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YAO KEE VS.

GONZALES 167 SCRA 736


FACTS: 1. Sy Kiat, a Chinese national, died in Caloocan City where he was then residing leaving behind real and personal properties here in the Philippines. 2. Private respondents (Aida Sy-Gonzales et al.,) filed a petition for the grant of letters or administration alleging that they were the children of the deceased with Asuncion Gillego. 3. Petition was opposed by herein petitioners (Yao Kee et al.,) alleging that they were the legitimate family. 4. The probate court found that Sy Kiat was legally married to Yao Kee and that their 3 offsprings were the legitimate children. 5. The court likewise ruled that respondents are the acknowledged illegitimate offspring of Sy Kiat with Asuncion Gillego. 6. On appeal, the lower courts decision was set aside declaring petitioners as the acknowledge natural children of Sy Kiat and Asuncion Gillego. 7. Oppostiors were declared the acknowledged natural children of the deceased since the legality of the alleged marriage of Sy Kiat and Yao Kee in China had not been proven to be valid to the laws of China. ISSUE: Was the fact of marriage of Sy Kiat and Yao Kee in China proven as a custom? HELD: Custom is defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. 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 cannot be considered by a court of justice unless such custom is properly established by competent evidence like any other fact. The same evidence, if not one of a higher degree, should be required of a foreign custom. 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; 2) the alleged foreign marriage by convincing evidence. 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 (brother) cannot be considered as proof of Chinas 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. However, as petitioners failed to establish the marriage of Yao Kee with Sy Kiat 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

Kiats recognition of Sze Sook Wah and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood. Private respondents on the other hand are also the deceaseds acknowledged natural children with Asuncion Gillego , a Filipina with whom he lived for 25 years without the benefit of marriage. They have in their favor their fathers acknowledgment, evidence by a compromise agreement entered into by and between their parents and approved by the CFI wherein Sy Kiat not only acknowledged them as his children by Asuncion Gillego but likewise made provisions for their support and future inheritance.

Facts: Sy Kiat, a chinese national died in Caloocan City, leaving behind his real and personal properties in the Philippines worth P 300,000 more or less. Aida Sy-Gonzales, et. al. filed a petition for the grant of letters of administration claiming among other things that they are children of the deceased with Asuncion Gillego, a Filipina. The petition was opposed by Yao kee who alleged that she is the lawful wife of thedeceased whom he married in China and that one of her children, Sze Sook Wah, should be the administrator of the deceased. The CFI decided in favor of Yao Kees petition but was modified and set aside by the court of appeals. Issue: Whether or not Sy Kiats marriage to Yao Kee in accordance with Chinese Law and Custom conclusive. Held: The Supreme Court ruled that evidence may prove the fact if marriage between Sy Kiat and Yao Kee is valid, but it is not sufficient to establish the validity of said marriage in accordance with Chinese law and custom. A custom must be proved as a fact according to the rules of evidence and that a local custom as a source of right cannot be considered by a court of justice unless such custom is properly established by competent evidence. In the case at bar, petitioners did not present any competent evidence relative to the law of China on marriage. In the absence of proof of the Chinese law on marriage, it should be presumed that it is the same as that of the Philippines. The Supreme Court affirmed (all of them were acknowledged as natural children, hence given equal rights) the decision of the Court of Appeals. Van Dorn vs. Romillo 139 SCRA 139 Facts: The petitioner is a Filipino citizen while respondent Romillo is an American citizen. They married in Hong Kong in 1972 and after their marriage, established a residence in the Philippines. The parties were divorced in Nevada in 1982 and now, petitioner is married to Theodore Van Dorn. Respondent Romillo, Jr. Filed a suit against petitioner in RTC Pasay stating that petitioners business in Ermita, Manila is conjugal property of the parties and that the petitioner ordered to render an accounting of that business and that the private respondent be declared with a right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the case of the action is barred of the judgment in the divorce proceeding in the Nevada Court wherein the respondent had acknowledged that he and the petitioner had no common property as of June 11, 1982. Issue: Whether there is an effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Held: It is not necessary to determine the property relations between petitioner and private respondent after their marriage, whether absolute or relative community property, complete separation of property or any other regime. The pivotal fact in this case is that the Nevada divorce of the parties that the Nevada Court obtained jurisdiction over the petitioner and private respondent.

Republic SUPREME Manila SECOND DIVISION G.R. No. L-25265 May 9, 1978

of

the

Philippines COURT

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. SOCORRO C. RAMOS, defendant-appellee, PHOENIX PUBLISHING HOUSE INC., intervenor. G.R. No. L-25644 May 9, 1978 SOCORRO C. RAMOS, petitioner, vs. HON. PLACIDO RAMOS, in his capacity as Presiding Judge, Branch III, CFI, Manila; and the PEOPLE OF THE PHILIPPINES, represented by State Prosecutor DELIA P. MEDINA, respondents. Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifica P. de Castro and Solicitor Sumilang V. Bernardo for People of the Philippines. Florence D. Regalado for Socorro C. Ramos. Sevilla & Aquino Law Office for Intervenor.

SANTOS, J.: The above-entitled cases the first an appeal and the second a special civil action are decided jointly because they raise a common issue which arose from the prosecution of a common defendant, Socorro C. Ramos, for alleged violations of the copyright lawviz, whether or not the extra day in the leap year, 1964 should be taken into consideration in the computation of the twoyear period of prescription provided in Section 24 of the copyright law. The factual and procedural antecedents follow. On September 3, 1965, two criminal cases No. 80006 of the Court of First Instance of Manila, Branch III, and No. 80007 also of the same Court, Branch XIV identical in every respect, except for the fact that they pertain to different editions of the same textbook, were filed against Socorro C. Ramos, for alleged violations of Act 3134, otherwise known as the Copyright Law, as amended. The information in Criminal Case No. 80007 alleged
That on or about July to September, 1963, in the City of Manila and within the jurisdiction of this Honorable Court, the said accused, as the proprietor aid general manager of the National Book Store, as enterprise engaged in the business of publishing, selling and distributing books, did then and there, wilfully and illegaly sell and distribute spurious and pirated copies of the high school textbook, entitled General Science Today for Philippine School, First Year, by Gilam, Van Houten and Cornista, said accused knowing that said book was duly copyrighted by the Phoenix Publishing House, Inc., and was being distributed exclusively by its sister corporation, Alemar's or Sibal and Sons, Inc. 1

On September 7, 1965, identical motions to quash 2 were filed by accused Ramos on the ground of prescription, alleging therein, inter alia, that:

xxx xxx xxx Consequently, the delivery of the alleged offense was made as early as July 17, 1963 and all subsequent knowledge or discoveries of posterior sales and possession of said books by the respondents, including that involved in the police search of September 4, 1963 were only confirmatory of the first. Under 91 of the Revised Penal Code and in the light of the afore-quoted ruling announced in the Pangasinan Trans. Co. case, supra; the prescriptive period, therefore, commenced to run on the day after such discovery on July 17, 1963 and, accordingly, the offense has long since prescribed since under the Copyright Law, Act 3134: Sec. 24. All actions, suits, or proceedings arising under this Act shall be originally cognizable by the Court of First Instance of the Philippine Islands and shall prescribe after two years from the time the cause of action arose. Assuming arguendo, that the last actual sale should be the starting point of computation, again the offense charged has prescribed, since, as already pointed out, the documented evidence on this point shows that the last sale was made on August 30, 1963. The prosecution, also in both cases, filed its Opposition to the Motion to Quash 3 raising two issues, to wit: 1. That the issue of prescription in this case can be resolved only after the presentation of evidence and hence, it is premature to raise that issue before trial 2. That, as the violation committed by the defendant was a continuing offense, the two-year prescriptive period may be counted from September 3, 1963, or one day before the search in defendants' premises , which confirmed her possession of spurious and pirated copies of the textbook in question. The prosecution's theory is that "(T)he crime being a continuing offense, the statute of limitations begins to run from the completion of the last act or series of acts which constitute the offense, " and this last act was committed on September 3, 1963. Therefore when the information was filed on September 3, 1965, it was filed within the two-year period, albeit the last day of the prescriptive period. Again, in both the accused filed a "Reply to Opposition to Motion to Quash." 4 She alleged that even assuming that the crime is a continuing offense, the prescriptive period should start from August 30, 1963, the date of the last invoiced sale, and not September 3, 1963, as there was no indubitable proof that she had sold copies of the questioned book on that date. Nonetheless, accused contended that even if the prescriptive period should start from September 3, 1963, as proposed by the prosecution, the two-year period was tolled on September 2, 1965. She pointed out that two years mean a period of 730 days in accordance with Article 13 of the New Civil Code, and 1964, being a leap year consisting of 366 days, the 730th day fell on September 2, 1965. Hence, "... . when the information was filed on September 3, 1965, the offense, if any, had already prescribed. " The prosecution filed a Rejoinder 5 in both cases alleging as follow: l. That February 28, and 29, 1964, should be regarded as one day only, and consequently, the two-year period commencing on September 3, 1963 would end on September 3, 1965; 2. That under Act No. 3326, the prescriptive period was interrupted by the filing of the proceedings in the fiscal's office; 3. That prescription would not lie in this case because the complainant never waived the right to prosecute the defendant. Accused Ramos, also in cases, filed an Urgent Motion to Strike the Rejoinder, 6 on the ground that it was filed after the case had been submitted for resolution. She prayed that "in the event that the same should at all be considered and allowed, that the accused be notified thereof and granted reasonable opportunity to file a surrejoinder...". It appears that the Rejoinder was admitted by both trial courts, but a Surrejoinder 7 was filed only in Criminal Case No. 80006. Here, the accused traversed the prosecution's contentions in the Rejoinder, thus:

1. Under applicable and specific provisions of Philippine law, the two-year period of prescription commencing on September 3, 1963 ended on September 2, 1965 ...; 2. The filing (of) proceedings in the Office of the City Fiscal of Manila did not interrupt the prescriptive period. In Criminal Case No. 80007, Hon. Jesus De Veyra granted the motion to quash by an order dated October 7, 1965. 8 Pertinent portion of his order reads: . . . . And now to the main issue - whether the crime has prescribed. In the Opposition to the Motion to Quash, the Prosecution, in its insistence on the theory of a continuing crime, admits that the two-year prescriptive period should run from September 3, 1963. This case was filed on September 3, 1965 -one day too late. Article 13, CCP provides that year shall mean a period of 365 days. This had been applied to criminal cases (People v. del Rosario, 51 O.G., 2686). 1964 was a leap year so that when this case was filed, it was filed one day too late. The Motion to Quash is, therefore, granted and this case dismissed on the ground that the crime has already prescribed. (Emphasis supplied.) The prosecution appealed the above order to this Court on October 15, 1965. 9 Meanwhile, in Criminal Case No. 80006, the motion to quash was not resolved until December 23, 1965. On this date, Hon. Placido Ramos denied the motion to quash, and set the arraignment of the accused on January 12, 1966, thus Wherefore, finding the information to have been filed well within the statutory period of two years from the date of the last offense committed by the accused the Court denies the motion to quash. The arraignment of the accused is hereby set on January 12, 1966 at 8:30 A.M. The trial court refused to accept the prosecution's view that the prescriptive period should run from September 3, held instead, that the same should commence on September 4, 1963. xxx xxx xxx The evidence shows that on September 4, 1963, the Manila Police by virtue of a search warrant procured by the offended party, seized, among other articles, 69 copies of General Science Today for Philippine Schools, First Year, by Gilman, Van Houten and Cornista and one copy of the same textbook for Second Year (Exhibit 5). The evidence likewise shows that on September 3, 1963, the National Book Store, run and managed by the accused, sold one said textbook, Exhibit 'D' and Exhibit '2'. The mere possession by the accused on September 4, 1963 of several copies of this textbook which is the textbook alleged to be spurious and pirated, indicates that said accused was distributing or selling said textbook on September 4, 1963 . . . This being the case, it follows of necessity that the period of prescription commenced to run from September 4, 1963 and two years from this date, by excluding the first and including the last, would expire on September 4, 1965 and hence, the action, which was instituted on September 3, 1965 is well within the prescriptive period. xxx xxx xxx Furthermore, the trial court ignored the accused's theory on leap year: Even if the last sale of said textbook could be considered to have taken place on September 3, 1963, Exhibits 'D' and '2', the Court is also of the opinion that the twoyear period would expire September 3, 1965. The argument that inasmuch as 1964 is a leap year the two-year period must contain 731 days, as contemplated by Article 13 of the Civil Code of the Philippines, is, in the opinion of the Court, without merits for this particular legal provision that a year is understood to be of 365 days each is applicable only in determining the number of days a year must legally contain but not for the purpose of ascertaining the period of prescription based on years. In the computation of the period of prescription, a year should be construed as the calendar year comprising the whole period from January 1 to December 31, regardless of the number of days it contains. Consequently, in this particular case, if it is considered that the last sale took place on September 3,

1963, the two-year period, following the rule exclude the- first-and-include-the-last, will expire on September 3, 1965. The accused filed a Motion for Reconsideration. 10 Two more pleadings were filed, 11 after which, the trial court finally denied said motion for reconsideration for lack of merit, 12 and reset the arraignment of the accused on February 24, 1966 at 8:30 A.M. The accused thus filed with this Court this petition for certiorari, mandamus and prohibition, 13 with the following prayer: (a) Forthwith issue, upon filing by petitioner of a bond in such amount as this Honorable Court may fix, a Writ of Preliminary Injunction restraining, enjoining and prohibiting respondents from further proceedings in Criminal Case No. 80006 of the Court of First instance of Manila, Branch III, daring the pendency of this Action: (b) After due hearing, to render judgment in favor of petitioner and against respondents (1) Annulling and setting aside the Orders of the respondent Judge of December 23, 1965 (Annex 'G') denying petitioner's motion to quash, and of January 20, 1966 (Annex 'K') denying petitioner's motion for reconsideration; (2) Ordering respondent Judge to dismiss Criminal Case No. 80006 aforesaid; and (3) Making the writ of preliminary injunction hereafter La be issued permanent and final. This Court on February 11, 1966, issued a writ of preliminary injunction restraining the trial Court from further proceedings in Criminal Case No. 80006. 14 Also on the same date, the two cases, G.R. No. L-25265 and G.R. No. L-25644, were consolidated. 1. In G.R. No. L-25265, the appeal, then Solicitor General Arturo Alafriz filed a four-page brief dated December 21, 1965 15 wherein he recommended affirmance of the order of 'Judge De Veyra quashing the information, and the dismissal of the appeal, for the simple reason that "the order appealed from is in accordance with law." Accused, now appellee Ramos, filed a brief dated January 21, 1966 16 reiterating her previous allegations in the lower court. The Phoenix Publishing House, Inc., the offended party, filed a motion to intervene in this appeal, on the following grounds: a) That the Solicitor General, instead of prosecuting the appeal, recommended its dismissal
b) That, to protect its interest, it is necessary that the movant be allowed to intervene and to submit memorandum to sustain its view that the criminal action against the accused had not yet prescribed. 17

Over the opposition of the accused-appellee, this Court granted the same. 18 Accordingly, the Phoenix Publishing House, Inc. filed its Memorandum 19 wherein it alleged that the trial court erred I. IN ACTING ON DEFENDANT'S MOTION TO QUASH WITHOUT REQUIRING THE PRESENTATION OF EVIDENCE IN SUPPORT OF THE PLEA OF PRESCRIPTION. II. IN NOT APPLYING TO THIS CASE THE FOUR-YEAR PRESCRIPTIVE PERIOD PROVIDED FOR IN ACT NO. 3326. III. IN NOT HOLDING THAT THE PRELIMINARY INVESTIGATION PROCEEDINGS IN THE MANILA CITY FISCAL'S OFFICE AND IN THE DEPARTMENT OF JUSTICE INTERRUPTED PRESCRIPTION. IV. IN NOT CONSIDERING FEBRUARY 28 AND 29, 1964, AS ONE DAY FOR PURPOSES OF PRESCRIPTION. Accused-appellee, Ramos, filed a Reply Memorandum 20 refuting intervenor's assignment of errors. Subsequent pleadings 21 focused on whether February 28, and 29 of a leap year should be counted as one day or separate days in computing the period of prescription.

2. In G.R. No. L-25644-the special civil action the issues raised in the foregoing assignment of errors were relied upon in respondent People's Answer. 22 And, following respondent Judge Ramos' reasoning, it was contended that the period of prescription should start from September 4, 1963, and not September 3, 1963, as originally proposed by the prosecution. Furthermore, as an affirmative defense, it was alleged that the petitioner has no cause of action for certiorari, prohibition and mandamus since Judge Ramos did not commit any grave abuse of discretion in refusing to quash the information. Respondent contended that the "(P)etitioner's remedy is to appeal the judgment of conviction rendered after a trial on the merits. " This allegation was opposed by petitioner Ramos; 23 she insisted that she had a cause of action for certiorari prohibition and mandamus. Respondent People filed a Reply Memorandum 24 disputing petitioner's allegations. We are, thus, faced with conflicting orders of two different Branches of the Court of First Instance of Manila-one holding that the crime has prescribed, the other that it has not. 1. Now to resolve the preliminary issues: a. On the propriety of the special civil action for certiorari and prohibition. We find for petitioner. As We had occasion to hold in Quizon vs. Baltazar, 76 SCRA 559: As to the contention of respondents that the denial of a motion to quash is not a ground for certiorari and prohibition, suffice it to state that to allow an accused to undergo the ordeals of trial and conviction when the information or complaint against him is patently defective or the offense charged therein has been indisputably shown to have already prescribed is unfair and unjust for which reason, procedurally, the ordinary remedy of appeal cannot be plain and adequate. As to mandamus, We are incline to agree with respondent's allegation that "petitioner has no cause of action for mandamus which is a writ intended to control the exercise of a purely ministerial function. To quash an information is not a ministerial function," 25 However, mandamus as a remedy is a superfluity here, considering that petitioner can obtain full relief thru certiorari and prohibition. b. On the applicability of the four-year prescriptive period provided in Act No. 3326. The same is not applicable. Said Act provides: Section 1. Violations penalized by special acts shall unless otherwise provided in such acts, prescribe in accordance with the following rules: (a)........... (b) after four years for those punished by imprisonment for more than one month, but less than two years; ... (Emphasis supplied.) Act No. 3326 applies only if the special act does not provide for its own prescriptive period. It has no application here, where the Copyright Law provides for its own prescriptive period, viz: Section 24. All actions, suits, or proceedings arising under this Act shall be originally cognizable by the Courts of First Instance of the Philippines and shall prescribe after two years from the time the cause of action arose. 2. Now on the main issue of prescription. The question to be resolved is the proper computation of the two-year period of prescription from September 3, 1963. Resolution of this issue hinges, in turn, on whether February 28, and 29 of a leap year, 1964, should be counted as one day, as proposed by the prosecution; or as separate days, as alleged by the defense. This issue which was in 1965 still undetermined is now a settled matter. It was held in 1969 in Namarco vs. Tuazon27 that February 28 and 29 of a leap year should be counted as separate days in computing periods of prescription. Thus, this Court, speaking thru former Chief Justice Roberto Concepcion, held that where the prescriptive period was supposed to commence on December 21, 1955, the filing of the action on December 21, 1965, was done after the ten-year period has lapsed since 1960 and 1964 were both leap years and the case was thus filed two (2) days too late. Since this case was filed on September 3, 1965, it was filed one day too late; considering that the 730th day fell on September 2, 1965 the year 1964 being a leap year. In explaining the rationale for its holding, the Court took pains to trace the antecedent decisional and statutory bases for its conclusion, thus
Prior to the approval of the Civil Code of Spain, the Supreme Court thereof held, on March 30, 1887, that, when the law spoke of months, it meant a 'natural' month or 'solar' month, in the absence of express provision to the contrary. Such provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the same
26

Supreme Court declared that, pursuant to Article 7 of said Code, 'whenever months are referred to in the law. it shall be understood that months are of 30 days,' not the 'natural', 'solar' or 'calendar' months, unless they are 'designated by name,' in which case, 'they shall be computed by the actual number of days they have.' This concept was, later, modified in the Philippines, by Section 13 of the Revised Administrative Code, pursuant to which 'month shall be understood to refer to a calendar month.' With the approval of the Civil Code of the Philippines (RA 386) we have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be considered as the regular 30-month and not the solar or civil month with the particularity that, whereas the Spanish Civil Code merely mentioned 'months, days or nights,' ours has added thereto the term 'years' and explicitly ordains in Article 13 that it shall be understood that years are of three hundred sixty-five days. 28

With respect to the opinion of some members of the Court that Article 13 of the Civil Code is unrealistic, the Court adverted to the proper remedy thus
Although some justices of the Supreme Court are inclined to think that Article 13 of the Civil Code defining 'years' to mean 365 days is not realistic, the remedy is not judicial legislation. If public interest demands a reversion to the policy embodied in the Revised Administrative Code, this may be done through legislative process, not by judicial decree. 29

Finally, there is no merit in the allegation that the reckoning of the prescriptive period should start from September 4, 1963. This was the date when the police authorities discovered several pirated books in accused's store. But the accused was charged, in both Criminal Cases Nos. 80006 and 80007, with having allegedly sold anddistributed spurious and pirated copies of the textbook in question, not of illegal possession of the same. The prosecution's claim that the preliminary investigation proceedings in the Manila City Fiscal's Office and in the prosecution Division of the Department of Justice interrupted the running of the prescriptive period, is also without merit. We held in People vs. Tayco 30 that the running of the period of prescription is interrupted not by the act of the offended party in reporting the offense to the final but the filing of the complaint or information in court. WHEREFORE, the order dated October 7, 1965 of the Court of First Instance of Manila Branch XIV in Criminal Case No. 80007 dismissing the case on the ground of prescription, is AFFIRMED. The order dated December 23, 1965 of the same court, Branch III, in Criminal Case No. 80006, is REVERSED and SET ASIDE, and the case is DISMISSED, on the ground that the crime charged therein had already prescribed. Without pronouncement as to costs. SO ORDERED.

G.R. No. 80116 June 30, 1989 IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9 Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15 On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended

spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option. This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21 In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 In the cited Loftus case, the Supreme Court of Iowa held that 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when

the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ... It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ...25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED. Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already

implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Art. 13. When the laws speak of years, months, days or nights, it shall be understood thatyears are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days whichthey respectively have. In computing a period, the first day shall be excluded, and the last day included.

G.R. No. L-50654 November 6, 1989 RUDY GLEO ARMIGOS, petitioner,vs. COURT OF APPEALS, CRISTITO MATA, and JUDGE L. D. CARPIO, in his capacity as Judge of the Court of First Instance of Davao del Sur, Branch V,respondents. FACTS: Private respondent, Cristito Mata, filed a complaint against Rudy Gleo Armigos with theMunicipal Court of Digos, Davao del Sur for the collection of damages and attorney's fees.After trial, judgment was rendered in favor of Cristito Mata. A copy of the decision wasreceived by Armigos on June 8, 1977, and the following day, June 9, 1977, he filed a notice of appeal with the said municipal court, and on June 24, 1977, he completed the other requirements for the perfection of an appeal, including the filing of an appeal bond and thepayment of the appellate court docket fee. But the presiding judge of Court of First Instance,Judge L.D. Carpio dismissed the appeal for it was filed beyond the reglementary period.Armigos filed a petition for certiorari, mandamus with preliminary injunction with the Court of Appeals, claiming that from June 8, 1977, when he received a copy of the decision of themunicipal court, to June 24, 1977, when he perfected his appeal, only fifteen (15) days hadelapsed so that the decision of the Court of First Instance of Davao del Sur, dismissing hisappeal for having been filed beyond the reglementary period, is erroneous and contrary tolaw. The petitioner contended that the computation of the period to appeal should commenceon the hour he received copy of the decision, so that the first of the 1 5-day period comprising24 hours is: from

4pm of June 9, 1977 to 4pm of June 10, 1977 and the last day, from 4pm of June 23, 1977 to 4pm of June 24, 1977. ISSUE/S: a.) Whether or not the computation of the period to appeal should commence on thehour of the receipt of the decision.b.)Whether or not Armigos filed his appeal on time. HELD: a.)No. The Court of Appeals rejected Armigos interpretation for it would result in manyconfusing situations and many unreliable testimonies as to the time a copy of adecision, order or pleading. In the case of Republic of the Philippines vs. Encarnacion, the Court held that when alaw was to be effective upon approval by the President and the President signed the same on June 16, 1950, the law should be considered to have taken effect not on theexact hour when the President signed the same on June 16, 1950 but from the very first minute or hour of said day of June 16, 1950. b.) No. Because it was filed beyond the reglementary period. He should have filed it onJune 23, 1977 for his appeal to be valid. Art. 13 of the NCC, provides that incomputing period, the 1st day is excluded, the last day is included.T The Petition is DENIED

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 98382 May 17, 1993 PHILIPPINE NATIONAL BANK, Petitioner, vs. THE COURT OF APPEALS and EPIFANIO DE LA CRUZ, Respondents. MELO, J.: The notices of sale under Section 3 of Act No. 3135, as amended by Act No. 4118, on extra-judicial foreclosure of real estate mortgage are required to be posted for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notices shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city.
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Respondent court, through Justice Filemon Mendoza with whom Justices Campos, Jr. and Aldecoa, Jr. concurred, construed the publication of the notices on March 28, April 11 and l2, 1969 as a fatal announcement and reversed the judgment appealed from by declaring void, inter alia, the auction sale of the foreclosed pieces of realty, the final deed of sale, and the consolidation of ownership (p. 27, Rollo).
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Hence, the petition at bar, premised on the following backdrop lifted from the text of the challenged decision: The facts of the case as related by the trial court are, as follows: This is a verified complaint brought by the plaintiff for the reconveyance to him (and resultant damages) of two (2) parcels of land mortgaged by him to the defendant Philippine National Bank (Manila), which the defendant allegedly unlawfully foreclosed. The defendant then consolidated ownership unto itself, and subsequently sold the parcels to third parties. The amended Answer of the defendant states on the other hand that the extrajudicial foreclosure, consolidation of ownership, and

subsequent sale to the third parties were all valid, the bank therefore counterclaims for damages and other equitable remedies. xxx xxx xxx From the evidence and exhibits presented by both parties, the Court is of the opinion that the following facts have been proved: Two lots, located at Bunlo, Bocaue, Bulacan (the first covered by Torrens Certificate No. 16743 and possessed of an area of approximately 3,109 square meters: the second covered by Torrens Certificate No. 5787, possessed of an area of around 610 square meters, and upon which stood a residential-commercial building were mortgaged to the defendant Philippine National Bank. The lots were under the common names of the plaintiff (Epifanio dela Cruz), his brother (Delfin) and his sister (Maria). The mortgage was made possible because of the grant by the latter two to the former of a special power of attorney to mortgage the lots to the defendant. The lots were mortgaged to guarantee the following promissory notes: (1) a promissory note for Pl2,000.00, dated September 2, 1958, and payable within 69 days (date of maturity - Nov. l0, 1958);
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(2) a promissory note for P4,000.00, dated September 22, 1958, and payable within 49 days (date of maturity - Nov. 10, 1958);
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(3) a promissory note for P4,000.00, dated June 30, 1.958 1 and payable within 120 days (date of maturity - Nov. 10, 1958) See also Annex C of the complaint itself).
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[1 This date of June 30, 1958 is disputed by the plaintiff who claims that the correct date is June 30, 1961, which is the date actually mentioned in the promissory note. It is however difficult to believe the plaintiff's contention since if it were true and correct, this would mean that nearly three (3) years elapsed between the second and the third promissory note; that at the time the third note was executed, the first two had not yet been paid by the plaintiff despite the fact that the first two were supposed to be payable within 69 and 49 days respectively. This state of affairs would have necessitated the renewal of said two promissory notes. No such renewal was proved, nor was the renewal ever alleged. Finally, and this is very significant: the third mentioned promissory note states that the maturity date is Nov. 10, 1958. Now then, how could the loan have been contracted on June 30, 1961? It will be observed that in the bank records, the third mentioned promissory note was really executed on June 30, 1958 (See Exhs. 9 and 9-A). The Court is therefore inclined to believe that the date "June 30, 1961" was a mere clerical error and hat the true and correct date is June 1958. However, even assuming that the true and correct date is June 30, 1961, the fact still remains that the first two promissory notes had been guaranteed by the mortgage of the two lots, and therefore, it was legal and proper to foreclose on the lots for failure to pay said two promissory notes.
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On September 6, 1961, Atty. Ramon de los Reyes of the bank (PNB) presented under Act No. 3135 a foreclosure petition of the two mortgaged lots before the Sheriff's Office at Malolos, Bulacan; accordingly, the two lots were sold or auctioned off on October 20, 1961 with the defendant PNB as the highest bidder for P28,908.46. On March 7, 1963, Sheriff Leopoldo Palad executed a Final Deed of Sale, in response to a letter-request by the Manager of the PNB (Malolos Branch). On January 15, 1963 a Certificate of Sale in favor of the defendant was executed by Sheriff Palad. The final Deed of Sale was registered in the Bulacan Registry of Property on March 19, 1963. Inasmuch as the plaintiff did not volunteer to buy back from the PNB the two lots, the PNB sold on June 4, 1970 the same to spouses Conrado de Vera and Marina de Vera in a "Deed of Conditional Sale". (Decision, pp.3-5; Amended Record on Appeal, pp. 96-98).
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After due consideration of the evidence, the CFI on January 22, 1978 rendered its Decision, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, the instant complaint against the defendant Philippine National Bank is hereby ordered DISMISSED, with costs against the plaintiff. The Counterclaim against the plaintiff is likewise DISMISSED, for the Court does not believe that the complaint had been made in bad faith.
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SO ORDERED. (Decision, p. B.; Amended Record on Appeal, p. 100) Not satisfied with the judgment, plaintiff interposed the present appeal assigning as errors the following: I.
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THE LOWER COURT ERRED IN HOLDING IN FOOTNOTE I OF ITS DECISION THAT IT IS THEREFORE INCLINED TO BELIEVE THAT THE DATE "JUNE 30, 1962" WAS A MERE CLERICAL ERROR AND THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1958. IT ALSO ERRED IN HOLDING IN THE SAME FOOTNOTE I THAT "HOWEVER, EVEN ASSUMING THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1961, THE FACT STILL REMAINS THAT THE FIRST TWO PROMISSORY NOTES HAD BEEN GUARANTEED BY THE MORTGAGE OF THE TWO LOTS, AND THEREFORE, IT WAS LEGAL AND PROPER TO FORECLOSE ON THE LOTS FOR FAILURE TO PAY SAID TWO PROMISSORY NOTES". (page 115, Amended Record on Appeal)

II.

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THE LOWER COURT ERRED IN NOT HOLDING THAT THE PETITION FOR EXTRAJUDICIAL FORECLOSURE WAS PREMATURELY FILED AND IS A MERE SCRAP OF PAPER BECAUSE IT MERELY FORECLOSED THE ORIGINAL AND NOT THE AMENDED MORTGAGE. III.
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THE LOWER COURT ERRED IN HOLDING THAT "IT IS CLEAR THAT THE AUCTION SALE WAS NOT PREMATURE". (page 117, Amended Record on Appeal) IV.
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THE LOWER COURT ERRED IN HOLDING THAT "SUFFICE IT TO STATE THAT ACTUALLY THE POWER OF ATTORNEY GIVEN TO THE PNB WAS EMBODIED IN THE REAL ESTATE MORTGAGE (EXB. 10) WHICH WAS REGISTERED IN THE REGISTRY OF PROPERTY OF BULACAN AND WAS ANNOTATED ON THE TWO TORRENS CERTIFICATES INVOLVED" (page 118, Amended Record on Appeal). V.
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THE LOWER COURT ERRED IN HOLDING THAT "THE NOTICES REQUIRED UNDER SEC. 3 OF ACT NO. 3135 WERE ALL COMPLIED WITH" AND "THAT THE DAILY RECORD . . . IS A NEWSPAPER OF GENERAL CIRCULATION (pages 117-118, Amended Record on Appeal). VI.
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THE LOWER COURT ERRED IN NOT DECLARING THE CERTIFICATE OF SALE, FINAL DEED OF SALE AND AFFIDAVIT OF CONSOLIDATION, NULL AND VOID. VII.
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THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO RECONVEY TO PLAINTIFF THE PARCELS OF LAND COVERED BY T.C.T. NOS. 40712 AND 40713 OF BULACAN (page 8, Amended Record on Appeal) VIII.
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THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO PAY TO PLAINTIFF REASONABLE AMOUNTS OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES (page 8. Amended Record on Appeal). IX.
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THE LOWER COURT ERRED IN DISMISSING THE INSTANT COMPLAINT AGAINST THE PHILIPPINE NATIONAL BANK WITH COSTS AGAINST THE PLAINTIFF. (page 118, Amended Record on Appeal)." (Brief for Plaintiff-Appellant, pp. 1-4) (pp. 17-21, Rollo) With reference to the pertinent issue at hand, respondent court opined: The Notices of Sale of appellant's foreclosed properties were published on March 228, April 11 and April 12, 1969 issues of the newspaper "Daily Record" (Amended Record on Appeal, p. 108). The date March 28, 1969 falls on a Friday while the dates April 11 and 12, 1969 are on a Friday and Saturday, respectively. Section 3 of Act No. 3135 requires that the notice of auction sale shall be "published once a week for at least three consecutive weeks". Evidently, defendant-appellee bank failed to comly with this legal requirement. The Supreme Court has held that: The rule is that statutory provisions governing publication of notice of mortgage foreclosure sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and render the sale at least voidable (Jalandoni vs. Ledesma, 64 Phil. l058. G.R. No. 42589, August 1937 and October 29, 1937). Interpreting Sec. 457 of the Code of Civil Procedure (reproduced in Sec. 18(c) of Rule 39, Rules of Court and in Sec. 3 of Act No. 3135) in Campomanes vs. Bartolome and German & Co.(38 Phil. 808, G.R. No. 1309, October 18, 1918), this Court held that if a sheriff sells without notice prescribed by the Code of Civil Procedure induced thereto by the judgment creditor, and the purchaser at the sale is the judgment creditor, the sale is absolutely void and no title passes. This is regarded as the settled doctrine in this jurisdiction whatever the rule may be elsewhere (Boria vs. Addison, 14 Phil. 895, G.R. No. 18010, June 21, 1922).
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. . . It has been held that failure to advertise a mortgage foreclosure sale in compliance with statutory requirements constitutes a jurisdictional defect invalidating the sale and that a substantial error or omission in a notice of sale will render the notice insufticient and vitiate the sale (59 C.J.S. 1314). (Tambunting vs. Court of Appeals, L-48278, November 8, 1988; 167 SCRA 16, 23-24).

In view of the admission of defendant-appellee in its pleading showing that there was no compliance of the notice prescribed in Section 3 of Act No. 3135, as amended by Act 4118, with respect to the notice of sale of the foreclosed real properties in this case, we have no choice but to declare the auction sale as absolutely void in view of the fact that the highest bidder and purchaser in said auction sale was defendant-appellee bank. Consequently, the Certificate of Sale, the Final Deed of Sale and Affidavit of Consolidation are likewise of no legal efffect. (pp. 24-25, Rollo) Before we focus our attention on the subject of whether or not there was valid compliance in regard to the required publication, we shall briefly discuss the other observations of respondent court vis-avis herein private respondent's ascriptions raised with the appellate court when his suit for reconveyance was dismissed by the court of origin even as private respondent does not impugn the remarks of respondent court along this line.
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Although respondent court acknowledged that there was an ambiguity on the date of execution of the third promissory note (June 30, 1961) and the date of maturity thereof (October 28, 1958), it was nonetheless established that the bank introduced sufficient proof to show that the discrepancy was a mere clerical error pursuant to Section 7, Rule l30 of the Rules of Court. Anent the second disputation aired by private respondent, the appellate court observed that inasmuch as the original as well as the subsequent mortgage were foreclosed only after private respondent's default, the procedure pursued by herein petitioner in foreclosing the collaterals was thus appropriate albeit the petition therefor contained only a copy of the original mortgage.
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It was only on the aspect of publication of the notices of sale under Act No. 3135, as amended, and attorney's fees where herein private respondent scored points which eliminated in the reversal of the trial court's decision. Respondent court was of the impression that herein petitioner failed to comply with the legal requirement and the sale effected thereafter must be adjudged invalid following the ruling of this Court in Tambunting vs. Court of Appeals(167 SCRA 16 [1988]); p. 8, Decision, p. 24, Rollo). In view of petitioner's so-called indifference to the rules set forth under Act No. 3135, as amended, respondent court expressly authorized private respondent to recover attorney's fees because he was compelled to incur expenses to protect his interest.
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Immediately upon the submission of a supplemental petition, the spouses Conrado and Marina De Vera filed a petition in intervention claiming that the two parcels of land involved herein were sold to them on June 4, 1970 by petitioner for which transfer certificates of title were issued in their favor (p. 40, Rollo). On the other hand, private respondent pressed the idea that the alleged intervenors have no more interest in the disputed lots in view of the sale effected by them to Teresa Castillo, Aquilino and Antonio dela Cruz in 1990 (pp. 105-106, Rollo).
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On March 9, 1992, the Court resolved to give due course to the petition and required the parties to submit their respective memoranda (p. 110, Rollo).
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Now, in support of the theory on adherence to the conditions spelled in the preliminary portion of this discourse, the pronouncement of this Court in Bonnevie vs. Court of Appeals (125 SCRA [1983]; p. 135, Rollo) is sought to be utilized to press the point that the notice need not be published for three full weeks. According to petitioner, there is no breach of the proviso since after the first publication on March 28, 1969, the second notice was published on April 11, 1969 (the last day of the second week), while the third publication on April 12, 1969 was announced on the first day of the third week. Petitioner thus concludes that there was no violation from the mere happenstance that the third publication was made only a day after the second publication since it is enough that the second publication be made on any day within the second week and the third publication, on any day within the third week. Moreover, in its bid to rectify its admission in judicio, petitioner asseverates that said admission alluded to refers only to the dates of publications, not that there was non-compliance with the publication requirement.
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Private respondent, on the other hand, views the legal question from a different perspective. He believes that the period between each publication must never be less than seven consecutive days (p. 4, Memorandum; p. 124,Rollo).
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We are not convinced by petitioner's submissions because the disquisition in support thereof rests on the erroneous impression that the day on which the first publication was made, or on March 28, 1969, should be excluded pursuant to the third paragraph of Article 17 of the New Civil Code.
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It must be conceded that Article 17 is completely silent as to the definition of what is a "week". In Concepcion vs. Zandueta (36 O.G. 3139 [1938]; Moreno, Philippine Law Dictionary, Second Ed., 1972, p. 660), this term was interpreted to mean as a period of time consisting of seven consecutive days - a definition which dovetails with the ruling in E.M. Derby and Co. vs. City of Modesto, et al. (38 Pac. Rep. 900 [1984]; 1 Paras, Civil Code of the Philippines Annotated, Twelfth Ed., 1989, p. 88; 1 Tolentino, Commentaries and Jurisprudence on th Civil Code, 1990, p. 46). Following the interpretation in Derby as to the publication of an ordinance for "at least two weeks" in some newspaper that: . . . here there is no date or event suggesting the exclusion of the first day's publication from the computation, and the cases above cited take this case out of the rule stated in Section 12, Code Civ. Proc. which excludes the first day and includes the last;

the publication effected on April 11, 1969 cannot be construed as sufficient advertisement for the second week because the period for the first week should be reckoned from March 28, 1969 until April 3, 1969 while the second week should be counted from April 4, 1969 until April 10, 1969. It is clear that the announcement on April 11, 1969 was both theoretically and physically accomplished during the first day of the third week and cannot thus be equated with compliance in law. Indeed, where the word is used simply as a measure of duration of time and without reference to the calendar, it means a period of seven consecutive days without regard to the day of the week on which it begins (1 Tolentino, supraat p. 467 citing Derby). Certainly, it would have been absurd to exclude March 28, 1969 as reckoning point in line with the third paragraph of Article 13 of the New Civil Code, for the purpose of counting the first week of publication as to the last day thereof fall on April 4, 1969 because this will have the effect of extending the first week by another day. This incongruous repercussion could not have been the unwritten intention of the lawmakers when Act No. 3135 was enacted. Verily, inclusion of the first day of publication is in keeping with the computation in Bonnevie vs. Court of Appeals (125 SCRA 122 [1983]) where this Court had occasion to pronounce, through Justice Guerrero, that the publication of notice on June 30, July 7 and July 14, 1968 satisfied the publication requirement under Act No. 3135. Respondent court cannot, therefore, be faulted for holding that there was no compliance with the strict requirements of publication independently of the so- called admission in judicio.
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WHEREFORE, the petitions for certiorari and intervention are hereby dismissed and the decision of the Court of Appeals dated April 17, 1991 is hereby affirmed in toto.
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SO ORDERED.