of the fruits are attributes of the contract of antichresis and that
the latter, as a lien, was prohibited by section 116. These considerations again bring us to
the conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is
excusable and may, therefore, be the basis of his good faith. We do not give much
importance to the change of the tax declaration, which consisted in making the petitioner
appear as the owner of the land, because such an act may only be considered as a sequel to
the change of possession and enjoyment of the fruits by the petitioner, to about which we
have stated that the petitioner's ignorance of the law is possible and excusable. We,
therefore, hold that the petitioner acted in good faith in taking possession of the land and
enjoying its fruits.
The petitioner being a possessor in good faith within the meaning of article 433 of the Civil
Code and having introduced the improvements upon the land as such, the provisions of
article 361 of the same Code are applicable; wherefore, the respondents are entitled to
have the improvements and plants upon indemnifying the petitioner the value thereof
which we fix at P3,000, as appraised by the trial court; or the respondents may elect to
compel the petitioner to have the land by paying its market value to be fixed by the court of
origin.

The respondents also prayed in their complaint that the petitioner be compelled to pay
them the sum of P650, being the approximate value of the fruits obtained by the petitioner
from the land. The Court of Appeals affirmed the judgment of the trial court denying the
claim or indemnity for damages, being of the same opinion as the trial court that the
respondents may elect to compel the petitioner to have the land. The Court of Appeals
affirmed the judgment of the trial court that the respondents have not established such
damages. Under the verbal contract between the petitioner and the deceased Emiliana
Ambrosio, during the latter's lifetime, the former would take possession of the land and
would receive the fruits of the mortgaged improvements on condition that he would no
longer collect the stipulated interest and that he would attend to the payment of the land
tax. This agreement, at bottom, is tantamount to the stipulation that the petitioner should
apply the value of the fruits of the land to the payment of stipulated interest on the loan of
P1,000 which is, in turn, another of the elements characterizing the contract of antichresis
under article 1881 of the Civil Code. It was not possible for the parties to stipulate further
that the value of the fruits be also applied to the payment of the capital, because the truth
was that nothing remained after paying the interest at 12% per annum. This interest, at the
rate fixed, amounted to P120 per annum, whereas the market value of the fruits obtainable
from the land hardly reached said amount in view of the fact that the assessed value of said
improvements was, according to the decision, P860. To this should be added the fact that,
under the verbal agreement, from the value of the fruits had to be taken a certain amount
to pay the annual land tax. We mention these data here to show that the petitioner is also
not bound to render an accounting of the value of the fruits of the mortgaged
improvements for the reason stated that said value hardly covers the interest earned by the
secured indebtednes.

For all the foregoing considerations, the appealed decision is reversed, and we hereby
adjudge: (1) that the contract of mortgage of the improvements, set out in Exhibit 1, is valid
and binding; (2) that the contract of antichresis agreed upon verbally by the parties is a real
incumbrance which burdens the land and, as such, is a null and without effect; (3) that the
petitioner is a possessor in good faith; (4) that the respondents may elect to have the
improvements introduced by the petitioner by paying the latter the value thereof, P3,000,
or to compel the petitioner to buy and have the land where the improvements or plants are
found, by paying them its market value to be filed by the court of origin, upon hearing the
parties; (5) that the respondents have a right to the possession of the land and to enjoy the
mortgaged improvements; and (6) that the respondents may redeem the mortgage of the
improvements by paying to the petitioner within three months the amount of P1,000,
without interest, as that stipulated is set off by the value of the fruits of the mortgaged
improvements which petitioner received, and in default thereof the petitioner may ask for
the public sale of said improvements for the purpose of applying the proceeds thereof to
the payment of his said credit. Without special pronouncement as to the costs in all
instances. So ordered.

Diaz, J., concur.

G.R. No. 179579 February 1, 2012

COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF

SUBIC, Petitioners,
vs.
HYPERMIX FEEDS CORPORATION, Respondent.

DECISION

SERENO, J.:

Before us is a Petition for Review under Rule 45,1 assailing the Decision2 and the
Resolution3 of the Court of Appeals (CA), which nullified the Customs Memorandum Order
(CMO) No. 27-20034 on the tariff classification of wheat issued by petitioner Commissioner
of Customs.

The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the
Memorandum, for tariff purposes, wheat was classified according to the following: (1)
importer or consignee; (2) country of origin; and (3) port of discharge. 5 The regulation
provided an exclusive list of corporations, ports of discharge, commodity descriptions and
countries of origin. Depending on these factors, wheat would be classified either as food
grade or feed grade. The corresponding tariff for food grade wheat was 3%, for feed grade,
7%.

CMO 27-2003 further provided for the proper procedure for protest or Valuation and
Classification Review Committee (VCRC) cases. Under this procedure, the release of the
articles that were the subject of protest required the importer to post a cash bond to cover
the tariff differential.6

A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a
Petition for Declaratory Relief7 with the Regional Trial Court (RTC) of Las Piñas City. It
anticipated the implementation of the regulation on its imported and perishable Chinese
milling wheat in transit from China.8 Respondent contended that CMO 27-2003 was issued
without following the mandate of the Revised Administrative Code on public participation,
prior notice, and publication or registration with the University of the Philippines Law
Center.

Respondent also alleged that the regulation summarily adjudged it to be a feed grade
supplier without the benefit of prior assessment and examination; thus, despite having
imported food grade wheat, it would be subjected to the 7% tariff upon the arrival of the
shipment, forcing them to pay 133% more than was proper.

Furthermore, respondent claimed that the equal protection clause of the Constitution was
violated when the regulation treated non-flour millers differently from flour millers for no
reason at all.
Lastly, respondent asserted that the retroactive application of the regulation was
confiscatory in nature.

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for
twenty (20) days from notice.9

Petitioners thereafter filed a Motion to Dismiss.10 They alleged that: (1) the RTC did not have
jurisdiction over the subject matter of the case, because respondent was asking for a judicial
determination of the classification of wheat; (2) an action for declaratory relief was
improper; (3) CMO 27-2003 was an internal administrative rule and not legislative in nature;
and (4) the claims of respondent were speculative and premature, because the Bureau of
Customs (BOC) had yet to examine respondent’s products. They likewise opposed the
application for a writ of preliminary injunction on the ground that they had not inflicted any
injury through the issuance of the regulation; and that the action would be contrary to the
rule that administrative issuances are assumed valid until declared otherwise.

On 28 February 2005, the parties agreed that the matters raised in the application for
preliminary injunction and the Motion to Dismiss would just be resolved together in the
main case. Thus, on 10 March 2005, the RTC rendered its Decision11 without having to
resolve the application for preliminary injunction and the Motion to Dismiss.

The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs
Memorandum Order 27-2003 is declared INVALID and OF NO FORCE AND EFFECT.
Respondents Commissioner of Customs, the District Collector of Subic or anyone acting in
their behalf are to immediately cease and desist from enforcing the said Customs
Memorandum Order 27-2003.

SO ORDERED.12

The RTC held that it had jurisdiction over the subject matter, given that the issue raised by
respondent concerned the quasi-legislative powers of petitioners. It likewise stated that a
petition for declaratory relief was the proper remedy, and that respondent was the proper
party to file it. The court considered that respondent was a regular importer, and that the
latter would be subjected to the application of the regulation in future transactions.

With regard to the validity of the regulation, the trial court found that petitioners had not
followed the basic requirements of hearing and publication in the issuance of CMO 27-2003.
It likewise held that petitioners had "substituted the quasi-judicial determination of the
commodity by a quasi-legislative predetermination."13 The lower court pointed out that a
classification based on importers and ports of discharge were violative of the due process
rights of respondent.

Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the
same allegations in defense of CMO 27-2003.14 The appellate court, however, dismissed the
appeal. It held that, since the regulation affected substantial rights of petitioners and other
importers, petitioners should have observed the requirements of notice, hearing and
publication.

Hence, this Petition.

Petitioners raise the following issues for the consideration of this Court:

I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN

ACCORD WITH THE LAW AND PREVAILING JURISPRUDENCE.

II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT
HAS JURISDICTION OVER THE CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

Rule 63, Section 1 provides:

Who may file petition. – Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation,
ordinance, or any other governmental regulation may, before breach or violation thereof,
bring an action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder.

The requirements of an action for declaratory relief are as follows: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose interests are
adverse; (3) the party seeking declaratory relief must have a legal interest in the
controversy; and (4) the issue involved must be ripe for judicial determination. 15 We find
that the Petition filed by respondent before the lower court meets these requirements.

First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by
petitioner Commissioner of Customs. In Smart Communications v. NTC,16 we held:

The determination of whether a specific rule or set of rules issued by an administrative

agency contravenes the law or the constitution is within the jurisdiction of the regular
courts. Indeed, the Constitution vests the power of judicial review or the power to declare a
law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts. This is within the
scope of judicial power, which includes the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphasis supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance

Secretary,17 we said:
xxx [A] legislative rule is in the nature of subordinate legislation, designed to implement a
primary legislation by providing the details thereof. xxx

In addition such rule must be published. On the other hand, interpretative rules are
designed to provide guidelines to the law which the administrative agency is in charge of
enforcing.

Accordingly, in considering a legislative rule a court is free to make three

inquiries: (i) whether the rule is within the delegated authority of the administrative
agency; (ii) whether it is reasonable; and (iii) whether it was issued pursuant to proper
procedure. But the court is not free to substitute its judgment as to the desirability or
wisdom of the rule for the legislative body, by its delegation of administrative judgment, has
committed those questions to administrative judgments and not to judicial judgments. In
the case of an interpretative rule, the inquiry is not into the validity but into the correctness
or propriety of the rule. As a matter of power a court, when confronted with an
interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the opposite
extreme and substitute its judgment; or (iii) give some intermediate degree of authoritative
weight to the interpretative rule. (Emphasis supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are
summarily imposing a tariff rate that respondent is refusing to pay.

Third, it is clear that respondent has a legal and substantive interest in the implementation
of CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat,
on 14 August 2003, it has actually made shipments of wheat from China to Subic. The
shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to the
conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates,
depending on the factors enumerated therein. Thus, respondent alleged that it would be
made to pay the 7% tariff applied to feed grade wheat, instead of the 3% tariff on food
grade wheat. In addition, respondent would have to go through the procedure under CMO
27-2003, which would undoubtedly toll its time and resources. The lower court correctly
pointed out as follows:

xxx As noted above, the fact that petitioner is precisely into the business of importing
wheat, each and every importation will be subjected to constant disputes which will result
into (sic) delays in the delivery, setting aside of funds as cash bond required in the CMO as
well as the resulting expenses thereof. It is easy to see that business uncertainty will be a
constant occurrence for petitioner. That the sums involved are not minimal is shown by the
discussions during the hearings conducted as well as in the pleadings filed. It may be that
the petitioner can later on get a refund but such has been foreclosed because the Collector
of Customs and the Commissioner of Customs are bound by their own CMO. Petitioner
cannot get its refund with the said agency. We believe and so find that Petitioner has
presented such a stake in the outcome of this controversy as to vest it with standing to file
this petition.18 (Emphasis supplied)

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is
inevitable19 for the simple and uncontroverted reason that respondent is not included in the
enumeration of flour millers classified as food grade wheat importers. Thus, as the trial
court stated, it would have to file a protest case each time it imports food grade wheat and
be subjected to the 7% tariff.

It is therefore clear that a petition for declaratory relief is the right remedy given the
circumstances of the case.

Considering that the questioned regulation would affect the substantive rights of
respondent as explained above, it therefore follows that petitioners should have applied the
pertinent provisions of Book VII, Chapter 2 of the Revised Administrative Code, to wit:

Section 3. Filing. – (1) Every agency shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not filed within three (3) months from that date shall not
thereafter be the bases of any sanction against any party of persons.

xxx xxx xxx

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of proposed rules and afford interested parties
the opportunity to submit their views prior to the adoption of any rule.

(2) In the fixing of rates, no rule or final order shall be valid unless the proposed
rates shall have been published in a newspaper of general circulation at least two (2)
weeks before the first hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs

nothing further than its bare issuance, for it gives no real consequence more than what the
law itself has already prescribed. When, on the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new issuance is given the force and effect of
law.20

Likewise, in Tañada v. Tuvera,21 we held:

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.
(Emphasis supplied)

Because petitioners failed to follow the requirements enumerated by the Revised

Administrative Code, the assailed regulation must be struck down.

Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for
being violative of the equal protection clause of the Constitution.

The equal protection clause means that no person or class of persons shall be deprived of
the same protection of laws enjoyed by other persons or other classes in the same place in
like circumstances. Thus, the guarantee of the equal protection of laws is not violated if
there is a reasonable classification. For a classification to be reasonable, it must be shown
that (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it
is not limited to existing conditions only; and (4) it applies equally to all members of the
same class.22

Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the
quality of wheat is affected by who imports it, where it is discharged, or which country it
came from.

Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported
food grade wheat, the product would still be declared as feed grade wheat, a classification
subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO 27-
2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus
depriving the state of the taxes due. The regulation, therefore, does not become
disadvantageous to respondent only, but even to the state.

It is also not clear how the regulation intends to "monitor more closely wheat importations
and thus prevent their misclassification." A careful study of CMO 27-2003 shows that it not
only fails to achieve this end, but results in the opposite. The application of the regulation
forecloses the possibility that other corporations that are excluded from the list import food
grade wheat; at the same time, it creates an assumption that those who meet the criteria
do not import feed grade wheat. In the first case, importers are unnecessarily burdened to
prove the classification of their wheat imports; while in the second, the state carries that
burden.

Petitioner Commissioner of Customs also went beyond his powers when the regulation
limited the customs officer’s duties mandated by Section 1403 of the Tariff and Customs
Law, as amended. The law provides:

Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and Appraise
Imported Articles. – The customs officer tasked to examine, classify, and appraise imported
articles shall determine whether the packages designated for examination and their
contents are in accordance with the declaration in the entry, invoice and other pertinent
documents and shall make return in such a manner as to indicate whether the articles have
been truly and correctly declared in the entry as regard their quantity, measurement,
weight, and tariff classification and not imported contrary to law. He shall submit samples to
the laboratory for analysis when feasible to do so and when such analysis is necessary for
the proper classification, appraisal, and/or admission into the Philippines of imported
articles.

Likewise, the customs officer shall determine the unit of quantity in which they are usually
bought and sold, and appraise the imported articles in accordance with Section 201 of this
Code.

Failure on the part of the customs officer to comply with his duties shall subject him to the
penalties prescribed under Section 3604 of this Code.1âwphi1

The provision mandates that the customs officer must first assess and determine the
classification of the imported article before tariff may be imposed. Unfortunately, CMO 23-
2007 has already classified the article even before the customs officer had the chance to
examine it. In effect, petitioner Commissioner of Customs diminished the powers granted by
the Tariff and Customs Code with regard to wheat importation when it no longer required
the customs officer’s prior examination and assessment of the proper classification of the
wheat.

It is well-settled that rules and regulations, which are the product of a delegated power to
create new and additional legal provisions that have the effect of law, should be within the
scope of the statutory authority granted by the legislature to the administrative agency. It is
required that the regulation be germane to the objects and purposes of the law; and that it
be not in contradiction to, but in conformity with, the standards prescribed by law.23

In summary, petitioners violated respondent’s right to due process in the issuance of CMO
27-2003 when they failed to observe the requirements under the Revised Administrative
Code. Petitioners likewise violated respondent’s right to equal protection of laws when they
provided for an unreasonable classification in the application of the regulation. Finally,
petitioner Commissioner of Customs went beyond his powers of delegated authority when
the regulation limited the powers of the customs officer to examine and assess imported
articles.

WHEREFORE, in view of the foregoing, the Petition is DENIED.

SO ORDERED.
G.R. No. 171914 July 23, 2014

SOLEDAD L. LAVADIA, Petitioner,

vs.
HEIRS OF JUAN LUCES LUNA, represented by GREGORIO Z. LUNA and EUGENIA
ZABALLERO-LUNA,Respondents.

DECISION

BERSAMIN, J.:

Divorce between Filipinos is void and ineffectual under the nationality rule adopted by
Philippine law. Hence, any settlement of property between the parties of the first marriage
involving Filipinos submitted as an incident of a divorce obtained in a foreign country lacks
competent judicial approval, and cannot be enforceable against the assets of the husband
who contracts a subsequent marriage.

The Case

The petitioner, the second wife of the late Atty. Juan Luces Luna, appeals the adverse
decision promulgated on November 11, 2005,1 whereby the Court of Appeals (CA) affirmed
with modification the decision rendered on August 27, 2001 by the Regional Trial Court
(RTC), Branch 138, in Makati City.2 The CA thereby denied her right in the 25/100 pro
indiviso share of the husband in a condominium unit, and in the law books of the husband
acquired during the second marriage.

Antecedents

The antecedent facts were summarized by the CA as follows:

ATTY. LUNA, a practicing lawyer, was at first a name partner in the prestigious law firm
Sycip, Salazar, Luna, Manalo, Hernandez & Feliciano Law Offices at that time when he was
living with his first wife, herein intervenor-appellant Eugenia Zaballero-Luna (EUGENIA),
whom he initially married ina civil ceremony conducted by the Justice of the Peace of
Parañaque, Rizal on September 10, 1947 and later solemnized in a church ceremony at the
Pro-Cathedral in San Miguel, Bulacan on September 12, 1948. In ATTY. LUNA’s marriage to
EUGENIA, they begot seven (7) children, namely: Regina Maria L. Nadal, Juan Luis Luna,
Araceli Victoria L. Arellano, Ana Maria L. Tabunda, Gregorio Macario Luna, Carolina Linda L.
Tapia, and Cesar Antonio Luna. After almost two (2) decades of marriage, ATTY. LUNA and
EUGENIA eventually agreed to live apart from each other in February 1966 and agreed to
separation of property, to which end, they entered into a written agreement entitled
"AGREEMENT FOR SEPARATION AND PROPERTY SETTLEMENT" dated November 12, 1975,
whereby they agreed to live separately and to dissolve and liquidate their conjugal
partnership of property.

On January 12, 1976, ATTY. LUNA obtained a divorce decree of his marriage with EUGENIA
from the Civil and Commercial Chamber of the First Circumscription of the Court of First
Instance of Sto. Domingo, Dominican Republic. Also in Sto.Domingo, Dominican Republic, on
the same date, ATTY. LUNA contracted another marriage, this time with SOLEDAD.
Thereafter, ATTY. LUNA and SOLEDAD returned to the Philippines and lived together as
husband and wife until 1987.

Sometime in 1977, ATTY. LUNA organized a new law firm named: Luna, Puruganan, Sison
and Ongkiko (LUPSICON) where ATTY. LUNA was the managing partner.

On February 14, 1978, LUPSICON through ATTY. LUNA purchased from Tandang Sora
Development Corporation the 6th Floor of Kalaw-Ledesma Condominium
Project(condominium unit) at Gamboa St., Makati City, consisting of 517.52 square meters,
for ₱1,449,056.00, to be paid on installment basis for 36months starting on April 15, 1978.
Said condominium unit was to be usedas law office of LUPSICON. After full payment, the
Deed of Absolute Sale over the condominium unit was executed on July 15, 1983, and CCT
No. 4779 was issued on August 10, 1983, which was registered bearing the following names:

"JUAN LUCES LUNA, married to Soledad L. Luna (46/100); MARIO E. ONGKIKO, married to
Sonia P.G. Ongkiko (25/100); GREGORIO R. PURUGANAN, married to Paz A. Puruganan
(17/100); and TERESITA CRUZ SISON, married to Antonio J.M. Sison (12/100) x x x"
Subsequently, 8/100 share of ATTY. LUNA and 17/100 share of Atty. Gregorio R. Puruganan
in the condominium unit was sold to Atty. Mario E. Ongkiko, for which a new CCT No. 21761
was issued on February 7, 1992 in the following names:

"JUAN LUCES LUNA, married to Soledad L. Luna (38/100); MARIO E. ONGKIKO, married to
Sonia P.G. Ongkiko (50/100); TERESITA CRUZ SISON, married to Antonio J.M. Sison (12/100)
x x x"

Sometime in 1992, LUPSICON was dissolved and the condominium unit was partitioned by
the partners but the same was still registered in common under CCT No. 21716. The parties
stipulated that the interest of ATTY. LUNA over the condominium unit would be 25/100
share. ATTY. LUNA thereafter established and headed another law firm with Atty. Renato G.
Dela Cruzand used a portion of the office condominium unit as their office. The said law firm
lasted until the death of ATTY. JUAN on July 12, 1997.

After the death of ATTY. JUAN, his share in the condominium unit including the lawbooks,
office furniture and equipment found therein were taken over by Gregorio Z. Luna, ATTY.
LUNA’s son of the first marriage. Gregorio Z. Luna thenleased out the 25/100 portion of the
condominium unit belonging to his father to Atty. Renato G. De la Cruz who established his
own law firm named Renato G. De la Cruz & Associates.

The 25/100 pro-indiviso share of ATTY. Luna in the condominium unit as well as the law
books, office furniture and equipment became the subject of the complaint filed by
SOLEDAD against the heirs of ATTY. JUAN with the RTC of Makati City, Branch 138, on
September 10, 1999, docketed as Civil Case No. 99-1644. The complaint alleged that the
subject properties were acquired during the existence of the marriage between ATTY. LUNA
and SOLEDAD through their joint efforts that since they had no children, SOLEDAD became
co-owner of the said properties upon the death of ATTY. LUNA to the extent of ¾ pro-
indiviso share consisting of her ½ share in the said properties plus her ½ share in the net
estate of ATTY. LUNA which was bequeathed to her in the latter’s last will and testament;
and thatthe heirs of ATTY. LUNA through Gregorio Z. Luna excluded SOLEDAD from her
share in the subject properties. The complaint prayed that SOLEDAD be declared the owner
of the ¾ portion of the subject properties;that the same be partitioned; that an accounting
of the rentals on the condominium unit pertaining to the share of SOLEDAD be conducted;
that a receiver be appointed to preserve ad administer the subject properties;and that the
heirs of ATTY. LUNA be ordered to pay attorney’s feesand costs of the suit to SOLEDAD. 3

Ruling of the RTC

On August 27, 2001, the RTC rendered its decision after trial upon the aforementioned
facts,4 disposing thusly:

WHEREFORE, judgment is rendered as follows:

(a) The 24/100 pro-indiviso share in the condominium unit located at the SIXTH
FLOOR of the KALAW LEDESMA CONDOMINIUM PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of FIVE HUNDRED SEVENTEEN (517/100)
SQUARE METERS is adjudged to have been acquired by Juan Lucas Luna through his
sole industry;

(b) Plaintiff has no right as owner or under any other concept over the condominium
unit, hence the entry in Condominium Certificate of Title No. 21761 of the Registry
of Deeds of Makati with respect to the civil status of Juan Luces Luna should be
changed from "JUAN LUCES LUNA married to Soledad L. Luna" to "JUAN LUCES LUNA
married to Eugenia Zaballero Luna";

(c) Plaintiff is declared to be the owner of the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and Federal Supreme Court Reports found in
the condominium unit and defendants are ordered to deliver them to the plaintiff as
soon as appropriate arrangements have been madefor transport and storage.

No pronouncement as to costs.

SO ORDERED.5

Decision of the CA

Both parties appealed to the CA.6

On her part, the petitioner assigned the following errors to the RTC, namely:

I. THE LOWER COURT ERRED IN RULING THAT THE CONDOMINIUM UNIT WAS
ACQUIRED THRU THE SOLE INDUSTRY OF ATTY. JUAN LUCES LUNA;

II. THE LOWER COURT ERRED IN RULING THAT PLAINTIFFAPPELLANT DID NOT
CONTRIBUTE MONEY FOR THE ACQUISITION OF THE CONDOMINIUM UNIT;
 III. THE LOWER COURT ERRED IN GIVING CREDENCE TO PORTIONS OF THE
TESTIMONY OF GREGORIO LUNA, WHO HAS NO ACTUAL KNOWLEDGE OF THE
ACQUISITION OF THE UNIT, BUT IGNORED OTHER PORTIONS OF HIS TESTIMONY
FAVORABLE TO THE PLAINTIFF-APPELLANT;

IV. THE LOWER COURT ERRED IN NOT GIVING SIGNIFICANCE TO THE FACT THAT THE
CONJUGAL PARTNERSHIP BETWEEN LUNA AND INTERVENOR-APPELLANT WAS
ALREADY DISSOLVED AND LIQUIDATED PRIOR TO THE UNION OF PLAINTIFF-
APPELLANT AND LUNA;

V. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE ABSENCE OF

THE DISPOSITION OF THE CONDOMINIUM UNIT IN THE HOLOGRAPHIC WILL OF THE
PLAINTIFF-APPELLANT;

VI. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE FACTTHAT
THE NAME OF PLAINTIFF-APPELLANT DID NOT APPEAR IN THE DEED OF ABSOLUTE
SALE EXECUTED BY TANDANG SORA DEVELOPMENT CORPORATION OVER THE
CONDOMINIUM UNIT;

VII. THE LOWER COURT ERRED IN RULING THAT NEITHER ARTICLE 148 OF THE
FAMILYCODE NOR ARTICLE 144 OF THE CIVIL CODE OF THE PHILIPPINES ARE
APPLICABLE;

VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE OF ACTION OF THE
INTERVENOR-APPELLANT HAS BEEN BARRED BY PESCRIPTION AND LACHES; and

IX. THE LOWER COURT ERRED IN NOT EXPUNGING/DISMISSING THE INTERVENTION

FOR FAILURE OF INTERVENOR-APPELLANT TO PAY FILING FEE. 7

In contrast, the respondents attributedthe following errors to the trial court, to wit:

I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN FOREIGN LAW BOOKS IN
THE LAW OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE USE OF PLAINTIFF’S
MONEY;

II. THE LOWER COURT ERRED IN HOLDING THAT PLAINTIFF PROVED BY

PREPONDERANCE OF EVIDENCE (HER CLAIM OVER) THE SPECIFIED FOREIGN LAW
BOOKS FOUND IN ATTY. LUNA’S LAW OFFICE; and

III. THE LOWER COURT ERRED IN NOT HOLDING THAT, ASSUMING PLAINTIFF PAID
FOR THE SAID FOREIGN LAW BOOKS, THE RIGHT TO RECOVER THEM HAD
PRESCRIBED AND BARRED BY LACHES AND ESTOPPEL.8

On November 11, 2005, the CA promulgated its assailed modified decision,9 holding and
ruling:

EUGENIA, the first wife, was the legitimate wife of ATTY. LUNA until the latter’s death on
July 12, 1997. The absolute divorce decree obtained by ATTY. LUNA inthe Dominican
Republic did not terminate his prior marriage with EUGENIA because foreign divorce
between Filipino citizens is not recognized in our jurisdiction. x x x 10

xxxx

WHEREFORE, premises considered, the assailed August 27, 2001 Decision of the RTC of
MakatiCity, Branch 138, is hereby MODIFIEDas follows:

(a) The 25/100 pro-indiviso share in the condominium unit at the SIXTH FLOOR of the
KALAW LEDESMA CONDOMINIUM PROJECT covered by Condominium Certificate of
Title No. 21761 consisting of FIVE HUNDRED SEVENTEEN (517/100) (sic) SQUARE
METERS is hereby adjudged to defendants-appellants, the heirs of Juan Luces Luna
and Eugenia Zaballero-Luna (first marriage), having been acquired from the sole
funds and sole industry of Juan Luces Luna while marriage of Juan Luces Luna and
Eugenia Zaballero-Luna (first marriage) was still subsisting and valid;

(b) Plaintiff-appellant Soledad Lavadia has no right as owner or under any other
concept over the condominium unit, hence the entry in Condominium Certificate of
Title No. 21761 of the Registry of Deeds ofMakati with respect to the civil status of
Juan Luces Luna should be changed from "JUAN LUCES LUNA married to Soledad L.
Luna" to "JUAN LUCES LUNA married to Eugenia Zaballero Luna";

(c) Defendants-appellants, the heirs of Juan Luces Luna and Eugenia Zaballero-
Luna(first marriage) are hereby declared to be the owner of the books Corpus Juris,
Fletcher on Corporation, American Jurisprudence and Federal Supreme Court
Reports found in the condominium unit.

No pronouncement as to costs.

SO ORDERED.11

On March 13, 2006,12 the CA denied the petitioner’s motion for reconsideration. 13

Issues

In this appeal, the petitioner avers in her petition for review on certiorarithat:

A. The Honorable Court of Appeals erred in ruling that the Agreement for Separation
and Property Settlement executed by Luna and Respondent Eugenia was
unenforceable; hence, their conjugal partnership was not dissolved and liquidated;

B. The Honorable Court of Appeals erred in not recognizing the Dominican Republic
court’s approval of the Agreement;

C. The Honorable Court of Appeals erred in ruling that Petitioner failed to adduce
sufficient proof of actual contribution to the acquisition of purchase of the
subjectcondominium unit; and
 D. The Honorable Court of Appeals erred in ruling that Petitioner was not entitled to
the subject law books.14

The decisive question to be resolved is who among the contending parties should be
entitled to the 25/100 pro indivisoshare in the condominium unit; and to the law books (i.e.,
Corpus Juris, Fletcher on Corporation, American Jurisprudence and Federal Supreme Court
Reports).

The resolution of the decisive question requires the Court to ascertain the law that should
determine, firstly, whether the divorce between Atty. Luna and Eugenia Zaballero-Luna
(Eugenia) had validly dissolved the first marriage; and, secondly, whether the second
marriage entered into by the late Atty. Luna and the petitioner entitled the latter to any
rights in property. Ruling of the Court

We affirm the modified decision of the CA.

1. Atty. Luna’s first marriage with Eugenia

subsisted up to the time of his death

The first marriage between Atty. Luna and Eugenia, both Filipinos, was solemnized in the
Philippines on September 10, 1947. The law in force at the time of the solemnization was
the Spanish Civil Code, which adopted the nationality rule. The Civil Codecontinued to
follow the nationality rule, to the effect that Philippine laws relating to family rights and
duties, or to the status, condition and legal capacity of persons were binding upon citizens
of the Philippines, although living abroad.15 Pursuant to the nationality rule, Philippine laws
governed thiscase by virtue of bothAtty. Luna and Eugenio having remained Filipinos until
the death of Atty. Luna on July 12, 1997 terminated their marriage.

From the time of the celebration ofthe first marriage on September 10, 1947 until the
present, absolute divorce between Filipino spouses has not been recognized in the
Philippines. The non-recognition of absolute divorce between Filipinos has remained even
under the Family Code,16 even if either or both of the spouses are residing abroad. 17 Indeed,
the only two types of defective marital unions under our laws have beenthe void and the
voidable marriages. As such, the remedies against such defective marriages have been
limited to the declaration of nullity ofthe marriage and the annulment of the marriage.

It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo in the
Dominican Republic issued the Divorce Decree dissolving the first marriage of Atty. Luna and
Eugenia.18 Conformably with the nationality rule, however, the divorce, even if voluntarily
obtained abroad, did not dissolve the marriage between Atty. Luna and Eugenia, which
subsisted up to the time of his death on July 12, 1997. This finding conforms to the
Constitution, which characterizes marriage as an inviolable social institution,19 and regards it
as a special contract of permanent union between a man and a woman for the
establishment of a conjugal and family life.20 The non-recognition of absolute divorce in the
Philippines is a manifestation of the respect for the sanctity of the marital union especially
among Filipino citizens. It affirms that the extinguishment of a valid marriage must be
grounded only upon the death of either spouse, or upon a ground expressly provided bylaw.
For as long as this public policy on marriage between Filipinos exists, no divorce decree
dissolving the marriage between them can ever be given legal or judicial recognition and
enforcement in this jurisdiction.

2. The Agreement for Separation and Property Settlement

was void for lack of court approval

The petitioner insists that the Agreement for Separation and Property Settlement
(Agreement) that the late Atty. Luna and Eugenia had entered into and executed in
connection with the divorce proceedings before the CFI of Sto. Domingo in the Dominican
Republic to dissolve and liquidate their conjugal partnership was enforceable against
Eugenia. Hence, the CA committed reversible error in decreeing otherwise.

The insistence of the petitioner was unwarranted.

Considering that Atty. Luna and Eugenia had not entered into any marriage settlement prior
to their marriage on September 10, 1947, the system of relative community or conjugal
partnership of gains governed their property relations. This is because the Spanish Civil
Code, the law then in force at the time of their marriage, did not specify the property
regime of the spouses in the event that they had not entered into any marriage settlement
before or at the time of the marriage. Article 119 of the Civil Codeclearly so provides, to wit:

Article 119. The future spouses may in the marriage settlements agree upon absolute or
relative community of property, or upon complete separation of property, or upon any
other regime. In the absence of marriage settlements, or when the same are void, the
system of relative community or conjugal partnership of gains as established in this Code,
shall govern the property relations between husband and wife.

Article 142 of the Civil Codehas defined a conjugal partnership of gains thusly:

Article 142. By means of the conjugal partnership of gains the husband and wife place in a
common fund the fruits of their separate property and the income from their work or
industry, and divide equally, upon the dissolution of the marriage or of the partnership, the
net gains or benefits obtained indiscriminately by either spouse during the marriage.

The conjugal partnership of gains subsists until terminated for any of various causes of
termination enumerated in Article 175 of the Civil Code, viz:

Article 175. The conjugal partnership of gains terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled;

(4) In case of judicial separation of property under Article 191.

The mere execution of the Agreement by Atty. Luna and Eugenia did not per sedissolve and
liquidate their conjugal partnership of gains. The approval of the Agreement by a competent
court was still required under Article 190 and Article 191 of the Civil Code, as follows:

Article 190. In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place save in
virtue of a judicial order. (1432a)

Article 191. The husband or the wife may ask for the separation of property, and it shall be
decreed when the spouse of the petitioner has been sentenced to a penalty which carries
with it civil interdiction, or has been declared absent, or when legal separation has been
granted.

xxxx

The husband and the wife may agree upon the dissolution of the conjugal partnership
during the marriage, subject to judicial approval. All the creditors of the husband and of the
wife, as well as of the conjugal partnership shall be notified of any petition for
judicialapproval or the voluntary dissolution of the conjugal partnership, so that any such
creditors may appear atthe hearing to safeguard his interests. Upon approval of the petition
for dissolution of the conjugal partnership, the court shall take such measures as may
protect the creditors and other third persons.

After dissolution of the conjugal partnership, the provisions of articles 214 and 215 shall
apply. The provisions of this Code concerning the effect of partition stated in articles 498 to
501 shall be applicable. (1433a)

But was not the approval of the Agreement by the CFI of Sto. Domingo in the Dominican
Republic sufficient in dissolving and liquidating the conjugal partnership of gains between
the late Atty. Luna and Eugenia?

The query is answered in the negative. There is no question that the approval took place
only as an incident ofthe action for divorce instituted by Atty. Luna and Eugenia, for, indeed,
the justifications for their execution of the Agreement were identical to the grounds raised
in the action for divorce.21 With the divorce not being itself valid and enforceable under
Philippine law for being contrary to Philippine public policy and public law, the approval of
the Agreement was not also legally valid and enforceable under Philippine law.
Consequently, the conjugal partnership of gains of Atty. Luna and Eugenia subsisted in the
lifetime of their marriage.

3. Atty. Luna’s marriage with Soledad, being bigamous,

was void; properties acquired during their marriage
were governed by the rules on co-ownership

What law governed the property relations of the second marriage between Atty. Luna and
Soledad?
The CA expressly declared that Atty. Luna’s subsequent marriage to Soledad on January 12,
1976 was void for being bigamous,22 on the ground that the marriage between Atty. Luna
and Eugenia had not been dissolved by the Divorce Decree rendered by the CFI of Sto.
Domingo in the Dominican Republic but had subsisted until the death of Atty. Luna on July
12, 1997.

The Court concurs with the CA.

In the Philippines, marriages that are bigamous, polygamous, or incestuous are void. Article
71 of the Civil Codeclearly states:

Article 71. All marriages performed outside the Philippines in accordance with the laws in
force in the country where they were performed, and valid there as such, shall also be valid
in this country, except bigamous, polygamous, or incestuous marriages as determined by
Philippine law.

Bigamy is an illegal marriage committed by contracting a second or subsequent marriage

before the first marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
proceedings.23 A bigamous marriage is considered void ab initio.24

Due to the second marriage between Atty. Luna and the petitioner being void ab initioby
virtue of its being bigamous, the properties acquired during the bigamous marriage were
governed by the rules on co-ownership, conformably with Article 144 of the Civil Code, viz:

Article 144. When a man and a woman live together as husband and wife, but they are not
married, ortheir marriage is void from the beginning, the property acquired by eitheror both
of them through their work or industry or their wages and salaries shall be governed by the
rules on co-ownership.(n)

In such a situation, whoever alleges co-ownership carried the burden of proof to confirm
such fact.1âwphi1 To establish co-ownership, therefore, it became imperative for the
petitioner to offer proof of her actual contributions in the acquisition of property. Her mere
allegation of co-ownership, without sufficient and competent evidence, would warrant no
relief in her favor. As the Court explained in Saguid v. Court of Appeals: 25

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-
ownership ofproperties acquired by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual contribution in the acquisition of the
property is essential. The claim of co-ownership of the petitioners therein who were parties
to the bigamous and adulterousunion is without basis because they failed to substantiate
their allegation that they contributed money in the purchase of the disputed properties.
Also in Adriano v. Court of Appeals, we ruled that the fact that the controverted property
was titled in the name of the parties to an adulterous relationship is not sufficient proof of
coownership absent evidence of actual contribution in the acquisition of the property.

As in other civil cases, the burden of proof rests upon the party who, as determined by the
pleadings or the nature of the case, asserts an affirmative issue. Contentions must be
proved by competent evidence and reliance must be had on the strength of the party’s own
evidence and not upon the weakness of the opponent’s defense. This applies with more
vigor where, as in the instant case, the plaintiff was allowed to present evidence ex
parte.1âwphi1 The plaintiff is not automatically entitled to the relief prayed for. The law
gives the defendantsome measure of protection as the plaintiff must still prove the
allegations in the complaint. Favorable relief can be granted only after the court isconvinced
that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a fact has
the burden of proving it and a mereallegation is not evidence.26

The petitioner asserts herein that she sufficiently proved her actual contributions in the
purchase of the condominium unit in the aggregate amount of at least ₱306,572.00,
consisting in direct contributions of ₱159,072.00, and in repaying the loans Atty. Luna had
obtained from Premex Financing and Banco Filipino totaling ₱146,825.30;27 and that such
aggregate contributions of ₱306,572.00 corresponded to almost the entire share of Atty.
Luna in the purchase of the condominium unit amounting to ₱362,264.00 of the unit’s
purchase price of ₱1,449,056.00.28 The petitioner further asserts that the lawbooks were
paid for solely out of her personal funds, proof of which Atty. Luna had even sent her a
"thank you" note;29 that she had the financial capacity to make the contributions and
purchases; and that Atty. Luna could not acquire the properties on his own due to the
meagerness of the income derived from his law practice.

Did the petitioner discharge her burden of proof on the co-ownership?

In resolving the question, the CA entirely debunked the petitioner’s assertions on her actual
contributions through the following findings and conclusions, namely:

SOLEDAD was not able to prove by preponderance of evidence that her own independent
funds were used to buy the law office condominium and the law books subject matter in
contentionin this case – proof that was required for Article 144 of the New Civil Code and
Article 148 of the Family Code to apply – as to cases where properties were acquired by a
man and a woman living together as husband and wife but not married, or under a marriage
which was void ab initio. Under Article 144 of the New Civil Code, the rules on co-ownership
would govern. But this was not readily applicable to many situations and thus it created a
void at first because it applied only if the parties were not in any way incapacitated or were
without impediment to marry each other (for it would be absurd to create a co-ownership
where there still exists a prior conjugal partnership or absolute community between the
man and his lawful wife). This void was filled upon adoption of the Family Code. Article 148
provided that: only the property acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned in common and in proportion to
their respective contributions. Such contributions and corresponding shares were prima
faciepresumed to be equal. However, for this presumption to arise, proof of actual
contribution was required. The same rule and presumption was to apply to joint deposits of
money and evidence of credit. If one of the parties was validly married to another, his or her
share in the co-ownership accrued to the absolute community or conjugal partnership
existing in such valid marriage. If the party who acted in bad faith was not validly married to
another, his or her share shall be forfeited in the manner provided in the last paragraph of
the Article 147. The rules on forfeiture applied even if both parties were in bad faith. Co-
ownership was the exception while conjugal partnership of gains was the strict rule
whereby marriage was an inviolable social institution and divorce decrees are not
recognized in the Philippines, as was held by the Supreme Court in the case of Tenchavez vs.
Escaño, G.R. No. L-19671, November 29, 1965, 15 SCRA 355, thus:

xxxx

As to the 25/100pro-indivisoshare of ATTY. LUNA in the condominium unit, SOLEDAD failed

to prove that she made an actual contribution to purchase the said property. She failed to
establish that the four (4) checks that she presented were indeed used for the acquisition of
the share of ATTY. LUNA in the condominium unit. This was aptly explained in the Decision
of the trial court, viz.:

"x x x The first check, Exhibit "M" for ₱55,000.00 payable to Atty. Teresita Cruz Sison was
issued on January 27, 1977, which was thirteen (13) months before the Memorandum of
Agreement, Exhibit "7" was signed. Another check issued on April 29, 1978 in the amount of
₱97,588.89, Exhibit "P" was payable to Banco Filipino. According to the plaintiff, thiswas in
payment of the loan of Atty. Luna. The third check which was for ₱49,236.00 payable to
PREMEX was dated May 19, 1979, also for payment of the loan of Atty. Luna. The fourth
check, Exhibit "M", for ₱4,072.00 was dated December 17, 1980. None of the foregoing
prove that the amounts delivered by plaintiff to the payees were for the acquisition of the
subject condominium unit. The connection was simply not established. x x x"

SOLEDAD’s claim that she made a cash contribution of ₱100,000.00 is unsubstantiated.

Clearly, there is no basis for SOLEDAD’s claim of co-ownership over the 25/100 portion of
the condominium unit and the trial court correctly found that the same was acquired
through the sole industry of ATTY. LUNA, thus:

"The Deed of Absolute Sale, Exhibit "9", covering the condominium unit was in the name of
Atty. Luna, together with his partners in the law firm. The name of the plaintiff does not
appear as vendee or as the spouse of Atty. Luna. The same was acquired for the use of the
Law firm of Atty. Luna. The loans from Allied Banking Corporation and Far East Bank and
Trust Company were loans of Atty. Luna and his partners and plaintiff does not have
evidence to show that she paid for them fully or partially. x x x"

The fact that CCT No. 4779 and subsequently, CCT No. 21761 were in the name of "JUAN
LUCES LUNA, married to Soledad L. Luna" was no proof that SOLEDAD was a co-owner of the
condominium unit. Acquisition of title and registration thereof are two different acts. It is
well settled that registration does not confer title but merely confirms one already existing.
The phrase "married to" preceding "Soledad L. Luna" is merely descriptive of the civil status
of ATTY. LUNA.

SOLEDAD, the second wife, was not even a lawyer. So it is but logical that SOLEDAD had no
participation in the law firm or in the purchase of books for the law firm. SOLEDAD failed to
prove that she had anything to contribute and that she actually purchased or paid for the
law office amortization and for the law books. It is more logical to presume that it was ATTY.
LUNA who bought the law office space and the law books from his earnings from his
practice of law rather than embarrassingly beg or ask from SOLEDAD money for use of the
law firm that he headed.30

The Court upholds the foregoing findings and conclusions by the CA both because they were
substantiated by the records and because we have not been shown any reason to revisit
and undo them. Indeed, the petitioner, as the party claiming the co-ownership, did not
discharge her burden of proof. Her mere allegations on her contributions, not being
evidence,31 did not serve the purpose. In contrast, given the subsistence of the first
marriage between Atty. Luna and Eugenia, the presumption that Atty. Luna acquired the
properties out of his own personal funds and effort remained. It should then be justly
concluded that the properties in litislegally pertained to their conjugal partnership of gains
as of the time of his death. Consequently, the sole ownership of the 25/100 pro
indivisoshare of Atty. Luna in the condominium unit, and of the lawbooks pertained to the
respondents as the lawful heirs of Atty. Luna.

WHEREFORE, the Court AFFIRMS the decision promulgated on November 11, 2005; and
ORDERS the petitioner to pay the costs of suit.

SO ORDERED.
G.R. No. 176947 February 19, 2009

GAUDENCIO M. CORDORA, Petitioner,

vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary
restraining order under Rule 65 of the 1997 Rules of Civil Procedure.

In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting

(Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the
Omnibus Election Code. The Commission on Elections’ (COMELEC) En Banc dismissed
Cordora’s complaint in a Resolution1 dated 18 August 2006. The present petition seeks to
reverse the 18 August 2006 Resolution as well as the Resolution2 dated 20 February 2007 of
the COMELEC En Banc which denied Cordora’s motion for reconsideration.

The Facts

In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that
Tambunting made false assertions in the following items:

That Annex A [Tambunting’s Certificate of Candidacy for the 2001 elections] and Annex B
[Tambunting’s Certificate of Candidacy for the 2004 elections] state, among others, as
follows, particularly Nos. 6, 9 and 12 thereof:

1. No. 6 – I am a Natural Born/Filipino Citizen

2. No. 9 – No. of years of Residence before May 14, 2001.

36 in the Philippines and 25 in the Constituency where I seek to be elected;

3. No. 12 – I am ELIGIBLE for the office I seek to be elected.3 (Boldface and

capitalization in the original)

Cordora stated that Tambunting was not eligible to run for local public office because
Tambunting lacked the required citizenship and residency requirements.

To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented a

certification from the Bureau of Immigration which stated that, in two instances,
Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December
2000 and upon departure from the Philippines on 17 June 2001. According to Cordora,
these travel dates confirmed that Tambunting acquired American citizenship through
naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded:

That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re:
CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state,
among others, under oath, that he is a Filipino (No. 6), No. 9- residence requirement which
he lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic]
Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he possesses the
above basic requirements under No. 12 – that he is indeed eligible for the office to which
he seeks to be elected, when in truth and in fact, the contrary is indubitably established
by his own statements before the Philippine Bureau of Immigration x x x.4 (Emphases in the
original)

Tambunting, on the other hand, maintained that he did not make any misrepresentation in
his certificates of candidacy. To refute Cordora’s claim that Tambunting is not a natural-born
Filipino, Tambunting presented a copy of his birth certificate which showed that he was
born of a Filipino mother and an American father. Tambunting further denied that he was
naturalized as an American citizen. The certificate of citizenship conferred by the US
government after Tambunting’s father petitioned him through INS Form I-130 (Petition for
Relative) merely confirmed Tambunting’s citizenship which he acquired at birth.
Tambunting’s possession of an American passport did not mean that Tambunting is not a
Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant
to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act
of 2003.

Tambunting further stated that he has resided in the Philippines since birth. Tambunting has
imbibed the Filipino culture, has spoken the Filipino language, and has been educated in
Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the
Philippines was shown by his service as councilor of Parañaque.

To refute Cordora’s claim that the number of years of residency stated in Tambunting’s
certificates of candidacy is false because Tambunting lost his residency because of his
naturalization as an American citizen, Tambunting contended that the residency
requirement is not the same as citizenship.

The Ruling of the COMELEC Law Department

The COMELEC Law Department recommended the dismissal of Cordora’s complaint against
Tambunting because Cordora failed to substantiate his charges against Tambunting.
Cordora’s reliance on the certification of the Bureau of Immigration that Tambunting
traveled on an American passport is not sufficient to prove that Tambunting is an American
citizen.

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law
Department. The COMELEC En Banc was convinced that Cordora failed to support his
accusation against Tambunting by sufficient and convincing evidence.
The dispositive portion of the COMELEC En Banc’s Resolution reads as follows:

WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for

insufficiency of evidence to establish probable cause.

SO ORDERED.5

Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion

which concurred with the findings of the En Banc Resolution. Commissioner Sarmiento
pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting
effectively renounced his American citizenship when he filed his certificates of candidacy in
2001 and 2004 and ran for public office.

Cordora filed a motion for reconsideration which raised the same grounds and the same
arguments in his complaint. In its Resolution promulgated on 20 February 2007, the
COMELEC En Banc dismissed Cordora’s motion for reconsideration for lack of merit.

The Issue

Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it declared that there is no sufficient evidence to support
probable cause that may warrant the prosecution of Tambunting for an election offense.

Cordora’s petition is not an action to disqualify Tambunting because of Tambunting’s failure

to meet citizenship and residency requirements. Neither is the present petition an action to
declare Tambunting a non-Filipino and a non-resident. The present petition seeks to
prosecute Tambunting for knowingly making untruthful statements in his certificates of
candidacy.

The Ruling of the Court

The petition has no merit. We affirm the ruling of the COMELEC En Banc.

Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an
Election Offense

There was no grave abuse of discretion in the COMELEC En Banc’s ruling that there is no
sufficient and convincing evidence to support a finding of probable cause to hold
Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus
Election Code.

Probable cause constitutes those facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed. Determining
probable cause is an intellectual activity premised on the prior physical presentation or
submission of documentary or testimonial proofs either confirming, negating or qualifying
the allegations in the complaint.6

Section 74 of the Omnibus Election Code reads as follows:

Contents of certificate of candidacy. — The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; x x x the political party to which he belongs; civil status; his date of
birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders and
decrees promulgated by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation imposed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the facts
stated in the certificate of candidacy are true to the best of his knowledge.

xxx

The person filing a certificate of candidacy shall also affix his latest photograph, passport
size; a statement in duplicate containing his bio-data and program of government not
exceeding one hundred words, if he so desires.

Section 262 of the Omnibus Election Code, on the other hand, provides that violation of
Section 74, among other sections in the Code, shall constitute an election offense.

Tambunting’s Dual Citizenship

Tambunting does not deny that he is born of a Filipino mother and an American father.
Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for
Relative) because of his father’s citizenship. Tambunting claims that because of his parents’
differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand,
insists that Tambunting is a naturalized American citizen.

We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual

citizenship. Because of the circumstances of his birth, it was no longer necessary for
Tambunting to undergo the naturalization process to acquire American citizenship. The
process involved in INS Form I-130 only served to confirm the American citizenship which
Tambunting acquired at birth. The certification from the Bureau of Immigration which
Cordora presented contained two trips where Tambunting claimed that he is an American.
However, the same certification showed nine other trips where Tambunting claimed that he
is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate
of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did
not disqualify him from running for public office.7

Requirements for dual citizens from birth who desire to run for public office

We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we

ruled that dual citizenship is not a ground for disqualification from running for any elective
local position.

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a
result of the concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. For instance, such a situation may
arise when a person whose parents are citizens of a state which adheres to the principle
of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both
states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual’s volition.

xxx

[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission

was not with dual citizens per se but with naturalized citizens who maintain their allegiance
to their countries of origin even after their naturalization. Hence, the phrase "dual
citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as
referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall
under this disqualification. Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy,
they elect Philippine citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us
because we have no control of the laws on citizenship of other countries. We recognize a
child of a Filipino mother. But whether or not she is considered a citizen of another country
is something completely beyond our control."

By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on §40(d) between Senators Enrile and Pimentel clearly shows:
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any
person with dual citizenship" is disqualified to run for any elective local position. Under the
present Constitution, Mr. President, someone whose mother is a citizen of the Philippines
but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural-born citizen, upon reaching the age of majority, must elect or give up
Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines, may such a
situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he
would want to run for public office, he has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or
the country of the father claims that person, nevertheless, as a citizen,? No one can
renounce. There are such countries in the world.1avvphi1

SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect,
be an election for him of his desire to be considered a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an
election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at
birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman’s
example, if he does not renounce his other citizenship, then he is opening himself to
question. So, if he is really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He
will always have one citizenship, and that is the citizenship invested upon him or her in the
Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that
he also acknowledges other citizenships, then he will probably fall under this
disqualification.8 (Emphasis supplied)

We have to consider the present case in consonance with our rulings in Mercado v.
Manzano,9 Valles v. COMELEC,10 and AASJS v. Datumanong.11 Mercado and Valles involve
similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed
dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in
the United States which follows the doctrine of jus soli. Valles was born to an Australian
mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual
citizenship is different from dual allegiance both by cause and, for those desiring to run for
public office, by effect. Dual citizenship is involuntary and arises when, as a result of the
concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. Thus, like any other natural-born
Filipino, it is enough for a person with dual citizenship who seeks public office to file his
certificate of candidacy and swear to the oath of allegiance contained therein. Dual
allegiance, on the other hand, is brought about by the individual’s active participation in the
naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a
naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing
to the supreme authority of the Republic of the Philippines. The act of taking an oath of
allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship.

R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted
years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No.
9225 reads as follows:

I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of
the Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion.

In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual
citizenship per se, but with the status of naturalized citizens who maintain their allegiance to
their countries of origin even after their naturalization.12 Section 5(3) of R.A. No. 9225 states
that naturalized citizens who reacquire Filipino citizenship and desire to run for elective
public office in the Philippines shall "meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of filing the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath" aside from the oath of allegiance
prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of
Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our
recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v.
COMELEC,15 all of which involve natural-born Filipinos who later became naturalized citizens
of another country and thereafter ran for elective office in the Philippines. In the present
case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen
of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.

Tambunting’s residency

Cordora concluded that Tambunting failed to meet the residency requirement because of
Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting
is not a naturalized American. Moreover, residency, for the purpose of election laws,
includes the twin elements of the fact of residing in a fixed place and the intention to return
there permanently,16 and is not dependent upon citizenship.

In view of the above, we hold that Cordora failed to establish that Tambunting indeed
willfully made false entries in his certificates of candidacy. On the contrary, Tambunting
sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for
the office which he sought to be elected and fulfilled the citizenship and residency
requirements prescribed by law.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on

Elections En Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 05-17.
G.R. No. 136921 April 17, 2001

LORNA GUILLEN PESCA, petitioner

vs.
ZOSIMO A PESCA, respondent.

VITUG, J.:

Submitted for review is the decision of the Court of Appeals, promulgated on 27 May 1998,
in C.A. G.R. CV. No. 52374, reversing the decision of the Regional Trial Court ("RTC") of
Caloocan City, Branch 130, which has declared the marriage between petitioner and
respondent to be null and void ab initio on the ground of psychological incapacity on the
part of respondent.

Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met sometime in 1975 while
on board an inter-island vessel bound for Bacolod City. After a whirlwind courtship, they got
married on 03 March 1975. Initially, the young couple did not live together as petitioner was
still a student in college and respondent, a seaman, had to leave the country on board an
ocean-going vessel barely a month after the marriage. Six months later, the young couple
established their residence in Quezon City until they were able to build their own house in
Caloocan City where they finally resided. It was blissful marriage for the couple during the
two months of the year that they could stay together - when respondent was on vacation.
The union begot four children, 19-year old Ruhem, 17-year old Rez, 11-year old Ryan, and 9-
year old Richie.

It started in 1988, petitioner said, when she noticed that respondent surprisingly showed
signs of "psychological incapacity" to perform his marital covenant. His "true color" of being
an emotionally immature and irresponsible husband became apparent. He was cruel and
violent. He was a habitual drinker, staying with friends daily from 4:00 o'clock in the
afternoon until 1:00 o'clock in the morning. When cautioned to stop or, to at least, minimize
his drinking, respondent would beat, slap and kick her. At one time, he chased petitioner
with a loaded shotgun and threatened to kill her in the presence of the children. The
children themselves were not spared from physical violence.

Finally, on 19 November 1992, petitioner and her children left the conjugal abode to live in
the house of her sister in Quezon City as they could no longer bear his violent ways. Two
months later, petitioner decided to forgive respondent, and she returned home to give him
a chance to change. But, to her dismay, things did not so turn out as expected. Indeed,
matters became worse.

On the morning of 22 March 1994, about eight o'clock, respondent assaulted petitioner for
about half an hour in the presence of the children. She was battered black and blue. She
submitted herself to medical examination at the Quezon City General Hospital, which
diagnosed her injuries as contusions and abrasions. Petitioner filed a complaint with the
barangay authorities, and a case was filed against respondent for slight physical injuries. He
was convicted by the Metropolitan Trial Court of Caloocan City and sentenced to eleven
days of imprisonment.
This time, petitioner and her children left the conjugal home for good and stayed with her
sister. Eventually, they decided to rent an apartment. Petitioner sued respondent before the
Regional Trial Court for the declaration of nullity of their marriage invoking psychological
incapacity. Petitioner likewise sought the custody of her minor children and prayed for
support pendente lite .

Summons, together with a copy of the complaint, was served on respondent on 25 April
1994 by personal service by the sheriff. As respondent failed to file an answer or to enter his
appearance within the reglementary period, the trial court ordered the city prosecutor to
look into a possible collusion between the parties. Prosecutor Rosa C. Reyes, on 03 August
1994, submitted her report to the effect that she found no evidence to establish that there
was collusion between the parties. 1âwphi1.nêt

On 11 January 1995, respondent belatedly filed, without leave of court, an answer, and the
same, although filed late, was admitted by the court. In his answer, respondent admitted
the fact of his marriage with petitioner and the birth of their children. He also confirmed the
veracity of Annex "A" of the complaint which listed the conjugal property. Respondent
vehemently denied, however, the allegation that he was psychologically incapacitated.

On 15 November 1995, following hearings conducted by it, the trial court rendered its
decision declaring the marriage between petitioner and respondent to be null and void ab
initio on the basis of psychological incapacity on the part of respondent and ordered the
liquidation of the conjugal partnership.

Respondent appealed the above decision to the Court of Appeals, contending that the trial
court erred, particularly, in holding that there was legal basis to declare the marriage null
and void and in denying his motion to reopen the case.

The Court of Appeals reversed the decision of the trial court and declared the marriage
between petitioner and respondent valid and subsisting. The appellate court said:

"Definitely the appellee has not established the following: That the appellant
showed signs of mental incapacity as would cause him to be truly incognitive of the
basic marital covenant, as so provided for in Article 68 of the Family Code; that the
incapacity is grave, has preceded the marriage and is incurable; that his incapacity to
meet his marital responsibility is because of a psychological, not physical illness; that
the root cause of the incapacity has been identified medically or clinically, and has
been proven by an expert; and that the incapacity is permanent and incurable in
nature.

"The burden of proof to show the nullity of marriage lies in the plaintiff and any
doubt should be resolved in favor of the existence and continuation of the marriage
and against its dissolution and nullity."1

Petitioner, in her plea to this Court, would have the decision of the Court of Appeals
reversed on the thesis that the doctrine enunciated in Santos vs. Court of
Appeals,2 promulgated on 14 January 1995, as well as the guidelines set out in Republic vs.
Court of Appeals and Molina,3 promulgated on 13 February 1997, should have no
retroactive application and, on the assumption that the Molina ruling could be applied
retroactively, the guidelines therein outlined should be taken to be merely advisory and not
mandatory in nature. In any case, petitioner argues, the application of
the Santos and Molina dicta should warrant only a remand of the case to the trial court for
further proceedings and not its dismissal.

Be that as it may, respondent submits, the appellate court did not err in its assailed decision
for there is absolutely no evidence that has been shown to prove psychological incapacity
on his part as the term has been so defined in Santos.

Indeed, there is no merit in the petition.

The term "psychological incapacity," as a ground for the declaration of nullity of a marriage
under Article 36 of the Family Code, has been explained by the Court, in Santos and
reiterated in Molina. The Court, in Santos, concluded:

"It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the
use of the phrase 'psychological incapacity' under Article 36 of the Code has not
been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances (cited in Fr. Artemio Balumad's 'Void and
Voidable Marriages in the Family Code and their Parallels in Canon Law,' quoting
form the Diagnostic Statistical Manuel of Mental Disorder by the American
Psychiatric Association; Edward Hudson's 'Handbook II for Marriage Nullity Cases').
Article 36 of the Family. Code cannot be taken and construed independently of, but
must stand in conjunction with, existing precepts in our law on marriage. Thus
correlated, 'psychological incapacity' should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the
marriage which, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and fidelity and render
help and support. There is hardly any doubt that the intendment of the law has been
to confine the meaning of 'psychological incapacity' to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. This psychologic condition must exist
at the time the marriage is celebrated."

The- "doctrine of stare decisis," ordained in Article 8 of the Civil Code, expresses that judicial
decisions applying or interpreting the law shall form part of the legal system of the
Philippines. The rule follows the settled legal maxim - "legis interpretado legis vim obtinet" -
that the interpretation placed upon the written law by a competent court has the force of
law.3 The interpretation or construction placed by the courts establishes the
contemporaneous legislative intent of the law. The latter as so interpreted and construed
would thus constitute a part of that law as of the date the statute is enacted. It is only when
a prior ruling of this Court finds itself later overruled, and a different view is adopted, that
the new doctrine may have to be applied prospectively in favor of parties who have relied
on the old doctrine and have acted in good faith in accordance therewith5 under the familiar
rule of "lex prospicit, non respicit."

The phrase "psychological incapacity ," borrowed from Canon law, is an entirely novel
provision in our statute books, and, until the relatively recent enactment of the Family
Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first
time, the Court has given life to the term. Molina, that followed, has additionally provided
procedural guidelines to assist the courts and the parties in trying cases for annulment of
marriages grounded on psychological incapacity. Molina has strengthened, not
overturned, Santos.

At all events, petitioner has utterly failed, both in her allegations in the complaint and in her
evidence, to make out a case of psychological incapacity on the part of respondent, let
alone at the time of solemnization of the contract, so as to warrant a declaration of nullity
of the marriage. Emotional immaturity and irresponsibility, invoked by her, cannot be
equated with psychological incapacity.

The Court reiterates its reminder that marriage is an inviolable social institution and the
foundation of the family6 that the State cherishes and protects. While the Court
commisserates with petitioner in her unhappy marital relationship with respondent, totally
terminating that relationship, however, may not necessarily be the fitting denouement to it.
In these cases, the law has not quite given up, neither should we.

WHEREFORE, the herein petition is DENIED. No costs.

SO ORDERED.
G.R. No. 188289 August 20, 2014

DAVID A. NOVERAS, Petitioner,

vs.
LETICIA T. NOVERAS, Respondent.

DECISION

PEREZ, J.:

Before the Court is a petition for review assailing the 9 May 2008 Decision 1 of the Court of
Appeals in CA-G.R .. CV No. 88686, which affirmed in part the 8 December 2006 Decision2 of
the Regional Trial Court (RTC) of Baler, Aurora, Branch 96.

The factual antecedents are as follow:

David A. Noveras (David) and Leticia T. Noveras (Leticia) were married on 3 December 1988
in Quezon City, Philippines. They resided in California, United States of America (USA) where
they eventually acquired American citizenship. They then begot two children, namely:
Jerome T.

Noveras, who was born on 4 November 1990 and JenaT. Noveras, born on 2 May 1993.
David was engaged in courier service business while Leticia worked as a nurse in San
Francisco, California.

During the marriage, they acquired the following properties in the Philippines and in the
USA:

PHILIPPINES

PROPERTY FAIR MARKET VALUE

House and Lot with an area of 150 sq. m. ₱1,693,125.00

located at 1085 Norma Street, Sampaloc,
Manila (Sampaloc property)

Agricultural land with an area of 20,742 ₱400,000.00

sq. m. located at Laboy, Dipaculao, Aurora

A parcel of land with an area of 2.5 ₱490,000.00

hectares located at Maria Aurora, Aurora
3
A parcel of land with an area of 175 sq.m. ₱175,000.00
located at Sabang Baler, Aurora

3-has. coconut plantation in San Joaquin ₱750,000.00

Maria Aurora, Aurora

USA
 PROPERTY FAIR MARKET VALUE

House and Lot at 1155 Hanover Street,

Daly City, California

$550,000.00
(unpaid debt of
$285,000.00)

Furniture and furnishings $3,000

Jewelries (ring and watch) $9,000

2000 Nissan Frontier 4x4 pickup truck $13,770.00

Bank of America Checking Account $8,000

Bank of America Cash Deposit

Life Insurance (Cash Value) $100,000.00

4
Retirement, pension, profit-sharing, $56,228.00
annuities

The Sampaloc property used to beowned by David’s parents. The parties herein secured a
loan from a bank and mortgaged the property. When said property was about to be
foreclosed, the couple paid a total of ₱1.5 Million for the redemption of the same.

Due to business reverses, David left the USA and returned to the Philippines in 2001. In
December 2002,Leticia executed a Special Power of Attorney (SPA) authorizing David to sell
the Sampaloc property for ₱2.2 Million. According to Leticia, sometime in September 2003,
David abandoned his family and lived with Estrellita Martinez in Aurora province. Leticia
claimed that David agreed toand executed a Joint Affidavit with Leticia in the presence of
David’s father, Atty. Isaias Noveras, on 3 December 2003 stating that: 1) the ₱1.1Million
proceeds from the sale of the Sampaloc property shall be paid to and collected by Leticia; 2)
that David shall return and pay to Leticia ₱750,000.00, which is equivalent to half of the
amount of the redemption price of the Sampaloc property; and 3) that David shall renounce
and forfeit all his rights and interest in the conjugal and real properties situated in the
Philippines.5 David was able to collect ₱1,790,000.00 from the sale of the Sampaloc
property, leaving an unpaid balance of ₱410,000.00.

Upon learning that David had an extra-marital affair, Leticia filed a petition for divorce with
the Superior Court of California, County of San Mateo, USA. The California court granted the
divorce on 24 June 2005 and judgment was duly entered on 29 June 2005. 6 The California
court granted to Leticia the custody of her two children, as well as all the couple’s
properties in the USA.7

On 8 August 2005, Leticia filed a petition for Judicial Separation of Conjugal Property before
the RTC of Baler, Aurora. She relied on the 3 December 2003 Joint Affidavit and David’s
failure to comply with his obligation under the same. She prayed for: 1) the power to
administer all conjugal properties in the Philippines; 2) David and his partner to cease and
desist from selling the subject conjugal properties; 3) the declaration that all conjugal
properties be forfeited in favor of her children; 4) David to remit half of the purchase price
as share of Leticia from the sale of the Sampaloc property; and 5) the payment of₱50,000.00
and ₱100,000.00 litigation expenses.8

In his Answer, David stated that a judgment for the dissolution of their marriage was
entered on 29 June 2005 by the Superior Court of California, County of San Mateo. He
demanded that the conjugal partnership properties, which also include the USA properties,
be liquidated and that all expenses of liquidation, including attorney’s fees of both parties
be charged against the conjugal partnership.9

The RTC of Baler, Aurora simplified the issues as follow:

1. Whether or not respondent David A. Noveras committed acts of abandonment

and marital infidelity which can result intothe forfeiture of the parties’ properties in
favor of the petitioner and their two (2) children.

2. Whether or not the Court has jurisdiction over the properties in California, U.S.A.
and the same can be included in the judicial separation prayed for.

3. Whether or not the "Joint Affidavit" x x x executed by petitioner Leticia T. Noveras

and respondent David A. Noveras will amount to a waiver or forfeiture of the latter’s
property rights over their conjugal properties.

4. Whether or not Leticia T. Noveras isentitled to reimbursement of onehalf of the

₱2.2 [M]illion sales proceeds of their property in Sampaloc, Manila and one-half of
the ₱1.5 [M]illion used to redeem the property of Atty. Isaias Noveras, including
interests and charges.

5. How the absolute community properties should be distributed.

6. Whether or not the attorney’s feesand litigation expenses of the parties were
chargeable against their conjugal properties.

Corollary to the aboveis the issue of:

Whether or not the two common children of the parties are entitled to support and
presumptive legitimes.10

On 8 December 2006, the RTC rendered judgment as follows:

1. The absolute community of property of the parties is hereby declared DISSOLVED;

2. The net assets of the absolute community of property ofthe parties in the
Philippines are hereby ordered to be awarded to respondent David A. Noveras only,
with the properties in the United States of America remaining in the sole ownership
of petitioner Leticia Noveras a.k.a. Leticia Tacbiana pursuant to the divorce decree
 issuedby the Superior Court of California, County of San Mateo, United States of
America, dissolving the marriage of the parties as of June 24, 2005. The titles
presently covering said properties shall be cancelled and new titles be issued in the
name of the party to whom said properties are awarded;

3. One-half of the properties awarded to respondent David A. Noveras in the

preceding paragraph are hereby given to Jerome and Jena, his two minor children
with petitioner LeticiaNoveras a.k.a. Leticia Tacbiana as their presumptive legitimes
and said legitimes must be annotated on the titles covering the said properties.Their
share in the income from these properties shall be remitted to them annually by the
respondent within the first half of January of each year, starting January 2008;

4. One-half of the properties in the United States of America awarded to petitioner

Leticia Noveras a.k.a. Leticia Tacbiana in paragraph 2 are hereby given to Jerome and
Jena, her two minor children with respondent David A. Noveras as their presumptive
legitimes and said legitimes must be annotated on the titles/documents covering the
said properties. Their share in the income from these properties, if any, shall be
remitted to them annually by the petitioner within the first half of January of each
year, starting January 2008;

5. For the support of their two (2) minor children, Jerome and Jena, respondent
David A. Noveras shall give them US$100.00 as monthly allowance in addition to
their income from their presumptive legitimes, while petitioner Leticia Tacbiana shall
take care of their food, clothing, education and other needs while they are in her
custody in the USA. The monthly allowance due from the respondent shall be
increased in the future as the needs of the children require and his financial capacity
can afford;

6. Of the unpaid amount of ₱410,000.00 on the purchase price of the Sampaloc

property, the Paringit Spouses are hereby ordered to pay ₱5,000.00 to respondent
David A. Noveras and ₱405,000.00 to the two children. The share of the respondent
may be paid to him directly but the share of the two children shall be deposited with
a local bank in Baler, Aurora, in a joint account tobe taken out in their names,
withdrawal from which shall only be made by them or by their representative duly
authorized with a Special Power of Attorney. Such payment/deposit shall be made
withinthe period of thirty (30) days after receipt of a copy of this Decision, with the
passbook of the joint account to be submitted to the custody of the Clerk of Court of
this Court within the same period. Said passbook can be withdrawn from the Clerk of
Court only by the children or their attorney-in-fact; and

7. The litigation expenses and attorney’s fees incurred by the parties shall be
shouldered by them individually.11

The trial court recognized that since the parties are US citizens, the laws that cover their
legal and personalstatus are those of the USA. With respect to their marriage, the parties
are divorced by virtue of the decree of dissolution of their marriage issued by the Superior
Court of California, County of San Mateo on 24June 2005. Under their law, the parties’
marriage had already been dissolved. Thus, the trial court considered the petition filed by
Leticia as one for liquidation of the absolute community of property regime with the
determination of the legitimes, support and custody of the children, instead of an action for
judicial separation of conjugal property.

With respect to their property relations, the trial court first classified their property regime
as absolute community of property because they did not execute any marriage settlement
before the solemnization of their marriage pursuant to Article 75 of the Family Code. Then,
the trial court ruled that in accordance with the doctrine of processual presumption,
Philippine law should apply because the court cannot take judicial notice of the US law since
the parties did not submit any proof of their national law. The trial court held that as the
instant petition does not fall under the provisions of the law for the grant of judicial
separation of properties, the absolute community properties cannot beforfeited in favor of
Leticia and her children. Moreover, the trial court observed that Leticia failed to prove
abandonment and infidelity with preponderant evidence.

The trial court however ruled that Leticia is not entitled to the reimbursements she is
praying for considering that she already acquired all of the properties in the USA. Relying
still on the principle of equity, the Court also adjudicated the Philippine properties to David,
subject to the payment of the children’s presumptive legitimes. The trial court held that
under Article 89 of the Family Code, the waiver or renunciation made by David of his
property rights in the Joint Affidavit is void.

On appeal, the Court of Appeals modified the trial court’s Decision by directing the equal
division of the Philippine properties between the spouses. Moreover with respect to the
common children’s presumptive legitime, the appellate court ordered both spouses to each
pay their children the amount of ₱520,000.00, thus:

WHEREFORE, the instant appeal is PARTLY GRANTED. Numbers 2, 4 and 6 of the

assailedDecision dated December 8, 2006 of Branch 96, RTC of Baler, Aurora Province, in
Civil Case No. 828 are hereby MODIFIED to read as follows:

2. The net assets of the absolute community of property of the parties in the
Philippines are hereby divided equally between petitioner Leticia Noveras a.k.a.
Leticia Tacbiana (sic) and respondent David A. Noveras;

xxx

4. One-half of the properties awarded to petitioner Leticia Tacbiana (sic) in

paragraph 2 shall pertain to her minor children, Jerome and Jena, as their
presumptive legitimes which shall be annotated on the titles/documents covering
the said properties. Their share in the income therefrom, if any, shall be remitted to
them by petitioner annually within the first half of January, starting 2008;

xxx

6. Respondent David A. Noveras and petitioner Leticia Tacbiana (sic) are each
ordered to pay the amount of₱520,000.00 to their two children, Jerome and Jena, as
 their presumptive legitimes from the sale of the Sampaloc property inclusive of the
receivables therefrom, which shall be deposited to a local bank of Baler, Aurora,
under a joint account in the latter’s names. The payment/deposit shall be made
within a period of thirty (30) days from receipt ofa copy of this Decision and the
corresponding passbook entrusted to the custody ofthe Clerk of Court a quowithin
the same period, withdrawable only by the children or their attorney-in-fact.

A number 8 is hereby added, which shall read as follows:

8. Respondent David A. Noveras is hereby ordered to pay petitioner Leticia Tacbiana

(sic) the amount of ₱1,040,000.00 representing her share in the proceeds from the
sale of the Sampaloc property.

The last paragraph shall read as follows:

Send a copy of this Decision to the local civil registry of Baler, Aurora; the local civil registry
of Quezon City; the Civil RegistrarGeneral, National Statistics Office, Vibal Building, Times
Street corner EDSA, Quezon City; the Office of the Registry of Deeds for the Province of
Aurora; and to the children, Jerome Noveras and Jena Noveras.

The rest of the Decision is AFFIRMED.12

In the present petition, David insists that the Court of Appeals should have recognized the
California Judgment which awarded the Philippine properties to him because said judgment
was part of the pleading presented and offered in evidence before the trial court. David
argues that allowing Leticia to share in the Philippine properties is tantamount to unjust
enrichment in favor of Leticia considering that the latter was already granted all US
properties by the California court.

In summary and review, the basic facts are: David and Leticia are US citizens who own
properties in the USA and in the Philippines. Leticia obtained a decree of divorce from the
Superior Court of California in June 2005 wherein the court awarded all the properties in the
USA to Leticia. With respect to their properties in the Philippines, Leticiafiled a petition for
judicial separation ofconjugal properties.

At the outset, the trial court erred in recognizing the divorce decree which severed the bond
of marriage between the parties. In Corpuz v. Sto. Tomas,13 we stated that:

The starting point in any recognition of a foreign divorce judgment is the acknowledgment
that our courts do not take judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect within its dominion to a
judgment rendered by a tribunal of another country." This means that the foreign judgment
and its authenticity must beproven as facts under our rules on evidence, together with the
alien’s applicable national law to show the effect of the judgment on the alien himself or
herself. The recognition may be made in an action instituted specifically for the purpose or
in another action where a party invokes the foreign decree as an integral aspect of his claim
or defense.14
The requirements of presenting the foreign divorce decree and the national law of the
foreigner must comply with our Rules of Evidence. Specifically, for Philippine courts to
recognize a foreign judgment relating to the status of a marriage, a copy of the foreign
judgment may be admitted in evidence and proven as a fact under Rule 132, Sections 24
and 25, in relation to Rule 39, Section 48(b) of the Rules of Court. 15

Under Section 24 of Rule 132, the record of public documents of a sovereign authority or
tribunal may be proved by: (1) an official publication thereof or (2) a copy attested by the
officer having the legal custody thereof. Such official publication or copy must
beaccompanied, if the record is not kept in the Philippines, with a certificate that the
attesting officer has the legal custody thereof. The certificate may be issued by any of the
authorized Philippine embassy or consular officials stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office. The attestation must state, in
substance, that the copy is a correct copy of the original, or a specific part thereof, asthe
case may be, and must be under the official seal of the attesting officer.

Section 25 of the same Rule states that whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if hebe
the clerk of a court having a seal, under the seal of such court.

Based on the records, only the divorce decree was presented in evidence. The required
certificates to prove its authenticity, as well as the pertinent California law on divorce were
not presented.

It may be noted that in Bayot v. Court of Appeals,16 we relaxed the requirement on

certification where we held that "[petitioner therein] was clearly an American citizenwhen
she secured the divorce and that divorce is recognized and allowed in any of the States of
the Union, the presentation of a copy of foreign divorce decree duly authenticatedby the
foreign court issuing said decree is, as here, sufficient." In this case however, it appears that
there is no seal from the office where the divorce decree was obtained.

Even if we apply the doctrine of processual presumption17 as the lower courts did with
respect to the property regime of the parties, the recognition of divorce is entirely a
different matter because, to begin with, divorce is not recognized between Filipino citizens
in the Philippines. Absent a valid recognition of the divorce decree, it follows that the
parties are still legally married in the Philippines. The trial court thus erred in proceeding
directly to liquidation.

As a general rule, any modification in the marriage settlements must be made before the
celebration of marriage. An exception to this rule is allowed provided that the modification
isjudicially approved and refers only to the instances provided in Articles 66,67, 128, 135
and 136 of the Family Code.18

Leticia anchored the filing of the instant petition for judicial separation of property on
paragraphs 4 and 6 of Article 135 of the Family Code, to wit:
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries
with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority ofthe spouse of petitioner has been decreed by
the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply
with his or her obligations to the family as provided for in Article 101;

(5) That the spouse granted the power of administration in the marriage settlements
has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at
least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2), and (3), the presentation of the final judgment
against the guiltyor absent spouse shall be enough basis for the grant of the decree
ofjudicial separation of property. (Emphasis supplied).

The trial court had categorically ruled that there was no abandonment in this case to
necessitate judicial separation of properties under paragraph 4 of Article 135 of the Family
Code. The trial court ratiocinated:

Moreover, abandonment, under Article 101 of the Family Code quoted above, must be for a
valid cause and the spouse is deemed to have abandoned the other when he/she has left
the conjugal dwelling without intention of returning. The intention of not returning is prima
facie presumed if the allegedly [sic] abandoning spouse failed to give any information as to
his or her whereabouts within the period of three months from such abandonment.

In the instant case, the petitioner knows that the respondent has returned to and stayed at
his hometown in Maria Aurora, Philippines, as she even went several times to visit him
there after the alleged abandonment. Also, the respondent has been going back to the USA
to visit her and their children until the relations between them worsened. The last visit of
said respondent was in October 2004 when he and the petitioner discussed the filing by the
latter of a petition for dissolution of marriage with the California court. Such turn for the
worse of their relationship and the filing of the saidpetition can also be considered as valid
causes for the respondent to stay in the Philippines.19

Separation in fact for one year as a ground to grant a judicial separation of property was not
tackled in the trial court’s decision because, the trial court erroneously treated the petition
as liquidation of the absolute community of properties.
The records of this case are replete with evidence that Leticia and David had indeed
separated for more than a year and that reconciliation is highly improbable. First, while
actual abandonment had not been proven, it is undisputed that the spouses had been living
separately since 2003 when David decided to go back to the Philippines to set up his own
business. Second, Leticia heard from her friends that David has been cohabiting with
Estrellita Martinez, who represented herself as Estrellita Noveras. Editha Apolonio, who
worked in the hospital where David was once confined, testified that she saw the name of
Estrellita listed as the wife of David in the Consent for Operation form.20Third and more
significantly, they had filed for divorce and it was granted by the California court in June
2005.

Having established that Leticia and David had actually separated for at least one year, the
petition for judicial separation of absolute community of property should be granted.

The grant of the judicial separation of the absolute community property automatically
dissolves the absolute community regime, as stated in the 4th paragraph of Article 99 ofthe
Family Code, thus:

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under Articles 134
to 138. (Emphasis supplied).

Under Article 102 of the same Code, liquidation follows the dissolution of the absolute
community regime and the following procedure should apply:

Art. 102. Upon dissolution of the absolute community regime, the following procedure shall
apply:

(1) An inventory shall be prepared, listing separately all the properties of the
absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its
assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for
the unpaid balance with their separate properties in accordance with the provisions
of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute
its net assets, which shall be divided equally between husband and wife, unless a
 different proportion or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided in this Code. For
purposes of computing the net profits subject to forfeiture in accordance with
Articles 43, No. (2) and 63, No. (2),the said profits shall be the increase in value
between the market value of the community property at the time of the celebration
of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon
partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties,
the conjugal dwelling and the lot on which it is situated shall be adjudicated tothe
spouse with whom the majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children. At the risk of being
repetitious, we will not remand the case to the trial court. Instead, we shall adopt
the modifications made by the Court of Appeals on the trial court’s Decision with
respect to liquidation.

We agree with the appellate court that the Philippine courts did not acquire jurisdiction
over the California properties of David and Leticia. Indeed, Article 16 of the Civil Code clearly
states that real property as well as personal property is subject to the law of the country
where it is situated. Thus, liquidation shall only be limited to the Philippine properties.

We affirm the modification madeby the Court of Appeals with respect to the share of the
spouses in the absolutecommunity properties in the Philippines, as well as the payment of
their children’s presumptive legitimes, which the appellate court explained in this wise:

Leticia and David shall likewise have an equal share in the proceeds of the Sampaloc
property.1âwphi1 While both claimed to have contributed to the redemption of the
Noveras property, absent a clear showing where their contributions came from, the same is
presumed to have come from the community property. Thus, Leticia is not entitled to
reimbursement of half of the redemption money.

David's allegation that he used part of the proceeds from the sale of the Sampaloc property
for the benefit of the absolute community cannot be given full credence. Only the amount
of ₱120,000.00 incurred in going to and from the U.S.A. may be charged thereto. Election
expenses in the amount of ₱300,000.00 when he ran as municipal councilor cannot be
allowed in the absence of receipts or at least the Statement of Contributions and
Expenditures required under Section 14 of Republic Act No. 7166 duly received by the
Commission on Elections. Likewise, expenses incurred to settle the criminal case of his
personal driver is not deductible as the same had not benefited the family. In sum, Leticia
and David shall share equally in the proceeds of the sale net of the amount of ₱120,000.00
or in the respective amounts of ₱1,040,000.00.

xxxx
Under the first paragraph of Article 888 of the Civil Code, "(t)he legitime of legitimate
children and descendants consists of one-half or the hereditary estate of the father and of
the mother." The children arc therefore entitled to half of the share of each spouse in the
net assets of the absolute community, which shall be annotated on the titles/documents
covering the same, as well as to their respective shares in the net proceeds from the sale of
the Sampaloc property including the receivables from Sps. Paringit in the amount of
₱410,000.00. Consequently, David and Leticia should each pay them the amount of
₱520,000.00 as their presumptive legitimes therefrom.21

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA
G.R. CV No. 88686 is AFFIRMED.

SO ORDERED.
G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M.

Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a
report dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila
where he was pronounced dead on arrival (DOA) by the attending physician, Dr.
Errol de Yzo[,] at around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A.
Juego together with Jessie Jaluag and Delso Destajo [were] performing their work as
carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower
Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters
by 2 meters wide with pinulid plywood flooring and cable wires attached to its four
corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which
was merely inserted to connect the chain block with the [p]latform, got loose xxx
causing the whole [p]latform assembly and the victim to fall down to the basement
of the elevator core, Tower D of the building under construction thereby crushing
the victim of death, save his two (2) companions who luckily jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he
was then on board and performing work, fell. And the falling of the [p]latform was
due to the removal or getting loose of the pin which was merely inserted to the
connecting points of the chain block and [p]latform but without a safety lock. 1

On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widow’s prior availment of the benefits from the State
Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as

follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

 3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

• THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

• THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF
PETITIONER.

• THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

• THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official
records, is an exception to the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of
his personal knowledge, that is, which are derived from his perception. 4 A witness,
therefore, may not testify as what he merely learned from others either because he was
told or read or heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements. 6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources
of error and untrustworthiness, which lie underneath the bare untested assertion of a
witness, may be best brought to light and exposed by the test of cross-examiantion.7 The
hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:
 Entries in official records made in the performance of his duty made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law are prima facieevidence of the facts
therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially
enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by
him stated, which must have been acquired by him personally or through official
information.

The CA held that the police report meets all these requisites. Petitioner contends that the
last requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified
before the trial court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation
Report, the officer who signed the fire report also testified before the trial court. This Court
held that the report was inadmissible for the purpose of proving the truth of the statements
contained in the report but admissible insofar as it constitutes part of the testimony of the
officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal knowledge
or which consisted of his perceptions and conclusions were not hearsay. The rest of
the report, such as the summary of the statements of the parties based on their
sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer [as part of the testimony of Major
Enriquez], may then be considered as independently relevant statements which were
gathered in the course of the investigation and may thus be admitted as such, but
not necessarily to prove the truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has
been made is relevant, the hearsay rule does not apply, but the statement
may be shown. Evidence as to the making of such statement is not secondary
but primary, for the statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report
and made himself available for cross-examination by the adverse party, the Report,
insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
 Properly understood, this section does away with the testimony in open court of the
officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon v.
Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties
to declare as a witness are numberless. The public officers are few in whose
daily work something is not done in which testimony is not needed from
official sources. Were there no exception for official statements, hosts of
officials would be found devoting the greater part of their time to attending
as witnesses in court or delivering deposition before an officer. The work of
administration of government and the interest of the public having business
with officials would alike suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such documents, which is not
extended to private documents. (3 Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes

they will discharge their several trusts with accuracy and fidelity; and,
therefore, whatever acts they do in discharge of their duty may be given in
evidence and shall be taken to be true under such a degree of caution as to
the nature and circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented
to testify on his report. In that case the applicability of Section 44 of Rule 143 would
have been ripe for determination, and this Court would have agreed with the Court
of Appeals that said report was inadmissible since the aforementioned third
requisite was not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being no showing
that, at the very least, they were under a duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of
the statements contained therein but is admissible insofar as it constitutes part of the
testimony of PO3 Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator
crash. PO3 Villanueva had seen Juego’s remains at the morgue, 12 making the latter’s death
beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the
building the day after the incident13 and saw the platform for himself.14 He observed that
the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required
Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he
noticed that the chain was detached from the lifting machine, without any pin or bolt. 17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause
of the fall of the platform was the loosening of the bolt from the chain block. It is claimed
that such portion of the testimony is mere opinion. Subject to certain exceptions, 18 the
opinion of a witness is generally not admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that
the mere fall of the elevator was a result of the person having charge of the instrumentality
was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of negligence. 20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference or
presumption that it was due to negligence on defendant’s part, under the doctrine
of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself,
or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at
least permit an inference of negligence on the part of the defendant, or some other
person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would
not happen if those who had its control or management used proper care, there is
sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused by the
defendant’s want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is
absent or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in
charge of the instrumentality which causes the injury either knows the cause of the
accident or has the best opportunity of ascertaining it and that the plaintiff has no
such knowledge, and therefore is compelled to allege negligence in general terms
and to rely upon the proof of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a
plaintiff, without knowledge of the cause, reaches over to defendant who knows or
should know the cause, for any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine,
 another court has said, is a rule of necessity, in that it proceeds on the theory that
under the peculiar circumstances in which the doctrine is applicable, it is within the
power of the defendant to show that there was no negligence on his part, and direct
proof of defendant’s negligence is beyond plaintiff’s power. Accordingly, some court
add to the three prerequisites for the application of the res ipsa loquitur doctrine the
further requirement that for the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of knowledge as to the cause of
the accident, or that the party to be charged with negligence has superior
knowledge or opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a
building to the basement while he was working with appellant’s construction
project, resulting to his death. The construction site is within the exclusive control
and management of appellant. It has a safety engineer, a project superintendent, a
carpenter leadman and others who are in complete control of the situation therein.
The circumstances of any accident that would occur therein are peculiarly within the
knowledge of the appellant or its employees. On the other hand, the appellee is not
in a position to know what caused the accident. Res ipsa loquitur is a rule of
necessity and it applies where evidence is absent or not readily available, provided
the following requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which
caused the injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that
likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence
was attributed to the appellee’s deceased husband[;] thus[,] the last requisite is also
present. All the requisites for the application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference of appellant’s negligence
arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa
loquitur, but argues that the presumption or inference that it was negligent did not arise
since it "proved that it exercised due care to avoid the accident which befell respondent’s
husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated

earlier, the defendant’s negligence is presumed or inferred25 when the plaintiff establishes
the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima
facie case of all the elements, the burden then shifts to defendant to explain.26 The
presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances disputable presumption, such as that of due care or innocence,
may outweigh the inference.27 It is not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising. Evidence by the defendant of say, due
care, comes into play only after the circumstances for the application of the doctrine has
been established.1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed
before the police investigator as evidence of its due care. According to Fabro’s sworn
statement, the company enacted rules and regulations for the safety and security of its
workers. Moreover, the leadman and the bodegero inspect the chain block before allowing
its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioner’s
employees, also assails the same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness
stand to testify thereon.28 The inadmissibility of this sort of evidence is based not only on
the lack of opportunity on the part of the adverse party to cross-examine the affiant, but
also on the commonly known fact that, generally, an affidavit is not prepared by the affiant
himself but by another who uses his own language in writing the affiant’s statements which
may either be omitted or misunderstood by the one writing them. 29 Petitioner, therefore,
cannot use said statement as proof of its due care any more than private respondent can
use it to prove the cause of her husband’s death. Regrettably, petitioner does not cite any
other evidence to rebut the inference or presumption of negligence arising from the
application of res ipsa loquitur, or to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the
deceased’s employer damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to
receive damages on behalf of the employee or his dependents. The payment of
compensation under this Title shall not bar the recovery of benefits as provided for
in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as
amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and
other laws whose benefits are administered by the System or by other agencies of
the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation
Act, provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as
well as under the Civil Code used to be the subject of conflicting decisions. The Court finally
settled the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in
resulting in the death of the employees of the Philex Mining Corporation. Alleging that the
mining corporation, in violation of government rules and regulations, failed to take the
required precautions for the protection of the employees, the heirs of the deceased
employees filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon
motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs
sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in
case of death have a right of selection or choice of action between availing
themselves of the worker’s right under the Workmen’s Compensation Act and suing
in the regular courts under the Civil Code for higher damages (actual, moral and
exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmen’s Compensation Act and sue in addition
for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32
SCRA 442, ruled that an injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmen’s Compensation Act or to
prosecute an ordinary civil action against the tortfeasor for higher damages but he
cannot pursue both courses of action simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their
suit under the Civil Code despite having availed of the benefits provided under the
Workmen’s Compensation Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and
Saturnino submitted notices and claims for compensation to the Regional Office No.
1 of the then Department of Labor and all of them have been paid in full as of August
25, 1967, except Saturnino Martinez whose heirs decided that they be paid in
 installments x x x. Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but
they set up the defense that the claims were filed under the Workmen’s
Compensation Act before they learned of the official report of the committee
created to investigate the accident which established the criminal negligence and
violation of law by Philex, and which report was forwarded by the Director of Mines
to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after
receiving compensation under the Act. Had petitioners been aware of said violation
of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmen’s Compensation Commission which
awarded a lesser amount for compensation. The choice of the first remedy was
based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid
before the lower court, the payments made under the Workmen’s Compensation
Act should be deducted from the damages that may be decreed in their favor.
[Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining
Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who had
been paid under the Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the
course of their employment could be filed only under the Workmen’s Compensation
Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine
was abrogated in favor of the new rule that the claimants may invoke either the
Workmen’s Compensation Act or the provisions of the Civil Code, subject to the
consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for
additional benefits under the other remedy. The exception is where a claimant who
has already been paid under the Workmen’s Compensation Act may still sue for
damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death
benefits from the State Insurance Fund. Private respondent filed the civil complaint for
damages after she received a copy of the police investigation report and the Prosecutor’s
Memorandum dismissing the criminal complaint against petitioner’s personnel. While
stating that there was no negligence attributable to the respondents in the complaint, the
prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of

appellant as early as November 25, 1990, the date of the police investigator’s report.
The appellee merely executed her sworn statement before the police investigator
concerning her personal circumstances, her relation to the victim, and her
knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant’s employees. It was the investigator who
recommended the filing of said case and his supervisor referred the same to the
prosecutor’s office. This is a standard operating procedure for police investigators
which appellee may not have even known. This may explain why no complainant is
mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are
being charged by complainant of "Simple Negligence Resulting to Homicide." It is
also possible that the appellee did not have a chance to appear before the public
prosecutor as can be inferred from the following statement in said memorandum:
"Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to
summon the appellee. Hence, notice of appellant’s negligence cannot be imputed on
appellee before she applied for death benefits under ECC or before she received the
first payment therefrom. Her using the police investigation report to support her
complaint filed on May 9, 1991 may just be an afterthought after receiving a copy of
the February 6, 1991 Memorandum of the Prosecutor’s Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of
the victim is not attributable to any negligence on the part of the respondents. If at
all and as shown by the records this case is civil in nature." (Underscoring supplied.)
Considering the foregoing, We are more inclined to believe appellee’s allegation that
she learned about appellant’s negligence only after she applied for and received the
benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her
rights as well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school
for her educational attainment; that she did not know what damages could be
recovered from the death of her husband; and that she did not know that she may
also recover more from the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to
allege in her complaint that her application and receipt of benefits from the ECC were
attended by ignorance or mistake of fact. Not being an issue submitted during the trial, the
trial court had no authority to hear or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts
because as early as November 28, 1990, private respondent was the complainant in a
criminal complaint for "Simple Negligence Resulting to Homicide" against petitioner’s
employees. On February 6, 1991, two months before the filing of the action in the lower
court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient
evidence against petitioner’s employees, the case was "civil in nature." These purportedly
show that prior to her receipt of death benefits from the ECC on January 2, 1991 and every
month thereafter, private respondent also knew of the two choices of remedies available to
her and yet she chose to claim and receive the benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent
remedies, the election is final and bars any action, suit, or proceeding inconsistent with the
elected remedy, in the absence of fraud by the other party. The first act of election acts as a
bar.37 Equitable in nature, the doctrine of election of remedies is designed to mitigate
possible unfairness to both parties. It rests on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the doctrine is not to prevent any recourse to
any remedy, but to prevent a double redress for a single wrong. 38

The choice of a party between inconsistent remedies results in a waiver by election. Hence,
the rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor
Code and prosecute an ordinary course of action under the Civil Code. The claimant, by his
choice of one remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its
rights, but chooses not to assert them. It must be generally shown by the party
claiming a waiver that the person against whom the waiver is asserted had at the
time knowledge, actual or constructive, of the existence of the party’s rights or of all
material facts upon which they depended. Where one lacks knowledge of a right,
there is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given under a
mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a
right exists and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived,
with an awareness of its consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to
allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous
for petitioner to burden private respondent with raising waiver as an issue. On the contrary,
it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its
Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded
waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband’s
death and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this
case, the "fact" that served as a basis for nullifying the waiver is the negligence of
petitioner’s employees, of which private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was
the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter,
however, is not a fact, but a conclusion of law, over which only the courts have the final say.
Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that
the principle that ignorance or mistake of fact nullifies a waiver has been misapplied
in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the
elevator crash when on November 15, 1990 she accomplished her application for benefits
from the ECC. The police investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her behalf on November 27,
1990.

There is also no showing that private respondent knew of the remedies available to her
when the claim before the ECC was filed. On the contrary, private respondent testified that
she was not aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law
excuses no one from compliance therewith. As judicial decisions applying or interpreting the
laws or the Constitution form part of the Philippine legal system (Article 8, Civil Code),
private respondent cannot claim ignorance of this Court’s ruling in Floresca allowing a
choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and
prohibitory laws.42 This may be deduced from the language of the provision, which,
notwithstanding a person’s ignorance, does not excuse his or her compliance with the laws.
The rule in Floresca allowing private respondent a choice of remedies is neither mandatory
nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not
indicate the total amount private respondent ought to receive from the ECC, although it
appears from Exhibit "K"43 that she received P3,581.85 as initial payment representing the
accrued pension from November 1990 to March 1991. Her initial monthly pension,
according to the same Exhibit "K," was P596.97 and present total monthly pension was
P716.40. Whether the total amount she will eventually receive from the ECC is less than the
sum of P644,000.00 in total damages awarded by the trial court is subject to speculation,
and the case is remanded to the trial court for such determination. Should the trial court
find that its award is greater than that of the ECC, payments already received by private
respondent under the Labor Code shall be deducted from the trial court'’ award of
damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the ECC, payments already made
to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other
respects, the Decision of the Court of Appeals is AFFIRMED.
G.R. No. 169766 March 30, 2011

ESTRELLITA JULIANO-LLAVE, Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, HAJA PUTRI ZORAYDA A. TAMANO and ADIB AHMAD A.
TAMANO,Respondents.

DECISION

DEL CASTILLO, J.:

A new law ought to affect the future, not what is past. Hence, in the case of subsequent
marriage laws, no vested rights shall be impaired that pertain to the protection of the
legitimate union of a married couple.

This petition for review on certiorari assails the Decision1 dated August 17, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No. 61762 and its subsequent Resolution2 dated
September 13, 2005, which affirmed the Decision of the Regional Trial Court (RTC) of
Quezon City, Branch 89 declaring petitioner Estrellita Juliano-Llave’s (Estrellita) marriage to
Sen. Mamintal A.J. Tamano (Sen. Tamano) as void ab initio.

Factual Antecedents

Around 11 months before his death, Sen. Tamano married Estrellita twice – initially under
the Islamic laws and tradition on May 27, 1993 in Cotabato City3 and, subsequently, under a
civil ceremony officiated by an RTC Judge at Malabang, Lanao del Sur on June 2, 1993. 4 In
their marriage contracts, Sen. Tamano’s civil status was indicated as ‘divorced.’

Since then, Estrellita has been representing herself to the whole world as Sen. Tamano’s
wife, and upon his death, his widow.

On November 23, 1994, private respondents Haja Putri Zorayda A. Tamano (Zorayda) and
her son Adib Ahmad A. Tamano (Adib), in their own behalf and in behalf of the rest of Sen.
Tamano’s legitimate children with Zorayda,5 filed a complaint with the RTC of Quezon City
for the declaration of nullity of marriage between Estrellita and Sen. Tamano for being
bigamous. The complaint6 alleged, inter alia, that Sen. Tamano married Zorayda on May 31,
1958 under civil rites, and that this marriage remained subsisting when he married Estrellita
in 1993. The complaint likewise averred that:

11. The marriage of the deceased and Complainant Zorayda, having been celebrated
under the New Civil Code, is therefore governed by this law. Based on Article 35 (4)
of the Family Code, the subsequent marriage entered into by deceased Mamintal
with Defendant Llave is void ab initio because he contracted the same while his prior
marriage to Complainant Zorayda was still subsisting, and his status being declared
as "divorced" has no factual or legal basis, because the deceased never divorced
Complainant Zorayda in his lifetime, and he could not have validly done so because
divorce is not allowed under the New Civil Code;
 11.1 Moreover, the deceased did not and could not have divorced Complainant
Zorayda by invoking the provision of P.D. 1083, otherwise known as the Code of
Muslim Personal Laws, for the simple reason that the marriage of the deceased with
Complainant Zorayda was never deemed, legally and factually, to have been one
contracted under Muslim law as provided under Art. 186 (2) of P.D. 1083, since they
(deceased and Complainant Zorayda) did not register their mutual desire to be thus
covered by this law;7

Summons was then served on Estrellita on December 19, 1994. She then asked from the
court for an extension of 30 days to file her answer to be counted from January 4,
1995,8 and again, another 15 days9 or until February 18, 1995, both of which the court
granted.10

Instead of submitting her answer, however, Estrellita filed a Motion to Dismiss 11 on

February 20, 1995 where she declared that Sen. Tamano and Zorayda are both Muslims who
were married under the Muslim rites, as had been averred in the latter’s disbarment
complaint against Sen. Tamano.12 Estrellita argued that the RTC has no jurisdiction to take
cognizance of the case because under Presidential Decree (PD) No. 1083, or the Code of
Muslim Personal Laws of the Philippines (Muslim Code), questions and issues involving
Muslim marriages and divorce fall under the exclusive jurisdiction of shari’a courts.

The trial court denied Estrellita’s motion and asserted its jurisdiction over the case for
declaration of nullity.13 Thus, Estrellita filed in November 1995 a certiorari petition with this
Court questioning the denial of her Motion to Dismiss. On December 15, 1995, we referred
the petition to the CA14 which was docketed thereat as CA-G.R. SP No. 39656.

During the pendency of CA-G.R. SP No. 39656, the RTC continued to try the case since there
can be no default in cases of declaration of nullity of marriage even if the respondent failed
to file an answer. Estrellita was allowed to participate in the trial while her opposing parties
presented their evidence. When it was Estrellita’s turn to adduce evidence, the hearings set
for such purpose15 were postponed mostly at her instance until the trial court, on March 22,
1996, suspended the proceedings16 in view of the CA’s temporary restraining order issued
on February 29, 1996, enjoining it from hearing the case.17

Eventually, however, the CA resolved the petition adverse to Estrellita in its Decision dated
September 30, 1996.18Estrellita then elevated the appellate court’s judgment to this Court
by way of a petition for review on certiorari docketed as G.R. No. 126603. 19

Subsequent to the promulgation of the CA Decision, the RTC ordered Estrellita to present
her evidence on June 26, 1997. 20 As Estrellita was indisposed on that day, the hearing was
reset to July 9, 1997.21 The day before this scheduled hearing, Estrellita again asked for a
postponement.22

Unhappy with the delays in the resolution of their case, Zorayda and Adib moved to submit
the case for decision,23reasoning that Estrellita had long been delaying the case. Estrellita
opposed, on the ground that she has not yet filed her answer as she still awaits the outcome
of G.R. No. 126603.24
On June 29, 1998, we upheld the jurisdiction of the RTC of Quezon City, 25 stating as one of
the reasons that as shari’a courts are not vested with original and exclusive jurisdiction in
cases of marriages celebrated under both the Civil Code and PD 1083, the RTC, as a court of
general jurisdiction, is not precluded from assuming jurisdiction over such cases. In our
Resolution dated August 24, 1998,26 we denied Estrellita’s motion for reconsideration27 with
finality.

A few days before this resolution, or on August 18, 1998, the RTC rendered the
aforementioned judgment declaring Estrellita’s marriage with Sen. Tamano as void ab
initio.28

Ruling of the Regional Trial Court

The RTC, finding that the marital ties of Sen. Tamano and Zorayda were never severed,
declared Sen. Tamano’s subsequent marriage to Estrellita as void ab initio for being
bigamous under Article 35 of the Family Code of the Philippines and under Article 83 of the
Civil Code of the Philippines.29 The court said:

A comparison between Exhibits A and B (supra) immediately shows that the second
marriage of the late Senator with [Estrellita] was entered into during the subsistence of his
first marriage with [Zorayda]. This renders the subsequent marriage void from the very
beginning. The fact that the late Senator declared his civil status as "divorced" will not in any
way affect the void character of the second marriage because, in this jurisdiction, divorce
obtained by the Filipino spouse is not an acceptable method of terminating the effects of a
previous marriage, especially, where the subsequent marriage was solemnized under the
Civil Code or Family Code.30

Ruling of the Court of Appeals

In her appeal,31 Estrellita argued that she was denied her right to be heard as

the RTC rendered its judgment even without waiting for the finality of the Decision of the
Supreme Court in G.R. No. 126603. She claimed that the RTC should have required her to
file her answer after the denial of her motion to dismiss. She maintained that Sen. Tamano
is capacitated to marry her as his marriage and subsequent divorce with Zorayda is
governed by the Muslim Code. Lastly, she highlighted Zorayda’s lack of legal standing to
question the validity of her marriage to the deceased.

In dismissing the appeal in its Decision dated August 17, 2004,32 the CA held that Estrellita
can no longer be allowed to file her answer as she was given ample opportunity to be heard
but simply ignored it by asking for numerous postponements. She never filed her answer
despite the lapse of around 60 days, a period longer than what was prescribed by the rules.
It also ruled that Estrellita cannot rely on her pending petition for certiorari with the higher
courts since, as an independent and original action, it does not interrupt the proceedings in
the trial court.

As to the substantive merit of the case, the CA adjudged that Estrellita’s marriage to Sen.
Tamano is void ab initio for being bigamous, reasoning that the marriage of Zorayda and
Sen. Tamano is governed by the Civil Code, which does not provide for an absolute divorce.
It noted that their first nuptial celebration was under civil rites, while the subsequent
Muslim celebration was only ceremonial. Zorayda then, according to the CA, had the legal
standing to file the action as she is Sen. Tamano’s wife and, hence, the injured party in the
senator’s subsequent bigamous marriage with Estrellita.

In its September 13, 2005 Resolution,33 the CA denied Estrellita’s Motion for
Reconsideration/Supplemental Motion for Reconsideration where it debunked the
additional errors she raised. The CA noted that the allegation of lack of the public
prosecutor’s report on the existence of collusion in violation of both Rule 9, Section 3(e) of
the Rules of Court34 and Article 48 of the Family Code35 will not invalidate the trial court’s
judgment as the proceedings between the parties had been adversarial, negating the
existence of collusion. Assuming that the issues have not been joined before the RTC, the
same is attributable to Estrellita’s refusal to file an answer. Lastly, the CA disregarded
Estrellita’s allegation that the trial court erroneously rendered its judgment way prior to our
remand to the RTC of the records of the case ratiocinating that G.R. No. 126603 pertains to
the issue on the denial of the Motion to Dismiss, and not to the issue of the validity of
Estrellita’s marriage to Sen. Tamano.

The Parties’ Respective Arguments

Reiterating her arguments before the court a quo, Estrellita now argues that the CA erred in
upholding the RTC judgment as the latter was prematurely issued, depriving her of the
opportunity to file an answer and to present her evidence to dispute the allegations against
the validity of her marriage. She claims that Judge Macias v. Macias 36laid down the rule that
the filing of a motion to dismiss instead of an answer suspends the period to file an answer
and, consequently, the trial court is obliged to suspend proceedings while her motion to
dismiss on the ground of lack of jurisdiction has not yet been resolved with finality. She
maintains that she merely participated in the RTC hearings because of the trial court’s
assurance that the proceedings will be without prejudice to whatever action the High Court
will take on her petition questioning the RTC’s jurisdiction and yet, the RTC violated this
commitment as it rendered an adverse judgment on August 18, 1998, months before the
records of G.R. No. 126603 were remanded to the CA on November 11, 1998.37 She also
questions the lack of a report of the public prosecutor anent a finding of whether there was
collusion, this being a prerequisite before further proceeding could be held when a party
has failed to file an answer in a suit for declaration of nullity of marriage.

Estrellita is also steadfast in her belief that her marriage with the late senator is valid as the
latter was already divorced under the Muslim Code at the time he married her. She asserts
that such law automatically applies to the marriage of Zorayda and the deceased without
need of registering their consent to be covered by it, as both parties are Muslims whose
marriage was solemnized under Muslim law. She pointed out that Sen. Tamano married all
his wives under Muslim rites, as attested to by the affidavits of the siblings of the
deceased.38
Lastly, Estrellita argues that Zorayda and Adib have no legal standing to file suit because
only the husband or the wife can file a complaint for the declaration of nullity of marriage
under Supreme Court Resolution A.M. No. 02-11-10-SC.39

Refuting the arguments, the Solicitor General (Sol Gen) defends the CA’s reasoning and
stresses that Estrellita was never deprived of her right to be heard; and, that filing an
original action for certiorari does not stay the proceedings of the main action before the
RTC.

As regards the alleged lack of report of the public prosecutor if there is collusion, the Sol
Gen says that this is no longer essential considering the vigorous opposition of Estrellita in
the suit that obviously shows the lack of collusion. The Sol Gen also supports private
respondents’ legal standing to challenge the validity of Estrellita’s purported marriage with
Sen. Tamano, reasoning that any proper interested party may attack directly or collaterally a
void marriage, and Zorayda and Adib have such right to file the action as they are the ones
prejudiced by the marital union.

Zorayda and Adib, on the other hand, did not file any comment.

Issues

The issues that must be resolved are the following:

1. Whether the CA erred in affirming the trial court’s judgment, even though the
latter was rendered prematurely because: a) the judgment was rendered without
waiting for the Supreme Court’s final resolution of her certiorari petition, i.e., G.R.
No. 126603; b) she has not yet filed her answer and thus was denied due process;
and c) the public prosecutor did not even conduct an investigation whether there
was collusion;

2. Whether the marriage between Estrellita and the late Sen. Tamano was bigamous;
and

3. Whether Zorayda and Adib have the legal standing to have Estrellita’s marriage
declared void ab initio.

Our Ruling

Estrellita’s refusal to file an answer eventually led to the loss of her right to answer; and her
pending petition for certiorari/review on certiorari questioning the denial of the motion to
dismiss before the higher courts does not at all suspend the trial proceedings of the
principal suit before the RTC of Quezon City.

Firstly, it can never be argued that Estrellita was deprived of her right to due process. She
was never declared in default, and she even actively participated in the trial to defend her
interest.
Estrellita invokes Judge Macias v. Macias40 to justify the suspension of the period to file an
answer and of the proceedings in the trial court until her petition for certiorari questioning
the validity of the denial of her Motion to Dismiss has been decided by this Court. In said
case, we affirmed the following reasoning of the CA which, apparently, is Estrellita’s basis
for her argument, to wit:

However, she opted to file, on April 10, 2001, a ‘Motion to Dismiss,’ instead of filing an
Answer to the complaint. The filing of said motion suspended the period for her to file her
Answer to the complaint. Until said motion is resolved by the Respondent Court with
finality, it behooved the Respondent Court to suspend the hearings of the case on the
merits. The Respondent Court, on April 19, 2001, issued its Order denying the ‘Motion to
Dismiss’ of the Petitioner. Under Section 6, Rule 16 of the 1997 Rules of Civil Procedure
[now Section 4], the Petitioner had the balance of the period provided for in Rule 11 of the
said Rules but in no case less than five (5) days computed from service on her of the
aforesaid Order of the Respondent Court within which to file her Answer to the complaint: x
x x41 (Emphasis supplied.)

Estrellita obviously misappreciated Macias. All we pronounced therein is that the trial court
is mandated to suspend trial until it finally resolves the motion to dismiss that is filed before
it. Nothing in the above excerpt states that the trial court should suspend its proceedings
should the issue of the propriety or impropriety of the motion to dismiss be raised before
the appellate courts. In Macias, the trial court failed to observe due process in the course of
the proceeding of the case because after it denied the wife’s motion to dismiss, it
immediately proceeded to allow the husband to present evidence ex parte and resolved the
case with undue haste even when, under the rules of procedure, the wife still had time to
file an answer. In the instant case, Estrellita had no time left for filing an answer, as she filed
the motion to dismiss beyond the extended period earlier granted by the trial court after
she filed motions for extension of time to file an answer.

Estrellita argues that the trial court prematurely issued its judgment, as it should have
waited first for the resolution of her Motion to Dismiss before the CA and, subsequently,
before this Court. However, in upholding the RTC, the CA correctly ruled that the pendency
of a petition for certiorari does not suspend the proceedings before the trial court. "An
application for certiorari is an independent action which is not part or a continuation of the
trial which resulted in the rendition of the judgment complained of."42 Rule 65 of the Rules
of Court is explicit in stating that "[t]he petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceeding in the case." 43 In fact,
the trial court respected the CA’s temporary restraining order and only after the CA
rendered judgment did the RTC again require Estrellita to present her evidence.

Notably, when the CA judgment was elevated to us by way of Rule 45, we never issued any
order precluding the trial court from proceeding with the principal action. With her
numerous requests for postponements, Estrellita remained obstinate in refusing to file an
answer or to present her evidence when it was her turn to do so, insisting that the trial
court should wait first for our decision in G.R. No. 126603. Her failure to file an answer and
her refusal to present her evidence were attributable only to herself and she should not be
allowed to benefit from her own dilatory tactics to the prejudice of the other party. Sans her
answer, the trial court correctly proceeded with the trial and rendered its Decision after it
deemed Estrellita to have waived her right to present her side of the story. Neither should
the lower court wait for the decision in G.R. No. 126603 to become final and executory, nor
should it wait for its records to be remanded back to it because G.R. No. 126603 involves
strictly the propriety of the Motion to Dismiss and not the issue of validity of marriage.

The Public Prosecutor issued a report as

to the non-existence of collusion.

Aside from Article 48 of the Family Code and Rule 9, Section 3(e) of the Rules of Court, the
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC)44 also requries the participation of the public prosecutor
in cases involving void marriages. It specifically mandates the prosecutor to submit his
investigation report to determine whether there is collusion between the parties:

Sec. 9. Investigation report of public prosecutor.–(1) Within one month after receipt of the
court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall
submit a report to the court stating whether the parties are in collusion and serve copies
thereof on the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the basis thereof
in his report. The parties shall file their respective comments on the finding of
collusion within ten days from receipt of a copy of the report. The court shall set the
report for hearing and if convinced that the parties are in collusion, it shall dismiss
the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the
case for pre-trial. It shall be the duty of the public prosecutor to appear for the State
at the pre-trial.

Records show that the trial court immediately directed the public prosecutor to submit the
required report,45 which we find to have been sufficiently complied with by Assistant City
Prosecutor Edgardo T. Paragua in his Manifestation dated March 30, 1995, 46 wherein he
attested that there could be no collusion between the parties and no fabrication of evidence
because Estrellita is not the spouse of any of the private respondents.

Furthermore, the lack of collusion is evident in the case at bar. Even assuming that there is a
lack of report of collusion or a lack of participation by the public prosecutor, just as we held
in Tuason v. Court of Appeals,47 the lack of participation of a fiscal does not invalidate the
proceedings in the trial court:

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation
proceedings is to determine whether collusion exists between the parties and to take care
that the evidence is not suppressed or fabricated. Petitioner's vehement opposition to the
annulment proceedings negates the conclusion that collusion existed between the parties.
There is no allegation by the petitioner that evidence was suppressed or fabricated by any
of the parties. Under these circumstances, we are convinced that the non-intervention of a
prosecuting attorney to assure lack of collusion between the contending parties is not fatal
to the validity of the proceedings in the trial court.48

The Civil Code governs the marriage of Zorayda and the late Sen. Tamano; their marriage
was never invalidated by PD 1083. Sen. Tamano’s subsequent marriage to Estrellita is void
ab initio.

The marriage between the late Sen. Tamano and Zorayda was celebrated in 1958,
solemnized under civil and Muslim rites.49 The only law in force governing marriage
relationships between Muslims and non-Muslims alike was the Civil Code of 1950, under the
provisions of which only one marriage can exist at any given time. 50 Under the marriage
provisions of the Civil Code, divorce is not recognized except during the effectivity of
Republic Act No. 39451 which was not availed of during its effectivity.

As far as Estrellita is concerned, Sen. Tamano’s prior marriage to Zorayda has been severed
by way of divorce under PD 1083,52 the law that codified Muslim personal laws. However,
PD 1083 cannot benefit Estrellita. Firstly, Article 13(1) thereof provides that the law applies
to "marriage and divorce wherein both parties are Muslims, or wherein only the male party
is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in
any part of the Philippines." But we already ruled in G.R. No. 126603 that "Article 13 of PD
1083 does not provide for a situation where the parties were married both in civil and
Muslim rites."53

Moreover, the Muslim Code took effect only on February 4, 1977, and this law cannot
retroactively override the Civil Code which already bestowed certain rights on the marriage
of Sen. Tamano and Zorayda. The former explicitly provided for the prospective application
of its provisions unless otherwise provided:

Art. 186 (1). Effect of code on past acts. —Acts executed prior to the effectivity of this Code
shall be governed by the laws in force at the time of their execution, and nothing herein
except as otherwise specifically provided, shall affect their validity or legality or operate to
extinguish any right acquired or liability incurred thereby.

It has been held that:

The foregoing provisions are consistent with the principle that all laws operate
prospectively, unless the contrary appears or is clearly, plainly and unequivocably expressed
or necessarily implied; accordingly, every case of doubt will be resolved against the
retroactive operation of laws. Article 186 aforecited enunciates the general rule of the
Muslim Code to have its provisions applied prospectively, and implicitly upholds the force
and effect of a pre-existing body of law, specifically, the Civil Code – in respect of civil acts
that took place before the Muslim Code’s enactment.54

An instance of retroactive application of the Muslim Code is Article 186(2) which states:
A marriage contracted by a Muslim male prior to the effectivity of this Code in accordance
with non-Muslim law shall be considered as one contracted under Muslim law provided the
spouses register their mutual desire to this effect.

Even granting that there was registration of mutual consent for the marriage to be
considered as one contracted under the Muslim law, the registration of mutual consent
between Zorayda and Sen. Tamano will still be ineffective, as both are Muslims whose
marriage was celebrated under both civil and Muslim laws. Besides, as we have already
settled, the Civil Code governs their personal status since this was in effect at the time of
the celebration of their marriage. In view of Sen. Tamano’s prior marriage which subsisted
at the time Estrellita married him, their subsequent marriage is correctly adjudged by the CA
as void ab initio.

Zorayda and Adib, as the injured parties, have the legal personalities to file the declaration
of nullity of marriage. A.M. No. 02-11-10-SC, which limits to only the husband or the wife
the filing of a petition for nullity is prospective in application and does not shut out the prior
spouse from filing suit if the ground is a bigamous subsequent marriage.

Her marriage covered by the Family Code of the Philippines,55 Estrellita relies on A.M. No.
02-11-10-SC which took effect on March 15, 2003 claiming that under Section 2(a) 56 thereof,
only the husband or the wife, to the exclusion of others, may file a petition for declaration
of absolute nullity, therefore only she and Sen. Tamano may directly attack the validity of
their own marriage.

Estrellita claims that only the husband or the wife in a void marriage can file a petition for
declaration of nullity of marriage. However, this interpretation does not apply if the reason
behind the petition is bigamy.

In explaining why under A.M. No. 02-11-10-SC only the spouses may file the petition to the
exclusion of compulsory or intestate heirs, we said:

The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute
Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a)
in the following manner, viz:

(1) Only an aggrieved or injured spouse may file petitions for annulment of voidable
marriages and declaration of absolute nullity of void marriages. Such petitions cannot be
filed by the compulsory or intestate heirs of the spouses or by the State. [Section 2; Section
3, paragraph a]

Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages
or declaration of absolute nullity of void marriages. Such petition cannot be filed by
compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief
that they do not have a legal right to file the petition. Compulsory or intestate heirs have
only inchoate rights prior to the death of their predecessor, and hence can only question
the validity of the marriage of the spouses upon the death of a spouse in a proceeding for
the settlement of the estate of the deceased spouse filed in the regular courts. On the other
hand, the concern of the State is to preserve marriage and not to seek its dissolution. 57
Note that the Rationale makes it clear that Section 2(a) of A.M. No. 02-11-10-SC refers to
the "aggrieved or injured spouse." If Estrellita’s interpretation is employed, the prior spouse
is unjustly precluded from filing an action. Surely, this is not what the Rule contemplated.

The subsequent spouse may only be expected to take action if he or she had only
discovered during the connubial period that the marriage was bigamous, and especially if
the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit
from the bigamous marriage, it would not be expected that they would file an action to
declare the marriage void and thus, in such circumstance, the "injured spouse" who should
be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the
aggrieved party as the bigamous marriage not only threatens the financial and the property
ownership aspect of the prior marriage but most of all, it causes an emotional burden to the
prior spouse. The subsequent marriage will always be a reminder of the infidelity of the
spouse and the disregard of the prior marriage which sanctity is protected by the
Constitution.

Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes the son from impugning the
subsequent marriage.1âwphi1 But in the case at bar, both Zorayda and Adib have legal
personalities to file an action for nullity. Albeit the Supreme Court Resolution governs
marriages celebrated under the Family Code, such is prospective in application and does not
apply to cases already commenced before March 15, 2003.58

Zorayda and Adib filed the case for declaration of nullity of Estrellita’s marriage in
November 1994. While the Family Code is silent with respect to the proper party who can
file a petition for declaration of nullity of marriage prior to A.M. No. 02-11-10-SC, it has
been held that in a void marriage, in which no marriage has taken place and cannot be the
source of rights, any interested party may attack the marriage directly or collaterally
without prescription, which may be filed even beyond the lifetime of the parties to the
marriage.59 Since A.M. No. 02-11-10-SC does not apply, Adib, as one of the children of the
deceased who has property rights as an heir, is likewise considered to be the real party in
interest in the suit he and his mother had filed since both of them stand to be benefited or
injured by the judgment in the suit.60

Since our Philippine laws protect the marital union of a couple, they should be interpreted
in a way that would preserve their respective rights which include striking down bigamous
marriages. We thus find the CA Decision correctly rendered.

WHEREFORE, the petition is DENIED. The assailed August 17, 2004 Decision of the Court of
Appeals in CA-G.R. CV No. 61762, as well as its subsequent Resolution issued on September
13, 2005, are hereby AFFIRMED.
G.R. No. 181126 June 15, 2011

LEONARDO S. UMALE, [deceased] represented by CLARISSA VICTORIA, JOHN LEO, GEORGE

LEONARD, KRISTINE, MARGUERITA ISABEL, AND MICHELLE ANGELIQUE, ALL SURNAMED
UMALE, Petitioners,
vs.
ASB REALTY CORPORATION, Respondent.

DECISION

DEL CASTILLO, J.:

Being placed under corporate rehabilitation and having a receiver appointed to carry out
the rehabilitation plan do not ipso facto deprive a corporation and its corporate officers of
the power to recover its unlawfully detained property.

Petitioners filed this Petition for Review on Certiorari 1 assailing the October 15, 2007
Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 91096, as well as its January 2, 2008
Resolution.3 The dispositive portion of the assailed Decision reads:

WHEREFORE, the Decision dated March 28, 2005 of the trial court is affirmed in toto.

SO ORDERED.4

Factual Antecedents

This case involves a parcel of land identified as Lot 7, Block 5, Amethyst Street, Ortigas
Center, Pasig City which was originally owned by Amethyst Pearl Corporation (Amethyst
Pearl), a company that is, in turn, wholly-owned by respondent ASB Realty Corporation (ASB
Realty).

In 1996, Amethyst Pearl executed a Deed of Assignment in Liquidation of the subject

premises in favor of ASB Realty in consideration of the full redemption of Amethyst Pearl’s
outstanding capital stock from ASB Realty.5 Thus, ASB Realty became the owner of the
subject premises and obtained in its name Transfer Certificate of Title No. PT-
105797,6 which was registered in 1997 with the Registry of Deeds of Pasig City.

Sometime in 2003, ASB Realty commenced an action in the Metropolitan Trial Court (MTC)
of Pasig City for unlawful detainer7 of the subject premises against petitioner Leonardo S.
Umale (Umale). ASB Realty alleged that it entered into a lease contract8 with Umale for the
period June 1, 1999-May 31, 2000. Their agreement was for Umale to conduct a pay-parking
business on the property and pay a monthly rent of ₱60,720.00 to ASB Realty.

Upon the contract’s expiration on May 31, 2000, Umale continued occupying the premises
and paying rentals albeit at an increased monthly rent of ₱100,000.00. The last rental
payment made by Umale to ASB Realty was for the June 2001 to May 2002 period, as
evidenced by the Official Receipt No. 56511 9 dated November 19, 2001.
On June 23, 2003, ASB Realty served on Umale a Notice of Termination of Lease and
Demand to Vacate and Pay.10 ASB Realty stated that it was terminating the lease effective
midnight of June 30, 2003; that Umale should vacate the premises, and pay to ASB Realty
the rental arrears amounting to ₱1.3 million by July 15, 2003. Umale failed to comply with
ASB Realty’s demands and continued in possession of the subject premises, even
constructing commercial establishments thereon.

Umale admitted occupying the property since 1999 by virtue of a verbal lease contract but
vehemently denied that ASB Realty was his lessor. He was adamant that his lessor was the
original owner, Amethyst Pearl. Since there was no contract between himself and ASB
Realty, the latter had no cause of action to file the unlawful detainer complaint against him.

In asserting his right to remain on the property based on the oral lease contract with
Amethyst Pearl, Umale interposed that the lease period agreed upon was "for a long period
of time."11 He then allegedly paid ₱1.2 million in 1999 as one year advance rentals to
Amethyst Pearl.12

Umale further claimed that when his oral lease contract with Amethyst Pearl ended in May
2000, they both agreed on an oral contract to sell. They agreed that Umale did not have to
pay rentals until the sale over the subject property had been perfected between
them.13 Despite such agreement with Amethyst Pearl regarding the waiver of rent
payments, Umale maintained that he continued paying the annual rent of ₱1.2 million. He
was thus surprised when he received the Notice of Termination of Lease from ASB Realty. 14

Umale also challenged ASB Realty’s personality to recover the subject premises considering
that ASB Realty had been placed under receivership by the Securities and Exchange
Commission (SEC) and a rehabilitation receiver had been duly appointed. Under Section
14(s), Rule 4 of the Administrative Memorandum No. 00-8-10SC, otherwise known as the
Interim Rules of Procedure on Corporate Rehabilitation (Interim Rules), it is the
rehabilitation receiver that has the power to "take possession, control and custody of the
debtor’s assets." Since ASB Realty claims that it owns the subject premises, it is its duly-
appointed receiver that should sue to recover possession of the same.15

ASB Realty replied that it was impossible for Umale to have entered into a Contract of Lease
with Amethyst Pearl in 1999 because Amethyst Pearl had been liquidated in 1996. ASB
Realty insisted that, as evidenced by the written lease contract, Umale contracted with ASB
Realty, not with Amethyst Pearl. As further proof thereof, ASB Realty cited the official
receipt evidencing the rent payments made by Umale to ASB Realty.

Ruling of the Metropolitan Trial Court

In its August 20, 2004 Decision,16 the MTC dismissed ASB Realty’s complaint against Umale
without prejudice. It held that ASB Realty had no cause to seek Umale’s ouster from the
subject property because it was not Umale’s lessor. The trial court noted an inconsistency in
the written lease contract that was presented by ASB Realty as basis for its complaint. Its
whereas clauses cited ASB Realty, with Eden C. Lin as its representative, as Umale’s lessor;
but its signatory page contained Eden C. Lin’s name under the heading Amethyst Pearl. The
MTC then concluded from such inconsistency that Amethyst Pearl was the real lessor, who
can seek Umale’s ejectment from the subject property.17

Likewise, the MTC agreed with Umale that only the rehabilitation receiver could file suit to
recover ASB Realty’s property.18 Having been placed under receivership, ASB Realty had no
more personality to file the complaint for unlawful detainer.

Ruling of the Regional Trial Court

ASB Realty appealed the adverse MTC Decision to the Regional Trial Court (RTC),19 which
then reversed20 the MTC ruling.

The RTC held that the MTC erred in dismissing ASB Realty’s complaint for lack of cause of
action. It found sufficient evidence to support the conclusion that it was indeed ASB Realty
that entered into a lease contract with Umale, hence, the proper party who can assert the
corresponding right to seek Umale’s ouster from the leased premises for violations of the
lease terms. In addition to the written lease contract, the official receipt evidencing Umale’s
rental payments for the period June 2001 to May 2002 to ASB Realty adequately established
that Umale was aware that his lessor, the one entitled to receive his rent payments, was
ASB Realty, not Amethyst Pearl.

ASB Realty’s positive assertions, supported as they are by credible evidence, are more
compelling than Umale’s bare negative assertions. The RTC found Umale’s version of the
facts incredible. It was implausible that a businessman such as Umale would enter into
several transactions with his alleged lessor – a lease contract, payment of lease rentals,
acceptance of an offer to sell from his alleged lessor, and an agreement to waive rentals –
sans a sliver of evidence.

With the lease contract between Umale and ASB Realty duly established and Umale’s failure
to pay the monthly rentals since June 2002 despite due demands from ASB Realty, the latter
had the right to terminate the lease contract and seek his eviction from the leased premises.
Thus, when the contract expired on June 30, 2003 (as stated in the Notice of Termination of
Lease), Umale lost his right to remain on the premises and his continued refusal to vacate
the same constituted sufficient cause of action for his ejectment.21

With respect to ASB Realty’s personality to file the unlawful detainer suit, the RTC ruled that
ASB Realty retained all its corporate powers, including the power to sue, despite the
appointment of a rehabilitation receiver. Citing the Interim Rules, the RTC noted that the
rehabilitation receiver was not granted therein the power to file complaints on behalf of the
corporation.22

Moreover, the retention of its corporate powers by the corporation under rehabilitation will
advance the objective of corporate rehabilitation, which is to conserve and administer the
assets of the corporation in the hope that it may eventually be able to go from financial
distress to solvency. The suit filed by ASB Realty to recover its property and back rentals
from Umale could only benefit ASB Realty.23

The dispositive portion of the RTC Decision reads as follows:

WHEREFORE, premises considered, the appealed decision is hereby reversed and set aside.
Accordingly, judgment is hereby rendered in favor of the plaintiff-appellant ordering
defendant-appellee and all persons claiming rights under him:

1) To immediately vacate the subject leased premises located at Lot 7, Block 5,

Amethyst St., Pearl Drive, Ortigas Center, Pasig City and deliver possession thereof to
the plaintiff-appellant;

2) To pay plaintiff-appellant the sum of ₱1,300,000.00 representing rentals in arrears

from June 2002 to June 2003;

3) To pay plaintiff-appellant the amount of ₱100,000.00 a month starting from July

2003 and every month thereafter until they finally vacate the subject premises as
reasonable compensation for the continued use and occupancy of the same;

4) To pay plaintiff-appellant the sum of ₱200,000.00 as and by way of attorney’s

fees; and the costs of suit.

SO ORDERED.24

Umale filed a Motion for Reconsideration25 while ASB Realty moved for the issuance of a
writ of execution pursuant to Section 21 of the 1991 Revised Rules on Summary
Procedure.26

In its July 26, 2005 Order, the RTC denied reconsideration of its Decision and granted ASB
Realty’s Motion for Issuance of a Writ of Execution.27

Umale then filed his appeal28 with the CA insisting that the parties did not enter into a lease
contract.29 Assuming that there was a lease, it was at most an implied lease. Hence its
period depended on the rent payments. Since Umale paid rent annually, ASB Realty had to
respect his lease for the entire year. It cannot terminate the lease at the end of the month,
as it did in its Notice of Termination of Lease.30 Lastly, Umale insisted that it was the
rehabilitation receiver, not ASB Realty, that was the real party-in-interest.31

Pending the resolution thereof, Umale died and was substituted by his
widow and legal heirs, per CA Resolution dated August 14, 2006.32

Ruling of the Court of Appeals

The CA affirmed the RTC Decision in toto.33

According to the appellate court, ASB Realty fully discharged its burden to prove the
existence of a lease contract between ASB Realty and Umale,34 as well as the grounds for
eviction.35 The veracity of the terms of the lease contract presented by ASB Realty was
further bolstered, instead of demolished, by Umale’s admission that he paid monthly rents
in accordance therewith.36
The CA found no merit in Umale’s claim that in light of Article 1687 of the Civil Code the
lease should be extended until the end of the year. The said provision stated that in cases
where the lease period was not fixed by the parties, the lease period depended on the
payment periods. In the case at bar, the rent payments were made on a monthly basis, not
annually; thus, Umale’s failure to pay the monthly rent gave ASB Realty the corresponding
right to terminate the lease at the end of the month.37

The CA then upheld ASB Realty’s, as well as its corporate officers’, personality to recover an
unlawfully withheld corporate property. As expressly stated in Section 14 of Rule 4 of the
Interim Rules, the rehabilitation receiver does not take over the functions of the corporate
officers.38

Petitioners filed a Motion for Reconsideration,39 which was denied in the

assailed January 2, 2008 Resolution.40

Issues

The petitioners raise the following issues for resolution: 41

1. Can a corporate officer of ASB Realty (duly authorized by the Board of Directors)
file suit to recover an unlawfully detained corporate property despite the fact that
the corporation had already been placed under rehabilitation?

2. Whether a contract of lease exists between ASB Realty and Umale; and

3. Whether Umale is entitled to avail of the lease periods provided in Article 1687 of
the Civil Code.

Our Ruling

Petitioners ask for the dismissal of the complaint for unlawful detainer on the ground that it
was not brought by the real party-in-interest.42 Petitioners maintain that the appointment
of a rehabilitation receiver for ASB Realty deprived its corporate officers of the power to
recover corporate property and transferred such power to the rehabilitation receiver.
Section 6, Rule 59 of the Rules of Court states that a receiver has the power to bring actions
in his own name and to collect debts due to the corporation. Under Presidential Decree (PD)
No. 902-A and the Interim Rules, the rehabilitation receiver has the power to take custody
and control of the assets of the corporation. Since the receiver for ASB Realty did not file the
complaint for unlawful detainer, the trial court did not acquire jurisdiction over the subject
property.43

Petitioners cite Villanueva v. Court of Appeals,44 Yam v. Court of

Appeals,45 and Abacus Real Estate Development Center, Inc. v. The Manila Banking
Corporation,46 as authorities for the rule that the appointment of a receiver suspends the
authority of the corporation and its officers over its property and effects.47
ASB Realty counters that there is no provision in PD 902-A, the Interim Rules, or in Rule 59
of the Rules of Court that divests corporate officers of their power to sue upon the
appointment of a rehabilitation receiver.48 In fact, Section 14 , Rule 4 of the Interim Rules
expressly limits the receiver’s power by providing that the rehabilitation receiver does not
take over the management and control of the corporation but shall closely oversee and
monitor the operations of the debtor.49 Further, the SEC Rules of Procedure on Corporate
Recovery (SEC Rules), the rules applicable to the instant case, do not include among the
receiver’s powers the exclusive right to file suits for the corporation. 50

The Court resolves the issue in favor of ASB Realty and its officers.

There is no denying that ASB Realty, as the owner of the leased premises, is the real party-
in-interest in the unlawful detainer suit.51 Real party-in-interest is defined as "the party who
stands to be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit."52

What petitioners argue is that the corporate officer of ASB Realty is incapacitated to file this
suit to recover a corporate property because ASB Realty has a duly-appointed rehabilitation
receiver. Allegedly, this rehabilitation receiver is the only one that can file the instant suit.

Corporations, such as ASB Realty, are juridical entities that exist by operation of law.53 As a
creature of law, the powers and attributes of a corporation are those set out, expressly or
impliedly, in the law. Among the general powers granted by law to a corporation is the
power to sue in its own name. 54 This power is granted to a duly-organized corporation,
unless specifically revoked by another law. The question becomes: Do the laws on corporate
rehabilitation – particularly PD 902-A, as amended,55 and its corresponding rules of
procedure – forfeit the power to sue from the corporate officers and Board of Directors?

Corporate rehabilitation is defined as "the restoration of the debtor to a position of

successful operation and solvency, if it is shown that its continuance of operation is
economically feasible and its creditors can recover by way of the present value of payments
projected in the plan more if the corporation continues as a going concern than if it is
immediately liquidated."56 It was first introduced in the Philippine legal system through PD
902-A, as amended.57The intention of the law is "to effect a feasible and viable
rehabilitation by preserving a floundering business as a going concern, because the assets of
a business are often more valuable when so maintained than they would be when
liquidated."58 This concept of preserving the corporation’s business as a going concern while
it is undergoing rehabilitation is called debtor-in-possession or debtor-in-place. This means
that the debtor corporation (the corporation undergoing rehabilitation), through its Board
of Directors and corporate officers, remains in control of its business and properties, subject
only to the monitoring of the appointed rehabilitation receiver.59 The concept of debtor-in-
possession, is carried out more particularly in the SEC Rules, the rule that is relevant to the
instant case.60It states therein that the interim rehabilitation receiver of the debtor
corporation "does not take over the control and management of the debtor
corporation."61 Likewise, the rehabilitation receiver that will replace the interim receiver is
tasked only to monitor the successful implementation of the rehabilitation plan. 62 There is
nothing in the concept of corporate rehabilitation that would ipso facto deprive 63 the Board
of Directors and corporate officers of a debtor corporation, such as ASB Realty, of control
such that it can no longer enforce its right to recover its property from an errant lessee.

To be sure, corporate rehabilitation imposes several restrictions on the debtor corporation.

The rules enumerate the prohibited corporate actions and transactions 64 (most of which
involve some kind of disposition or encumbrance of the corporation’s assets) during the
pendency of the rehabilitation proceedings but none of which touch on the debtor
corporation’s right to sue. The implication therefore is that our concept of rehabilitation
does not restrict this particular power, save for the caveat that all its actions are monitored
closely by the receiver, who can seek an annulment of any prohibited or anomalous
transaction or agreement entered into by the officers of the debtor corporation.

Petitioners insist that the rehabilitation receiver has the power to bring and defend actions
in his own name as this power is provided in Section 6 of Rule 59 of the Rules of Court.

Indeed, PD 902-A, as amended, provides that the receiver shall have the powers
enumerated under Rule 59 of the Rules of Court. But Rule 59 is a rule of general application.
It applies to different kinds of receivers – rehabilitation receivers, receivers of entities under
management, ordinary receivers, receivers in liquidation – and for different kinds of
situations. While the SEC has the discretion65 to authorize the rehabilitation receiver, as the
case may warrant, to exercise the powers in Rule 59, the SEC’s exercise of such discretion
cannot simply be assumed. There is no allegation whatsoever in this case that the SEC gave
ASB Realty’s rehabilitation receiver the exclusive right to sue.

Petitioners cite Villanueva,66 Yam,67 and Abacus Real Estate68 as authorities for their theory
that the corporate officers of a corporation under rehabilitation is incapacitated to act. In
Villanueva,69 the Court nullified the sale contract entered into by the Philippine Veterans
Bank on the ground that the bank’s insolvency restricted its capacity to act. Yam, 70 on the
other hand, nullified the compromise agreement that Manphil Investment Corporation
entered into while it was under receivership by the Central Bank. In Abacus Real Estate, 71 it
was held that Manila Bank’s president had no authority to execute an "option to purchase"
contract while the bank was under liquidation.

These jurisprudence are inapplicable to the case at bar because they involve

banking and financial institutions that are governed by different laws. 72 In the cited cases,
the applicable banking law was Section 2973 of the Central Bank Act.74 In stark contrast to
rehabilitation where the corporation retains control and management of its affairs, Section
29 of the Central Bank Act, as amended, expressly forbids the bank or the quasi-bank from
doing business in the Philippines.

Moreover, the nullified transactions in the cited cases involve dispositions of assets and
claims, which are prohibited transactions even for corporate rehabilitation75 because these
may be prejudicial to creditors and contrary to the rehabilitation plan. The instant case,
however, involves the recovery of assets and collection of receivables, for which there is no
prohibition in PD 902-A.
While the Court rules that ASB Realty and its corporate officers retain their power to sue to
recover its property and the back rentals from Umale, the necessity of keeping the receiver
apprised of the proceedings and its results is not lost upon this Court. Tasked to closely
monitor the assets of ASB Realty, the rehabilitation receiver has to be notified of the
developments in the case, so that these assets would be managed in accordance with the
approved rehabilitation plan.

Coming to the second issue, petitioners maintain that ASB Realty has no

cause of action against them because it is not their lessor. They insist that Umale entered
into a verbal lease agreement with Amethyst Pearl only. As proof of this verbal agreement,
petitioners cite their possession of the premises, and construction of buildings thereon, sans
protest from Amethyst Pearl or ASB Realty.76

Petitioners concede that they may have raised questions of fact but insist nevertheless on
their review as the appellate court’s ruling is allegedly grounded entirely on speculations,
surmises, and conjectures and its conclusions regarding the termination of the lease
contract are manifestly absurd, mistaken, and impossible.77

Petitioners’ arguments have no merit. Ineluctably, the errors they raised involve factual
findings,78 the review of which is not within the purview of the Court’s functions under Rule
45, particularly when there is adequate evidentiary support on record.

While petitioners assail the authenticity of the written lease contract by pointing out the
inconsistency in the name of the lessor in two separate pages, they fail to account for
Umale’s actions which are consistent with the terms of the contract – the payment of lease
rentals to ASB Realty (instead of his alleged lessor Amethyst Pearl) for a 12-month period.
These matters cannot simply be brushed off as sheer happenstance especially when
weighed against Umale’s incredible version of the facts – that he entered into a verbal lease
contract with Amethyst Pearl; that the term of the lease is for a "very long period of time;"
that Amethyst Pearl offered to sell the leased premises and Umale had accepted the offer,
with both parties not demanding any written documentation of the transaction and without
any mention of the purchase price; and that finally, Amethyst Pearl agreed that Umale need
not pay rentals until the perfection of the sale. The Court is of the same mind as the
appellate court that it is simply inconceivable that a businessman, such as petitioners’
predecessor-in-interest, would enter into commercial transactions with and pay substantial
rentals to a corporation nary a single documentation.

Petitioners then try to turn the table on ASB Realty with their third argument. They say that
under Article 1687 of the New Civil Code, the period for rent payments determines the lease
period. Judging by the official receipt presented by ASB Realty, which covers the 12-month
period from June 2001 to May 2002, the lease period should be annual because of the
annual rent payments.79 Petitioners then conclude that ASB Realty violated Article 1687 of
the New Civil Code when it terminated the lease on June 30, 2003, at the beginning of the
new period. They then implore the Court to extend the lease to the end of the annual
period, meaning until May 2004, in accordance with the annual rent payments. 80
In arguing for an extension of lease under Article 1687, petitioners lost sight of the
restriction provided in Article 1675 of the Civil Code. It states that a lessee that commits any
of the grounds for ejectment cited in Article 1673, including non-payment of lease rentals
and devoting the leased premises to uses other than those stipulated, cannot avail of the
periods established in Article 1687.811âwphi1

Moreover, the extension in Article 1687 is granted only as a matter of equity. The law simply
recognizes that there are instances when it would be unfair to abruptly end the lease
contract causing the eviction of the lessee. It is only for these clearly unjust situations that
Article 1687 grants the court the discretion to extend the lease. 82

The particular circumstances of the instant case however, do not inspire granting equitable
relief. Petitioners have not paid, much less offered to pay, the rent for 14 months and even
had the temerity to disregard the pay-and-vacate notice served on them. An extension will
only benefit the wrongdoer and punish the long-suffering property owner.83

WHEREFORE, the petition is DENIED. The October 15, 2007 Decision and January 2, 2008
Resolution of the Court of Appeals in CA-G.R. SP No. 91096 are hereby AFFIRMED. ASB
Realty Corporation is ordered to FURNISH a copy of the Decision on its incumbent
Rehabilitation Receiver and to INFORM the Court of its compliance therewith within 10
days.

SO ORDERED.
G.R. No. 182894 April 22, 2014

FE FLORO VALINO, Petitioner,

vs.
ROSARIO D. ADRIANO, FLORANTE D. ADRIANO, RUBEN D. ADRIANO, MARIA TERESA
ADRIANO ONGOCO, VICTORIA ADRIANO BAYONA, and LEAH ANTONETTE D.
ADRIANO, Respondents.

DECISION

MENDOZA, J.:

Challenged in this petition is the October 2, 2006 Decision1 and the May 9, 2008
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 61613, which reversed the
October 1, 1998 Decision3 of the Regional Trial Court, Branch 77, Quezon City (RTC) which
ruled that petitioner Fe Floro Valino (Valino) was entitled to the remains of the decedent.

The Facts:

Atty. Adriano Adriano (Atty. Adriano), a partner in the Pelaez Adriano and Gregorio Law
Office, married respondent Rosario Adriano (Rosario) on November 15, 1955. The couple
had two (2) sons, Florante and Ruben Adriano; three (3) daughters, Rosario, Victoria and
Maria Teresa; and one (1) adopted daughter, Leah Antonette.

The marriage of Atty. Adriano and Rosario, however, turned sour and they were eventually
separated-in-fact. Years later, Atty. Adriano courted Valino, one of his clients, until they
decided to live together as husband and wife. Despite such arrangement, he continued to
provide financial support to Rosario and their children (respondents).

In 1992, Atty. Adriano died of acute emphysema. At that time, Rosario was in the United
States spending Christmas with her children. As none of the family members was around,
Valino took it upon herself to shoulder the funeral and burial expenses for Atty. Adriano.
When Rosario learned about the death of her husband, she immediately called Valino and
requested that she delay the interment for a few days but her request was not heeded. The
remains of Atty. Adriano were then interred at the mausoleum of the family of Valino at the
Manila Memorial Park. Respondents were not able to attend the interment.

Claiming that they were deprived of the chance to view the remains of Atty. Adriano before
he was buried and that his burial at the Manila Memorial Park was contrary to his wishes,
respondents commenced suit against Valino praying that they be indemnified for actual,
moral and exemplary damages and attorney’s fees and that the remains of Atty. Adriano be
exhumed and transferred to the family plot at the Holy Cross Memorial Cemetery in
Novaliches, Quezon City.

In her defense, Valino countered that Rosario and Atty. Adriano had been separated for
more than twenty (20) years before he courted her. Valino claimed that throughout the
time they were together, he had introduced her to his friends and associates as his wife.
Although they were living together, Valino admitted that he never forgot his obligation to
support the respondents. She contended that, unlike Rosario, she took good care of Atty.
Adriano and paid for all his medical expenses when he got seriously ill. She also claimed that
despite knowing that Atty. Adriano was in a coma and dying, Rosario still left for the United
States. According to Valino, it was Atty. Adriano’s last wish that his remains be interred in
the Valino family mausoleum at the Manila Memorial Park.

Valino further claimed that she had suffered damages as result of the suit brought by
respondents. Thus, she prayed that she be awarded moral and exemplary damages and
attorney’s fees.

Decision of the RTC

The RTC dismissed the complaint of respondents for lack of merit as well as the
counterclaim of Valino after it found them to have not been sufficiently proven.

The RTC opined that because Valino lived with Atty. Adriano for a very long time, she knew
very well that it was his wish to be buried at the Manila Memorial Park. Taking into
consideration the fact that Rosario left for the United States at the time that he was fighting
his illness, the trial court concluded that Rosario did not show love and care for him.
Considering also that it was Valino who performed all the duties and responsibilities of a
wife, the RTC wrote that it could be reasonably presumed that he wished to be buried in the
Valino family mausoleum.4

In disposing of the case, the RTC noted that the exhumation and the transfer of the body of
Atty. Adriano to the Adriano family plot at the Holy Cross Memorial Cemetery in Novaliches,
Quezon City, would not serve any useful purpose and so he should be spared and
respected.5 Decision of the CA

On appeal, the CA reversed and set aside the RTC decision and directed Valino to have the
remains of Atty. Adriano exhumed at the expense of respondents. It likewise directed
respondents, at their expense, to transfer, transport and inter the remains of the decedent
in the family plot at the Holy Cross Memorial Park in Novaliches, Quezon City.

In reaching said determination, the CA explained that Rosario, being the legal wife, was
entitled to the custody of the remains of her deceased husband. Citing Article 305 of the
New Civil Code in relation to Article 199 of the Family Code, it was the considered view of
the appellate court that the law gave the surviving spouse not only the duty but also the
right to make arrangements for the funeral of her husband. For the CA, Rosario was still
entitled to such right on the ground of her subsisting marriage with Atty. Adriano at the
time of the latter’s death, notwithstanding their 30-year separation in fact.

Like the RTC, however, the CA did not award damages in favor of respondents due to the
good intentions shown by Valino in giving the deceased a decent burial when the wife and
the family were in the United States. All other claims for damages were similarly dismissed.

The Sole Issue

The lone legal issue in this petition is who between Rosario and Valino is entitled to the
remains of Atty. Adriano.

The Court’s Ruling

Article 305 of the Civil Code, in relation to what is now Article 1996 of the Family Code,
specifies the persons who have the right and duty to make funeral arrangements for the
deceased. Thus:

Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be
in accordance with the order established for support, under Article 294. In case of
descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall have a better right. [Emphases supplied]

Art. 199. Whenever two or more persons are obliged to give support, the liability shall
devolve upon the following persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters. (294a)

[Emphasis supplied]

Further, Article 308 of the Civil Code provides:

Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the
consent of the persons mentioned in Articles 294 and 305. [Emphases supplied]

In this connection, Section 1103 of the Revised Administrative Code provides:

Section 1103. Persons charged with the duty of burial. – The immediate duty of burying the
body of a deceased person, regardless of the ultimate liability for the expense thereof, shall
devolve upon the persons herein below specified:

(a) If the deceased was a married man or woman, the duty of the burial shall devolve upon
the surviving spouse if he or she possesses sufficient means to pay the necessary expenses;

x x x x. [Emphases supplied]

From the aforecited provisions, it is undeniable that the law simply confines the right and
duty to make funeral arrangements to the members of the family to the exclusion of one’s
common law partner. In Tomas Eugenio, Sr. v. Velez,7 a petition for habeas corpus was filed
by the brothers and sisters of the late Vitaliana Vargas against her lover, Tomas Eugenio, Sr.,
alleging that the latter forcibly took her and confined her in his residence. It appearing that
she already died of heart failure due to toxemia of pregnancy, Tomas Eugenio, Sr. sought
the dismissal of the petition for lack of jurisdiction and claimed the right to bury the
deceased, as the common-law husband.

In its decision, the Court resolved that the trial court continued to have jurisdiction over the
case notwithstanding the death of Vitaliana Vargas. As to the claim of Tomas Eugenio, Sr.
that he should be considered a "spouse" having the right and duty to make funeral
arrangements for his common-law wife, the Court ruled:

x x x Indeed, Philippine Law does not recognize common law marriages. A man and woman
not legally married who cohabit for many years as husband and wife, who represent
themselves to the public as husband and wife, and who are reputed to be husband and wife
in the community where they live may be considered legally married in common law
jurisdictions but not in the Philippines.

While it is true that our laws do not just brush aside the fact that such relationships are
present in our society, and that they produce a community of properties and interests
which is governed by law, authority exists in case law to the effect that such form of co-
ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage. In any case, herein petitioner has a subsisting marriage
with another woman, a legal impediment which disqualified him from even legally marrying
Vitaliana. In Santero vs. CFI of Cavite, the Court, thru Mr. Justice Paras, interpreting Art. 188
of the Civil Code (Support of Surviving Spouse and Children During Liquidation of
Inventoried Property) stated: "Be it noted, however, that with respect to 'spouse,' the same
must be the legitimate 'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse"
embraces common law relation for purposes of exemption from criminal liability in cases of
theft, swindling and malicious mischief committed or caused mutually by spouses. The Penal
Code article, it is said, makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are husband and wife de facto. But
this view cannot even apply to the facts of the case at bar. We hold that the provisions of
the Civil Code, unless expressly providing to the contrary as in Article 144, when referring to
a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a
lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her
lifetime.8 [Emphases supplied]

As applied to this case, it is clear that the law gives the right and duty to make funeral
arrangements to Rosario, she being the surviving legal wife of Atty. Adriano. The fact that
she was living separately from her husband and was in the United States when he died has
no controlling significance. To say that Rosario had, in effect, waived or renounced,
expressly or impliedly, her right and duty to make arrangements for the funeral of her
deceased husband is baseless. The right and duty to make funeral arrangements, like any
other right, will not be considered as having been waived or renounced, except upon clear
and satisfactory proof of conduct indicative of a free and voluntary intent to that
end.9 While there was disaffection between Atty. Adriano and Rosario and their children
when he was still alive, the Court also recognizes that human compassion, more often than
not, opens the door to mercy and forgiveness once a family member joins his Creator.
Notably, it is an undisputed fact that the respondents wasted no time in making frantic
pleas to Valino for the delay of the interment for a few days so they could attend the service
and view the remains of the deceased. As soon as they came to know about Atty. Adriano’s
death in the morning of December 19, 1992 (December 20, 1992 in the Philippines), the
respondents immediately contacted Valino and the Arlington Memorial Chapel to express
their request, but to no avail.

Valino insists that the expressed wishes of the deceased should nevertheless prevail
pursuant to Article 307 of the Civil Code. Valino’s own testimony that it was Atty. Adriano’s
wish to be buried in their family plot is being relied upon heavily. It should be noted,
however, that other than Valino’s claim that Atty. Adriano wished to be buried at the Manila
Memorial Park, no other evidence was presented to corroborate such claim. Considering
that Rosario equally claims that Atty. Adriano wished to be buried in the Adriano family plot
in Novaliches, it becomes apparent that the supposed burial wish of Atty. Adriano was
unclear and undefinite. Considering this ambiguity as to the true wishes of the deceased, it
is the law that supplies the presumption as to his intent. No presumption can be said to
have been created in Valino’s favor, solely on account of a long-time relationship with Atty.
Adriano.

Moreover, it cannot be surmised that just because Rosario was unavailable to bury her
husband when she died, she had already renounced her right to do so. Verily, in the same
vein that the right and duty to make funeral arrangements will not be considered as having
been waived or renounced, the right to deprive a legitimate spouse of her legal right to bury
the remains of her deceased husband should not be readily presumed to have been
exercised, except upon clear and satisfactory proof of conduct indicative of a free and
voluntary intent of the deceased to that end. Should there be any doubt as to the true
intent of the deceased, the law favors the legitimate family. Here, Rosario’s keenness to
exercise the rights and obligations accorded to the legal wife was even bolstered by the fact
that she was joined by the children in this case.

Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the
Valino family plot at the Manila Memorial Park, the result remains the same. Article 307 of
the Civil Code provides:

Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In
the absence of such expression, his religious beliefs or affiliation shall determine the funeral
rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged
to make arrangements for the same, after consulting the other members of the family.

From its terms, it is apparent that Article 307 simply seeks to prescribe the "form of the
funeral rites" that should govern in the burial of the deceased. As thoroughly explained
earlier, the right and duty to make funeral arrangements reside in the persons specified in
Article 305 in relation to Article 199 of the Family Code. Even if Article 307 were to be
interpreted to include the place of burial among those on which the wishes of the deceased
shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law,
commented that it is generally recognized that any inferences as to the wishes of the
deceased should be established by some form of testamentary disposition. 10 As Article 307
itself provides, the wishes of the deceased must be expressly provided. It cannot be inferred
lightly, such as from the circumstance that Atty. Adriano spent his last remaining days with
Valino. It bears stressing once more that other than Valino’s claim that Atty. Adriano wished
to be buried at the Valino family plot, no other evidence was presented to corroborate it.

At any rate, it should be remembered that the wishes of the decedent with respect to his
funeral are not absolute. As Dr. Tolentino further wrote:

The dispositions or wishes of the deceased in relation to his funeral, must not be contrary to
law. They must not violate the legal and reglamentary provisions concerning funerals and
the disposition of the remains, whether as regards the time and manner of disposition, or
the place of burial, or the ceremony to be observed.11 [Emphases supplied]

In this case, the wishes of the deceased with respect to his funeral are limited by Article 305
of the Civil Code in relation to Article 199 of the Family Code, and subject the same to those
charged with the right and duty to make the proper arrangements to bury the remains of
their loved-one. As aptly explained by the appellate court in its disquisition:

The testimony of defendant-appellee Fe Floro Valino that it was the oral wish of Atty.
Adriano Adriano that he be interred at the Floro family’s mausoleum at the Manila
Memorial Park, must bend to the provisions of the law. Even assuming arguendo that it was
the express wish of the deceased to be interred at the Manila Memorial Park, still, the law
grants the duty and the right to decide what to do with the remains to the wife, in this case,
plaintiff-appellant Rosario D. Adriano, as the surviving spouse, and not to defendant-
appellee Fe Floro Valino, who is not even in the list of those legally preferred, despite the
fact that her intentions may have been very commendable. The law does not even consider
the emotional fact that husband and wife had, in this case at bench, been separated-in-fact
and had been living apart for more than 30 years.12

As for Valino’s contention that there is no point in exhuming and transferring the remains of
Atty. Adriano, it should be said that the burial of his remains in a place other than the
Adriano family plot in Novaliches runs counter to the wishes of his family. It does not only
violate their right provided by law, but it also disrespects the family because the remains of
the patriarch are buried in the family plot of his live-in partner.

It is generally recognized that the corpse of an individual is outside the commerce of man.
However, the law recognizes that a certain right of possession over the corpse exists, for the
purpose of a decent burial, and for the exclusion of the intrusion by third persons who have
no legitimate interest in it. This quasi-property right, arising out of the duty of those
obligated by law to bury their dead, also authorizes them to take possession of the dead
body for purposes of burial to have it remain in its final resting place, or to even transfer it
to a proper place where the memory of the dead may receive the respect of the living. This
is a family right. There can be no doubt that persons having this right may recover the
corpse from third persons.13
All this notwithstanding, the Court finds laudable the acts of Valino in taking care of Atty.
Adriano during his final moments and giving him a proper burial. For her sacrifices, it would
indeed be unkind to assess actual or moral damages against her. As aptly explained by the
CA:

The trial court found that there was good faith on the part of defendant-appellee Fe Floro
Valino, who, having lived with Atty. Adriano after he was separated in fact from his wife,
lovingly and caringly took care of the well-being of Atty. Adriano Adriano while he was alive
and even took care of his remains when he had died.

On the issue of damages, plaintiffs-appellants are not entitled to actual damages.

Defendant-appellee Fe Floro Valino had all the good intentions in giving the remains of Atty.
Adriano a decent burial when the wife and family were all in the United States and could not
attend to his burial. Actual damages are those awarded in satisfaction of, or in recompense
for, loss or injury sustained. To be recoverable, they must not only be capable of proof but
must actually be proven with a reasonable degree of certainty. In this case at bench, there
was no iota of evidence presented to justify award of actual damages.

Plaintiffs-appellants are not also entitled to moral and exemplary damages.1âwphi1 Moral
damages may be recovered only if the plaintiff is able to satisfactorily prove the existence of
the factual basis for the damages and its causal connection with the acts complained of
because moral damages although incapable of pecuniary estimation are designed not to
impose a penalty but to compensate for injury sustained and actual damages suffered. No
injury was caused to plaintiffs-appellants, nor was any intended by anyone in this case.
Exemplary damages, on the other hand, may only be awarded if claimant is able to establish
his right to moral, temperate, liquidated or compensatory damages. Unfortunately, neither
of the requirements to sustain an award for either of these damages would appear to have
been adequately established by plaintiffs-appellants.

As regards the award of attorney's fees, it is an accepted doctrine that the award thereof as
an item of damages is the exception rather than the rule, and counsel's fees are not to be
awarded every time a party wins a suit. The power of the court to award attorney's fees
under Article 2208 of the New Civil Code demands factual, legal and equitable justification,
without which the award is a conclusion without a premise, its basis being improperly left to
speculation and conjecture. In this case, we have searched but found nothing in plaintiffs-
appellants' suit that justifies the award of attorney's fees. 14

Finally, it should be said that controversies as to who should make arrangements for the
funeral of a deceased have often aggravated the bereavement of the family and disturbed
the proper solemnity which should prevail at every funeral. It is for the purpose of
preventing such controversies that the Code Commission saw it best to include the
provisions on "Funerals."15

WHEREFORE, the petition is DENIED.

SO ORDERED.
G.R. No. 162155 August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity

as Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of the
Court of Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying
reconsideration.3

On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc.,
applied for the refund or credit of income tax respondent paid in 1997. In Yap's letter to
petitioner revenue district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of
the Bureau of Internal Revenue (BIR),4 he explained that the increase in the cost of labor
and materials and difficulty in obtaining financing for projects and collecting receivables
caused the real estate industry to slowdown.5 As a consequence, while business was good
during the first quarter of 1997, respondent suffered losses amounting to ₱71,879,228 that
year.6

According to Yap, because respondent suffered losses, it was not liable for income
taxes.7 Nevertheless, respondent paid its quarterly corporate income tax and remitted
creditable withholding tax from real estate sales to the BIR in the total amount of
₱26,318,398.32.8 Therefore, respondent was entitled to tax refund or tax credit.9

On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit
additional documents to support its claim.10 Respondent complied but its claim was not
acted upon. Thus, on April 14, 2000, it filed a petition for review11 in the Court of Tax
Appeals (CTA).

On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year
prescriptive period for filing a judicial claim for tax refund or tax credit. 12 It invoked Section
229 of the National Internal Revenue Code (NIRC):

Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall
be maintained in any court for the recovery of any national internal revenue tax hereafter
alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed
to have been collected without authority, or of any sum alleged to have been excessively or
in any manner wrongfully collected, until a claim for refund or credit has been duly filed
with the Commissioner; but such suit or proceeding may be maintained, whether or not
such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years
from the date of payment of the tax or penalty regardless of any supervening cause that
may arise after payment: Provided, however, That the Commissioner may, even without a
claim therefor, refund or credit any tax, where on the face of the return upon which
payment was made, such payment appears clearly to have been erroneously paid.
(emphasis supplied)

The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its
right to claim a refund or credit commenced on that date.13

The tax court applied Article 13 of the Civil Code which states:

Art. 13. When the law speaks of years, months, days or nights, it shall be understood
that years are of three hundred sixty-five days each; months, of thirty days; days, of
twenty-four hours, and nights from sunset to sunrise.

If the months are designated by their name, they shall be computed by the number of days
which they respectively have.

In computing a period, the first day shall be excluded, and the last included. (emphasis
supplied)

Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC
for the filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap
year, respondent's petition, which was filed 731 days 14 after respondent filed its final
adjusted return, was filed beyond the reglementary period.15

Respondent moved for reconsideration but it was denied.16 Hence, it filed an appeal in the
CA.17

On August 1, 2003, the CA reversed and set aside the decision of the CTA.18 It ruled that
Article 13 of the Civil Code did not distinguish between a regular year and a leap year.
According to the CA:

The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a
leap year.19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998
to April 14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days
each or a total of 730 days. A statute which is clear and explicit shall be neither interpreted
nor construed.20

Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.

Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly
construed against claimants.22 Section 229 of the NIRC should be strictly applied against
respondent inasmuch as it has been consistently held that the prescriptive period (for the
filing of tax refunds and tax credits) begins to run on the day claimants file their final
adjusted returns.23 Hence, the claim should have been filed on or before April 13, 2000 or
within 730 days, reckoned from the time respondent filed its final adjusted return.
The conclusion of the CA that respondent filed its petition for review in the CTA within the
two-year prescriptive period provided in Section 229 of the NIRC is correct. Its basis,
however, is not.

The rule is that the two-year prescriptive period is reckoned from the filing of the final
adjusted return.24 But how should the two-year prescriptive period be computed?

As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year,
it is understood to be equivalent to 365 days. In National Marketing Corporation v.
Tecson,25 we ruled that a year is equivalent to 365 days regardless of whether it is a regular
year or a leap year.26

However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31,
Chapter VIII, Book I thereof provides:

Sec. 31. Legal Periods. — "Year" shall be understood to be twelve calendar

months; "month" of thirty days, unless it refers to a specific calendar month in which case it
shall be computed according to the number of days the specific month contains; "day", to a
day of twenty-four hours and; "night" from sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of
days it may contain."28 It is the "period of time running from the beginning of a certain
numbered day up to, but not including, the corresponding numbered day of the next
month, and if there is not a sufficient number of days in the next month, then up to and
including the last day of that month."29 To illustrate, one calendar month from December
31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from
January 31, 2008 will be from February 1, 2008 until February 29, 2008. 30

A law may be repealed expressly (by a categorical declaration that the law is revoked and
abrogated by another) or impliedly (when the provisions of a more recent law cannot be
reasonably reconciled with the previous one).31Section 27, Book VII (Final Provisions) of the
Administrative Code of 1987 states:

Sec. 27. Repealing clause. — All laws, decrees, orders, rules and regulation, or portions
thereof, inconsistent with this Code are hereby repealed or modified accordingly.

A repealing clause like Sec. 27 above is not an express repealing clause because it fails to
identify or designate the laws to be abolished.32 Thus, the provision above
only impliedly repealed all laws inconsistent with the Administrative Code of 1987.1avvphi1

Implied repeals, however, are not favored. An implied repeal must have been clearly and
unmistakably intended by the legislature. The test is whether the subsequent law
encompasses entirely the subject matter of the former law and they cannot be logically or
reasonably reconciled.33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative
Code of 1987 deal with the same subject matter — the computation of legal periods. Under
the Civil Code, a year is equivalent to 365 days whether it be a regular year or a leap year.
Under the Administrative Code of 1987, however, a year is composed of 12 calendar
months. Needless to state, under the Administrative Code of 1987, the number of days is
irrelevant.

There obviously exists a manifest incompatibility in the manner of computing legal periods
under the Civil Code and the Administrative Code of 1987. For this reason, we hold that
Section 31, Chapter VIII, Book I of the Administrative Code of 1987, being the more recent
law, governs the computation of legal periods. Lex posteriori derogat priori.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the
two-year prescriptive period (reckoned from the time respondent filed its final adjusted
return34 on April 14, 1998) consisted of 24 calendar months, computed as follows:

Year 1st calendar April 15, 1998 to May 14, 1998

1 month

2nd calendar May 15, 1998 to June 14, 1998

month

3rd calendar June 15, 1998 to July 14, 1998

month

4th calendar July 15, 1998 to August 14, 1998

month

5th calendar August 15, 1998 to September 14,

month 1998

6th calendar September 15, to October 14, 1998

month 1998

7th calendar October 15, 1998 to November 14,

month 1998

8th calendar November 15, to December 14,

month 1998 1998

9th calendar December 15, to January 14, 1999

month 1998

10th calendar January 15, 1999 to February 14,

month 1999

11th calendar February 15, to March 14, 1999

month 1999

12th calendar March 15, 1999 to April 14, 1999

month
 Year 13th calendar April 15, 1999 to May 14, 1999
2 month

14th calendar May 15, 1999 to June 14, 1999

month

15th calendar June 15, 1999 to July 14, 1999

month

16th calendar July 15, 1999 to August 14, 1999

month

17th calendar August 15, 1999 to September 14,

month 1999

18th calendar September 15, to October 14, 1999

month 1999

19th calendar October 15, 1999 to November 14,

month 1999

20th calendar November 15, to December 14,

month 1999 1999

21st calendar December 15, to January 14, 2000

month 1999

22nd calendar January 15, 2000 to February 14,

month 2000

23rd calendar February 15, to March 14, 2000

month 2000

24th calendar March 15, 2000 to April 14, 2000

month

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last
day of the 24th calendar month from the day respondent filed its final adjusted return.
Hence, it was filed within the reglementary period.

Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax
Appeals which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113
entitled Primetown Property Group, Inc. v. Commissioner of Internal Revenue and Arturo V.
Parcero.

No costs.

SO ORDERED.
G.R. No. 185922 January 15, 2014

HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and Attorneys-in-Fact
MERCEDES A. FAVIS and NELLY FAVIS- VILLAFUERTE, Petitioners,
vs.
JUANA GONZALES, her son MARIANO G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES
MARK D. FAVIS, all minors represented herein by their parents SPS. MARIANO FAVIS and
LARCELITA D. FAVIS,Respondents.

DECISION

PEREZ, J.:

Before this Court is a petition for review assailing the 10 April 2008 Decision 1 and 7 January
2009 Resolution2 of the Court of Appeals in CA-G.R. CV No. 86497 dismissing petitioners’
complaint for annulment of the Deed of Donation for failure to exert earnest efforts
towards a compromise.

Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with whom
he had seven children named Purita A. Favis, Reynaldo Favis, Consolacion Favis-Queliza,
Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, and Nelly Favis-Villafuerte. When
Capitolina died in March 1944, Dr. Favis took Juana Gonzales (Juana) as his common-law
wife with whom he sired one child, Mariano G. Favis (Mariano). When Dr. Favis and Juana
got married in 1974, Dr. Favis executed an affidavit acknowledging Mariano as one of his
legitimate children. Mariano is married to Larcelita D. Favis (Larcelita), with whom he has
four children, named Ma. Theresa Joana D. Favis, Ma. Cristina D. Favis, James Mark D. Favis
and Ma. Thea D. Favis.

Dr. Favis died intestate on 29 July 1995 leaving the following properties:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur,
consisting an area of 898 square meters, more or less, bounded on the north by
Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on
the West by Carmen Giron; x x x;

2. A commercial building erected on the aforesaid parcel of land with an assessed

value of ₱126,000.00; x x x;

3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an
area of 154 sq. ms., more or less, bounded on the North by the High School Site; on
the East by Gomez St., on the South by Domingo [G]o; and on the West by Domingo
Go; x x x;

4. A house with an assessed value of ₱17,600.00 x x x;

5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an area of
2,257 sq. ma. (sic) more or less, bounded on the North by Lot 1208; on the East by
 Mestizo River; on the South by Lot 1217 and on the West by Lot 1211-B, 1212 and
1215 x x x.3

Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses, such as
kidney trouble, hiatal hernia, congestive heart failure, Parkinson’s disease and pneumonia.
He died of "cardiopulmonary arrest secondary to multi-organ/system failure secondary to
sepsis secondary to pneumonia."4

On 16 October 1994, he allegedly executed a Deed of Donation5 transferring and conveying

properties described in (1) and (2) in favor of his grandchildren with Juana.

Claiming that said donation prejudiced their legitime, Dr. Favis’ children with Capitolina,
petitioners herein, filed an action for annulment of the Deed of Donation, inventory,
liquidation and partition of property before the Regional Trial Court (RTC) of Vigan, Ilocos
Sur, Branch 20 against Juana, Spouses Mariano and Larcelita and their grandchildren as
respondents.

In their Answer with Counterclaim, respondents assert that the properties donated do not
form part of the estate of the late Dr. Favis because said donation was made inter vivos,
hence petitioners have no stake over said properties.6

The RTC, in its Pre-Trial Order, limited the issues to the validity of the deed of donation and
whether or not respondent Juana and Mariano are compulsory heirs of Dr. Favis. 7

In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and
cancelled the corresponding tax declarations. The trial court found that Dr. Favis, at the age
of 92 and plagued with illnesses, could not have had full control of his mental capacities to
execute a valid Deed of Donation. Holding that the subsequent marriage of Dr. Favis and
Juana legitimated the status of Mariano, the trial court also declared Juana and Mariano as
compulsory heirs of Dr. Favis. The dispositive portion reads:WHEREFORE, in view of all the
foregoing considerations, the Deed of Donation dated October 16, 1994 is hereby annulled
and the corresponding tax declarations issued on the basis thereof cancelled. Dr. Mariano
Favis, Sr. having died without a will, his estate would result to intestacy. Consequently,
plaintiffs Heirs of Dr. Mariano Favis, Sr., namely Purita A. Favis, Reynaldo A. Favis,
Consolacion F. Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, Nelly F.
Villafuerte and the defendants Juana Gonzales now deceased and Mariano G. Favis, Jr. shall
inherit in equal shares in the estate of the late Dr. Mariano Favis, Sr. which consists of the
following:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur,
consisting an area of 89 sq. meters more or less, bounded on the north by Salvador
Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on the West
by Carmen Giron;

2. A commercial building erected on the aforesaid parcel of land with an assessed

value of ₱126,000.00;
 3. One-half (1/2) of the house located in Brgy. VI, Vigan City, Ilocos Sur[,] containing
an area of 2,257 sq. meters more or less, bounded on the north by Lot 1208; on the
east by Mestizo River; on the South by Lot 1217 and on the West by Lot 1211-B,
1212 and 1215.

4. The accumulated rentals of the new Vigan Coliseum in the amount of One
Hundred Thirty [Thousand] (₱130,000.00) pesos per annum from the death of Dr.
Mariano Favis, Sr.8

Respondents interposed an appeal before the Court of Appeals challenging the trial court’s
nullification, on the ground of vitiated consent, of the Deed of Donation in favor of herein
respondents. The Court of Appeals ordered the dismissal of the petitioners’ nullification
case. However, it did so not on the grounds invoked by herein respondents as appellant.

The Court of Appeals motu proprio ordered the dismissal of the complaint for failure of
petitioners to make an averment that earnest efforts toward a compromise have been
made, as mandated by Article 151 of the Family Code. The appellate court justified its order
of dismissal by invoking its authority to review rulings of the trial court even if they are not
assigned as errors in the appeal.

Petitioners filed a motion for reconsideration contending that the case is not subject to
compromise as it involves future legitime.

The Court of Appeals rejected petitioners’ contention when it ruled that the prohibited
compromise is that which is entered between the decedent while alive and compulsory
heirs. In the instant case, the appellate court observed that while the present action is
between members of the same family it does not involve a testator and a compulsory heir.
Moreover, the appellate court pointed out that the subject properties cannot be considered
as "future legitime" but are in fact, legitime, as the instant complaint was filed after the
death of the decedent.

Undaunted by this legal setback, petitioners filed the instant petition raising the following
arguments:

1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in DISMISSING

the COMPLAINT.

2. Contrary to the finding of the Honorable Court of Appeals, the verification of the
complaint or petition is not a mandatory requirement.

3. The Honorable Court of Appeals seriously failed to appreciate that the filing of an
intervention by Edward Favis had placed the case beyond the scope of Article 151 of
the Family Code.

4. Even assuming arguendo without admitting that the filing of intervention by

Edward Favis had no positive effect to the complaint filed by petitioners, it is still a
serious error for the Honorable Court of Appeals to utterly disregard the fact that
 petitioners had substantially complied with the requirements of Article 151 of the
Family Code.

5. Assuming arguendo that petitioners cannot be construed as complying

substantially with Article 151 of the Family Code, still, the same should be
considered as a non-issue considering that private respondents are in estoppel.

6. The dismissal of the complaint by the Honorable Court of Appeals amounts to

grave abuse of discretion amounting to lack and excess of jurisdiction and a
complete defiance of the doctrine of primacy of substantive justice over strict
application of technical rules.

7. The Honorable Court of Appeals gravely and seriuosly erred in not affirming the
decision of the Court a quo that the Deed of Donation is void.9

In their Comment, respondents chose not to touch upon the merits of the case, which is the
validity of the deed of donation. Instead, respondents defended the ruling the Court of
Appeals that the complaint is dismissible for failure of petitioners to allege in their
complaint that earnest efforts towards a compromise have been exerted.

The base issue is whether or not the appellate court may dismiss the order of dismissal of
the complaint for failure to allege therein that earnest efforts towards a compromise have
been made. The appellate court committed egregious error in dismissing the complaint. The
appellate courts’ decision hinged on Article 151 of the Family Code, viz:

Art. 151. No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.

The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997
Rules of Civil Procedure, which provides:

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following
grounds:

xxxx

(j) That a condition precedent for filing the claim has not been complied with.

The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the grounds
for a motion to dismiss the complaint. It must be distinguished from the grounds provided
under Section 1, Rule 9 which specifically deals with dismissal of the claim by the court motu
proprio. Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:
Section 1. Defenses and objections not pleaded. − Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction over
the subject matter, that there is another action pending between the same parties for the
same cause, or that the action is barred by a prior judgment or by statute of limitations, the
court shall dismiss the claim.

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss
the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia ; (c) res
judicata ; and (d) prescription of action.10Specifically in Gumabon v. Larin,11 cited in Katon v.
Palanca, Jr.,12 the Court held:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the
court clearly had no jurisdiction over the subject matter and when the plaintiff did not
appear during trial, failed to prosecute his action for an unreasonable length of time or
neglected to comply with the rules or with any order of the court. Outside of these
instances, any motu proprio dismissal would amount to a violation of the right of the
plaintiff to be heard. Except for qualifying and expanding Section 2, Rule 9, and Section 3,
Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure
brought about no radical change. Under the new rules, a court may motu proprio dismiss a
claim when it appears from the pleadings or evidence on record that it has no jurisdiction
over the subject matter; when there is another cause of action pending between the same
parties for the same cause, or where the action is barred by a prior judgment or by statute
of limitations. x x x.13

The error of the Court of Appeals is evident even if the consideration of the issue is kept
within the confines of the language of Section 1(j) of Rule 16 and Section 1 of Rule 9. That a
condition precedent for filing the claim has not been complied with, a ground for a motion
to dismiss emanating from the law that no suit between members from the same family
shall prosper unless it should appear from the verified complaint that earnest efforts toward
a compromise have been made but had failed, is, as the Rule so words, a ground for a
motion to dismiss. Significantly, the Rule requires that such a motion should be filed "within
the time for but before filing the answer to the complaint or pleading asserting a claim." The
time frame indicates that thereafter, the motion to dismiss based on the absence of the
condition precedent is barred. It is so inferable from the opening sentence of Section 1 of
Rule 9 stating that defense and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. There are, as just noted, only four exceptions to this Rule,
namely, lack of jurisdiction over the subject matter; litis pendentia ; res judicata ; and
prescription of action. Failure to allege in the complaint that earnest efforts at a
compromise has been made but had failed is not one of the exceptions. Upon such failure,
the defense is deemed waived.

It was in Heirs of Domingo Valientes v. Ramas 14 cited in P.L. Uy Realty Corporation v. ALS
Management and Development Corporation15 where we noted that the second sentence of
Section 1 of Rule 9 does not only supply exceptions to the rule that defenses not pleaded
either in a motion to dismiss or in the answer are deemed waived, it also allows courts to
dismiss cases motu propio on any of the enumerated grounds. The tenor of the second
sentence of the Rule is that the allowance of a motu propio dismissal can proceed only from
the exemption from the rule on waiver; which is but logical because there can be no ruling
on a waived ground.

Why the objection of failure to allege a failed attempt at a compromise in a suit among
members of the same family is waivable was earlier explained in the case of Versoza v.
Versoza,16 a case for future support which was dismissed by the trial court upon the ground
that there was no such allegation of infringement of Article 222 of the Civil Code, the origin
of Article 151 of the Family Code. While the Court ruled that a complaint for future support
cannot be the subject of a compromise and as such the absence of the required allegation in
the complaint cannot be a ground for objection against the suit, the decision went on to
state thus:

The alleged defect is that the present complaint does not state a cause of action. The
proposed amendment seeks to complete it. An amendment to the effect that the
requirements of Article 222 have been complied with does not confer jurisdiction upon the
lower court. With or without this amendment, the subject-matter of the action remains as
one for support, custody of children, and damages, cognizable by the court below.

To illustrate, Tamayo v. San Miguel Brewery, Inc.,17 allowed an amendment which " merely
corrected a defect in the allegation of plaintiff-appellant’s cause of action, because as it
then stood, the original complaint stated no cause of action." We there ruled out as
inapplicable the holding in Campos Rueda Corporation v. Bautista,18 that an amendment
cannot be made so as to confer jurisdiction on the court x x x. (Italics supplied).

Thus was it made clear that a failure to allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a jurisdictional defect but merely a
defect in the statement of a cause of action. Versoza was cited in a later case as an instance
analogous to one where the conciliation process at the barangay level was not priorly
resorted to. Both were described as a "condition precedent for the filing of a complaint in
Court."19 In such instances, the consequence is precisely what is stated in the present Rule.
Thus:

x x x The defect may however be waived by failing to make seasonable objection, in a

motion to dismiss or answer, the defect being a mere procedural imperfection which does
not affect the jurisdiction of the court.20 (Underscoring supplied).

In the case at hand, the proceedings before the trial court ran the full course. The complaint
of petitioners was answered by respondents without a prior motion to dismiss having been
filed. The decision in favor of the petitioners was appealed by respondents on the basis of
the alleged error in the ruling on the merits, no mention having been made about any
defect in the statement of a cause of action. In other words, no motion to dismiss the
complaint based on the failure to comply with a condition precedent was filed in the trial
court; neither was such failure assigned as error in the appeal that respondent brought
before the Court of Appeals.
Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is
wholly applicable to respondent.1âwphi1 If the respondents as parties-defendants could
not, and did not, after filing their answer to petitioner’s complaint, invoke the objection of
absence of the required allegation on earnest efforts at a compromise, the appellate court
unquestionably did not have any authority or basis to motu propio order the dismissal of
petitioner’s complaint.

Indeed, even if we go by the reason behind Article 151 of the Family Code, which provision
as then Article 222 of the New Civil Code was described as "having been given more
teeth"21 by Section 1(j), Rule 16 of the Rule of Court, it is safe to say that the purpose of
making sure that there is no longer any possibility of a compromise, has been served. As
cited in commentaries on Article 151 of the Family Code –

This rule is introduced because it is difficult to imagine a sudden and more tragic spectacle
than a litigation between members of the same family. It is necessary that every effort
should be made towards a compromise before a litigation is allowed to breed hate and
passion in the family. It is known that a lawsuit between close relatives generates deeper
bitterness than between strangers.22

The facts of the case show that compromise was never an option insofar as the respondents
were concerned. The impossibility of compromise instead of litigation was shown not alone
by the absence of a motion to dismiss but on the respondents’ insistence on the validity of
the donation in their favor of the subject properties. Nor could it have been otherwise
because the Pre-trial Order specifically limited the issues to the validity of the deed and
whether or not respondent Juana and Mariano are compulsory heirs of Dr. Favis.
Respondents not only confined their arguments within the pre-trial order; after losing their
case, their appeal was based on the proposition that it was error for the trial court to have
relied on the ground of vitiated consent on the part of Dr. Favis.

The Court of Appeals ignored the facts of the case that clearly demonstrated the refusal by
the respondents to compromise. Instead it ordered the dismissal of petitioner’s complaint
on the ground that it did not allege what in fact was shown during the trial. The error of the
Court of Appeals is patent.

Unfortunately for respondents, they relied completely on the erroneous ruling of the Court
of Appeals even when petitioners came to us for review not just on the basis of such
defective motu propio action but also on the proposition that the trial court correctly found
that the donation in question is flawed because of vitiated consent. Respondents did not
answer this argument. The trial court stated that the facts are:

x x x To determine the intrinsic validity of the deed of donation subject of the action for
annulment, the mental state/condition of the donor Dr. Mariano Favis, Sr. at the time of its
execution must be taken into account. Factors such as his age, health and environment
among others should be considered. As testified to by Dr. Mercedes Favis, corroborated by
Dr. Edgardo Alday and Dra. Ofelia Adapon, who were all presented as expert witnesses, Dr.
Mariano Favis, Sr. had long been suffering from Hiatal Hernia and Parkinson’s disease and
had been taking medications for years. That a person with Parkinson’s disease for a long
time may not have a good functioning brain because in the later stage of the disease, 1/3 of
death develop from this kind of disease, and or dementia. With respect to Hiatal Hernia, this
is a state wherein organs in the abdominal cavity would go up to the chest cavity, thereby
occupying the space for the lungs causing the lungs to be compromised. Once the lungs are
affected, there is less oxygenation to the brain. The Hernia would cause the heart not to
pump enough oxygen to the brain and the effect would be chronic, meaning, longer lack of
oxygenation to the brain will make a person not in full control of his faculties. Dr. Alday
further testified that during his stay with the house of Dr. Mariano Favis, Sr. (1992-1994), he
noticed that the latter when he goes up and down the stairs will stop after few seconds, and
he called this pulmonary cripple – a very advanced stage wherein the lungs not only one
lung, but both lungs are compromised. That at the time he operated on the deceased, the
left and right lung were functioning but the left lung is practically not even five (5%) percent
functioning since it was occupied by abdominal organ. x x x.

Dr. Mariano Favis, Sr. during the execution of the Deed of Donation was already 92 years
old; living with the defendants and those years from 1993 to 1995 were the critical years
when he was sick most of the time. In short, he’s dependent on the care of his housemates
particularly the members of his family. It is the contention of the defendants though that Dr.
Mariano Favis, Sr. had full control of his mind during the execution of the Deed of Donation
because at that time, he could go on with the regular way of life or could perform his daily
routine without the aid of anybody like taking a bath, eating his meals, reading the
newspaper, watching television, go to the church on Sundays, walking down the plaza to
exercise and most importantly go to the cockpit arena and bet. Dr. Ofelia Adapon, a
neurology expert however, testified that a person suffering from Parkinson’s disease when
he goes to the cockpit does not necessarily mean that such person has in full control of his
mental faculties because anyone, even a retarded person, a person who has not studied and
have no intellect can go to the cockpit and bet. One can do everything but do not have
control of his mind. x x x That Hiatal Hernia creeps in very insidiously, one is not sure
especially if the person has not complained and no examination was done. It could be there
for the last time and no one will know. x x x.

The Deed of Donation in favor of the defendants Ma. Theresa, Joana D. Favis, Maria Cristina
D. Favis, James Mark D. Favis and Maria Thea D. Favis, all of whom are the children of
Mariano G. Favis, Jr. was executed on [16 October] 1994, seven (7) months after Dra.
Mercedes Favis left the house of Dr. Favis, Sr. at Bonifacio St., Vigan City, Ilocos Sur, where
she resided with the latter and the defendants.

Putting together the circumstances mentioned, that at the time of the execution of the
Deed of Donation, Dr. Mariano Favis, Sr. was already at an advanced age of 92, afflicted with
different illnesses like Hiatal hernia, Parkinsons’ disease and pneumonia, to name few,
which illnesses had the effects of impairing his brain or mental faculties and the deed being
executed only when Dra. Mercedes Favis had already left his father’s residence when Dr.
Mariano Favis, Sr. could have done so earlier or even in the presence of Dra. Mercedes
Favis, at the time he executed the Deed of Donation was not in full control of his mental
faculties. That although age of senility varies from one person to another, to reach the age
of 92 with all those medications and treatment one have received for those illnesses, yet
claim that his mind remains unimpaired, would be unusual. The fact that the Deed of
Donation was only executed after Dra. Mercedes Favis left his father's house necessarily
indicates that they don't want the same to be known by the first family, which is an indicia
of bad faith on the part of the defendant, who at that time had influence over the donor.23

The correctness of the finding was not touched by the Court of Appeals. The respondents
opted to rely only on what the appellate court considered, erroneously though, was a
procedural infirmity. The trial court's factual finding, therefore, stands unreversed; and
respondents did not provide us with any argument to have it reversed.

The issue of the validity of donation was fully litigated and discussed by the trial court.
Indeed, the trial court's findings were placed at issue before the Court of Appeals but the
appellate court chose to confine its review to the procedural aspect. The judgment of the
Court of Appeals, even if it dealt only with procedure, is deemed to have covered all issues
including the correctness of the factual findings of the trial court. Moreover, remanding the
case to the Court of Appeals would only constitute unwarranted delay in the final
disposition of the case.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the
Judgment of the Regional Trial Court of Vigan, Ilocos Sur, Branch 20 is AFFIRMED.

SO ORDERED.
G.R. No. 168852 September 30, 2008

SHARICA MARI L. GO-TAN, Petitioner,

vs.
SPOUSES PERFECTO C. TAN and JUANITA L. TAN, Respondents.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Resolution1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94,
Quezon City in Civil Case No. Q-05-54536 and the RTC Resolution2 dated July 11, 2005 which
denied petitioner's Verified Motion for Reconsideration.

The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were
married.3 Out of this union, two female children were born, Kyra Danielle 4 and Kristen
Denise.5 On January 12, 2005, barely six years into the marriage, petitioner filed a Petition
with Prayer for the Issuance of a Temporary Protective Order (TPO) 6 against Steven and her
parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC.
She alleged that Steven, in conspiracy with respondents, were causing verbal, psychological
and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and
(i)7 of Republic Act (R.A.) No. 9262,8 otherwise known as the "Anti-Violence Against Women
and Their Children Act of 2004."

On January 25, 2005, the RTC issued an Order/Notice 9 granting petitioner's prayer for a
TPO.

On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance
of Permanent Protection Order Ad Cautelam and Comment on the Petition,10 contending
that the RTC lacked jurisdiction over their persons since, as parents-in-law of the petitioner,
they were not covered by R.A. No. 9262.

On February 28, 2005, petitioner filed a Comment on Opposition11 to respondents' Motion

to Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the protection and safety of victims of violence.

On March 7, 2005, the RTC issued a Resolution12 dismissing the case as to respondents on
the ground that, being the parents-in-law of the petitioner, they were not included/covered
as respondents under R.A. No. 9262 under the well-known rule of law "expressio unius est
exclusio alterius."13

On March 16, 2005, petitioner filed her Verified Motion for Reconsideration 14 contending
that the doctrine of necessary implication should be applied in the broader interests of
substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for
Reconsideration15 arguing that petitioner's liberal construction unduly broadened the
provisions of R.A. No. 9262 since the relationship between the offender and the alleged
victim was an essential condition for the application of R.A. No. 9262.

On July 11, 2005, the RTC issued a Resolution16 denying petitioner's

Verified Motion for Reconsideration. The RTC reasoned that to include respondents under
the coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the
law.

Hence, the present petition on a pure question of law, to wit:

WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF

SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE ORDER,
IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE "ANTI-
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17

Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of
Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly, the provision on "conspiracy" under Article 8 of
the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents had
community of design and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically; that respondents
should be included as indispensable or necessary parties for complete resolution of the
case.

On the other hand, respondents submit that they are not covered by R.A. No. 9262 since
Section 3 thereof explicitly provides that the offender should be related to the victim only
by marriage, a former marriage, or a dating or sexual relationship; that allegations on the
conspiracy of respondents require a factual determination which cannot be done by this
Court in a petition for review; that respondents cannot be characterized as indispensable or
necessary parties, since their presence in the case is not only unnecessary but altogether
illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No.
9262.

The Court rules in favor of the petitioner.

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as "any act
or a series of acts committed by any person against a woman who is his wife, former wife,
or against a woman with whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether legitimate or illegitimate,
within or without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty."
While the said provision provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC.

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the
RPC, thus:

SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and
other applicable laws, shall have suppletory application. (Emphasis supplied)

Parenthetically, Article 10 of the RPC provides:

ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the
future may be punishable under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless the latter should specially
provide the contrary. (Emphasis supplied)

Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special
law is silent on a particular matter.

Thus, in People v. Moreno,18 the Court applied suppletorily the provision on subsidiary
penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known
as the "Revised Motor Vehicle Law," noting that the special law did not contain any
provision that the defendant could be sentenced with subsidiary imprisonment in case of
insolvency.

In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of
sentences provided in Article 70 of the RPC in favor of the accused who was found guilty of
multiple violations of R.A. No. 6425, otherwise known as the "Dangerous Drugs Act of
1972," considering the lack of similar rules under the special law.

In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to
define the words "principal," "accomplices" and "accessories" under R.A. No. 8042,
otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995," because said
words were not defined therein, although the special law referred to the same terms in
enumerating the persons liable for the crime of illegal recruitment.

In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment

under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the
"Bouncing Checks Law," noting the absence of an express provision on subsidiary
imprisonment in said special law.

Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of
conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision
therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the
RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their
nature, are necessarily applicable, may be applied suppletorily.

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or
action in concert to achieve a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.23

It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of
violence against women and their children may be committed by an offender through
another, thus:

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against
women and their children is committed through any of the following acts:

xxx

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through

another, that alarms or causes substantial emotional or psychological distress to the
woman or her child. This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or
her child;

(3) Entering or remaining in the dwelling or on the property of the woman or

her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to

animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of preventing further
acts of violence against the woman or her child may include

individuals other than the offending husband, thus:

SEC. 8. Protection Orders. – x x x The protection orders that may be issued under this Act
shall include any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing,

personally or through another, any of the acts mentioned in Section 5 of this
Act; 1avvphi1.net
 (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting
or otherwise communicating with the petitioner, directly or indirectly; x x x
(Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and
safety of victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law24 and that this intent must be
effectuated by the courts. In the present case, the express language of R.A. No. 9262
reflects the intent of the legislature for liberal construction as will best ensure the
attainment of the object of the law according to its true intent, meaning and spirit - the
protection and safety of victims of violence against women and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio
alterius" finds no application here. It must be remembered that this maxim is only an
"ancillary rule of statutory construction." It is not of universal application. Neither is it
conclusive. It should be applied only as a means of discovering legislative intent which is not
otherwise manifest and should not be permitted to defeat the plainly indicated purpose of
the legislature.25

The Court notes that petitioner unnecessarily argues at great length on the attendance of
circumstances evidencing the conspiracy or connivance of Steven and respondents to cause
verbal, psychological and economic abuses upon her. However, conspiracy is an evidentiary
matter which should be threshed out in a full-blown trial on the merits and cannot be
determined in the present petition since this Court is not a trier of facts. 26 It is thus
premature for petitioner to argue evidentiary matters since this controversy is centered
only on the determination of whether respondents may be included in a petition under R.A.
No. 9262. The presence or absence of conspiracy can be best passed upon after a trial on
the merits.

Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to
R.A. No. 9262, the Court will no longer delve on whether respondents may be considered
indispensable or necessary parties. To do so would be an exercise in superfluity.

WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7,
2005 and July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No.
Q-05-54536 are hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the
petition against respondents is concerned.

SO ORDERED.
A.C. No. 9081 October 12, 2011

RODOLFO A. ESPINOSA and MAXIMO A. GLINDO, Complainants,

vs.
ATTY. JULIETA A. OMAÑA, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a complaint for disbarment filed by Rodolfo A. Espinosa (Espinosa) and
Maximo A. Glindo (Glindo) against Atty. Julieta A. Omaña (Omaña).

The Antecedent Facts

Complainants Espinosa and Glindo charged Omaña with violation of her oath as a lawyer,
malpractice, and gross misconduct in office.

Complainants alleged that on 17 November 1997, Espinosa and his wife Elena Marantal
(Marantal) sought Omaña’s legal advice on whether they could legally live separately and
dissolve their marriage solemnized on 23 July 1983. Omaña then prepared a document
entitled "Kasunduan Ng Paghihiwalay" (contract) which reads:

REPUBLIKA NG PILIPINAS
BAYAN NG GUMACA
LALAWIGAN NG QUEZON

KASUNDUAN NG PAGHIHIWALAY

KAMI, ELENA MARANTAL AT RODOLFO ESPINOSA, mga Filipino, may sapat na gulang, dating
legal na mag-asawa, kasalukuyang naninirahan at may pahatirang sulat sa Brgy. Buensoceso,
Gumaca, Quezon, at COMELEC, Intramuros, Manila ayon sa pagkakasunod-sunod, matapos
makapanumpa ng naaayon sa batas ay nagpapatunay ng nagkasundo ng mga sumusunod:

1. Na nais na naming maghiwalay at magkanya-kanya ng aming mga buhay ng

walang pakialaman, kung kaya’t bawat isa sa amin ay maaari ng humanap ng
makakasama sa buhay;

2. Na ang aming mga anak na sina Ariel John Espinosa, 14 na taong gulang;
Aiza Espinosa, 11 taong gulang at Aldrin Espinosa, 10 taong gulang ay namili
na kung kanino sasama sa aming dalawa. Si Ariel John at Aiza Espinosa ay
sasama sa kanilang ama, Rodolfo Espinosa, at ang bunso, Aldrin Espinosa at
sasama naman sa ina na si Elena;

3. Na dahil sina Ariel John at Aiza ay nagsisipag-aral sa kasalukuyan sila ay

pansamantalang mananatili sa kanilang ina, habang tinatapos ang kanilang
 pag-aaral. Sa pasukan sila ay maaari ng isama ng ama, sa lugar kung saan siya
ay naninirahan;

4. Na ang mga bata ay maaaring dalawin ng sino man sa aming dalawa tuwing
may pagkakataon;

5. Na magbibigay ng buwanang gastusin o suporta ang ama kay Aldrin at ang

kakulangan sa mga pangangailangan nito ay pupunan ng ina;

6. Na lahat ng mga kasangkapan sa bahay tulad ng T.V., gas stove, mga

kagamitan sa kusina ay aking (Rodolfo) ipinagkakaloob kay Elena at hindi na
ako interesado dito;

7. Na lahat ng maaaring maipundar ng sino man sa amin dalawa sa mga

panahong darating ay aming mga sari-sariling pag-aari na at hindi na
pinagsamahan o conjugal.

BILANG PATUNAY ng lahat ng ito, nilagdaan namin ito ngayong ika-17 ng Nobyembre, 1997,
dito sa Gumaca, Quezon.

(Sgd) (Sgd)
ELENA MARANTAL RODOLFO ESPINOSA
Nagkasundo Nagkasundo

PINATUNAYAN AT PINANUMPAAN dito sa harap ko ngayong ika-17 ng Nobyembre, 1997,

dito sa Gumaca, Quezon

ATTY. JULIETA A. OMAÑA

Notary Public
PTR No. 3728169; 1-10-97
Gumaca, Quezon

Doc. No. 482;

Page No. 97;
Book No. XI;
Series of 1997.

Complainants alleged that Marantal and Espinosa, fully convinced of the validity of the
contract dissolving their marriage, started implementing its terms and conditions. However,
Marantal eventually took custody of all their children and took possession of most of the
property they acquired during their union.

Espinosa sought the advice of his fellow employee, complainant Glindo, a law graduate, who
informed him that the contract executed by Omaña was not valid. Espinosa and Glindo then
hired the services of a lawyer to file a complaint against Omaña before the Integrated Bar of
the Philippines Commission on Bar Discipline (IBP-CBD).
Omaña alleged that she knows Glindo but she does not personally know Espinosa. She
denied that she prepared the contract. She admitted that Espinosa went to see her and
requested for the notarization of the contract but she told him that it was illegal. Omaña
alleged that Espinosa returned the next day while she was out of the office and managed to
persuade her part-time office staff to notarize the document. Her office staff forged her
signature and notarized the contract. Omaña presented Marantal’s "Sinumpaang Salaysay"
(affidavit) to support her allegations and to show that the complaint was instigated by
Glindo. Omaña further presented a letter of apology from her staff, Arlene Dela Peña,
acknowledging that she notarized the document without Omaña’s knowledge, consent, and
authority.

Espinosa later submitted a "Karagdagang Salaysay" stating that Omaña arrived at his
residence together with a girl whom he later recognized as the person who notarized the
contract. He further stated that Omaña was not in her office when the contract was
notarized.

The Decision of the Commission on Bar Discipline

In its Report and Recommendation1 dated 6 February 2007, the IBP-CBD stated that
Espinosa’s desistance did not put an end to the proceedings. The IBP-CBD found that Omaña
violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that a
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The IBP-CBD
stated that Omaña had failed to exercise due diligence in the performance of her function
as a notary public and to comply with the requirements of the law. The IBP-CBD noted the
inconsistencies in the defense of Omaña who first claimed that it was her part-time staff
who notarized the contract but then later claimed that it was her former maid who
notarized it. The IBP-CBD found:

Respondent truly signed the questioned document, yet she still disclaimed its authorship,
thereby revealing much more her propensity to lie and make deceit, which she is deserving
[of] disciplinary sanction or disbarment.

The IBP-CBD recommended that Omaña be suspended for one year from the practice of law
and for two years as a notary public.

In a Resolution dated 19 September 2007, the IBP Board of Governors adopted and
approved the recommendation of the IBP-CBD.

Omaña filed a motion for reconsideration.

In a Resolution dated 26 June 2011, the IBP Board of Governors denied Omaña’s motion for
reconsideration.

The Issue

The sole issue in this case is whether Omaña violated the Canon of Professional
Responsibility in the notarization of Marantal and Espinosa’s "Kasunduan Ng Paghihiwalay."
 The Ruling of this Court

We adopt the findings and recommendation of the IBP-CBD.

This case is not novel. This Court has ruled that the extrajudicial dissolution of the conjugal
partnership without judicial approval is void.2 The Court has also ruled that a notary public
should not facilitate the disintegration of a marriage and the family by encouraging the
separation of the spouses and extrajudicially dissolving the conjugal partnership, 3 which is
exactly what Omaña did in this case.1avvphi1

In Selanova v. Judge Mendoza,4 the Court cited a number of cases where the lawyer was
sanctioned for notarizing similar documents as the contract in this case, such as: notarizing a
document between the spouses which permitted the husband to take a concubine and
allowed the wife to live with another man, without opposition from each other; 5 ratifying a
document entitled "Legal Separation" where the couple agreed to be separated from each
other mutually and voluntarily, renouncing their rights and obligations, authorizing each
other to remarry, and renouncing any action that they might have against each
other;6 preparing a document authorizing a married couple who had been separated for
nine years to marry again, renouncing the right of action which each may have against the
other;7 and preparing a document declaring the conjugal partnership dissolved.8

We cannot accept Omaña’s allegation that it was her part-time office staff who notarized
the contract. We agree with the IBP-CBD that Omaña herself notarized the contract. Even if
it were true that it was her part-time staff who notarized the contract, it only showed
Omaña’s negligence in doing her notarial duties. We reiterate that a notary public is
personally responsible for the entries in his notarial register and he could not relieve himself
of this responsibility by passing the blame on his secretaries 9 or any member of his staff.

We likewise agree with the IBP-CBD that in preparing and notarizing a void document,
Omaña violated Rule 1.01, Canon 1 of the Code of Professional Responsibility which
provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct." Omaña knew fully well that the "Kasunduan Ng Paghihiwalay" has no legal effect
and is against public policy. Therefore, Omaña may be suspended from office as an attorney
for breach of the ethics of the legal profession as embodied in the Code of Professional
Responsibility.10

WHEREFORE, we SUSPEND Atty. Julieta A. Omaña from the practice of law for ONE YEAR.
We REVOKE Atty. Omaña’s notarial commission, if still existing, and SUSPEND her as a
notary public for TWO YEARS.

Let a copy of this Decision be attached to Atty. Omaña’s personal record in the Office of the
Bar Confidant. Let a copy of this Decision be also furnished to all chapters of the Integrated
Bar of the Philippines and to all courts in the land.

SO ORDERED.
G.R. No. 164201 December 10, 2012

EFREN PANA, Petitioner,

vs.
HEIRS OF JOSE JUANITE, SR. and JOSE JUANITE, JR., Respondents.

DECISION

ABAD, J.:

This case is about the propriety of levy and execution on conjugal properties where one of
the spouses has been found guilty of a crime and ordered to pay civil indemnities to the
victims' heirs.

The Facts and the Case

The prosecution accused petitioner Efren Pana (Efren), his wife Melecia, and others of
murder before the. Regional Trial Court (RTC) of Surigao City in Criminal Cases 4232 and
4233.1

On July 9, 1997 the RTC rendered a consolidated decision2 acquitting Efren of the charge for
insufficiency of evidence but finding Melecia and another person guilty as charged and
sentenced them to the penalty of death. The RTC ordered those found guilty to pay each of
the heirs of the victims, jointly and severally, P50,000.00 as civil indemnity, P50,000.00 each
as moral damages, and P150,000.00 actual damages.

On appeal to this Court, it affirmed on May 24, 2001 the conviction of both accused but
modified the penalty to reclusion perpetua. With respect to the monetary awards, the Court
also affirmed the award of civil indemnity and moral damages but deleted the award for
actual damages for lack of evidentiary basis. In its place, however, the Court made an award
of P15,000.00 each by way of temperate damages. In addition, the Court awarded
P50,000.00 exemplary damages per victim to be paid solidarily by them. 3 The decision
became final and executory on October 1, 2001. 4

Upon motion for execution by the heirs of the deceased, on March 12, 2002 the RTC
ordered the issuance of the writ,5 resulting in the levy of real properties registered in the
names of Efren and Melecia.6 Subsequently, a notice of levy7 and a notice of sale on
execution8 were issued.

On April 3, 2002, petitioner Efren and his wife Melecia filed a motion to quash the writ of
execution, claiming that the levied properties were conjugal assets, not paraphernal assets
of Melecia.9 On September 16, 2002 the RTC denied the motion. 10 The spouses moved for
reconsideration but the RTC denied the same on March 6, 2003.11

Claiming that the RTC gravely abused its discretion in issuing the challenged orders, Efren
filed a petition for certiorari before the Court of Appeals (CA). On January 29, 2004 the CA
dismissed the petition for failure to sufficiently show that the RTC gravely abused its
discretion in issuing its assailed orders.12 It also denied Efren’s motion for
reconsideration,13 prompting him to file the present petition for review on certiorari.

The Issue Presented

The sole issue presented in this case is whether or not the CA erred in holding that the
conjugal properties of spouses Efren and Melecia can be levied and executed upon for the
satisfaction of Melecia’s civil liability in the murder case.

Ruling of the Court

To determine whether the obligation of the wife arising from her criminal liability is
chargeable against the properties of the marriage, the Court has first to identify the
spouses’ property relations.

Efren claims that his marriage with Melecia falls under the regime of conjugal partnership of
gains, given that they were married prior to the enactment of the Family Code and that they
did not execute any prenuptial agreement.14 Although the heirs of the deceased victims do
not dispute that it was the Civil Code, not the Family Code, which governed the marriage,
they insist that it was the system of absolute community of property that applied to Efren
and Melecia. The reasoning goes:

Admittedly, the spouses were married before the effectivity of the Family Code. But that
fact does not prevent the application of [A]rt. 94, last paragraph, of the Family Code
because their property regime is precisely governed by the law on absolute community. This
finds support in Art. 256 of the Family Code which states:

"This code shall have retroactive effect in so far as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws."

None of the spouses is dead. Therefore, no vested rights have been acquired by each over
the properties of the community. Hence, the liabilities imposed on the accused-spouse may
properly be charged against the community as heretofore discussed.15

The RTC applied the same reasoning as above.16 Efren and Melecia’s property relation was
admittedly conjugal under the Civil Code but, since the transitory provision of the Family
Code gave its provisions retroactive effect if no vested or acquired rights are impaired, that
property relation between the couple was changed when the Family Code took effect in
1988. The latter code now prescribes in Article 75 absolute community of property for all
marriages unless the parties entered into a prenuptial agreement. As it happens, Efren and
Melecia had no prenuptial agreement. The CA agreed with this position. 17

Both the RTC and the CA are in error on this point. While it is true that the personal stakes
of each spouse in their conjugal assets are inchoate or unclear prior to the liquidation of the
conjugal partnership of gains and, therefore, none of them can be said to have acquired
vested rights in specific assets, it is evident that Article 256 of the Family Code does not
intend to reach back and automatically convert into absolute community of property
relation all conjugal partnerships of gains that existed before 1988 excepting only those
with prenuptial agreements.

The Family Code itself provides in Article 76 that marriage settlements cannot be modified
except prior to marriage.

Art. 76. In order that any modification in the marriage settlements may be valid, it must be
made before the celebration of the marriage, subject to the provisions of Articles 66, 67,
128, 135 and 136.

Clearly, therefore, the conjugal partnership of gains that governed the marriage between
Efren and Melecia who were married prior to 1988 cannot be modified except before the
celebration of that marriage.

Post-marriage modification of such settlements can take place only where: (a) the absolute
community or conjugal partnership was dissolved and liquidated upon a decree of legal
separation;18 (b) the spouses who were legally separated reconciled and agreed to revive
their former property regime;19 (c) judicial separation of property had been had on the
ground that a spouse abandons the other without just cause or fails to comply with his
obligations to the family;20 (d) there was judicial separation of property under Article 135;
(e) the spouses jointly filed a petition for the voluntary dissolution of their absolute
community or conjugal partnership of gains.21 None of these circumstances exists in the
case of Efren and Melecia.

What is more, under the conjugal partnership of gains established by Article 142 of the Civil
Code, the husband and the wife place only the fruits of their separate property and incomes
from their work or industry in the common fund. Thus:

Art. 142. By means of the conjugal partnership of gains the husband and wife place in a
common fund the fruits of their separate property and the income from their work or
industry, and divide equally, upon the dissolution of the marriage or of the partnership, the
net gains or benefits obtained indiscriminately by either spouse during the marriage.

This means that they continue under such property regime to enjoy rights of ownership
over their separate properties. Consequently, to automatically change the marriage
settlements of couples who got married under the Civil Code into absolute community of
property in 1988 when the Family Code took effect would be to impair their acquired or
vested rights to such separate properties.

The RTC cannot take advantage of the spouses’ loose admission that absolute community of
property governed their property relation since the record shows that they had been
insistent that their property regime is one of conjugal partnership of gains. 22 No evidence of
a prenuptial agreement between them has been presented.

What is clear is that Efren and Melecia were married when the Civil Code was still the
operative law on marriages. The presumption, absent any evidence to the contrary, is that
they were married under the regime of the conjugal partnership of gains. Article 119 of the
Civil Code thus provides:
Art. 119. The future spouses may in the marriage settlements agree upon absolute or
relative community of property, or upon complete separation of property, or upon any
other regime. In the absence of marriage settlements, or when the same are void, the
system of relative community or conjugal partnership of gains as established in this Code,
shall govern the property relations between husband and wife.

Of course, the Family Code contains terms governing conjugal partnership of gains that
supersede the terms of the conjugal partnership of gains under the Civil Code. Article 105 of
the Family Code states:

"x x x x

The provisions of this Chapter [on the Conjugal Partnership of Gains] shall also apply to
conjugal partnerships of gains already established between spouses before the effectivity of
this Code, without prejudice to vested rights already acquired in accordance with the Civil
Code or other laws, as provided in Article 256."23

Consequently, the Court must refer to the Family Code provisions in deciding whether or
not the conjugal properties of Efren and Melecia may be held to answer for the civil
liabilities imposed on Melecia in the murder case. Its Article 122 provides:

Art. 122. The payment of personal debts contracted by the husband or the wife before or
during the marriage shall not be charged to the conjugal properties partnership except
insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the
partnership.

However, the payment of personal debts contracted by either spouse before the marriage,
that of fines and indemnities imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been covered, if the spouse who is
bound should have no exclusive property or if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse shall be charged for what has been paid for the
purpose above-mentioned.

Since Efren does not dispute the RTC’s finding that Melecia has no exclusive property of her
own,24 the above applies. The civil indemnity that the decision in the murder case imposed
on her may be enforced against their conjugal assets after the responsibilities enumerated
in Article 121 of the Family Code have been covered.25 Those responsibilities are as follows:

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the legitimate children of
either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
 (2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the
other to the extent that the family may have benefited;

(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the
conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the marriage upon the
separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional,

vocational, or other activity for self-improvement;

(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit
of the family;

(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or completing
a professional or vocational course or other activity for self-improvement; and

(9) Expenses of litigation between the spouses unless the suit is found to be
groundless.

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall
be solidarily liable for the unpaid balance with their separate properties.1âwphi1

Contrary to Efren’s contention, Article 121 above allows payment of the criminal
indemnities imposed on his wife, Melecia, out of the partnership assets even before these
are liquidated. Indeed, it states that such indemnities "may be enforced against the
partnership assets after the responsibilities enumerated in the preceding article have been
covered."[26] No prior liquidation of those assets is required. This is not altogether unfair
since Article 122 states that "at the time of liquidation of the partnership, such [offending]
spouse shall be charged for what has been paid for the purposes above-mentioned."

WHEREFORE, the Court AFFIRMS with MODIFICATION the Resolutions of the Court of
Appeals in CA-G.R. SP 77198 dated January 29, 2004 and May 14, 2004. The Regional Trial
Court of Surigao City, Branch 30, shall first ascertain that, in enforcing the writ of execution
on the conjugal properties of spouses Efren and Melecia Pana for the satisfaction of the
indemnities imposed by final judgment on the latter accused in Criminal Cases 4232 and
4233, the responsibilities enumerated in Article 121 of the Family Code have been covered.

SO ORDERED.
G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

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

This petition for certiorari brings up for review question whether the husband of a woman,
who voluntarily procured her abortion, could recover damages from physician who caused
the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar
Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the
merits of the complaint upon the evidence adduced, the trial court rendered judgment
favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as
damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a
special division of five, sustained the award by a majority vote of three justices as against
two, who rendered a separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in
1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her
present husband before they were legally married. Desiring to conceal her
pregnancy from her parent, and acting on the advice of her aunt, she had herself
aborted by the defendant. After her marriage with the plaintiff, she again became
pregnant. As she was then employed in the Commission on Elections and her
pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became pregnant.
On February 21, 1955, accompanied by her sister Purificacion and the latter's
daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met the defendant and his wife. Nita was
again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos,
Philippine currency. The plaintiff was at this time in the province of Cagayan,
campaigning for his election to the provincial board; he did not know of, nor gave his
consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award
of damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of
P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the
Philippines. This we believe to be error, for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no
alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del
Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable
of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains
primarily to the one injured, it is easy to see that if no action for such damages could be
instituted on behalf of the unborn child on account of the injuries it received, no such right
of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action
did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death,
since no transmission to anyone can take place from on that lacked juridical personality (or
juridical capacity as distinguished from capacity to act). It is no answer to invoke the
provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of
the Civil Code, because that same article expressly limits such provisional personality by
imposing the condition that the child should be subsequently born alive: "provided it be
born later with the condition specified in the following article". In the present case, there is
no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that
recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70
F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in
the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the
parents can not expect either help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of the normal development of
the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to
its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well
as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the
case before us, both the trial court and the Court of Appeals have not found any basis for an
award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was
unconcerned with the frustration of his parental hopes and affections. The lower court
expressly found, and the majority opinion of the Court of Appeals did not contradict it, that
the appellee was aware of the second abortion; and the probabilities are that he was
likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared
to have taken no steps to investigate or pinpoint the causes thereof, and secure the
punishment of the responsible practitioner. Even after learning of the third abortion, the
appellee does not seem to have taken interest in the administrative and criminal cases
against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00
attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly
exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:
 It seems to us that the normal reaction of a husband who righteously feels outraged
by the abortion which his wife has deliberately sought at the hands of a physician
would be highminded rather than mercenary; and that his primary concern would be
to see to it that the medical profession was purged of an unworthy member rather
than turn his wife's indiscretion to personal profit, and with that idea in mind to
press either the administrative or the criminal cases he had filed, or both, instead of
abandoning them in favor of a civil action for damages of which not only he, but also
his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife,
without medical necessity to warrant it, was a criminal and morally reprehensible act, that
can not be too severely condemned; and the consent of the woman or that of her husband
does not excuse it. But the immorality or illegality of the act does not justify an award of
damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without
costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of
Medical Examiners for their information and such investigation and action against the
appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.
G.R. No. 196049 June 26, 2013

MINORU FUJIKI, PETITIONER,

vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON
CITY, AND THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE NATIONAL
STATISTICS OFFICE,RESPONDENTS.

DECISION

CARPIO, J.:

The Case

This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107,
Quezon City, through a petition for review on certiorari under Rule 45 of the Rules of Court
on a pure question of law. The petition assails the Order 1 dated 31 January 2011 of the RTC
in Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011 denying petitioner’s
Motion for Reconsideration. The RTC dismissed the petition for "Judicial Recognition of
Foreign Judgment (or Decree of Absolute Nullity of Marriage)" based on improper venue
and the lack of personality of petitioner, Minoru Fujiki, to file the petition.

The Facts

Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz
Galela Marinay (Marinay) in the Philippines2 on 23 January 2004. The marriage did not sit
well with petitioner’s parents. Thus, Fujiki could not bring his wife to Japan where he
resides. Eventually, they lost contact with each other.

In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first
marriage being dissolved, Marinay and Maekara were married on 15 May 2008 in Quezon
City, Philippines. Maekara brought Marinay to Japan. However, Marinay allegedly suffered
physical abuse from Maekara. She left Maekara and started to contact Fujiki. 3

Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In
2010, Fujiki helped Marinay obtain a judgment from a family court in Japan which declared
the marriage between Marinay and Maekara void on the ground of bigamy. 4 On 14 January
2011, Fujiki filed a petition in the RTC entitled: "Judicial Recognition of Foreign Judgment (or
Decree of Absolute Nullity of Marriage)." Fujiki prayed that (1) the Japanese Family Court
judgment be recognized; (2) that the bigamous marriage between Marinay and Maekara be
declared void ab initiounder Articles 35(4) and 41 of the Family Code of the Philippines; 5 and
(3) for the RTC to direct the Local Civil Registrar of Quezon City to annotate the Japanese
Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to
endorse such annotation to the Office of the Administrator and Civil Registrar General in the
National Statistics Office (NSO).6

The Ruling of the Regional Trial Court

A few days after the filing of the petition, the RTC immediately issued an Order dismissing
the petition and withdrawing the case from its active civil docket.7 The RTC cited the
following provisions of the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC):

Sec. 2. Petition for declaration of absolute nullity of void marriages. –

(a) Who may file. – A petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or the wife.

xxxx

Sec. 4. Venue. – The petition shall be filed in the Family Court of the province or city where
the petitioner or the respondent has been residing for at least six months prior to the date
of filing, or in the case of a non-resident respondent, where he may be found in the
Philippines, at the election of the petitioner. x x x

The RTC ruled, without further explanation, that the petition was in "gross violation" of the
above provisions. The trial court based its dismissal on Section 5(4) of A.M. No. 02-11-10-SC
which provides that "[f]ailure to comply with any of the preceding requirements may be a
ground for immediate dismissal of the petition."8 Apparently, the RTC took the view that
only "the husband or the wife," in this case either Maekara or Marinay, can file the petition
to declare their marriage void, and not Fujiki.

Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC
contemplated ordinary civil actions for declaration of nullity and annulment of marriage.
Thus, A.M. No. 02-11-10-SC does not apply. A petition for recognition of foreign judgment is
a special proceeding, which "seeks to establish a status, a right or a particular fact," 9 and not
a civil action which is "for the enforcement or protection of a right, or the prevention or
redress of a wrong."10 In other words, the petition in the RTC sought to establish (1) the
status and concomitant rights of Fujiki and Marinay as husband and wife and (2) the fact of
the rendition of the Japanese Family Court judgment declaring the marriage between
Marinay and Maekara as void on the ground of bigamy. The petitioner contended that the
Japanese judgment was consistent with Article 35(4) of the Family Code of the
Philippines11 on bigamy and was therefore entitled to recognition by Philippine courts. 12

In any case, it was also Fujiki’s view that A.M. No. 02-11-10-SC applied only to void
marriages under Article 36 of the Family Code on the ground of psychological
incapacity.13 Thus, Section 2(a) of A.M. No. 02-11-10-SC provides that "a petition for
declaration of absolute nullity of void marriages may be filed solely by the husband or the
wife." To apply Section 2(a) in bigamy would be absurd because only the guilty parties
would be permitted to sue. In the words of Fujiki, "[i]t is not, of course, difficult to realize
that the party interested in having a bigamous marriage declared a nullity would be the
husband in the prior, pre-existing marriage."14 Fujiki had material interest and therefore the
personality to nullify a bigamous marriage.

Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court is applicable. Rule 108 is the "procedural implementation" of the Civil
Register Law (Act No. 3753)15 in relation to Article 413 of the Civil Code.16 The Civil Register
Law imposes a duty on the "successful petitioner for divorce or annulment of marriage to
send a copy of the final decree of the court to the local registrar of the municipality where
the dissolved or annulled marriage was solemnized."17 Section 2 of Rule 108 provides that
entries in the civil registry relating to "marriages," "judgments of annulments of marriage"
and "judgments declaring marriages void from the beginning" are subject to cancellation or
correction.18 The petition in the RTC sought (among others) to annotate the judgment of the
Japanese Family Court on the certificate of marriage between Marinay and Maekara.

Fujiki’s motion for reconsideration in the RTC also asserted that the trial court "gravely
erred" when, on its own, it dismissed the petition based on improper venue. Fujiki stated
that the RTC may be confusing the concept of venue with the concept of jurisdiction,
because it is lack of jurisdiction which allows a court to dismiss a case on its own. Fujiki
cited Dacoycoy v. Intermediate Appellate Court19 which held that the "trial court cannot pre-
empt the defendant’s prerogative to object to the improper laying of the venue by motu
proprio dismissing the case."20Moreover, petitioner alleged that the trial court should not
have "immediately dismissed" the petition under Section 5 of A.M. No. 02-11-10-SC because
he substantially complied with the provision.

On 2 March 2011, the RTC resolved to deny petitioner’s motion for reconsideration. In its
Resolution, the RTC stated that A.M. No. 02-11-10-SC applies because the petitioner, in
effect, prays for a decree of absolute nullity of marriage. 21 The trial court reiterated its two
grounds for dismissal, i.e. lack of personality to sue and improper venue under Sections 2(a)
and 4 of A.M. No. 02-11-10-SC. The RTC considered Fujiki as a "third person"22 in the
proceeding because he "is not the husband in the decree of divorce issued by the Japanese
Family Court, which he now seeks to be judicially recognized, x x x."23 On the other hand,
the RTC did not explain its ground of impropriety of venue. It only said that "[a]lthough the
Court cited Sec. 4 (Venue) x x x as a ground for dismissal of this case[,] it should be taken
together with the other ground cited by the Court x x x which is Sec. 2(a) x x x." 24

The RTC further justified its motu proprio dismissal of the petition based on Braza v. The City
Civil Registrar of Himamaylan City, Negros Occidental.25 The Court in Braza ruled that "[i]n a
special proceeding for correction of entry under Rule 108 (Cancellation or Correction of
Entries in the Original Registry), the trial court has no jurisdiction to nullify marriages x x
x."26 Braza emphasized that the "validity of marriages as well as legitimacy and filiation can
be questioned only in a direct action seasonably filed by the proper party, and not through a
collateral attack such as [a] petition [for correction of entry] x x x."27

The RTC considered the petition as a collateral attack on the validity of marriage between
Marinay and Maekara. The trial court held that this is a "jurisdictional ground" to dismiss
the petition.28 Moreover, the verification and certification against forum shopping of the
petition was not authenticated as required under Section 529 of A.M. No. 02-11-10-SC.
Hence, this also warranted the "immediate dismissal" of the petition under the same
provision.

The Manifestation and Motion of the Office of the Solicitor General and the Letters of
Marinay and Maekara
On 30 May 2011, the Court required respondents to file their comment on the petition for
review.30 The public respondents, the Local Civil Registrar of Quezon City and the
Administrator and Civil Registrar General of the NSO, participated through the Office of the
Solicitor General. Instead of a comment, the Solicitor General filed a Manifestation and
Motion.31

The Solicitor General agreed with the petition. He prayed that the RTC’s "pronouncement
that the petitioner failed to comply with x x x A.M. No. 02-11-10-SC x x x be set aside" and
that the case be reinstated in the trial court for further proceedings. 32 The Solicitor General
argued that Fujiki, as the spouse of the first marriage, is an injured party who can sue to
declare the bigamous marriage between Marinay and Maekara void. The Solicitor General
cited Juliano-Llave v. Republic33 which held that Section 2(a) of A.M. No. 02-11-10-SC does
not apply in cases of bigamy. In Juliano-Llave, this Court explained:

[t]he subsequent spouse may only be expected to take action if he or she had only
discovered during the connubial period that the marriage was bigamous, and especially if
the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit
from the bigamous marriage, it would not be expected that they would file an action to
declare the marriage void and thus, in such circumstance, the "injured spouse" who should
be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the
aggrieved party as the bigamous marriage not only threatens the financial and the property
ownership aspect of the prior marriage but most of all, it causes an emotional burden to the
prior spouse. The subsequent marriage will always be a reminder of the infidelity of the
spouse and the disregard of the prior marriage which sanctity is protected by the
Constitution.34

The Solicitor General contended that the petition to recognize the Japanese Family Court
judgment may be made in a Rule 108 proceeding.35 In Corpuz v. Santo Tomas,36 this Court
held that "[t]he recognition of the foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules
of Court) is precisely to establish the status or right of a party or a particular
fact."37 While Corpuzconcerned a foreign divorce decree, in the present case the Japanese
Family Court judgment also affected the civil status of the parties, especially Marinay, who is
a Filipino citizen.

The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to record
"[a]cts, events and judicial decrees concerning the civil status of persons" in the civil registry
as required by Article 407 of the Civil Code. In other words, "[t]he law requires the entry in
the civil registry of judicial decrees that produce legal consequences upon a person’s legal
capacity and status x x x."38 The Japanese Family Court judgment directly bears on the civil
status of a Filipino citizen and should therefore be proven as a fact in a Rule 108 proceeding.

Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing a
void marriage under Rule 108, citing De Castro v. De Castro39 and Niñal v. Bayadog40 which
declared that "[t]he validity of a void marriage may be collaterally attacked."41
Marinay and Maekara individually sent letters to the Court to comply with the directive for
them to comment on the petition. 42 Maekara wrote that Marinay concealed from him the
fact that she was previously married to Fujiki.43Maekara also denied that he inflicted any
form of violence on Marinay.44 On the other hand, Marinay wrote that she had no reason to
oppose the petition.45 She would like to maintain her silence for fear that anything she say
might cause misunderstanding between her and Fujiki.46

The Issues

Petitioner raises the following legal issues:

(1) Whether the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) is applicable.

(2) Whether a husband or wife of a prior marriage can file a petition to recognize a
foreign judgment nullifying the subsequent marriage between his or her spouse and
a foreign citizen on the ground of bigamy.

(3) Whether the Regional Trial Court can recognize the foreign judgment in a
proceeding for cancellation or correction of entries in the Civil Registry under Rule
108 of the Rules of Court.

The Ruling of the Court

We grant the petition.

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to recognize a foreign
judgment relating to the status of a marriage where one of the parties is a citizen of a
foreign country. Moreover, in Juliano-Llave v. Republic,47 this Court held that the rule in
A.M. No. 02-11-10-SC that only the husband or wife can file a declaration of nullity or
annulment of marriage "does not apply if the reason behind the petition is bigamy."48

I.

For Philippine courts to recognize a foreign judgment relating to the status of a marriage
where one of the parties is a citizen of a foreign country, the petitioner only needs to prove
the foreign judgment as a fact under the Rules of Court. To be more specific, a copy of the
foreign judgment may be admitted in evidence and proven as a fact under Rule 132,
Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court. 49 Petitioner
may prove the Japanese Family Court judgment through (1) an official publication or (2) a
certification or copy attested by the officer who has custody of the judgment. If the office
which has custody is in a foreign country such as Japan, the certification may be made by
the proper diplomatic or consular officer of the Philippine foreign service in Japan and
authenticated by the seal of office.50

To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment
would mean that the trial court and the parties should follow its provisions, including the
form and contents of the petition,51 the service of summons,52 the investigation of the
public prosecutor,53 the setting of pre-trial,54 the trial55 and the judgment of the trial
court.56 This is absurd because it will litigate the case anew. It will defeat the purpose of
recognizing foreign judgments, which is "to limit repetitive litigation on claims and
issues."57 The interpretation of the RTC is tantamount to relitigating the case on the merits.
In Mijares v. Rañada,58 this Court explained that "[i]f every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on his/her original cause of
action, rendering immaterial the previously concluded litigation."59

A foreign judgment relating to the status of a marriage affects the civil status, condition and
legal capacity of its parties. However, the effect of a foreign judgment is not automatic. To
extend the effect of a foreign judgment in the Philippines, Philippine courts must determine
if the foreign judgment is consistent with domestic public policy and other mandatory
laws.60 Article 15 of the Civil Code provides that "[l]aws relating to family rights and duties,
or to the status, condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad." This is the rule of lex nationalii in private
international law. Thus, the Philippine State may require, for effectivity in the Philippines,
recognition by Philippine courts of a foreign judgment affecting its citizen, over whom it
exercises personal jurisdiction relating to the status, condition and legal capacity of such
citizen.

A petition to recognize a foreign judgment declaring a marriage void does not require
relitigation under a Philippine court of the case as if it were a new petition for declaration of
nullity of marriage. Philippine courts cannot presume to know the foreign laws under which
the foreign judgment was rendered. They cannot substitute their judgment on the status,
condition and legal capacity of the foreign citizen who is under the jurisdiction of another
state. Thus, Philippine courts can only recognize the foreign judgment as a fact according to
the rules of evidence.

Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order
against a person creates a "presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title." Moreover, Section 48 of the Rules of Court
states that "the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact."
Thus, Philippine courts exercise limited review on foreign judgments. Courts are not allowed
to delve into the merits of a foreign judgment. Once a foreign judgment is admitted and
proven in a Philippine court, it can only be repelled on grounds external to its merits, i.e. ,
"want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact." The rule on limited review embodies the policy of efficiency and the protection of
party expectations,61 as well as respecting the jurisdiction of other states.62

Since 1922 in Adong v. Cheong Seng Gee,63 Philippine courts have recognized foreign
divorce decrees between a Filipino and a foreign citizen if they are successfully proven
under the rules of evidence.64 Divorce involves the dissolution of a marriage, but the
recognition of a foreign divorce decree does not involve the extended procedure under
A.M. No. 02-11-10-SC or the rules of ordinary trial. While the Philippines does not have a
divorce law, Philippine courts may, however, recognize a foreign divorce decree under the
second paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen to remarry
when his or her foreign spouse obtained a divorce decree abroad. 65

There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family
Court judgment nullifying the marriage between Marinay and Maekara on the ground of
bigamy. While the Philippines has no divorce law, the Japanese Family Court judgment is
fully consistent with Philippine public policy, as bigamous marriages are declared void from
the beginning under Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of
the Revised Penal Code. Thus, Fujiki can prove the existence of the Japanese Family Court
judgment in accordance with Rule 132, Sections 24 and 25, in relation to Rule 39, Section
48(b) of the Rules of Court.

II.

Since the recognition of a foreign judgment only requires proof of fact of the judgment, it
may be made in a special proceeding for cancellation or correction of entries in the civil
registry under Rule 108 of the Rules of Court. Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108 creates a remedy to rectify facts of a person’s
life which are recorded by the State pursuant to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as birth, death or marriage, 66 which the State
has an interest in recording. As noted by the Solicitor General, in Corpuz v. Sto. Tomas this
Court declared that "[t]he recognition of the foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the status or right of a party or a particular fact." 67

Rule 108, Section 1 of the Rules of Court states:

Sec. 1. Who may file petition. — Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the province where the corresponding civil registry
is located. (Emphasis supplied)

Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment
nullifying the marriage between Marinay and Maekara on the ground of bigamy because the
judgment concerns his civil status as married to Marinay. For the same reason he has the
personality to file a petition under Rule 108 to cancel the entry of marriage between
Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family
Court.

There is no doubt that the prior spouse has a personal and material interest in maintaining
the integrity of the marriage he contracted and the property relations arising from it. There
is also no doubt that he is interested in the cancellation of an entry of a bigamous marriage
in the civil registry, which compromises the public record of his marriage. The interest
derives from the substantive right of the spouse not only to preserve (or dissolve, in limited
instances68) his most intimate human relation, but also to protect his property interests that
arise by operation of law the moment he contracts marriage. 69 These property interests in
marriage include the right to be supported "in keeping with the financial capacity of the
family"70 and preserving the property regime of the marriage. 71

Property rights are already substantive rights protected by the Constitution, 72 but a spouse’s
right in a marriage extends further to relational rights recognized under Title III ("Rights and
Obligations between Husband and Wife") of the Family Code.73 A.M. No. 02-11-10-SC
cannot "diminish, increase, or modify" the substantive right of the spouse to maintain the
integrity of his marriage.74 In any case, Section 2(a) of A.M. No. 02-11-10-SC preserves this
substantive right by limiting the personality to sue to the husband or the wife of the union
recognized by law.

Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to
question the validity of a subsequent marriage on the ground of bigamy. On the contrary,
when Section 2(a) states that "[a] petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife"75—it refers to the husband or the
wife of the subsisting marriage. Under Article 35(4) of the Family Code, bigamous marriages
are void from the beginning. Thus, the parties in a bigamous marriage are neither the
husband nor the wife under the law. The husband or the wife of the prior subsisting
marriage is the one who has the personality to file a petition for declaration of absolute
nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.

Article 35(4) of the Family Code, which declares bigamous marriages void from the
beginning, is the civil aspect of Article 349 of the Revised Penal Code, 76 which penalizes
bigamy. Bigamy is a public crime. Thus, anyone can initiate prosecution for bigamy because
any citizen has an interest in the prosecution and prevention of crimes.77 If anyone can file a
criminal action which leads to the declaration of nullity of a bigamous marriage, 78 there is
more reason to confer personality to sue on the husband or the wife of a subsisting
marriage. The prior spouse does not only share in the public interest of prosecuting and
preventing crimes, he is also personally interested in the purely civil aspect of protecting his
marriage.

When the right of the spouse to protect his marriage is violated, the spouse is clearly an
injured party and is therefore interested in the judgment of the suit. 79 Juliano-Llave ruled
that the prior spouse "is clearly the aggrieved party as the bigamous marriage not only
threatens the financial and the property ownership aspect of the prior marriage but most of
all, it causes an emotional burden to the prior spouse."80 Being a real party in interest, the
prior spouse is entitled to sue in order to declare a bigamous marriage void. For this
purpose, he can petition a court to recognize a foreign judgment nullifying the bigamous
marriage and judicially declare as a fact that such judgment is effective in the Philippines.
Once established, there should be no more impediment to cancel the entry of the bigamous
marriage in the civil registry.

III.

In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held
that a "trial court has no jurisdiction to nullify marriages" in a special proceeding for
cancellation or correction of entry under Rule 108 of the Rules of Court. 81 Thus, the "validity
of marriage[] x x x can be questioned only in a direct action" to nullify the marriage. 82 The
RTC relied on Braza in dismissing the petition for recognition of foreign judgment as a
collateral attack on the marriage between Marinay and Maekara.

Braza is not applicable because Braza does not involve a recognition of a foreign judgment
nullifying a bigamous marriage where one of the parties is a citizen of the foreign country.

To be sure, a petition for correction or cancellation of an entry in the civil registry cannot
substitute for an action to invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards of marriage under the Family
Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution of
marriage,83 support pendente lite of the spouses and children,84 the liquidation, partition
and distribution of the properties of the spouses,85 and the investigation of the public
prosecutor to determine collusion.86 A direct action for declaration of nullity or annulment
of marriage is also necessary to prevent circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for
cancellation or correction of entries in the civil registry may be filed in the Regional Trial
Court "where the corresponding civil registry is located."87 In other words, a Filipino citizen
cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the
civil registry.

However, this does not apply in a petition for correction or cancellation of a civil registry
entry based on the recognition of a foreign judgment annulling a marriage where one of the
parties is a citizen of the foreign country. There is neither circumvention of the substantive
and procedural safeguards of marriage under Philippine law, nor of the jurisdiction of Family
Courts under R.A. No. 8369. A recognition of a foreign judgment is not an action to nullify a
marriage. It is an action for Philippine courts to recognize the effectivity of a foreign
judgment, which presupposes a case which was already tried and decided under foreign
law. The procedure in A.M. No. 02-11-10-SC does not apply in a petition to recognize a
foreign judgment annulling a bigamous marriage where one of the parties is a citizen of the
foreign country. Neither can R.A. No. 8369 define the jurisdiction of the foreign court.

Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the effect of
a foreign divorce decree to a Filipino spouse without undergoing trial to determine the
validity of the dissolution of the marriage. The second paragraph of Article 26 of the Family
Code provides that "[w]here a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law." In Republic v. Orbecido,88 this Court recognized the legislative intent of the
second paragraph of Article 26 which is "to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse"89 under the laws of his or her country. The second paragraph
of Article 26 of the Family Code only authorizes Philippine courts to adopt the effects of a
foreign divorce decree precisely because the Philippines does not allow divorce. Philippine
courts cannot try the case on the merits because it is tantamount to trying a case for
divorce.

The second paragraph of Article 26 is only a corrective measure to address the anomaly that
results from a marriage between a Filipino, whose laws do not allow divorce, and a foreign
citizen, whose laws allow divorce. The anomaly consists in the Filipino spouse being tied to
the marriage while the foreign spouse is free to marry under the laws of his or her country.
The correction is made by extending in the Philippines the effect of the foreign divorce
decree, which is already effective in the country where it was rendered. The second
paragraph of Article 26 of the Family Code is based on this Court’s decision in Van Dorn v.
Romillo90 which declared that the Filipino spouse "should not be discriminated against in her
own country if the ends of justice are to be served."91

The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a
foreign citizen who obtains a foreign judgment nullifying the marriage on the ground of
bigamy. The Filipino spouse may file a petition abroad to declare the marriage void on the
ground of bigamy. The principle in the second paragraph of Article 26 of the Family Code
applies because the foreign spouse, after the foreign judgment nullifying the marriage, is
capacitated to remarry under the laws of his or her country. If the foreign judgment is not
recognized in the Philippines, the Filipino spouse will be discriminated—the foreign spouse
can remarry while the Filipino spouse cannot remarry.

Under the second paragraph of Article 26 of the Family Code, Philippine courts are
empowered to correct a situation where the Filipino spouse is still tied to the marriage
while the foreign spouse is free to marry. Moreover, notwithstanding Article 26 of the
Family Code, Philippine courts already have jurisdiction to extend the effect of a foreign
judgment in the Philippines to the extent that the foreign judgment does not contravene
domestic public policy. A critical difference between the case of a foreign divorce decree
and a foreign judgment nullifying a bigamous marriage is that bigamy, as a ground for the
nullity of marriage, is fully consistent with Philippine public policy as expressed in Article
35(4) of the Family Code and Article 349 of the Revised Penal Code. The Filipino spouse has
the option to undergo full trial by filing a petition for declaration of nullity of marriage under
A.M. No. 02-11-10-SC, but this is not the only remedy available to him or her. Philippine
courts have jurisdiction to recognize a foreign judgment nullifying a bigamous marriage,
without prejudice to a criminal prosecution for bigamy.

In the recognition of foreign judgments, Philippine courts are incompetent to substitute

their judgment on how a case was decided under foreign law. They cannot decide on the
"family rights and duties, or on the status, condition and legal capacity" of the foreign
citizen who is a party to the foreign judgment. Thus, Philippine courts are limited to the
question of whether to extend the effect of a foreign judgment in the Philippines. In a
foreign judgment relating to the status of a marriage involving a citizen of a foreign country,
Philippine courts only decide whether to extend its effect to the Filipino party, under the
rule of lex nationalii expressed in Article 15 of the Civil Code.

For this purpose, Philippine courts will only determine (1) whether the foreign judgment is
inconsistent with an overriding public policy in the Philippines; and (2) whether any alleging
party is able to prove an extrinsic ground to repel the foreign judgment, i.e. want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. If
there is neither inconsistency with public policy nor adequate proof to repel the judgment,
Philippine courts should, by default, recognize the foreign judgment as part of the comity of
nations. Section 48(b), Rule 39 of the Rules of Court states that the foreign judgment is
already "presumptive evidence of a right between the parties." Upon recognition of the
foreign judgment, this right becomes conclusive and the judgment serves as the basis for
the correction or cancellation of entry in the civil registry. The recognition of the foreign
judgment nullifying a bigamous marriage is a subsequent event that establishes a new
status, right and fact92 that needs to be reflected in the civil registry. Otherwise, there will
be an inconsistency between the recognition of the effectivity of the foreign judgment and
the public records in the Philippines.1âwphi1

However, the recognition of a foreign judgment nullifying a bigamous marriage is without

prejudice to prosecution for bigamy under Article 349 of the Revised Penal Code. 93 The
recognition of a foreign judgment nullifying a bigamous marriage is not a ground for
extinction of criminal liability under Articles 89 and 94 of the Revised Penal Code. Moreover,
under Article 91 of the Revised Penal Code, "[t]he term of prescription [of the crime of
bigamy] shall not run when the offender is absent from the Philippine archipelago."

Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to address the
questions on venue and the contents and form of the petition under Sections 4 and 5,
respectively, of A.M. No. 02-11-10-SC.

WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the Resolution
dated 2 March 2011 of the Regional Trial Court, Branch 107, Quezon City, in Civil Case No.
Q-11-68582 are REVERSED and SET ASIDE. The Regional Trial Court
is ORDERED to REINSTATE the petition for further proceedings in accordance with this
Decision.

SO ORDERED.
G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA
CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.

Torcuato L. Galon for plaintiffs-appellants.

Godardo Jacinto for defendant-appellee.

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

Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte
(Judge Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for
support and damages, and another order denying amendment of the same pleading.

The events in the court of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below.
In her complaint it was averred that the parties were neighbors in Dapitan City, and had
close and confidential relations; that defendant Icao, although married, succeeded in having
carnal intercourse with plaintiff several times by force and intimidation, and without her
consent; that as a result she became pregnant, despite efforts and drugs supplied by
defendant, and plaintiff had to stop studying. Hence, she claimed support at P120.00 per
month, damages and attorney's fees.

Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the
complaint did not allege that the child had been born; and after hearing arguments, the trial
judge sustained defendant's motion and dismissed the complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the
intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was allowable, since the original complaint
averred no cause of action. Wherefore, the plaintiff appealed directly to this Court.

We find the appealed orders of the court below to be untenable. A conceived child,
although as yet unborn, is given by law a provisional personality of its own for all purposes
favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The
unborn child, therefore, has a right to support from its progenitors, particularly of the
defendant-appellee (whose paternity is deemed admitted for the purpose of the motion to
dismiss), even if the said child is only "en ventre de sa mere;" just as a conceived child, even
if as yet unborn, may receive donations as prescribed by Article 742 of the same Code, and
its being ignored by the parent in his testament may result in preterition of a forced heir
that annuls the institution of the testamentary heir, even if such child should be born after
the death of the testator Article 854, Civil Code).
 ART. 742. Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if they were
already born.

ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of 'representation.

It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that
support is an obligation of parents and illegitimate children "does not contemplate support
to children as yet unborn," violates Article 40 aforesaid, besides imposing a condition that
nowhere appears in the text of Article 291. It is true that Article 40 prescribing that "the
conceived child shall be considered born for all purposes that are favorable to it" adds
further "provided it be born later with the conditions specified in the following article" (i.e.,
that the foetus be alive at the time it is completely delivered from the mother's womb). This
proviso, however, is not a condition precedent to the right of the conceived child; for if it
were, the first part of Article 40 would become entirely useless and ineffective. Manresa, in
his Commentaries (5th Ed.) to the corresponding Article 29 of the Spanish Civil Code, clearly
points this out:

Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en

el sentido tecnico que la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30,
no determina el nacimiento de aquellos derechos (que ya existian de
antemano), sino que se trata de un hecho que tiene efectos declarativos. (1
Manresa, Op. cit., page 271)

A second reason for reversing the orders appealed from is that for a married man to force a
woman not his wife to yield to his lust (as averred in the original complaint in this case)
constitutes a clear violation of the rights of his victim that entitles her to claim
compensation for the damage caused. Says Article 21 of the Civil Code of the Philippines:

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 rule of Article 21 is supported by Article 2219 of the same Code:

ART 2219. Moral damages may be recovered in the following and analogous
cases:

(3) Seduction, abduction, rape or other lascivious acts:

 xxx xxx xxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....

Thus, independently of the right to Support of the child she was carrying, plaintiff herself
had a cause of action for damages under the terms of the complaint; and the order
dismissing it for failure to state a cause of action was doubly in error.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded
to the court of origin for further proceedings conformable to this decision. Costs against
appellee Felix Icao. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and
Villamor, JJ., concur
G.R. No. 204169 September 11, 2013

YASUO IWASAWA, PETITIONER,

vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN ARAMBULO, AND FELISA GANGAN
IWASAWA) AND THE LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, assailing the September 4, 2012 Decision2 and October 16, 2012
Order3 of the Regional Trial Court (RTC), Branch 43, of Manila in Civil Case No. 11-126203.
The RTC denied the petition for declaration of nullity of the marriage of petitioner Yasuo
Iwasawa with private respondent Felisa Custodio Gangan due to insufficient evidence.

The antecedents follow:

Petitioner, a Japanese national, met private respondent sometime in 2002 in one of his
visits to the Philippines. Private respondent introduced herself as "single" and "has never
married before." Since then, the two became close to each other. Later that year, petitioner
came back to the Philippines and married private respondent on November 28, 2002 in
Pasay City. After the wedding, the couple resided in Japan.4

In July 2009, petitioner noticed his wife become depressed. Suspecting that something
might have happened in the Philippines, he confronted his wife about it. To his shock,
private respondent confessed to him that she received news that her previous husband
passed away.5

Petitioner sought to confirm the truth of his wife’s confession and discovered that indeed,
she was married to one Raymond Maglonzo Arambulo and that their marriage took place on
June 20, 1994.6 This prompted petitioner to file a petition7 for the declaration of his
marriage to private respondent as null and void on the ground that their marriage is a
bigamous one, based on Article 35(4) in relation to Article 41 of the Family Code of the
Philippines.

During trial, aside from his testimony, petitioner also offered the following pieces of
documentary evidence issued by the National Statistics Office (NSO):

(1)

Certificate of Marriage8 between petitioner and private respondent marked as

Exhibit "A" to prove the fact of marriage between the parties on November 28, 2002;

(2)
 Certificate of Marriage9 between private respondent and Raymond Maglonzo
Arambulo marked as Exhibit "B" to prove the fact of marriage between the parties
on June 20, 1994;

(3)

Certificate of Death10 of Raymond Maglonzo Arambulo marked as Exhibits "C" and

"C-1" to prove the fact of the latter’s death on July 14, 2009; and

(4)

Certification11 from the NSO to the effect that there are two entries of marriage
recorded by the office pertaining to private respondent marked as Exhibit "D" to
prove that private respondent in fact contracted two marriages, the first one was to
a Raymond Maglonzo Arambulo on June 20, 1994, and second, to petitioner on
November 28, 2002.

The prosecutor appearing on behalf of the Office of the Solicitor General (OSG) admitted the
authenticity and due execution of the above documentary exhibits during pre-trial.12

On September 4, 2012, the RTC rendered the assailed decision. It ruled that there was
insufficient evidence to prove private respondent’s prior existing valid marriage to another
man. It held that while petitioner offered the certificate of marriage of private respondent
to Arambulo, it was only petitioner who testified about said marriage. The RTC ruled that
petitioner’s testimony is unreliable because he has no personal knowledge of private
respondent’s prior marriage nor of Arambulo’s death which makes him a complete stranger
to the marriage certificate between private respondent and Arambulo and the latter’s death
certificate. It further ruled that petitioner’s testimony about the NSO certification is likewise
unreliable since he is a stranger to the preparation of said document.

Petitioner filed a motion for reconsideration, but the same was denied by the RTC in an
Order dated October 16, 2012.

Hence this petition raising the sole legal issue of whether the testimony of the NSO records
custodian certifying the authenticity and due execution of the public documents issued by
said office was necessary before they could be accorded evidentiary weight.

Petitioner argues that the documentary evidence he presented are public documents which
are considered self-authenticating and thus it was unnecessary to call the NSO Records
Custodian as witness. He cites Article 410 of the Civil Code which provides that books
making up the civil register and all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts stated therein. Moreover, the trial
prosecutor himself also admitted the authenticity of said documents.

The OSG, in its Comment,13 submits that the findings of the RTC are not in accord with law
and established jurisprudence. It contends that both Republic Act No. 3753, otherwise
known as the Law on Registry of Civil Status, and the Civil Code elaborated on the character
of documents arising from records and entries made by the civil registrar and categorically
declared them as public documents. Being public documents, said documents are
admissible in evidence even without further proof of their due execution and genuineness
and consequently, there was no need for the court to require petitioner to present the
records custodian or officer from the NSO to testify on them. The OSG further contends that
public documents have probative value since they are prima facie evidence of the facts
stated therein as provided in the above-quoted provision of the Civil Code. Thus, the OSG
submits that the public documents presented by petitioner, considered together,
completely establish the facts in issue.

In her letter14 dated March 19, 2013 to this Court, private respondent indicated that she is
not against her husband’s petition to have their marriage declared null and void. She
likewise admitted therein that she contracted marriage with Arambulo on June 20, 1994
and contracted a second marriage with petitioner on November 28, 2002. She further
admitted that it was due to poverty and joblessness that she married petitioner without
telling the latter that she was previously married. Private respondent also confirmed that it
was when she found out that Arambulo passed away on July 14, 2009 that she had the guts
to confess to petitioner about her previous marriage. Thereafter, she and petitioner have
separated.

We grant the petition.

There is no question that the documentary evidence submitted by petitioner are all public
documents.1âwphi1 As provided in the Civil Code:

ART. 410. The books making up the civil register and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts therein
contained.

As public documents, they are admissible in evidence even without further proof of their
due execution and genuineness.15 Thus, the RTC erred when it disregarded said documents
on the sole ground that the petitioner did not present the records custodian of the NSO who
issued them to testify on their authenticity and due execution since proof of authenticity
and due execution was not anymore necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant case, the facts stated therein remain
unrebutted since neither the private respondent nor the public prosecutor presented
evidence to the contrary.

This Court has consistently held that a judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else, what transpires is a bigamous
marriage,16 which is void from the beginning as provided in Article 35(4) of the Family Code
of the Philippines. And this is what transpired in the instant case.

As correctly pointed out by the OSG, the documentary exhibits taken together concretely
establish the nullity of the marriage of petitioner to private respondent on the ground that
their marriage is bigamous. The exhibits directly prove the following facts: (1) that private
respondent married Arambulo on June 20, 1994 in the City of Manila; (2) that private
respondent contracted a second marriage this time with petitioner on November 28, 2002
in Pasay City; (3) that there was no judicial declaration of nullity of the marriage of private
respondent with Arambulo at the time she married petitioner; (3) that Arambulo died on
July 14, 2009 and that it was only on said date that private respondent’s marriage with
Arambulo was deemed to have been dissolved; and (4) that the second marriage of private
respondent to petitioner is bigamous, hence null and void, since the first marriage was still
valid and subsisting when the second marriage was contracted.

WHEREFORE, the petition for review on certiorari is GRANTED. The September 4, 2012
Decision and October 16, 2012 Order of the Regional Trial Court of Manila, Branch 43, in
Civil Case No. 11-126203 are hereby SET ASIDE. The marriage of petitioner Yasuo Iwasawa
and private respondent Felisa Custodio Gangan is declared NULL and VOID.

The Local Civil Registrar of Pasay City and the National Statistics Office are hereby ORDERED
to make proper entries into the records of the abovementioned parties in accordance with
this Decision.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 191425 September 7, 2011

ATILANO O. NOLLORA, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO, J.:

The Case

G.R. No. 191425 is a petition for review1 assailing the Decision2 promulgated on 30
September 2009 as well as the Resolution3 promulgated on 23 February 2010 by the Court
of Appeals (appellate court) in CA-G.R. CR No. 31538. The appellate court affirmed the 19
November 2007 Decision4 of Branch 215 of the Regional Trial Court of Quezon City (trial
court) in Criminal Case No. Q-04-129031.

The trial court found accused Atilano O. Nollora, Jr. (Nollora) guilty of bigamy under Article
349 of the Revised Penal Code and sentenced him to suffer imprisonment. Co-accused
Rowena Geraldino (Geraldino) was acquitted for the prosecution’s failure to prove her guilt
beyond reasonable doubt.

The Facts

The appellate court recited the facts as follows:

On August 24, 2004, Assistant City Prosecutor Raymond Jonathan B. Lledo filed an
Information against Atilano O. Nollora, Jr. ("Nollora") and Rowena P. Geraldino
("Geraldino") for the crime of Bigamy. The accusatory portion of the Information reads:

"That on or about the 8th day of December 2001 in Quezon City, Philippines, the above-
named accused ATILANO O. NOLLORA, JR., being then legally married to one JESUSA PINAT
NOLLORA, and as said marriage has not been legally dissolved and still subsisting, did then
and there willfully, unlawfully and feloniously contract a subsequent or second marriage
with her [sic] co-accused ROWENA P. GERALDINO, who knowingly consented and agreed to
be married to her co-accused ATILANO O. NOLLORA, JR. knowing him to be a married man,
to the damage and prejudice of the said offended party JESUSA PINAT NOLLORA."

Upon his arraignment on April 18, 2005, accused Nollora assisted by counsel, refused to
enter his plea. Hence, a plea of not guilty was entered by the Court for him. Accused
Geraldino, on the other hand, entered a plea of not guilty when arraigned on June 14, 2005.
On even date, pre-trial conference was held and both the prosecution and defense entered
the following stipulation of facts:

"1. the validity of the first marriage between Atilano O. Nollora, Jr. and Jesusa
Pinat Nollora solemnized on April 6, 1999 at Sapang Palay, San Jose del
Monte;
 2. that Atilano O. Nollora, Jr. contracted the second marriage with Rowena P.
Geraldino on December 8, 2001 in Quezon City;

3. that in the Counter-Affidavit of Atilano O. Nollora, Jr., he admitted that he

contracted the second marriage to Rowena P. Geraldino;

4. that Rowena P. Geraldino attached to her Counter-Affidavit the Certificate

of Marriage with Atilano O. Nollora, Jr. dated December 8, 2001;

5. the fact of marriage of Rowena P. Geraldino with Atilano O. Nollora, Jr. as

admitted in her Counter-Affidavit."

The only issue thus proffered by the prosecution for the RTC’s resolution is whether or not
the second marriage is bigamous. Afterwards, pre-trial conference was terminated and the
case was set for initial hearing. Thereafter, trial ensued.

Evidence for the Prosecution

As culled from the herein assailed Decision, the respective testimonies of prosecution
witnesses were as follows:

"xxx (W)itness Jesusa Pinat Nollora xxx testified that she and accused Atilano O. Nollora, Jr.
met in Saudi Arabia while she was working there as a Staff Midwife in King Abdulah Naval
Base Hospital. Atilano O. Nollora, Jr. courted her and on April 6, 1999, they got married at
the [IE]MELIF Chruch [sic] in Sapang Palay, San Jose del Monte, Bulacan (Exhibit ‘A’). While
working in said hospital, she heard rumors that her husband has another wife and because
of anxiety and emotional stress, she left Saudi Arabia and returned to the Philippines (TSN,
October 4, 2005, page 10). Upon arrival in the Philippines, the private complainant learned
that indeed, Atilano O. Nollora, Jr. contracted a second marriage with co-accused Rowena P.
Geraldino on December 8, 2001 (Exhibit ‘B’) when she secured a certification as to the civil
status of Atilano O. Nollora, Jr. (Exhibit ‘C’) from the National Statistics Office (NSO)
sometime in November 2003.

Upon learning this information, the private complainant confronted Rowena P. Geraldino at
the latter’s workplace in CBW, FTI, Taguig and asked her if she knew of the first marriage
between complainant and Atilano O. Nollora, Jr. to which Rowena P. Geraldino allegedly
affirmed and despite this knowledge, she allegedly still married Atilano O. Nollora, Jr.
because she loves him so much and because they were neighbors and childhood friends.
Private complainant also knew that Rowena P. Geraldino knew of her marriage with Atilano
O. Nollora, Jr., because when she (private complainant) was brought by Atilano O. Nollora,
Jr. at the latter’s residence in Taguig, Metro Manila and introduced her to Atilano O.
Nollora, Jr.’s parents, Rowena P. Geraldino was there in the house together with a friend
and she heard everything that they were talking about.

Because of this case, private complainant was not able to return to Saudi Arabia to work as
a Staff Midwife thereby losing income opportunity in the amount of ₱34,000.00 a month,
more or less. When asked about the moral damages she suffered, she declared that what
happened to her was a tragedy and she had entertained [thoughts] of committing suicide.
She added that because of what happened to her, her mother died and she almost got
raped when Atilano O. Nollora, Jr. left her alone in their residence in Saudi Arabia. However,
she declared that money is not enough to assuage her sufferings. Instead, she just asked for
the return of her money in the amount of ₱50,000.00 (TSN, July 26, 2005, pages 4-14).

Prosecution witness Ruth Santos testified that she knew of the marriage between the
private complainant and Atilano O. Nollora, Jr., because she was one of the sponsors in said
wedding. Sometime in November 2003, she was asked by the private complainant to
accompany the latter to the workplace of Rowena P. Geraldino in FTI, Taguig, Metro Manila.
She declared that the private complainant and Rowena P. Geraldino had a confrontation
and she heard that Rowena P. Geraldino admitted that she (Rowena) knew of the first
marriage of Atilano O. Nollora, Jr. and the private complainant but she still went on to marry
Atilano O. Nollora, Jr. because she loves him very much (TSN, October 24, 2005, pages 3-5).

Evidence for the Defense

The defense’s version of facts, as summarized in the herein assailed Decision, is as follows:

"Accused Atilano O. Nollora, Jr. admitted having contracted two (2) marriages, the first with
private complainant Jesusa Pinat and the second with Rowena P. Geraldino. He, however,
claimed that he was a Muslim convert way back on January 10, 1992, even before he
contracted the first marriage with the private complainant. As a [M]uslim convert, he is
allegedly entitled to marry four (4) wives as allowed under the Muslim or Islam belief.

To prove that he is a Muslim convert even prior to his marriage to the private complainant,
Atilano O. Nollora, Jr. presented a Certificate of Conversion dated August 2, 2004 issued by
one Hadji Abdul Kajar Madueño and approved by one Khad Ibrahim A. Alyamin wherein it is
stated that Atilano O. Nollora, Jr. allegedly converted as a Muslim since January 19, 1992
(Exhibit ‘2,’ ‘3’ and ‘4’). Aside from said certificate, he also presented a Pledge of Conversion
dated January 10, 1992 issued by the same Hadji Abdul Kajar Madueño and approved by
one Khad Ibrahim A. Alyamin (Exhibit ‘7’).

He claimed that the private complaint knew that he was a Muslim convert prior to their
marriage because she [sic] told this fact when he was courting her in Saudi Arabia and the
reason why said private complainant filed the instant case was due to hatred having learned
of his second marriage with Rowena P. Geraldino. She [sic] further testified that Rowena P.
Geraldino was not aware of his first marriage with the private complainant and he did not
tell her this fact because Rowena P. Geraldino is a Catholic and he does not want to lose her
if she learns of his first marriage.

He explained that in his Marriage Contract with Jesusa Pinat, it is indicated that he was a
‘Catholic Pentecostal’ but that he was not aware why it was placed as such on said contract.
In his Marriage Contract with Rowena P. Geraldino, the religion ‘Catholic’ was also indicated
because he was keeping as a secret his being a Muslim since the society does not approve of
marrying a Muslim. He also indicated that he was ‘single’ despite his first marriage to keep
said first marriage a secret (TSN, January 30, 2006, pages 2-13).
Defense witness Hadji Abdul Qasar Madueño testified that he is the founder and president
of Balik Islam Tableegh Foundation of the Philippines and as such president, he has the
power and authority to convert any applicant to the Muslim religion. He alleged that
sometime in 1992, he met accused Atilano O. Nollora, Jr. in Mabini (Manila) who was then
going abroad. Atilano O. Nollora, Jr. applied to become a Muslim (Exhibit ‘14’) and after
receiving the application, said accused was indoctrinated regarding his obligations as a
Muslim. On January 10, 1992, Atilano O. Nollora, Jr. embraced the Muslim faith. He was
then directed to report every Sunday to monitor his development.

In the year 2004, Atilano O. Nollora, Jr. visited him and asked for a certification because of
the filing of the instant case. On October 2, 2004, he issued a Certificate of Conversion
wherein it is stated that Atilano O. Nollora, Jr. is a Muslim convert since January 10, 1992.
Apart from the above-mentioned document, their ‘Imam’ also issued a Pledge of Conversion
(Exhibit ‘7’). He declared that a Muslim convert could marry more than one according to the
Holy Koran. However, before marrying his second, third and fourth wives, it is required that
the consent of the first Muslim wife be secured. Thus, if the first wife is not a Muslim, there
is no necessity to secure her consent (TSN, October 9, 2006, pages 2-12).

During his cross-examinations, he declared that if a Muslim convert gets married not in
accordance with the Muslim faith, the same is contrary to the teachings of the Muslim faith.
A Muslim also can marry up to four times but he should be able to treat them equally. He
claimed that he was not aware of the first marriage but was aware of the second. Since his
second marriage with Rowena P. Geraldino was not in accordance with the Muslim faith, he
advised Atilano O. Nollora, Jr. to re-marry Rowena P. Geraldino in accordance with Muslim
marriage celebration, otherwise, he will not be considered as a true Muslim (TSN, June 25,
2007, pages 3-7).

Accused Rowena P. Geraldino alleged that she was only a victim in this incident of bigamous
marriage. She claimed that she does not know the private complainant Jesusa Pinat Nollora
and only came to know her when this case was filed. She insists that she is the one lawfully
married to Atilano O. Nollora, Jr., having been married to the latter since December 8, 2001.
Upon learning that Atilano O. Nollora, Jr. contracted a first marriage with the private
complainant, she confronted the former who admitted the said marriage. Prior to their
marriage, she asked Atilano O. Nollora, Jr. if he was single and the latter responded that he
was single. She also knew that her husband was a Catholic prior to their marriage but after
she learned of the first marriage of her husband, she learned that he is a Muslim convert.
She also claimed that after learning that her husband was a Muslim convert, she and Atilano
O. Nollora, Jr., also got married in accordance with the Muslim rites. She also belied the
allegations of the private complainant that she was sought by the private complainant and
that they had a confrontation where she admitted that she knew that Atilano O. Nollora, Jr.
was married to the private complainant and despite this knowledge, she went on to marry
him because she loved him very much. She insisted that she only came to know the private
complainant when she (private complainant) filed this case (TSN, August 14, 2007, pages 2-
8)."5
 The Trial Court’s Ruling

In its Decision6 dated 19 November 2007, the trial court convicted Nollora and acquitted
Geraldino.

The trial court stated that there are only two exceptions to prosecution for bigamy: Article
417 of the Family Code, or Executive Order No. 209, and Article 1808 of the Code of Muslim
Personal Laws of the Philippines, or Presidential Decree No. 1083. The trial court also cited
Article 27 of the Code of Muslim Personal Laws of the Philippines, which provides the
qualifications for allowing Muslim men to have more than one wife: "[N]o Muslim male can
have more than one wife unless he can deal with them in equal companionship and just
treatment as enjoined by Islamic Law and only in exceptional cases."

In convicting Nollora, the trial court’s Decision further stated thus:

The principle in Islam is that monogamy is the general rule and polygamy is allowed only to
meet urgent needs. Only with the permission of the court can a Muslim be permitted to
have a second wife subject to certain requirements. This is because having plurality of wives
is merely tolerated, not encouraged, under certain circumstances (Muslim Law on Personal
Status in the Philippines by Amer M. Bara-acal and Abdulmajid J. Astir, 1998 First Edition,
Pages 64-65). Arbitration is necessary. Any Muslim husband desiring to contract subsequent
marriages, before so doing, shall notify the Shari’a Circuit Court of the place where his
family resides. The clerk of court shall serve a copy thereof to the wife or wives. Should any
of them objects [sic]; an Agama Arbitration Council shall be constituted. If said council fails
to secure the wife’s consent to the proposed marriage, the Court shall, subject to Article 27,
decide whether on [sic] not to sustain her objection (Art. 162, Muslim Personal Laws of the
Philippines).

Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena P. Geraldino,
did not comply with the above-mentioned provision of the law. In fact, he did not even
declare that he was a Muslim convert in both marriages, indicating his criminal intent. In his
converting to the Muslim faith, said accused entertained the mistaken belief that he can just
marry anybody again after marrying the private complainant. What is clear, therefore, is
[that] a Muslim is not given an unbridled right to just marry anybody the second, third or
fourth time. There are requirements that the Shari’a law imposes, that is, he should have
notified the Shari’a Court where his family resides so that copy of said notice should be
furnished to the first wife. The argument that notice to the first wife is not required since
she is not a Muslim is of no moment. This obligation to notify the said court rests upon
accused Atilano Nollora, Jr. It is not for him to interpret the Shari’a law. It is the Shari’a
Court that has this authority.

In an apparent attempt to escape criminal liability, the accused recelebrated their marriage
in accordance with the Muslim rites. However, this can no longer cure the criminal liability
that has already been violated.

The Court, however, finds criminal liability on the person of accused Atilano Nollora, Jr.,
only. There is no sufficient evidence that would pin accused Rowena P. Geraldino down. The
evidence presented by the prosecution against her is the allegation that she knew of the
first marriage between private complainant and Atilano Nollora, Jr., is insufficient[,] being
open to several interpretations. Private complainant alleged that when she was brought by
Atilano Nollora, Jr., to the latter’s house in Taguig, Metro Manila, Rowena P. Geraldino was
there standing near the door and heard their conversation. From this incident, private
complainant concluded that said Rowena P. Geraldino was aware that she and Atilano
Nollora, Jr., were married. This conclusion is obviously misplaced since it could not be
reasonably presumed that Rowena P. Geraldino understands what was going on between
her and Atilano Nollora, Jr. It is axiomatic that "(E)very circumstance favoring accused’s
innocence must be taken into account, proof against him must survive the test of reason and
the strongest suspicion must not be permitted to sway judgment" (People vs. Austria, 195
SCRA 700). This Court, therefore, has to acquit Rowena P. Geraldino for failure of the
prosecution to prove her guilt beyond reasonable doubt.

WHEREFORE, premises considered, judgment is hereby rendered, as follows:

a) Finding accused ATILANO O. NOLLORA, JR. guilty beyond reasonable doubt

of the crime of Bigamy punishable under Article 349 of the Revised Penal
Code. This court hereby renders judgment imposing upon him a prison term
of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum of his indeterminate sentence, to eight (8) years and one (1) day of
prision mayor, as maximum, plus accessory penalties provided by law.

b) Acquitting accused ROWENA P. GERALDINO of the crime of Bigamy for

failure of the prosecution to prove her guilt beyond reasonable doubt.

Costs against accused Atilano O. Nollora, Jr.

SO ORDERED.9

Nollora filed a notice of appeal and moved for the allowance of his temporary liberty under
the same bail bond pending appeal. The trial court granted Nollora’s motion.

Nollora filed a brief with the appellate court and assigned only one error of the trial court:

The trial court gravely erred in finding the accused-appellant guilty of the crime charged
despite the prosecution’s failure to establish his guilt beyond reasonable doubt.10

The Appellate Court’s Ruling

On 30 September 2009, the appellate court dismissed Nollora’s appeal and affirmed the trial
court’s decision.11

The appellate court rejected Nollora’s defense that his second marriage to Geraldino was in
lawful exercise of his Islamic religion and was allowed by the Qur’an. The appellate court
denied Nollora’s invocation of his religious beliefs and practices to the prejudice of the non-
Muslim women who married him pursuant to Philippine civil laws.1avvphi1Nollora’s two
marriages were not conducted in accordance with the Code of Muslim Personal Laws, hence
the Family Code of the Philippines should apply. Nollora’s claim of religious freedom will not
immobilize the State and render it impotent in protecting the general welfare.

In a Resolution12 dated 23 February 2010, the appellate court denied Nollora’s motion for
reconsideration. The allegations in the motion for reconsideration were a mere rehash of
Nollora’s earlier arguments, and there was no reason for the appellate court to modify its 30
September 2009 Decision.

Nollora filed the present petition for review before this Court on 6 April 2010.

The Issue

The issue in this case is whether Nollora is guilty beyond reasonable doubt of the crime of
bigamy.

The Court’s Ruling

Nollora’s petition has no merit. We affirm the rulings of the appellate court and of the trial
court.

Elements of Bigamy

Article 349 of the Revised Penal Code provides:

Art. 349. Bigamy. ‒ The penalty of prision mayor shall be imposed upon any person who
shall contract a second or subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.

The elements of the crime of bigamy are:

1. That the offender has been legally married.

2. That the marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be presumed
dead according to the Civil Code.

3. That he contracts a second or subsequent marriage.

4. That the second or subsequent marriage has all the essential requisites for
validity.13

The circumstances in the present case satisfy all the elements of bigamy. (1) Nollora is
legally married to Pinat;14(2) Nollora and Pinat’s marriage has not been legally dissolved
prior to the date of the second marriage; (3) Nollora admitted the existence of his second
marriage to Geraldino;15 and (4) Nollora and Geraldino’s marriage has all the essential
requisites for validity except for the lack of capacity of Nollora due to his prior marriage. 16
The marriage certificate17 of Nollora and Pinat’s marriage states that Nollora and Pinat were
married at Sapang Palay IEMELIF Church, Sapang Palay, San Jose del Monte, Bulacan on 6
April 1999. Rev. Jonathan De Mesa, Minister of the IEMELIF Church officiated the ceremony.
The marriage certificate18 of Nollora and Geraldino’s marriage states that Nollora and
Geraldino were married at Max’s Restaurant, Quezon Avenue, Quezon City, Metro Manila
on 8 December 2001. Rev. Honorato D. Santos officiated the ceremony.

A certification dated 4 November 2003 from the Office of the Civil Registrar General reads:

We certify that ATILANO JR O. NOLLORA who is alleged to have been born on February 22,
1968 from ATILANO M. NOLLORA SR and FLAVIANA OCLARIT, appears in our National
Indices of Marriage for Groom for the years 1973 to 2002 with the following information:

Date of Marriage Place of Marriage

a) April 06, 1999 b) SAN JOSE DEL MONTE, BULACAN

a) December 08, 2001 b) QUEZON CITY, METRO MANILA (2nd District) 19

Before the trial and appellate courts, Nollora put up his Muslim religion as his sole defense.
He alleged that his religion allows him to marry more than once. Granting arguendo that
Nollora is indeed of Muslim faith at the time of celebration of both marriages, 20 Nollora
cannot deny that both marriage ceremonies were not conducted in accordance with the
Code of Muslim Personal Laws, or Presidential Decree No. 1083. The applicable Articles in
the Code of Muslim Personal Laws read:

Art. 14. Nature. - Marriage is not only a civil contract but a civil institution. Its nature,
consequences and incidents are governed by this Code and the Shari’a and not subject to
stipulation, except that the marriage settlements to a certain extent fix the property
relations of the spouses.

Art. 15. Essential Requisites. - No marriage contract shall be perfected unless the following
essential requisites are complied with:

(a) Legal capacity of the contracting parties;

(b) Mutual consent of the parties freely given;

(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent
persons after the proper guardian in marriage (wali) has given his consent; and

(d) Stipulation of the customary dower (mahr) duly witnessed by two competent
persons.

Art. 16. Capacity to contract marriage. - (1) Any Muslim male at least fifteen years of age
and any Muslim female of the age of puberty or upwards and not suffering from any
impediment under the provisions of this Code may contract marriage. A female is presumed
to have attained puberty upon reaching the age of fifteen.
x x x.

Art. 17. Marriage Ceremony. - No particular form of marriage ceremony is required but
the ijab and the qabul in marriage shall be declared publicly in the presence of the person
solemnizing the marriage and the two competent witnesses. The declaration shall be set
forth in an instrument in triplicate, signed or marked by the contracting parties and said
witnesses, and attested by the person solemnizing the marriage. One copy shall be given to
the contracting parties and another sent to the Circuit Registrar by the solemnizing officer
who shall keep the third.

Art. 18. Authority to solemnize marriage. - Marriage maybe solemnized:

(a) By the proper wali by the woman to be wedded;

(b) Upon the authority of the proper wali, by any person who is competent under
Muslim law to solemnize marriage; or

(c) By the judge of the Shari’a District Court or Shari’a Circuit Court or any person
designated by the judge, should the proper wali refuse without justifiable reason, to
authorize the solemnization.

Art. 19. Place of solemnization. - Marriage shall be solemnized publicly in any mosque, office
of the Shari’a judge, office of the Circuit Registrar, residence of the bride or her wali, or at
any other suitable place agreed upon by the parties.

Art. 20. Specification of dower. - The amount or value of dower may be fixed by the
contracting parties (mahr-musamma) before, during or after the celebration of marriage. If
the amount or the value thereof has not been so fixed, a proper dower (mahr-mithl) shall,
upon petition of the wife, be determined by the court according to the social standing of the
parties.

Indeed, Article 13(2) of the Code of Muslim Personal Laws states that "[i]n case of a
marriage between a Muslim and a non-Muslim, solemnized not in accordance with
Muslim law or this Code, the [Family Code of the Philippines, or Executive Order No.
209, in lieu of the Civil Code of the Philippines] shall apply." Nollora’s religious affiliation is
not an issue here. Neither is the claim that Nollora’s marriages were solemnized according
to Muslim law. Thus, regardless of his professed religion, Nollora cannot claim exemption
from liability for the crime of bigamy.21

Nollora asserted in his marriage certificate with Geraldino that his civil status is "single."
Moreover, both of Nollora’s marriage contracts do not state that he is a Muslim. Although
the truth or falsehood of the declaration of one’s religion in the marriage certificate is not
an essential requirement for marriage, such omissions are sufficient proofs of Nollora’s
liability for bigamy. Nollora’s false declaration about his civil status is thus further
compounded by these omissions.

[ATTY. CALDINO:]
Q: In your marriage contract, Mr. Witness, with Jesusa Pinat, you indicated here as your
religion, Catholic Pentecostal, and you were saying that since January 10, 1992, you are
already a [M]uslim convert. . . you said, Mr. Witness, that you are already a [M]uslim
convert since January 10, 1992. However, in your marriage contract with Jesusa Pinat, there
is no indication here that you have indicated your religion. Will you please go over your
marriage contract?

[NOLLORA:]

A: When we got married, they just placed there Catholic but I didn’t know why they did not
place any Catholic there.

xxx

Q: Now, Mr. Witness, I would like to call your attention with respect to your marriage
contract with your co-accused in this case, Rowena Geraldino, x x x will you please tell us,
Mr. Witness, considering that you said that you are already a [M]uslim convert on January
10, 1992, why in the marriage contract with Rowena Geraldino, you indicated there your
religion as Catholic, Mr. Witness?

A: Since I was a former Catholic and since I was then keeping, I was keeping it as a secret
my being my Balik-Islam, that’s why I placed there Catholic since I know that the society
doesn’t approve a Catholic to marry another, that’s why I placed there Catholic as my
religion, sir.

Q: How about under the column, "civil status," why did you indicate there that you’re
single, Mr. Witness?

A: I also kept it as a secret that I was married, earlier married. 22 (Emphasis supplied)

xxx

[PROSECUTOR TAYLOR:]

Q: Would you die for your new religion, Mr. Nollora?

A: Yes, ma’am.

Q: If you would die for your new religion, why did you allow that your faith be indicated as
Catholic when in fact you were already as you alleged [M]uslim to be put in your marriage
contract?

xxx

[A:] I don’t think there is anything wrong with it, I just signed it so we can get married under
the Catholic rights [sic] because after that we even got married under the [M]uslim rights
[sic], your Honor.
xxx

Q: Under your Muslim faith, if you marry a second wife, are you required under your faith to
secure the permission of your first wife to get married?

A: Yes, ma’am.

Q: Did you secure that permission from your first wife, Jesusa Nollora?

A: I was not able to ask any permission from her because she was very mad at me, at the
start, she was always very mad, ma’am.23

In his petition before this Court, Nollora casts doubt on the validity of his marriage to
Geraldino.1avvphi1 Nollora may not impugn his marriage to Geraldino in order to extricate
himself from criminal liability; otherwise, we would be opening the doors to allowing the
solemnization of multiple flawed marriage ceremonies. As we stated in Tenebro v. Court of
Appeals:24

There is therefore a recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these legal consequences is
incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws
on bigamy completely nugatory, and allow individuals to deliberately ensure that each
marital contract be flawed in some manner, and to thus escape the consequences of
contracting multiple marriages, while beguiling throngs of hapless women with the promise
of futurity and commitment.

WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in CA-G.R. CR No.
31538 promulgated on 30 September 2009 and the Resolution promulgated on 23 February
2010 are AFFIRMED. Petitioner Atilano O. Nollora, Jr. is guilty beyond reasonable doubt of
Bigamy in Criminal Case No. Q-04-129031 and is sentenced to suffer the penalty of
imprisonment with a term of two years, four months and one day of prision correccional as
minimum to eight years and one day of prision mayor as maximum of his indeterminate
sentence, as well as the accessory penalties provided by law.

Costs against petitioner Atilano O. Nollora, Jr.

SO ORDERED.
G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de
Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial
Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No.
88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA
VARGAS-BENTULAN, respondents.

G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de
Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD
VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and
NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner.

Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:

On 5 October 1988, petitioner came to this Court with a petition for certiorari and
prohibition with application for restraining order and/or injunction (docketed as G.R. No.
85140) seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case
(Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from
enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and
30 September 1988, and to declare said writ and orders as null and void. In a resolution
issued on 11 October 1988, this Court required comment from the respondents on the
petition but denied the application for a temporary restraining order.

The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full
blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27
September 1988, a petition for habeas corpusbefore the RTC of Misamis Oriental (Branch
20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence
sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan,
Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her
liberty without any legal authority. At the time the petition was filed, it was alleged that
Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio.
The respondent court in an order dated 28 September 1988 issued the writ of habeas
corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of
Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a
corpse cannot be the subject of habeas corpus proceedings; besides, according to
petitioner, he had already obtained a burial permit from the Undersecretary of the
Department of Health, authorizing the burial at the palace quadrangle of the Philippine
Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he
(petitioner) is the Supreme President and Founder.

Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his
residence on 28 August 1988. As her common law husband, petitioner claimed legal custody
of her body. These reasons were incorporated in an explanation filed before the respondent
court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent
court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City
and its autopsy.

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to
dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of the
action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A
special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person
but extends only to all cases of illegal confinement or detention of a live person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were
granted leave to amend their petition. 2 Claiming to have knowledge of the death of
Vitaliana only on 28 September 1988 (or after the filing of the habeas corpus petition),
private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any way
related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her.
Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases contended that, as the next of
kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana.
An exchange of pleadings followed. The motion to dismiss was finally submitted for
resolution on 21 October 1988.

In the absence of a restraining order from this Court, proceedings continued before the
respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial
Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and
examined by a duly authorized government pathologist. 4

Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated
17 November 1988, that:

It should be noted from the original petition, to the first amended petition,
up to the second amended petition that the ultimate facts show that if the
person of Vitaliana Vargas turns out to be dead then this Court is being
prayed to declare the petitioners as the persons entitled to the custody,
interment and/or burial of the body of said deceased. The Court, considering
the circumstance that Vitaliana Vargas was already dead on August 28, 1988
but only revealed to the Court on September 29, 1988 by respondent's
 counsel, did not lose jurisdiction over the nature and subject matter of this
case because it may entertain this case thru the allegations in the body of the
petition on the determination as to who is entitled to the custody of the dead
body of the late Vitaliana Vargas as well as the burial or interment thereof,
for the reason that under the provisions of Sec. 19 of Batas Pambansa Blg.
129, which reads as follows:

Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise
exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is

incapable of pecuniary estimation;

xxx xxx xxx

(5) In all actions involving the contract of marriage and marital

relations;

(6) In all cases not within the exclusive jurisdiction of any

court, tribunal, person or body exercising judicial or quasi-
judicial functions:

xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction
to try this case. The authority to try the issue of custody and burial of a dead
person is within the lawful jurisdiction of this Court because of Batas
Pambansa Blg. 129 and because of the allegations of the pleadings in this
case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa
Blg. 129.

Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a
decision on 17 January 1989, 6 resolving the main issue of whether or not said court
acquired jurisdiction over the case by treating it as an action for custody of a dead body,
without the petitioners having to file a separate civil action for such relief, and without the
Court first dismissing the original petition for habeas corpus.

Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of
1981), 7 Sections 5 and 6 of Rule 135 of the Rules of Court8 Articles 305 and 308 in relation
to Article 294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the
decision stated:

. . . . By a mere reading of the petition the court observed that the allegations
in the original petition as well as in the two amended petitions show that
Vitaliana Vargas has been restrained of her liberty and if she were dead then
relief was prayed for the custody and burial of said dead person. The
amendments to the petition were but elaborations but the ultimate facts
remained the same, hence, this court strongly finds that this court has ample
 jurisdiction to entertain and sit on this case as an action for custody and
burial of the dead body because the body of the petition controls and is
binding and since this case was raffled to this court to the exclusion of all
other courts, it is the primary duty of this court to decide and dispose of this
case. . . . . 10

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful
custody over the dead body, (for purposes of burial thereof). The order of preference to
give support under Art. 294 was used as the basis of the award. Since there was no surviving
spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner
who was merely a common law spouse, the latter being himself legally married to another
woman. 11

On 23 January 1989, a new petition for review with application for a temporary restraining
order and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised
therein were pure questions of law, basically Identical to those raised in the earlier petition
(G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner
filed an urgent motion for the issuance of an injunction to maintain status quo pending
appeal, which this Court denied in a resolution dated 23 February 1989 stating that "Tomas
Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the
dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then
submitted for decision without further pleadings.

Between the two (2) consolidated petitions, the following issues are raised:

1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of

Court to recover custody of the dead body of a 25 year old female, single,
whose nearest surviving claimants are full blood brothers and sisters and a
common law husband.

2. jurisdiction of the RTC over such proceedings and/or its authority to treat
the action as one for custody/possession/authority to bury the
deceased/recovery of the dead.

3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199

of the new Family Code) which states:

Art. 294. The claim for support, when proper and two or more
persons are obliged to give it, shall be made in the following
order:

(1) From the spouse;

xxx xxx xxx

Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the
Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ
of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is
an elementary rule of procedure that what controls is not the caption of the complaint or
petition; but the allegations therein determine the nature of the action, and even without
the prayer for a specific remedy, proper relief may nevertheless be granted by the court if
the facts alleged in the complaint and the evidence introduced so warrant. 13

When the petition for habeas corpus was filed before the court a quo, it was not certain
whether Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue
as a matter of course or as a mere perfimetory operation on the filing of the petition.
Judicial discretion is exercised in its issuance, and such facts must be made to appear to the
judge to whom the petition is presented as, in his judgment, prima facie entitle the
petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is
insufficient in form and substance, the writ should issue if the petition complies with the
legal requirements and its averments make a prima facie case for relief. However, a judge
who is asked to issue a writ of habeas corpus need not be very critical in looking into the
petition for very clear grounds for the exercise of this jurisdiction. The latter's power to
make full inquiry into the cause of commitment or detention will enable him to correct any
errors or defects in the petition. 15

In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas
corpus petition filed by a brother to obtain custody of a minor sister, stating:

All these circumstances notwithstanding, we believe that the case should not
have been dismissed. The court below should not have overlooked that by
dismissing the petition, it was virtually sanctioning the continuance of an
adulterous and scandalous relation between the minor and her married
employer, respondent Benildo Nunez against all principles of law and
morality. It is no excuse that the minor has expressed preference for
remaining with said respondent, because the minor may not chose to
continue an illicit relation that morals and law repudiate.

xxx xxx xxx

The minor's welfare being the paramount consideration, the court below
should not allow the technicality, that Teofilo Macazo was not originally
made a party, to stand in the way of its giving the child full protection. Even
in a habeas corpus proceeding the court had power to award temporary
custody to the petitioner herein, or some other suitable person, after
summoning and hearing all parties concerned. What matters is that the
immoral situation disclosed by the records be not allowed to continue. 17

After the fact of Vitaliana's death was made known to the petitioners in the habeas
corpus proceedings, amendment of the petition for habeas corpus, not dismissal, was
proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and
should be liberally allowed in furtherance of justice in order that every case may so far as
possible be determined on its real facts and in order to expedite the trial of cases or prevent
circuity of action and unnecessary expense, unless there are circumstances such as
inexcusable delay or the taking of the adverse party by surprise or the like, which justify a
refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas
corpus as a remedy became moot and academic due to the death of the person allegedly
restrained of liberty, but the issue of custody remained, which the court a quo had to
resolve.

Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term
spouse used therein not being preceded by any qualification; hence, in the absence of such
qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters
contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A
man and woman not legally married who cohabit for many years as husband and wife, who
represent themselves to the public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be considered legally mauled in
common law jurisdictions but not in the Philippines. 19

While it is true that our laws do not just brush aside the fact that such relationships are
present in our society, and that they produce a community of properties and interests
which is governed by law, 20 authority exists in case law to the effect that such form of co-
ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting
marriage with another woman, a legal impediment which disqualified him from even legally
marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras,
interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During
Liquidation of Inventoried Property) stated: "Be it noted however that with respect to
'spouse', the same must be the legitimate 'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse"
embraces common law relation for purposes of exemption from criminal liability in cases of
theft, swindling and malicious mischief committed or caused mutually by spouses. The Penal
Code article, it is said, makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are husband and wife de
facto.23 But this view cannot even apply to the facts of the case at bar. We hold that the
provisions of the Civil Code, unless expressly providing to the contrary as in Article 144,
when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis
Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to
marry her in her lifetime.

Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and
sisters (the Vargases). Section 1103 of the Revised Administrative Code provides:

Sec. 1103. Persons charged with duty of burial. — The immediate duty of
burying the body of a deceased person, regardless of the ultimate liability for
the expense thereof, shall devolve upon the persons hereinbelow specified:

xxx xxx xxx

(b) If the deceased was an unmarried man or woman, or a

child, and left any kin, the duty of burial shall devolve upon the
 nearest of kin of the deceased, if they be adults and within the
Philippines and in possession of sufficient means to defray the
necessary expenses.

WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby
DISMISSED. No Costs.

SO ORDERED.

G.R. No. 187512 June 13, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
YOLANDA CADACIO GRANADA, Respondent.

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 20091 and
3 April 20092 issued by the Court of Appeals (CA), which affirmed the grant by the Regional
Trial Court (RTC) of the Petition for Declaration of Presumptive Death of the absent spouse
of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at
Sumida Electric Philippines, an electronics company in Paranaque where both were then
working. The two eventually got married at the Manila City Hall on 3 March 1993. Their
marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to
Taiwan to seek employment. Yolanda claimed that from that time, she had not received any
communication from her husband, notwithstanding efforts to locate him. Her brother
testified that he had asked the relatives of Cyrus regarding the latter’s whereabouts, to no
avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively
dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa
City, and was docketed as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner
argued that Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to
prove her well-founded belief that he was already dead. However, in an Order dated 29
June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41,
Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the
CA had no jurisdiction over the appeal. She argued that her Petition for Declaration of
Presumptive Death, based on Article 41 of the Family Code, was a summary judicial
proceeding, in which the judgment is immediately final and executory and, thus, not
appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolanda’s Motion to Dismiss
on the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino,3 the CA ruled that a
petition for declaration of presumptive death under Rule 41 of the Family Code is a
summary proceeding. Thus, judgment thereon is immediately final and executory upon
notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a
Resolution dated 3 April 2009.4

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for the declaration of presumptive
death is immediately final and executory upon notice to the parties and, hence, is
not subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTC’s grant of the Petition for
Declaration of Presumptive Death under Article 41 of the Family Code based on the
evidence that respondent presented

Our Ruling

1. On whether the CA seriously erred in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for the declaration of presumptive death is
immediately final and executory upon notice to the parties and, hence, is not subject to
ordinary appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the
RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse under
Article 41 of the Family Code. Citing Republic v. Bermudez-Lorino,5 the appellate court noted
that a petition for declaration of presumptive death for the purpose of remarriage is a
summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is
immediately final and executory upon notice to the parties, by express provision of Article
247 of the same Code. The decision is therefore not subject to ordinary appeal, and the
attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose
of contracting a subsequent marriage under Article 41 of the Family Code is a summary
proceeding "as provided for" under the Family Code.

Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family
Law." Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply
in all cases provided for in this Code requiring summary court proceedings. Such cases shall
be decided in an expeditious manner without regard to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a
petition for declaration of presumptive death is a summary proceeding, the judgment of the
court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CA’s affirmation of the
RTC’s grant of respondent’s Petition for Declaration of Presumptive Death of her absent
spouse. The Court therein held that it was an error for the Republic to file a Notice of Appeal
when the latter elevated the matter to the CA, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by
express provision of Section 247, Family Code, supra, are "immediately final and executory."

xxx xxx xxx

But, if only to set the records straight and for the future guidance of the bench and the bar,
let it be stated that the RTC’s decision dated November 7, 2001, was immediately final and
executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal,
and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction
over the case, and should have dismissed the appeal outright on that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the
Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have
filed was a petition for certiorari under Rule 65, not a petition for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been superseded by the
subsequent Decision of the Court in Republic v. Jomoc,7 issued a few months later.

In Jomoc, the RTC granted respondent’s Petition for Declaration of Presumptive Death of
her absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC
Decision by filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the
ground that, under the Rules of Court,8 a record on appeal is required to be filed when
appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA,
this Court clarified that while an action for declaration of death or absence under Rule 72,
Section 1(m), expressly falls under the category of special proceedings, a petition for
declaration of presumptive death under Article 41 of the Family Code is a summary
proceeding, as provided for by Article 238 of the same Code. Since its purpose was to
enable her to contract a subsequent valid marriage, petitioner’s action was a summary
proceeding based on Article 41 of the Family Code, rather than a special proceeding under
Rule 72 of the Rules of Court. Considering that this action was not a special proceeding,
petitioner was not required to file a record on appeal when it appealed the RTC Decision to
the CA.

We do not agree with the Republic’s argument that Republic v. Jomoc superseded our ruling
in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not
expound on the characteristics of a summary proceeding under the Family Code. In
contrast, the Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of
an ordinary appeal as a vehicle for questioning the trial court’s Decision in a summary
proceeding for declaration of presumptive death under Article 41 of the Family Code was
intended "to set the records straight and for the future guidance of the bench and the bar."

At any rate, four years after Jomoc, this Court settled the rule regarding appeal of
judgments rendered in summary proceedings under the Family Code when it ruled in
Republic v. Tango:9
This case presents an opportunity for us to settle the rule on appeal of judgments rendered
in summary proceedings under the Family Code and accordingly, refine our previous
decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family
Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply
in all cases provided for in this Code requiring summary court proceedings. Such cases shall
be decided in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters
two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had
of the trial court's judgment in a summary proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of the Family Code. It goes without saying,
however, that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the
Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such concurrence does not sanction an unrestricted
freedom of choice of court forum. From the decision of the Court of Appeals, the losing
party may then file a petition for review on certiorari under Rule 45 of the Rules of Court
with the Supreme Court. This is because the errors which the court may commit in the
exercise of jurisdiction are merely errors of judgment which are the proper subject of an
appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for
the declaration of presumptive death may file a petition for certiorari with the CA on the
ground that, in rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party
may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of
the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republic’s Notice of
Appeal on the ground that the RTC judgment on the Petition for Declaration of Presumptive
Death of respondent’s spouse was immediately final and executory and, hence, not subject
to ordinary appeal.

2. On whether the CA seriously erred in affirming the RTC’s grant of the Petition for
Declaration of Presumptive Death under Article 41 of the Family Code based on the
evidence that respondent had presented

Petitioner also assails the RTC’s grant of the Petition for Declaration of Presumptive Death
of the absent spouse of respondent on the ground that she had not adduced the evidence
required to establish a well-founded belief that her absent spouse was already dead, as
expressly required by Article 41 of the Family Code. Petitioner cites Republic v.
Nolasco,10 United States v. Biasbas11 and Republic v. Court of Appeals and Alegro12 as
authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation of the RTC’s grant
of respondent’s Petition for Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving birth to their son while
respondent was on board a vessel working as a seafarer. Petitioner Republic sought the
reversal of the ruling on the ground that respondent was not able to establish his "well-
founded belief that the absentee is already dead," as required by Article 41 of the Family
Code. In ruling thereon, this Court recognized that this provision imposes more stringent
requirements than does Article 83 of the Civil Code.13 The Civil Code provision merely
requires either that there be no news that the absentee is still alive; or that the absentee is
generally considered to be dead and is believed to be so by the spouse present, or is
presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family
Code provision prescribes a "well-founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted. As noted by the Court in that
case, the four requisites for the declaration of presumptive death under the Family Code are
as follows:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.

In evaluating whether the present spouse has been able to prove the existence of a "well-
founded belief" that the absent spouse is already dead, the Court in Nolasco cited United
States v. Biasbas,14 which it found to be instructive as to the diligence required in searching
for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in
ascertaining the whereabouts of his first wife, considering his admission that that he only
had a suspicion that she was dead, and that the only basis of that suspicion was the fact of
her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal
of the CA ruling affirming the RTC’s grant of the Petition for Declaration of Presumptive
Death of the absent spouse on the ground that the respondent therein had not been able to
prove a "well-founded belief" that his spouse was already dead. The Court reversed the CA,
granted the Petition, and provided the following criteria for determining the existence of a
"well-founded belief" under Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent and that he
has a well-founded belief that the absent spouse is already dead before the present spouse
may contract a subsequent marriage. The law does not define what is meant by a well-
grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde
en motivos racionales."

Belief is a state of the mind or condition prompting the doing of an overt act.1âwphi1 It may
be proved by direct evidence or circumstantial evidence which may tend, even in a slight
degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any
fact or circumstance relating to the character, habits, conditions, attachments, prosperity
and objects of life which usually control the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or characterize their disappearance or throw light
on their intentions, competence [sic] evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness
inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the
absent spouse is still alive or is already dead. Whether or not the spouse present acted on a
well-founded belief of death of the absent spouse depends upon the inquiries to be drawn
from a great many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that respondent
Yolanda did not initiate a diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus from the
latter’s relatives, these relatives were not presented to corroborate Diosdado’s testimony.
In short, respondent was allegedly not diligent in her search for her husband. Petitioner
argues that if she were, she would have sought information from the Taiwanese Consular
Office or assistance from other government agencies in Taiwan or the Philippines. She could
have also utilized mass media for this end, but she did not. Worse, she failed to explain
these omissions.
The Republic’s arguments are well-taken. Nevertheless, we are constrained to deny the
Petition.

The RTC ruling on the issue of whether respondent was able to prove her "well-founded
belief" that her absent spouse was already dead prior to her filing of the Petition to declare
him presumptively dead is already final and can no longer be modified or reversed. Indeed,
"[n]othing is more settled in law than that when a judgment becomes final and executory, it
becomes immutable and unalterable. The same may no longer be modified in any respect,
even if the modification is meant to correct what is perceived to be an erroneous conclusion
of fact or law."15

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated
23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.
G.R. No. 157537 September 7, 2011

THE HEIRS OF PROTACIO GO, SR. and MARTA BAROLA, namely: LEONOR, SIMPLICIO,
PROTACIO, JR., ANTONIO, BEVERLY ANN LORRAINNE, TITA, CONSOLACION, LEONORA and
ASUNCION, all surnamed GO, represented by LEONORA B. GO, Petitioners,
vs.
ESTER L. SERVACIO and RITO B. GO, Respondents.

DECISION

BERSAMIN, J.:

The disposition by sale of a portion of the conjugal property by the surviving spouse without
the prior liquidation mandated by Article 130 of the Family Code is not necessarily void if
said portion has not yet been allocated by judicial or extrajudicial partition to another heir
of the deceased spouse. At any rate, the requirement of prior liquidation does not prejudice
vested rights.

Antecedents

On February 22, 1976, Jesus B. Gaviola sold two parcels of land with a total area of 17,140
square meters situated in Southern Leyte to Protacio B. Go, Jr. (Protacio, Jr.). Twenty three
years later, or on March 29, 1999, Protacio, Jr. executed an Affidavit of Renunciation and
Waiver,1 whereby he affirmed under oath that it was his father, Protacio Go, Sr. (Protacio,
Sr.), not he, who had purchased the two parcels of land (the property).

On November 25, 1987, Marta Barola Go died. She was the wife of Protacio, Sr. and mother
of the petitioners.2 On December 28, 1999, Protacio, Sr. and his son Rito B. Go (joined by
Rito’s wife Dina B. Go) sold a portion of the property with an area of 5,560 square meters to
Ester L. Servacio (Servacio) for ₱5,686,768.00.3 On March 2, 2001, the petitioners demanded
the return of the property,4 but Servacio refused to heed their demand. After barangay
proceedings failed to resolve the dispute,5 they sued Servacio and Rito in the Regional Trial
Court in Maasin City, Southern Leyte (RTC) for the annulment of the sale of the property.

The petitioners averred that following Protacio, Jr.’s renunciation, the property became
conjugal property; and that the sale of the property to Servacio without the prior liquidation
of the community property between Protacio, Sr. and Marta was null and void. 6

Servacio and Rito countered that Protacio, Sr. had exclusively owned the property because
he had purchased it with his own money.7

On October 3, 2002, 8 the RTC declared that the property was the conjugal property of
Protacio, Sr. and Marta, not the exclusive property of Protacio, Sr., because there were
three vendors in the sale to Servacio (namely: Protacio, Sr., Rito, and Dina); that the
participation of Rito and Dina as vendors had been by virtue of their being heirs of the late
Marta; that under Article 160 of the Civil Code, the law in effect when the property was
acquired, all property acquired by either spouse during the marriage was conjugal unless
there was proof that the property thus acquired pertained exclusively to the husband or to
the wife; and that Protacio, Jr.’s renunciation was grossly insufficient to rebut the legal
presumption.9

Nonetheless, the RTC affirmed the validity of the sale of the property, holding that: "xxx As
long as the portion sold, alienated or encumbered will not be allotted to the other heirs in
the final partition of the property, or to state it plainly, as long as the portion sold does not
encroach upon the legitimate (sic) of other heirs, it is valid."10 Quoting Tolentino’s
commentary on the matter as authority,11 the RTC opined:

In his comment on Article 175 of the New Civil Code regarding the dissolution of the
conjugal partnership, Senator Arturo Tolentino, says" [sic]

"Alienation by the survivor. — After the death of one of the spouses, in case it is necessary
to sell any portion of the community property in order to pay outstanding obligation of the
partnership, such sale must be made in the manner and with the formalities established by
the Rules of Court for the sale of the property of the deceased persons. Any sale, transfer,
alienation or disposition of said property affected without said formalities shall be null and
void, except as regards the portion that belongs to the vendor as determined in the
liquidation and partition. Pending the liquidation, the disposition must be considered as
limited only to the contingent share or interest of the vendor in the particular property
involved, but not to the corpus of the property.

This rule applies not only to sale but also to mortgages. The alienation, mortgage or disposal
of the conjugal property without the required formality, is not however, null ab initio, for
the law recognizes their validity so long as they do not exceed the portion which, after
liquidation and partition, should pertain to the surviving spouse who made the contract."
[underlining supplied]

It seems clear from these comments of Senator Arturo Tolentino on the provisions of the
New Civil Code and the Family Code on the alienation by the surviving spouse of the
community property that jurisprudence remains the same - that the alienation made by the
surviving spouse of a portion of the community property is not wholly void ab initio despite
Article 103 of the Family Code, and shall be valid to the extent of what will be allotted, in
the final partition, to the vendor. And rightly so, because why invalidate the sale by the
surviving spouse of a portion of the community property that will eventually be his/her
share in the final partition? Practically there is no reason for that view and it would be
absurd.

Now here, in the instant case, the 5,560 square meter portion of the 17,140 square-meter
conjugal lot is certainly mush (sic) less than what vendors Protacio Go and his son Rito B. Go
will eventually get as their share in the final partition of the property. So the sale is still
valid.

WHEREFORE, premises considered, complaint is hereby DISMISSED without pronouncement

as to cost and damages.

SO ORDERED.12
The RTC’s denial of their motion for reconsideration 13 prompted the petitioners to appeal
directly to the Court on a pure question of law.

Issue

The petitioners claim that Article 130 of the Family Code is the applicable law; and that the
sale by Protacio, Sr., et al. to Servacio was void for being made without prior liquidation.

In contrast, although they have filed separate comments, Servacio and Rito both argue that
Article 130 of the Family Code was inapplicable; that the want of the liquidation prior to the
sale did not render the sale invalid, because the sale was valid to the extent of the portion
that was finally allotted to the vendors as his share; and that the sale did not also prejudice
any rights of the petitioners as heirs, considering that what the sale disposed of was within
the aliquot portion of the property that the vendors were entitled to as heirs. 14

Ruling

The appeal lacks merit.

Article 130 of the Family Code reads:

Article 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of the
deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
conjugal partnership property either judicially or extra-judicially within one year from the
death of the deceased spouse. If upon the lapse of the six month period no liquidation is
made, any disposition or encumbrance involving the conjugal partnership property of the
terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.

Article 130 is to be read in consonance with Article 105 of the Family Code, viz:

Article 105. In case the future spouses agree in the marriage settlements that the regime of
conjugal partnership of gains shall govern their property relations during marriage, the
provisions in this Chapter shall be of supplementary application.

The provisions of this Chapter shall also apply to conjugal partnerships of gains already
established between spouses before the effectivity of this Code, without prejudice to vested
rights already acquired in accordance with the Civil Code or other laws, as provided in
Article 256. (n) [emphasis supplied]

It is clear that conjugal partnership of gains established before and after the effectivity of
the Family Code are governed by the rules found in Chapter 4 (Conjugal Partnership of
Gains) of Title IV (Property Relations Between Husband And Wife) of the Family Code.
Hence, any disposition of the conjugal property after the dissolution of the conjugal
partnership must be made only after the liquidation; otherwise, the disposition is void.

Before applying such rules, however, the conjugal partnership of gains must be subsisting at
the time of the effectivity of the Family Code. There being no dispute that Protacio, Sr. and
Marta were married prior to the effectivity of the Family Code on August 3, 1988, their
property relation was properly characterized as one of conjugal partnership governed by the
Civil Code. Upon Marta’s death in 1987, the conjugal partnership was dissolved, pursuant to
Article 175 (1) of the Civil Code,15 and an implied ordinary co-ownership ensued among
Protacio, Sr. and the other heirs of Marta with respect to her share in the assets of the
conjugal partnership pending a liquidation following its liquidation.16 The ensuing implied
ordinary co-ownership was governed by Article 493 of the Civil Code, 17 to wit:

Article 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the division upon the termination of the co-
ownership. (399)

Protacio, Sr., although becoming a co-owner with his children in respect of Marta’s share in
the conjugal partnership, could not yet assert or claim title to any specific portion of Marta’s
share without an actual partition of the property being first done either by agreement or by
judicial decree. Until then, all that he had was an ideal or abstract quota in Marta’s
share.18 Nonetheless, a co-owner could sell his undivided share; hence, Protacio, Sr. had the
right to freely sell and dispose of his undivided interest, but not the interest of his co-
owners.19 Consequently, the sale by Protacio, Sr. and Rito as co-owners without the consent
of the other co-owners was not necessarily void, for the rights of the selling co-owners were
thereby effectively transferred, making the buyer (Servacio) a co-owner of Marta’s
share.20 This result conforms to the well-established principle that the binding force of a
contract must be recognized as far as it is legally possible to do so (quando res non valet ut
ago, valeat quantum valere potest).21

Article 105 of the Family Code, supra, expressly provides that the applicability of the rules
on dissolution of the conjugal partnership is "without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws." This provision gives another
reason not to declare the sale as entirely void. Indeed, such a declaration prejudices the
rights of Servacio who had already acquired the shares of Protacio, Sr. and Rito in the
property subject of the sale.

In their separate comments,22 the respondents aver that each of the heirs had already
received "a certain allotted portion" at the time of the sale, and that Protacio, Sr. and Rito
sold only the portions adjudicated to and owned by them. However, they did not present
any public document on the allocation among her heirs, including themselves, of specific
shares in Marta’s estate. Neither did they aver that the conjugal properties had already
been liquidated and partitioned. Accordingly, pending a partition among the heirs of Marta,
the efficacy of the sale, and whether the extent of the property sold adversely affected the
interests of the petitioners might not yet be properly decided with finality. The appropriate
recourse to bring that about is to commence an action for judicial partition, as instructed
in Bailon-Casilao v. Court of Appeals,23 to wit:

From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one

co-owner without the consent of the other co-owners is not null and void. However, only
the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of
the property.

The proper action in cases like this is not for the nullification of the sale or for the recovery
of possession of the thing owned in common from the third person who substituted the co-
owner or co-owners who alienated their shares, but the DIVISION of the common property
as if it continued to remain in the possession of the co-owners who possessed and
administered it [Mainit v. Bandoy, supra].1avvphi1

Thus, it is now settled that the appropriate recourse of co-owners in cases where their
consent were not secured in a sale of the entire property as well as in a sale merely of the
undivided shares of some of the co-owners is an action for PARTITION under Rule 69 of the
Revised Rules of Court. xxx24

In the meanwhile, Servacio would be a trustee for the benefit of the co-heirs of her vendors
in respect of any portion that might not be validly sold to her. The following observations of
Justice Paras are explanatory of this result, viz:

xxx [I]f it turns out that the property alienated or mortgaged really would pertain to the
share of the surviving spouse, then said transaction is valid. If it turns out that there really
would be, after liquidation, no more conjugal assets then the whole transaction is null and
void.1âwphi1 But if it turns out that half of the property thus alienated or mortgaged
belongs to the husband as his share in the conjugal partnership, and half should go to the
estate of the wife, then that corresponding to the husband is valid, and that corresponding
to the other is not. Since all these can be determined only at the time the liquidation is over,
it follows logically that a disposal made by the surviving spouse is not void ab initio. Thus, it
has been held that the sale of conjugal properties cannot be made by the surviving spouse
without the legal requirements. The sale is void as to the share of the deceased spouse
(except of course as to that portion of the husband’s share inherited by her as the surviving
spouse). The buyers of the property that could not be validly sold become trustees of said
portion for the benefit of the husband’s other heirs, the cestui que trust ent. Said heirs shall
not be barred by prescription or by laches (See Cuison, et al. v. Fernandez, et al.,L-11764,
Jan.31, 1959.)25

WHEREFORE, we DENY the petition for review on certiorari; and AFFIRM the decision of the
Regional Trial Court.

The petitioners shall pay the costs of suit. SO ORDERED.

G.R. No. L-23253 March 28, 1969

IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR
THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, petitioner-appellant,
vs.
MR. & MRS. BARTOLOME CABANGBANG ET AL., respondents-appellees.

Francisco R. Sotto and Associates for petitioner-appellant.

Teofilo F. Manalo for respondents-appellees Mr. & Mrs. Cabangbang.
Enrico R. Castro for respondent-appellee Victor T. Villareal.

CASTRO, J.:

This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First
Instance of Rizal dismissing Pacita Chua's petition for habeas corpus directed against
Bartolome Cabangbang and his wife Flora Cabangbang.

Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as
a hostess. And sexual liaison she had with man after man without benefit of marriage. She
first lived with a certain Chua Ben in 1950 by whom she had a child who died in infancy. She
afterwards cohabited with Sy Sia Lay by whom she had two children named Robert and
Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after the birth of
Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their
separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met
Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child, a
girl, was born to her. In 1961 when this last child was still an infant, she and Villareal
separated. Without means to support the said child, Pacita Chua gave her away to
a comadre in Cebu.

Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired
the custody of the child Betty who was then barely four months old. They have since
brought her up as their own. They had her christened as Grace Cabangbang on September
12, 1958. 1

There is some testimonial conflict on how the Cabangbang spouses acquired custody of the
girl Betty (or Grace), Pacita Chua avers that in October 1958, while she and Villareal were
still living together, the latter surreptitiously took the child away and gave her to the
Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of
the whereabouts of her daughter, only in 1960 when the girl, who was then about three
years old, was brought to her by Villareal, who shortly thereafter returned the child to the
Cabangbangs allegedly thru threats intimidation, fraud and deceit. The Cabangbang spouses
assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of
their residence; that she reared her as her own and grew very fond of her; and that nobody
ever molested them until the child was 5-½ years of age.lâwphi1.ñet

At all events, it is the lower court's finding that the child was given to the Cabangbang
spouses by Villareal with the knowledge and consent of Pacita Chua.
 By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to
Villareal, Pacita Chua thru counsel demanded the surrender to her of the custody of the
child. Failing to secure such custody, Pacita Chua (hereinafter referred to as the petitioner)
filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance of Rizal,
praying that the court grant her custody of and recognize her parental authority over the
girl. Named respondents in the petition were Villareal and the spouses Cabangbang.

On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his
deputies to produce the body of Betty Chua Sy or Grace Cabangbang before the court a
quo on June 17, 1963, at 8:30 a.m. However, for reasons not stated in the record, the child
was not produced before the lower court as ordered.

On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their
answer the next day.

After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive
portion of which reads as follows:

IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be
for the welfare of the child Betty Chua Sy also known as Grace Cabangbang to be
under the custody of respondents Mr. and Mrs. Bartolome Cabangbang. Petition
dismissed. No pronouncement as to costs.

In this appeal now before us, the petitioner tenders for resolution two issues of law which,
by her own formulation, read as follows: "The lower court erred when it awarded the
custody of petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven
(7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally
deprived petitioner of parental authority over her daughter."

We resolve both issues against the petitioner.

I.

Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in
article 363 of the Civil Code she cannot be separated from her child who was less, seven
years of age, and that she cannot be deprived of her parental authority over the child
because not one of the grounds for the termination, loss, suspension or deprivation of
parental authority provided in article 332 of the same Code obtains in this case.

Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace
Cabangbang, is an issue that is now moot and academic. Having been born on December 15,
1957, the child is now 11 years of age. Consequently, the second paragraph of art. 363 of
the Civil Code, which prohibits the separation of a child under seven years of age from her
mother, "unless the court finds compelling reasons for such measure," has no immediate
relevance. The petitioner correctly argues, however, that the reasons relied upon by the
lower court — i.e., "petitioner is not exactly an upright woman" and "it will be for the
welfare of the child" — are not strictly speaking, proper grounds in law to deprive a mother
of her inherent right to parental authority over her child. It must be conceded that minor
children — be they legitimate, recognized natural, adopted, natural by legal fiction or
illegitimate, other than natural as specified in art. 269 of the Civil Code — are by law under
the parental authority of both the father and the mother, or either the father or the
mother, as the case may be. But we take the view that on the basis of the aforecited
seemingly unpersuasive factual premises, the petitioner can be deprived of her parental
authority. For while in one breath art. 313 of the Civil Code lays down the rule that "Parental
authority cannot be renounced or transferred, except in cases of guardianship or adoption
approved by the courts, or emancipation by concession," it indicates in the next that "The
courts may, in cases specified by law deprive parents of their [parental] authority." And
there are indeed valid reasons, as will presently be expounded, for depriving the petitioner
of parental authority over the minor Betty Chua Sy or Grace Cabangbang.

It is the lower court's finding that the child was given to the Cabangbangs by Villareal with
the knowledge and consent of the petitioner. In support of this finding, it cited the facts that
the petitioner did not at all — not ever — report to the authorities the alleged
disappearance of her daughter, and had not taken any step to see the child when she
allegedly discovered that she was in the custody of the Cabangbangs. It discounted the
petitioner's claim that she did not make any move to recover the child because the
Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings
of fact. Having taken her appeal directly to this Court, she is deemed to have waived the
right to dispute any finding of fact made by the trial court. 2

Art. 332 of the Civil Code provides, inter alia:

The courts may deprive the parents of their authority or suspend the exercise of the
same if they should treat their children with excessive harshness or should give them
corrupting orders, counsels, or examples, or should make them beg or abandon
them. (emphasis supplied)

Abandonment is therefore one of the grounds for depriving parents of parental authority
over their children.

Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs
tantamount to abandonment of the child? To our mind, mere acquiescence — without
more — is not sufficient to constitute abandonment. But the record yields a host of
circumstances which, in their totality, unmistakably betray the petitioner's settled purpose
and intention to completely forego all parental response possibilities and forever relinquish
all parental claim in respect to the child.

She surrendered the custody of her child to the Cabangbangs in 1958. She waited until
1963, or after the lapse of a period of five long years, before she brought action to recover
custody. Her claim that she did not take any step to recover her child because the
Cabangbangs were powerful and influential, does not deserve any modicum of credence. A
mother who really loves her child would go to any extent to be reunited with her. The
natural and normal reaction of the petitioner — once informed, as she alleged, and her child
was in the custody of the Cabangbangs — should have been to move heaven and earth, to
use a worn-out but still respectable cliche, in order to recover her. Yet she lifted not a
finger.

It is a matter of record — being the gist of her own unadulterated testimony under oath —
that she wants the child back so that Sy Sia Lay, the alleged father, would resume providing
the petitioner the support which he peremptorily withheld and ceased to give when she
gave the child away. A woman scorned, she desires to recover the child as a means of
embarrassing Villareal who retrieved the jeep he gave her and altogether stopped living
with and supporting her. But the record likewise reveals that at the pre-trial conducted by
the court a quo, she expressed her willingness that the child remain with the
Cabangbangs provided the latter would in exchange give her a jeep and some money.

The petitioner's inconsistent demands in the course of the proceedings below, reveal that
her motives do not flow from the wellsprings of a loving mother's heart. Upon the contrary,
they are unmistakably selfish — nay, mercenary. She needs the child as a leverage to obtain
concessions — financial and otherwise — either from the alleged father or the
Cabangbangs. If she gets the child back, support for her would be forthcoming so she thinks
— from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep
the child, she would agree provided they gave her a jeep and some money.

Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to
abandon the child — from the very outset when she allowed Villareal to give her away to
the Cabangbangs. It must be noted that the abandonment took place when the child, barely
four months old, was at the most fragile stage of life and needed the utmost care and
solicitude of her mother. And for five long years thereafter she did not once move to
recover the child. She continuously shunned the natural and legal obligations which she
owed to the child; completely withheld her presence, her love, her care, and the
opportunity to display maternal affection; and totally denied her support and maintenance.
Her silence and inaction have been prolonged to such a point that her abandonment of the
child and her total relinquishment of parental claim over her, can and should be inferred as
a matter of law. 3

Note that this was not the only instance when she gave away a child of her own flesh and
blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in Cebu
because she could not support it.

Of incalculable significance is the fact that nowhere in the course of the petitioner's
lengthy testimony did she ever express a genuine desire to recover her child Betty Chua Sy
or Grace Cabangbang — or, for that matter, her other child Betty Tan Villareal — because
she loves her, cares for her, and wants to smother her with motherly affection. Far from it.
She wants Betty Chua Sy or Grace Cabangbang back so that the alleged father would resume
giving her (the petitioner) support. She wants her back to humiliate and embarrass the
respondent Villareal who, with her knowledge and consent, gave the child to the
Cabangbangs. But — "most unkindest cut of all"! — she nevertheless signified her readiness
to give up the child, in exchange for a jeep and some money.
 We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a
ground which the court overlooked — i.e., abandonment by the petitioner of her child. 4

Contrast the petitioner's attitude with that of the respondents Cabangbang — especially
the respondent Flora Cabangbang who, from the moment the child was given to them, took
care of her as if she were her own flesh and blood, had her baptized, and when she reached
school age enrolled her in a reputable exclusive school, for girls.

Ironically enough, the real heart-rending tragedy in this case would consist not in taking
the child away from the Cabangbangs but in returning her to the custody of the petitioner.

For, by her own admission, the petitioner has no regular source of income, and it is
doubtful, to say the very least, that she can provide the child with the barest necessities of
life, let alone send her to school. There is no insurance at all that the alleged father, Sy Sia
Lay — an unknown quantity, as far as the record goes — would resume giving the petitioner
support once she and the child are reunited. What would then prevent the petitioner from
again doing that which she did before, i.e., give her away? These are of course conjectures,
but when the welfare of a helpless child is at stake, it is the bounden duty of courts — which
they cannot shirk — to respect, enforce, and give meaning and substance to a child's natural
and legal right to live and grow in the proper physical, moral and intellectual environment. 5

This is not to say that with the Cabangbang spouses, a bright and secure future is
guaranteed for her. For life is beset at every turn with snares and pitfalls. But the record
indubitably pictures the Cabangbang spouses as a childless couple of consequence in the
community, who have given her their name and are rearing her as their very own child, and
with whom there is every reason to hope she will have a fair chance of normal growth and
development into respectable womanhood.

Verily, to surrender the girl to the petitioner would be to assume — quite incorrectly —
that only mothers are capable of parental love and affection. Upon the contrary, this case
precisely underscores the homiletic admonition that parental love is not universal and
immutable like a law of natural science.

II.

The petitioner assails as illegal and without basis the award of the custody of Grace
Cabangbang or Betty Chua Sy to the Cabangbang spouses upon the grounds, first, that the
couple are not related by consanguinity or affinity to the child, and second, because the
answer of the spouses contains no prayer for the custody of the child.

The absence of any kinship between the child and the Cabangbangs alone cannot serve to
bar the lower court from awarding her custody to them. Indeed, the law provides that in
certain cases the custody of a child may be awarded even to strangers, as against either the
father or the mother or against both. Thus, in proceedings involving a child whose parents
are separated — either legally or de facto — and where it appears that both parents are
improper persons to whom to entrust the care, custody and control of the child, "the court
may either designate the paternal or maternal grandparent of the child, or his oldest
brother or sister, or some reputable and discreet person to take charge of such child, or
commit it to and suitable asylum, children's home, or benevolent society." 6

Parenthetically, sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's
contention that the first sentence of art. 363 of the Civil Code, which states that

In all questions on the care, custody, education and property of children, the
latter's welfare shall be paramount.....

applies only when the litigation involving a child is between the father and the mother.
That the policy enunciated, in the abovequoted legal provision is of general application, is
evident from the use of the, adjective all — meaning, the whole extent or quantity of, the
entire number of, every one of. 7 It is, therefore, error to argue that if the suit involving a
child's custody is between a parent and a stranger, the law must necessarily award such
custody to the parent. Sec 7, Rule 99 of the Rules of Court, precisely contemplates, among
others, a suit between a parent and a stranger who, in the words of the provision, is "some
reputable resident of the province." And under the authority of the said rule, the court — if
it is for the best interest of the child — may take the child away from its parents and commit
it to, inter alia, a benevolent person.

The petitioner's contention that the answer of the spouses Cabangbang contains no prayer
for the retention by them of the custody of the child, is equally devoid of merit. The several
moves taken by them are clear and definitive enough. First, they asked for her
custody pendente lite. Second, they sought the dismissal of the petition below for lack of
merit. Finally, they added a general prayer for other reliefs just and equitable in the
premises. Surely the above reliefs prayed for are clearly indicative of the Cabangbangs'
genuine desire to retain the custody of Betty Chua Sy or Grace Cabangbang.

III.

Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly
provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody of
any person is withheld from the person entitled thereto." The petitioner has not proven that
she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the
contrary, by wantonly and completely shunting aside her legal and moral obligations toward
her child, she must be deemed as having forfeited all legitimate legal and moral claim to her
custody. The lower court acted correctly in dismissing her petition.

ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano,
Teehankee and Barredo, JJ., concur.