G.R. No.

L-6339             April 20, 1954

MANUEL LARA, ET AL., plaintiffs-appellants,

vs.
PETRONILO DEL ROSARIO, JR., defendant-appellee.

Manansala and Manansala for appellants.

Ramon L. Resurreccion for appellee.

MONTEMAYOR, J.:

In 1950 defendant Petronilo del Rosario, Jr., owner of twenty-five taxi cabs or cars, operated a taxi
business under the name of "Waval Taxi." He employed among others three mechanics and 49
chauffeurs or drivers, the latter having worked for periods ranging from 2 to 37 months. On
September 4, 1950, without giving said mechanics and chauffeurs 30 days advance notice, Del
Rosario sold his 25 Waval Taxi units or cabs to La Mallorca, a transportation company, as a result of
which, according to the mechanics and chauffeurs above-mentioned they lost their jobs because the
La Mallorca failed to continue them in their employment. They brought this action against Del
Rosario to recover compensation for overtime work rendered beyond eight hours and on Sundays
and legal holidays, and one month salary (mesada) provided for in article 302 of the Code of
Commerce because the failure of their former employer to give them one month notice.
Subsequently, the three mechanics unconditionally withdrew their claims. So only the 49 drivers
remained as plaintiffs. The defendant filed a motion for dismissal of the complaint on the ground that
it stated no cause of action and the trial court for the time being denied the motion saying that it will
be considered when the case was heard on the merits. After trial the complaint was dismissed.
Plaintiffs appealed from the order of dismissal to the Court of Appeals which Tribunal after finding
only questions of law are involved, certified the case to us.

The parties are agreed that the plaintiffs as chauffeurs received no fixed compensation based on the
hours or the period of time that they worked. Rather, they were paid on the commission basis, that is
to say, each driver received 20 per cent of the gross returns or earnings from the operation of his
taxi cab. Plaintiffs claim that as a rule, each drive operated a taxi 12 hours a day with gross earnings
ranging from P20 to P25, receiving therefrom the corresponding 20 per cent share ranging from P4
to P5, and that in some cases, especially during Saturdays, Sundays, and holidays when a driver
worked 24 hours a day he grossed from P40 to P50, thereby receiving a share of from P8 to P10 for
the period of twenty-four hours.

The reason given by the trial court in dismissing the complaint is that the defendant being engaged
in the taxi or transportation business which is a public utility, came under the exception provided by
the Eight-Hour Labor Law (Commonwealth Act No. 444); and because plaintiffs did not work on a
salary basis, that is to say, they had no fixed or regular salary or remuneration other than the 20 per
cent of their gross earnings "their situation was therefore practically similar to piece workers and
hence, outside the ambit of article 302 of the Code of Commerce."

For purposes of reference we are reproducing the pertinent provisions of the Eight-Hour Labor Law,
namely, sections 1 to 4.

SECTION 1. The legal working day for any person employed by another shall not be more
than eight hours daily. When the work is not continuous, the time during which the laborer is
not working and can leave his working place and can rest completely shall not be counted.
 SEC. 2. This Act shall apply to all persons employed in any industry or occupation, whether
public or private, with the exception of farm laborers, laborers who prefer to be paid on piece
work basis, domestic servants and persons in the personal service of another and members
of the family of the employer working for him.

SEC. 3. Work may be performed beyond eight hours a day in case of actual or impending
emergencies, caused by serious accidents, fire flood, typhoon, earthquakes, epidemic, or
other disaster or calamity in order to prevent loss of life and property or imminent danger to
public safety; or in case of urgent work to be performed on the machines, equipment, or
installations in order to avoid a serious loss which the employer would otherwise suffer, or
some other just cause of a similar nature; but in all cases the laborers and the employees
shall be entitled to receive compensation for the overtime work performed at the same rate
as their regular wages or salary, plus at least twenty-five per centum additional.

In case of national emergency the Government is empowered to establish rules and

regulations for the operation of the plants and factories and to determine the wages to be
paid the laborers.

SEC. 4. No person, firm, or corporation, business establishment or place or center of work

shall compel an employee or laborer to work during Sundays and legal holidays, unless he is
paid an additional sum of at least twenty-five per centum of his regular
remuneration: Provided however, That this prohibition shall not apply to public utilities
performing some public service such as supplying gas, electricity, power, water, or providing
means of transportation or communication.

Under section 4, as a public utility, the defendant could have his chauffeurs work on Sundays and
legal holidays without paying them an additional sum of at least 25 per cent of their regular
remuneration: but that with reference only to work performed on Sundays and holidays. If the work
done on such days exceeds 8 hours a day, then the Eight-Hour Labor Law would operate, provided
of course that plaintiffs came under section 2 of the said law. So that the question to be decided here
is whether or not plaintiffs are entitled to extra compensation for work performed in excess of 8 hours
a day, Sundays and holidays included.

It will be noticed that the last part of section 3 of Commonwealth Act 444 provides for extra
compensation for over-time work "at the same rate as their regular wages or salary, plus at least
twenty-five per centum additional'" and that section 2 of the same act excludes application thereof
laborers who preferred to be on piece work basis. This connotes that a laborer or employee with no
fixed salary, wages or remuneration but receiving as compensation from his employer uncertain and
variable amount depending upon the work done or the result of said work (piece work) irrespective of
the amount of time employed, is not covered by the Eight-Hour Labor Law and is not entitled to extra
compensation should he work in excess of 8 hours a day. And this seems to be the condition of
employment of the plaintiffs. A driver in the taxi business of the defendant, like the plaintiffs, in one
day could operate his taxi cab eight hours, or less than eight hours or in excess of 8 hours, or even
24 hours on Saturdays, Sundays, and holidays, with no limit or restriction other than his desire,
inclination and state of health and physical endurance. He could drive continuously or intermittently,
systematically or haphazardly, fast or slow, etc. depending upon his exclusive wish or inclination.
One day when he feels strong, active and enthusiastic he works long, continuously, with diligence
and industry and makes considerable gross returns and receives as much as his 20 per cent
commission. Another day when he feels despondent, run down, weak or lazy and wants to rest
between trips and works for less number of hours, his gross returns are less and so is his
commission. In other words, his compensation for the day depends upon the result of his work,
which in turn depends on the amount of industry, intelligence and experience applied to it, rather
than the period of time employed. In short, he has no fixed salary or wages. In this we agree with the
learned trial court presided by Judge Felicisimo Ocampo which makes the following findings and
observations of this point.

. . . As already stated, their earnings were in the form of commission based on the gross
receipts of the day. Their participation in most cases depended upon their own industry. So
much so that the more hours they stayed on the road, the greater the gross returns and the
higher their commissions. They have no fixed hours of labor. They can retire at pleasure,
they not being paid a fixed salary on the hourly, daily, weekly or monthly basis.

It results that the working hours of the plaintiffs as taxi drivers were entirely characterized by
its irregularity, as distinguished from the specific regular remuneration predicated on specific
and regular hours of work of factories and commercial employees.

In the case of the plaintiffs, it is the result of their labor, not the labor itself, which determines
their commissions. They worked under no compulsion of turning a fixed income for each
given day. . . ..

In an opinion dated June 1, 1939 (Opinion No. 115) modified by Opinion No. 22, series 1940, dated
June 11, 1940, the Secretary of Justice held that chauffeurs of the Manila Yellow Taxicab Co. who
"observed in a loose way certain working hours daily," and "the time they report for work as well as
the time they leave work was left to their discretion.," receiving no fixed salary but only 20 per cent of
their gross earnings, may be considered as piece workers and therefore not covered by the
provisions of the Eight-Hour Labor Law.

The Wage Administration Service of the Department of Labor in its Interpretative Bulletin No. 2 dated
May 28, 1953, under "Overtime Compensation," in section 3 thereof entitled Coverage, says:

The provisions of this bulletin on overtime compensation shall apply to all persons employed
in any industry or occupation, whether public or private, with the exception of farm laborers,
non-agricultural laborers or employees who are paid on piece work, contract, pakiao, task
or commission basis, domestic servants and persons in the personal service of another and
members of the family of the employer working for him.

From all this, to us it is clear that the claim of the plaintiffs-appellants for overtime compensation
under the Eight-Hour Labor Law has no valid support.

As to the month pay (mesada) under article 302 of the Code of Commerce, article 2270 of the new
Civil Code (Republic Act 386) appears to have repealed said Article 302 when it repealed the
provisions of the Code of Commerce governing Agency. This repeal took place on August 30, 1950,
when the new Civil Code went into effect, that is, one year after its publication in the Official Gazette.
The alleged termination of services of the plaintiffs by the defendant took place according to the
complaint on September 4, 1950, that is to say, after the repeal of Article 302 which they invoke.
Moreover, said Article 302 of the Code of Commerce, assuming that it were still in force speaks of
"salary corresponding to said month." commonly known as "mesada." If the plaintiffs herein had no
fixed salary either by the day, week or month, then computation of the month's salary payable would
be impossible. Article 302 refers to employees receiving a fixed salary. Dr. Arturo M. Tolentino in his
book entitled "Commentaries and Jurisprudence on the Commercial Laws of the Philippines," Vol. 1,
4th edition, p. 160, says that article 302 is not applicable to employees without fixed salary. We
quote —
 Employees not entitled to indemnity. — This article refers only to those who are engaged
under salary basis, and not to those who only receive compensation equivalent to whatever
service they may render. (1 Malagarriga 314, citing decision of Argentina Court of Appeals
on Commercial Matters.)

In view of the foregoing, the order appealed from is hereby affirmed, with costs against appellants.

Pablo, Bengzon, Padilla, Reyes, Jugo, Bautista Angelo, Labrador, Concepcion, and Diokno,
JJ., concur.
Paras, C.J., concurs in the result.
G.R. No. L-63915 April 24, 1985

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

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

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution,   as well as the principle that laws to be valid and
1

enforceable must be published in the Official Gazette or otherwise effectively promulgated,

petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.

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

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

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

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

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
 e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

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

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

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question   said petitioners
2

are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

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

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

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

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General,   this Court held that while the general rule is that "a writ of mandamus would be granted to
3

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

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

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

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

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

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

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

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,  this Court has ruled that publication in the Official Gazette is necessary in
4

those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

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

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.

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

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

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

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

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

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank   to wit:
8
 The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban   sustained the right of a party
9

under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

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

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

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published.   Neither
10

the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles,   the 11

Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

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

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

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

 

G.R. No. L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and
HONORABLE COURT OF APPEALS, respondents.

Montesa, Albon, & Associates for petitioners.

De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:

Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing,
leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for
the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then
Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among
others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy
Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her
children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the
intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged
that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the
other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is
the eldest among them and is competent, willing and desirous to become the administratrix of the
estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court,
finding among others that:

(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-
64;]

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision,
pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix
of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the
dispositive portion of which reads:
 IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby
MODIFIED and SET ASIDE and a new judgment rendered as follows:

(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and
Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion
Gillego, an unmarried woman with whom he lived as husband and wife without
benefit of marriage for many years:

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao
Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to
Yao Kee in China had not been proven to be valid to the laws of the Chinese
People's Republic of China (sic);

(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of
Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor
and Diesel Parts Supply to be valid and accordingly, said property should be
excluded from the estate of the deceased Sy Kiat; and

(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial
administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36-
37.]

From said decision both parties moved for partial reconsideration, which was however denied by
respondent court. They thus interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook
Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of
the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the
motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No.
56045. **

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of
the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June
22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the
following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE

MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID
IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA

SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2;
Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien,
China; that she does not have a marriage certificate because the practice during that
time was for elders to agree upon the betrothal of their children, and in her case, her
elder brother was the one who contracted or entered into [an] agreement with the
parents of her husband; that the agreement was that she and Sy Mat would be
married, the wedding date was set, and invitations were sent out; that the said
agreement was complied with; that she has five children with Sy Kiat, but two of them
died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen,
the eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was
born on November 7, 1939; that she and her husband, Sy Mat, have been living in
FooKien, China before he went to the Philippines on several occasions; that the
practice during the time of her marriage was a written document [is exchanged] just
between the parents of the bride and the parents of the groom, or any elder for that
matter; that in China, the custom is that there is a go- between, a sort of marriage
broker who is known to both parties who would talk to the parents of the bride-to-be;
that if the parents of the bride-to-be agree to have the groom-to-be their son in-law,
then they agree on a date as an engagement day; that on engagement day, the
parents of the groom would bring some pieces of jewelry to the parents of the bride-
to-be, and then one month after that, a date would be set for the wedding, which in
her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the
wedding the bridegroom brings with him a couch (sic) where the bride would ride and
on that same day, the parents of the bride would give the dowry for her daughter and
then the document would be signed by the parties but there is no solemnizing officer
as is known in the Philippines; that during the wedding day, the document is signed
only by the parents of the bridegroom as well as by the parents of the bride; that the
parties themselves do not sign the document; that the bride would then be placed in
a carriage where she would be brought to the town of the bridegroom and before
departure the bride would be covered with a sort of a veil; that upon reaching the
town of the bridegroom, the bridegroom takes away the veil; that during her wedding
to Sy Kiat (according to said Chinese custom), there were many persons present;
that after Sy Kiat opened the door of the carriage, two old ladies helped her go down
the carriage and brought her inside the house of Sy Mat; that during her wedding, Sy
Chick, the eldest brother of Sy Kiat, signed the document with her mother; that as to
the whereabouts of that document, she and Sy Mat were married for 46 years
already and the document was left in China and she doubt if that document can still
be found now; that it was left in the possession of Sy Kiat's family; that right now, she
does not know the whereabouts of that document because of the lapse of many
years and because they left it in a certain place and it was already eaten by the
termites; that after her wedding with Sy Kiat, they lived immediately together as
husband and wife, and from then on, they lived together; that Sy Kiat went to the
Philippines sometime in March or April in the same year they were married; that she
went to the Philippines in 1970, and then came back to China; that again she went
back to the Philippines and lived with Sy Mat as husband and wife; that she begot
her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among
the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate
is issued by the Chinese government, a document signed by the parents or elders of the parties
being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect
that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission
to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p.
17; Rollo, p. 54.]

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where
the following entries are found: "Marital status—Married"; "If married give name of spouses—Yao
Kee"; "Address-China; "Date of marriage—1931"; and "Place of marriage—China" [Exhibit "SS-1".]

Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the
following entries are likewise found: "Civil status—Married"; and, 'If married, state name and address
of spouse—Yao Kee Chingkang, China" [Exhibit "4".]

And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's
Republic of China to the effect that "according to the information available at the Embassy Mr. Sy
Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19,
1931 in Fukien, the People's Republic of China" [Exhibit "5".]

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However,
the same do not suffice to establish the validity of said marriage in accordance with Chinese law or
custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced)
as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue
Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12
citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires
that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.]
On this score the Court had occasion to state that "a local custom as a source of right can not be
considered by a court of justice unless such custom is properly established by competent evidence
like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a
higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws
in force in the country where they were performed and valid there as such, shall also
be valid in this country, except bigamous, Polygamous, or incestuous marriages, as
determined by Philippine law. (Emphasis supplied.)  ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two
things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the
alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:

SEC. 45. Unwritten law.—The oral testimony of witnesses, skilled therein, is

admissible as evidence of the unwritten law of a foreign country, as are also printed
and published books of reports of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

SEC. 25. Proof of public or official record.—An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept
and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness
to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686,
700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]

In the case at bar petitioners did not present any competent evidence relative to the law and custom
of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of
China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on
the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of
the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat
cannot be recognized in this jurisdiction.

Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy
Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine
courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact
[Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p.
160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of
the law of China on marriage in the aforecited case, petitioners however have not shown any proof
that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in
1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-
four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable
to the instant case. They aver that the judicial pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds
true in this case.
The Memoracion case however is not applicable to the case at bar as said case did not concern a
foreign marriage and the issue posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is
the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her
testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to
Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized
in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of children—Four"; and, "Name—All living in China"
[Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with
Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze
Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local
Civil Registrar of Manila to support Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three
daughters with his Chinese wife, two of whom—Sook Wah and Sze Kai Cho—she knows, and one
adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the
laws of China, they cannot be accorded the status of legitimate children but only that of
acknowledged natural children. Petitioners are natural children, it appearing that at the time of their
conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See
Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's
recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who
are her sisters of the full blood [See Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of
marriage. They have in their favor their father's acknowledgment, evidenced by a compromise
agreement entered into by and between their parents and approved by the Court of First Instance on
February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego
but likewise made provisions for their support and future inheritance, thus:

xxx xxx xxx

2. The parties also acknowledge that they are common-law husband and wife and
that out of such relationship, which they have likewise decided to definitely and
finally terminate effective immediately, they begot five children, namely: Aida Sy,
born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on
 January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the
parties mutually agree and covenant that—

(a) The stocks and merchandize and the furniture and equipments ...,
shall be divided into two equal shares between, and distributed to, Sy
Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall
transfer the same to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy Kiat.
However, it shall be his obligation to give to the aforenamed children
an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the
rental of the two doors of the same building now occupied by Everett
Construction.

xxx xxx xxx

(5) With respect to the acquisition, during the existence of the

common-law husband-and-wife relationship between the parties, of the real estates
and properties registered and/or appearing in the name of Asuncion Gillego ... , the
parties mutually agree and covenant that the said real estates and properties shall
be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her
lifetime ... [Exhibit "D".] (Emphasis supplied.)

xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may
be voluntarily acknowledged [See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic
Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to
the Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court.—

xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

 (2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity
and acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of

spouses, and actions for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one
to three of the civil code;

xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization
Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and
jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and
Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no
longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502
sec. 91-A last paragraph that:

xxx xxx xxx

If any question involving any of the above matters should arise as an incident in any
case pending in the ordinary court, said incident shall be determined in the main
case.

xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:

xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case
involving paternity and acknowledgment may be ventilated as an incident in the intestate
or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976).  But that
legal provision presupposes that such an administration proceeding is pending or existing
and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

xxx xxx xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by
the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v.
Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.
G.R. No. 112193 March 13, 1996

JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T. ALANON,
ROBERTO A. TORRES, CRISTINA A. TORRES, JUSTO JOSE TORRES and AGUSTIN
TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and ANTONIA
ARUEGO, respondents.

HERMOSISIMA, JR., J.:p

On March 7, 1983, a Complaint1 for Compulsory Recognition and Enforcement of Successional Rights was filed before Branch 30 of the
Regional Trial Court of Manila by the minors, private respondent Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented by
their mother and natural guardian, Luz M. Fabian. Named defendants therein were Jose E. Aruego, Jr. and the five (5) minor children of the
deceased Gloria A. Torres, represented by their father and natural guardian, Justo P. Torres, Jr., now the petitioners herein.

In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had an amorous
relationship with Luz M. Fabian sometime in 1959 until his death on March 30, 1982. Out of this
relationship were born Antonia F. Aruego and Evelyn F. Aruego on October 5, 1962 and September
3, 1963, respectively. The complaint prayed for an Order praying that herein private respondent and
Evelyn be declared the illegitimate children of the deceased Jose M. Aruego, Sr.; that herein
petitioners be compelled to recognize and acknowledge them as the compulsory heirs of the
deceased Jose M. Aruego; that their share and participation in the estate of their deceased father be
determined and ordered delivered to them.

The main basis of the action for compulsory recognition is their alleged "open and continuous
possession of the status of illegitimate children" as stated in paragraphs 6 and 7 of the Complaint, to
wit:

6. The plaintiffs' father, Jose M. Aruego, acknowledged and recognized the herein
plaintiffs as his children verbally among plaintiffs' and their mother's family friends, as
well as by myriad different paternal ways, including but not limited to the following:

(a) Regular support and educational expenses;

(b) Allowance to use his surname;

(c) Payment of maternal bills;

(d) Payment of baptismal expenses and attendance therein;

(e) Taking them to restaurants and department stores on occasions of family

rejoicing;

(f) Attendance to school problems of plaintiffs;

(g) Calling and allowing plaintiffs to his office every now and then;

(h) Introducing them as such children to family friends.

 7. The plaintiffs are thus, in continuous possession of the status
of (illegitimate) children of the deceased Jose M. Aruego who showered them, with
the continuous and clear manifestations of paternal care and affection as above
outlined.2

Petitioners denied all these allegations.

After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive portion of which
reads:

WHEREFORE, judgment is rendered —

1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego and Luz Fabian;

2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz Fabian;

3. Declaring that the estate of deceased Jose Aruego are the following:

xxx xxx xxx

4. Antonia Aruego is entitled to a share equal to 1/2 portion of share of the legitimate
children of Jose Aruego;

5. Defendants are hereby ordered to recognize Antonia Aruego as the illegitimate

daughter of Jose Aruego with Luz Fabian;

6. Defendants are hereby ordered to deliver to Antonia Aruego (her) share in the
estate of Jose Aruego, Sr.;

7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum of P10,000.00
as atty's fee;

8. Cost against the defendants. 3

Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss of
jurisdiction on the part of the trial court over the complaint by virtue of the passage of Executive
Order No. 209 (as amended by Executive Order No. 227), otherwise known as the Family Code of
the Philippines which took effect on August 3, 1988. This motion was denied by the lower court in
the Order, dated January 14, 1993.

Petitioners interposed an appeal but the lower court refused to give it due course on the ground that
it was filed out of time.

A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction was filed by
herein petitioners before respondent Court of Appeals, the petition was dismissed for lack of merit in
a decision promulgated on August 31, 1993. A Motion for Reconsideration when filed was denied by
the respondent court in a minute resolution, dated October 13, 1993.

Hence, this Petition for Review on Certiorari under Rule 45 alleging the following grounds:
 A

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY

NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE
APPLICABLE DECISION ALREADY ISSUED BY THIS HONORABLE COURT.

RESPONDENT COURT ERRED IN HOLDING THAT THE PETITION FILED BY

PETITIONERS BEFORE IT DOES NOT INVOLVE A QUESTION OF
JURISDICTION.

RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT THERE IS NO

PERCEPTIBLE DIFFERENCE BETWEEN THE CIVIL CODE PROVISION AND
THOSE OF THE FAMILY CODE ANENT THE TIME AN ACTION FOR
COMPULSORY RECOGNITION MAY BE MADE AND THAT THERE IS NO
DIFFERENCE UNDER THE CIVIL CODE FROM THAT OF THE FAMILY CODE
CONCERNING THE REQUIREMENT THAT AN ACTION FOR COMPULSORY
RECOGNITION ON THE GROUND OF CONTINUOUS POSSESSION OF THE
STATUS OF AN ILLEGITIMATE CHILD SHOULD BE FILED DURING THE
LIFETIME OF THE PUTATIVE PARENT, IN UTTER DISREGARD OF THE RULING
OF THIS HONORABLE COURT IN THE UYGUANGCO CASE THAT THE CIVIL
CODE PROVISION HAD BEEN SUPERSEDED OR AT LEAST MODIFIED BY THE
CORRESPONDING ARTICLES IN THE FAMILY CODE.

RESPONDENT COURT ERRED IN DISMISSING PETITIONERS' PETITION FOR

PROHIBITION AND IN HOLDING THAT PETITIONERS REMEDY IS THAT OF AN
APPEAL WHICH ALLEGEDLY HAD ALREADY BEEN LOST. 4

Private respondent's action for compulsory recognition as an illegitimate child was brought under
Book I, Title VIII of the Civil Code on PERSONS, specifically Article 285 thereof, which state the
manner by which illegitimate children may prove their filiation, to wit:

Art. 285. The action for the recognition of natural children may be brought only during
the lifetime of the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the latter
may file the action before the expiration of four years from the attainment of his
majority; . . . .

Petitioners, on the other hand, submit that with the advent of the New Family Code on
August 3, 1988, the trial court lost jurisdiction over the complaint of private respondent on the
ground of prescription, considering that under Article 175, paragraph 2, in relation to Article
172 of the New Family Code, it is provided that an action for compulsory recognition of
illegitimate filiation, if based on the "open and continuous possession of the status of an
illegitimate child," must be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.
The law cited reads:

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173 [during
the lifetime of the child], except when the action is based on the second paragraph of
Article 172, in which case the action may be brought during the lifetime of the alleged
parent.

In the case at bench, petitioners point out that, since the complaint of private respondent and
her alleged sister was filed on March 7, 1983, or almost one (1) year after the death of their
presumed father on March 30, 1982, the action has clearly prescribed under the new rule as
provided in the Family Code. Petitioners, further, maintain that even if the action was filed
prior to the effectivity of the Family Code, this new law must be applied to the instant case
pursuant to Article 256 of the Family Code which provides:

This Code shall, have retroactive effect insofar as it does not prejudice or impair
vested of acquired rights in accordance with the Civil Code or other laws.

The basic question that must be resolved in this case, therefore, appears to be:

Should the provisions of the Family Code be applied in the instant case? As a corollary Will the
application of the Family Code in this case prejudice or impair any vested right of the private
respondent such that it should not be given retroactive effect in this particular case?

The phrase "vested or acquired rights" under Article 256, is not defined by the Family Code. "The
Committee did not define what is meant by a 'vested or acquired right,' thus leaving it to the courts to
determine what it means as each particular issue is submitted to them. It is difficult to provide the
answer for each and every question that may arise in the future." 5

In Tayag vs. Court of Appeals,  a case which involves a similar complaint denominated as "Claim for
6

Inheritance" but treated by this court as one to compel recognition as an illegitimate child brought
prior to the effectivity of the Family Code by the mother of the minor child, and based also on the
"open and continuous possession of the status of an illegitimate child," we had occasion to rule that:

Under the circumstances obtaining in the case at bar, we hold that the right of action
of the minor child has been vested by the filing of the complaint in court under the
 regime of the Civil Code and prior to the effectivity of the Family Code. We herein
adopt our ruling in the recent case of Republic of the Philippines vs. Court of
Appeals, et. al.   where we held that the fact of filing of the petition already vested in
7

the petitioner her right to file it and to have the same proceed to final adjudication in
accordance with the law in force at the time, and such right can no longer be
prejudiced or impaired by the enactment of a new law.

xxx xxx xxx

Accordingly, Article 175 of the Family Code finds no proper application to the instant
case since it will ineluctably affect adversely a right of private respondent and,
consequentially, of the minor child she represents, both of which have been vested
with the filing of the complaint in court. The trial court is, therefore, correct in applying
the provisions of Article 285 of the Civil Code and in holding that private respondent's
cause of action has not yet prescribed.

Tayag applies four-square with the case at bench. The action brought by private respondent Antonia
Aruego for compulsory recognition and enforcement of successional rights which was filed prior to
the advent of the Family Code, must be governed by Article 285 of the Civil Code and not by Article
175, paragraph 2 of the Family Code. The present law cannot be given retroactive effect insofar as
the instant case is concerned, as its application will prejudice the vested right of private respondent
to have her case decided under Article 285 of the Civil Code. The right was vested to her by the fact
that she filed her action under the regime of the Civil Code. Prescinding from this, the conclusion
then ought to be that the action was not yet barred, notwithstanding the fact that it was brought when
the putative father was already deceased, since private respondent was then still a minor when it
was filed, an exception to the general rule provided under Article 285 of the Civil Code. Hence, the
trial court, which acquired jurisdiction over the case by the filing of the complaint, never lost
jurisdiction over the same despite the passage of E.O. No. 209, also known as the Family Code of
the Philippines.

Our ruling herein reinforces the principle that the jurisdiction of a court, whether in criminal or civil
cases, once attached cannot be ousted by subsequent happenings or events, although of a
character which would have prevented jurisdiction from attaching in the first instance, and it retains
jurisdiction until it finally disposes of the case. 
8

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated August 31,
1993 and its Resolution dated October 13, 1993 are hereby AFFIRMED.

SO ORDERED.

Padilla, Bellosillo and Kapunan, JJ., concur.

G.R. No. 163707             September 15, 2006

MICHAEL C. GUY, petitioner,
vs.
HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR., Presiding Judge, RTC, Branch 138,
Makati City and minors, KAREN DANES WEI and KAMILLE DANES WEI, represented by their
mother, REMEDIOS OANES, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari assails the January 22, 2004 Decision1 of the Court of Appeals in
CA-G.R. SP No. 79742, which affirmed the Orders dated July 21, 20002 and July 17, 20033 of the
Regional Trial Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004 Resolution4 denying petitioner's motion for reconsideration.

The facts are as follows:

On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei,
represented by their mother Remedios Oanes (Remedios), filed a petition for letters of
administration5 before the Regional Trial Court of Makati City, Branch 138. The case was docketed
as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim).

Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei,
who died intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00
consisting of real and personal properties. His known heirs are his surviving spouse Shirley Guy and
children, Emy, Jeanne, Cristina, George and Michael, all surnamed Guy. Private respondents
prayed for the appointment of a regular administrator for the orderly settlement of Sima Wei's estate.
They likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be
appointed as Special Administrator of the estate. Attached to private respondents' petition was a
Certification Against Forum Shopping6 signed by their counsel, Atty. Sedfrey A. Ordoñez.

In his Comment/Opposition,7 petitioner prayed for the dismissal of the petition. He asserted that his
deceased father left no debts and that his estate can be settled without securing letters of
administration pursuant to Section 1, Rule 74 of the Rules of Court. He further argued that private
respondents should have established their status as illegitimate children during the lifetime of Sima
Wei pursuant to Article 175 of the Family Code.

The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on the ground that the certification
against forum shopping should have been signed by private respondents and not their counsel. They
contended that Remedios should have executed the certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of Court.

In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,9 petitioner and his co-heirs

alleged that private respondents' claim had been paid, waived, abandoned or otherwise extinguished
by reason of Remedios' June 7, 1993 Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner, Remedios and her minor children
discharge the estate of Sima Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to
Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not
been established that she was the duly constituted guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal application of the rules, the trial court also rejected
petitioner's objections on the certification against forum shopping.

Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court
of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated
January 22, 2004, the dispositive portion of which states:

WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE
and accordingly DISMISSED, for lack of merit. Consequently, the assailed Orders dated July
21, 2000 and July 17, 2003 are hereby both AFFIRMED. Respondent Judge is hereby
DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents
(sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim.

SO ORDERED.10

The Court of Appeals denied petitioner's motion for reconsideration, hence, this petition.

Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum
shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the
Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do
not have the legal personality to institute the petition for letters of administration as they failed to
prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code.

Private respondents contend that their counsel's certification can be considered substantial
compliance with the rules on certification of non-forum shopping, and that the petition raises no new
issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals.

The issues for resolution are: 1) whether private respondents' petition should be dismissed for failure
to comply with the rules on certification of non-forum shopping; 2) whether the Release and Waiver
of Claim precludes private respondents from claiming their successional rights; and 3) whether
private respondents are barred by prescription from proving their filiation.

The petition lacks merit.

Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should
be executed by the plaintiff or the principal party. Failure to comply with the requirement shall be
cause for dismissal of the case. However, a liberal application of the rules is proper where the higher
interest of justice would be served. In Sy Chin v. Court of Appeals,11 we ruled that while a petition
may have been flawed where the certificate of non-forum shopping was signed only by counsel and
not by the party, this procedural lapse may be overlooked in the interest of substantial justice.12 So it
is in the present controversy where the merits13 of the case and the absence of an intention to violate
the rules with impunity should be considered as compelling reasons to temper the strict application
of the rules.

As regards Remedios' Release and Waiver of Claim, the same does not bar private respondents
from claiming successional rights. To be valid and effective, a waiver must be couched in clear and
unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit
which legally pertains to him. A waiver may not be attributed to a person when its terms do not
explicitly and clearly evince an intent to abandon a right.14

In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim
does not state with clarity the purpose of its execution. It merely states that Remedios received
P300,000.00 and an educational plan for her minor daughters "by way of financial assistance and in
full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late
Rufino Guy Susim."15 Considering that the document did not specifically mention private
respondents' hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of
successional rights.

Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents,
such waiver will not bar the latter's claim. Article 1044 of the Civil Code, provides:

ART. 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.

Any inheritance left to minors or incapacitated persons may be accepted by their

parents or guardians. Parents or guardians may repudiate the inheritance left to their
wards only by judicial authorization.

The right to accept an inheritance left to the poor shall belong to the persons designated by
the testator to determine the beneficiaries and distribute the property, or in their default, to
those mentioned in Article 1030. (Emphasis supplied)

Parents and guardians may not therefore repudiate the inheritance of their wards without judicial
approval. This is because repudiation amounts to an alienation of property16 which must pass the
court's scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the
Release and Waiver of Claim in the instant case is void and will not bar private respondents from
asserting their rights as heirs of the deceased.

Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right.
Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance
of a material fact negates waiver, and waiver cannot be established by a consent given under a
mistake or misapprehension of fact.17

In the present case, private respondents could not have possibly waived their successional rights
because they are yet to prove their status as acknowledged illegitimate children of the deceased.
Petitioner himself has consistently denied that private respondents are his co-heirs. It would thus be
inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not
have such right. Hence, petitioner's invocation of waiver on the part of private respondents must fail.

Anent the issue on private respondents' filiation, we agree with the Court of Appeals that a ruling on
the same would be premature considering that private respondents have yet to present evidence.
Before the Family Code took effect, the governing law on actions for recognition of illegitimate
children was Article 285 of the Civil Code, to wit:

ART. 285. The action for the recognition of natural children may be brought only during the
lifetime of the presumed parents, except in the following cases:
 (1) If the father or mother died during the minority of the child, in which case the latter
may file the action before the expiration of four years from the attainment of his
majority;

(2) If after the death of the father or of the mother a document should appear of which
nothing had been heard and in which either or both parents recognize the child.

In this case, the action must be commenced within four years from the finding of the
document. (Emphasis supplied)

We ruled in Bernabe v. Alejo18 that illegitimate children who were still minors at the time the Family
Code took effect and whose putative parent died during their minority are given the right to seek
recognition for a period of up to four years from attaining majority age. This vested right was not
impaired or taken away by the passage of the Family Code.19

On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of
the Civil Code, provide:

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.

The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and
on the same, evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.

Under the Family Code, when filiation of an illegitimate child is established by a record of birth
appearing in the civil register or a final judgment, or an admission of filiation in a public document or
a private handwritten instrument signed by the parent concerned, the action for recognition may be
brought by the child during his or her lifetime. However, if the action is based upon open and
continuous possession of the status of an illegitimate child, or any other means allowed by the rules
or special laws, it may only be brought during the lifetime of the alleged parent.

It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to
be adduced by private respondents in proving their filiation. However, it would be impossible to
determine the same in this case as there has been no reception of evidence yet. This Court is not a
trier of facts. Such matters may be resolved only by the Regional Trial Court after a full-blown trial.

While the original action filed by private respondents was a petition for letters of administration, the
trial court is not precluded from receiving evidence on private respondents' filiation. Its jurisdiction
extends to matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate, including the determination of the status of each heir.20 That the two causes
of action, one to compel recognition and the other to claim inheritance, may be joined in one
complaint is not new in our jurisprudence.21 As held in Briz v. Briz:22

The question whether a person in the position of the present plaintiff can in any event
maintain a complex action to compel recognition as a natural child and at the same time to
obtain ulterior relief in the character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar
to the action to compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x

The conclusion above stated, though not heretofore explicitly formulated by this court, is
undoubtedly to some extent supported by our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been in fact acknowledged, may
maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong
vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may
intervene in proceedings for the distribution of the estate of his deceased natural father, or
mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs.
Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the
plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other persons who might take by inheritance
are before the court; and the declaration of heirship is appropriate to such proceedings.

WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of
Appeals in CA-G.R. SP No. 79742 affirming the denial of petitioner's motion to dismiss; and its
Resolution dated May 25, 2004 denying petitioner's motion for reconsideration, are AFFIRMED. Let
the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further
proceedings.

SO ORDERED.

Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur.

G.R. No. 166562               March 31, 2009

BENJAMIN G. TING, Petitioner,
vs.
CARMEN M. VELEZ-TING, Respondent.

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari seeking to set aside the November 17, 2003 Amended
Decision1 of the Court of Appeals (CA), and its December 13, 2004 Resolution2 in CA-G.R. CV No.
59903. The appellate court, in its assailed decision and resolution, affirmed the January 9, 1998
Decision3 of the Regional Trial Court (RTC), Branch 23, Cebu City, declaring the marriage between
petitioner and respondent null and void ab initio pursuant to Article 36 of the Family Code.4

The facts follow.

Petitioner Benjamin Ting (Benjamin) and respondent Carmen Velez-Ting (Carmen) first met in 1972
while they were classmates in medical school.5 They fell in love, and they were wed on July 26, 1975
in Cebu City when respondent was already pregnant with their first child.

At first, they resided at Benjamin’s family home in Maguikay, Mandaue City.6 When their second
child was born, the couple decided to move to Carmen’s family home in Cebu City.7 In September
1975, Benjamin passed the medical board examinations8 and thereafter proceeded to take a
residency program to become a surgeon but shifted to anesthesiology after two years. By 1979,
Benjamin completed the preceptorship program for the said field9 and, in 1980, he began working for
Velez Hospital, owned by Carmen’s family, as member of its active staff,10 while Carmen worked as
the hospital’s Treasurer.11

The couple begot six (6) children, namely Dennis, born on December 9, 1975; James Louis, born on
August 25, 1977; Agnes Irene, born on April 5, 1981; Charles Laurence, born on July 21, 1986;
Myles Vincent, born on July 19, 1988; and Marie Corinne, born on June 16, 1991.12

On October 21, 1993, after being married for more than 18 years to petitioner and while their
youngest child was only two years old, Carmen filed a verified petition before the RTC of Cebu City
praying for the declaration of nullity of their marriage based on Article 36 of the Family Code. She
claimed that Benjamin suffered from psychological incapacity even at the time of the celebration of
their marriage, which, however, only became manifest thereafter. 13

In her complaint, Carmen stated that prior to their marriage, she was already aware that Benjamin
used to drink and gamble occasionally with his friends.14 But after they were married, petitioner
continued to drink regularly and would go home at about midnight or sometimes in the wee hours of
the morning drunk and violent. He would confront and insult respondent, physically assault her and
force her to have sex with him. There were also instances when Benjamin used his gun and shot the
gate of their house.15 Because of his drinking habit, Benjamin’s job as anesthesiologist was affected
to the point that he often had to refuse to answer the call of his fellow doctors and to pass the task to
other anesthesiologists. Some surgeons even stopped calling him for his services because they
perceived petitioner to be unreliable. Respondent tried to talk to her husband about the latter’s
drinking problem, but Benjamin refused to acknowledge the same.16
Carmen also complained that petitioner deliberately refused to give financial support to their family
and would even get angry at her whenever she asked for money for their children. Instead of
providing support, Benjamin would spend his money on drinking and gambling and would even buy
expensive equipment for his hobby.17 He rarely stayed home18 and even neglected his obligation to
his children.19

Aside from this, Benjamin also engaged in compulsive gambling.20 He would gamble two or three
times a week and would borrow from his friends, brothers, or from loan sharks whenever he had no
money. Sometimes, Benjamin would pawn his wife’s own jewelry to finance his gambling.21 There
was also an instance when the spouses had to sell their family car and even a portion of the lot
Benjamin inherited from his father just to be able to pay off his gambling debts.22 Benjamin only
stopped going to the casinos in 1986 after he was banned therefrom for having caused trouble, an
act which he said he purposely committed so that he would be banned from the gambling
establishments.23

In sum, Carmen’s allegations of Benjamin’s psychological incapacity consisted of the following

manifestations:

1. Benjamin’s alcoholism, which adversely affected his family relationship and his profession;

2. Benjamin’s violent nature brought about by his excessive and regular drinking;

3. His compulsive gambling habit, as a result of which Benjamin found it necessary to sell the
family car twice and the property he inherited from his father in order to pay off his debts,
because he no longer had money to pay the same; and

4. Benjamin’s irresponsibility and immaturity as shown by his failure and refusal to give
regular financial support to his family.24

In his answer, Benjamin denied being psychologically incapacitated. He maintained that he is a

respectable person, as his peers would confirm. He said that he is an active member of social and
athletic clubs and would drink and gamble only for social reasons and for leisure. He also denied
being a violent person, except when provoked by circumstances.25 As for his alleged failure to
support his family financially, Benjamin claimed that it was Carmen herself who would collect his
professional fees from Velez Hospital when he was still serving there as practicing
anesthesiologist.26 In his testimony, Benjamin also insisted that he gave his family financial support
within his means whenever he could and would only get angry at respondent for lavishly spending
his hard-earned money on unnecessary things.27 He also pointed out that it was he who often
comforted and took care of their children, while Carmen played mahjong with her friends twice a
week.28

During the trial, Carmen’s testimony regarding Benjamin’s drinking and gambling habits and violent
behavior was corroborated by Susana Wasawas, who served as nanny to the spouses’ children from
1987 to 1992.29 Wasawas stated that she personally witnessed instances when Benjamin maltreated
Carmen even in front of their children.30

Carmen also presented as witness Dr. Pureza Trinidad-Oñate, a psychiatrist.31 Instead of the usual
personal interview, however, Dr. Oñate’s evaluation of Benjamin was limited to the transcript of
stenographic notes taken during Benjamin’s deposition because the latter had already gone to work
as an anesthesiologist in a hospital in South Africa. After reading the transcript of stenographic
notes, Dr. Oñate concluded that Benjamin’s compulsive drinking, compulsive gambling and physical
abuse of respondent are clear indications that petitioner suffers from a personality disorder.32
To refute Dr. Oñate’s opinion, petitioner presented Dr. Renato D. Obra, a psychiatrist and a
consultant at the Department of Psychiatry in Don Vicente Sotto Memorial Medical Center, as his
expert witness.33 Dr. Obra evaluated Benjamin’s psychological behavior based on the transcript of
stenographic notes, as well as the psychiatric evaluation report prepared by Dr. A.J.L. Pentz, a
psychiatrist from the University of Pretoria in South Africa, and his (Dr. Obra’s) interview with
Benjamin’s brothers.34 Contrary to Dr. Oñate’s findings, Dr. Obra observed that there is nothing
wrong with petitioner’s personality, considering the latter’s good relationship with his fellow doctors
and his good track record as anesthesiologist.35

On January 9, 1998, the lower court rendered its Decision36 declaring the marriage between
petitioner and respondent null and void. The RTC gave credence to Dr. Oñate’s findings and the
admissions made by Benjamin in the course of his deposition, and found him to be psychologically
incapacitated to comply with the essential obligations of marriage. Specifically, the trial court found
Benjamin an excessive drinker, a compulsive gambler, someone who prefers his extra-curricular
activities to his family, and a person with violent tendencies, which character traits find root in a
personality defect existing even before his marriage to Carmen. The decretal portion of the decision
reads:

WHEREFORE, all the foregoing considered, judgment is hereby rendered declaring the marriage
between plaintiff and defendant null and void ab initio pursuant to Art. 36 of the Family Code. x x x

xxxx

SO ORDERED.37

Aggrieved, petitioner appealed to the CA. On October 19, 2000, the CA rendered a
Decision38 reversing the trial court’s ruling. It faulted the trial court’s finding, stating that no proof was
adduced to support the conclusion that Benjamin was psychologically incapacitated at the time he
married Carmen since Dr. Oñate’s conclusion was based only on theories and not on established
fact,39 contrary to the guidelines set forth in Santos v. Court of Appeals40 and in Rep. of the Phils. v.
Court of Appeals and Molina.41

Because of this, Carmen filed a motion for reconsideration, arguing that the Molina guidelines should
not be applied to this case since the Molina decision was promulgated only on February 13, 1997, or
more than five years after she had filed her petition with the RTC.42 She claimed that the Molina
ruling could not be made to apply retroactively, as it would run counter to the principle of stare
decisis. Initially, the CA denied the motion for reconsideration for having been filed beyond the
prescribed period. Respondent thereafter filed a manifestation explaining compliance with the
prescriptive period but the same was likewise denied for lack of merit. Undaunted, respondent filed a
petition for certiorari43 with this Court. In a Resolution44 dated March 5, 2003, this Court granted the
petition and directed the CA to resolve Carmen’s motion for reconsideration.45 On review, the CA
decided to reconsider its previous ruling. Thus, on November 17, 2003, it issued an Amended
Decision46 reversing its first ruling and sustaining the trial court’s decision.47

A motion for reconsideration was filed, this time by Benjamin, but the same was denied by the CA in
its December 13, 2004 Resolution.48

Hence, this petition.

For our resolution are the following issues:

 I. Whether the CA violated the rule on stare decisis when it refused to follow the guidelines
set forth under the Santos and Molina cases;

II. Whether the CA correctly ruled that the requirement of proof of psychological incapacity
for the declaration of absolute nullity of marriage based on Article 36 of the Family Code has
been liberalized; and

III. Whether the CA’s decision declaring the marriage between petitioner and respondent null
and void [is] in accordance with law and jurisprudence.

We find merit in the petition.

I. On the issue of stare decisis.

The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this
Court in its final decisions. It is based on the principle that once a question of law has been
examined and decided, it should be deemed settled and closed to further argument.49 Basically, it is
a bar to any attempt to relitigate the same issues,50 necessary for two simple reasons: economy and
stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code.51

This doctrine of adherence to precedents or stare decisis was applied by the English courts and was
later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Puno’s
discussion on the historical development of this legal principle in his dissenting opinion in Lambino v.
Commission on Elections52 is enlightening:

The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the
calm." The doctrine started with the English Courts. Blackstone observed that at the beginning of the
18th century, "it is an established rule to abide by former precedents where the same points come
again in litigation." As the rule evolved, early limits to its application were recognized: (1) it would not
be followed if it were "plainly unreasonable"; (2) where courts of equal authority developed
conflicting decisions; and, (3) the binding force of the decision was the "actual principle or principles
necessary for the decision; not the words or reasoning used to reach the decision."

The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution. According to Hamilton, "strict rules and precedents" are necessary to prevent "arbitrary
discretion in the courts." Madison agreed but stressed that "x x x once the precedent ventures into
the realm of altering or repealing the law, it should be rejected." Prof. Consovoy well noted that
Hamilton and Madison "disagree about the countervailing policy considerations that would allow a
judge to abandon a precedent." He added that their ideas "reveal a deep internal conflict between
the concreteness required by the rule of law and the flexibility demanded in error correction. It is this
internal conflict that the Supreme Court has attempted to deal with for over two centuries."

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare
decisis developed its own life in the United States. Two strains of stare decisis have been isolated by
legal scholars. The first, known as vertical stare decisis deals with the duty of lower courts to apply
the decisions of the higher courts to cases involving the same facts. The second, known as
horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy
correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare
decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is
not one of the precepts set in stone in our Constitution.
It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare
decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the
Constitution while statutory stare decisis involves interpretations of statutes. The distinction is
important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations.
Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway
today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable
command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is
a question entirely within the discretion of the court, which is again called upon to consider a
question once decided." In the same vein, the venerable Justice Frankfurter opined: "the ultimate
touchstone of constitutionality is the Constitution itself and not what we have said about it." In
contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As
Justice Stevens explains: "after a statute has been construed, either by this Court or by a consistent
course of decision by other federal judges and agencies, it acquires a meaning that should be as
clear as if the judicial gloss had been drafted by the Congress itself." This stance reflects both
respect for Congress' role and the need to preserve the courts' limited resources.

In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise,
courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate
and unconstitutional holdings; (2) it cannot accommodate changing social and political
understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of
Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect
stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of
Education which junked Plessy v. Ferguson's "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by
freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to be
straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and
held, on motion for reconsideration, that a private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are agreed on
the factors that should be considered before overturning prior rulings. These are workability,
reliance, intervening developments in the law and changes in fact. In addition, courts put in the
balance the following determinants: closeness of the voting, age of the prior decision and its merits.

The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine whether
related principles of law have so far developed as to have the old rule no more than a remnant of an
abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently,
as to have robbed the old rule of significant application or justification.53
To be forthright, respondent’s argument that the doctrinal guidelines prescribed in Santos and
Molina should not be applied retroactively for being contrary to the principle of stare decisis is no
longer new. The same argument was also raised but was struck down in Pesca v. Pesca,54 and
again in Antonio v. Reyes.55 In these cases, we explained that the interpretation or construction of a
law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior
ruling of this Court is overruled, and a different view is adopted, that the new doctrine may have to
be applied prospectively in favor of parties who have relied on the old doctrine and have acted in
good faith, in accordance therewith under the familiar rule of "lex prospicit, non respicit."

II. On liberalizing the required proof for the declaration of nullity of marriage under Article 36.

Now, petitioner wants to know if we have abandoned the Molina doctrine.

We have not.

In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te,56 we declared that, in hindsight, it may
have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving
all cases of psychological incapacity. We said that instead of serving as a guideline, Molina
unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into
and be bound by it, which is not only contrary to the intention of the law but unrealistic as well
because, with respect to psychological incapacity, no case can be considered as on "all fours" with
another.57

By the very nature of cases involving the application of Article 36, it is logical and understandable to
give weight to the expert opinions furnished by psychologists regarding the psychological
temperament of parties in order to determine the root cause, juridical antecedence, gravity and
incurability of the psychological incapacity. However, such opinions, while highly advisable, are not
conditions sine qua non in granting petitions for declaration of nullity of marriage.58 At best, courts
must treat such opinions as decisive but not indispensable evidence in determining the merits of a
given case. In fact, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical or psychological examination of the person concerned
need not be resorted to.59 The trial court, as in any other given case presented before it, must always
base its decision not solely on the expert opinions furnished by the parties but also on the totality of
evidence adduced in the course of the proceedings.

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving
the application of Article 36 must be treated distinctly and judged not on the basis of a priori
assumptions, predilections or generalizations but according to its own attendant facts. Courts should
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals.

Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set
forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on
the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC), viz.:

To require the petitioner to allege in the petition the particular root cause of the psychological
incapacity and to attach thereto the verified written report of an accredited psychologist or
psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice
o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus,
the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina
Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and
the presentation of psychiatric experts shall now be determined by the court during the pre-trial
conference.60

But where, as in this case, the parties had the full opportunity to present professional and expert
opinions of psychiatrists tracing the root cause, gravity and incurability of a party’s alleged
psychological incapacity, then such expert opinion should be presented and, accordingly, be
weighed by the court in deciding whether to grant a petition for nullity of marriage.

III. On petitioner’s psychological incapacity.

Coming now to the main issue, we find the totality of evidence adduced by respondent insufficient to
prove that petitioner is psychologically unfit to discharge the duties expected of him as a husband,
and more particularly, that he suffered from such psychological incapacity as of the date of the
marriage eighteen (18) years ago. Accordingly, we reverse the trial court’s and the appellate court’s
rulings declaring the marriage between petitioner and respondent null and void ab initio.

The intendment of the law has been to confine the application of Article 36 to the most serious cases
of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage.61 The psychological illness that must have afflicted a party at the
inception of the marriage should be a malady so grave and permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond he or she is about to
assume.62 1avvphi1 .zw+

In this case, respondent failed to prove that petitioner’s "defects" were present at the time of the
celebration of their marriage. She merely cited that prior to their marriage, she already knew that
petitioner would occasionally drink and gamble with his friends; but such statement, by itself, is
insufficient to prove any pre-existing psychological defect on the part of her husband. Neither did the
evidence adduced prove such "defects" to be incurable.

The evaluation of the two psychiatrists should have been the decisive evidence in determining
whether to declare the marriage between the parties null and void. Sadly, however, we are not
convinced that the opinions provided by these experts strengthened respondent’s allegation of
psychological incapacity. The two experts provided diametrically contradicting psychological
evaluations: Dr. Oñate testified that petitioner’s behavior is a positive indication of a personality
disorder,63 while Dr. Obra maintained that there is nothing wrong with petitioner’s personality.
Moreover, there appears to be greater weight in Dr. Obra’s opinion because, aside from analyzing
the transcript of Benjamin’s deposition similar to what Dr. Oñate did, Dr. Obra also took into
consideration the psychological evaluation report furnished by another psychiatrist in South Africa
who personally examined Benjamin, as well as his (Dr. Obra’s) personal interview with Benjamin’s
brothers.64 Logically, therefore, the balance tilts in favor of Dr. Obra’s findings.

Lest it be misunderstood, we are not condoning petitioner’s drinking and gambling problems, or his
violent outbursts against his wife. There is no valid excuse to justify such a behavior. Petitioner must
remember that he owes love, respect, and fidelity to his spouse as much as the latter owes the same
to him. Unfortunately, this court finds respondent’s testimony, as well as the totality of evidence
presented by the respondent, to be too inadequate to declare him psychologically unfit pursuant to
Article 36.

It should be remembered that the presumption is always in favor of the validity of marriage. Semper
praesumitur pro matrimonio.65 In this case, the presumption has not been amply rebutted and must,
perforce, prevail.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The
November 17, 2003 Amended Decision and the December 13, 2004 Resolution of the Court of
Appeals in CA-G.R. CV No. 59903 are accordingly REVERSED and SET ASIDE.

SO ORDERED.
G.R. No. 142947      March 19, 2002

FRANCISCO N. VILLANUEVA, JR., petitioner,

vs.
THE HON. COURT OF APPEALS and ROQUE VILLADORES, respondents.

DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals dated April 12,
2000 in CA-G.R. SP No. 50235 reversing the two (2) Orders dated August 27, 19982 and December
4, 19983 of the Regional Trial Court of Manila, Branch 41, in Criminal Cases Nos. 94-138744-45
which denied respondent Roque Villadores's motion for disqualification of Rico and Associates as
private prosecutor for petitioner Francisco N. Villanueva, Jr., and the motion for reconsideration
thereof, respectively.1âwphi1.nêt

Respondent Villadores is one of the accused in the amended informations in Criminal Cases Nos.
94-138744 and 94-138745 entitled, "People of the Philippines v. Atty. Tomas Bernardo, Roque
Villadores, Alberto Adriano and Rolando Advincula," for Falsification of Public Document before the
Regional Trial Court of Manila, Branch 41.

It appears that petitioner Villanueva, Jr. filed a complaint for illegal dismissal against several parties,
among them, IBC 13. When the labor arbiter4 ruled in favor of petitioner Villanueva, Jr., IBC 13
appealed to the National Labor Relations Commission (NLRC).5 As an appeal bond, IBC 13 filed
Surety Bond No. G (16) 00136 issued by BF General Insurance Company, Inc. (BF) with the
Confirmation Letter dated September 20, 1993 supposedly issued by BF's Vice-President. However,
both documents were subsequently found to be falsified.

Thus, the two (2) complaints for falsification of public document were filed before the Manila City
Prosecutor's Office. The charges against respondent Villadores and Atty. Eulalio Diaz III were
dismissed by the City Prosecutor's Office which, however, found probable cause against the other
respondents. Nonetheless, on a petition for review before the Department of Justice (DOJ), the latter
affirmed the dismissal against Diaz but ordered the inclusion of respondent Villadores as an accused
in the two (2) criminal cases. Accordingly, the original informations were amended to include
respondent Villadores among those charged.

Following the arraignment of respondent Villadores, the private prosecutor, Rico and Associates,
filed anew a Motion to Admit Amended Informations alleging damages sustained by private
complainant, herein petitioner Villanueva, Jr., as a result of the crimes committed by the accused.
The incident was referred to the City Prosecutor's Office by the trial court. In compliance, the fiscal's
office submitted a Motion to Admit Amended Informations with the following amendment: "to the
prejudice of Francisco N. Villanueva, Jr., and of public interest and in violation of public faith and
destruction of truth as therein proclaimed."

The Motion was granted by the trial court and the amended informations were admitted in an Order
dated October 10, 1997. Respondent Villadores subsequently filed a Manifestation and/or Motion for
Reconsideration but the same was denied in an Order dated October 24, 1997.

Thus, respondent Villadores interposed on November 26, 1997 a petition for certiorari with the Court
of Appeals. Said petition, which was docketed as CA-G.R. SP No. 46103, sought to annul the Order
of the trial court dated October 10, 1997 which admitted the second amended informations, as well
as the Order dated October 24, 1997 denying his motion for reconsideration thereof.6

In a Decision dated June 22, 1998, the appellate court, acting thru its Eleventh Division, found that
the trial court committed no grave abuse of discretion in admitting the amended informations and
dismissed the petition of respondent Villadores.7 The decision in CA-G.R. SP No. 46103 became
final and executory on July 18, 1998.8

Subsequently, before Branch 41 of the Regional Trial Court of Manila, respondent Villadores moved
for the disqualification of Rico and Associates as private prosecutor for petitioner Villanueva, Jr.,9 in
line with the following pronouncement of the appellate court in CA-G.R. SP No. 46103, to wit:10

Incidentally, We are one with the petitioner when it argued that Francisco N. Villanueva, Jr. is
not the offended party in these cases. It must be underscored that it was IBC 13 who
secured the falsified surety bond for the purpose of the appeal it had taken from an adverse
judgment of the labor case filed by Francisco N. Villanueva, Jr. himself and wherein the latter
prevailed. We see no reason how Villanueva could have sustained damages as a result of
the falsification of the surety appeal bond and its confirmation letter when it could have even
redounded to his own benefit if the appeal would be dismissed as a result of the forgery. If
there be anyone who was prejudiced, it was IBC 13 when it purchased a fake surety bond.

Rico and Associates opposed said motion on the ground that the above-quoted pronouncement of
the appellate court is a mere obiter dictum.11

In an Order12 dated August 27, 1998 the trial court denied the motion for disqualification ratiocinating,
thus:

A reading of the aforecited decision of the Court of Appeals clearly shows that the aforecited
reason for the motion is a mere obiter dictum. As held by the Supreme Court, an obiter
dictum lacks force of adjudication. It is merely an expression of an opinion with no binding
force for purposes of res judicata (City of Manila vs. Entote, June 28, 1974, 57 SCRA, 508-
509). What is controlling is the dispositive portion of the subject decision of the Court of
Appeals which denied due course and ordered dismissed the petition of the movant
questioning the Order of this Court granting the Motion to Admit Informations and admitting
the Amended Informations that include the name of Francisco N. Villanueva, Jr. as the
private offended party, which in effect upheld and/or affirmed the questioned Order of this
Court admitting the amended informations.

Reconsideration13 was sought by respondent Villadores but the same was denied by the trial court in
its Order dated December 4, 1998.14

Thus, on January 7, 1999, respondent Villadores filed a petition for certiorari with the Court of
Appeals, docketed therein as CA-G.R. SP No. 50235, seeking the annulment of the trial court's
Order dated August 27, 1998 denying the Motion for Disqualification as well as its subsequent Order
dated December 4, 1998 denying reconsideration.15

On April 12, 2000, the appellate court rendered its now challenged decision which reversed and set
aside the two (2) Orders of the trial court dated August 27, 1998 and December 4, 1998. The
appellate court directed that the name of petitioner Villanueva, Jr., appearing as the offended party
in Criminal Cases Nos. 94-138744-45 be stricken out from the records.16
Hence, this petition anchored on the following grounds:17

THE HON. COURT OF APPEALS SERIOUSLY ERRED IN ENJOINING RICO &

ASSOCIATES FROM APPEARING AS PRIVATE PROSECUTOR AND/OR AS COUNSEL
FOR FRANCISCO N. VILLANUEVA, JR., IN CRIMINAL CASE NOS. 94-138744-45.

THE HON. COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO APPRECIATE

THAT THE MATTER OF WHETHER OR NOT FRANCISCO N. VILLANUEVA, JR. IS AN
OFFENDED PARTY IN CRIMINAL CASE NOS. 94-138744-45 HAD BEEN RESOLVED
WITH FINALITY IN THE AFFIRMATIVE IN CA-G.R. SP NO. 46103 WHERE THE HON.
COURT OF APPEALS UPHELD THE AMENDMENT OF THE INFORMATIONS IN SAID
CASES TO STATE THAT THE CRIMES WERE COMMITTED TO THE PREJUDICE OF
FRANCISCO N. VILLANUEVA, JR., AND PURSUANT TO THE DOCTRINE OF RES
JUDICATA, THE SAME COULD NO LONGER BE RELITIGATED IN CA-G.R. SP NO.
50235.

THE HON. COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO CONSIDER THE

PRONOUNCEMENT IN CA-G.R. SP NO. 46103 THAT FRANCISCO N. VILLANUEVA, JR.
IS NOT AN OFFENDED PARTY, AS A MERE OBITER DICTUM.

THE HON. COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO APPRECIATE

THAT FRANCISCO N. VILLANUEVA, JR., WAS IN FACT AN AGGRIEVED PARTY.

THE HON. COURT OF APPEALS SERIOUSLY ERRED IN ORDERING THE NAME OF

FRANCISCO N. VILLANUVEVA, JR., APPEARING AS THE OFFENDED PARTY BE
STRICKEN FROM THE RECORDS, DESPITE THE FACT THAT IN CA-G.R. SP NO. 46103,
IT UPHELD THE AMENDMENT OF THE INFORMATIONS SO AS TO STATE THAT THE
CRIMES CHARGED WERE COMMITTED TO THE PREJUDICE OF FRANCISCO N.
VILLANUEVA, JR.

All the foregoing issues boil down to the issue of whether or not the pronouncement of the appellate
court in CA-G.R. SP No. 46103 to the effect that petitioner Villanueva, Jr. is not an offended party in
Criminal Cases Nos. 94-138744-45 is obiter dictum.

An obiter dictum has been defined as an opinion expressed by a court upon some question of law
which is not necessary to the decision of the case before it. It is a remark made, or opinion
expressed, by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally,
and not directly upon the question before him, or upon a point not necessarily involved in the
determination of the cause, or introduced by way of illustration, or analogy or argument. Such are
not binding as precedent.18

Based on the foregoing, the pronouncement of the appellate court in CA-G.R. SP No. 46103 is not
an obiter dictum as it touched upon a matter clearly raised by respondent Villadores in his petition
assailing the admission of the Amended Informations. Among the issues upon which the petition
for certiorari in CA-G.R. SP No. 46103 was anchored, was "whether Francisco N. Villanueva, Jr. is
the offended party.19 Argument on whether petitioner Villanueva, Jr. was the offended party was,
thus, clearly raised by respondent Villadores. The body of the decision contains discussion on that
point and it clearly mentioned certain principles of law.

It has been held that an adjudication on any point within the issues presented by the case cannot be
considered as obiter dictum, and this rule applies to all pertinent questions, although only incidentally
involved, which are presented and decided in the regular course of the consideration of the case,
and led up to the final conclusion, and to any statement as to matter on which the decision is
predicated. Accordingly, a point expressly decided does not lose its value as a precedent because
the disposition of the case is, or might have been, made on some other ground, or even though, by
reason of other points in the case, the result reached might have been the same if the court had
held, on the particular point, otherwise than it did. A decision which the case could have turned on is
not regarded as obiter dictum merely because, owing to the disposal of the contention, it was
necessary to consider another question, nor can an additional reason in a decision, brought forward
after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case
presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but
the court actually decides all such points, the case as an authoritative precedent as to every point
decided, and none of such points can be regarded as having the status of a dictum, and one point
should not be denied authority merely because another point was more dwelt on and more fully
argued and considered, nor does a decision on one proposition make statements of the court
regarding other propositions dicta.20

The decision of the appellate court in CA-G.R. SP No. 46103 allegedly show a conflict between the
pronouncements in the body of the decision and the dispositive portion thereof. However, when that
decision is carefully and thoroughly read, such conflict is revealed to be more illusory than real. In
denying the petition for certiorari in CA-G.R. SP No. 46103, the appellate court had this to say:

At the centerfold of this controversy is Section 14 of Rule 110, 1st paragraph, which is
quoted hereunder:

SEC. 14. Amendment. - The information or complaint may be amended, in substance

or form, without leave of court, at any time before the accused pleads, and thereafter
and during the trial as to all matters of form, by leave and at the discretion of the
court, when the same can be done without prejudice to the rights of the accused."

Needless to state, amendment of a criminal charge sheet depends much on the time when
the change is requested. If before arraignment it is a matter of right, no leave of court is
necessary and the prosecution is free to do so even in matters of substance and in form. On
the other hand, the more complicated situation involves an amendment sought after the
accused had already been arraigned. This time amendment can only be made by a prior
leave and at the discretion of the court, only as to matters of form when the same can be
done without prejudice to the rights of the accused [Draculan vs. Donato; 140 SCRA 425
(1985); Teehankee vs. Madayag, 207 SCRA 134 (1992)].

Relative to the second instance, the primary consideration is whether the intended
amendment is only as to matter of form and same could be done without prejudice to the
rights of the accused. Substantial amendment as a consequence is proscribed. In essence,
substantial matters in the complaint or information is the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All other matters are
merely of form [Almeda vs. Villaluz, 66 SCRA 38 (1975); Teehankee vs. Madayag, supra].

In other words, even if the amendment is only as to matter of form, one other criteria must
accompany it for its admission, which is, that it should not be prejudicial to the accused.
Conformably, the test as to when the rights of an accused are prejudiced by the amendment
of a complaint or information is, when a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made, and when any
evidence the accused might have, would no longer be available after the amendment is
made, and when any evidence the accused might have, would be inapplicable to the
 complaint or information as amended [People vs. Montenegro, 159 SCRA 236 (1988);
Teehankee vs. Madayag, supra].

Given the above aphorisms, the inclusion of the name of Francisco N. Villanueva, Jr. as the
prejudiced complainant in the cases appears to be not substantial. It did not change, alter or
modify the crime charged nor any possible defense. Likewise, any evidence the accused
might have under his defense in the original informations is still very much available to him
and applicable to the amended informations. In sum, accused petitioner is not in any way
prejudiced in his rights with such amendment which, in Our considered opinion, is only a
matter of form under the standards laid down in the cases above-cited.

What seems to be more crucial here is the fact that the crime charged in the two informations
is falsification of public document committed by a private individual defined and penalized
under Article 172, paragraph 1, of the Revised Penal Code. Accordingly, the evil sought to
be punished and sanctioned by the offense of falsification of public document is the violation
of the public faith and the destruction of the trust as therein solemnly proclaimed [People vs.
Pacana, 47 Phil 48, citing Decisions of the Supreme Court of Spain of December 23, 1886;
People vs. Mateo, 25 Phil. 324, Po Giok To, 96 Phil. 913; see Revised Penal Code, Luis B.
Reyes, 13th Division, p. 211 and Aquino, 1976 ed., Vol. 2, p. 984]. Apropos, the crime of
falsification of public document does not require for its essential elements damage or intent
to cause damage. In the final analysis. the inclusion of the name of Francisco N. Villanueva.
Jr. would then be merely a superfluity in the information, a meaningless surplusage therein.
In fact. it is even highly doubted if civil damages may be awarded in such transgression of
the law.

Viewed from the above ratiocinations, We find no grave abuse of discretion on the part of the
lower court in admitting the second amended informations albeit such amendment is totally
irrelevant and unnecessary to the crime charged. The mere fact that the court decides the
question wrongly is utterly immaterial to the question of jurisdiction [Estrada vs. Sto
Domingo, 28 SCRA 891 (1969)]. And writs of certiorari are issued only for the correction of
errors of jurisdiction or grave abuse of discretion amounting to lack or in excess of
jurisdiction. It cannot be legally used for any other purpose [Silverio vs. Court of Appeals,
141 SCRA 527 (1986)].

Incidentally, We are in one with the petitioner when it argued that Francisco N. Villanueva, Jr.
is not the offended party in these cases. It must be underscored that it was IBC 13 who
secured the falsified surety bond for the purpose of the appeal it had taken from an adverse
judgment of the labor case filed by Francisco N. Villanueva, Jr. himself and wherein the latter
prevailed. We see no reason how Villanueva could have sustained damages as a result of
the falsification of the surety appeal bond and its confirmation letter when it could have even
redounded to his own benefit if the appeal would be dismissed as a result of the forgery. If
there be anyone who was prejudiced, it was IBC 13 when it purchased a fake surety bond.21

Clearly then, while the appellate court in CA-G.R. SP No. 46103 admitted that the addition of
petitioner Villanueva, Jr. as an offended party is not necessary, it held that the admission of the
amended informations due to the amendment to include petitioner Villanueva, Jr. did not by itself
amount to grave abuse of discretion amounting to lack or excess of jurisdiction. Otherwise stated,
there is an error of judgment but such did not amount to an error of jurisdiction.
1âwphi1.nêt

The special civil action for certiorari, which was availed of respondent Villadores, is a remedy
designed for the correction of errors of jurisdiction and not errors of judgment. When a court
exercised its jurisdiction an error committed while so engaged does not deprive it of the jurisdiction
being exercised when the error is committed. If it did, every error committed by a court would deprive
it of its jurisdiction and every erroneous judgment would be a void judgment. Thus, an error of
judgment that the court may commit in the exercise of its jurisdiction is not correctible through the
original special civil action of certiorari.22 In effect, the appellate court in CA-G.R. SP No. 46103
merely held that respondent Villadores chose the wrong remedy.

It is significant to mention that the intervention of petitioner Villanueva, Jr. in the criminal cases as an
offended party is apparently predicated23 on the reduction by the NLRC, in IBC's appeal of the illegal
dismissal case, of the monetary award to which he is entitled, despite finding the appeal as not
perfected due to the posting of the spurious appeal bond.24 However, such alleged error should have
been brought by petitioner Villanueva, Jr. to the appropriate forum,25 and not raised in criminal cases
before the trial court as a ground for his inclusion as a "prejudiced party".

In view of all the foregoing, the instant petition, being devoid of merit, must fail.

WHEREFORE, the instant petition is hereby DENIED, and the Decision of the Court of Appeals
dated April 12, 2000 in CA-G.R. SP No. 50235 is AFFIRMED. No costs.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

G.R. Nos. 119987-88 October 12, 1995

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National
Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.

KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After finding that an accused
individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed
any discretion in imposing either the penalty of Reclusion Perpetua or Death?

The facts antecedent to the case before this Court, as narrated by petitioner,  involve the
1

perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all
civilized men:

On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza
wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left
hand protruding from it was seen floating along Del Pan St. near the corner of
Lavesares St., Binondo, Manila.

When untied and removed from its cover, the lifeless body of the victim was seen
clad only in a light colored duster without her panties, with gaping wounds on the left
side of the face, the left chin, left ear, lacerations on her genitalia, and with her head
bashed in.

On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy
report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape
with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila,
National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071,
reads:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused,
conspiring and confederating together with one alias "LANDO" and other persons
whose true names, identifies and present whereabouts are still unknown and helping
one another, with treachery, taking advantage of their superior strength and
nocturnity, and ignominy, and with the use of force and violence, that is, by taking
ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her
vagina, hitting her head with a thick piece of wood and stabbing her neck did then
and there wilfully, unlawfully and feloniously have carnal knowledge of the person of
said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the
latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a.
"LANDO" and others, caused her fatal injuries which were the direct cause of her
death immediately thereafter.
 CONTRARY TO LAW.

Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198

Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274
Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of
1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. "Joel," of
1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with
Homicide in an Information dated August 11, 1994, docketed as Criminal Case No.
94-138138, allegedly committed as follows:

That on or about the 2nd day of August, 1994, in the City of Manila,
Philippines, the said accused conspiring and confederating with
ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY
LAGARTO y PETILLA who have already been charged in the
Regional Trial Court of Manila of the same offense under Criminal
Case No. 94-138071, and helping one another, with treachery, taking
advantage of their superior strength and nocturnity and ignominy, and
with the use of force and violence, that is, by taking ANGEL ALQUIZA
y LAGMAN into a pedicab, and once helpless, forcibly bringing her to
a nearby warehouse, covering her mouth, slashing her vagina, hitting
her head with a thick piece of wood and stabbing her neck, did then
and there wilfully, unlawfully and feloniously have carnal knowledge
of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven
(7) years of age, against the latter's will and consent and on said
occasion the said accused together with their confederates ABUNDIO
LAGARTO y PETILLA caused her fatal injuries which were the direct
cause of her death immediately thereafter.

CONTRARY TO LAW.

The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of
Manila, presided over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead,
(allegedly shot by police escorts after attempting to fire a gun he was able to grab
from SPO1 D. Vidad on August 12, 1994), pleaded "Not Guilty." Abundio Lagunday
was dropped from the Information.

After trial and presentation of the evidence of the prosecution and the defense, the trial court
rendered a decision  on January 31, 1995 finding the defendants Henry Lagarto y Petilla and
2

Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and
sentenced both accused with the "penalty of reclusion perpetua with all the accessories provided for
by law."  Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995,
3

filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death
be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion
perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge,
on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent
portion reads:

The Court believes that in the above-entitled cases, the accused Lagarto and
Cordero have complied with the legal requirements for the perfection of an appeal.
 Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion
for Reconsideration of the Public Prosecutor of Manila.

WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal
filed by both herein accused is hereby reiterated.

The Clerk of this Court is hereby directed to transmit the complete records of these
cases, together with the notices of appeal, to the Honorable Supreme Court, in
accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure.

SO ORDERED.

Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's
determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time
on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to
the instant case relevant to the determination of the legal question at hand, i.e., whether or not the
respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed
and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding
the accused guilty of the crime of Rape with Homicide.

We find for petitioner.

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they
are required by law to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor,"  resist encroachments by governments, political parties,  or even
4 5

the interference of their own personal beliefs.

In the case at bench, respondent judge, after weighing the evidence of the prosecution and the
defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with
Homicide. Since the law in force at the time of the commission of the crime for which respondent
judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions.

Section 11 of R.A. No. 7659 provides:

Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

 Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or

on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death. . . . 6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion — depending on the existence of
circumstances modifying the offense committed — to impose the penalty of either Reclusion
Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these
three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the
occasion of rape, a homicide is committed, the penalty shall be death." The provision leaves no
room for the exercise of discretion on the part of the trial judge to impose a penalty under the
circumstances described, other than a sentence of death.

We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize
that a court of law is no place for a protracted debate on the morality or propriety of the sentence,
where the law itself provides for the sentence of death as a penalty in specific and well-defined
instances. The discomfort faced by those forced by law to impose the death penalty is an ancient
one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom,
efficacy or morality of laws. In People vs. Limaco 7 we held that:

[W]hen . . . private opinions not only form part of their decision but constitute a
decisive factor in arriving at a conclusion and determination of a case or the penalty
imposed, resulting in an illegality and reversible error, then we are constrained to
state our opinion, not only to correct the error but for the guidance of the courts. We
have no quarrel with the trial judge or with anyone else, layman or jurist as to the
wisdom or folly of the death penalty. Today there are quite a number of people who
honestly believe that the supreme penalty is either morally wrong or unwise or
ineffective. However, as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in certain cases, it is the duty of
judicial officers to respect and apply the law regardless of their private opinions. It is
a well settled rule that the courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of the Legislature
which enacts them and the Chief Executive who approves or vetoes them. The only
function of the judiciary is to interpret the laws and, if not in disharmony with the
Constitution, to apply them. And for the guidance of the members of the judiciary we
feel it incumbent upon us to state that while they as citizens or as judges may regard
a certain law as harsh, unwise or morally wrong, and may recommend to the
authority or department concerned, its amendment, modification, or repeal, still, as
long as said law is in force, they must apply it and give it effect as decreed by the
law-making body. 8
Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the
proper penalty and civil liability provided for by the law on the accused."  This is not a case of a
9

magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate
provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent
judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a
lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the
penalty of Death.

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private
respondents in consonance with respondent judge's finding that the private respondents in the
instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal
Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this
Court of the decision imposing the death penalty.

SO ORDERED.
G.R. No. 112170 April 10, 1996

CESARIO URSUA, petitioner,
vs.
COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:p

This is a petition for review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of
Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as "An Act to Regulate the Use of
Aliases". 1

Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in
Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of
the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse
of authority and giving of unwarranted benefits by petitioner and other officials of the Department of
Environment and Natural Resources. The complaint was initiated by the Sangguniang Panlalawigan
of Cotabato through a resolution advising the Governor to report the involvement of petitioner and
others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area. 2

On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the
Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner.
Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman
because his law firm's messenger, Oscar Perez, had to attend to some personal matters. Before
proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he
was reluctant to personally ask for the document since he was one of the respondents before the
Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if
ever he would be required to acknowledge receipt of the complaint.  3

When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the
security officer to register in the visitors' logbook. Instead of writing down his name petitioner wrote
the name "Oscar Perez" after which he was told to proceed to the Administrative Division for the
copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the
Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of
which he acknowledged by writing the name "Oscar Perez." 4

Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who
also worked in the same office. They conversed for a while then he left. When Loida learned that the
person who introduced himself as "Oscar Perez" was actually petitioner Cesario Ursua, a customer
of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who
recommended that petitioner be accordingly charged.

On 18 December 1990, after the prosecution had completed the presentation of its evidence,
petitioner without leave of court filed a demurrer to evidence alleging that the failure of the
prosecution to prove that his supposed alias was different from his registered name in the local civil
registry was fatal to its cause. Petitioner argued that no document from the local civil registry was
presented to show the registered name of accused which according to him was a condition sine qua
non for the validity of his conviction.
The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as
amended by R.A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1)
day of prision correccional minimum as minimum, to four (4) years of prision correccional medium
as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00
plus costs.

Petitioner appealed to the Court of Appeals.

On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty
by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a
fine of P5,000.00.

Petitioner now comes to us for review of his conviction as he reasserts his innocence. He contends
that he has not violated C.A. No. 142 as amended by R.A. No. 6085 as he never used
any alias name; neither is "Oscar Perez" his alias. An alias, according to him, is a term which
connotes the habitual use of another name by which a person is also known. He claims that he has
never been known as "Oscar Perez" and that he only used such name on one occasion and it was
with the express consent of Oscar Perez himself. It is his position that an essential requirement for a
conviction under C.A. No. 142 as amended by R.A. No. 6085 has not been complied with when the
prosecution failed to prove that his supposed alias was different from his registered name in the
Registry of Births. He further argues that the Court of Appeals erred in not considering the defense
theory that he was charged under the wrong law. 5

Time and again we have decreed that statutes are to be construed in the light of the purposes to be
achieved and the evils sought to be remedied. Thus in construing a statute the reason for its
enactment should be kept in mind and the statute should be construed with reference to the
intended scope and purpose.  The court may consider the spirit and reason of the statute, where a
6

literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of
the lawmakers. 7

For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated
by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent
provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was
approved on 7 November 1936, and before its amendment by R.A. No. 6085, is entitled An Act to
Regulate the Use of Aliases. It provides as follows:

Sec. 1. Except as a pseudonym for literary purposes, no person shall use any name
different from the one with which he was christened or by which he has been known
since his childhood, or such substitute name as may have been authorized by a
competent court. The name shall comprise the patronymic name and one or two
surnames.

Sec. 2. Any person desiring to use an alias or aliases shall apply for authority

therefor in proceedings like those legally provided to obtain judicial authority for a
change of name. Separate proceedings shall be had for each alias, and each new
petition shall set forth the original name and the alias or aliases for the use of which
judicial authority has been, obtained, specifying the proceedings and the date on
which such authority was granted. Judicial authorities for the use of aliases shall be
recorded in the proper civil register . . . .

The above law was subsequently amended by R.A. No. 6085, approved on 4 August 1969. As
amended, C.A. No. 142 now reads:
 Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other
entertainment purposes and in athletic events where the use of pseudonym is a
normally accepted practice, no person shall use any name different from the one with
which he was registered at birth in the office of the local civil registry or with which he
was baptized for the first time, or in case of all alien, with which he was registered in
the bureau of immigration upon entry; or such substitute name as may have been
authorized by a competent court: Provided, That persons whose births have not been
registered in any local civil registry and who have not been baptized, have one year
from the approval of this act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic name and one or two
surnames.

Sec. 2. Any person desiring to use an alias shall apply for authority therefor in
proceedings like those legally provided to obtain judicial authority for a change of
name and no person shall be allowed to secure such judicial authority for more than
one alias. The petition for an alias shall set forth the person's baptismal and family
name and the name recorded in the civil registry, if different, his immigrant's name, if
an alien, and his pseudonym, if he has such names other than his original or real
name, specifying the reason or reasons for the desired alias. The judicial authority for
the use of alias, the Christian name and the alien immigrant's name shall be
recorded in the proper local civil registry, and no person shall use any name or
names other than his original or real name unless the same is or are duly recorded in
the proper local civil registry.

The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to
Regulate the Use in Business Transactions of Names other than True Names, Prescribing the
Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing
Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931
and amended by Act No. 4147, approved on 28 November 1934.  The pertinent provisions of Act No.
8

3883 as amended follow —

Sec. 1. It shall be unlawful for any person to use or sign, on any written or printed
receipt including receipt for tax or business or any written or printed contract not
verified by a notary public or on any written or printed evidence of any agreement or
business transactions, any name used in connection with his business other than his
true name, or keep conspicuously exhibited in plain view in or at the place where his
business is conducted, if he is engaged in a business, any sign announcing a firm
name or business name or style without first registering such other name, or such
firm name, or business name or style in the Bureau of Commerce together with his
true name and that of any other person having a joint or common interest with him in
such contract, agreement, business transaction, or business . . . .

For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the
common practice among the Chinese of adopting scores of different names and aliases which
created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of
using fictitious names which for obvious reasons could not be successfully maintained against the
Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142
thus penalized the act of using an alias name, unless such alias was duly authorized by proper
judicial proceedings and recorded in the civil register.
9

In Yu Kheng Chiau v. Republic   the Court had occasion to explain the meaning, concept and ill
10

effects of the use of an alias within the purview of C.A. No. 142 when we ruled —
 There can hardly be any doubt that petitioner's use of alias "Kheng Chiau Young" in
addition to his real name "Yu Cheng Chiau" would add to more confusion. That he is
known in his business, as manager of the Robert Reid, Inc., by the former name, is
not sufficient reason to allow him its use. After all, petitioner admitted that he is
known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which
he is a customer, knows him by his real name. Neither would the fact that he had
encountered certain difficulties in his transactions with government offices which
required him to explain why he bore two names, justify the grant of his petition, for
petitioner could easily avoid said difficulties by simply using and sticking only to his
real name "Yu Kheng Chiau."

The fact that petitioner intends to reside permanently in the Philippines, as shown by
his having filed a petition for naturalization in Branch V of the above-mentioned court,
argues the more against the grant of his petition, because if naturalized as a Filipino
citizen, there would then be no necessity for his further using said alias, as it would
be contrary to the usual Filipino way and practice of using only one name in ordinary
as well as business transactions. And, as the lower court correctly observed, if he
believes (after he is naturalized) that it would be better for him to write his name
following the Occidental method, "he can easily file a petition for change of name, so
that in lieu of the name "Yu Kheng Chian," he can, abandoning the same, ask for
authority to adopt the name Kheng Chiau Young."

All things considered, we are of the opinion and so hold, that petitioner has not
shown satisfactory proper and reasonable grounds under the aforequoted provisions
of Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his
petition for the use of an alias name.

Clearly therefore an alias is a name or names used by a person or intended to be used by him
publicly and habitually usually in business transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute name authorized by a competent authority.
A man's name is simply the sound or sounds by which he is commonly designated by his fellows and
by which they distinguish him but sometimes a man is known by several different names and these
are known as aliases.   Hence, the use of a fictitious name or a different name belonging to another
11

person in a single instance without any sign or indication that the user intends to be known by this
name in addition to his real name from that day forth does not fall within the prohibition contained in
C.A. No. 142 as amended. This is so in the case at bench.

It is not disputed that petitioner introduced himself in the Office of the Ombudsman as "Oscar
Perez," which was the name of the messenger of his lawyer who should have brought the letter to
that office in the first place instead of petitioner. He did so while merely serving the request of his
lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question
then that "Oscar Perez" is not an alias name of petitioner. There is no evidence showing that he had
used or was intending to use that name as his second name in addition to his real name. The use of
the name "Oscar Perez" was made by petitioner in an isolated transaction where he was not even
legally required to expose his real identity. For, even if he had identified himself properly at the Office
of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right,
and the Office of the Ombudsman could not refuse him because the complaint was part of public
records hence open to inspection and examination by anyone under the proper circumstances.

While the act of petitioner may be covered by other provisions of law, such does not constitute an
offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The
confusion and fraud in business transactions which the anti-alias law and its related statutes seek to
prevent are not present here as the circumstances are peculiar and distinct from those contemplated
by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that
undesirable consequences were never intended by a legislative measure and that a construction of
which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil and injurious consequences.   Moreover, as C.A. No. 142 is a penal
12

statute, it should be construed strictly against the State and in favor of the accused.   The reason for
13

this principle is the tenderness of the law for the rights of individuals and the object is to establish a
certain rule by conformity to which mankind would be safe, and the discretion of the court
limited.   Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on
14

a law that does not clearly penalize the act done by him.

WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial
Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is
ACQUITTED of the crime charged.

SO ORDERED.
G.R. No. 165732             December 14, 2006

SAFEGUARD SECURITY AGENCY, INC., and ADMER PAJARILLO, petitioners,

vs.
LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO TANGCO, VON
LARRIE TANGCO, VIEN LARI TANGCO and VIVIEN LAURIZ TANGCO, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc. (Safeguard)
and Admer Pajarillo (Pajarillo) assailing the Decision1 dated July 16, 2004 and the Resolution2 dated
October 20, 2004 issued by the Court of Appeals (CA) in CA-G.R. CV No. 77462.

On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology Bank,
Katipunan Branch, Quezon City, to renew her time deposit per advise of the bank's cashier as she
would sign a specimen card. Evangeline, a duly licensed firearm holder with corresponding permit to
carry the same outside her residence, approached security guard Pajarillo, who was stationed
outside the bank, and pulled out her firearm from her bag to deposit the same for safekeeping.
Suddenly, Pajarillo shot Evangeline with his service shotgun hitting her in the abdomen instantly
causing her death.

Lauro Tangco, Evangeline's husband, together with his six minor children (respondents) filed with
the Regional Trial Court (RTC) of Quezon City, a criminal case of Homicide against Pajarillo,
docketed as Criminal Case No. 0-97-73806 and assigned to Branch 78. Respondents reserved their
right to file a separate civil action in the said criminal case. The RTC of Quezon City subsequently
convicted Pajarillo of Homicide in its Decision dated January 19, 2000.3 On appeal to the CA, the
RTC decision was affirmed with modification as to the penalty in a Decision4 dated July 31, 2000.
Entry of Judgment was made on August 25, 2001.

Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a
complaint5 for damages against Pajarillo for negligently shooting Evangeline and against Safeguard
for failing to observe the diligence of a good father of a family to prevent the damage committed by
its security guard. Respondents prayed for actual, moral and exemplary damages and attorney's
fees.

In their Answer,6 petitioners denied the material allegations in the complaint and alleged that
Safeguard exercised the diligence of a good father of a family in the selection and supervision of
Pajarillo; that Evangeline's death was not due to Pajarillo's negligence as the latter acted only in self-
defense. Petitioners set up a compulsory counterclaim for moral damages and attorney's fees.

Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,7 the dispositive portion
of which reads:
 WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline
Tangco, and against defendants Admer Pajarillo and Safeguard Security Agency, Inc.
ordering said defendants to pay the plaintiffs, jointly and severally, the following:

1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS

(P157,430.00), as actual damages

2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;

3. ONE MILLION PESOS (P1,000,000.00), as moral damages;

4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages;

5. THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and

6. costs of suit.

For lack of merit, defendants' counterclaim is hereby DISMISSED.

SO ORDERED. 8

The RTC found respondents to be entitled to damages. It rejected Pajarillo's claim that he merely
acted in self-defense. It gave no credence to Pajarillo's bare claim that Evangeline was seen
roaming around the area prior to the shooting incident since Pajarillo had not made such report to
the head office and the police authorities. The RTC further ruled that being the guard on duty, the
situation demanded that he should have exercised proper prudence and necessary care by asking
Evangeline for him to ascertain the matter instead of shooting her instantly; that Pajarillo had already
been convicted of Homicide in Criminal Case No. 0-97-73806; and that he also failed to proffer proof
negating liability in the instant case.

The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable with
Pajarillo. It ruled that while it may be conceded that Safeguard had perhaps exercised care in the
selection of its employees, particularly of Pajarillo, there was no sufficient evidence to show that
Safeguard exercised the diligence of a good father of a family in the supervision of its employee; that
Safeguard's evidence simply showed that it required its guards to attend trainings and seminars
which is not the supervision contemplated under the law; that supervision includes not only the
issuance of regulations and instructions designed for the protection of persons and property, for the
guidance of their servants and employees, but also the duty to see to it that such regulations and
instructions are faithfully complied with.

Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed
Decision, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the
modification that Safeguard Security Agency, Inc.'s civil liability in this case is only subsidiary
under Art. 103 of the Revised Penal Code. No pronouncement as to costs.9

In finding that Safeguard is only subsidiarily liable, the CA held that the applicable provisions are not
Article 2180 in relation to Article 2176 of the Civil Code, on quasi-delicts, but the provisions on civil
liability arising from felonies under the Revised Penal Code; that since Pajarillo had been found
guilty of Homicide in a final and executory judgment and is said to be serving sentence in
Muntinlupa, he must be adjudged civilly liable under the provisions of Article 100 of the Revised
Penal Code since the civil liability recoverable in the criminal action is one solely dependent upon
conviction, because said liability arises from the offense charged and no other; that this is also the
civil liability that is deemed extinguished with the extinction of the penal liability with a
pronouncement that the fact from which the civil action might proceed does not exist; that unlike in
civil liability arising from quasi-delict, the defense of diligence of a good father of a family in the
employment and supervision of employees is inapplicable and irrelevant in civil liabilities based on
crimes or ex-delicto; that Article 103 of the Revised Penal Code provides that the liability of an
employer for the civil liability of their employees is only subsidiary, not joint or solidary.

Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution dated October
20, 2004.

Hence, the instant Petition for Review on Certiorari with the following assignment of errors, to wit:

The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable to
respondents for the payment of damages and other money claims.

The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised
Penal Code in holding petitioner Safeguard solidarily [sic] liable with petitioner Pajarillo for
the payment of damages and other money claims.

The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard
Security Agency, Inc. exercised due diligence in the selection and supervision of its
employees, hence, should be excused from any liability.10

The issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting Evangeline; and
(2) Safeguard should be held solidarily liable for the damages awarded to respondents.

Safeguard insists that the claim for damages by respondents is based on culpa aquiliana under
Article 217611 of the Civil Code, in which case, its liability is jointly and severally with Pajarillo.
However, since it has established that it had exercised due diligence in the selection and supervision
of Pajarillo, it should be exonerated from civil liability.

We will first resolve whether the CA correctly held that respondents, in filing a separate civil action
against petitioners are limited to the recovery of damages arising from a crime or delict, in which
case the liability of Safeguard as employer under Articles 102 and 103 of the Revised Penal
Code12 is subsidiary and the defense of due diligence in the selection and supervision of employee is
not available to it.

The CA erred in ruling that the liability of Safeguard is only subsidiary.

The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on Criminal
Procedure, as amended, to wit:

SECTION 1. Institution of criminal and civil actions. - When a criminal action is instituted, the
civil action for the recovery of civil liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action, reserves his right to institute it separately,
or institutes the civil action prior to the criminal action.
 Such civil action includes recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from
the same act or omission of the accused.

Respondents reserved the right to file a separate civil action and in fact filed the same on January
14, 1998.

The CA found that the source of damages in the instant case must be the crime of homicide, for
which he had already been found guilty of and serving sentence thereof, thus must be governed by
the Revised Penal Code.

We do not agree.

An act or omission causing damage to another may give rise to two separate civil liabilities on the
part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code; and
(2) independent civil liabilities, such as those (a) not arising from an act or omission complained of
as a felony, e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code,
intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil
Code; or (b) where the injured party is granted a right to file an action independent and distinct from
the criminal action under Article 33 of the Civil Code. Either of these liabilities may be enforced
against the offender subject to the caveat under Article 2177 of the Civil Code that the offended
party cannot recover damages twice for the same act or omission or under both causes.13

It is important to determine the nature of respondents' cause of action. The nature of a cause of
action is determined by the facts alleged in the complaint as constituting the cause of action.14 The
purpose of an action or suit and the law to govern it is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and
prayer for relief.15

The pertinent portions of the complaint read:

7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ecology
Bank – Katipunan Branch, Quezon City, who was employed and under employment of
Safeguard Security Agency, Inc. hence there is employer-employee relationship between co-
defendants.

The Safeguard Security Agency, Inc. failed to observe the diligence of a good father of a
family to prevent damage to herein plaintiffs.

8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm
out of her bag, suddenly without exercising necessary caution/care, and in idiotic manner,
with the use of his shotgun, fired and burst bullets upon Evangeline M. Tangco, killing her
instantly. x x x

xxxx

16. That defendants, being employer and the employee are jointly and severally liable for the
death of Evangeline M. Tangco.16
Thus, a reading of respondents' complaint shows that the latter are invoking their right to recover
damages against Safeguard for their vicarious responsibility for the injury caused by Pajarillo's act of
shooting and killing Evangeline under Article 2176, Civil Code which provides:

ARTICLE 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties is called a quasi-delict and is governed
by the provisions of this Chapter.

The scope of Article 2176 is not limited to acts or omissions resulting from negligence. In Dulay v.
Court of Appeals,17 we held:

x x x Well-entrenched is the doctrine that Article 2176 covers not only acts committed with
negligence, but also acts which are voluntary and intentional. As far back as the definitive
case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that:

"x x x Article 2176, where it refers to "fault or negligence," covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for
the same act considered as quasi-delict only and not as a crime is not extinguished even by
a declaration in the criminal case that the criminal act charged has not happened or has not
been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that
culpa aquiliana includes voluntary and negligent acts which may be punishable by law."
(Emphasis supplied)

The civil action filed by respondents was not derived from the criminal liability of Pajarillo in the
criminal case but one based on culpa aquiliana or quasi-delict which is separate and distinct from
the civil liability arising from crime.18 The source of the obligation sought to be enforced in the civil
case is a quasi-delict not an act or omission punishable by law.

In Bermudez v. Melencio-Herrera,19 where the issue involved was whether the civil action filed by
plaintiff-appellants is founded on crime or on quasi-delict, we held:

x x x The trial court treated the case as an action based on a crime in view of the reservation
made by the offended party in the criminal case (Criminal Case No. 92944), also pending
before the court, to file a separate civil action. Said the trial court:

It would appear that plaintiffs instituted this action on the assumption that defendant
Pontino's negligence in the accident of May 10, 1969 constituted a quasi-delict. The Court
cannot accept the validity of that assumption. In Criminal Case No. 92944 of this Court,
plaintiffs had already appeared as complainants. While that case was pending, the offended
parties reserved the right to institute a separate civil action. If, in a criminal case, the right to
file a separate civil action for damages is reserved, such civil action is to be based on crime
and not on tort. That was the ruling in Joaquin vs. Aniceto, L-18719, Oct. 31, 1964.
 We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant
case x x x.

xxxx

In cases of negligence, the injured party or his heirs has the choice between an action to
enforce the civil liability arising from crime under Article 100 of the Revised Penal Code and
an action for quasi-delict under Article 2176-2194 of the Civil Code. If a party chooses the
latter, he may hold the employer solidarily liable for the negligent act of his employee, subject
to the employer's defense of exercise of the diligence of a good father of the family.

In the case at bar, the action filed by appellant was an action for damages based on quasi-
delict. The fact that appellants reserved their right in the criminal case to file an
independent civil action did not preclude them from choosing to file a civil action
for quasi-delict.20 (Emphasis supplied)

Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already final and
executory, such judgment has no relevance or importance to this case.21 It would have been entirely
different if respondents' cause of action was for damages arising from a delict, in which case the CA
is correct in finding Safeguard to be only subsidiary liable pursuant to Article 103 of the Revised
Penal Code.22

As clearly shown by the allegations in the complaint, respondents' cause of action is based on quasi-
delict. Under Article 2180 of the Civil Code, when the injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the part of the
master or the employer either in the selection of the servant or employee, or in the supervision over
him after selection or both. The liability of the employer under Article 2180 is direct and immediate.
Therefore, it is incumbent upon petitioners to prove that they exercised the diligence of a good father
of a family in the selection and supervision of their employee.

We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.

The issue of negligence is factual in nature. Whether a person is negligent or not is a question of
fact, which, as a general rule, we cannot pass upon in a petition for review on certiorari, as our
jurisdiction is limited to reviewing errors of law.23 Generally, factual findings of the trial court, affirmed
by the CA, are final and conclusive and may not be reviewed on appeal. The established exceptions
are: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is
grave abuse of discretion; (3) when the findings are grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the CA is based on misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the CA, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee; (7) when the
findings of fact are conclusions without citation of specific evidence on which they are based; (8)
when the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion; and (9) when the findings of fact of the CA
are premised on the absence of evidence and are contradicted by the evidence on record. [24]

A thorough review of the records of the case fails to show any cogent reason for us to deviate from
the factual finding of the trial court and affirmed by the CA that petitioner Pajarillo was guilty of
negligence in shooting Evangeline.
Respondents' evidence established that Evangeline's purpose in going to the bank was to renew her
time deposit.25 On the other hand, Pajarillo claims that Evangeline drew a gun from her bag and
aimed the same at him, thus, acting instinctively, he shot her in self-defense.

Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one meter or one
arm's length26 he stepped backward, loaded the chamber of his gun and shot her.27 It is however
unimaginable that petitioner Pajarillo could still make such movements if indeed the gun was already
pointed at him. Any movement could have prompted Evangeline to pull the trigger to shoot him.

Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere apprehension
that Evangeline will stage a bank robbery. However, such claim is befuddled by his own testimony.
Pajarillo testified that prior to the incident, he saw Evangeline roaming under the fly over which was
about 10 meters away from the bank28 and saw her talking to a man thereat;29 that she left the man
under the fly-over, crossed the street and approached the bank. However, except for the bare
testimony of Pajarillo, the records do not show that indeed Evangeline was seen roaming near the
vicinity of the bank and acting suspiciously prior to the shooting incident. In fact, there is no evidence
that Pajarillo called the attention of his head guard or the bank's branch manager regarding his
concerns or that he reported the same to the police authorities whose outpost is just about 15
meters from the bank.

Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already
apprised herself that Pajarillo, who was posted outside the bank, was armed with a shotgun; that
there were two guards inside the bank30 manning the entrance door. Thus, it is quite incredible that if
she really had a companion, she would leave him under the fly-over which is 10 meters far from the
bank and stage a bank robbery all by herself without a back-up. In fact, she would have known, after
surveying the area, that aiming her gun at Pajarillo would not ensure entrance to the bank as there
were guards manning the entrance door.

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself — such as the common experience and observation of mankind can approve as
probable under the circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs
to the miraculous and is outside judicial cognizance.31

That Evangeline just wanted to deposit her gun before entering the bank and was actually in the act
of pulling her gun from her bag when petitioner Pajarillo recklessly shot her, finds support from the
contentions raised in petitioners' petition for review where they argued that when Evangeline
approached the bank, she was seen pulling a gun from inside her bag and petitioner Pajarillo who
was suddenly beset by fear and perceived the act as a dangerous threat, shot and killed the
deceased out of pure instinct;32 that the act of drawing a gun is a threatening act, regardless of
whether or not the gun was intended to be used against petitioner Pajarillo;33 that the fear that was
created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing a gun from her
purse was suddenly very real and the former merely reacted out of pure self-preservation.34

Considering that unlawful aggression on the part of Evangeline is absent, Pajarillo's claim of self-
defense cannot be accepted specially when such claim was uncorroborated by any separate
competent evidence other than his testimony which was even doubtful. Pajarillo's apprehension that
Evangeline will shoot him to stage a bank robbery has no basis at all. It is therefore clear that the
alleged threat of bank robbery was just a figment of Pajarillo's imagination which caused such
unfounded unlawful aggression on his part.
Petitioners argue that Evangeline was guilty of contributory negligence. Although she was a licensed
firearm holder, she had no business bringing the gun in such establishment where people would
react instinctively upon seeing the gun; that had Evangeline been prudent, she could have warned
Pajarillo before drawing the gun and did not conduct herself with suspicion by roaming outside the
vicinity of the bank; that she should not have held the gun with the nozzle pointed at Pajarillo who
mistook the act as hold up or robbery.

We are not persuaded.

As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was seen roaming
outside the vicinity of the bank and acting suspiciously prior to the shooting incident. Evangeline's
death was merely due to Pajarillo's negligence in shooting her on his imagined threat that
Evangeline will rob the bank.

Safeguard contends that it cannot be jointly held liable since it had adequately shown that it had
exercised the diligence required in the selection and supervision of its employees. It claims that it
had required the guards to undergo the necessary training and to submit the requisite qualifications
and credentials which even the RTC found to have been complied with; that the RTC erroneously
found that it did not exercise the diligence required in the supervision of its employee. Safeguard
further claims that it conducts monitoring of the activities of its personnel, wherein supervisors are
assigned to routinely check the activities of the security guards which include among others, whether
or not they are in their proper post and with proper equipment, as well as regular evaluations of the
employees' performances; that the fact that Pajarillo loaded his firearm contrary to Safeguard's
operating procedure is not sufficient basis to say that Safeguard had failed its duty of proper
supervision; that it was likewise error to say that Safeguard was negligent in seeing to it that the
procedures and policies were not properly implemented by reason of one unfortunate event.

We are not convinced.

Article 2180 of the Civil Code provides:

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.

xxxx

The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

As the employer of Pajarillo, Safeguard is primarily and solidarily liable for the quasi-delict committed
by the former. Safeguard is presumed to be negligent in the selection and supervision of his
employee by operation of law. This presumption may be overcome only by satisfactorily showing
that the employer exercised the care and the diligence of a good father of a family in the selection
and the supervision of its employee.
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records.35 On the other hand, due diligence in the supervision
of employees includes the formulation of suitable rules and regulations for the guidance of
employees and the issuance of proper instructions intended for the protection of the public and
persons with whom the employer has relations through his or its employees and the imposition of
necessary disciplinary measures upon employees in case of breach or as may be warranted to
ensure the performance of acts indispensable to the business of and beneficial to their employer. To
this, we add that actual implementation and monitoring of consistent compliance with said rules
should be the constant concern of the employer, acting through dependable supervisors who should
regularly report on their supervisory functions.36 To establish these factors in a trial involving the
issue of vicarious liability, employers must submit concrete proof, including documentary evidence.

We agree with the RTC's finding that Safeguard had exercised the diligence in the selection of
Pajarillo since the record shows that Pajarillo underwent a psychological and neuro-psychiatric
evaluation conducted by the St. Martin de Porres Center where no psychoses ideations were noted,
submitted a certification on the Pre-licensing training course for security guards, as well as police
and NBI clearances.

The RTC did not err in ruling that Safeguard fell short of the diligence required in the supervision of
its employee, particularly Pajarillo. In this case, while Safeguard presented Capt. James Camero, its
Director for Operations, who testified on the issuance of company rules and regulations, such as the
Guidelines of Guards Who Will Be Assigned To Banks,37 Weapons Training,38 Safeguard Training
Center Marksmanship Training Lesson Plan,39 Disciplinary/Corrective Sanctions,40 it had also been
established during Camero's cross-examination that Pajarillo was not aware of such rules and
regulations.41 Notwithstanding Camero's clarification on his re-direct examination that these company
rules and regulations are lesson plans as a basis of guidelines of the instructors during classroom
instructions and not necessary to give students copy of the same,42 the records do not show that
Pajarillo had attended such classroom instructions.

The records also failed to show that there was adequate training and continuous evaluation of the
security guard's performance. Pajarillo had only attended an in-service training on March 1, 1997
conducted by Toyota Sta. Rosa, his first assignment as security guard of Safeguard, which was in
collaboration with Safeguard. It was established that the concept of such training was purely on
security of equipments to be guarded and protection of the life of the employees.43

It had not been established that after Pajarillo's training in Toyota, Safeguard had ever conducted
further training of Pajarillo when he was later assigned to guard a bank which has a different nature
of business with that of Toyota. In fact, Pajarillo testified that being on duty in a bank is different from
being on duty in a factory since a bank is a very sensitive area.44

Moreover, considering his reactions to Evangeline's act of just depositing her firearm for
safekeeping, i.e., of immediately shooting her, confirms that there was no training or seminar given
on how to handle bank clients and on human psychology.

Furthermore, while Safeguard would like to show that there were inspectors who go around the bank
two times a day to see the daily performance of the security guards assigned therein, there was no
record ever presented of such daily inspections. In fact, if there was really such inspection made, the
alleged suspicious act of Evangeline could have been taken noticed and reported.

Turning now to the award of damages, we find that the award of actual damages in the
amount P157,430.00 which were the expenses incurred by respondents in connection with the burial
of Evangeline were supported by receipts. The award of P50,000.00 as civil indemnity for the death
of Evangeline is likewise in order.

As to the award of moral damages, Article 2206 of the Civil Code provides that the spouse,
legitimate children and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased. Moral damages are awarded
to enable the injured party to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he/she has undergone, by reason of the defendant's culpable action. Its award is
aimed at restoration, as much as possible, of the spiritual status quo ante; thus it must be
proportionate to the suffering inflicted.45 The intensity of the pain experienced by the relatives of the
victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the
wealth or means of the offender.46

In this case, respondents testified as to their moral suffering caused by Evangeline's death was so
sudden causing respondent Lauro to lose a wife and a mother to six children who were all minors at
the time of her death. In People v. Teehankee, Jr.,47 we awarded one million pesos as moral
damages to the heirs of a seventeen-year-old girl who was murdered. In Metro Manila Transit
Corporation v. Court of Appeals,48 we likewise awarded the amount of one million pesos as moral
damages to the parents of a third year high school student and who was also their youngest child
who died in a vehicular accident since the girl's death left a void in their lives. Hence, we hold that
the respondents are also entitled to the amount of one million pesos as Evangeline's death left a
void in the lives of her husband and minor children as they were deprived of her love and care by her
untimely demise.

We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under Article
2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or compensatory damages.49 It is awarded as
a deterrent to socially deleterious actions. In quasi-delict, exemplary damages may be granted if the
defendant acted with gross negligence.50

Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in the instant
case, exemplary damages are awarded. Hence, we affirm the award of attorney's fees in the amount
of P30,000.00.

WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of the Court of
Appeals is AFFIRMED with MODIFICATION that the civil liability of petitioner Safeguard Security
Agency, Inc. is SOLIDARY and PRIMARY under Article 2180 of the Civil Code.

SO ORDERED.

Ynares-Santiago, (Working Chairperson), Callejo Sr., and Chico-Nazario, JJ., concur.

Panganiban, C.J., Retired as of December 7, 2006.
G.R. No. L-16439             July 20, 1961

ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo,
the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the
complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and
against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees
and the costs of the suit`. On appeal, Court of Appeals, in a special division of five, sustained the
award by a majority vote of three justices as against two, who rendered a separate dissenting
opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband
before they were legally married. Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted by the defendant. After her
marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1953. Less than two years later, she again
became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine
currency. The plaintiff was at this time in the province of Cagayan, campaigning for his
election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06
upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This
we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a
person, does not cover the case of an unborn foetus that is not endowed with personality. Under the
system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en
consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains primarily to
the one injured, it is easy to see that if no action for such damages could be instituted on behalf of
the unborn child on account of the injuries it received, no such right of action could derivatively
accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn
child, the same was extinguished by its pre-natal death, since no transmission to anyone can take
place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to
act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Code, because that same article expressly limits such
provisional personality by imposing the condition that the child should be subsequently born alive:
"provided it be born later with the condition specified in the following article". In the present case,
there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery
can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10
ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages
must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of
the deceased, his right to life and physical integrity. Because the parents can not expect either help,
support or services from an unborn child, they would normally be limited to moral damages for the
illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ.
Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any
basis for an award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned
with the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the
second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the
causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the
third abortion, the appellee does not seem to have taken interest in the administrative and criminal
cases against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's
fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that
the medical profession was purged of an unworthy member rather than turn his wife's
indiscretion to personal profit, and with that idea in mind to press either the administrative or
the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action
for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her husband does not excuse it. But
the immorality or illegality of the act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.
The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio Geluz
as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.
G.R. No. 162155               August 28, 2007

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

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

DECISION

CORONA, J.:

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

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

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

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

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

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

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from
the date of payment of the tax or penalty regardless of any supervening cause that may arise
after payment: Provided, however, That the Commissioner may, even without a claim therefor,
refund or credit any tax, where on the face of the return upon which payment was made, such
payment appears clearly to have been erroneously paid. (emphasis supplied)
The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to
claim a refund or credit commenced on that date.13

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

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

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

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

Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the
filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year,
respondent's petition, which was filed 731 days14 after respondent filed its final adjusted return, was
filed beyond the reglementary period.15

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

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

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

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

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

Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly
construed against claimants.22 Section 229 of the NIRC should be strictly applied against respondent
inasmuch as it has been consistently held that the prescriptive period (for the filing of tax refunds
and tax credits) begins to run on the day claimants file their final adjusted returns.23 Hence, the claim
should have been filed on or before April 13, 2000 or within 730 days, reckoned from the time
respondent filed its final adjusted return.

The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year
prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not.

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

As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is
understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled
that a year is equivalent to 365 days regardless of whether it is a regular year or a leap year.26
However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter
VIII, Book I thereof provides:

Sec. 31. Legal Periods. — "Year" shall be understood to be twelve calendar months; "month" of

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

A calendar month is "a month designated in the calendar without regard to the number of days it
may contain."28 It is the "period of time running from the beginning of a certain numbered day up to,
but not including, the corresponding numbered day of the next month, and if there is not a sufficient
number of days in the next month, then up to and including the last day of that month."29 To illustrate,
one calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one
calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008.30

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

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

A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify
or designate the laws to be abolished.32 Thus, the provision above only impliedly repealed all laws
inconsistent with the Administrative Code of 1987. 1avvphi1

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

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

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

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

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

month
  2nd calendar May 15, 1998 to June 14, 1998
month
  3rd calendar June 15, 1998 to July 14, 1998
month
  4th calendar July 15, 1998 to August 14, 1998
month
  5th calendar August 15, 1998 to September 14,
month 1998
  6th calendar September 15, to October 14, 1998
month 1998
  7th calendar October 15, 1998 to November 14, 1998
month
  8th calendar November 15, 1998 to December 14, 1998
month
  9th calendar December 15, 1998 to January 14, 1999
month
  10th calendar January 15, 1999 to February 14, 1999
month
  11th calendar February 15, 1999 to March 14, 1999
month
  12th calendar March 15, 1999 to April 14, 1999
month
Year 2 13th calendar April 15, 1999 to May 14, 1999
month
  14th calendar May 15, 1999 to June 14, 1999
month
  15th calendar June 15, 1999 to July 14, 1999
month
  16th calendar July 15, 1999 to August 14, 1999
month
  17th calendar August 15, 1999 to September 14,
month 1999
  18th calendar September 15, to October 14, 1999
month 1999
  19th calendar October 15, 1999 to November 14, 1999
month
  20th calendar November 15, 1999 to December 14, 1999
month
  21st calendar December 15, 1999 to January 14, 2000
month
  22nd calendar January 15, 2000 to February 14, 2000
month
  23rd calendar February 15, 2000 to March 14, 2000
month
  24th calendar March 15, 2000 to April 14, 2000
month

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

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

No costs.

SO ORDERED.