5. Sec.
241
MANUFACTURERS HANOVER TRUST v. GUERRERO
February 19, 2003 | Carpio, J. | Petition for Review under Rule 45| Judicial Notice
PETITIONER: Manufacturers Hanover Trust Co., and/or Chemical Bank
RESPONDENT: Rafael Ma. Guerrero
SUMMARY: Respondent Guerrero filed a complaint for damages against
petitioner Bank regarding his bank account. The Bank claimed that his account is
governed by New York law which does not permit any claim except actual
damages. The Bank moved for a partial summary judgment which was supported
by an affidavit by a NY Atty. claiming that the governing law is New York law
as stipulated by Guerrero’s bank account. SC ruled that there is a need for a trial
as the Walden affidavit shows that the facts and allegations were disputed.
Foreign laws are not a matter of judicial notice and must be alleged and proven.
DOCTRINE:
FACTS:
1. Respondent Guerrero filed a complaint for damages against petitioner Bank
for allegedly: (a) illegally withheld taxes charged against interests on his
checking account with the Bank; (b) a returned check worth USS18,000.99
due to signature verification problems; and (c) unauthorized conversion of
his account.
2. The Bank claimed that by stipulation Guerrero’s account is governed by
New York and this law does not permit any claim except actual damages.
The Bank filed a Motion for Partial Summary Judgment seeking to dismiss
the claims for consequential, nominal, temperate, moral and exemplary
damages.
3. The affidavit of Alyssa Walden, a New York attorney, supported the Bank’s
claim that Guerrero’s bank account stipulated that the governing law is New
York law and that this law bars all of the claims except actual damages. The
Philippine Consular Office in NY authenticated the Walden affidavit.
4. CA: Even if the Walden affidavit is used for purpose of summary judgment,
the Bank must still comply with the procedure prescribed by the Rule 132,
ISSUE: WoN there are genuine issues of fact that necessitate formal trial—YES.
RULING: Petition DENIED. There being substanstial triable issues, motion for
partial summary judgment is denied.
RATIO:
1. A genuine issue means an issue of fact which calls for the presentation of
evidence as distinguished from an issue which is fictitious or contrived so as
not to constitute a genuine issue for trial. Walden affidavit shows that the
facts and material allegations as pleaded by the parties are disputed and
there are substantial triable issues necessitating a formal trial.
Resolution of whether a foreign law allows only the recovery of actual
damages is a question of fact as far as the trial court is concerned since
foreign laws do not prove themselves in our courts.
Foreign laws are not a matter of judicial notice. Like any other fact, they
must be alleged and proven. The conflicting allegations as to whether New
York law or Philippine law applies to Guerreros claims present a clear
dispute on material allegations which can be resolved only by a trial on the
merits. The Walden affidavit cannot be considered as proof of New York law
on damages not only because it is self-serving but also because it does not
state the specific New York law on damages.
Guerrero cannot be said to have admitted the averments in the Banks motion
for partial summary judgment and the Walden affidavit just because he failed
to file an opposing affidavit. The Bank still had the burden of proving New
1
SEC. 24. Proof of official record. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody. If the
office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office.
1
 York law and jurisprudence even if Guerrero did not present an opposing
affidavit.
ISSUE:
 WON the Walden Affidavit was sufficient proof of the New York law and
jurisprudence relied upon by the Bank in its Motion for PSJ? – NO.
HELD:
 NO. The Walden Affidavit failed to prove New York law and jurisprudence. The
SC denied the Bank’s petition for lack of merit.
 The CA considered the New York law and jurisprudence as public documents
defined in Rule 132 Sec 19 and 24 of the Rules of Evidence, which should be
followed in proving foreign law.
 SEC. 19. Classes of Documents. – For the purpose of their presentation in
evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
 SEC. 24. Proof of official record. – The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.
The Walden Affidavit Failed to Prove New York Law and Jurisprudence
 The Bank’s motion for PSJ as supported by the Walden Affidavit does not
demonstrate that Guerrero’s claims are sham, fictitious or contrived. On the
contrary, the Walden affidavit shows that the facts and material allegations as
pleaded by the parties are disputed and there are substantial triable issues
necessitating a formal trial.
 Foreign laws are not a matter of judicial notice. Like any other fact, they must be
alleged and proven. Certainly, the conflicting allegations as to whether New York
law or Philippine law applies to Guerrero’s claims present a clear dispute on
material allegations which can be resolved only by a trial on the merits.
 The Bank, however, cannot rely on Willamette Iron and Steel Works v.
Muzzal or Collector of Internal Revenue v. Fisher to support its cause. These
cases involved attorneys testifying in open court during the trial in the Philippines
and quoting the particular foreign laws sought to be established. On the other
hand, the Walden Affidavit was taken abroad ex parte and the affiant never
testified in open court. The Walden Affidavit cannot be considered as proof of
New York law on damages not only because it is self-serving but also because it
does not state the specific New York law on damages.
 The Walden Affidavit states conclusions from the affiant’s personal interpretation
and opinion of the facts of the case vis a vis the alleged laws and jurisprudence
without citing any law in particular. The citations in the Walden Affidavit of various
U.S. court decisions do not constitute proof of the official records or decisions of
the U.S. courts.
 While the Bank attached copies of some of the U.S. court decisions cited in the
Walden affidavit, these copies do not comply with Section 24 of Rule 132 on
proof of official records or decisions of foreign courts.
 The Bank failed to comply with Section 24 of Rule 132 on how to prove a foreign
law and decisions of foreign courts. The Walden Affidavit did not prove the
current state of New York law and jurisprudence. Thus, the Bank has only
alleged, but has not proved, what New York law and jurisprudence are on the
matters at issue.
It Was Not Mandatory for Guerrero to Submit an Opposing Affidavit to the Walden
Affidavit
 Next, the Bank makes much of Guerrero’s failure to submit an opposing affidavit
to the Walden Affidavit. However, the pertinent provision of Rule 35 Sec 3 of the
old Rules of Court did not make the submission of an opposing affidavit
mandatory. Guerrero need not file an opposing affidavit to the Walden affidavit
because his complaint itself controverts the matters set forth in the Bank’s motion
and the Walden affidavit. A party should not be made to deny matters already
averred in his complaint.
 There being substantial triable issues between the parties, the courts a
quo correctly denied the Bank’s motion for partial summary judgment. There is a
need to determine by presentation of evidence in a regular trial if the Bank is
guilty of any wrongdoing and if it is liable for damages under the applicable laws.
2

CRESCENT PETROLEUM,
6.
LTD., Petitioner, vs. M/V
"LOK MAHESHWARI," THE
SHIPPING CORPORATION
OF INDIA, and PORTSERV
LIMITED
G.R. No. 155014 November 11,
2005
FACTS:
Respondent M/V "Lok Maheshwari" (Vessel) is an
oceangoing vessel of Indian registry that is owned by
respondent Shipping Corporation of India (SCI), a
corporation organized and existing under the laws of
India and principally owned by the Government of India. It
was time-chartered by respondent SCI to Halla Merchant
Marine Co. Ltd. (Halla), a South Korean company. Halla, in
turn, sub-chartered the Vessel through a time charter to
Transmar Shipping, Inc. (Transmar). Transmar further
sub-chartered the Vessel to Portserv Limited (Portserv).
Both Transmar and Portserv are corporations organized
and existing under the laws of Canada.
On or about November 1, 1995, Portserv requested
petitioner Crescent Petroleum, Ltd. (Crescent), a
corporation organized and existing under the laws of
Canada that is engaged in the business of selling
petroleum and oil products for the use and operation of
oceangoing vessels, to deliver marine fuel oils (bunker
fuels) to the Vessel. Petitioner Crescent granted and
confirmed the request through an advice via facsimile
dated November 2, 1995. As security for the payment of
the bunker fuels and related services, petitioner Crescent
received two (2) checks in the amounts of US$100,000.00
and US$200,000.00. Thus, petitioner Crescent contracted
with its supplier, Marine Petrobulk Limited (Marine
Petrobulk), another Canadian corporation, for the
physical delivery of the bunker fuels to the Vessel.
On or about November 4, 1995, Marine Petrobulk
delivered the bunker fuels amounting to US$103,544
inclusive of barging and demurrage charges to the Vessel
at the port of Pioneer Grain, Vancouver, Canada. The
Chief Engineer Officer of the Vessel duly acknowledged
and received the delivery receipt. Marine Petrobulk
issued an invoice to petitioner Crescent for the
US$101,400.00 worth of the bunker fuels. Petitioner
Crescent issued a check for the same amount in favor of
Marine Petrobulk, which check was duly encashed.
Having paid Marine Petrobulk, petitioner Crescent
issued a revised invoice dated November 21, 1995 to
"Portserv Limited, and/or the Master, and/or Owners,
and/or Operators, and/or Charterers of M/V ‘Lok
Maheshwari’" in the amount of US$103,544.00 with
instruction to remit the amount on or before December 1,
1995. The period lapsed and several demands were made
but no payment was received. Also, the checks issued to
petitioner Crescent as security for the payment of the
bunker fuels were dishonored for insufficiency of funds.
3
As a consequence, petitioner Crescent incurred
additional expenses of US$8,572.61 for interest, tracking
fees, and legal fees.
On May 2, 1996, while the Vessel was docked at the
port of Cebu City, petitioner Crescent instituted before
the RTC of Cebu City an action "for a sum of money with
prayer for temporary restraining order and writ of
preliminary attachment" against respondents Vessel and
SCI, Portserv and/or Transmar.
On May 3, 1996, the trial court issued a writ of
attachment against the Vessel with bond at P2,710,000.00.
Petitioner Crescent withdrew its prayer for a temporary
restraining order and posted the required bond.
On May 18, 1996, summonses were served to
respondents Vessel and SCI, and Portserv and/or
Transmar through the Master of the Vessel. On May 28,
1996, respondents Vessel and SCI, through Pioneer
Insurance and Surety Corporation (Pioneer), filed an
urgent ex-parte motion to approve Pioneer’s letter of
undertaking, to consider it as counter-bond and to
discharge the attachment. On May 29, 1996, the trial court
granted the motion; thus, the letter of undertaking was
approved as counter-bond to discharge the attachment.
ISSUE:
Whether the Philippine court has or will exercise
jurisdiction and entitled to maritime lien under our laws
on foreign vessel docked on Philippine port and supplies
furnished to a vessel in a foreign port?
RULING:
In a suit to establish and enforce a maritime lien for
supplies furnished to a vessel in a foreign port, whether
such lien exists, or whether the court has or will exercise
jurisdiction, depends on the law of the country where the
supplies were furnished, which must be pleaded and
proved.
The Lauritzen-Romero-Rhoditis trilogy of cases,
which replaced such single-factor methodologies as the
law of the place of supply. The multiple-contact test to
determine, in the absence of a specific Congressional
directive as to the statute’s reach, which jurisdiction’s
law should be applied. The following factors were
considered: (1) place of the wrongful act; (2) law of the
flag; (3) allegiance or domicile of the injured; (4)
allegiance of the defendant shipowner; (5) place of
contract; (6) inaccessibility of foreign forum; and (7) law
of the forum. This is applicable not only to personal injury
claims arising under the Jones Act but to all matters
arising under maritime law in general
The Court cannot sustain petitioner Crescent’s
insistence on the application of P.D. No. 1521 or the Ship
Mortgage Decree of 1978 and hold that a maritime lien
exists. Out of the seven basic factors listed in the case of
Lauritzen, Philippine law only falls under one – the law of
the forum. All other elements are foreign – Canada is the
place of the wrongful act, of the allegiance or domicile of
the injured and the place of contract; India is the law of
the flag and the allegiance of the defendant shipowner.
Applying P.D. No. 1521,a maritime lien exists would not
promote the public policy behind the enactment of the
law to develop the domestic shipping industry. Opening
up our courts to foreign suppliers by granting them a
4
maritime lien under our laws even if they are not entitled
to a maritime lien under their laws will encourage forum
shopping. In light of the interests of the various foreign
elements involved, it is clear that Canada has the most
significant interest in this dispute. The injured party is a
Canadian corporation, the sub-charterer which placed the
orders for the supplies is also Canadian, the entity which
physically delivered the bunker fuels is in Canada, the
place of contracting and negotiation is in Canada, and the
supplies were delivered in Canada.
Second. P.D. No. 1521 or the Ship Mortgage Decree of 1978 is
inapplicable following the factors under Restatement (Second) of
Conflict of Laws. Like the Federal Maritime Lien Act of the U.S., P.D. No.
1521 or the Ship Mortgage Decree of 1978 was enacted primarily to
protect Filipino suppliers and was not intended to create a lien from a
contract for supplies between foreign entities delivered in a foreign port.
Third. Applying P.D. No. 1521 or the Ship Mortgage Decree of 1978 and
rule that a maritime lien exists would not promote the public policy
behind the enactment of the law to develop the domestic shipping
industry. Opening up our courts to foreign suppliers by granting them a
maritime lien under our laws even if they are not entitled to a maritime
lien under their laws will encourage forum shopping.
Finally. The submission of petitioner is not in keeping with the
reasonable expectation of the parties to the contract. Indeed, when the
parties entered into a contract for supplies in Canada, they could not
have intended the laws of a remote country like the Philippines to
determine the creation of a lien by the mere accident of the Vessel's
being in Philippine territory.
7. Edi-Staffbuilders Inc. (EDI) v. NLRC and Eleazar Gran
G. R. No. 145587, October 26, 2007, J. Velasco, Jr.
FACTS:
Gran was an OFW recruited by EDI, and deployed by ESI (another
recruitment agency) to work for OAB, in Riyadh, KSA. After Gran had been
working for about five months for OAB, his employment was terminated through
OAB's letter, based on: (1) non-compliance to contract requirements by the
recruitment agency primarily on the salary and contract duration; (2) Non-compliance
to pre-qualification requirements by the recruitment agency, OAB; and (3)
insubordination or disobedience to Top Management Order and/or instructions (i.e.
non-submittal of daily activity reports despite several instructions). Gran received
from OAB the total amount of SR 2,948.00 representing his final pay, and thereafter,
executed a declaration releasing OAB from any financial obligation.
Upon arrival in the Philippines, Gran instituted a complaint, against
ESI/EDI and OAB inter alia, with the NLRC - NCR, Quezon City, for
underpayment of wages/salaries and illegal dismissal.
ISSUE:
Whether or not Gran's dismissal is justifiable by reason of incompetence,
insubordination, and disobedience.
RULING:
EDI failed to prove that Gran was justifiably dismissed due to
incompetence, insubordination, or willful disobedience. In illegal dismissal cases, it
has been established by Philippine law and jurisprudence that the employer should
prove that the dismissal of employees or personnel is legal and just.
5
 In cases involving OFWs, the rights and obligations among and between
the OFW, the local recruiter/agent, and the foreign employer/principal are governed
by the employment contract. A contract freely entered into is considered law between
the parties hence, should be respected. The employment contract signed by Gran
specifically states that Saudi Labor Laws will govern matters not provided for in the
contract (e.g. specific causes for termination, termination procedures, etc.). Being the
law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor
Laws should govern all matters relating to the termination of the employment of
Gran.
However, the party who wants to have a foreign law applied to a dispute or case has
the burden of proving the foreign law. The foreign law is treated as a question of fact
to be properly pleaded and proved as the judge or labor arbiter cannot take judicial
notice of a foreign law. He is presumed to know only domestic or forum law.
Unfortunately for EDI, it did not prove the pertinent Saudi laws on the matter; thus,
the doctrine of presumed-identity approach or processual presumption comes into
play. Where a foreign law is not pleaded or, even if pleaded, is not proved, the
presumption is that foreign law is the same as ours. Thus, Philippine labor laws was
applied in this case.
According to Philippine laws, incompetence may be shown by weighing it against a
standard, benchmark, or criterion. However, EDI failed to establish any such bases
to show how EDI found Gran incompetent. Likewise, in order to justify willful
disobedience, it must be determined whether the order violated by the employee is
reasonable, lawful, made known to the employee, and pertains to the duties which he
had been engaged to discharge. In the case at bar, EDI failed to show that the order
of the company which was violated—the submission of "Daily Activity Reports"—
was part of Gran's duties as a Computer Specialist. An allegation of incompetence
should have a factual foundation.
Hence, petition is denied.
8. NORMA A. DEL SOCORRO, for and in behalf of her minor child
RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
FACTS:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman
Van Wilsem contracted marriage in Holland on September 25, 1990. On
January 19, 1994, they were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant petition was
sixteen (16) years of age.
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a
Divorce Decree issued by the appropriate Court of Holland. At that time,
their son was only eighteen (18) months old. Thereafter, petitioner and
her son came home to the Philippines.
According to petitioner, respondent made a promise to provide monthly
support to their son in the amount of Two Hundred Fifty (250) Guildene
(which is equivalent to Php17,500.00 more or less). However, since the
arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo.
Not long thereafter, respondent came to the Philippines and remarried in
Pinamungahan, Cebu, and since then, have been residing thereat.
Respondent and his new wife established a business known as Paree
Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu
City. To date, all the parties, including their son, Roderigo, are presently
living in Cebu City.
On August 28, 2009, petitioner, through her counsel, sent a letter
demanding for support from respondent. However, respondent refused
to receive the letter.
CRIME CHARGED: violation of Section 5, paragraph E(2) of R.A. No. 9262
(VAWC)
6
RTC: DISMISSED on the ground that the facts charged in the information
do not constitute an offense with respect to the respondent who is an
ALIEN.
ISSUES:
1. Whether or not a foreign national has an obligation to support his
minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under
R.A. No. 9262 for his unjustified failure to support his minor child.
SC HELD:
*Note: petition was allowed to be directly appealed to the SC without
violating hierarchy of courts since the petition involves purely questions
of law.
1. YES. Petitioner invokes Article 195 of the Family Code, which provides
the parent’s obligation to support his child. Petitioner contends that
notwithstanding the existence of a divorce decree issued in relation to
Article 26 of the Family Code, respondent is not excused from complying
with his obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and
clear basis presented by petitioner that she, as well as her minor son, are
entitled to financial support. Respondent also added that by reason of the
Divorce Decree, he is not obligated to petitioner for any financial support.
On this point, we agree with respondent that petitioner cannot rely on
Article 195 of the New Civil Code in demanding support from respondent,
who is a foreign citizen, since Article 15 of the New Civil Code stresses
the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the
same only applies to Filipino citizens. By analogy, the same principle
applies to foreigners such that they are governed by their national law
with respect to family rights and duties
The obligation to give support to a child is a matter that falls under family
rights and duties. Since the respondent is a citizen of Holland or the
Netherlands, we agree with the RTC-Cebu that he is subject to the laws of
his country, not to Philippine law, as to whether he is obliged to give
support to his child, as well as the consequences of his failure to do so.
This does not, however, mean that respondent is not obliged to support
petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to
a dispute or case has the burden of proving the foreign law. In the
present case, respondent hastily concludes that being a national of the
Netherlands, he is governed by such laws on the matter of provision of
and capacity to support. While respondent pleaded the laws of the
Netherlands in advancing his position that he is not obliged to support his
son, he never proved the same.
In view of respondent’s failure to prove the national law of the
Netherlands in his favor, the doctrine of processual presumption shall
govern. Under this doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the
same as our local or domestic or internal law. Thus, since the law of the
Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same
with Philippine law, which enforces the obligation of parents to support
their children and penalizing the non-compliance therewith.
7
We likewise agree with petitioner that notwithstanding that the national
law of respondent states that parents have no obligation to support their
children or that such obligation is not punishable by law, said law would
still not find applicability for the reason that when the foreign law,
judgment or contract is contrary to a sound and established public
policy of the forum, the said foreign law, judgment or order shall not be
applied.
Applying the foregoing, even if the laws of the Netherlands neither
enforce a parent’s obligation to support his child nor penalize the
noncompliance therewith, such obligation is still duly enforceable in the
Philippines because it would be of great injustice to the child to be
denied of financial support when the latter is entitled thereto.
Based on the foregoing legal precepts, we find that respondent may be
made liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly
refusing or failing to give support to petitioner’s son.
In addition, considering that respondent is currently living in the
Philippines, we find strength in petitioner’s claim that the Territoriality
Principle in criminal law, in relation to Article 14 of the New Civil Code,
applies to the instant case, which provides that: "[p]enal laws and those
of public security and safety shall be obligatory upon all who live and
sojourn in Philippine territory, subject to the principle of public
international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the Philippines as
all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged
against respondent. It is likewise irrefutable that jurisdiction over the
respondent was acquired upon his arrest.
Finally, we do not agree with respondent’s argument that granting, but
not admitting, that there is a legal basis for charging violation of R.A. No.
9262 in the instant case, the criminal liability has been extinguished on
the ground of prescription of crime. The act of denying support to a child
under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense,
which started in 1995 but is still ongoing at present. Accordingly, the
crime charged in the instant case has clearly not prescribed.
PETITION GRANTED, CASE REMANDED TO RTC.
RULING:
1. YES. While it is true that Respondent Ernst is a citizen of Holland
or the Netherlands, we agree with the RTC that he is subject to the
laws of his country, not to Philippine law, as to whether he is
obliged to give support to his child, as well as the consequences of
his failure to do so. This does not, however, mean that Ernst is not
obliged to support Norma’s son altogether. In international law,
the party who wants to have a foreign law applied to a dispute or
case has the burden of proving the foreign law. In the present case,
Ernst hastily concludes that being a national of the Netherlands, he
is governed by such laws on the matter of provision of and capacity
to support. While Ernst pleaded the laws of the Netherlands in
advancing his position that he is not obliged to support his son, he
never proved the same. It is incumbent upon Ernst to plead and
prove that the national law of the Netherlands does not impose
upon the parents the obligation to support their child. Foreign laws
do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they
must be alleged and proved. Moreover, foreign law should not be
applied when its application would work undeniable injustice to the
8
citizens or residents of the forum. To give justice is the most
important function of law; hence, a law, or judgment or contract
that is obviously unjust negates the fundamental principles of
Conflict of Laws. Applying the foregoing, even if the laws of the
Netherlands neither enforce a parent’s obligation to support his
child nor penalize the non-compliance therewith, such obligation is
still duly enforceable in the Philippines because it would be of great
injustice to the child to be denied of financial support when the
latter is entitled thereto.
2. YES. The court has jurisdiction over the offense (R.A 9262)
because the foreigner is living here in the Philippines and
committed the offense here.
C. Exceptions to the Application of Foreign Law
1. YAO KEE VS. AIDA SY-GONZALES
[G.R. No. 55960. November 24, 1988.]
Facts:
Sy Kiat was a Chinese national who died on January 17, 1977 in Caloocan City
where he was then residing. He left behind real and personal properties here in
the Philippines worth P300,000.00.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed
a petition for the grant of letters of administration alleging that:
a) they are the children of the deceased with Asuncion Gillego;
b) that Sy Kiat died intestate;
c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of
her children to him; and
d) they nominate Aida Sy-Gonzales for appointment as administratrix of the
intestate estate of the deceased
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun
Chen who alleged that:
a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19,
1931 in China;
b) the other oppositors are the legitimate children of the deceased with Yao
Kee; and,
c) Sze Sook Wah is the eldest among them and is competent, willing and
desirous to become the administratrix of the estate of Sy Kiat
Probate Court (PC): held in favor of the petitioners (Yao Kee et al.) and
appointed Sze Sook Wah as the administratrix.
CA: modified the PC’s decision by declaring that:
a) Respondents as acknowledged natural children of Sy Kiat with
Asuncion Gillego
b) Legality of the alleged marriage of Sy Kiat to Yao Kee in China
had not been proven to be valid to the laws of the Chinese
People's Republic of China
Issue:
W/N the marriage of Sy Kiat to Yao Kee was conclusively proven valid in
accordance with the laws of the People’s Republic of China.
Ruling:
No.
The law on foreign marriages is provided by Article 71 of the Civil Code which
states that:
Art. 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.
This Court has held that to establish a valid foreign marriage two things must be
proven, namely: (1) the existence of the foreign law as a question of fact; and (2)
the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee,
43 Phil. 43, 49 (1922).].
9
In proving a foreign law the procedure is provided in the Rules of Court. With
respect to an unwritten foreign law, Rule 130 section 45 states that:
Sec. 45.Unwritten law. — The oral testimony of witnesses,
skilled therein, is admissible as evidence of the unwritten law of
a foreign country, as are also printed and published books of
reports of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132
section 25, thus:
Sec. 25.Proof of public or official record. — An official record or
an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept and authenticated by
the seal of his office.
In the case at bar, petitioners did not present any competent evidence relative to
the law and custom of China on marriage. The testimonies of Yao and Gan Ching
cannot be considered as proof of China's law or custom on marriage not only
because they are self-serving evidence, but more importantly, there is no showing
that they are competent to testify on the subject matter. For failure to prove the
foreign law or custom, and consequently, the validity of the marriage in
accordance with said law or custom, the marriage between Yao Kee and Sy Kiat
cannot be recognized in this jurisdiction.
Furthermore, well-established in this jurisdiction is the principle that Philippine
courts cannot take judicial notice of foreign laws. They must be alleged and proved
as any other fact.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be
presumed that it is the same as ours. Since Yao Kee admitted in her testimony that
there was no solemnizing officer as is known here in the Philippines when her
alleged marriage to Sy Kiat was celebrated, it therefore follows that her marriage
to Sy Kiat, even if true, cannot be recognized in this jurisdiction.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
2. BANK OF AMERICA, NT and SA, petitioner,
vs. AMERICAN REALTY CORPORATION and
COURT OF APPEALS, respondents
Facts:
(Petitioner Bank of America [organized under English laws] granted multi-
million dollar loans to affiliate companies of respondent American Realty
Corp. Properties of American Realty Corp in the Philippines were
mortgaged as security. When the affiliate companies were not able to
pay, Petitioner Bank of America filed cases for collection of sum of money
[principal loan] in courts in England and in Hongkong. The American
Realty Corp was not impleaded as a party-defendant in these cases. Then,
Bank of America brought a case in the Philippines [ Office of the Provincial
Sheriff of Bulacan Philippines] for the foreclosure of the mortgaged
properties). RTC ruled for respondent stating that filing for claim for
principal loan by petitioner operated as waiver of its right to foreclose
mortgage. CA affirmed RTC.
Issue:
WON petitioner’s act of filing a collection suit against
the principal debtors for the recovery of the loan before
foreign courts constituted a waiver of the remedy of
foreclosure.
10
Held: Yes.
1. Loan; Mortgage; remedies:
In the absence of express statutory provisions, a
mortgage creditor may institute against the mortgage
debtor either a personal action or debt or a real action
to foreclose the mortgage. In other words, he may
pursue either of the two remedies, but not both. By
such election, his cause of action can by no means be
impaired, for each of the two remedies is complete in
itself.
In our jurisdiction, the remedies available to the
mortgage creditor are deemed alternative and not
cumulative. Notably, an election of one remedy
operates as a waiver of the other. For this purpose, a
remedy is deemed chosen upon the filing of the suit for
collection or upon the filing of the complaint in an
action for foreclosure of mortgage. As to extrajudicial
foreclosure, such remedy is deemed elected by the
mortgage creditor upon filing of the petition not with
any court of justice but with the Office of the Sheriff of
the province where the sale is to be made.
In the case at bar, petitioner only has one cause of
action which is non-payment of the debt. Nevertheless,
alternative remedies are available for its enjoyment and
exercise. Petitioner then may opt to exercise only one of
two remedies so as not to violate the rule against
splitting a cause of action.
Accordingly, applying the foregoing rules, we hold that
petitioner, by the expediency of filing four civil suits
before foreign courts, necessarily abandoned the
remedy to foreclose the real estate mortgages
constituted over the properties of third-party
mortgagor and herein private respondent ARC.
Moreover, by filing the four civil actions and by
eventually foreclosing extra-judicially the mortgages,
petitioner in effect transgressed the rules against
splitting a cause of action well-enshrined in
jurisprudence and our statute books.
2. Conflicts of Law
Incidentally, petitioner alleges that under English Law,
which according to petitioner is the governing law with
regard to the principal agreements, the mortgagee does
not lose its security interest by simply filing civil
actions for sums of money.
We rule in the negative.
In a long line of decisions, this Court adopted the well-
imbedded principle in our jurisdiction that there is no
11
judicial notice of any foreign law. A foreign law must be
properly pleaded and proved as a fact. Thus, if the
foreign law involved is not properly pleaded and
proved, our courts will presume that the foreign law is
the same as our local or domestic or internal
law. This is what we refer to as the doctrine of
processual presumption.
In the instant case, assuming arguendo that the English
Law on the matter were properly pleaded and proved in
said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is
contrary to a sound and established public policy of the
forum, the said foreign law, judgment or order shall not
be applied.
Additionally, prohibitive laws concerning persons, their
acts or property, and those which have for their object
public order, public policy and good customs shall not
be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
The public policy sought to be protected in the instant
case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.
Moreover, foreign law should not be applied when its
application would work undeniable injustice to the
citizens or residents of the forum. To give justice is the
most important function of law; hence, a law, or
judgment or contract that is obviously unjust negates
the fundamental principles of Conflict of Laws.
Clearly then, English Law is not applicable.
V. Nature of Conflicts Rule
LLORENTE VS. COURT OF APPEALS
FACTS:
In 1927, Lorenzo Llorente, then a Filipino, was enlisted in the U.S. Navy. In 1937,
he and Paula Llorente got married in Camarines Sur. In 1943, Lorenzo became an
American citizen.
In 1945, Lorenzo returned to the Philippines for a vacation. He discovered that
Paula was already living illicitly with Ceferino Llorente, a brother of Lorenzo and
the two even have a son.
Lorenzo then refused to live with Paula. He also refused to give her monetary
support. Eventually, Lorenzo and Paula agreed in writing that Lorenzo shall not
criminally charge Paula if the she will agree to waive all monetary support from
Lorenzo. Later, Lorenzo returned to the US.
In 1951, Lorenzo filed a divorce proceeding against Paula in California. Paula was
represented by an American counsel. The divorce was granted and in 1952, the
divorce became final.
12
Lorenzo returned to the Philippines. In 1958, Lorenzo married Alicia Fortuno.
They had three children.
In 1981, Lorenzo executed his last will and testament where he left all his estate
to Alicia and their children and left nothing for Paula. In 1983, Lorenzo went
to the court for the will’s probate and to have Alicia as the administratrix of his
property. In 1985, before the probate proceeding can be terminated, Lorenzo
died. Later, Paula filed a petition for letters of administration over Lorenzo’s
estate.
RTC ruled that Lorenzo’s marriage with Alicia is void because the divorce decree
granted to the late Lorenzo Llorente is void and inapplicable in the Philippines,
therefore the marriage he contracted with Alicia Fortunato on January 16, 1958
at Manila is likewise void.
The CA affirmed the trial court decision.
ISSUES:
Whether or not the National Law shall apply.
Ruling:
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen
long before and at the time of: (1) his divorce from Paula; (2) marriage
to Alicia; (3) execution of his will; and (4) death, is duly established,
admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily
governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws 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.
"Art. 16. Real property as well as personal property is subject to the
law of the country where it is situated.
"However, intestate and testamentary succession, both with respect to
the order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found."
(emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other
fact, they must be alleged and proved.37
While the substance of the foreign law was pleaded, the Court of
Appeals did not admit the foreign law. The Court of Appeals and the
trial court called to the fore the renvoi doctrine, where the case was
"referred back" to the law of the decedent’s domicile, in this case,
Philippine law.
We note that while the trial court stated that the law of New York was
not sufficiently proven, in the same breath it made the categorical,
albeit equally unproven statement that "American law follows the
‘domiciliary theory’ hence, Philippine law applies when determining the
validity of Lorenzo’s will.38
First, there is no such thing as one American law. The "national law"
1ªwph!1
indicated in Article 16 of the Civil Code cannot possibly apply to
general American law. There is no such law governing the validity of
testamentary provisions in the United States. Each State of the union
has its own law applicable to its citizens and in force only within the
13
State. It can therefore refer to no other than the law of the State of
which the decedent was a resident.39 Second, there is no showing that
the application of the renvoi doctrine is called for or required by New
York State law.
The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court’s opinion
was a mere paramour. The trial court threw the will out, leaving Alice,
and her two children, Raul and Luz, with nothing.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces, the
same being considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens may obtain
divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of
Appeals,41 that once proven that respondent was no longer a Filipino
citizen when he obtained the divorce from petitioner, the ruling in Van
Dorn would become applicable and petitioner could "very well lose her
right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the
respondent in his country, the Federal Republic of Germany. There, we
stated that divorce and its legal effects may be recognized in the
Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed.43 We hold that the divorce obtained by
Lorenzo H. Llorente from his first wife Paula was valid and recognized
in this jurisdiction as a matter of comity. Now, the effects of this divorce
(as to the succession to the estate of the decedent) are matters best
left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
"When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws shall be observed in
their execution." (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his second wife
and children by her is glaringly shown in the will he executed. We do
not wish to frustrate his wishes, since he was a foreigner, not covered
by our laws on "family rights and duties, status, condition and legal
capacity."44
Whether the will is intrinsically valid and who shall inherit from Lorenzo
are issues best proved by foreign law which must be pleaded and
proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact,
the will was duly probated.
As a guide however, the trial court should note that whatever public
policy or good customs may be involved in our system of legitimes,
Congress did not intend to extend the same to the succession of
foreign nationals. Congress specifically left the amount of successional
rights to the decedent's national law.45
Having thus ruled, we find it unnecessary to pass upon the other
issues raised.
14
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of
Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is
SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial
Court and RECOGNIZES as VALID the decree of divorce granted in
favor of the deceased Lorenzo N. Llorente by the Superior Court of the
State of California in and for the County of San Diego, made final on
December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for
determination of the intrinsic validity of Lorenzo N. Llorente’s will and
determination of the parties’ successional rights allowing proof of
foreign law with instructions that the trial court shall proceed with all
deliberate dispatch to settle the estate of the deceased within the
framework of the Rules of Court.
VI. Nationality and Domicile
1. [G.R. No. 43314. December 19, 1935.]
A. L. VELILLA, administrator of the estate of Arthur Graydon Moody,
Plaintiff-Appellant, v. JUAN POSADAS, JR., Collector of Internal Revenue,
Defendant-Appellee.
Facts:
This is an appeal from a judgment of the CFI of Manila in an action to
recover from the defendant-appellee as Collector of Internal Revenue the
sum of P77,018,39 as inheritance taxes and P13,001.41 as income taxes
assessed against the estate of Arthur G. Moody, deceased.
Arthur G. Moody, an American citizen, came to the Philippine Islands
in 1902 or 1903 and engaged actively in business in these Islands up to
the time of his death in Calcutta, India, on February 18, 1931. He had no
business elsewhere and at the time of his death left an estate consisting
principally of bonds and shares of stock of corporations organized under
the laws of the Philippine Islands, bank deposits and other intangibles and
personal property. All of said property at the time of his death was
located and had its situs within the Philippine Islands. So far as this record
shows, he left no property of any kind located anywhere else.
He executed in the Philippine Islands a will where he bequeathed all
his property to his only sister, Ida M. Palmer, who then was and still is a
citizen and resident of the State of New York, USA.
On February 24, 1931, a petition for appointment of special
administrator of the estate of the deceased Arthur Graydon Moody was
filed by W. Maxwell. Subsequently or on April 10, 1931, a petition was
filed by Ida M. Palmer, asking for the probate of said will of the deceased ,
and the same was, after hearing, duly probated by the court and it was
declared that Ida Palmer is the sole and only heiress of the deceased
Moody.
However the will does not cover the respective values of said
properties for the purpose of the inheritance tax.the BIR prepared for the
estate of the late Arthur Graydon Moody an inheritance tax return.
The estate of the late Arthur Graydon Moody paid under protest the
sum of P50,000 on July 22, 1931, and the other sum of P40,019,75 on
January 19, 1932, making a total of P90,019,75, of which P77,018.39
covers the assessment for inheritance tax and the sum of P13,001.41
covers the assessment for income tax against said estate. The protest was
overruled by the BIR.
The petitioner contends that that there is no valid law or regulation
of the Government of the Philippine Islands under or by virtue of which
any inheritance tax may be levied, assessed or collected upon transfer, by
death and succession, of intangible personal properties of a person not
domiciled in the Philippine Islands
Issue: Whether Arthur G. Moody was legally domiciled in the Philippine
Islands on the day of his death
15

Held:
The Court ruled that Moody was domiciled in the Philippines.
According to the Court, the fact that Moody accumulated a fortune from
his business in the Philippines and that he lived in the Elks’ Club in Manila
for many years and was living there up to the date he left Manila the
latter part of February, 1928 proved that his domicile at the time of his
death was in the Philippines. And that the only reason why he left the
country was that he was afflicted with leprosy in an advanced stage and
had been informed that he would be reported to the Philippine
authorities for confinement in the Culion Leper Colony as required by the
law. Distressed at the thought of being thus segregated and in violation of
his promise to his doctor that he would voluntarily go to Culion, he
surreptitiously left the Islands the latter part of February, 1928, under
cover of night, on a freighter, without ticket, passport or tax clearance
certificate.
He lived with a friend in Paris, France, during the months of March
and April of the year 1929 where he was receiving treatment for leprosy
at the Pasteur Institute. There is no statement of Moody, oral or written,
in the record that he had adopted a new domicile while he was absent
from Manila. Though he was physically present for some months in
Calcutta prior to the date of his death there, the appellant does not claim
that Moody had a domicile there although it was precisely from Calcutta
that he wrote and cabled that he wished to sell his business in Manila and
that he had no intention to live there again. Much less plausible is the
claim that he established a legal domicile in Paris in February, 1929. The
record contains no writing whatever of Moody from Paris. There is no
evidence as to where in Paris he had any fixed abode that he intended to
be his permanent home. There is no evidence that he acquired any
property in Paris or engaged in any settled business on his own account
there. There is no evidence of any affirmative factors that prove the
establishment of a legal domicile there. His short stay of three months in
Paris is entirely consistent with the view that he was a transient in Paris
for the purpose of receiving treatments at the Pasteur Institute.
The evidence in the record indicates clearly that Moody’s continued
absence from his legal domicile in the Philippines was due to and
reasonably accounted for by the same motive that caused his
surreptitious departure, namely, to evade confinement in the Culion
Leper Colony.
Our Civil Code (art. 40) defines the domicile of natural persons as
"the place of their usual residence." The record before us leaves no doubt
in our minds that the "usual residence" of this unfortunate man, whom
appellant describes as a "fugitive" and "outcast", was in Manila where he
had lived and toiled for more than a quarter of a century, rather than in
any foreign country he visited during his wanderings up to the date of his
death in Calcutta. To effect the abandonment of one’s domicile, there
must be a deliberate and provable choice of a new domicile, coupled with
actual residence in the place chosen, with a declared or provable intent
that it should be one’s fixed and permanent place of abode, one’s home.
There is a complete dearth of evidence in the record that Moody ever
established a new domicile in a foreign country.
2.
GALLEGO vs. VERA
G.R. No. L-48641 November 24, 1941
Facts: This is a petition for certiorari to review the decision of the
CA affirming the decision of the CFI of Leyte, which declared illegal
the petitioner’s election to the office of the municipal mayor of
Abuyog, Leyte in the election of Dec. 1940, on the ground that he
did not meet the residence qualification.
Gallego is a native of Abuyog, Leyte. After his studies, he was
employed as a school teacher in Catarman, Samar, as well as in
16
some municipalities in Leyte. In 1937, he ran as municipal mayor in
Abuyog, Leyte, but lost. In June 1938, he worked in Malaybalay
Bukidnon in a plantation of the Bureau of Forestry to make up for
the financial drawback caused by his loss in the previous election,
and stayed there until he resigned in Sept. 1940.
Gallego registered himself as an elector in Bukidnon and voted
there in the election for assemblymen held in Dec. 1938, and in Jan.
1940, He obtained and paid for his residence cert. from the
municipal treasurer of Malaybalay, in which certificate it was stated
that he had resided in the said municipality for 1.5 yrs.
The CA declared that Gallego lost his domicile in Abuyog Leyte at
the time he was elected mayor there on the grounds that:
1. He registered as a voter in Malaybalay, Bukidnon
2. He voted in Malaybalay in the 1938 election for
assemblymen
3. He obtained a residence cert from the municipality of
Malaybalay
ISSUE/S:
Whether or not Gallego lost his domicile of origin in Abuyog, Leyte
and acquired a new domicile in Malaybalay, Bukidnon.
HELD: Yes. Gallego did not lose his domicile in Abuyog by working
in Malaybalay as an employee, registering as voter there and
securing his residence certificate there for 1940. The decision of the
CA is reversed.
In the definition of “residence” in the election law under the 1935
Constitution, it states that in order to acquire a domicile by choice,
there must concur:
1. Residence or a bodily presence in the new locality
2. An intention to remain there
3. An intention to abandon the old domicile
The purpose to remain in the domicile should be for an
INDEFINITE period of time. The court believed that Gallego had no
intention to stay in Malaybalay indefinitely because:
1. When he was employed as a teacher in Samar, he always
returned in Abuyog and even resigned when he ran for office
in 1937
2. His departure was only for the purpose of making up for
the financial drawback caused by his loss in the election
3. He did not take his wife and children to Malaybalay with
him
4. He bought a piece of land in Abuyog and did not avail of
the land in the plantation offered to him by the government
5. He visited his family no less than three times despite the
great distance between Abuyog, Leyte and Malaybalay
Bukidnon
The court said that the manifest intent of the law in fixing a
residence qualification is to:
17
“exclude a stranger or a newcomer, unacquainted with the
conditions and needs of a community and not identified with the
latter, from an elective office to serve that community.”
And the petitioner was a native there, had run for the same office
before, and was now elected with a majority of 800 votes in a 3rd
class municipality
3. FLORENTINA VILLAHERMOSA, PETITIONER
AND APPELLANT, VS. THE COMMISSIONER OF
IMMIGRATION, RESPONDENT AND APPELLEE.
DECISION
BENGZON, J.:
This is an appeal from the order of Honorable Sotero
Rodas, Judge of the Manila Court of First Instance,
denying the writ of habeas corpus requested by
Florentina Villahermosa on behalf of her son Delfin
Co, who is under detention by the immigration
authorities for purposes of deportation.
In the night of March 24, 1947, a party of sixty-nine
Chinese landed clandestinely on the shores of Sto.
Domingo, Ilocos Sur, in an attempt to evade our
immigration laws. Leading them was Delfin Co, a
young man, Id years old, born in Paniqui, Tarlac, of a
Chinese father named Co Suy, alias lu Kui, and
Florentina Villahermosa his wife. Co Suy died in July,
1940, and in February, 1946, Delfin left the
Philippines for China on board the S/S Cushman as a
Chinese repatriate, in company with his relative Co
Chi Pe. However, due to financial difficulties in China
he took steps to return; but having met a Chinese (Co
Soon Tiong), who informed him of a plan to smuggle
their compatriots into this country, he agreed to lead
the party to Ilocos Sur where his mother had relatives
who could render valuable assistance. The voyage
was undertaken; but unfortunately, the immigrants
were discovered and apprehended immediately after
arrival, and on the 27th day of March, Delfin Co was
examined by the Commissioner of Immigration.
Formal investigation of the case began on April 10,
1947. Four days later, the corresponding board
recommended that said Delfin Co be deported to
China as a Chinese citizen. The Commissioner of
Immigration agreed with the board, and, acting on
this recommendation, rendered a decision ordering
deportation of Delfin Co.
It appears that on April 29, 1947, Florentine
Villahermosa, after knowing the apprehension of her
son Delfin, filed in the civil registry of Tarlac under
Commonwealth Act No. 63 an oath of allegiance for
the purpose of resuming her Philippine citizenship
which she had lost upon her marriage to Co Suy. On
18
the strength of such reacquisition of Philippine
citizenship by Florentina, it was contended before the
immigration authorities that Delfin, being a minor,
followed the citizenship of his mother, and was a
national not subject to deportation. These
contentions were overruled. They were repeated
before the court of first instance in this habeas corpus
proceeding and were likewise rejected. Appellant
stresses the same defense.
There are two reasons why Delfin Co must be
returned to China. First, he is not now a Philippine
citizen; and second, granting that he is, at the time he
entered this country from China he was a Chinese
subject to deportation, and any subsequent change in
his status can not erase the taint of his unlawful,
surreptitious entry.
Section 1 of Article IV of the Constitution enumerates
those who are citizens of the Philippines, as follows:
"(1) Those who are citizens of the Philippine Islands
at the time of the adoption of this Constitution.
"(2) Those born in the Philippine Islands of foreign
parents who, before the adoption of this Constitution,
had been elected to public office in the Philippine
Islands.
"(3) Those whose fathers are citizens of the
Philippines.
"(4) Those whose mothers are citizens of the
Philippines and, upon reaching the age of majority,
elect Philippine citizenship.
"(5) Those who are naturalized in accordance with
law."
Delfin Co's claim to citizenship can only be
predicated, if at all, on paragraph 4 of the above
section. But,being a minor, he has not had the
opportunity to elect Philippine citizenship, and
therefore he is as yet an alien, his father being a
Chinese.
We have heretofore held [1] that, after the
Constitution, mere birth in the Philippines of a
Chinese father and Filipino mother does not ipso
facto confer Philippine citizenship and that jus
sanguinis instead of jus soli is the predominating
factor on questions of citizenship, thereby rendering
obsolete the decision in Roa vs. Collector of Customs,
23 Phil., and U. S. vs. Lim Bin, 36 Phil., and similar
cases on which petitioner's counsel relies.
Nevertheless, it is contended that Florentina
Villahermosa being a Filipina, Delfin Co should
likewise be.a Filipino. Commonwealth Act No. 63
does not provide that upon repatriation of a Filipina
19
her children acquire Philippine citizenship. It would
be illogical to consider Delfin as repatriated like his
mother, because he never was a Filipino citizen and
could not have reacquired such citizenship.
While his Chinese father lived, Delfin was not a
Filipino. His mother was not a Filipina: she was
Chinese. After the death of such father, Villahermosa
continued to be a Chinese, until she reacquired her
Filipino citizenship in April, 1947. After that
reacquisition Delfin could claim that his mother was
a Filipina within the meaning of paragraph 4, section
1 of Article IV of the Constitution; but, according to
that same Organic Act, he had to elect Philippine
citizenship upon attaining his majority. Until he
becomes of age and makes the election, he is the
Chinese citizen that he was at the time of his father's
demise [2].
It does not help petitioner's case to assert that as a
mother she has a right to retain custody of her minor
son and to keep him here. Where such son has
violated the immigration laws and rendered himself
liable to deportation no rule or principle should
frustrate the Government's action by the
interposition of the mother's right to custody. This
consideration becomes stronger where, as in this
case, the re-assumption of Philippine citizenship by
Villahermosa has all the earmarks of an attempt to
impede the banishment of Delfin Co, who by the way,
besides being guilty of violating our laws, has not
shown any signs of eagerness to adopt our ways of
life.
This petition is moreover to be denied on the
strength of precedents heretofore established,
because Delfin was a Chinese when he arrived here;
and any posterior change of status can not affect the
legality of his detention for purposes of deportation.
In Juan Co vs. Rafferty, 14 Phil. 235, a Chinaman
claimed the right to enter the Islands, and being
refused by the customs officials, gave bond that he
would present himself for deportation if the claim
were disallowed. While under bond, he was adopted
as a son by another Chinaman domiciled herein, in
legal form. Held: He is subject to deportation,
because such adoption had no effect upon his right to
enter or to remain in the Islands. This Court said that
the status of an immigrant and his right to stay here
is to be determined as of the time of his entry (U.
S. vs. Ju-Toy, 198 U. S. 253, 263) and that he could
not do afterwards anything to render valid what was
originally an illegal entry.
"A Chinese person, not a merchant at the time he
applies to enter the Islands, will not be permitted to
remain here upon the theory that he became a
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merchant during the time he was waiting for the
decision of the proper authorities". (Tan Guam
Sien vs. Collector of Customs, 31.Phil. 56.) (See
also U. S. vs. Chan Sam, 17 Phil. 448)
that the child born of a Filipino mother married to a
foreigner "is not yet a Filipino" and "will be one if he
prefers to be so upon reaching the age of majority".
(Aruego, Framing of the Philippine Constitution, Vol.
I, p. 209).
We declare that Delfin Co is not now a Filipino. We
also declare that he having entered this country
surrepti-tiously is subject to deportation.
The decision of the lower court denying his petition
for habeas corpus is affirmed. With costs
4.

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