JENNIFER B.
CAGANDAHAN,
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional
Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of
Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of
entries in Cagandahan’s birth certificate: (1) the name “Jennifer Cagandahan” changed to “Jeff
Cagandahan” and (2) gender from “female” to “male.”
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she developed
secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia
(CAH) which is a condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in
her early years and at age six, underwent an ultrasound where it was discovered that she has
small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development. She then alleged that
for all interests and appearances as well as in mind and emotion, she has become a male
person. Thus, she prayed that her birth certificate be corrected such that her gender be
changed from female to male and her first name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the court. The
Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor
to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine
General Hospital. Dr. Sionzon issued a medical certificate stating that respondent’s condition
is known as CAH. He explained that genetically respondent is female but because her body
secretes male hormones, her female organs did not develop normally and she has two sex
organs – female and male. He testified that this condition is very rare, that respondent’s
uterus is not fully developed because of lack of female hormones, and that she has no
monthly period. He further testified that respondent’s condition is permanent and
recommended the change of gender because respondent has made up her mind, adjusted to
her chosen role as male, and the gender change would be advantageous to her.
The RTC granted respondent’s petition in a Decision dated January 12, 2005 which
reads:
The Court is convinced that petitioner has satisfactorily shown
that he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioner’s body produces
male hormones, and first his body as well as his action and feelings are
that of a male. He has chosen to be male. He is a normal person and
wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil,
Laguna is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:
a) By changing the name from Jennifer Cagandahan to
JEFF CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner’s school records, voter’s
registry, baptismal certificate, and other pertinent records are hereby
amended to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of
the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
“SEX” OR “GENDER” IN THE BIRTH CERTIFICATE, WHILE RESPONDENT’S
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT
MAKE HER A “MALE.”[4]
Simply stated, the issue is whether the trial court erred in ordering the correction
of entries in the birth certificate of respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as CAH, and her name from “Jennifer”
to “Jeff,” under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an
indispensable party in a petition for cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondent’s petition before the court a quo did not implead
the local civil registrar.[5] The OSG further contends respondent’s petition is fatally defective
since it failed to state that respondent is a bona fide resident of the province where the
petition was filed for at least three (3) years prior to the date of such filing as mandated
under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondent’s claimed medical
condition known as CAH does not make her a male.[7]
On the other hand, respondent counters that although the Local Civil Registrar of
Pakil, Laguna was not formally named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the
Order to publish on December 16, 2003 and all pleadings, orders or processes in the course
of the proceedings,[8] respondent is actually a male person and hence his birth certificate has
to be corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under
Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and
108 of the Rules of Court.[11]
Respondent undisputedly has CAH. This condition causes the early or
“inappropriate” appearance of male characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at
the base, an ambiguous genitalia often appearing more male than female; (2) normal internal
structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as
the child grows older, some features start to appear male, such as deepening of the voice,
facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are
born with CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During the
twentieth century, medicine adopted the term “intersexuality” to apply to human beings
who cannot be classified as either male or female.[22] The term is now of widespread
use. According to Wikipedia, intersexuality “is the state of a living thing of
agonochoristic species whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An organism
withintersex may have biological characteristics of both male and female sexes.”
Intersex individuals are treated in different ways by different cultures. In most
societies, intersex individuals have been expected to conform to either a male or female
gender role.[23] Since the rise of modern medical science in Western societies,
some intersex people with ambiguous external genitalia have had their genitalia surgically
modified to resemble either male or female genitals.[24] More commonly,
an intersex individual is considered as suffering from a “disorder” which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime medication in
order to mold the individual as neatly as possible into the category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to outright denial. “It
has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’
for those individuals who are neither truly ‘male’ nor truly ‘female’.”[25] The current state of
Philippine statutes apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature itself
fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is no
basis for a change in the birth certificate entry for gender. But if we determine, based on
medical testimony and scientific development
showing the respondent to be other than female, then a change in the
subject’s birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition. Respondent has
female (XX) chromosomes. However, respondent’s body system naturally produces high
levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and
the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason thinks of
his/her sex. Respondent here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant biological support
for considering him as being male. Sexual development in cases of intersexpersons makes
the gender classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken unnatural
steps to arrest or interfere with what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have undergone treatment and taken
steps, like taking lifelong medication,[26] to force his body into the categorical mold of a
female but he did not. He chose not to do so. Nature has instead taken its due course in
respondent’s development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less
on whether or not to undergo medical treatment to reverse the male tendency due to
CAH. The Court will not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the Court force respondent
to undergo treatment and to take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human species. Respondent is the one who
has to live with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what courses
of action to take along the path of his sexual development and maturation. In the absence of
evidence that respondent is an “incompetent”[27] and in the absence of evidence to show
that classifying respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the respondent’s
position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and (2)
how an individual deals with what nature has handed out. In other words, we respect
respondent’s congenital condition and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the unique circumstances
in this case.
As for respondent’s change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in the light
of the reasons adduced and the consequences that will follow.[28] The trial court’s grant of
respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that respondent’s change of name merely
recognizes his preferred gender, we find merit in respondent’s change of name. Such a
change will conform with the change of the entry in his birth certificate from female to male.
WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12,
2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, isAFFIRMED. No
pronouncement as to costs.
SO ORDERED.
EN BANC
G.R. No. 172776 December 17, 2008
COMMISSION ON HIGHER EDUCATION, petitioner,
vs.
ATTY. FELINA S. DASIG, respondent.
DECISION
PER CURIAM:
This is a Rule 45 petition for review1 of the 15 September 20032 Decision and 18 May 2008
Resolution3 of the Court of Appeals in CA-G.R. SP No. 61302.
The factual antecedents of the case follows.
Respondent Felina Dasig (Dasig) was the Chief Education Program Specialist of the Standards
Development Division, Office of Programs and Standards, of petitioner Commission on
Higher Education (CHED). She had also served as the officer-in-charge of the Legal Affairs
Service (LAS) of the CHED.
In a Memorandum dated 9 October 1998,4 the Director of the LAS brought to the attention of
the CHED several complaints on the alleged anomalous activities of Dasig during her stint as
the officer-in-charge of LAS. Attached to the memorandum were the sworn affidavits of the
complainants.5 The complainants consisted of Rosalie Dela Torre (Dela Torre), Rocella Eje
(Eje) and Jacqueline Ng (Ng), students who applied to have their names corrected in their
scholastic records to conform with their birth certificates; Maximina Sister (Sister), the CHED
Human Resource Management Assistant assigned to the Records Unit; and Don Cesar
Mamaril (Mamaril), Leysamin Tebelin (Tebelin), Joemar Delgado (Delgado), and Ellen Grace
Nugpo (Nugpo), all from the CHED LAS staff. All the students alleged that Dasig tried to exact
money from them under the pretense of attorney's fees in connection with their requests for
correction of names in their academic records. Dasig's former staff at the LAS corroborated
the allegations of the students. They also alleged that Dasig attempted to persuade them to
participate in anomalous activities. Sister, in turn, claimed that Dasig refused to return the
Official Record Book of the CHED which the latter borrowed from her.
Dasig submitted a Memorandum6 and a Counter-Affidavit7 to answer the charges against her.
In her memorandum, she denied all the charges against her. She alleged that it was not
within the CHED's power to entertain the request for change of name so she advised the
students to file petitions in court. Dasig denied that the alleged closed-door meeting on 3
September 1998 with her former staff at the LAS in which she tried to persuade them to
accept P20,000.00 from Ng had ever taken place for she was then allegedly in the Office of
the Chairman for the Investigation and Performance Audit of Dr. Jaime Gellor, then President
of the Central Mindanao University. As to the charge that she improperly took the Official
Record Book on 7 September 1998 at around 3:00 p.m. and refused to return the same, Dasig
insisted that she was inside the LAS hearing room during that time conducting the
preliminary conference on the administrative complaint filed by Dr. Aleli Cornista against Dr.
Magdalena Jasmin, Dr. Perlita Cabilangan, Dr. Arsenia Lumba, and Dr. Teresita de Leon, all
from CHED Region 3, together with Special Investigators Buenaventura Macatangay
(Macatangay) and Eulando Lontoc (Lontoc).
In her counter-affidavit,8 Dasig explained that she had not offered her services as a lawyer to
any person and that she had never represented any clients other than the immediate
members of her family ever since she was admitted to the bar. Dasig denied the allegation
that she had offered to look for a lawyer for the petitioners since it was inconceivable to
have a lawyer who would accept P5,000.00 as attorney's fees.
The CHED formed a hearing committee and designated the members to investigate the
complaints against Dasig in Resolution No. 166-98.9 Dela Torre and Eje were not able to
participate in the hearings conducted by the committee for they could not be notified in their
given addresses while Ng and Dasig chose not to participate despite notice. However,
Mamaril, Tebelin, Delgado, and Nugpo all affirmed before the
committee the veracity of Ng's claim that Dasig solicited money from him and attested to the
fact that Dasig even called them together with Macatangay and Lontoc for an emergency
closed door meeting at the LAS conference room at around 4:00 p.m. on 3 September 1998.
Dasig allegedly told them that Ng was willing to pay P20,000.00 for the publication of her
request for correction of name and persuaded them to accept said amount for the purchase
of a television and VHS player for their office and that any excess money would be divided
equally among them. They all objected to Dasig's suggestion.10
The hearing committee concluded that there was substantial evidence on record to hold
Dasig liable for dishonesty, grave misconduct, and conduct prejudicial to the best interest of
the service and recommended that she be dismissed. The CHED found that the complaints
against Dasig were substantiated and affirmed the recommendation of the hearing
committee to dismiss her from the service as her actions constituted gross misconduct,
dishonesty, and conduct prejudicial to the best interest of the service.11 The Civil Service
Commission (CSC) upheld the decision of the CHED12 and denied Dasig's motion for
reconsideration.13
Dasig filed a petition for review under Rule 43 with the Court of Appeals and raised four
issues before it.14 The first issue was whether Dasig was denied due process of law; the
second was whether the CSC erred in not giving weight to the 1 June 1999 Resolution of
CHED Chairman Angel Alcala (Alcala) absolving her from any administrative liability; the third
was whether the CSC erred in not considering evidence discovered after her dismissal which
would have materially affected the result of the case; and the fourth or last was whether the
CSC erred in not considering that the penalty of dismissal imposed on her was too harsh and
oppressive taking into account her thirty years of government service.
While the case was pending before the appellate court, this Court came out with a
Resolution dated 1 April 200315which ordered the disbarment of Dasig. Several high-ranking
officers of the CHED filed an administrative case for disbarment against Dasig, charging her
with gross misconduct in violation of the Attorney's Oath "for having used her public office to
secure financial spoils to the detriment of the dignity and reputation of the CHED" with one
of the grounds for disbarment being Dasig's exaction of money from Dela Torre, Eje and Ng.
In the administrative case, the Court affirmed the following findings of fact:
In this case, the record shows that the respondent, on various occasions, during
her tenure as OIC, Legal Services, CHED, attempted to extort from Betty C.
Mangohon, Rosalie B. Dela Torre, Rocella G. Eje, and Jacqueline N. Ng sums of
money as consideration for her favorable action on their pending applications or
requests before her office. The evidence remains unrefuted, given the
respondent's failure, despite the opportunities afforded her by this Court and the
IBP Commission on Bar Discipline to comment on the charges. We find that
respondent's misconduct as a lawyer of the CHED is of such a character as to affect
her qualification as a member of the Bar, for as a lawyer, she ought to have known
that it was patently unethical and illegal for her to demand sums of money as
consideration for the approval of applications and requests awaiting action by her
office.16 (Emphasis supplied.)
The Court denied with finality the motion for reconsideration of Dasig in a resolution dated
17 June 2003.17Despite the Court's findings in the disbarment proceeding, the Court of
Appeals, however, gave a different assessment of the evidence on record as it found that
Dasig was only "moonlighting" when she offered her legal services to the students who were
requesting the CHED to change their names appearing in their academic records to conform
to their birth certificates. The money which Dasig had asked from the students was, as found
by the appellate court, for "attorney's fees" and other litigation expenses. The appellate
court held that the acts of Dasig had constituted only simple misconduct.
Only the aspect of the Court of Appeals' decision finding Dasig liable only for simple
misconduct is subject to review before this Court. The appellate court decided all the first
three issues in favor of the CHED. It held that administrative due process was complied with
since Dasig was given a fair and reasonable opportunity to explain her side. It also declared
the 1 June 1999 resolution of CHED Chairman Alcala absolving Dasig invalid and without legal
effect since it was he alone who signed it, contrary to the collegial structure of the CHED. And
it gave scant attention to the additional affidavits submitted by Dasig as they were not
presented during the proceedings before the CHED in line with the rule that no question,
issue, or evidence shall be entertained on appeal unless it was raised in the court or agency
below.
The Court of Appeals explained its "moonlighting" approach, thus:
After a close perusal of the vital portions of Jacqueline S. Ng's Affidavit, We find
that Petitioner was trying to collect the money from the three students as her
attorney's fees and for the purpose of covering the expenses which shall be
incurred in instituting the appropriate action or proceeding in court- filing fee,
publication, etc. for the correction of the name of said student affiant.18
xxxx
We are of the well-considered view, that [p]etitioner was not trying to use the
influence of her position to cause the correction of the names of the students
within the CHED. It can be safely assumed that as a lawyer, [p]etitioner is fully
aware that an error in a person's name may only be legally corrected upon the
filing of the necessary Special Proceeding under the Rules of Court, specifically Rule
108. Analy[z]ing [p]etitioner's acts, therefore, [w]e hold that she was merely trying
to engage in the private practice of the legal profession while employed at the
CHED. This is a classic case of "moonlighting", that is, holding an additional job in
addition to a regular one. We are perfectly mindful of [p]etitioner's indiscretion,
and so hold that her acts were improper and unbecoming of a public servant, more
particularly of one with a relatively high and responsible position like her. Simply
put, [p]etitioner's acts must not be condoned, particularly considering that she
even attempted to persuade her former staff at the Legal Affairs Services Office to
partake of and materially benefit from her would-be earnings in the aborted deal
with the three students.19 x x x.
After having been apprised of the Court's factual findings in the disbarment case against
Dasig, the Court of Appeals maintained its decision and denied petitioner's motion for
reconsideration. Specifically, it held thus:
The foregoing ruling of the Highest Court of the Land notwithstanding, [w]e still do
not find the propriety of modifying [o]ur conclusion that petitioner should be held
administratively liable only for the less serious infraction of Simple Misconduct.
Verily, the disbarment proceedings against petitioner was predicated in part upon
the provisions of the Attorney's Oath which contained more stringent and rigid
standards by which a lawyer's act must be tested, whereas [w]e examine
petitioner's conduct by using the rules as fixed by the CSC as well as jurisprudence.
But more importantly, aside from the difference in the laws applied, [w]e cannot
defer to and take bearing with the ruling of the Supreme Court considering that
there is a significant variance between the undisputed facts as found by the High
Court in the disbarment proceedings against petitioner, on one hand, and the
material factual backdrop upon which [w]e tested petitioner's conduct in public
service, on the other. It must be emphasized that petitioner did not participate in
the disbarment proceedings, and as a necessary consequence of her omission it
became automatically undisputed, and thus glaring in the eyes of the High Court,
that she extorted money from the students by way of consideration for a favorable
resolution of the students' applications and formal requests for the correction of
their names, which were purportedly pending before petitioner's office at the
CHED.20 x x x.
The lone issue raised in the present petition is whether the Court of Appeals had correctly
held Dasig liable only for simple misconduct.
The Court finds the present petition meritorious.
The Court of Appeals committed a monumental blunder when it arrived at findings of fact
different from those of the Court in the disbarment case. It is inexplicable why the appellate
court would propound and insist on its "moonlighting" conclusion when even Dasig herself
had denied offering her services to anyone in the first place. It was only after the Court of
Appeals had come up with such finding that Dasig incorporated it into her theory of defense,
belatedly arguing that she should not be held liable for "moonlighting" since the CHED allows
limited practice of law pursuant to an alleged CHED memorandum dated 16 January 1995
entitled, "Authorizing Lawyers of the Commission to Engage in Limited Practice of
Profession."
Despite having been apprised of the Court's findings in the disbarment case which should be
a matter of judicial notice21 in the first place, the Court of Appeals still insisted on its
divergent finding and disregarded the Court's decision ordering the disbarment of Dasig in
which one of the determinative facts in issue was whether Dasig had attempted to extort
money from Dela Torre, Eje and Ng who in turn had wanted to have their academic records
corrected to conform to their birth certificates.
Apart from its mandated duty to take judicial notice of the resolution in the disbarment case,
the Court of Appeals is bound by this Court's findings and conclusions in the said resolution in
accordance with the doctrine of "stare decisis et non quieta movere."22 Although the
administrative case is different from the disbarment case, the parties are different and trials
were conducted separately, there can only be one truth: Dasig had attempted to extort
money from the students. For the sake of certainty, a conclusion reached in one case should
be applied to that which follows, if the facts are substantially the same, even though the
parties may be different. Otherwise, one would be subscribing to the sophistry: truth on one
side of the Pyrenees, falsehood on the other!23
Obstinately, the appellate court sought to justify its presumptuously aberrant stance on the
alleged circumstance that Dasig had not participated in the disbarment case. A careful look at
the Court's decision shows that Dasig had been duly informed of the disbarment case when
the Court in a resolution dated 3 February 1999 required her to file a Comment on the
charges against her. The resolution was sent to the same address she had used in filing the
petition for review with the Court of Appeals. She likewise chose not to comply with the
order of the
Integrated Bar of the Philippines (IBP) Commission on Bar Discipline dated 6 February 2001
which had directed her to submit an Answer to the Complaint. The IBP Commission had
directed her anew to file her Answer in an order dated 8 January 2002, but again she failed to
comply with the directive.24 Although Dasig had chosen not to respond to the complaints
against her, she was still able to file a motion for reconsideration, which this Court denied
with finality. Clearly, Dasig was given sufficient opportunity to respond to the charges against
her.
The Court of Appeals asserted that "petitioner did not participate in the disbarment
proceedings, and as a necessary consequence of her omission it became automatically
undisputed, and thus glaring in the eyes of the High Court, that she extorted money from the
students."25 In more comprehensible terms, the appellate court declared that petitioner did
not participate in the disbarment proceedings; and because of her non-participation the
conclusion on her extortion activity was unquestioned and appeared ineluctable from the
Court's perspective. It is worth noting that disbarment proceedings are under the
administration of the Supreme Court under the Rules of Court26 pursuant to its constitutional
mandate.27 Thus, the statements of the Court of Appeals constitute a desultory assault on
the institutional integrity of this Court, aside from being incorrect and illogical.
Indeed, the remarks tend to erode and undermine the people's trust and confidence in the
judiciary, ironically coming from one of its subordinate courts. No lower court justice or judge
may deride, chastise or chide the Supreme Court. And the "with due respect" approach that
preceded the remarks as a veneer cannot justify much less obliterate the lack of respect
which the remarks evince. In fact, it is the duty of lower courts to obey the decisions of the
Supreme Court and render obeisance to its status as the apex of the hierarchy of courts. "A
becoming modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the integrated judicial system of the
nation."28 "There is only one Supreme Court from whose decision all other courts should take
their bearings," so declared Justice J. B. L. Reyes.29
Quite obviously, when this Court dispensed the supreme penalty on Dasig in the disbarment
case based on the factual milieu it had upheld, the Court of Appeals should have done no less
by affirming the most severe penalty imposable under the law which the CHED and the CSC
had inflicted on Dasig in the administrative case that involved the same factual milieu. But,
alas, the appellate court unjustifiably chose to reduce the penalty by downgrading the
administrative offense.
The Court of Appeals erred when it found that Dasig had merely attempted to practice law
while employed at the CHED in offering her services to the three students for the correction
of their names through judicial proceedings under Rule 108. The procedure under Rule 108
of the Rules of Court was not applicable to the students who only wanted to correct entries
in their academic records to conform to their birth certificates. Rule 108 is for the purpose of
correcting or canceling entries in the civil registry involving (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.30 Hence, there is no justification for Dasig
to ask for money under the guise of attorney's fees and litigation expenses when it was her
duty as the officer-in-charge of LAS to either approve or disapprove the students' request to
change entries in their academic records to conform to their birth certificates.
From another perspective, the appellate court erred when it disregarded the factual findings
of the CHED. It ignored the well-settled rule that by reason of the special knowledge and
expertise of administrative agencies over matters falling under their jurisdiction, they are in a
better position to pass judgment thereon; hence, factual findings of quasi-judicial and
administrative bodies are accorded not only great respect but even finality by this Court
when they are supported by substantial evidence.31 The gauge of substantial
evidence,32 which is the least demanding in the hierarchy of evidence, is satisfied since there
are reasonable grounds to believe that Dasig is guilty of the charges against her which led to
her dismissal from service. And neither Dasig nor the Court of Appeals was able to show
gross abuse of discretion, fraud, or error of law on the part of the CHED and the CSC. The
findings of the administrative agencies were further bolstered when the Court arrived at
similar findings of fact in the disbarment case, in which the quantum of proof is
preponderance of evidence. In evaluating the same evidence as this Court in the disbarment
case, it is truly inconceivable how the Court of Appeals could have arrived at its
"moonlighting" finding.
However, the accrued leave credits of Dasig shall not be forfeited despite the imposition of
the penalty of dismissal from government service. The forfeiture of leave credits is not one of
the accessory penalties of dismissal from service imposed by Section 5833 of the Uniform
Rules on Administrative Cases in the Civil Service.
WHEREFORE, the petition is hereby GRANTED. The assailed Court of Appeals' Decision and
Resolution dated 15 September 2003 and 18 May 2008 respectively are REVERSED and SET
ASIDE, and Civil Service Commission Resolution No. 001302 affirming the CHED Resolution
dated 29 November 1999 is hereby REINSTATED with theMODIFICATION that the accessory
penalty of forfeiture of leave credits be deleted. Hence, Felina Dasig isORDERED to
be DISMISSED from the service with cancellation of civil service eligibility, forfeiture of
retirement benefits, and perpetual disqualification from reemployment in government
service, including that in government-owned or controlled corporations.
Let a copy of this decision be furnished to the Presiding Justice, Court of Appeals, Manila, for
dissemination to the Associate Justices, Court of Appeals, for their information and guidance.
SO ORDERED.
G.R. No. 165060 November 27, 2008
ALBINO JOSEF, petitioner,
vs.
OTELIO SANTOS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court assails the
November 17, 20031Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing
petitioner’s special civil action of certiorari for failure to file a prior motion for
reconsideration, and the May 7, 20042 Resolution denying the motion for reconsideration.
Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for
collection of sum of money filed by herein respondent Otelio Santos, who claimed that
petitioner failed to pay the shoe materials which he bought on credit from respondent on
various dates in 1994.
After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner liable to
respondent in the amount of P404,836.50 with interest at 12% per annum reckoned from
January 9, 1995 until full payment.3
Petitioner appealed4 to the Court of Appeals, which affirmed the trial court’s decision in
toto.5 Petitioner filed before this Court a petition for review on certiorari, but it was
dismissed in a Resolution dated February 18, 2002.6 The Judgment became final and
executory on May 21, 2002.
On February 17, 2003, respondent moved for issuance of a writ of execution, 7 which was
opposed by petitioner.8 In an Order dated July 16, 2003,9 the trial court granted the motion,
the dispositive portion of which reads, as follows:
WHEREFORE, premises considered, the motion for issuance of writ of execution is
hereby granted. Let a writ of execution be issued commanding the Sheriff of this
Court to execute the decision dated December 18, 1996.
SO ORDERED.10
A writ of execution was issued on August 20, 200311 and enforced on August 21, 2003. On
August 29, 2003, certain personal properties subject of the writ of execution were auctioned
off. Thereafter, a real property located at Marikina City and covered by Transfer Certificate of
Title (TCT) No. N-105280 was sold on October 28, 2003 by way of public auction to fully
satisfy the judgment credit. Respondent emerged as the winning bidder and a Certificate of
Sale12 dated November 6, 2003 was issued in his favor.
On November 5, 2003, petitioner filed an original petition for certiorari with the Court of
Appeals, questioning the sheriff’s levy and sale of the abovementioned personal and real
properties. Petitioner claimed that the personal properties did not belong to him but to his
children; and that the real property covered by TCT No. N-105280 was his family home thus
exempt from execution.
On November 17, 2003, the Court of Appeals issued the assailed Resolution dismissing the
petition for failure of petitioner to file a motion for reconsideration of the trial court’s July
16, 2003 Order granting the motion for execution and ordering the issuance of a writ
therefor, as well as for his failure to indicate in his petition the timeliness of its filing as
required under the Rules of Court. On May 7, 2004, the appellate court denied petitioner’s
motion for reconsideration.
Thus, the instant petition which raises the following issues:
I.
WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE
PETITIONER’S CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC
AUCTION OF HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF
RESPONDENT IS LEGAL.
II.
WHETHER OR NOT THE DISMISSAL OF THE PETITIONER’S PETITION FOR CERTIORARI
BY THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE
CIRCUMSTANCES.
Petitioner argues that the trial court sheriff erroneously attached, levied and sold on
execution the real property covered by TCT No. N-105280 because the same is his family
home; that the execution sale was irregular because it was conducted without complying
with the notice and posting of requirements; and that the personal and real properties were
sold for inadequate prices as to shock the conscience. The real property was allegedly worth
P8 million but was sold for only P848,448.64.
Petitioner also argues that the appellate court gravely abused its discretion in dismissing the
petition based purely on technical grounds, i.e., his failure to file a motion for
reconsideration of the trial court’s order granting execution, and his failure to indicate in his
petition for certiorari the timeliness of filing the same with the Court of Appeals.
Respondent, on the other hand, argues that petitioner’s alleged family home has not been
shown to have been judicially or extrajudicially constituted, obviously referring to the
provisions on family home of the Civil Code – not those of the Family Code which should
apply in this case; that petitioner has not shown to the court’s satisfaction that the personal
properties executed upon and sold belonged to his children. Respondent argues that he is
entitled to satisfaction of judgment considering the length of time it took for the parties to
litigate and the various remedies petitioner availed of which have delayed the case.
The petition is meritorious.
Petitioner, in his opposition to respondent’s motion for issuance of a writ of execution,
claimed that he was insolvent; that he had no property to answer for the judgment credit;
that the house and lot in which he was residing at the time was his family home thus exempt
from execution; that the household furniture and appliances found therein are likewise
exempt from execution; and that these furniture and appliances belonged to his children
Jasmin Josef and Jean Josef Isidro. Thus, as early as during proceedings prior to the issuance
of the writ of execution, petitioner brought to the fore the issue of exemption from
execution of his home, which he claimed to be a family home in contemplation of the civil
law.
However, instead of inquiring into the nature of petitioner’s allegations in his opposition, the
trial court ignored the same and granted respondent’s motion for execution. The full text of
the July 16, 2003 Order provides, as follows:
This resolves the "Motion for the Issuance of Writ of Execution" filed by plaintiff
thru counsel and the "Opposition" thereto filed by the defendant on her own
behalf.
The records show that a decision was rendered by this Court in favor of the plaintiff
on December 18, 1995 which decision was affirmed by the Court of Appeals on
June 26, 2001 and by the Supreme Court on February 18, 2002. On June 18, 2003,
this Court received the entire records of the case from the Court of Appeals.
Considering the foregoing, it is now the ministerial duty of the Court to issue a writ
of execution pursuant to Sec. 1, Rule 39 of the Rules of Court.
WHEREFORE, premises considered, the motion for issuance of writ of execution is
hereby granted. Let a writ of execution be issued commanding the Sheriff of this
Court to execute the decision dated December 18, 1996.
SO ORDERED.13
The above Order did not resolve nor take into account petitioner’s allegations in his
Opposition, which are material and relevant in the resolution of the motion for issuance of a
writ of execution. This is serious error on the part of the trial court. It should have made an
earnest determination of the truth to petitioner’s claim that the house and lot in which he
and his children resided was their duly constituted family home. Since it did not, its July 16,
2003 Order is thus null and void. Where a judgment or judicial order is void it may be said to
be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever
and whenever it exhibits its head.14
The family home is a real right which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is situated, which confers upon a
particular family the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain special cases.15
Upon being apprised that the property subject of execution allegedly constitutes petitioner’s
family home, the trial court should have observed the following procedure:
1. Determine if petitioner’s obligation to respondent falls under either of the
exceptions under Article 15516 of the Family Code;
2. Make an inquiry into the veracity of petitioner’s claim that the property was his
family home;17conduct an ocular inspection of the premises; an examination of the
title; an interview of members of the community where the alleged family home is
located, in order to determine if petitioner actually resided within the premises of
the claimed family home; order a submission of photographs of the premises,
depositions, and/or affidavits of proper individuals/parties; or a solemn
examination of the petitioner, his children and other witnesses. At the same time,
the respondent is given the opportunity to cross-examine and present evidence to
the contrary;
3. If the property is accordingly found to constitute petitioner’s family home, the
court should determine:
a) if the obligation sued upon was contracted or incurred prior to, or
after, the effectivity of the Family Code;18
b) if petitioner’s spouse is still alive, as well as if there are other
beneficiaries of the family home;19
c) if the petitioner has more than one residence for the purpose of
determining which of them, if any, is his family home;20 and
d) its actual location and value, for the purpose of applying the provisions
of Articles 15721and 16022 of the Family Code.
The family home is the dwelling place of a person and his family, a sacred symbol of family
love and repository of cherished memories that last during one’s lifetime.23 It is the sanctuary
of that union which the law declares and protects as a sacred institution; and likewise a
shelter for the fruits of that union. It is where both can seek refuge and strengthen the tie
that binds them together and which ultimately forms the moral fabric of our nation. The
protection of the family home is just as necessary in the preservation of the family as a basic
social institution, and since no custom, practice or agreement destructive of the family shall
be recognized or given effect,24 the trial court’s failure to observe the proper procedures to
determine the veracity of petitioner’s allegations, is unjustified.
The same is true with respect to personal properties levied upon and sold at auction. Despite
petitioner’s allegations in his Opposition, the trial court did not make an effort to determine
the nature of the same, whether the items were exempt from execution or not, or whether
they belonged to petitioner or to someone else.25
Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner
filed his opposition on June 23, 2003. The trial court granted the motion on July 16, 2003,
and the writ of execution was issued on August 20, 2003. Clearly, the trial court had enough
time to conduct the crucial inquiry that would have spared petitioner the trouble of having to
seek relief all the way to this Court. Indeed, the trial court’s inaction on petitioner’s plea
resulted in serious injustice to the latter, not to mention that its failure to conduct an inquiry
based on the latter’s claim bordered on gross ignorance of the law.
Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any
writ of execution based on it is likewise void. Although we have held in several cases 26 that a
claim for exemption from execution of the family home should be set up and proved before
the sale of the property at public auction, and failure to do so would estop the party from
later claiming the exemption since the right of exemption is a personal privilege granted to
the judgment debtor which must be claimed by the judgment debtor himself at the time of
the levy or within a reasonable period thereafter, the circumstances of the instant case are
different. Petitioner claimed exemption from execution of his family home soon after
respondent filed the motion for issuance of a writ of execution, thus giving notice to the trial
court and respondent that a property exempt from execution may be in danger of being
subjected to levy and sale. Thereupon, the trial court is called to observe the procedure as
herein laid out; on the other hand, the respondent should observe the procedure prescribed
in Article 160 of the Family Code, that is, to obtain an order for the sale on execution of the
petitioner’s family home, if so, and apply the proceeds – less the maximum amount allowed
by law under Article 157 of the Code which should remain with the petitioner for the
rebuilding of his family home – to his judgment credit. Instead, both the trial court and
respondent completely ignored petitioner’s argument that the properties subject of the writ
are exempt from execution.
Indeed, petitioner’s resort to the special civil action of certiorari in the Court of Appeals was
belated and without benefit of the requisite motion for reconsideration, however,
considering the gravity of the issue, involving as it does matters that strike at the very heart
of that basic social institution which the State has a constitutional and moral duty to preserve
and protect, as well as petitioner’s constitutional right to abode, all procedural infirmities
occasioned upon this case must take a back seat to the substantive questions which deserve
to be answered in full.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003 and
May 7, 2004 Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED and
SET ASIDE. The July 16, 2003 Order of the Regional Trial Court of Marikina City, Branch 272 in
Civil Case No. 95-110-MK, as well as the writ or writs of execution thus issued in said case,
are hereby DECLARED VOID, and all acts proceeding therefrom and any title obtained by
virtue thereof are likewise DECLARED VOID.
The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the real
property covered by Transfer Certificate of Title No. N-105280, with a view toward
determining whether the same is petitioner Albino Josef’s family home, and if so, apply the
pertinent provisions of the Family Code and Rule 39 of the Rules of Court; and (2) to conduct
an inquiry into the ownership of all other properties that were levied upon and sold, with the
aim of determining as well whether these properties are exempt from execution under
existing law.
Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real and personal
properties, or the proceeds thereof, in trust to await the outcome of the trial court’s inquiry.
Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No. 95-110-MK
within sixty (60) days from receipt of a copy of this Decision.
SO ORDERED.
G.R. No. 177703 January 28, 2008
VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners,
vs.
JOHN NABOR C. ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the November 30, 2006 Decision1 and April 30, 2007 Resolution2 of the Court of
Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional
Trial Court, Branch 254, Las Piñas City (RTC) against Vilma G. Arriola and Anthony Ronald G.
Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the
decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C.
Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner
Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering the partition of the parcel of land covered by Transfer Certificate of
Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his
heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal
shares of one-third (1/3) each without prejudice to the rights of creditors or
mortgagees thereon, if any;
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby
awarded to be reimbursed by the defendants to the plaintiff;
3. Costs against the defendants.
SO ORDERED.3
The decision became final on March 15, 2004.4
As the parties failed to agree on how to partition among them the land covered by TCT No.
383714 (subject land), respondent sought its sale through public auction, and petitioners
acceded to it.5 Accordingly, the RTC ordered the public auction of the subject land.6 The
public auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners
refused to include in the auction the house (subject house) standing on the subject land.7This
prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt
of Court,8praying that petitioners be declared in contempt.
The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that
petitioners were justified in refusing to have the subject house included in the auction, thus:
 The defendants [petitioners] are correct in holding that the house or improvement
erected on the property should not be included in the auction sale.
A cursory reading of the aforementioned Decision and of the evidence adduced
during the ex-parte hearing clearly show that nothing was mentioned about the
house existing on the land subject matter of the case. In fact, even plaintiff's
[respondent's] initiatory Complaint likewise did not mention anything about the
house. Undoubtedly therefore, the Court did not include the house in its
adjudication of the subject land because it was plaintiff himself who failed to allege
the same. It is a well-settled rule that the court can not give a relief to that which is
not alleged and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the land on
which it is built is in effect to add to plaintiff's [a] right which has never been
considered or passed upon during the trial on the merits.
In the absence of any other declaration, obvious or otherwise, only the land should
be partitioned in accordance to[sic] the aforementioned Decision as the house can
not be said to have been necessarily adjudicated therein. Thus, plaintiff can not be
declared as a co-owner of the same house without evidence thereof and due
hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed out,
judgment must stand even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by
plaintiff is hereby DENIED for lack of merit.
SO ORDERED.10
The RTC, in its Order dated January 3, 2006, denied respondent's Motion for
Reconsideration.11
Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC
Orders set aside, and prayed that he be allowed to proceed with the auction of the subject
land including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005
and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED
and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of
the subject lot covered by TCT No. 383714, including the house constructed
thereon.
SO ORDERED.13 (Emphasis supplied.)
Petitioners filed a motion for reconsideration but the CA denied the same in its
Resolution14 of April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding that the RTC
committed grave abuse of discretion in denying the motion for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons other than those
advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt. Section 4,
Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for
indirect contempt, viz:
Sec. 4. How proceedings commenced. – Proceedings for indirect contempt may be
initiated motu proprio by the court against which the contempt was committed by
an order or any other formal charge requiring the respondent to show cause why
he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or
papers involved therein, and upon full compliance with the requirements for filing
initiatory pleadings for civil actions in the court concerned. If the contempt
charges arose out of or are related to a principal action pending in the court, the
petition for contempt shall allege that fact but said petition shall be docketed,
heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and
decision. (Emphases supplied.)
Under the aforecited second paragraph of the Rules, the requirements for initiating an
indirect contempt proceeding are a) that it be initiated by way of a verified petition and b)
that it should fully comply with the requirements for filing initiatory pleadings for civil
actions. In Regalado v. Go,15 we held:
As explained by Justice Florenz Regalado, the filing of a verified petition that has
complied with the requirements for the filing of initiatory pleading, is
mandatory x x x:
This new provision clarifies with a regularity norm the proper procedure
for commencing contempt proceedings. While such proceeding has been
classified as special civil action under the former Rules, the heterogenous
practice tolerated by the courts, has been for any party to file a motion
without paying any docket or lawful fees therefore and without
complying with the requirements for initiatory pleadings, which is now
required in the second paragraph of this amended section.
xxxx
Henceforth, except for indirect contempt proceedings initiated motu
propio by order of or a formal charge by the offended court, all charges
shall be commenced by a verified petition with full compliance with the
requirements therefore and shall be disposed in accordance with the
second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over
which the court already acquired jurisdiction, the rules direct that the
petition for contempt be treated independently of the principal action.
Consequently, the necessary prerequisites for the filing of initiatory
pleadings, such as the filing of a verified petition, attachment of a
certification on non-forum shopping, and the payment of the necessary
docket fees, must be faithfully observed.
xxxx
The provisions of the Rules are worded in very clear and categorical language. In
case where the indirect contempt charge is not initiated by the courts, the filing of
a verified petition which fulfills the requirements on initiatory pleadings is a
prerequisite. Beyond question now is the mandatory requirement of a verified
petition in initiating an indirect contempt proceeding. Truly, prior to the
amendment of the 1997 Rules of Civil Procedure, mere motion without complying
with the requirements for initiatory pleadings was tolerated by the courts. At the
onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no
longer be countenanced.16 (Emphasis ours.)
The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by
respondent. The latter did not comply with any of the mandatory requirements of Section 4,
Rule 71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a
verified petition. He likewise did not conform with the requirements for the filing of initiatory
pleadings such as the submission of a certification against forum shopping and the payment
of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC.
It is noted though that, while at first the RTC overlooked the infirmities in respondent's
unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive
grounds. The trouble is that, in the CA decision assailed herein, the appellate court
committed the same oversight by delving into the merits of respondent's unverified motion
and granting the relief sought therein. Thus, strictly speaking, the proper disposition of the
present petition ought to be the reversal of the CA decision and the dismissal of respondent's
unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule
71.
However, such simplistic disposition will not put an end to the dispute between the parties. A
seed of litigation has already been sown that will likely sprout into another case between
them at a later time. We refer to the question of whether the subject house should be
included in the public auction of the subject land. Until this question is finally resolved, there
will be no end to litigation between the parties. We must therefore deal with it squarely,
here and now.
The RTC and the CA differed in their views on whether the public auction should include the
subject house. The RTC excluded the subject house because respondent never alleged its
existence in his complaint for partition or established his co-ownership thereof.17 On the
other hand, citing Articles 440,18 44519 and 44620 of the Civil Code, the CA held that as the
deceased owned the subject land, he also owned the subject house which is a mere
accessory to the land. Both properties form part of the estate of the deceased and are held in
co-ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in
the action for partition of said estate should cover not just the subject land but also the
subject house.21 The CA further pointed out that petitioners themselves implicitly recognized
the inclusion of the subject house in the partition of the subject land when they proposed in
their letter of August 5, 2004, the following swapping-arrangement:
Sir:
Thank you very much for accommodating us even if we are only poor and simple
people. We are very much pleased with the decision of Presiding Judge Manuel B.
Fernandez, Jr., RTC Br. 254, Las Piñas, on the sharing of one-third (1/3) each of a
land covered by Transfer Certificate of Title No. 383714 (84191) in Las Piñas City.
However, to preserve the sanctity of our house which is our residence for more
than twenty (20) years, we wish to request that the 1/3 share of John Nabor C.
Arriola be paid by the defendants depending on the choice of the plaintiff between
item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.22
We agree that the subject house is covered by the judgment of partition for reasons
postulated by the CA. We qualify, however, that this ruling does not necessarily countenance
the immediate and actual partition of the subject house by way of public auction in view of
the suspensive proscription imposed under Article 159 of The Family Code which will be
discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the complaint
for partition. Such omission notwithstanding, the subject house is deemed part of the
judgment of partition for two compelling reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is
deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the
house constructed on the subject lot was not alleged in the complaint and its
ownership was not passed upon during the trial on the merits, the court cannot
include the house in its adjudication of the subject lot. The court further stated that
it cannot give a relief to[sic] which is not alleged and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render meaningless the
pertinent rule on accession. In general, the right to accession is automatic (ipso
jure), requiring no prior act on the part of the owner or the principal. So that even
if the improvements including the house were not alleged in the complaint for
partition, they are deemed included in the lot on which they stand, following the
principle of accession. Consequently, the lot subject of judicial partition in this
case includes the house which is permanently attached thereto, otherwise, it
would be absurd to divide the principal, i.e., the lot, without dividing the house
which is permanently attached thereto.23 (Emphasis supplied)
Second, respondent has repeatedly claimed that the subject house was built by the
deceased.24 Petitioners never controverted such claim. There is then no dispute that the
subject house is part of the estate of the deceased; as such, it is owned in common by the
latter's heirs, the parties herein,25 any one of whom, under Article 49426 of the Civil Code,
may, at any time, demand the partition of the subject house. 27 Therefore, respondent's
recourse to the partition of the subject house cannot be hindered, least of all by the mere
technical omission of said common property from the complaint for partition.
That said notwithstanding, we must emphasize that, while we treat the subject house as
part of the co-ownership of the parties, we stop short of authorizing its actual partition by
public auction at this time. It bears emphasis that an action for partition involves two
phases: first, the declaration of the existence of a state of co-ownership; and second, the
actual termination of that state of co-ownership through the segregation of the common
property.28 What is settled thus far is only the fact that the subject house is under the co-
ownership of the parties, and therefore susceptible of partition among them.
Whether the subject house should be sold at public auction as ordered by the RTC is an
entirely different matter, depending on the exact nature of the subject house.
Respondent claims that the subject house was built by decedent Fidel on his exclusive
property.29 Petitioners add that said house has been their residence for 20 years.30 Taken
together, these averments on record establish that the subject house is a family home within
the contemplation of the provisions of The Family Code, particularly:
Article 152. The family home, constituted jointly by the husband and the wife or by
an unmarried head of a family, is the dwelling house where they and their family
reside, and the land on which it is situated.
Article 153. The family home is deemed constituted on a house and lot from the
time it is occupied as a family residence. From the time of its constitution and so
long as any of its beneficiaries actually resides therein, the family home continues
to be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law. (Emphasis
supplied.)
One significant innovation introduced by The Family Code is the automatic constitution of
the family home from the time of its occupation as a family residence, without need anymore
for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of
the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 It bears emphasis, however, that in the meantime, there is no obstacle to the immediate
specifically extend the scope of the family home not just to the dwelling structure in which public auction of the portion of the subject land covered by TCT No. 383714, which
the family resides but also to the lot on which it stands. Thus, applying these concepts, the falls outside the specific area of the family home.
subject house as well as the specific portion of the subject land on which it stands are WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and
deemed constituted as a family home by the deceased and petitioner Vilma from the April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing
moment they began occupying the same as a family residence 20 years back.31 on the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the co-
It being settled that the subject house (and the subject lot on which it stands) is the family ownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G.
home of the deceased and his heirs, the same is shielded from immediate partition under Arriola but EXEMPTED from partition by public auction within the period provided for in
Article 159 of The Family Code, viz: Article 159 of the Family Code.
Article 159. The family home shall continue despite the death of one or both No costs.
spouses or of the unmarried head of the family for a period of ten years or for as SO ORDERED.
long as there is a minor beneficiary, and the heirs cannot partition the same unless
the court finds compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family home. (Emphasis supplied.)
The purpose of Article 159 is to avert the disintegration of the family unit following the death
of its head. To this end, it preserves the family home as the physical symbol of family love,
security and unity by imposing the following restrictions on its partition: first, that the heirs
cannot extra-judicially partition it for a period of 10 years from the death of one or both
spouses or of the unmarried head of the family, or for a longer period, if there is still a minor
beneficiary residing therein; and second, that the heirs cannot judicially partition it during
the aforesaid periods unless the court finds compelling reasons therefor. No compelling
reason has been alleged by the parties; nor has the RTC found any compelling reason to
order the partition of the family home, either by physical segregation or assignment to any of
the heirs or through auction sale as suggested by the parties.
More importantly, Article 159 imposes the proscription against the immediate partition of
the family home regardless of its ownership. This signifies that even if the family home has
passed by succession to the co-ownership of the heirs, or has been willed to any one of
them, this fact alone cannot transform the family home into an ordinary property, much less
dispel the protection cast upon it by the law. The rights of the individual co-owner or owner
of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries
of the family home.
Set against the foregoing rules, the family home -- consisting of the subject house and lot on
which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership
of his heirs, the parties herein. Decedent Fidel died on March 10, 2003.32 Thus, for 10 years
from said date or until March 10, 2013, or for a longer period, if there is still a minor
beneficiary residing therein, the family home he constituted cannot be partitioned, much less
when no compelling reason exists for the court to otherwise set aside the restriction and
order the partition of the property.
The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or
forced sale under Article 153 should be set up and proved to the Sheriff before the sale of
the property at public auction. Herein petitioners timely objected to the inclusion of the
subject house although for a different reason.
To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of
the judgment of co-ownership and partition. The same evidence also establishes that the
subject house and the portion of the subject land on which it is standing have been
constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and
immediate partition cannot be sanctioned until the lapse of a period of 10 years from the
death of Fidel Arriola, or until March 10, 2013.
 15 Benefits of Ayatul Kursi
*1. Our Holy prophet (SAW) has said: whoever recites the first 4 ayats
of Surae Baqarah, then Ayatul Kursi and then the last 3 ayats of Surae Baqarah will not be
inflicted with any kind of difficulty in his wealth or himself, Shaitaan will not come near him
and he will not forget the Qur'an.
*2. Imam Ali (AS) was told by our Holy Prophet: Qur'an is a great word, and Surae Baqarah is
the leader of the Qur'an and Ayatul Kursi is the leader of Surae Baqarah. In Ayatul Kursi there
are 50 words and for each word there are 50 blessings and good in it.
*3. One who recites Ayatul Kursi every morning will be in the protection, safety of Allah until
the night.
*4. If one ties this to ones wealth or chidren, they will be safe from Shaitaan.
*5. Our Holy Prophet (SAWW) has said: These things increase ones memory; sweets, meat of
an animal near the neck, Adas(Lentils), cold bread
and recitation of Ayatul Kursi.
*6. For those of our dear ones who have passed away, recitation of Ayatul Kursi and giving it
as Hadiya to them, gives them light (noor) in the
grave.
*7. Frequent recitation makes ones own death easy.
*8. When leaving home, if one recites it once, the Almighty has one group of Angels to come
and protect you. If recited twice, 2 groups of
Angels are assigned to do this. If recited 3 times Allah tells the Angels not to worry as the
Almighty himself takes care of him.
*9. The Holy Prophet (saw) has said: If one recites Ayatul Kursi before going to sleep, Allah
will send an Angel to come and look after you and protect you till the morning. His home,
family and also neighbours will remain in safety until morning.
*10. When one is alone in the home, recitation of Ayatul Kursi and asking Allah to help will
make you remain calm and you will not fear.
*11. The Holy Prophet has said: When leaving home,if one recites Ayatul Kursi the Allah will
send 70,000 Angels to do Istighfaar for him until he returns home, and upon his return
Poverty will be removed from him.
*12. If one recites this after doing Wudhoo, the 5th Imam (AS) has said: Allah will give him a
reward of 40 years of Ibadaat, his position will be raised in the Heavens 40 times (levels) and
will marry him to 40 Horains.
*13. One who recites it after every prayer, thier salaat will be accepted, they will remain in
the safety of the Almighty and He will protect
them.
*14. Allah (SWT) told P.Musa (AS): If one recites it after every salaat, the Almighty will make
his heart a thankful one(Shakireen), will give him a
reward of the prophets, and his deeds will be like those of the truthful(Siddiqeen) and
nothing except death will stop will stop him from
going into heaven.
*15. To increase light or vision (noor) in the eyes, recite Surae Alhamd once, then Ayatul
Kursi and then once the following dua:- "U-eedhu nora
basaree binuril lahi alladhi la yutfaa", "I seek refuge for the light of my eyes by the light of
Allah(SWT), which does not become extinguished".
Ayatul Kursi is a verse in the Holy Qur'an which have immense power of Protection from any
acts of Evils.
Allahu la ilaha illahu
Al hayyul kayyum
La ta'a kizuhu sinatun wala naum
Lahumma fis samawati wama fil ard
Manzallazi yashfa'u indahu illa bi iznihi
Ya'alamu ma bayna aidihim wama khalfahum
Wala yihiduna bi shayin min ilmihi illa bima sha'a
Wa si'a kursiyyuhus samawati wal ard
Wala ya udhuhu hizbu huma
Wa huwal aliyul azeem
Ali (Radiahallahu Anhu) narrates,"I cannot understand how a person, who is a Muslim, and
owner of reason (intellect) can spend the night without reading Ayatul Kursi. If you knew the
benefits of it, then you will never discard it under any condition". Rasulallaah (Sallallahu
alayhi wasallam) stated ,"I have been given Aayatul Kursi from the treasures under the Arsh
of Allaah and it was not given to anyone before me".
Hadhrat Ali (Radiahallahu Anhu) says, "From the time I have heard this, I have never passed a
night without reading it".
Abu Huraira (Radiahallahu Anhu) says that Nabi (Sallallahu alayhi wasallam) made me the
guardian of the Zakaat of Ramadaan. One thief began to steal from it. I caught him and told
him that I am definitely going to take him to Rasulallaah (Sallallahu alayhi wasallam). He
said,"Leave me, I am destitute and have a family". I (Abu Huraira) left him. In the morning glasses fell from your hands and broke. " Then Allaah Ta'aala revealed unto Nabi (Sallallahu
Rasulallaah (Sallallahu alayhi wasallam) asked , "What did your prisoner do last night.?" I alayhi wasallam) Ayatul Kursi.
(Abu Huraira) said, He spoke of his great need and family for which I felt pity on him and left
him." Nabi (Sallallahu alayhi wasallam) said,"He has spoken a lie and will definitely come
again." I (Abu harraira) understood that the (the thief) will definitely come again because
Nabi (Sallallahu alayhi wasallam) said so. Thus I kept watch at that same barn. He (the thief)
came and began stealing in handfuls. I caught him and threatened to take him to Rasulallaah
(Sallallahu alayhi wasallam). The thief pleaded with me to leave him as he was needy and had
a family and that he will not repeat this. I (Abu Huraiah) felt pity and left him. In the morning
Rasulallaah (Sallallahu alayhi wasallam) asked him the same question as before and his
answer was the same. When the same thing happened for the third time, Abu Hurairah said
to the thief,"This is the third time. Each time you say that you will not steal again and each
time you steal again." The thief said,"Leave me, and I will teach you such words through
which Allaah will benefit you.". I (Abu Huraira) inquired about those words and the thief
said,"When you go to your sleeping place, then recite Ayatul Kursi completely. Allaah will
stipulate a guardian for you and Shaitaan will not come near you until the morning. I released
him. In the morning Rasulallaah (Sallallahu alayhi wasallam) asked,"What did your thief do
last night?" Abu Hurairah narrated what had transpired. The Sahabah were most enthusiastic
to gain virtues. Nabi (Sallallahu alayhi wasallam) said,"He has spoken the truth although he is
a liar. Oh Abu Huraira, do you know with whom you were talking to for the past three
nights." I said "No". Nabi (Sallallahu alayhi wasallam) said that it was Satan.

It is mentioned in Kitaabul Dalaalil from Hadhrat Buraidah (Radiahallahu Anhu) that he had
wheat (crops). He said, "I sensed that there was a shortage in it. While sitting quietly in the
night I saw a female Jinn sitting on the crops . I caught hold of her and said that I will not let
her go until I had taken her to Rasulallaah (Sallallahu alayhi wasallam). She said that she had
a family and swore on oath that she will not do so again. I released her. I came to Rasulallaah
(Sallallahu alayhi wasallam) and informed him about this. He said that she was a liar. When
the same thing happened on the second night, she (the female jinn) asked me to release her.
She said,"I will, in exchange teach you such a duaa that from amongst us none will ever come
near your crops. When you retire to your sleeping place then read and blow Ayatul Kursi on
your goods. I left her. When I informed Nabi (Sallallahu alayhi wasallam) about this he said
that she had spoken the truth although she was a liar.

38) Hadhrat Abu Huraia (Radiahallahu Anhu) said that Rasulallaah (Sallallahu alayhi wasallam)
stated that whosoever reads "Haa meem al Mu'minoon" upto "al maseer" and Ayatul Kursi in
the morning, will be protected until the evening and whoever reads both of these in the
night will be protected until the morning.

39) Hadhrat Ibne Abbass (Radiahallahu Anhu) narrated that the Bani Israeel asked
Musa(A.S.), "Does your Rabb sleep?" Musa(A.S.) said, "Fear Allaah". Allaah ordered," Oh
Musa, your nation has asked you whether your Rabb sleeps? Take two glasses in your hand
and stand with it for the whole night." Hadhrat Musa (A.S) did as he was ordered. When on
third of the night passed, he fell on his knees but stood up immediately. During the latter
part of the night, sleep overcame him and the glasses fell and broke. Allaah Jala Shanahu
said, "Oh Musa, if I sleep then the sky will fall on the earth and destroy it just as the two