Day 7

CASE #1:

[G.R. No. 14977. March 30, 1920. ]

NICOLAS LIZARES, Plaintiff-Appellant, v. ROSENDO HERNAEZ, Defendant-

Appellant, and ENRICA ALUNAN VIUDA DE LIZARES, defendant in cross-
complaint-appellant.

R. Nolan for plaintiff and appellant and for the defendant and appellant in
cross-complaint.

Kincaid. & Perkins for defendant and Appellant.

SYLLABUS

1. LANDLORD AND TENANT; DESTRUCTION OF PROPERTY BY FIRE; RESPONSIBILITY

OF LESSEE. — When leased property is destroyed by fire, there arises a presumption,
under article 1563 of the Civil Code, against the lessee, which makes him responsible to
the owner for the resulting damages, in the absence of proof that the loss happened
without the lessee’s fault. But when the lessee proves that the fire occurred without
negligence on his part and that it could not be arrested by him in the exercise of
reasonable care, the presumption is rebutted and the lessee is not liable.

2. ID.; ID.; ID.; PROOF NECESSARY TO EXONERATE LESSEE. — When a question arises
as to the responsibility of a lessee for the loss of the thing leased resulting from fire,
and the trial court finds that reasonable precautions were taken by the lessee to
prevent fires, but that nevertheless a fire did occur, of inescrutable origin which
destroyed the property in spite of all reasonable efforts that could be put forth to
prevent it, this is equivalent to a finding that the lessee was without fault and that the
loss was due to an inevitable cause. chanroblesvirtuallawlibrary:red

3. ID.; ID.; ID.; CASE AT BAR. — The subject of a lease in the case at bar consisted of
a rural estate on which was located a camarin [warehouse], containing an
establishment for the manufacture of sugar from the cane grown upon the estate. While
this sugar mill was being operated according to custom during the milling season, a fire
caught in a stack of bagasse which was placed near the furnace to be used as fuel. The
flames spread with rapidity and destroyed the camarin and its contents. It appealed
that the equipment in the establishment for arresting fires was such as is commonly
maintained in mills of this kind, and that the force employed in operating the mill was
adequate. It did not appear that the employees present were remiss in their efforts to
extinguish the fire. Held: That the fire in question was casus fortuitus, and that the
lessee was not liable for the value of the property destroyed.

4. ID.; ID.; DUTY OF LANDLORD TO MAKE REPAIRS. — The obligation imposed upon
the lessor in the second paragraph of article 1554 of the Civil Code to make such
repairs on the leased property as are necessary in order to keep it in serviceable
condition for the purpose for which it was intended does not extend to the obligation to
reconstruct the property when it has been totally destroyed by fire. The obligation to
make repairs must be understood to apply to the restoration of property which has
deteriorated from use or has been partially destroyed, without total loss of identity.

5. ID.; ID; DUTY OF LESSEE TO MAKE REPAIRS. — A stipulation was inserted in a

contract of lease obligating the lessee to maintain the property in good condition and to
deliver it in the same state to the lessor upon the termination of the lease. Held: That
the contractual obligation thus assumed was substantially identical with the obligation
which would have been imposed by law in the absence of special stipulation; and the
duty thus defined must be considered subject to the limitations and exceptions
recognized by law. The lessee is therefore not bound to reconstruct the property in case
of total loss resulting from fire which occurred without his fault. 
chanrobles virtual lawlibrary

DECISION

STREET, J.  :

The action herein was begun on April 15, 1918, in the Court of First Instance of
Occidental Negros, by the plaintiff, Nicolas Lizares, as lessee of two haciendas, located
in the municipality of Talisay, in the province aforesaid, known respectively as
panaogao and matagoy No. 2, against the defendant, Rosendo Hernaez, as lessor of
said haciendas, to rescind the contract of lease and to recover a sum of money as
damages alleged to have been suffered by the plaintiff by reason of the failure of the
defendant to comply with certain obligations incumbent upon him under the contract.
The defendant answered, denying all liability, and interposed a counterclaim for the
purpose of recovering damages alleged to have been suffered by him by reason of the
default of the plaintiff in the performance of the obligations of the latter under the same
contract. One of the items of damages thus claimed by the defendant consists of unpaid
rents; and for the purpose of obtaining the satisfaction of this claim, Sra. Enrica Alunan
was named as a party defendant in the cross-complaint, she having obligated herself
jointly and severally with the plaintiff in the contract of lease, in the character of surety
for him. Process was accordingly served upon her, and she in due time answered the
cross-complaint with a general denial. Both the plaintiff and the defendant seek to
recover the attorney’s fees and other expenses of this litigation.

Upon hearing the cause the trial judge rendered a decision, the salient features of
which are these: (1) The contract of lease is declared to be rescinded, with leave to the
plaintiff to make use of the leased property until May 30, 1919, for the purpose of
harvesting the crops planted by him thereon and completing the milling of the cane. (2)
The defendant, Rosendo Hernaez, as lessor, was found to be liable in damages to the
plaintiff, in the sum of P1,736.01, with interest, by reason of his failure to reconstruct
within a reasonable time a camarin which had existed upon the leased premises but
which had been destroyed by fire. (3) The plaintiff, Nicolas Lizares, was found to be
indebted to the defendant for rents due and unpaid in the sum of P3,583.33, with
interest from April 16, 1918; and for this amount judgment was rendered in favor of
the defendant upon the cause of action stated in the cross-complaint against the
plaintiff, Nicolas Lizares, and Enrica Alunan, as his surety. (4) The plaintiff was further
ordered to cause an artesian well to be bored, before May 30, 1919, on the hacienda
Panaogao. in accordance with a stipulation in the contract of lease. Both parties
appealed from this decision, each manifesting disapproval of such features of the
judgment as were not in conformity with his particular pretensions.  chanroblesvirtuallawlibrary

It appears in evidence that on August 21, 1916, the plaintiff, Nicolas Lizares, and the
defendant, Rosendo Hernaez, entered into a contract (Exhibit A), whereby the former
became the lessee of the two haciendas Panaogao and Matagoy No. 2. Among the
improvements existing upon the hacienda Panaogao, and which the plaintiff was
entitled to use, was a large iron-roofed camarin, containing furnaces, boilers, mills,
engines, and other apparatus for the manufacture of sugar.

At about 7 p. m., on March 16, 1918, a fire of unknown origin occurred at this sugar
mill, which destroyed the camarin and greatly damaged the sugar-milling apparatus.
Soon after the fire the plaintiff informed the defendant of the calamity and made
demand upon him for the reconstruction of the camarin. The defendant refused to
recognize the existence of any obligation on his part to reconstruct the camarin.
Insisting that the plaintiff, being the lessee, and not himself, as lessor, was responsible
for the fire and answerable for the damage occasioned thereby. These antagonistic
views presently culminated in the litigation now before us.

The dominating question, to which attention must first be directed, has reference to the
responsibility for the loss due to the fire. Upon this point it is contended by the
defendant that the plaintiff, Lizares, is chargeable with negligence in more than one
respect, as for instance in not having maintained upon the premises a fire-fighting
equipment reasonably adapted to the needs of the situation and in not having a
competent manager actually present and in charge of the mill at the time the fire
occurred. In addition to this it is said that, after the fire was discovered, the employees
present negligently failed to take proper measures to put it out.  cralawnad

Upon these points the trial judge found that the fire was of unknown and accidental
origin and that no fault or negligence was attributable to the plaintiff in regard either to
the conditions antecedent to the fire or the manner in which the flames were resisted.
He was, therefore, of the opinion that the loss caused by the fire was due to casus
fortuitus, for the consequences of which no one was responsible.

As observed in the brief of the defendant, as appellant, there is no evidence which

points out clearly and unmistakably the immediate cause of the fire; but much proof
was taken at the hearing with reference to the conditions under which the fire occurred
and what was done to arrest its progress. Indeed, nothing seems to have been left
undone by either party in the effort to ascertain the origin of the fire and to fix the
responsibility therefor.

In the camarin existing upon the hacienda Panaogao at or about the time the fire
occurred, which was during the milling season, there was a complete set of apparatus
for the manufacture of sugar, consisting of furnaces, boilers, mills, and other accessory
equipment. The laborers were accustomed to begin work in this camarin at about 4
o’clock in the morning and continued on duty until about 8 o’clock at night, during
which time strong fires were continually kept in the furnaces for the purpose of heating
the boilers containing sugar cane juice.
In maintaining the fires, highly inflammable bagasse, or dry crushed cane, were used
for fuel, heaps of which were stacked along the eastern and northeastern sides of the
camarin. When the fires were burning low, they were stirred by means of stoking rods,
called tulags. These were made of bamboo, the young and green ones being chosen, as
not easily susceptible of ignition. Nevertheless their frequent contact with the flames
and embers in the furnaces naturally tended to dry them out and make them
inflammable. In case these tulags became ignited they were immersed by the stokers in
buckets of water kept nearby.  chanrobles virtual lawlibrary

The places where the stokers are accustomed to stand in firing furnaces of this
character are called, in the vernacular, cabcaban. These stands consist of excavations
in the ground and are immediately in front of the openings of the furnaces. It is the
duty of the stokers not only to keep the fires going but to be on the lookout and
extinguish any sparks emitted from the furnaces which might give origin to a
conflagration.

The testimony of the plaintiff’s witnesses shows that upon the occasion in question the
usual and necessary number of stokers were posted immediately in front of the
openings of the furnaces to guard the fires. Buckets of water were at hand in which to
immerse the burning ends of the stoking-rods (tulags); and other buckets of water
were placed at convenient points for the extinguishment of flames, if fire should break
out in any part of the camarin. The precautions thus taken were in keeping with those
adopted in other sugar mills operated under similar conditions, and were such as are
commonly considered sufficient. It appears that stoking-rods made of iron are
sometimes used instead of the bamboo tulags, but inasmuch as the iron rods soon got
hot and burn the hands of the stokers these implements are not extensively used for
stiring the fires.

Upon the actual occasion of the fire in question the plaintiff was absent on business in
the city of Iloilo, having left Amando Ereñeta in charge of the hacienda. The latter had
left the camarin at about 5 p. m. on the date referred to; and when the fire occurred he
was at the corral where the carabaos were kept, a short distance away from the
camarin. Instead of hastening to the fire at once, after the alarm was given, he
remained a little while in the corral in order to get the animals into a place of safety.
Felipe Beldua, apparently next in authority to Amando Ereñeta, and who was engaged
in the sugar-boiling department, had left the camarin at about 4 p. m. in order to get
something to eat. As he was returning to the camarin, and while yet a short distance
away, he discerned the flames rising from a pile of bagasse at the north side of the
camarin. He was the first person to see the fire and at once gave alarm. It should be
noted that the fire did not originate in that part of the bagasse which was lying in
closest proximity to the stoking-stands but a little distance away where it was
unnoticed by the stokers. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

When Felipe Beldua left the camarin, two of his assistants remained on duty, and the
evidence shows that other employees, such as the stokers, machine-cleaners, and
sugar boilers, were busy at work. The stoker Lucas Bendado was on duty at the
cabcacan immediately in front of the opening of the furnaces at the time the fire
occurred. Amando Ereneta, who was first in charge of the camarin at the time, was
employed by the plaintiff to look after the animals, and his duties were not such as to
require him to be continually inside the camarin.

After the fire was discovered, the flames spread with great rapidity, owing to the highly
combustible nature of the bagasse, and the employees, who gathered around
immediately after the ringing of the bell, were unable to stop the progress of the fire.
The suggestion that the employees were undisciplined and incompetent and that the
fire could have been put out if they had been properly directed is based more or less
upon conjecture and is not in our opinion proved. The stacks of dry bagasse ranged
along the eastern and northeastern sides of the camarin supplied material to the flames
which made its extinguishment impossible.

How the fire originated remains an admitted mystery. Possibly a spark, emitted from
the furnace, had been casually conveyed to the spot where the flame was kindled, or it
is conceivable that it may have been started from the hot end of a stoking-rod which
had been carelessly thrown aside, but this supposition seems untenable; and after all
the origin of the fire is a matter of pure conjecture. Upon the whole we find no sufficient
ground for any revision of the trial court’s finding to the effect that the fire was one of
those fortuitous casualties which cannot be foreseen and for the happening of which
nobody can be held responsible.  chanrobles virtual lawlibrary

It is, however, insisted for the defendant that, inasmuch as the cause of the fire is
unknown, the plaintiff, as lessee, is responsible for the loss, under article 1563 of the
Civil Code, which declares that the lessee is liable for any deterioration or loss suffered
by the thing leased, unless he proves that it took place without his fault. The lessee, in
order to acquit himself under this provision must, so it is argued, prove how the fire
was caused, and from the known cause the court must judge whether the loss occurred
with or without his fault. We cannot agree with this contention.

It must be admitted that when a loss of the leased property occurs, there is a
presumption against the lessee, which makes him responsible, in the absence of proof
that the loss happened without his fault. But the question whether there has been fault
on his part must be determined in relation with other provisions of the Civil Code as
well as in the light of the general principles of jurisprudence. Under article 1561 of the
Civil Code the lessee of lands is not responsible for a loss resulting from inevitable
cause; and in article 1106 the general rule is declared that, in the absence of express
provision to the contrary, no one is liable for events which can not be foreseen or
which, if foreseen, are inevitable.  chanroblesvirtualawlibrary

As applied to the case before us we are of the opinion that when the trial court found
that reasonable precautions had been taken by the lessee to prevent fires, but that
nevertheless fire did occur, of inescrutable origin, which destroyed, the camarin in spite
of all that could be done to prevent it, this equivalent to a finding that the lessee was
without fault and that the loss was in fact due to an inevitable cause. In other words
the presumpting against the lessee is overcome by proving that the usual and proper
care was used to protect the leased property from fire.

Upon principle the responsibility of the lessee for the property leased is substantially
the same as that of a person who has possession of movable property belonging to
another, as in the case of bailment. It is a well known fact in legal history that the
doctrines of English law applicable to the bailment of chattels are in great part identical
with those developed by the civil law of Rome, of which indeed the English doctrines
may be considered mere emanations. This circumstance makes it instructive here to
refer to the case of Bryan v. Fowler (70 N. C., 596), decided by the Supreme Court of
North Carolina.’It there appeared that the plaintiff had sent a quantity of raw cotton to
the gin-house of the defendant, where it was stored for the purpose of being ginned. At
one o’clock p. m. on a certain day, while the gin was in ordinary course of operation,
with all hands present, fire was discovered in the lint-room, and as cotton is very
inflammable, almost like powder, it was impossible to extinguish it. The entire plant
was destroyed, including the raw cotton belonging to the plaintiff. The latter accordingly
instituted an action against the owner of the gin-house to recover the value of the raw
cotton which the plaintiff had deposited in the gin-house. It was insisted for the plaintiff
that, inasmuch as the gin-house had been in operation for a considerable time, and
under the same circumstances, and had never burned down before, it should be
concluded that the fire had originated from some negligent act of the defendant or his
servants and that as a consequence the defendant should be held liable. The Supreme
Court of North Carolina, however, refused to take this view and absolved the defendant,
saying:jgc:chanrobles.com.ph

"When we hear that a man’s house has been burned, by which he suffers loss, the
inference is that he did not burn it, but that it was the result of accident, or the work of
an incendiary. And it is hard to believe that he did not use ordinary care of his own. But
grant that . . . it was incumbent on the defendant to show that he did use ordinary
care; then it appears that he did show it. He proved that it was general orders, that ’no
fire, pipes or matches’ were to be allowed in the gin-house, and that none were used.
What more could he prove? . . .

"From all the testimony, it is a mystery how the fire occurred. Take it that the fact of
burning made a case of prima facie negligence so as to put it upon the defendant to
show proper and usual care, still we think he did prove due care.

"The evidence raises some suspicion that a friction match may have been carried to the
gin-house in seed cotton, as hands picking out cotton are known to use matches in the
fields. And there was some probability that the seed cotton in the gin-house took fire
spontaneously; as it is known that grassy cotton is liable to spontaneous combustion,
and mashing the seed will grease the cotton.  chanrobles virtual lawlibrary

"But however this may be, there is no evidence of negligence against the defendant,
except the fact of the fire and that he has met by showing that usual and proper care
was used." cralaw virtua1aw library

In this connection we may be permitted to quote a few words from an unpublished

decision rendered in the First Division of this Court in 1919. 1 If there appeared that
the plaintiff had left a number of photographic films with the defendant corporation in
the city of Manila to be washed and refixed. Two or three days later a fire occurred in
the defendant’s place of business and destroyed the films. The Court found upon the
proof that the fire was accidental. In an action brought by the plaintiff to recover the
value of the films, we said: jgc:chanrobles.com.ph

"The defendant is, in our opinion, not liable. This was a bailment locatio operis feciendi
cause, which term is applied to that bailment where compensation is given for labor and
service done upon a chattel or in connection with it; as where cloth is delivered to a
tailor to be made into clothes, or where a watch is left with a jeweler to be mended.

"In this bailment ordinary care and diligence are required of the bailee and he is not
liable for the inevitable loss or destruction of the chattel, not attributable to his fault. If
while the bailment continues, the chattel is destroyed, or stolen, or perishes, without
negligence on the bailee’s part, the loss, as in other hirings, falls upon the owner, in
accordance with the maxim res perit domino. . . .

"Upon this point the civil and common law are agreed; and we find nothing to the
contrary in the Spanish Civil Code. Article 1183 declares that when a thing is lost while
in the possession of the debtor it shall be presumed that the loss occurred by his fault
and not by fortuitous event in the absence of proof to the contrary. But where it is
found, and the fact is indisputable, as here, that the fire which destroyed the negatives
was accidental, this is equivalent to a finding that the fire was not attributable to the
fault of the defendant and negatives every idea of negligence on its part with reference
to the origin of the fire. This was casus fortuitus such as to exempt the defendant from
liability.

"Article 1183 must be construed in relation with the next preceding article (1182),
which says that the obligation to deliver a thing is extinguished when the thing is
destroyed without the fault of the debtor. . . ." cralaw virtua1aw library

We now pass to the consideration of a special clause found in the contract of lease
(paragraph 4, [b]), declaring that the lessee shall be obliged, upon his own account and
risk, to make all repairs upon the improvements existing on the haciendas which were
the subject of the lease, and to bear the expense of the same without right to
reimbursement. The attorneys for the lessor, Rosendo Hernaez, insist that under this
provision it was a duty of the lessee, Nicolas Lizares, at his own expense to restore the
camarin after it was destroyed by fire. On the other hand, it is insisted for the latter
that it was the obligation of the lessor, under subsection 2 of article 1554 of the Civil
Code, to make all repairs necessary to keep the leased property in a service- able
condition for the purpose for which it was intended, and that this obligation involves the
duty to reconstruct the destroyed camarin.  chanroblesvirtual|awlibrary

We are of the opinion that neither the articles last cited nor the special provision of the
contract to which reference has been made has any bearing on the solution of the case.
In this connection it will be noted that the obligation imposed on the lessor by article
1554 is to make repairs (reparaciones). The obligation fixed upon the lessee by the
special provision of the contract is also limited to repairs (composiciones). From an
examination of the two provisions it is evident that the two different Spanish words
used in the sense of repairs (reparaciones, composiciones) are exactly equivalent; and
it is seen that the obligation imposed by the code on the lessor is transferred by the
contract to the lessee. In both cases, however, the obligation is limited to the making of
repairs, which is a very different thing from reconstruction in case of total loss. The
Spanish terms "reparaciones" and "composiciones," like the English word "repairs" in its
ordinary acceptation, must be understood to apply to the restoration of things after
injury or partial destruction, without complete loss of identity in the thing repaired. (34
Cyc., 1336, 1337.)
In subsection (d) of paragraph 4 of the contract it is declared to be the duty of the
lessee to maintain the improvements on the haciendas in good condition and to deliver
them in the same state to the lessor upon the termination of the lease. This is merely a
statement of the obligation imposed by law generally upon all lessees; and the duty
thus defined is to be understood as subject to the limitations and exceptions recognized
by law. There is nothing in this provision which deprives the lessee of the defense
arising from the destruction of the property without his fault.

We are aware that the rule above stated, as applicable in this jurisdiction, is at variance
with the doctrine stated in some of the common law authorities. At an early day the
rule seems to have become fixed in the common law that if a lessee covenants to
repair, to keep in repair, or to surrender the premises in good repair, he is liable for the
destruction of buildings not rebuilt by him, though the destruction may have been
caused by fire or other accident, or by the act of enemies and without fault on his part.
(16 R. C. L., pp. 1085, 1089.) This peculiar common-law rule, which is applied in
contracts of landlord and tenant, supplies the only instance apparently where the
obligation to repair is held to import the duty to rebuild. Upon principle we consider it
incompatible with the spirit which informs the Civil Code, and especially with the
general rule laid down in article 1105. It is true that even under this article a party to
any contract may make himself responsible for loss resulting from fortuitous and
inevitable events. But the provision imposing this obligation should be clearly
expressed; and we cannot hold that the express obligation to make repairs and
surrender the premises in good condition involves the obligation to rebuild in case of
destruction by fortuitous or accidental causes occurring without the fault of the lessee.
The undertaking expressed does not reach to any such extent. Where the parties to a
contract desire to create an unusual obligation, the expression of intention to that effect
should be clear.

It results in our opinion that there was no positive duty on the part of either the lessor
or lessee to reconstruct the camarin after it had been totally destroyed by fire; neither
can therefore be held liable to the other for any damages which may supposedly have
resulted from the failure to reconstruct. The judgment of the trial court must therefore
be modified by eliminating the item of P1,736.01, which was awarded to the plaintiff as
damages for the failure of the defendant Promptly to reconstruct the camarin.

The fact should perhaps be here stated that the lessor reconstructed the camarin after
the expiration of a few months, but it was not finished in time to permit of it is use in
milling the remainder of the harvest for the season when the fire occurred. The trial
judge found that the camarin could have been rebuilt within the period of thirty days
from the date of the fire; and the damages awarded are those which the plaintiff is
supposed to have suffered between the date when the camarin should have been
finished and the conclusion of the milling season for that year. It is contended for the
defendant as appellant that the period fixed by the court for the reconstruction of the
camarin was unreasonably short and that no damages should have been awarded for
that season. In view of the proposition above laid down by us, that the lessor was not
bound to rebuild, it is unnecessary for us to consider the length of time which would
reasonably have been required for the reconstruction of the camarin.

In the orderly discussion of the case it is convenient next to consider the question of
the’ liability of the lessee for rent, after the fire occurred; for it appears that the lessee
is in arrears to the amount of P1,700, of the stipulated rent, payable upon February 15,
1918, as well as for all amounts payable under the contract at later dates. The failure of
the defendant to pay these rents is explained by his claim that the contract should be
rescinded and that damages should be assessed in his favor by reason of the
delinquency of the defendant in the performance of the obligations of the contract of
lease. But as we have found that there was no obligation on the part of the lessor to
rebuild the camarin, it results that the plaintiff is not entitled either to the damages
claimed or to a rescission of the contract. The lessee is, therefore, liable for the
stipulated rent, unless the destruction of the camarin by fire operates as a matter of
law to absolve him from liability for the rent, in whole or in part.  chanrobles law library : red

Upon this point it is obvious that the most to which the lessee could be entitled in a
case of this character would be a possible abatement of the rent, under article 1575 of
the Civil Code, for the period of time intervening between, the date of the fire and the
completion of the reconstructed camarin. But even supposing that this article could be
properly considered applicable to the lease of this sugar mill in connection with the farm
whereon it is placed — a question upon which we need not here express a definite
opinion — the proof supplies no data from which we could determine the amount of
reduction to which the lessee would be equitably entitled during the period mentioned.
The two haciendas covered by the lease contain an area of about 250 hectares and the
value of the land for cultivable purposes undoubtedly supplied the chief element of
value in the lease. The lessee has apparently remained in possession of both the
haciendas, and there is nothing to show the proportional rental value of the camarin in
relation with the whole property. This circumstance makes it unnecessary for us to
enter into any discussion of the legal question as to when the lessee is entitled to an
equitable abatement of the rent on account of the destruction of the improvements on a
farm. In passing we may observe that the civil law is much more favorable to the lessee
than the common law as will be discovered from a perusal of the opinion of the
Supreme Court of the United States in Viterbo v. Friedlander (120 U. S., 707 [30 L. ed.,
776]), where the provisions of the French Code, as reproduced in the Code of
Louisiana, are compared with the common law doctrines with great erudition and
copious learning. The provisions of the Spanish Civil Code apparently occupy a position
between the two extremes.

The contract of lease contains a stipulation with regard to liability for expenses of
possible litigation, which has been the subject of controversy. Said provision is to the
effect that in case litigation arises by reason of the failure of either party to comply with
the contract, the attorney’s fees and other expenses, judicial and extra-judicial, shall be
paid by the person whose delinquency gives rise to the litigations The trial judge found
that both parties were in some respects in default, and accordingly held that neither
could invoke this provision. In the view we take of the case, the lessor is not in default
at all. He is therefore entitled to recover of the lessee, as the person in default, proven
expenses including the attorney’s fee, in the amount of P2,630.  chanrobles virtual lawlibrary

The trial court declared the contract of lease to be rescinded, which action has been
assigned as error by the defendant as appellant. Though technically well taken, this
assignment is overruled, for the reason that the defendant in his brief expresses his
conformity in this feature of the appealed decision and consents that the order of
rescission be affirmed. We will accordingly here act upon the maxim consencus tollit
errorem, and affirm this feature of the case. It may be added that the right of the
defendant to a rescission under the facts proved is unquestionable. Inasmuch, however,
as the period filed by the trial court during which the lessee might retain possession for
the purpose of harvesting and milling the cane grown on the haciendas has passed, and
other crops are probably now in course of production, it will be the duty of the lower
court upon the return of this record to make such orders as may be necessary to adjust
the rights of the parties in harmony with article 157 of the Civil Code and other
provisions applicable to the case.

The contract of lease also contains a stipulation whereby the plaintiff-lessee bound
himself to cause an artesian well to be bored on the hacienda Panaogao in the harvest
season of 1917-1918. This provision has not been complied with, and the trial judge
included in his decree an order requiring the plaintiff to cause the well to be opened on
or before May 30, 1919, in compliance with the stipulation referred to. In view of the
rescission of the contract, the order for the performance of this stipulation must be
reversed. Ordinarily, in such situation the lessor would be entitled to compensation in
damages for this breach of the contract but we discover no basis in the proof upon
which such damages could be computed.  chanroblesvirtualawlibrary

In conclusion, the decision appealed from is affirmed in declaring the lease contract
rescinded and in giving judgment in favor of Rosendo Hernaez against Nicolas Lizares
and Enrica Alunan, viuda de Lizares, for rents accrued and unpaid, with interest, it
being further understood, however, that the obligation to pay rent will continue until
possession of the two haciendas is surrendered to the lessor. The decision is reversed in
so far as it awards damages to Nicolas Lizares against Rosendo Hernaez in the sum of
P1,736.01, with interest; and the defendant is absolved from this part of the judgment.
The decision is also reversed in so far as it requires the plaintiff to construct an artesian
well upon the Panaogao hacienda. It is further ordered that Rosendo Hernaez recover of
Nicolas Lizares and Enrica Alunan, viuda de Lizares, jointly and severally, the sum of
P2,630, as expenses of litigation, with interest at six per cent from November 14, 1918,
the date of the decision in the lower court. (Sec. 511, Cod. Civ. Proc.)  chanrobles.com.ph : virtual law library

No special pronouncement will be made as to costs. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Justice Johnson voted in the session room concurring with the preceding decision; but
being absent he cannot sign it.

(Sgd.) C. S. ARELLANO, Chief Justice.

CASE #2:

G.R. No. L-3885         December 17, 1951

THE BACHRACH MOTOR CO., INC., plaintiff-appellee,

vs.
LEE TAY AND LEE CHAY, INC., defendant-appellant.
Arnaldo G. Guzman for plaintiff and appellee.
Quijano, Alidio and Azores for defendant and appellant.

JUGO, J.:

The Court of First Instance of Manila rendered judgment against the defendant Lee Tay and Lee
Chay, Inc. to pay the plaintiff Bachrach Motor Co., Inc., the sum of P2,861.24, with interest at 12 per
cent per annum from October 6, 1948, until fully paid, plus the sum of P715.31, representing 25 per
cent of the amount due, as attorney's fees, and costs.

The case was submitted to the Court of First Instance on the following agreed statements of facts:

1. That the plaintiff, The Bachrach Motor Co., Inc., is a domestic corporation, organized and
existing in accordance with the laws of the Philippines, with its principal office and place of
business in the City of Manila, Philippines, and that the capital stock of the same is owned
and held by Filipino and American citizens;

2. That the defendant, Lee Tay and Lee Chay, Inc., is likewise a domestic corporation
organized and exiting in accordance with the laws of the Philippines, with its principal office
and place of business in the City of Manila, Philippines, and that the capital stock of the
same is owned and held by Chinese nationals;

3. That on October 11, 1941, in the City of Manila, Philippines, the defendant duly made,
executed and delivered to the plaintiff a promissory note in the sum of P3,472, payable in
monthly installments, the first installment being payable on November 11, 1941, and the last
installment on February 12, 1943; that a true and correct copy of said promissory note is
attached to this stipulation as Appendix "A" and made an integral part hereof; that said
promissory note represented the unpaid balance of one White chassis, Model 704-R, Serial
No. 217787, Motor No. 13713, purchased by the defendant from the plaintiff; that there is
now due and owing from the defendant in favor of the plaintiff on the said promissory note,
as of October 6, 1948, the sum of P2,861.24, plus interest thereon at the stipulated rate of
12 per cent per annum, from said date until paid, and plus attorney's fees which the parties
hereto have stipulated to be in the amount equivalent to 25 per cent of the amount due, or in
the amount of P715.31;

4. That shortly after the outbreak of the war on December 8, 1941, the same truck was
among the other trucks of the defendant that were commandeered by the USAFFE;

5. That neither the plaintiff nor the defendant has filed office claim for the said truck to the
United States Government, and have not received any compensation for the same from the
United States Government; lawphil.net

6. That the defendant has not filed any claim for war damage and as a consequence does
not except to receive any war damage payment from the United States War Damage
Commission;

7. That the parties desire to submit to this Honorable Court for consideration and resolution
the following questions, to wit:
 (a) Whether plaintiff is entitled to payment of interests during the period of Japanese
occupation, that is to say, from January 2, 1942 up to February 3, 1945;

(b) Whether plaintiff is entitled to the stipulated attorney's fees? If so, to what extent.

(c) Whether the commandeering of the truck referred to in paragraphs 3 and 4

above, exempts the defendant from the payment of the obligation represented by the
promissory note, Appendix "A". and

(d) Whetever the law providing for a moratorium for the payment of pre-war
obligation is applicable to this case for the benefit of the defendant.

Manila, Philippines, November 4, 1949.

QUIJANO and ALIDIO

By: (Sgd.) J.G. QUIJANO
Atty. for the Defendant
Rooms 320-322 Natividad Bldg.
Escolta, Manila, Phil.

(Sgd.) ARNALDO J. GUZMAN

Atty. for the Plaintiff
c/o Bachrach Motor Inc.,
Port Area, Manila, Phil.

The defendant appealed directly to this Court, there being no questions of fact but only of law.

The defendant-appellant makes the following contentions:

(1) That during the Japanese occupation the principal obligation with the interest due thereon, was
extinguished or at least the accrual of the interest was suspended;

(2) That he is not liable to pay attorney's fees;

(3) That the commandeering or seizure of the truck by the United States Armed Forces of the Far
East USAFFE relieved the appellant from paying the balance of its price to the plaintiff; and

(4) That the payment of the obligation is suspended by the Moratorium Proclamation.

There is no principle of law by virtue of which the obligation was extinguished during the Japanese
occupation. However, the appellant claims that at least the accrual of the interest was stopped; that
is, the indebtedness did not bear interest during the Japanese occupation. This question is purely
academic, for as seen from paragraph 3 of the agreed statement of facts, the plaintiff appellee was
generous enough to demand interest only from October 6, 1948, very much after the termination of
the Japanese occupation.

With regard to the attorney's fees amounting to 25 per cent of the obligation, this Court, in the use of
its discretion, reduces it to 10 per cent, or P286.12.

As to the theory that the seizure of the truck by the (USAFFE) relieved the appellant from paying the
balance of its value to the plaintiff, it is enough to say that in the first place, the truck became the
property of the appellant when it was delivered to him by the appellee, and consequently, the
appellant should suffer the loss; and, in the second place, the appellant could have filed a claim with
the United States Government and he would have been paid. His negligent omission cannot be
imputed to the appellee. The appellant says that it should have been the appellee who should have
filed the claim; the appellee could not have done so, because it was no longer the owner of the
vehicle.

With reference to the Moratorium Proclamation which, the appellant claims, bars the collection of the
obligation, it is enough to say that the Moratorium has been lifted as to obligation incurred before the
war, except as to those who have filed claims with the United States Philippines War Damage
Commission, which has not been done by the appellant. The motratorium cannot, therefore, be
invoked by him.

In view of the foregoing, the judgment appealed from is affirmed, but the attorney's fees is reduced
to 10 per cent, or P286.12. With costs against the appellant.

It is so ordered.

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Reyes and Bautista Angelo, JJ., concur.

CASE #3:

G.R. No. L-21263             April 30, 1965

LAWYERS COOPERATIVE PUBLISHING COMPANY, plaintiff-appellee,

vs.
PERFECTO A. TABORA, defendant-appellant.

Paredes, Poblador, Cruz and Nazareno for plaintiff-appellee.

Tabora and Concon for defendant-appellant.

BAUTISTA ANGELO, J.:

On May 3, 1955, Perfecto A. Tabora bought from the Lawyers Cooperative Publishing Company one
complete set of American Jurisprudence consisting of 48 volumes with 1954 pocket parts, plus one
set of American Jurisprudence, General Index, consisting of 4 volumes, for a total price of P1,675.50
which, in addition to the cost of freight of P6.90, makes a total of P1,682.40. Tabora made a partial
payment of P300.00, leaving a balance of P1,382.40. The books were duly delivered and receipted
for by Tabora on May 15, 1955 in his law office Ignacio Building, Naga City.

In the midnight of the same date, however, a big fire broke out in that locality which destroyed and
burned all the buildings standing on one whole block including at the law office and library of Tabora
As a result, the books bought from the company as above stated, together with Tabora's important
documents and papers, were burned during the conflagration. This unfortunate event was
immediately reported by Tabora to the company in a letter he sent on May 20, 1955. On May 23, the
company replied and as a token of goodwill it sent to Tabora free of charge volumes 75, 76, 77 and
78 of the Philippine Reports. As Tabora failed to pay he monthly installments agreed upon on the
balance of the purchase price notwithstanding the long time that had elapsed, the company
demanded payment of the installments due, and having failed, to pay the same, it commenced the
present action before the Court of First Instance of Manila for the recovery of the balance of the
obligation. Plaintiff also prayed that defendant be ordered to pay 25% of the amount due as
liquidated damages, and the cost of action.

Defendant, in his answer, pleaded force majeure as a defense. He alleged that the books bought
from the plaintiff were burned during the fire that broke out in Naga City on May 15, 1955, and since
the loss was due to force majeure he cannot be held responsible for the loss. He prayed that the
complaint be dismissed and that he be awarded moral damages in the amount of P15,000.00.

After due hearing, the court a quo rendered judgment for the plaintiff. It ordered the defendant to pay
the sum of P1,382.40, with legal interest thereon from the filing of the complaint, plus a sum
equivalent to 25% of the total amount due as liquidated damages, and the cost of action.

Defendant took the case to the Court of Appeals, but the same is now before us by virtue of a
certification issued by that Court that the case involves only questions of law.

Appellant bought from appellee one set of American Jurisprudence, including one set of general
index, payable on installment plan. It was provided in the contract that "title to and ownership of the
books shall remain with the seller until the purchase price shall have been fully paid. Loss or
damage to the books after delivery to the buyer shall be borne by the buyer." The total price of the
books, including the cost of freight, amounts to P1,682.40. Appellant only made a down payment of
P300.00 thereby leaving a balance of P1,382.40. This is now the import of the present action aside
from liquidated damages.

Appellant now contends that since it was agreed that the title to and the ownership of the books shall
remain with the seller until the purchase price shall have been fully paid, and the books were burned
or destroyed immediately after the transaction, appellee should be the one to bear the loss for, as a
result, the loss is always borne by the owner. Moreover, even assuming that the ownership of the
books were transferred to the buyer after the perfection of the contract the latter should not answer
for the loss since the same occurred through force majeure. Here, there is no evidence that
appellant has contributed in any way to the occurrence of the conflagration. 1äwphï1.ñët

This contention cannot be sustained. While as a rule the loss of the object of the contract of sale is
borne by the owner or in case of force majeure the one under obligation to deliver the object is
exempt from liability, the application of that rule does not here obtain because the law on the
contract entered into on the matter argues against it. It is true that in the contract entered into
between the parties the seller agreed that the ownership of the books shall remain with it until the
purchase price shall have been fully paid, but such stipulation cannot make the seller liable in case
of loss not only because such was agreed merely to secure the performance by the buyer of his
obligation but in the very contract it was expressly agreed that the "loss or damage to the books after
delivery to the buyer shall be borne by the buyer." Any such stipulation is sanctioned by Article 1504
of our Civil Code, which in part provides:

(1) Where delivery of the goods has been made to the buyer or to a bailee for the buyer, in
pursuance of the contract and the ownership in the goods has been retained by the seller
merely to secure performance by the buyer of his obligations under the contract, the goods
are at the buyer's risk from the time of such delivery.

Neither can appellant find comfort in the claim that since the books were destroyed by fire without
any fault on his part he should be relieved from the resultant obligation under the rule that an obligor
should be held exempt from liability when the loss occurs thru a fortuitous event. This is because this
rule only holds true when the obligation consists in the delivery of a determinate thing and there is no
stipulation holding him liable even in case of fortuitous event. Here these qualifications are not
present. The obligation does not refer to a determinate thing, but is pecuniary in nature, and the
obligor bound himself to assume the loss after the delivery of the goods to him. In other words, the
obligor agreed to assume any risk concerning the goods from the time of their delivery, which is an
exception to the rule provided for in Article 1262 of our Civil Code.

Appellant likewise contends that the court a quo erred in sentencing him to pay attorney's fees. This
is merely the result of a misapprehension for what the court a quo ordered appellant to pay is not
25% of the amount due as attorney's fees, but as liquidated damages, which is in line with an
express stipulation of the contract. We believe, however, that the appellant should not be made to
pay any damages because his denial to pay the balance of the account is not due to bad faith.

WHEREFORE, the decision appealed from is modified by eliminating that portion which refers to
liquidated damages. No costs.

Bengzon, C.J., Concepcion, Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and
Zaldivar, JJ., concur.
Reyes, J.B.L., J., concurs in the result.

CASE #4:

G.R. No. 124922 June 22, 1998

JIMMY CO, doing business under the name & style DRAGON METAL
MANUFACTURING, petitioner,
vs.
COURT OF APPEALS and BROADWAY MOTOR SALES CORPORATION, respondents.

MARTINEZ, J.:

On July 18, 1990, petitioner entrusted his Nissan pick-up car 1988 model   to private respondent —
1

which is engaged in the sale, distribution and repair of motor vehicles — for the following job
repair services and supply of parts:

— Bleed injection pump and all nozzles;

— Adjust valve tappet;

— Change oil and filter;

— Open up and service four wheel brakes, clean and adjust;

— Lubricate accelerator linkages;

— Replace aircon belt; and

— Replace battery  2
Private respondent undertook to return the vehicle on July 21, 1990 fully serviced and
supplied in accordance with the job contract. After petitioner paid in full the repair bill in the
amount of P1,397.00   private respondent issued to him a gate pass for the release of the
3

vehicle on said date. But came July 21, 1990, the latter could not release the vehicle as its
battery was weak and was not yet replaced. Left with no option, petitioner himself bought a
new battery nearby and delivered it to private respondent for installation on the same day.
However, the battery was not installed and the delivery of the car was rescheduled to July 24,
1990 or three (3) days later. When petitioner sought to reclaim his car in the afternoon of July
24, 1990, he was told that it was carnapped earlier that morning while being road-tested by
private respondent's employee along Pedro Gil and Perez Streets in Paco, Manila. Private
respondent said that the incident was reported to the police.

Having failed to recover his car and its accessories or the value thereof, petitioner filed a suit
for damages against private respondent anchoring his claim on the latter's alleged
negligence. For its part, private respondent contended that it has no liability because the car
was lost as result of a fortuitous event — the carnapping. During pre-trial, the parties agreed
that:

(T)he cost of the Nissan Pick-up four (4) door when the plaintiff purchased it
from the defendent is P332,500.00 excluding accessories which were installed
in the vehicle by the plaintiff consisting of four (4) brand new tires, magwheels,
stereo speaker, amplifier which amount all to P20,000.00. It is agreed that the
vehicle was lost on July 24, 1990 "approximately two (2) years and five (5)
months from the date of the purchase." It was agreed that the plaintiff paid the
defendant the cost of service and repairs as early as July 21, 1990 in the
amount of P1,397.00 which amount was received and duly receipted by the
defendant company. It was also agreed that the present value of a brand new
vehicle of the same type at this time is P425,000.00 without accessories.  4

They likewise agreed that the sole issue for trial was who between the parties shall bear the
loss of the vehicle which necessitates the resolution of whether private respondent was
indeed negligent.   After trial, the court a quo found private respondent guilty of delay in the
5

performance of its obligation and held it liable to petitioner for the value of the lost vehicle
and its accessories plus interest and attorney's fees.   On appeal, the Court of Appeals (CA)
6

reversed the ruling of the lower court and ordered the dismissal of petitioner's damage
suit.   The CA ruled that: (1) the trial court was limited to resolving the issue of negligence as
7

agreed during pre-trial; hence it cannot pass on the issue of delay; and (2) the vehicle was
lost due to a fortuitous event.

In a petition for review to this Court, the principal query raised is whether a repair shop can
be held liable for the loss of a customer's vehicle while the same is in its custody for repair or
other job services?

The Court resolves the query in favor of the customer. First, on the technical aspect involved.
Contrary to the CA' s pronouncement, the rule that the determination of issues at a pre-trial
conference bars the consideration of other issues on appeal, except those that may involve
privilege or impeaching matter,   is inapplicable to this case. The question of delay, though
8

not specifically mentioned as an issue at the pre-trial may be tackled by the court
considering that it is necessarily intertwined and intimately connected with the principal
issue agreed upon by the parties, i.e., who will bear the loss and whether there was
negligence. Petitioner's imputation of negligence to private respondent is premised on delay
which is the very basis of the former's complaint. Thus, it was unavoidable for the court to
resolve the case, particularly the question of negligence without considering whether private
respondent was guilty of delay in the performance of its obligation.

On the merits. It is a not defense for a repair shop of motor vehicles to escape liability simply
because the damage or loss of a thing lawfully placed in its possession was due to
carnapping. Carnapping per se cannot be considered as a fortuitous event. The fact that a
thing was unlawfully and forcefully taken from another's rightful possession, as in cases of
carnapping, does not automatically give rise to a fortuitous event. To be considered as such,
carnapping entails more than the mere forceful taking of another's property. It must be
proved and established that the event was an act of God or was done solely by third parties
and that neither the claimant nor the person alleged to be negligent has any participation.   In
9

accordance with the Rules of evidence, the burden of proving that the loss was due to a
fortuitous event rests on him who invokes it   — which in this case is the private respondent.
10

However, other than the police report of the alleged carnapping incident, no other evidence
was presented by private respondent to the effect that the incident was not due to its fault. A
police report of an alleged crime, to which only private respondent is privy, does not suffice
to establish the carnapping. Neither does it prove that there was no fault on the part of
private respondent notwithstanding the parties' agreement at the pre-trial that the car was
carnapped. Carnapping does not foreclose the pissibility of fault or negligence on the part of
private respondent.

Even assuming arguendo that carnapping was duly established as a fortuitous event, still

private respondent cannot escape liability. Article 1165   of the New Civil Code makes an
11

obligor who is guilty of delay responsible even for a fortuitous event until he has effected the
delivery. In this case, private respondent was already in delay as it was supposed to deliver
petitioner's car three (3) days before it was lost. Petitioner's agreement to the rescheduled
delivery does not defeat his claim as private respondent had already breached its obligation.
Moreover, such accession cannot be construed as waiver of petitioner's right to hold private
respondent liable because the car was unusable and thus, petitioner had no option but to
leave it.

Assuming further that there was no delay, still working against private respondent is the
legal presumption under Article 1265 that its possession of the thing at the time it was lost
was due to its fault.   This presumption is reasonable since he who has the custody and care
12

of the thing can easily explain the circumstances of the loss. The vehicle owner has no duty
to show that the repair shop was at fault. All that petitioner needs to prove, as claimant, is the
simple fact that private respondent was in possession of the vehicle at the time it was lost. In
this case, private respondent's possession at the time of the loss is undisputed.
Consequently, the burden shifts to the possessor who needs to present controverting
evidence sufficient enough to overcome that presumption. Moreover, the exempting
circumstances — earthquake, flood, storm or other natural calamity — when the presumption
of fault is not applicable   do not concur in this case. Accordingly, having failed to rebut the
13

presumption and since the case does not fall under the exceptions, private respondent is
answerable for the loss.

It must likewise be emphasized that pursuant to Articles 1174 and 1262 of the New Civil Code,
liability attaches even if the loss was due to a fortuitous event if "the nature of the obligation
requires the assumption of risk".   Carnapping is a normal business risk for those engaged in
14

the repair of motor vehicles. For just as the owner is exposed to that risk so is the repair
shop since the car was entrusted to it. That is why, repair shops are required to first register
with the Department of Trade and Industry (DTI)   and to secure an insurance policy for the
15

"shop covering the property entrusted by its customer for repair, service or maintenance" as
a pre-requisite for such registration/accreditation.  Violation of this statutory duty constitutes
16

negligence per se.  Having taken custody of the vehicle private respondent is obliged not
17

only to repair the vehicle but must also provide the customer with some form of security for
his property over which he loses immediate control. An owner who cannot exercise the
seven (7) juses or attributes of ownership — the right to possess, to use and enjoy, to abuse
or consume, to accessories, to dispose or alienate, to recover or vindicate and to the fruits
—   is a crippled owner. Failure of the repair shop to provide security to a motor vehicle
18

owner would leave the latter at the mercy of the former. Moreover, on the assumption that
private respondent's repair business is duly registered, it presupposes that its shop is
covered by insurance from which it may recover the loss. If private respondent can recover
from its insurer, then it would be unjustly enriched if it will not compensate petitioner to
whom no fault can be attributed. Otherwise, if the shop is not registered, then the
presumption of negligence applies.

One last thing. With respect to the value of the lost vehicle and its accessories for which the
repair shop is liable, it should be based on the fair market value that the property would
command at the time it was entrusted to it or such other value as agreed upon by the parties
subsequent to the loss. Such recoverable value is fair and reasonable considering that the
value of the vehicle depreciates. This value may be recovered without prejudice to such other
damages that a claimant is entitled under applicable laws.

WHEREFORE, premises considered, the decision of the Court Appeals is REVERSED and
SET ASIDE and the decision of the court a quo is REINSTATED.

SO ORDERED.

Regalado, Puno and Mendoza, JJ., concur.

Melo, J., is on leave.

Footnotes

1 Registered in the name of petitioner with Plate No. PJK-666.

2 Rollo, p. 81.

3 Covered by CBC Receipt No. 691148; Rollo, p. 10.

4 Rollo, pp. 28-29.

5 Rollo, p. 29.

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

"Accordingly, this Court finds the defendant liable to the plaintiff for the value
of the vehicle in question. Defendant is ordered to pay plaintiff the value of the
vehicle in the amount of Three Hundred Thirty Two Thousand Five Hundred
Pesos representing the acquisition cost of the vehicle plus the amount of
Twenty Thousand Pesos representing the cost of the four brand new tires,
magwheels, pioneer stereo speakers, air-conditioner, which were installed by
the plaintiff in his vehicle after the plaintiff bought the vehicle from the
defendant. While it is true that plaintiff purchased from the defendant the
vehicle about two years and five months before the same was lost, and
therefore the vehicle had already depreciated from its original value at the time
it was lost, it is also true as agreed upon by the parties in the pre-trial, that the
present value of brand new vehicle of the same type has at this time increased
to Four Hundred Thousand Pesos without accessories, so whatever is
awarded by this Court to the plaintiff in this decision would not even be
sufficient to purcahse a brand new vehicle at the present prices. This Court
believes that the amount awarded to the plaintiff above-stated represents a fair
compromise, considering the depreciation of the vehicle from the time it was
purchased and to the time it was lost and which is off-seted by the increase
cost of a brand new vehicle at the present time. Defendant is likewise ordered
to pay plaintiff legal interest in the amount above-stated from the date of the
finality of this decision until full payment of the obligation. Further, defendant
is ordered to pay plaintiff Ten Thousand Pesos by attorney's fees." (sic was
not included so as no to clutter the narration); Rollo, pp. 78, 94.

7 CA Decision promulgated August 31, 1995 penned by Justice Austria-

Martinez with Justices Lantin and Salas, concurring; Rollo, pp. 26-32.

8 Caltex v. CA, 212 SCRA 448; Bergado v. CA, 173 SCRA 497 citing Permanent
Concrete Products, Inc. v. Teodoro, 26 SCRA 332. In the Bergado case (p. 501),
the court reiterated the rule that the specific exceptions to the general rule to
be observed in pre-trials emphasized in Gicano v. Gegato, 157 SCRA 140 is
"that trial court have authority and discretion to dismiss an action on the
ground of prescription when the parties' pleadings or other facts on record
show it to be indeed time-barred; and it may do so on the basis of a motion to
dismiss, or an answer which sets up such ground as an affirmative defense; or
even if the ground is alleged after judgment on the merits, as in a motion for
reconsideration; or even if the defense has not been asserted at all, as where
no statement thereof is found in the pleadings, or where a defendant had been
declared in default. What is essential only, to repeat, is that the facts
demonstrating the lapse of the prescriptive period, be otherwise sufficiently
and satisfactorily apparent on the record; either in the averments of the
plaintiff's, or otherwise established by the evidence."

9 Lasam v. Smith, 45 Phil. 657; General Enterprises, Inc., v. Llianga Bay

Logging Co., Inc., 120 Phil. 702; Tugade v. CA, 85 SCRA 226.

10 Sec. 1, Rule 131, 1989 Revised Rules on Evidence provides: "Burden of

proof. — Burden of proof is the duty of a party to present evidence on he facts
in issue necessary to establish his claim or defense by the amount of evidence
required by law." (Emphasis supplied).

11 Art. 1165. xxx xxx xxx

If the obligor delays, or has promised to deliver the same thing to two or more
persons who do not have the same interest, he shall be responsible for
fortuitous event until he has effected the delivery. (Emphasis supplied).

12 Art. 1265. Whenever the thing is lost in the possession of the debtor, it shall
be presumed that the loss was due to his fault, unless there is proof to the
contrary, and without prejudice to the provisions of Article 1165. This
presumption does not apply in case of earthquake, flood, storm, or other
natural calamity. (Emphasis supplie).

13 New Civil Code, Article 1265.

14 Article 1174. Except in cases expressly specified by the law, or when it is

otherwise declared by stipulation, or when the nature of the obligation requires
the assumption of risk, no person shall be responsible for those events which
could not be foreseen, or which, though foreseen, were inevitable.

Art. 1262. xxx xxx xxx

When by law or stipulation, the obligor is liable even for fortuitous event, the
loss of the thing does not extinguish the obligation, and he shall be
responsible for damages. The same rule applies when the nature of the
obligation requires the assumption of risk. (Emphasis supplied).

15 P.D. 1572 (EMPOWERING THE SECRETARY OF TRADE TO REGULATE AND

CONTROL THE OPERATION OF SERVICE AND REPAIR ENTERPRISES FOR
MOTOR VEHICLES, HEAVY EQUIPMENT AND ENGINES AND ENGINEERING
WORKS; ELECTRONICS, ELECTRICAL, AIRCONDITIONING AND
REFRIGERATION; OFFICE EQUIPMENT; MEDICAL AND DENTAL EQUIPMENT;
AND OTHER CONSUMER MECHANICAL AND INDUSTRIAL EQUIPMENT;
APPLIANCES OR DEVICES, INCLUDING THE TECHNICAL PERSONNEL
EMPLOYED THEREIN).

Section 1. Accreditation. All enterprises and technical personnel employed

therein engaged in the service and repair of motor vehicles, heavy equipment,
engines and engineering works; electronics, electrical, air-conditioning and
refrigeration; office equipment; medical and dental equipment; and other
consumer industrial electro-mechanical, chemical and gaseous equipment,
machinery, appliances or devices should apply for accreditation with the
Department of Trade within ninety (90) days from the promulgation of this
decree and should apply for renewal on or before the 31st day of January of
every year thereafter. No such service or repair enterprices and technical
personnel shall be licensed or permitted to operate in the Philippines for the
first time without being accredited by the Department of Trade.

16 DTI Ministry Order No. 32, Rule III

Sec. 1. REQUIREMENTS FOR ACCREDITATION:

(1) Enterprise applying for original accreditation shall submit the following:

1.1 List of machineries/equipment/tools in useful

condition;

1.2 List of certified engineers/accredited

technicians mechanics with their personal data;
 1.3 Copy of Insurance Policy of the shop covering
the property entrusted by its customer for repair,
service or maintenance together with a copy of
the official receipt covering the full payment of
premium;

1.4 Copy of Bond referred to under Section 7,

Rule III of this Rules and Regulations;

1.5 Written service warranty in the form

prescribed by the Bureau;

1.6 Certification issued by the Securities and

Exchange Commission and Articles of
Incorporation or Partnership in case of
corporation or partnership;

1.7 Such other additional documents which the

director may require from time to time.

Sec. 8. INSURANCE POLICY

The insurance policy for the following risks like theft, pilferage, fire, flood and
loss should cover exclusively the machines, motor vehicles, heavy equipment
engines electronics, electrical, airconditioners, refrigerators, office machines,
and data processing equipment, medical and dental equipment, other
consumer mechanical and industrial equipment stored for repair and/or in the
premises of the applicant." (Emphasis supplied).

17 Cipriano v. CA, 263 SCRA 711 citing F.F. Cruz and Co., Inc. v. CA, 164 SCRA
731 and Teague v. Fernandez, 51 SCRA 181.

18 Paras, Civil Code of the Philippines, Annotated, 1989 ed., vol. II, p. 70; De
Leon, Comments and Cases on Property, 1983 ed. p. 77; See also Article 428 of
the New Civil Code which states that "The owner has the right to enjoy and
dispose of a thing, without other limitations than those established by law.

"The owner has also a right of action against the holder and possessor of the
thing in order to recover it."

CRIMINAL LAW

CASE #1:

G.R. No. L-49396 January 15, 1988

JUAN A. GOCHANGCO, HON. FELINO GARCIA, as Presiding Judge of the City Court of
Bacolod, Branch I, and DEPUTY PROVINCIAL SHERIFF JOSUE DE JOSE, petitioners,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH IV, SY HO and
MILAGROS MINORIA, respondents.
NARVASA, J.:

Application of no more than quite elementary principles governing the modes of acquisition of jurisdiction by a court over the person of a
defendant, default, substitution of parties plaintiff, judgment on the pleadings, and execution pending appeal in ejectment cases, is what is
chiefly called for in this appeal by certiorari.

These appellate proceedings had their origin in an action of unlawful detainer filed by C.N. Hodges
in the City Court of Bacolod, Branch I, docketed as Civil Case No. 2838. Hodges sought the
ejectment from certain parcels of land in Bacolod City titled in his name, of several persons, namely:
Basilicio Macanan, Gertrude Nolan, Alejandro Santiago, Jr., Sy Ho, and Milagros Minoria.  1

Macanan, Nolan and Santiago were duly served with summons. Macanan died afterwards, and
since his heirs could not be located, and hence could not be substituted in his place, the case
against him was eventually dismissed without prejudice.   Santiago and Nolan voluntarily vacated the
2

premises; so, the case was also dismissed as against them.  3

Summons was also duly served on Minoria. Although she refused to acknowledge such service, she
subsequently filed an answer to the complaint, thru counsel.  4

Sy Ho also appears to have been served with summons, service being evidenced, it is claimed, by
the return to this effect of the Provincial Sheriff.   But, as, will shortly be recounted, Sy Ho would later
5

deny such service.

Plaintiff Hodges died during the pendency of the ejectment suit; and on August 20,1964, the court-
appointed Administrator of his estate, the Philippine Commercial and Industrial Bank (PCIB), was
substituted as party plaintiff.   PCIB thereafter filed a motion to declare Sy Ho in default for failure to
6

answer the complaint. This was granted, by Order of the City Court dated February 18, 1967. Sy Ho
filed on March 2, 1967, a verified "Opposition to the Motion for Default." He alleged that he had
never received summons; apparently the summons had been served at the place where he
maintained his scrap iron business, which was not his residence and at which he had no
representative authorized to receive court processes and notices; and he prayed that 'he be allowed
to present his answer within ten (10) days and that if ever he has been already declared in default
without due service of the notice to him, the said order be lifted."   The City Court overruled his
7

opposition and refused to lift the order of default against him, these dispositions being contained in
an Order dated April 8, 1967.   And in a separate Order issued on the same date, the City Court
8

granted PCIB's motion to require Sy Ho to pay monthly rentals corresponding to the premises
occupied by him directly to it, instead of to his co-defendant, Minoria, who apparently had therefore
been acting as caretaker of the property.  9

At this point all proceedings in this ejectment suit, and another cases involving the late C. H.
Hodges, were for the most part suspended for all intents and purposes by reason of controversies as
regards the administration and hereditary rights over his not inconsiderable estate. Settlement of
these controversies did not come until some 16 or 1 7 years later when, in the decisions of this Court
in two (2) cases, dated March 29, 1974,   the heirs of C. N. Hodges and their respective counsel
10

were directed "to work together and conjointly in order to sell and dispose of for adequate
consideration, the real properties composing the intermixed assets of the said estate in favor of
Filipinos ..." Among the estate assets sold pursuant to those decisions were the lots subject of the
ejectment suit at bar. They were sold to Juan A. Gochangco for P440,000.00 on December 17,
1975, and he obtained titles over them in his name in due course. 11
Gochangco lost no time in advising Minoria and Sy Ho of his acquisition of the property and
demanding their vacation thereof.   He also filed an "Ex-Parte Motion for Substitution of Plaintiff and
12

Reception of Evidence" dated March 26, 1976, which the City Court granted by Order dated March
26, 1976.   Accordingly, Gochangco presented evidence ex-parte on March 30, 1976; this, as
13

regards Sy Ho, who had been declared in default.  14

As regards defendant Minoria, Gochangco filed on March 29, 1976 a motion for judgment on the
pleadings.   He contended that Minoria's answer failed to tender any issue because it admitted the
15

material allegations of the complaint; that her answer also failed to disclose any privity between her
and the late Manuel Moreno, whom she claimed to be co-owner of the house found on the premises
in question, or any relationship whatever between Moreno, Hodges and herself so as to substantiate
her theory that she had been properly designated caretaker of the house; that her occupation of the
house was thus by tolerance merely, and she was bound by an implied promise to vacate the same
upon demand, and her failure to do so despite demand rendered her amenable to summary
ejectment.

In his turn, Sy Ho filed a motion to set aside order of default on April 5,1976 in which he also prayed
to be allowed to present a written answer to the complaint.   To this motion he attached an "Affidavit
16

of Merits" in which he claimed that his failure to file answer to the complaint was due to the fault of
his counsel who, according to him, failed to make the "proper follow-up" of the case; and he asked to
be excused for his mistake or negligence for 'depending too much on his lawyer who formerly
handled his case."   What the City Court did was to issue subpoenae for the appearance of Minoria
17

and Sy on May 13, 1976, so that "they might have their day in Court."   But one day before his
18

scheduled appearance, or on May 12, 1976, Sy Ho filed a 15-page Motion to Dismiss the complaint
stating in substance that the complaint stated no cause of action; the case against him had not been
prosecuted for an unreasonably long span of time; and the cause of action was barred by the statute
of limitations under PD No. 20 promulgated on October 12,1972 and G.O. No. 53 promulgated on
August 21, 1975.   In the same motion he reiterated that in compliance with the Order of April 8,
19

1967, he had been paying rentals regularly and faithfully.  20

There followed various attempts by the parties, mostly on the court's initiative, to arrive at an
amicable settlement. All failed Thereafter the City Court finally rendered judgment dated February
18, 1977 ordering Sy Ho and Minoria to vacate the premises within thirty (30) days, and to pay
rentals to Gochangco at the rate of P600.00 and P50.00 a month, respectively, from date of the
decision until they shall have left the property.   Motions for reconsideration separately filed by By
21

Ho and Minoria were denied, as were also, their second motions for reconsideration.  22

On August 29, 1977, Gochangco moved for execution pending appeal. He asserted that the
judgment had become final as against Minoria, no appeal having been perfected by her within the
period therefor prescribed by law. And as regards Sy Ho, whose second motion for reconsideration
was still pending, immediate execution was proper since the judgment was against a defendant,
declared by Section 8, Rule 70 of the Rules of Court to be immediately executory.   Over the joint
23

opposition of Sy Ho and Minoria, the Court granted the motion and issued the writ of execution on
October 19, 1977.   In a 'Manifestation' dated October 25, 1975, Sy Ho stated that he had been
24

"paying a monthly rental of P110.00 monthly directly to the Clerk of Court" and that "pending the final
decision ... all (such payments should be) properly kept by the Clerk of Court.  25

Sy Ho and Minoria thereupon filed a joint petition for certiorari and prohibition with application for
preliminary injunction discretion with the Court of First Instance of Negros Occidental. This was
docketed as Civil Case No. 13484. The petition imputed grave abuse of discretion to the City Court
in denying Sy Ho's motion to set aside order of default and motion to dismiss; in granting
Gochangco's ex-parte motion to be substituted as party plaintiff; in receiving Gochangco's evidence
ex parte despite his having Med a motion for judgment on the pleadings; in authorizing immediate
execution, and in not declaring itself to be without jurisdiction in view of P.D. No. 20 and G.O. No.
53.  In the answer filed by him on requirement of the Court, Gochangco averred that the immediate
26

execution of the judgment was justified by Section 8, Rule 70 of the Rules of Court and settled
jurisprudence; that any defect in the service of summons on Sy Ho had been cured by his voluntary
appearance through submission of various pleadings, that the motion for judgment on the pleadings
was entirely correct because Minorias answer stated no affirmative defense or otherwise tendered
no issue; the declaration of default against Sy Ho was also correct under the circumstances; that the
action for certiorari could not result in an adjudication for the payment of damages since it is simply
meant to cure jurisdictional defects, which are non-existent in the case; and Sy Ho's situation is not
covered by PD No. 20 or G.O. No. 53 because he was occupying the premises in question not as a
dwelling but for purposes of his scrap iron business. 27

At the pre-trial held on February 21, 1978, Sy Ho admitted, thru counsel, that he had indeed
voluntarily appeared before the City Court and had thereby submitted himself to its jurisdiction. 
28

On August 29, 1978, judgment was rendered by the Court of First Instance granting the writ of
certiorari and annulling all the proceedings in Civil Case No. 2838 of the City Court of Bacolod.   The
29

Court said:

A fundamental tenet of procedural due process has been violated in the case under
review. Was the petitioner Sy Ho properly served with summons and complaint in
Civil Case No. 2838? The 2nd Indorsement dated June 3, 1961 signed by Pat. R.
Bravo of the Bacolod Police Department reads as follows:

Respectfully returned to the Mun. Court copy with all summons and
complaint has delivered personally to Milagros Minoria but however
she refused to sign dated 6-2-61 - 8:30 a.m.

At the bottom of this indorsement a 3rd Indorsement dated June 16, 1961 was made
by Deputy Sheriff Esmalia, which reads:

Respectfully returned to the Municipal Court, Bacolod City, the within

summons duly served as per return of service of the Chief of Police of
Bacolod City.

Now, on the basis of this indorsement this Court is not convinced that proper service
was made upon defendant Sy Ho in Civil Case No. 2838. The return of the deputy
sheriff to the effect that summons was duly served is contradicted by the return made
by Pat. R. Bravo which is the basis of the 3rd Indorsement to the effect that
summons and complaint has (sic) delivered personally to Milagros Minoria but
however she refused to sign. There is no showing at all in these endorsements that
petitioner Sy Ho himself was properly served with summons.

If petitioner Sy Ho was not properly served with summons there was no basis at all
for respondent court to declare him in default. By declaring Sy Ho in default under
the circumstances, the court acted with grave abuse of discretion. This is elementary
law too obvious to need any citation of authorities. If the declaration of default was
null and void all proceedings thereafter would be null and void. Triggered by this
illegal declaration of default, the reception of evidence ex parte before a deputy clerk
of court was null and void, not only because of the previous nullity of the declaration
of default but also because under the doctrinal rule laid down in the recent case
 of Lim Tan Hu vs. Ramolete, 66 SCRA 430, promulgated on August 29, 1975, a
Clerk of Court is not legally authorized to receive evidence ex-parte. The decision
rendered on the basis of the evidence received ex parte would logically be a nullity.
Hence, if only upon this ground alone the proceedings in the court below would be
fatally flawed. ...

The Trial Court erred. Whatever defect might have existed in the return of the service of summons
on Sy Ho was rendered inconsequential by subsequent events, duly entered in the record,
demonstrating that service of summons had indeed been effected and Sy Ho had voluntarily
submitted himself to the jurisdiction of the City Court.

Assuming it to be true, as claimed, that summons addressed to Sy Ho had been served not at his
residence but at the place where he maintained his scrap iron business, and at which he had no
representative authorized to receive court processes and notices, this would be of no moment. This
is valid service. It is expressly authorized by the Rules. It is substituted service, allowed when the
defendant cannot be served personally within a reasonable time, in which event, service may be
effected by leaving copies of the summons at defendants dwelling house or residence with some
person of suitable age and discretion then residing therein, or at his office or regular place of
business with some competent person in charge thereof.   Nor is it necessary that the person in
30

charge of the defendant's regular place of business be specially authorized to receive the summons.
It is enough that he appears to be in charge.

Sy Ho's contention that "substituted service is not allowed in ejectment cases"   is absolutely without
31

foundation. Implicit in that contention however is the acknowledgment that there had in truth been
substituted service of summons on him.

Moreover, in the Affidavit of Merits attached to his motion to set a side order of default filed on April
5, 1976,   Sy Ho attributed his failure to the answer seasonably to the fault of his counsel — who he
32

said had failed to make the "proper follow-up" — and asked to be excused for "depending too much
on his lawyer." Here is another clear admission, no less cogent because merely implied, that the
reason for his omission to answer the complaint was not really the failure of service of summons on
him but his lawyer's negligence.

The record also demonstrates that he was indeed correctly declared in default, and he failed to
adduce any tenable grounds for the setting aside of that declaration. He did fail to answer the
complaint within the reglementary period therefor prescribed, and proof of such failure had in due
course been adduced.   And even if that failure may in truth be blamed on his lawyer, there is
33

nothing in the record excusing that negligence, or showing fraud, accident or mistake warranting the
Court's setting aside of the order of default. 
34

In any case, Sy Ho never really pressed the issue of the efficacy of service of summons on him with
vigor or persistence Instead, he submitted himself to the Court's jurisdiction. His submission to the
Court's jurisdiction is necessarily inferred from his act of request for leave to present his answer to
the complaint,   of voluntarily complying with the City Court's Order for the payment of rentals, and
35

filing various other motions and pleadings.   There is, too, his counsel's admission already adverted
36

to, that Sy Ho had really submitted himself to the City Court's jurisdiction.   There can thus be no
37

debate about the proposition that jurisdiction of his person had been acquired by the City court by
his voluntary appearance and acquiescence.  38

The record furthermore discloses that the prejudice to Sy Ho occasioned by the declaration of
default against him was nominal and minimal. For his default notwithstanding, he was in fact able
fully and exhaustively to present his side to the Court. He submitted his defenses to the action to the
Court. This he did by filing a Motion to dismiss setting up said defenses,   and presenting two (2)
39

motions for reconsideration of the City Court's decision, urging and arguing those same
defenses.   And the record shows that these defenses were duly considered and dealt with in the
40

judgment of the City Court.  41

Withal, an analysis of those defenses reveals their lack of merit. The assertion, for instance, that the
complaint falls to state a cause of action is incorrect; an examination of the complaint shows that it
does set out the ultimate facts constituting causes of action for ejectment.   The assertion that the
42

action had not been prosecuted for an unreasonably long period of time is without merit since as
shown by the record, the delay was not due to the fault or negligence of the plaintiff, but to
circumstances beyond control. The claim that the action for ejectment is barred under PD 20 and
GO 53 is also untenable, since it is not disputed that Sy Ho is being ejected, not from his residence
but from his place of business. In the light of these considerations, it would be inutile to set aside the
order of default against Sy Ho, assuming there were basis therefor, to give him opportunity to
appropriately plead and present evidence on his aforesaid defenses which cannot be sustained
anyway and are on their face unmeritorious.  43

The substitution of parties plaintiff effected in this case was also proper. Here, the original plaintiff
died pending trial. He was substituted by the administrator of his estate, duly appointed by
competent judicial authority. This substitution was entirely correct, mandated in fact by Section 17, in
relation to Section 3, Rule 3 of the Rules of Court.   On the other hand, Gochangco's substitution as
44

party plaintiff in place of the administrator was also appropriate. Gochangco had purchased the
property of the decedent involved in the ejectment suit. He therefore became a real party in interest
in that action, replacing the estate, or the heirs, and his replacement of the latter was fully justified by
Section 2, Rule 3 requiring actions to be prosecuted in the name of the real party in interest, and
defining a party plaintiff as one "having an interest in the subject of the action and in obtaining the
relief demanded,"   as well as Section 20, of the same rule providing that in case of any transfer of
45

interest, the action may be continued by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the action or joined with the
original party. 46

Also correct was the rendition of judgment on the pleadings as against Minoria. Minoria's answer
admitted the material averments of the complaint and failed to include allegations establishing her
claim for compensation as being, supposedly, the authorized caretaker of the house. Judgment on
the pleadings was therefore properly rendered on plaintiff's motion. It is sanctioned by Section 1,
Rule 19 of the Rules of court, which provides that "(w)here an answer fails to tender an issue or
otherwise admits the material allegations or admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment on such pleading."  47

The propriety of the order authorizing execution of the ejectment judgment against the defendants
also cannot be gainsaid. The order is squarely within the provisions of Section 8, Rule 70 which
declares that "(i)f judgment is rendered against the defendant, execution shall issue immediately,
unless an appeal has been perfected and the defendant, to stay execution, files a sufficient bond
approved by the justice of the peace or municipal court and executed to the plaintiff to enter the
action in the Court of First Instance and to pay the rents, damages, and costs accruing down to the
time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with
the appellate court the amount of rent due from time to time under the contract, if any, as found by
the judgment of the justice of the peace or municipal court to exist. ..."   There is no showing that Sy
48

Ho had taken these requisite steps to stay execution of the judgment.

The respondent Court also declared null and void 'the reception of evidence ex parte before ... (the)
deputy clerk of court." It invoked what it termed 'the doctrinal rule laid down in the recent case of Lim
Tan Hu vs. Ramolete, 66 SCRA 430, promulgated on August 29, 1975 (inter alia declaring that) a
Clerk of Court is not legally authorized to receive evidence ex-parte.  49

Now, that declaration does not reflect long observed and established judicial practice with respect to
default cases. It is not quite consistent, too, with the several explicitly authorized instances under the
Rules where the function of receiving evidence and even of making recommendatory findings of
facts on the basis thereof may be delegated to commissioners, inclusive of the Clerk of Court. These
instances are set out in Rule 33, treating of presentation of evidence before commissioners, etc., in
particular situations, such as when the trial of an issue of fact requires the examination of a long
account, or when the taking of an account is necessary for the information of the court, or when
issues of fact arise otherwise than upon the pleadings or while carrying a judgment or order into
effect;   Rules 67 and 69, dealing with submission of evidence also before commissioners in special
50

civil actions of eminent domain and partition, respectively; Rule 86 regarding trials of contested
claims in judicial proceedings for the settlement of a decedent's estate; Rule 136 empowering the
clerk of court, when directed by the judge inter alia to receive evidence relating to the accounts of
executors, administrators, guardians, trustees and receivers, or relative to the settlement of the
estates of deceased persons, or to guardianships, trusteeships, or receiverships. In all these
instances, the competence of the clerk of court is assumed. Indeed, there would seem, to be sure,
nothing intrinsically wrong in allowing presentation of evidence ex parte before a Clerk of
Court.   Such a Procedure certainly does not foreclose relief to the party adversely affected who, for
51

valid cause and upon appropriate and seasonable application, may bring about the undoing thereof
or the elimination of prejudice thereby caused to him; and it is, after all, the Court itself which is duty
bound and has the ultimate responsibility to pass upon the evidence received in this manner,
discarding in the process such proofs as are incompetent and then declare what facts have thereby
been established. in considering and analyzing the evidence preparatory to rendition of judgment on
the merits, it may not unreasonably be assumed that any serious error in the ex-parte presentation
of evidence, prejudicial to any absent party, will be detected and duly remedied by the Court, and/or
may always, in any event; be drawn to its attention by any interested party. As observed by the late
Chief Justice Fred Ruiz Castro —  52

No provision of law or principle of public policy prohibits a court from authorizing its
clerk of court to receive the evidence of a party litigant. After all the reception of
evidence by the clerk of court constitutes but a ministerial task — the taking down of
the testimony of the witnesses and the marking of the pieces of documentary
evidence, if any, adduced by the party present. This task of receiving evidence
precludes, on the part of the clerk of court, the exercise of judicial discretion usually
called for when the other party who is present objects to questions propounded and
to the admission of the documentary evidence preferred (Wack Wack Golf and
country Club, inc. vs. court of Appeals, 106 Phil. 501). More importantly, the duty to
render judgment on the merits of the case still rests with the judge who is obliged to
personally and directly prepare the decision based upon the evidence reported
(Province of Pang vs. Palisoc, 6 SCRA 299).

The underlying philosophy of the doctrine of default is that the defendant's failure to answer the
complaint despite receiving copy thereof together with summons, is attributable to one of two
causes: either (a) to his realization that he has no defenses to the plaintiffs cause and hence
resolves not to oppose the complaint, or, (b) having good defenses to the suit, to fraud, accident,
mistake or excusable negligence which prevented him from seasonably filing an answer setting forth
those defenses,.   It does make sense for a defendant without defenses, and who accepts the
53

correctness of the specific relief prayed for in the complaint, to forego the filing of the answer or any
sort of intervention in the action at all. For even if he did intervene, the result would be the same:
since he would be unable to establish any good defense, having none in fact, judgment would
inevitably go against him. And this would be an acceptable result, if not being in his power to alter or
prevent it, provided that the judgment did not go beyond or differ from the specific relief stated in the
complaint.   It would moreover spare him from the embarrassment of openly appearing to defend the
54

indefensible. On the other hand, if he did have good defenses, it would be unnatural for him not to
set them up properly and timely, and if he did not in fact set them up, it must be presumed that some
insuperable cause prevented him from doing so: fraud, accident, mistake, excusable negligence. In
this event, the law will grant him relief, and the law is in truth quite liberal in the reliefs made
available to him: a motion to set aside the order of default prior to judgment;   a motion for new trial
55

to set aside the default judgment;   an appeal from the judgment by default even if no motion to set
56

aside the order of default or motion for new trial had been previously presented;   a special civil
57

action for certiorari impugning the court's jurisdiction. 

58

A defendant in default is not and should not be placed in a situation more favorable than a defendant
who has answered but who fails to appear for trial despite notice. In the latter case, as in the former,
the trial may proceed ex parte,   but is not invalidated by the fact merely that reception of evidence
59

had been undertaken by the clerk of court on the Court's instructions; this, despite the fact that the
judgment that may be rendered on the basis of such an ex parte trial may award reliefs exceeding
the amount or different from that, prayed for in the complaint, unlike a judgment by default which
cannot differ from or go beyond what is set down in the prayer of the complaint.

It was therefore error for the Court a quo to have declared the judgment by default to be fatally
flawed by the fact that the plaintiffs evidence had been received not by the Judge himself but by the
clerk of court.

One last word. The City Court and City Sheriff were impleaded as parties petitioners in the petition at
bar. This is incorrect. They are not proper parties. They do not have — and should not have — any
interest in the subject of the instant proceedings, either in obtaining any relief in respect thereto of
any nature whatsoever, or in the success of the petitioner. Only Gochangco is the proper party
petitioner.

WHEREFORE, the judgment of the Court of First Instance of August 29, 1978 is reversed and set
aside, and that of the City Court dated February 18, 1977 reinstated and affirmed in toto. Costs
against private respondents.

Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

CASE #2:

G.R. No. L-6184             February 28, 1958

VICENTE SANTANDER, the heirs of the late FORTUNATA VILLINISO named CONSTANCIO,
MATIAS, GENOVEVA, PAZ, JOSE, IRENEO, and ANATALIA all surnamed SANTANDER and
CRISPULO TAJANLANGIT, plaintiffs-appellants,
vs.
MANUEL VILLANUEVA and CELEDONIA ASUNCION, defendants-appellees.

Abelardo Aportadera for appellants

Primitivo C. Buagas for appellees.

REYES, J.B.L., J.:
On July 29, 1937, a homestead patent covering a tract of land of over six hectares situated in the
Municipality of Midsayap, Province of Cotabato, was granted to appellant Vicente Santander,
married to Fortunata Villiniso, and on July 8, 1938, Original Certificate of Title No. 1497 was issued
to Santander by the Register of Deeds of Cotabato.

On February 26, 1942, Santander signed a document purporting to be an absolute sale of a two-
hectare portion of his homestead to Celedonia Asuncion, married to Manuel Villanueva, for price of
P480 (Exhibit "I"). It was expressly stipulated in the deed that the conveyance was to become
effective only after the approval of the authorities concerned. Possession of the land conveyed was,
upon execution of the document, transferred to the buyer.

Seven years later, on November 2, 1948, Santander and his children (as the heirs of his deceased
wife) commenced this action in the court below against Celedonia Asuncion Manuel Villanueva, to
recover the two-hectare portion of Santander's homestead in defendants' possession, on the theory
that the land was transferred to Asuncion only in mortgage to secure loan of P180 obtained from her
by Santander way back in June, 1940, and offering to pay defendants the alleged loan. Defendants
answered, denying the allegations of the complaint, and claiming to have purchased the land in
question from Santander on February 26, 1942 by virtue of the deed of sale Exh. "1", and that said
sale had already been approved by the Secretary of Agriculture and Commerce on August 2, 1947
(Exhs. "3" and "3-A") (copies of Exhs. "1" and "3-A" were attached to the answer). Confronted with
the deed of sale Exh. "1" and the corresponding approval of the Secretary of Agriculture and
Commerce, plaintiffs amended their complaint alleging that the deed of sale Exh. "1" is false and
does not express the true intent and agreement of the parties and that, in any case, said sale is null
and void, having been executed within five years from the issuance of Santander's patent.
Defendants filed an amended answer, insisting on the validity of the sale Exh. "1" in view of the
subsequent approval thereof by the Secretary of Agriculture and Commerce.

After trial, the lower court rendered judgment, finding the sale Exh. "1" to be genuine and to have
been executed by plaintiff Santander with full knowledge of its contents; but that as said sale was
made within the prohibitive period of five years under section 118 of Commonwealth Act No. 141,
the same is null and void. The court, however, likewise found that the value of the property in
question had increased many-fold since the time Santander executed Exh. "1", because of the
expansion of the poblacion of Midsayap and the change in kind of the land in question from rural to
urban; and that Santander had embarked on a venture of speculation, and that his evident purpose
in recovering the property from defendants was merely to resell the same at fabulous profits.
Wherefore, the lower court declared that plaintiffs could repurchase the land in question from
defendants, but at its present value of P60,000 or at the rate of P3.00 per quare meter; and
furthermore recommended to the Director of Lands the cancellation of Santander's patent.

On appeal to this Court, plaintiffs and appellants raise a single question of law, namely:

THE LOWER COURT ERRED IN ORDERING THE PLAINTIFFS AND APPELLANTS TO

PAY DEFENDANTS AND APPELLEES THE SUM OF SIXTY THOUSAND PESOS
(P60,000.00) AS THE ALLEGED REPURCHASE PRICE OF THE LITIGATED PORTION OF
TWO HECTARES OF LAND WHICH FORMS PART OF THE HOMESTEAD OF SAID
APPELLANTS, NOTWITHSTANDING THE FACT THAT IT PRONOUNCE THE NULLITY
AND INVALIDITY OF THE DEED OF SALE (EXH. "1") INVOLVING SAID PORTION AND
NOTWITHSTANDING FURTHER THE FACT THAT THE STIPULATED CONSIDERATION
THEREOF IS ONLY FOUR HUNDRED EIGHTY (P480.00) PESOS.

There is no question that the sale Exh. "1" was made within five years from the issuance of appellant
Santander's homestead patent on July 29, 1937. It has been the consistent ruling of this Court that
conveyances of homestead of this nature are null and void from inception (Eugenio vs. Perdido, 97
Phil., 41; Acierto vs. De los Santos, 95 Phil., 887; De los Santos vs. Roman Catholic Church of
Midsayap, 94 Phil., 405; 50 Off. Gaz., No. 4, 1588; and others); and in line with this precedent, the
document Exh. "1" must be declared null and void, and the land conveyed ordered returned to
appellants upon their return to appellants of the purchase price of P480.00.

The subsequent approval of the conveyance by the Secretary of Agriculture and Natural Resources
on August 2, 1947 could not have validated a sale that was void from its inception. As we have held
in the case of De los Santos vs. Roman Catholic Church of Midsayap, supra, and Pascua vs.
Talens, 80 Phil., 792; 45 Off. Gaz., No. 9 (Supp.), 413, the provisions of law which prohibits the sale
or encumbrance of the homestead within five years after the grant of the patent is mandatory, and
can not be obviated even if official approval is granted beyond the expiration of the period. Besides,
the approval of the Secretary of Agriculture and Commerce (Exhs. "3" and "3-A") appears to have
been given upon the erroneous assumption that the patent was issued in 1936, in which case said
sale would have been executed after five years from the date of Santander's patent and no longer
prohibited by law. The truth, however, is that Santander's patent was issued on July 29, 1937, and
the sale Exh. "1" was made on February 26, 1942, or within five years from the date of the patent.
The approval of the Secretary was, therefore, based on a mistake of fact, and such is likewise void
and of no effect whatsoever.

The next point is whether, having held that the sale in question is null and void, the lower court erred
in ordering appellants to repurchase the land in question from appellees at the price of P60,000,
which it found to be the present value of the property. In condemning appellants to repurchase at
this price, the lower court had a dual objective: to penalize appellants whom it found to have
embarked in a venture of speculation over the homestead in question, and to set a precedent to
those who may commit similar violations of the law in the future.

We agree with the court below that appellants should not be allowed to take advantage of the
salutary policy behind the Public Land Law to enable them to recover the land in question from
appellees only to dispose of it again at much greater profit to themselves. But we find no legal
sanction for the judgment of the lower court requiring appellants to repurchase from appellees, and
at the property's present value. The sale to appellees being null and void ab initio, appellants never
ownership over the land in question, and appellees' right is reduced to nothing more than to recover
the price paid by them for said land, which is only P480. No other relief may be given appellees in
this case, for they were themselves in pari delicto with homesteader Santander in buying from him
land which they should have known could not be legally disposed of on the date of the sale in their
favor.

In view, however, of the findings of the court below against appellant Santander, we find it
appropriate, as said court has done, to refer this case to the Director of Lands for investigation and
forfeiture of Vicente Santander's homestead under sec. 124 of the Public Land Law, if the facts
found would warrant such forfeiture.

Wherefore, the decision appealed from is modified in the sense that plaintiffs and appellants are
ordered to return to appellees the sum of P480, and appellees in turn to restore appellants in the
possession of the land in question. In all other respects, the judgment appealed from is affirmed. No
costs. So ordered.

Paras, C.J., Bengzon. Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia,
JJ., concur.
CASE #3:

G.R. No. L-34022 March 24, 1972

MANUEL MARTINEZ Y FESTIN petitioner,

vs.
THE HONORABLE JESUS P. MORFE OF THE COURT OF FIRST INSTANCE OF MANILA, and
THE CITY WARDEN OF MANILA, respondents.

G.R. Nos. L-34046-7 March 24, 1972

FERNANDO BAUTISTA, SR., petitioner,

vs.
HON. FRANCISCO MA. CHANCO, Presiding Judge, Court of First Instance of Baguio and
Benguet, Second Judicial District, Branch III, et al., respondents.

Estanislao A. Fernandez, Amelito Mutuc, Reynaldo Villar, Alberto K. Jamir Anacleto Badoy, Jr.,
Emmanuel Santos, Sedfrey Ordoñez, Antonio Tupaz, Arturo Pacificador, Dominador F. Carillo,
Antonio Borromeo, Augusto Cesar Espiritu, Dandy K. Tupaz and Eugene A. Tan for petitioner
Manuel Martinez Y Festin.

Remulla, Perez and Estrella, Fernando P. Cabato and Gaudencio N. Floresca for petitioner
Fernando Bautista Sr.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Bernardo P. Pardo,
Assistant Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza for respondents
Judges.

Kaulayao V. Faylona, Manuel Imbong, Jacobo Gonzales, Fernando P. Camaya, Jose Tablizo,
Romeo Kahayon and Tomas P. Matic, Jr. for respondents Pulido and Tamayo.

FERNANDO, J.:p

The question raised in these certiorari proceedings, one to which no authoritative answer has been yielded by past decisions, is the scope to
be accorded the constitutional immunity of senators and representatives from arrest during their attendance at the sessions of Congress and
in going to and returning from the same except in cases of treason, felony and breach of the peace.1 Petitioners Manuel Martinez y
Festin2 and Fernando Bautista, Sr.,3 as delegate of the present Constitutional Convention would invoke what they consider to be the
protection of the above constitutional provision, if considered in connection with Article 145 of the Revised Penal Code penalizing a public
officer or employee who shall, during the sessions of Congress, "arrest or search any member thereof, except in case such member has
committed a crime punishable under [such] Code by a penalty higher than prision mayor."4 For under the Constitutional Convention
Act,5 delegates are entitled to the parliamentary immunities of a senator or a representative.6 Both petitioners are facing criminal
prosecutions, the information filed against petitioner Manuel Martinez y Festin for falsification of a public document and two informations
against petitioner Fernando Bautista, Sr. for violation of the Revised Election Code. The Solicitor General, on behalf of the respondent
Judges in the above proceedings,7 would dispute such a contention on the ground that the constitutional provision does not cover any
criminal prosecution being merely an exemption from arrest in civil cases, the logical inference being that insofar as a provision of the
Revised Penal Code would expand such an immunity, it would be unconstitutional or at the very least inoperative. A careful study of the
above constitutional provision, in the light of the proceedings of the Constitutional Convention, adopting the then well-settled principle under
American law and of the purposes to be served by such an immunity, persuade us that the stand taken by the Solicitor General is correct.
These certiorari proceedings cannot prosper.

The facts in both petitions for certiorari are not in dispute. Petitioner Martinez y Festin  alleged that 8

on June 10, 1971, an information against him for falsification a public document was filed. Its basis
was his stating under oath in his certificate of candidacy for delegate to that Constitutional
Convention that he was born on June 20, 1945, when in truth and in fact he knew that he was born
on June 20, 1946. There was on July 9, 1971, a special appearance on his part questioning the
power of respondent Judge to issue a warrant of arrest and seeking that the information be quashed.
On the same day, there was an order from the lower court suspending the release of the warrant of
arrest until it could act on such motion to quash. Then came on July 22, 1971 an omnibus motion
from him, with previous leave of court, to quash the information, to quash the warrant of arrest, or to
hold in abeyance further proceeding in the case. It was not favorably acted on. On August 21, 1971,
respondent Judge rendered an order denying the petitioner omnibus motion to quash. In his belief
that the information and the warrant of arrest in this case are null and void, the petitioner did not post
the required bond. He was arrested by the City Sheriff in the afternoon of September 6, 1971. At the
time of the filing of the petition he was confined at the City Jail in the custody of respondent City
Warden of Manila. He was on his way to attend the plenary session of the Constitutional Convention.
Such arrest was against his will and over his protest. He was arraigned on September 9, 1971.
There was at such a time a motion by petitioner to reconsider the court's order of August 21, 1971. It
was denied in open court. On the very same day, he filed the petition for certiorari and habeas
corpus, but having been released thereafter on bail on September 11, 1971, the petition is now in
the nature solely of a certiorari proceeding. 9

As for petitioner Fernando Bautista, Sr.,   it was alleged that he is a duly elected and proclaimed
10

delegate to the 1971 Constitutional Convention. He took his oath of office and assumed the
functions of such office on June 1, 1971. He has continued since then to perform the duties and
discharge the responsibilities of a delegate. Two criminal complaints, docketed as Criminal Cases
Nos. 146(57) and 148(58), were directly filed with the Court of First lnstance of Baguio and Benguet
by a certain Moises Maspil, a defeated delegate-aspirant who placed 15th in the order of votes
garnered against the petitioner, and his co-accused for alleged violation of Section 51 of the Revised
Penal Code in that they gave and distributed free of charge food, drinks and cigarettes at two public
meetings, one held in Sablan and the other in Tuba, both towns being in Province of Benguet.
Respondent Presiding Judge conducted the preliminary investigation of said criminal complaints.
Thereafter on August 7, 1971, he issued an order for the filing of the corresponding informations.
Before a warrant of arrest in said criminal cases could be issued, petitioner in a motion of August 14,
1971 invoked the privilege of immunity from arrest and search, pursuant to Section 15 of Republic
Act No. 6132, otherwise known as the 1971 Constitutional Convention Act, in relation to Sec. 15,
Article VI of the Constitution and Article 145 of the Revised Penal Code. Respondent Judge, on the
very same day, issued an order, holding in abeyance the issuance of a warrant of arrest and setting
the hearing of said Motion on August 23, 1971. As scheduled on August 23, 1971, there was a
hearing on such motion. Petitioner however did not prevail notwithstanding his vigorous insistence
on his claim for immunity, a warrant of arrest being ordered on the same day. On September 11,
1971, there was a motion to quash such order of arrest filed by petitioner. He was unsuccessful,
respondent Judge, in an order of said date, ordering his immediate arrest. His petition
for certiorari and prohibition was filed with this Court on September 15, 1971.  11

What is thus sought by petitioners Martinez y Festin and Bautista, Sr. is that the respective warrants
of arrest issued against them be quashed on the claim that by virtue of the parliamentary immunity
they enjoy as delegates, ultimately traceable to Section 15 of Article VI of the Constitution as
construed together with Article 145 of the Revised Penal Code, they are immune from arrest. In the
case of petitioner Martinez y Festin, he is proceeded against for falsification of a public document
punishable by prision mayor.   As for petitioner Bautista, Sr., the penalty that could be imposed for
12

each of the Revised Election Code offense, of which he is charged, is not higher than prision
mayor. 13

The respondents in the above petitions were required to answer by resolutions of this Court issued
on September 10 and September 20, 1971, respectively. An answer on behalf of respondent Judge
Jesus P. Morfe in the case of petitioner Martinez y Festin was filed on September 20, 1971 with an
answer in intervention filed by respondent Executive Sheriff of Manila and the Chief of Warrant
Division likewise filed on the same date. His petition was duly heard on September 14, 1971,
Delegate Estanislao A. Fernandez vehemently pressing his claim to immunity. Thereafter on
October 29, 1971, a memorandum, comprehensive in scope and persuasive in its analysis of the
constitutional question presented, was filed on behalf of respondent Judge Morfe by Solicitor
General Felix Q. Antonio, two Assistants Solicitors General Bernardo P. Pardo and Rosalio A. de
Leon as well as Solicitor Vicente V. Mendoza. A memorandum on behalf of President Diosdado
Macapagal of the Constitutional Convention, who was given permission to submit such a pleading,
was submitted on March 8, 1972 by the Committee on Legal Affairs of the Constitutional
Convention.  14

As for the petitions of Bautista, Sr., the answer on behalf of respondent Judge was filed on
September 29, 1971. When the matter was heard on October 14, 1971, he appeared through
counsel, Delegate Juanito R. Remulla, while respondent Judge was represented by Assistant
Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza. With the submission, on
October 30, 1971, of an able memorandum on behalf of respondent judge, again, by the same
counsel from the Office of the Solicitor General as well as a carefully-prepared memorandum of
petitioner Bautista, Sr., on December 1, 1971, the matter was deemed submitted for adjudication.

As noted at the outset, certiorari does not lie to quash the warrants of arrest issued against
petitioner Martinez y Festin as well as petitioner Bautista, Sr. Their reliance on the constitutional
provision which for them should be supplemented by what was provided for in the Revised Penal
Code is futile. There is no justification then for granting their respective pleas.

No other conclusion is allowable consistently with the plain and explicit command of the Constitution.
As is made clear in Section 15 of Article VI, the immunity from arrest does not cover any prosecution
for treason, felony and breach of the peace. Treason exists when the accused levies war against the
Republic or adheres to its enemies giving them aid and comfort.   A felony is act or omission
15

punishable by law.   Breach of the peace covers any offense whether defined by the Revised Penal
16

Code or any special statute. It is a well-settled principle in public law that the public peace must be
maintained and any breach thereof renders one susceptible to prosecution. Certainly then from the
explicit language of the Constitution, even without its controlling interpretation as shown by the
debates of the Constitutional Convention to be hereinafter discussed, petitioners cannot justify their
claim to immunity. Nor does Article 145 of the Revised Penal Code come to their rescue. Such a
provision that took effect in 1932 could not survive after the Constitution became operative on
November 15, 1935. As will be shown, the repugnancy between such an expansion of the
congressional immunity and the plain command of the Constitution is too great to be overcome,
even on the assumption that the penalty to which a public officer will be subjected in the event that
he did arrest one entitled thereto for an offense punishable by less than reclusion temporal suffices
to widen its scope. This is so considering not only the history of such a Constitutional grant of
immunity but also its basic purpose and objective.

1. Even if the provision granting the legislative immunity of freedom from arrest were clothed in
language less clear, its history precludes any other interpretation. As submitted to the Constitutional
Convention of 1934, the draft proposal was worded as follows: "The Members of the National
Assembly shall in all cases except treason, open disturbance of public order, or other offense
punishable by death or imprisonment of not less than six years, be privileged from arrest during their
attendance at the sessions of the National Assembly, and in going to and returning from the same."
On December 4, 1934, upon its being considered by the Convention, an amendment was proposed
by Delegate Aldeguer so that it would read: "The Members of the National Assembly shall in all
cases except treason, felony, and breach of the peace, be privileged from arrest during their
attendance at the sessions of the National Assembly, and in going and returning from the same."
What was sought by him was to retain the provision of the Philippine Autonomy Act of 1916, with
phraseology identical to that found in the American Constitution.

He defended his proposal thus: "My amendment is not new. It is the same phrase granting
parliamentary immunity to the members of the Parliament of England. It is the same phrase granting
parliamentary immunity to members of Congress. It is the same phrase granting parliamentary
immunity to members of the various state legislators of the Union. Now, in reading the draft
proposed by the Sub-Committee of Seven, I found out that it is a broad rule. Mr. President, the
question is not whether we should grant privilege of immunity to the members of the National
Assembly ... "   He was interrupted by a point of order raised, but he was allowed to continue. He
17

went on: "As I was saying, Mr. President and Gentlemen of the Convention, the draft gives to the
member of the National Assembly more privileges than what the nature of the office demands. My
question is that if the members of the Congress of the United States, if the members of the
Parliament, if the members of the various State Legislatures were able to perform their functions as
members of law-making bodies with the privileges and immunities granted by the phrase "breach of
peace." I wonder why the members of the future National Assembly cannot perform their duties with
the same limitations and with the same privileges. Mr. President and members the Convention, the
history of parliamentary immunity shows that it was never intended to exempt members of the
National Assembly from criminal arrest. When American sovereignty was implanted into these
Islands, a new theory of government was implanted too. This theory of government places every
man equal before the eyes of the law. The grant of certain privileges to any set of persons means
the abrogation of this principle of equality before the eyes of the law. Another reason, Mr. President
and Members of the Convention, is this: The State Legislature is the agent of the State. The power
or the right of the Legislature to claim privileges is based on the right of self-preservation. The right
of the State to claim privileges is due to the fact that it has the right to carry its function without
obstacle. But we must also remember that any Legislature is but the agent of the State. The State is
the principal. Any crime committed, whether such crime is committed by a colorum or by a gangster,
endangers the State. Giving more privileges to an agent, which is the Legislature, at the expense of
the principal, which is the State, is not a sound policy. So that, Mr. President, and Members of the
Convention, believing that under the phrase "breach of peace", our future members of the Assembly
can very well perform the duties incumbent upon them. I submit my amendment for the
consideration of this Convention."  18

Delegate Manuel Roxas on behalf of the sub-committee of seven did not object. As a matter of fact,
he was for such amendment. He considered it "well-founded" and was for such immunity complying
"with the wording of the [Philippine Autonomy Act] in this particular."   The Convention readily
19

approved the amendment by acclamation.

It does not admit of doubt therefore that the immunity from arrest is granted by the Constitution was
understood in the same sense it has in American law, there being a similar provision in the American
Constitution.   Its authoritative interpretation in the United States was supplied by the Williamson
20

case, a 1908 decision.  21

According to the then Justice, later Chief Justice, White who penned the opinion, "the term "treason,
felony and breach of the peace," as used in the constitutional provision relied upon, excepts from the
operation of the privilege all criminal offenses, ... "   He traced its historical background thus: "A brief
22

consideration of the subject of parliamentary privilege in England will, we think, show the source
whence the expression "treason felony, and breach of the peace" was drawn, and leave no doubt
that the words were used in England for the very purpose of excluding all crimes from the operation
of the parliamentary privilege, and therefore to leave that privilege to apply only to prosecutions of a
civil nature."   Story's treatise on the Constitution was likewise cited, his view on the matter being
23

quite emphatic: "Now, as all crimes are offenses against the peace, the phrase "breach of the
peace" would seem to extend to all indictable offenses, as well those which are in fact attended with
force and violence, as those which are only constructive breaches of the peace of the government,
inasmuch as they violate its good order."  24

As far as American constitutional law is concerned, both Burdick   and Willoughby   could use
25 26

practically identical appraising such immunity, the former stating that it "is not now of great
importance" and the latter affirming that it "is of little importance as arrest of the person is now
almost never authorized except for crimes which fall within the classes exempt from the priviledge."
The state of the American law on this point is aptly summarizedby Cooley: "By common
parliamentary law, the members of the legislature are privileged from arrest on civil process during
the session of that body, and for a reasonable time before and after, to enable them to go to and
return from the same."  A prosecution for a criminal offense, is thus excluded from this grant of
27

immunity. So it should be Philippine law, if deference were to be paid to what was explicitly agreed
upon in the Constitutional Convention.

2. Would it make a difference however in the availability of the writs of certiorari sought by

petitioners considering that Article 145 of the Revised Penal Code would impose upon any public
officer or employee who shall, while the Congress is in regular or special session, arrest or charge
any member thereof except in case such member has committed a crime punishable by penalty
higher than prision mayor?   The assumption here indulged is that the effect of the above in the
28

Revised Penal Code was to expand the grant of parliamentary immunity under the Philippine
Autonomy Act, although its literal language does not go that far. It is to be remembered, however,
that it took effect on January 1, 1932 before the enforcement of the present Constitution in 1935.
Considering that both under the then organic law, the Philippine Autonomy Act and equally so under
the present Constitution, such a more generous treatment accorded legislators exempting them from
arrest even if warranted under a penal law, the question as to whether it did survive becomes
unavoidable. It is our opinion that the answer must be in the negative.

The Constitution is equally explicit on the following point: "All laws of the Philippine Islands shall
continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such
laws shall remain operative, unless inconsistent with this Constitution until amended, altered,
modified, or repealed by the Congress of the Philippines, and all references in such laws to the
government or officials of the Philippines shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this Constitution."   In People v. Linsangan   decided
29 30

in December, 1935, barely a month after the Constitution took effect, the continued applicability of
Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who
remains delinquent in the payment of cedula tax,   this Court, in its opinion thru the pen of the then
31

Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the
imprisonment for debt on non-payment of poll tax,   held: "It seems too clear to require
32

demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1,
clause 12, of Article III of the Constitution in that, while the former authorizes imprisonment for non-
payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the
Government of the Commonwealth, said section 2718 of the Revised Administrative Code became
inoperative, and no judgment of conviction can be based thereon."  33

So it was in De los Santos v. Mallare.   Again under the provision of the Revised Administrative
34

Code the President could remove at pleasure any of the appointive officials under the Charter of the
City of Baguio.   Relying on such a provision, the then President Quirino removed petitioner De los
35

Santos who was appointed City Engineer Baguio of on July 16, 1946, and chose in his place
respondent Gil R. Mallare. The Revised Administrative Code was a legislation that dates back to
1917,   eighteen years before the Constitution prohibited any officer or employee in the civil service
36

being removed or suspended except for cause as provided by law.   Again this Court, in the light of
37
aforecited provision in an opinion of Justice Tuason, held: "So, unlike legislation that is passed in
defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the court to put it out
of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute
book by the Constitution itself by express mandate before the petitioner was appointed."   In the
38

language of the constitutional provision then that portion of Article 145 penalizing a public official or
employee who shall while the Congress is in regular or special session arrest or search any member
thereof except in case he has committed a crime punishable under the Revised Penal Code by a
penalty higher than prision mayor is declared inoperative.

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There
is, to be sure, a full recognition of the necessity to have members of Congress, and likewise
delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to
discharge their vital responsibilities, bowing to no other force except the dictates of their conscience.
Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom
from arrest, however, it would amount to the creation of a privileged class, without justification in
reason, if notwithstanding their liability for a criminal offense, they would be considered immune
during their attendance in Congress and in going to and returning from the same. There is likely to
be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently
and well, without the need for any transgression of the criminal law. Should such an unfortunate
event come to pass, he is to be treated like any other citizen considering that there is a strong public
interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that
the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it
suffices to answer that precisely all the safeguards thrown around an accused by the Constitution,
solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of
power. The presumption of course is that the judiciary would main independent. It is trite to say that
in each and every manifestation of judicial endeavor, such a virtue is of the essence.

WHEREFORE, the petition for certiorari and habeas corpus by Delegate Manuel Martinez by Festin
in L-34022 and the petitions for certiorari and prohibition by Delegate Fernando Bautista, Sr. in L-
34046 and L-34047 are hereby dismissed. Without pronouncement as to costs.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Concepcion, C.J., concurs in the result.