G.R. No.

168617             February 19, 2007

BERNADETTE L. ADASA, petitioner, 
vs.
CECILLE S. ABALOS, Respondent.

This Petition for Review under Rule 45 of the Rules of Court, filed by petitioner Bernadette L. Adasa, seeks to
nullify and set aside the 21 July 2004 Decision1 and 10 June 2005 Resolution2 of the Court of Appeals in CA-
G.R. SP No. 76396 which nullified the Resolutions of the Department of Justice (DOJ). The Resolutions of the
DOJ reversed and set aside the Resolution of the Office of the City Prosecutor of Iligan City, which found on
reinvestigation probable cause against petitioner, and directed the Office of the City Prosecutor of Iligan City to
withdraw the information for Estafa against petitioner.

The instant case emanated from the two complaints-affidavits filed by respondent Cecille S. Abalos on 18
January 2001 before the Office of the City Prosecutor of Iligan City, against petitioner for Estafa.

Respondent alleged in the complaints-affidavits that petitioner, through deceit, received and encashed two
checks issued in the name of respondent without respondent’s knowledge and consent and that despite
repeated demands by the latter, petitioner failed and refused to pay the proceeds of the checks.

On 23 March 2001, petitioner filed a counter-affidavit admitting that she received and encashed the two checks
issued in favor of respondent.

In her Supplemental Affidavit filed on 29 March 2001, petitioner, however, recanted and alleged instead that it
was a certain Bebie Correa who received the two checks which are the subject matter of the complaints and
encashed the same; and that said Bebie Correa left the country after misappropriating the proceeds of the
checks.

On 25 April 2001, a resolution was issued by the Office of the City Prosecutor of Iligan City finding probable
cause against petitioner and ordering the filing of two separate Informations for Estafa Thru Falsification of
Commercial Document by a Private Individual, under Article 315 in relation to Articles 171 and 172 of the
Revised Penal Code, as amended.

Consequently, two separate criminal cases were filed against petitioner docketed as Criminal Cases No. 8781
and No. 8782, raffled to Branches 4 and 5, Regional Trial Court of Iligan City, respectively.

This instant petition pertains only to Criminal Case No. 8782.

On 8 June 2001, upon motion of the petitioner, the trial court in Criminal Case No. 8782 issued an order
directing the Office of the City Prosecutor of Iligan City to conduct a reinvestigation.

After conducting the reinvestigation, the Office of the City Prosecutor of Iligan City issued a resolution dated 30
August 2001, affirming the finding of probable cause against petitioner.

Meanwhile, during her arraignment on 1 October 2001 in Criminal Case No. 8782, petitioner entered an
unconditional plea of not guilty.3

Dissatisfied with the finding of the Office of the City Prosecutor of Iligan City, petitioner filed a Petition for
Review before the DOJ on 15 October 2001.

1
In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30 August 2001 resolution of the
Office of the City Prosecutor of Iligan City and directed the said office to withdraw the Information for Estafa
against petitioner.

The said DOJ resolution prompted the Office of the City Prosecutor of Iligan City to file a "Motion to Withdraw
Information" on 25 July 2002.

On 26 July 2002, respondent filed a motion for reconsideration of said resolution of the DOJ arguing that the
DOJ should have dismissed outright the petition for review since Section 7 of DOJ Circular No. 70 mandates
that when an accused has already been arraigned and the aggrieved party files a petition for review before the
DOJ, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course
thereto, but instead deny it outright. Respondent claimed Section 12 thereof mentions arraignment as one of
the grounds for the dismissal of the petition for review before the DOJ.

In a resolution dated 30 January 2003, the DOJ denied the Motion for Reconsideration opining that under
Section 12, in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not precluded from
entertaining any appeal taken to him even where the accused has already been arraigned in court. This is due
to the permissive language "may" utilized in Section 12 whereby the Secretary has the discretion to entertain
an appealed resolution notwithstanding the fact that the accused has been arraigned.

Meanwhile, on 27 February 2003, the trial court issued an order granting petitioner’s "Motion to Withdraw
Information" and dismissing Criminal Case No. 8782. No action was taken by respondent or any party of the
case from the said order of dismissal.

Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari before the Court of Appeals.
Respondent raised the following issues before the appellate court:

1. Whether or not the Department of Justice gravely abused its discretion in giving due course to
petitioner’s petition for review despite its having been filed after the latter had already been arraigned;

2. Whether or not there is probable cause that the crime of estafa has been committed and that
petitioner is probably guilty thereof;

3. Whether or not the petition before the Court of Appeals has been rendered moot and academic by
the order of the Regional Trial Court dismissing Criminal Case No. 8782.

The Court of Appeals in a Decision dated 21 July 2004 granted respondent’s petition and reversed the
Resolutions of the DOJ dated 11 July 2002 and 30 January 2003.

In resolving the first issue, the Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70 which
states "[i]f an information has been filed in court pursuant to the appealed resolution, the petition shall not be
given due course if the accused had already been arraigned," ruled that since petitioner was arraigned before
she filed the petition for review with the DOJ, it was imperative for the DOJ to dismiss such petition. It added
that when petitioner pleaded to the charge, she was deemed to have waived her right to reinvestigation and
right to question any irregularity that surrounds it.

Anent the second issue, the Court of Appeals declared that the existence of probable cause or the lack of it,
cannot be dealt with by it since factual issues are not proper subjects of a Petition for Certiorari.

2
In disposing of the last issue, the Court of Appeals held that the order of the trial court dismissing the subject
criminal case pursuant to the assailed resolutions of the DOJ did not render the petition moot and academic. It
said that since the trial court’s order relied solely on the resolutions of the DOJ, said order is void as it violated
the rule which enjoins the trial court to assess the evidence presented before it in a motion to dismiss and not
to rely solely on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the
case.

Dissatisfied by the Court of Appeals’ ruling, petitioner filed a Motion for Reconsideration setting forth the
following grounds:

1. that the over-all language of Sections 7 and 12 of Department Circular No. 70 is permissive and
directory such that the Secretary of Justice may entertain an appeal despite the fact that the accused
had been arraigned;

2. that the contemporaneous construction by the Secretary of Justice should be given great weight and
respect;

3. that Section 7 of the Circular applies only to resolutions rendered pursuant to a preliminary
investigation, not on a reinvestigation;

4. that the trial court’s order of dismissal of the criminal case has rendered the instant petition moot and
academic;

5. that her arraignment was null and void it being conducted despite her protestations; and

6. that despite her being arraigned, the supposed waiver of her right to preliminary investigation has
been nullified or recalled by virtue of the trial court’s order of reinvestigation.4

The Court of Appeals stood firm by its decision. This time, however, it tried to construe Section 7 side by side
with Section 12 of DOJ Circular No. 70 and attempted to reconcile these two provisions. According to the
appellate court, the phrase "shall not" in paragraph two, first sentence of Section 7 of subject circular, to wit:

If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due
course if the accused had already been arraigned. x x x. (Emphasis supplied.)

employed in the circular denotes a positive prohibition. Applying the principle in statutory construction - that
when a statute or provision contains words of positive prohibition, such as "shall not," "cannot," or "ought not"
or which is couched in negative terms importing that the act shall not be done otherwise than designated, that
statute or provision is mandatory, thus rendering the provision mandatory – it opined that the subject provision
simply means that the Secretary of Justice has no other course of action but to deny or dismiss a petition
before him when arraignment of an accused had already taken place prior to the filing of the petition for review.

On the other hand, reading Section 12 of the same circular which reads:

The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion,
dismiss the petition for review on any of the following grounds:

xxxx

(e) That the accused had already been arraigned when the appeal was taken; x x x.
3
the Court of Appeals opined that the permissive word "may" in Section 12 would seem to imply that the
Secretary of Justice has discretion to entertain an appeal notwithstanding the fact that the accused has been
arraigned. This provision should not be treated separately, but should be read in relation to Section 7. The two
provisions, taken together, simply meant that when an accused was already arraigned when the aggrieved
party files a petition for review, the Secretary of Justice cannot, and should not take cognizance of the petition,
or even give due course thereto, but instead dismiss or deny it outright. The appellate court added that the
word "may" in Section 12 should be read as "shall" or "must" since such construction is absolutely necessary
to give effect to the apparent intention of the rule as gathered from the context.

As to the contemporaneous construction of the Secretary of Justice, the Court of Appeals stated that the same
should not be given weight since it was erroneous.

Anent petitioner’s argument that Section 7 of the questioned circular applies only to original resolutions that
brought about the filing of the corresponding informations in court, but not to resolutions rendered pursuant to a
motion for reinvestigation, the appellate court simply brushed aside such contention as having no basis in the
circular questioned.

It also rejected petitioner’s protestation that her arraignment was forced upon her since she failed to present
any evidence to substantiate the same.

It is petitioner’s contention that despite her being arraigned, the supposed waiver of her right to preliminary
investigation has been nullified by virtue of the trial court’s order or reinvestigation. On this score, the Court of
Appeals rebuffed such argument stating that there was no "supposed waiver of preliminary investigation" to
speak of for the reason that petitioner had actually undergone preliminary investigation.

Petitioner remained unconvinced with the explanations of the Court of Appeals.

Hence, the instant petition.

Again, petitioner contends that the DOJ can give due course to an appeal or petition for review despite its
having been filed after the accused had already been arraigned. It asserts that the fact of arraignment of an
accused before the filing of an appeal or petition for review before the DOJ "is not at all relevant" as the DOJ
can still take cognizance of the appeal or Petition for Review before it. In support of this contention, petitioner
set her sights on the ruling of this Court in Crespo v. Mogul,5 to wit:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of
the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the
case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge
on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation. (Emphasis supplied.)

To bolster her position, petitioner cites Roberts v. Court of Appeals,6 which stated:

There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a
petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal

4
from the action of the fiscal, when the complaint or information has already been filed in Court. x x x.
(Emphasis supplied.)

Petitioner likewise invokes Marcelo v. Court of Appeals7 where this Court declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of
his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable
from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or
information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after
the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court.

The Court is unconvinced.

A cursory reading of Crespo v. Mogul reveals that the ruling therein does not concern the issue of an appeal or
petition for review before the DOJ after arraignment. Verily, the pronouncement therein has to do with the filing
of a motion to dismiss and the court’s discretion to deny or grant the same. As correctly pointed out by
respondent, the emphasized portion in the Crespo ruling is a parcel of the entire paragraph which relates to the
duty and jurisdiction of the trial court to determine for itself whether or not to dismiss a case before it, and
which states that such duty comes into play regardless of whether such motion is filed before or after
arraignment and upon whose instructions. The allusion to the Secretary of Justice as reviewing the records of
investigation and giving instructions for the filing of a motion to dismiss in the cited ruling does not take into
consideration of whether the appeal or petition before the Secretary of Justice was filed after arraignment.
Significantly, in the Crespo case, the accused had not yet been arraigned when the appeal or petition for
review was filed before the DOJ. Undoubtedly, petitioner’s reliance on the said case is misplaced.

Also unavailing is petitioner’s invocation of the cases of Roberts v. Court of Appeals and Marcelo v. Court of
Appeals. As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of Appeals took into
account of whether the appeal or petition before the Secretary of Justice was filed after arraignment. Just like
in the Crespo case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not
yet been arraigned when the appeal or petition for review was filed before the DOJ.

Moreover, petitioner asserts that the Court of Appeals’ interpretation of the provisions of DOJ Circular No. 70
violated three basic rules in statutory construction. First, the rule that the provision that appears last in the
order of position in the rule or regulation must prevail. Second, the rule that the contemporaneous construction
of a statute or regulation by the officers who enforce it should be given weight. Third, petitioner lifted a portion
from Agpalo’s Statutory Construction8 where the word "shall" had been construed as a permissive, and not a
mandatory language.

The all too-familiar rule in statutory construction, in this case, an administrative rule 9 of procedure, is that when
a statute or rule is clear and unambiguous, interpretation need not be resorted to. 10 Since Section 7 of the
subject circular clearly and categorically directs the DOJ to dismiss outright an appeal or a petition for review
filed after arraignment, no resort to interpretation is necessary.

Petitioner’s reliance to the statutory principle that "the last in order of position in the rule or regulation must
prevail" is not applicable. In addition to the fact that Section 7 of DOJ Circular No. 70 needs no construction,
the cited principle cannot apply because, as correctly observed by the Court of Appeals, there is no
irreconcilable conflict between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the circular
provides:

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SECTION 7. Action on the petition. – The Secretary of Justice may dismiss the petition outright if he finds the
same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused had already been arraigned. Any
arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power
of review. (Italics supplied.)

On the other hand, Section 12 of the same circular states:

SECTION 12. Disposition of the Appeal. – The Secretary may reverse, affirm or modify the appealed
resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following
grounds:

(a) That the petition was filed beyond the period prescribed in Section 3 hereof;

(b) That the procedure or any of the requirements herein provided has not been complied with;

(c) That there is no showing of any reversible error;

(d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings
based on the alleged existence of a prejudicial question;

(e) That the accused had already been arraigned when the appeal was taken;

(f) That the offense has already prescribed; and

(g) That other legal or factual grounds exist to warrant a dismissal. (Emphases supplied.)

It is noteworthy that the principle cited by petitioner reveals that, to find application, the same presupposes that
"one part of the statute cannot be reconciled or harmonized with another part without nullifying one in favor of
the other." In the instant case, however, Section 7 is neither contradictory nor irreconcilable with Section 12. As
can be seen above, Section 7 pertains to the action on the petition that the DOJ must take, while Section 12
enumerates the options the DOJ has with regard to the disposition of a petition for review or of an appeal.

As aptly observed by respondent, Section 7 specifically applies to a situation on what the DOJ must do when
confronted with an appeal or a petition for review that is either clearly without merit, manifestly intended to
delay, or filed after an accused has already been arraigned, i.e., he may dismiss it outright if it is patently
without merit or manifestly intended to delay, or, if it was filed after the acccused has already been arraigned,
the Secretary shall not give it due course.

Section 12 applies generally to the disposition of an appeal. Under said section, the DOJ may take any of four
actions when disposing an appeal, namely:

1. reverse the appealed resolution;

2. modify the appealed resolution;

3. affirm the appealed resolution;

4. dismiss the appeal altogether, depending on the circumstances and incidents attendant thereto.
6
As to the dismissal of a petition for review or an appeal, the grounds are provided for in Section 12 and,
consequently, the DOJ must evaluate the pertinent circumstances and the facts of the case in order to
determine which ground or grounds shall apply.

Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition for review
due course and must dismiss the same. This is bolstered by the fact that arraignment of the accused prior to
the filing of the appeal or petition for review is set forth as one of the grounds for its dismissal. Therefore, in
such instance, the DOJ, noting that the arraignment of an accused prior to the filing of an appeal or petition for
review is a ground for dismissal under Section 12, must go back to Section 7 and act upon as mandated
therein. In other words, the DOJ must not give due course to, and must necessarily dismiss, the appeal.

Likewise, petitioner’s reliance on the principle of contemporary construction, i.e., the DOJ is not precluded from
entertaining appeals where the accused had already been arraigned, because it exercises discretionary power,
and because it promulgated itself the circular in question, is unpersuasive. As aptly ratiocinated by the Court of
Appeals:

True indeed is the principle that a contemporaneous interpretation or construction by the officers charged with
the enforcement of the rules and regulations it promulgated is entitled to great weight by the court in the latter’s
construction of such rules and regulations. That does not, however, make such a construction necessarily
controlling or binding. For equally settled is the rule that courts may disregard contemporaneous construction
in instances where the law or rule construed possesses no ambiguity, where the construction is clearly
erroneous, where strong reason to the contrary exists, and where the court has previously given the statute a
different interpretation.

If through misapprehension of law or a rule an executive or administrative officer called upon to implement it
has erroneously applied or executed it, the error may be corrected when the true construction is ascertained. If
a contemporaneous construction is found to be erroneous, the same must be declared null and void. Such
principle should be as it is applied in the case at bar.11

Petitioner’s posture on a supposed exception to the mandatory import of the word "shall" is misplaced. It is
petitioner’s view that the language of Section 12 is permissive and therefore the mandate in Section 7 has
been transformed into a matter within the discretion of the DOJ. To support this stance, petitioner cites a
portion of Agpalo’s Statutory Construction which reads:

For instance, the word "shall" in Section 2 of Republic Act 304 which states that "banks or other financial
institutions owned or controlled by the Government shall, subject to availability of funds xxx, accept at a
discount at not more than two per centum for ten years such (backpay) certificate" implies not a mandatory, but
a discretionary, meaning because of the phrase "subject to availability of funds." Similarly, the word "shall" in
the provision to the effect that a corporation violating the corporation law "shall, upon such violation being
proved, be dissolved by quo warranto proceedings" has been construed as "may."12

After a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to the
provision in question. In the cited passage, the word "shall" departed from its mandatory import connotation
because it was connected to certain provisos/conditions: "subject to the availability of funds" and "upon such
violation being proved." No such proviso/condition, however, can be found in Section 7 of the subject circular.
Hence, the word "shall" retains its mandatory import.

At this juncture, the Court of Appeals’ disquisition in this matter is enlightening:

7
Indeed, if the intent of Department Circular No. 70 were to give the Secretary of Justice a discretionary power
to dismiss or to entertain a petition for review despite its being outrightly dismissible, such as when the
accused has already been arraigned, or where the crime the accused is being charged with has already
prescribed, or there is no reversible error that has been committed, or that there are legal or factual grounds
warranting dismissal, the result would not only be incongruous but also irrational and even unjust. For then, the
action of the Secretary of Justice of giving due course to the petition would serve no purpose and would only
allow a great waste of time. Moreover, to give the second sentence of Section 12 in relation to its paragraph (e)
a directory application would not only subvert the avowed objectives of the Circular, that is, for the expeditious
and efficient administration of justice, but would also render its other mandatory provisions - Sections 3, 5, 6
and 7, nugatory.13

In her steadfast effort to champion her case, petitioner contends that the issue as to whether the DOJ rightfully
entertained the instant case, despite the arraignment of the accused prior to its filing, has been rendered moot
and academic with the order of dismissal by the trial court dated 27 February 2003. Such contention deserves
scant consideration.

It must be stressed that the trial court dismissed the case precisely because of the Resolutions of the DOJ
after it had, in grave abuse of its discretion, took cognizance of the petition for review filed by petitioner. Having
been rendered in grave abuse of its discretion, the Resolutions of the DOJ are void. As the order of dismissal
of the trial court was made pursuant to the void Resolutions of the DOJ, said order was likewise void. The rule
in this jurisdiction is that a void judgment is a complete nullity and without legal effect, and that all proceedings
or actions founded thereon are themselves regarded as invalid and ineffective for any purpose.14 That
respondent did not file a motion for reconsideration or appeal from the dismissal order of the trial court is of no
moment. Since the dismissal was void, there was nothing for respondent to oppose.

Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only to appeals from original resolution
of the City Prosecutor and does not apply in the instant case where an appeal is interposed by petitioner from
the Resolution of the City Prosecutor denying her motion for reinvestigation. This claim is
baseless.1avvphi1.net

A reading of Section 7 discloses that there is no qualification given by the same provision to limit its application
to appeals from original resolutions and not to resolutions on reinvestigation. Hence, the rule stating that "when
the law does not distinguish, we must not distinguish"15 finds application in this regard.

Petitioner asserts that her arraignment was null and void as the same was improvidently conducted. Again, this
contention is without merit. Records reveal that petitioner’s arraignment was without any restriction, condition
or reservation.16 In fact she was assisted by her counsels Atty. Arthur Abudiente and Atty. Maglinao when she
pleaded to the charge.17

Moreover, the settled rule is that when an accused pleads to the charge, he is deemed to have waived the right
to preliminary investigation and the right to question any irregularity that surrounds it. 18 This precept is also
applicable in cases of reinvestigation as well as in cases of review of such reinvestigation. In this case, when
petitioner unconditionally pleaded to the charge, she effectively waived the reinvestigation of the case by the
prosecutor as well as the right to appeal the result thereof to the DOJ Secretary. Thus, with the arraignment of
the petitioner, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner
had already waived or abandoned the same.

Lastly, while there is authority19 permitting the Court to make its own determination of probable cause, such,
however, cannot be made applicable in the instant case. As earlier stated, the arraignment of petitioner
constitutes a waiver of her right to preliminary investigation or reinvestigation. Such waiver is tantamount to a

8
finding of probable cause. For this reason, there is no need for the Court to determine the existence or non-
existence of probable cause.

Besides, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a trier of facts. This being the case, this Court cannot
review the evidence adduced by the parties before the prosecutor on the issue of the absence or presence of
probable cause.20

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 21 July 2004 and its
Resolution dated 10 June 2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.

SO ORDERED.

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G.R. No. L-55151 March 17, 1981

DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and
WILFREDO CABARDO, petitioners, 
vs.
HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents.

 The principal issue raised in this certiorari petition with a prayer for a Writ of Preliminary Injunction is whether
or not respondent Judge committed grave abuse of discretion in issuing a Restraining Order, which had the
effect of allowing private respondent, Dominador B. Borje, to retain his position as member of the Board of
Directors of the Misamis Occidental Electric Cooperative, Inc ., (MOELCI II)

Succintly stated, the pertinent facts follow:

Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for Cooperative
Development, respectively, of the National Electrification Administration (NEA).

Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petitioners Ressurrection Inting,
Antonio Lim and Wilfredo Cabardo, are members of its Board of Directors.

Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected Director of
MOELCI II, to hold office as such for three years starting March 25, 1979.

Section 21 of Presidential Decree No. 269 (second paragraph) provides:

The provision of any law or regulation to the contrary notwithstanding, an officer or employee of
the government shag be eligible for membership in any cooperative if he meets the
qualifications therefor and he shall not be precluded from being elected to or holding any
Position therein, or from receiving such compensation or fee in relation thereto as may be
authorized by the by-laws; Provided That elective officers of the government, except barrio
captains and councilors, shall be ineligible to become officers and/or directors of any
cooperative, ... (emphasis supplied)

Section 3, Article IV of the By-laws of MOELCI II also explicitly states:

Section 3. Qualifications. ... No person shall be eligible to become or to remain a Board member
of the Cooperative who

xxx xxx xxx

(c) holds an elective office in the government above the level of a Barangay Captain

xxx xxx xxx

(emphasis supplied)

On 4 January 1980, private respondent filed his certificate of candidacy for the position of member of the
Sangguniang Panglunsod of Ozamiz City in the 30 January 1980 local elections.

10
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18 to the effect
that all officials and employees of electric cooperatives who run for public office, win and assume office, shall
be considered The Memorandum was issued pursuant to the authority granted under PD No. 1645, amending
PD No. 269, reading.

10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise of its
power of supervision and control over electric cooperatives and other borrower, supervised or
control entities (Sec. 5, amending Sec. 10 of P.D. No. 269). 1

On January 1980, the NEA Deputy Administrator sent a telegram to the Acting General Manager of MOELCI II
stating that should private respondent Borje be elected to the Sangguniang Bayan, he shall be considered
resigned from his position as Director for the North District of Ozamiz City, Private respondent moved
reconsideration and requested that he be allowed to serve the unexpired term of his office in accordance with
PD No. 269. Reconsideration was denied by NEA on 7 February 1980.

On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction of Legal
Provisions with Preliminary Injunction and Damages" against petitioners before the Court of First Instance of
Misamis Occidental, Branch II (Spec. Case No. 0511), seeking a declaration of entitlement to remain and to
serve his unexpired term as Director of MOELCI II until March, 1982.

On 3 March 1980, having won the election, private respondent assumed office and began discharging his
functions.

On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary restraining Order
commanding petitioners considering private respondent as resigned, and, instead, to snow him to retain his
position as member of the Board of Directors of MOELCI IIpending hearing. 2

Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of action and
invoking section 21 of PD No. 269 (supra), section 3, Article IV of the by laws OF MOELCI II(supra), as well as
section 24 of PD No. 269 providing that:

... The by-laws shall prescribe the number of directors their qualifications other than those
prescribed in this Decree, the manner of holding meetings of the board and of electing
successors to directors who shall resign, die or otherwise be incapable of acting. The bylaws
may also provide for the removal of directors from office and for the election of their
successors ...

On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, 3 only to restore it the next
day, 25 March 1980. 4

In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed that NEA
possessed the power and authority to promulgate Memorandum No 18, and that, similarly, the Board of
Directors of MOELCI IIhad the power to implement the same under PD No. 269, as amended by PD 1645.

Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to Dismiss.

On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated 25 March
1980, and dissolved the Restraining Order. 5

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On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and passed Resolution No. 121,
S-80, implementing NEA Circular No. 18 and declaring private respondent's position as member of the Board
of Directors of MOELCI II vacant.

On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the vacation
Judge, dated 8 May 1980, in effect reviving the Restraining Order, on the ground that, as "councilor" of Ozamiz
City, section 21 of PD No. 269 itself exempts private respondent from the prohibition imposed on elective
officials to become Directors of electric cooperatives. 6

Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor General, advancing the
view that Courts of First Instance have no jurisdiction to issue a Restraining Order and that respondent Judge
had committed grave abuse of discretion in issuing the same.

On 10 October 1980 we required respondents to submit an Answer and issued a Restraining Order enjoining
respondents from enforcing the Order of the Court a quo dated 6 June 1980 and from conducting further
proceedings in the case below. Private respondent Borje has filed his Answer, petitioners have submitted their
Reply, and on 2 February 1981, we resolved to give due course to the Petition and to consider the case
submitted for decision.

We find that respondent Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the
various Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown no clear
and explicit right to the position of Director of MOELCI IIand is, therefore, not entitled to a Restraining Order,
which partook of the nature of a mandatory Injunction, commanding as it did that private respondent be
retained in his position as such Director. By having been elected member of the Sangguniang Panglunsod of
Ozamiz City, private respondent rendered himself ineligible to continue serving as a Director of MOELCI IIby
virtue of the clear mandate of PD No. 269 providing that except for "barrio captains and councilors", elective
officials are ineligible to become officers and/or directors of any cooperative. It is clear to us that the term barrio
modifies both captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can
remain a member of the Board if he "holds an elective office above the level of barrio captain.

Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a cooperatives from
continuing in their position prior to their election, and that pursuant to section 24 of PD No. 269 he is entitled,
as Director, to hold office for the term for which he is erected and until his successor is elected and qualified,"
is untenable. Eligibility to an office should be construed as of a continuing nature and must exist at the
commencement of the term and during occupancy of the office. The fact that private respondent may have
been qualified at the time he assumed the Directorship is not sufficient to entitle him to continue holding office,
if during the continuance of his incumbency he ceases to be qualified. Private respondent was qualified to
become a director of MOELCI II at the time of the commencement of his term, but his election as member of
the Sangguniang Panglunsod of Ozamiz City, and his subsequent assumption of office, disqualified him to
continue as such.

Moreover, it should be recalled that when respondent Judge issued the Restraining Order of 6 June 1980. NEA
Memorandum Circular No. 18 had already been implemented by the MOELCI Board in the latter's Resolution
No. 121, passed on 10 May 1980, declaring the position of private respondent, as Director, vacant. Strictly
speaking, therefore, there was no longer any position which private respondent could retain. WHEREFORE,
finding that respondent Judge acted with grave abuse of discretion tantamount to lack of jurisdiction in issuing
the Restraining Order, dated 6 June 1980, the said Order is hereby annulled and set aside, and the Petition in
Special Civil Case No. 05IIof the Court below hereby ordered dismissed. The temporary Restraining Order
heretofore issued by this Court is hereby made permanent. No pronouncement as to costs. SO ORDERED.

12
G.R. No. L-35910 July 21, 1978

PURITA BERSABAL, petitioner, 
vs.
HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the Court of First Instance of Caloocan City,
Branch XIV, TAN THAT and ONG PIN TEE, respondents.

On March 23, 1972, petitioner Purita Bersabal seeks to annul the orders of respondent Judge of August 4,
1971, October 30, 1971 and March 15, 1972 and to compel said respondent Judge to decide petitioner's
perfected appeal on the basis of the evidence and records of the case submitted by the City Court of Caloocan
City plus the memorandum already submitted by the petitioner and respondents.

Since only questions of law were raised therein, the Court of Appeals, on October 13, 1972, issued a resolution
certifying said case to this Court pursuant to Section 17, paragraph (4) of the Judiciary Act of 1948, as
amended.

As found by the Court of Appeals, the facts of this case are as follows:

It appears that private respondents Tan That and Ong Pin Tee filed an ejectment suit, docketed
as Civil Case No. 6926 in the City Court of Caloocan City, against the petitioner. A decision was
rendered by said Court on November 25, 1970, which decision was appealed by the petitioner
to the respondent Court and docketed therein as Civil Case No. C-2036.

During the pendency of the appeal the respondent court issued on March 23, 1971 an order
which reads:

Pursuant to the provisions of Rep. Act No. 6031, the Clerk of Court of Caloocan
City, is hereby directed to transmit to this Court within fifteen (15) days from
receipt hereof the transcripts of stenographic notes taken down during the
hearing of this case before the City Court of Caloocan City, and likewise,
counsels for both parties are given thirty (30) days from receipt of this order
within which to file their respective memoranda, and thereafter, this case shall be
deemed submitted for decision by this Court.

which order was apparently received by petitioner on April 17, 1971.

The transcript of stenographic notes not having yet been forwarded to the respondent court,
petitioner filed on May 5, 1971 a 'MOTION EX-PARTE TO SUBMIT MEMORANDUM WITHIN
30 DAYS FROM RECEIPT OF NOTICE OF SUBMISSION OF THE TRANSCRIPT OF
STENOGRAPHIC NOTES TAKEN DURING THE HEARING OF THE CASE BEFORE THE
CITY COURT OF CALOOCAN CITY' which was granted by respondent court on May 7, 1971.
However, before the petitioner could receive any such notice from the respondent court, the
respondent Judge issued an order on August 4, 1971 which says:

For failure of the defendant-appellant to prosecute her appeal the same is hereby
ordered DISMISSED with costs against her.

Petitioner filed a motion for reconsideration of the order on September 28, 1971, citing as a
ground the granting of his ex-parte motion to submit memorandum within 30 days from notice of
the submission of the stenographic notes taken before the City Court. Private respondents filed

13
 their opposition to the motion on September 30,1971. In the meantime, on October 20,1971,
petitioner filed her memorandum dated October 18, 1971. On October 30, 1971 the respondent
Court denied the motion for reconsideration. Then on January 25, 1972, petitioner filed a motion
for leave to file second motion for reconsideration which was likewise denied by the respondent
court on March 15, 1972. Hence this petition.

The sole inquiry in the case at bar can be stated thus: Whether, in the light of the provisions of the second
paragraph of Section 45 of Republic Act No. 296, as amended by R.A. No. 6031, the mere failure of an
appellant to submit on nine the memorandum mentioned in the same paragraph would empower the Court of
First Instance to dismiss the appeal on the ground of failure to Prosecute; or, whether it is mandatory upon said
Court to proceed to decide the appealed case on the basis of the evidence and records transmitted to it, the
failure of the appellant to submit a memorandum on time notwithstanding.

The second paragraph of Section 45 of R.A. No. 296, otherwise known as the Philippine Judiciary Act of 1948,
as amended by R.A. No. 6031 provides, in part, as follows:

Courts of First Instance shall decide such appealed cases on the basis of the evidence and
records transmitted from the city or municipal courts: Provided, That the parties may
submit memoranda and/or brief with oral argument if so requested ... . (Emphasis supplied).

The foregoing provision is clear and leaves no room for doubt. It cannot be interpreted otherwise than that the
submission of memoranda is optional on the part of the parties. Being optional on the part of the parties, the
latter may so choose to waive submission of the memoranda. And as a logical concomitant of the choice given
to the Parties, the Court cannot dismiss the appeal of the party waiving the submission of said memorandum
the appellant so chooses not to submit the memorandum, the Court of First Instance is left with no alternative
but to decide the case on the basis of the evidence and records transmitted from the city or municipal courts. In
other words, the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to
submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the
available evidence and records transmitted to it.

As a general rule, the word "may" when used in a statute is permissive only and operates to confer discretion;
while the word "shall" is imperative, operating to impose a duty which may be enforced (Dizon vs. Encarnacion,
L-18615, Dec. 24, 1963, 9 SCRA 714, 716-717). The implication is that the Court is left with no choice but to
decide the appealed case either on the basis of the evidence and records transmitted to it, or on the basis of
the latter plus memoranda and/or brief with oral argument duly submitted and/or made on request.

Moreover, memoranda, briefs and oral arguments are not essential requirements. They may be submitted
and/or made only if so requested.

Finally, a contrary interpretation would be unjust and dangerous as it may defeat the litigant's right to appeal
granted to him by law. In the case of Republic vs. Rodriguez 
(L-26056, May 29, 1969, 28 SCRA 378) this Court underscored "the need of proceeding with caution so that a
party may not be deprived of its right to appeal except for weighty reasons." Courts should heed the rule
inMunicipality of Tiwi, Albay vs. Cirujales 
(L-37520, Dec. 26, 1973, 54 SCRA 390, 395), thus:

The appellate court's summary dismissal of the appeal even before receipt of the records of the
appealed case as ordered by it in a prior mandamus case must be set aside as having been
issued precipitously and without an opportunity to consider and appreciate unavoidable
circumstances of record not attributable to petitioners that caused the delay in the elevation of
the records of the case on appeal.
14
In the instant case, no notice was received by petitioner about the submission of the transcript of the
stenographic notes, so that his 30-day period to submit his memorandum would commence to run. Only after
the expiration of such period can the respondent Judge act on the case by deciding it on the merits, not by
dismissing the appeal of petitioner.

WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT JUDGE DATED AUGUST 4, 1971,

OCTOBER 30, 1971 AND MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID AND THE
RESPONDENT COURT IS HEREBY DIRECTED TO DECIDE CIVIL CASE NO. C-2036 ON THE MERITS. NO
COSTS.

15
G.R. No. 116695 June 20, 1997

VICTORIA G. GACHON and ALEX GUEVARA, petitioners, 

vs.
HON. NORBERTO C. DEVERA, JR., Presiding Judge, Branch XXIV, RTC, Iloilo City; HON. JOSE R.
ASTORGA, Presiding Judge, Branch I, Municipal Trial Court in Cities, Iloilo City; and SUSANA
GUEVARA, represented by her attorney-in-fact, ROSALIE GUEVARA, respondents.

 May the Rule on Summary Procedure be interpreted liberally to allow the admission of an answer filed out of
time due to alleged "oversight"?

This is the main legal question raised in this petition for review assailing the Decision of the Regional Trial
Court of Iloilo City, Branch 24, 1 which dismissed a special civil action for certiorari and injunction filed by herein
petitioners. The dispositive portion of the assailed RTC Decision reads: 2

WHEREFORE premises considered, the prayer for the issuance of a writ of preliminary
injunction is denied and, with respect to the merits, the instant case is hereby ordered
dismissed.

Double costs against petitioners.

Facts

The factual antecedents of this case as found by the Regional Trial Court are undisputed and admitted
as correct by the parties. A complaint for forcible entry 3 was filed by Private Respondent Susana
Guevara against Patricio Guevara and Petitioners Victoria Gachon and Alex Guevara before the
Municipal Trial Court for Cities (MTCC) of Iloilo City. Summons was served on and received by
petitioners on August 25, 1993, directing them to file an answer within the reglementary period of ten
(10) days. Patricio Guevara was abroad at that time; hence, the MTCC did not acquire jurisdiction over
him. On September 4, 1993, petitioners filed with the MTCC an urgent motion for extension of time to
file an answer. 4On September 7, 1993, the MTCC denied the motion on the ground that it was a
prohibited pleading under the Rule on Summary Procedure. 5 On September 8, 1993, or more than ten
days from their receipt of the summons, petitioner submitted an urgent motion praying for the admission
of their answer, 6 which was attached thereto. Two days later, petitioners filed another motion pleading
for the admission of an amended answer. On September 23, 1993, the MTCC denied the motions and
considered the case submitted for resolution. 7 On October 27, 1993, the MTCC also denied the
petitioners' motion for reconsideration. 8 Thereafter, on November 26, 1993, the MTCC 9 issued a
decision 10 resolving the complaint for forcible entry in favor of herein private respondents.

Instead of filing an appeal, petitioners filed a petition for certiorari and injunction before the Regional Trial Court
(RTC) of Iloilo City, 11 Branch 24, praying mainly that the MTCC be ordered to admit the amended answer and
to conduct further proceedings in the civil case for forcible entry. As prayed for, a temporary restraining order
was issued by the RTC.

Thereafter, the RTC issued the assailed Decision 12 dismissing the petition. Respondent Judge Norberto E.
Devera, Jr. ratiocinated: 13

Section 36 of Batas Pambansa Blg. 129, otherwise known as The Judiciary Reorganization Act
of 1980 provides, among others, as follows:

16
 Sec. 36 — Summary Procedures in Special Cases . . . The Supreme Court shall
adoptspecial rules or procedures applicable to such cases in order to achieve an
expeditions (sic) and inexpensive determination thereof without regard to
technical rules. Such simplified procedures may provide that affidavits and
counter-affidavits may be admitted in lieu of oral testimony and that the periods
for filing pleadings shall be non-extendible.

Pursuant to the aforequoted legislative mandate, the Supreme Court promulgated the Rule on Summary
Procedure, the pertinent provisions of which, as related to the issues raised in this case, are hereunder set
forth —

II — Civil Cases

Sec. 3. Pleadings

A. (P)leadings allowed — The only pleadings allowed to be filed are the

complaints, compulsory counter-claims and cross-claims pleaded in the answer,
and the answers thereto

xxx xxx xxx

Sec. 5. Answer — Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff . . .

Sec. 6. Effect of Failure to answer — Should the defendant fail to answer the complaint within
the period above provided, the Court, motu proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein: . . .

xxx xxx xxx

Sec. 19. Prohibited Pleadings and Motions — The following pleadings, motions, or petitions
shall not be allowed in the cases covered by this Rule:

(a) Motion for extension of time to file pleadings, affidavits or any other paper.

xxx xxx xxx

The foregoing should underscore quite clearly the reality that the ten-day-period to file an
answer reckoned from the date of the receipt of the summons is mandatory and no reason of
any kind is acceptable to operate as an excuse. The rule is explicit. It is addressed more, being
one of procedure, to counsels than to litigants. Counsels, therefore cannot assert the validity of
their client's cause to evade the mandate of the law.

Accordingly, the Court cannot fault the respondent judge [referring to Judge Jose R. Astorga] in
acting the way he did in Civil Case No. 130 (93) taking into account the admitted facts and
circumstances.

Hence, this petition directly filed before this Court.

17
 The Issues

Petitioners submit for resolution the following questions of law: 14

I. Are the provisions of the Rules on Summary Procedure on the period of pleadings to be
applied STRICTLY or LIBERALLY.

II. What is the legal effect of a belated answer under the Rules on Summary Procedure.

Petitioners argue that the "technical rules of procedure must yield to the higher interest of justice." Petitioners
explain that they filed the motion for extension of time to file an answer, a prohibited pleading under the Rule
on Summary Procedure, because of "oversight. That was why immediately upon receipt of the denial of that
motion, petitioners filed their motion to admit answer which was later verified and had to be amended. All these
(actions) were done in a period of five (5) days from the lapse of the reglementary period to file an
answer." 15 Furthermore, petitioners contend that "no prejudice to private respondent has been claimed or
alleged by reason of the delay" in filing an answer. 16 Petitioners also argue that their defense in the action for
forcible entry is based on substantial grounds, because they "were in prior physical possession of the premises
subject of the action and that their houses have long been standing on the land in question because the land
on which said houses are standing are (sic) the common properties of the parties."

Citing Section 2, Rule 1 17 of the Rules of Court, petitioners pray that the provisions in the Rule on Summary
Procedure regarding prohibited pleadings and the period for filing an answer be given liberal interpretation.
Petitioners concede that said provisions appear to be couched in mandatory language. They contend,
however, that other similarly worded provisions in the Rules of Court have nonetheless been liberally applied
by this Court to promote substantial justice. 18

Private respondent, on the other hand, submits that the provisions in question have to be strictly construed in
order to avoid delay, considering that the Rule on Summary Procedure is aimed at inexpensive, expeditious
and summary determination of cases. 19 Private respondent adds that the petition can also be dismissed on the
ground of violation of Revised Circular 28-91 on forum shopping, because three (3) months after the rendition
of the assailed Decision, a "petition for quieting of title and partition, and damages, involving the same parcel of
residential land (Cadastral Lot No. 709 . . . ), was filed . . . docketed as Civil Case No. 21618, by (Petitioner)
Victoria Guevara-Gachon
(. . .), Patricio Guevara (father of Petitioner Alex Guevara), Lilia Guevara-Doreza and Fe Guevara-Burgos
against herein private respondent." Private respondent contends that the subsequent case is the appropriate
forum where ownership of the property in question may be threshed out. 20

As observed at the outset, the issue to be resolved is whether, under the undisputed facts of this case, the
Rule on Summary Procedure may be liberally construed in order to allow the admission of petitioners' answer
which unquestionably was filed beyond the reglementary period.

Preliminary Matter

It bears noting that petitioners filed directly before this Court a petition for review assailing the RTC Decision.
This remedy is allowed under paragraph 2 of Circular 2-90 21 which provides:

Sec. 2. Appeals from Regional Trial Courts to the Supreme Court. — Except in criminal cases
where the penalty imposed is life imprisonment or reclusion perpetua, judgments of regional trial
courts may be appealed to the Supreme Court only by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of

18
 1948, as amended, 22 this being the clear intendment of the provision of the Interim Rules that
"(a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governed
by Rule 45 of the Rules of Court.

Petitioners ask the Court to interpret a provision of the Rule on Summary Procedure. This is a pure question of
law that may be properly raised in this petition for review.

The Court's Ruling

The petition has no merit.

First Issue: Interpretation of the Period

The pertinent provisions of the Rule on Summary Procedure are as follows:

Sec. 5. Answer. — Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff . . .

Sec. 6. Effect of failure to answer. — Should the defendant fail to answer the complaint within
the period above provided, the Court, motu proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein: . . .

xxx xxx xxx

Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions, or
petitions shall not be allowed in the cases covered by this Rule:

(a) Motion for extension of time to file pleadings, affidavits or any other paper.

xxx xxx xxx

(Emphasis supplied.)

The word "shall" ordinarily connotes an imperative and indicates the mandatory character of a statute. 23 This,
however, is not an absolute rule in statutory construction. The import of the word ultimately depends upon a
consideration of the entire provision, its nature, object and the consequences that would follow from construing
it one way or the other. 24

As a general principle, rules prescribing the time within which certain acts must be done, or certain
proceedings taken, are considered absolutely indispensable to the prevention of needless delays and to the
orderly and speedy discharge of judicial business. By their very nature, these rules are regarded as
mandatory. 25

The Rule on Summary Procedure, in particular, was promulgated for

the purpose of achieving "an expeditious and inexpensive determination of cases." 26 For this reason, the Rule
frowns upon delays and prohibits altogether the filing of motions for extension of time. Consistent with this
reasoning is Section 6 of the Rule which allows the trial court to render judgment, even motu proprio, upon the
failure of a defendant to file an answer within the reglementary period.

19
Indeed, the Judiciary Reorganization Act of 1980, mandating the promulgation of the Rule on Summary
Procedure, authorizes the Court to stipulate that the period for filing pleadings in cases covered by the Rule on
Summary Procedure shall be "non-extendible." 27

Furthermore, speedy resolution of unlawful detainer cases is a matter of public policy, 28 and this rule should
equally apply with full force in forcible entry cases where the possession of the premises at the start is already
illegal.

From the foregoing, it is clear that the use of the word "shall" in the Rule on Summary Procedure underscores
the mandatory character of the challenged provisions. Giving the provisions a directory application would
subvert the nature of the Rule on Summary Procedure and defeat its objective of expediting the adjudication of
suits. Indeed, to admit a late answer, as petitioners suggest, is to put premium on dilatory maneuvers — the
very mischief that the Rule seeks to redress. In this light, petitioners' invocation of the general principle in Rule
1, Section 2 of the Rules of Court is misplaced.

Other than a plea for the liberal interpretation of the Rule on Summary Procedure, petitioners do not provide an
adequate justification for the admission of their late answer. "Oversight," which they candidly cite as the reason
for their filing a motion for extension of time to file an answer, is not a justification. Oversight, at best, implies
negligence; at worst, ignorance. The negligence displayed by petitioners is clearly inexcusable; ignorance of so
basic a rule, on the other hand, can never be condoned. In either case, the directory application of the
questioned provision is not warranted.

Petitioners also cite Rosales vs. Court of Appeals 29 and Co Keng Kian vs. Intermediate Appellate Court, 30 but
these cases do not support their position.

In Rosales vs. Court of Appeals, 31 this Court applied the Rule on Summary Procedure liberally when the
defendant, instead of filing an answer, filed within the reglementary period a pleading labeled as a motion to
dismiss. In treating the motion to dismiss as an answer, the Court ruled: 32

Parenthetically, petitioner argues in the present petition that, notwithstanding its being labeled
as a motion to dismiss, said pleading should have been considered as his answer pursuant to
the liberal interpretation accorded the rules and inasmuch as the grounds involved therein also
qualify as defenses proper in an answer. In this instance the Court agrees. Indeed, the rule on
summary procedure was conceptualized to facilitate the immediate resolution of cases such as
the present one. Well-settled is the rule that forcible entry and detainer cases being summary in
nature and involving disturbance of social order, procedural technicalities should be carefully
avoided and should not be allowed to override substantial justice. With this premise in mind and
having insisted, however erroneously, on its jurisdiction over the case, it certainly would have
been more prudent for the lower court to have treated the motion to dismiss as the answer of
petitioner and examined the case on its merits. As will be shown shortly, the long drawn out
proceedings that took place would have been avoided.

Furthermore, the said case did not involve the question of extension in the period for filing pleadings under the
Rule on Summary Procedure.

In Co Keng Kian vs. Intermediate Appellate Court, 33 this Court allowed the notice to vacate, served upon the
tenant, by registered mail instead of personal service as required by the Rules of Court. We thus ruled: 34

At this juncture it bears repeating that actions for forcible entry and unlawful detainer are
summary in nature because they involve a disturbance a social order which must be abated as

20
 promptly as possible without any undue reliance on technical and procedural rules which only
cause delays. In the ultimate analysis, it matters not how the notice to vacate was conveyed, so
long as the lessee or his agent has personally received the written demand, whether handed to
him by the lessor, his attorney, a messenger or even a postman. The undisputed facts in the
instant case show that the Manila Times Publishing Company, through its manager, had
informed petitioner that Plaza Arcade Inc. was the new owner of the subject building; that on
October 18, 1979, a demand letter was sent to petitioner advising him to leave the premises but
petitioner refused to receive the letter; that a second demand on January 12, 1981 elicited the
same reaction; that a final demand dated November 16, 1981 was sent to petitioner by
registered mail which he again refused. And even on the supposition that there was no personal
service as claimed by petitioner, this could only be due to petitioner's blatant attempts at
evasion which compelled the new landlord to resort to registered mail. The Court cannot
countenance an unfair situation where the plaintiff in an eviction case suffers further injustice by
the unwarranted delay resulting from the obstinate refusal of the defendant to acknowledge the
existence of a valid demand.

In both cases, there was substantial compliance with the law, something that cannot be said of herein
petitioners.

Second Issue: Forum-Shopping

Private respondent assails petitioners for engaging in forum-shopping by pursuing the present ejectment suit,
notwithstanding the pendency of an action for quieting of title involving the same property and parties. We are
unable to find basis for this charge.

For forum-shopping to exist, both actions must involve the same transactions, essential facts and
circumstances; and the actions must raise identical causes of action, subject matter, and issues. 35 Suffice it to
say that an action for quieting of title and partition has a different cause of action than that in an ejectment suit.
As private respondent herself contended, ownership of a certain portion of the property which is determined in
a case of partition does not necessarily mean that the successful litigant has the right to possess the property
adjudged in his favor. In ejectment cases, the only issue for resolution is physical or material possession of the
property involved, independent of any claim of ownership set forth by any of the party litigants. Anyone of them
who can prove prior possession de facto may recover such possession even from the owner himself. This rule
holds true regardless of the character of a party's possession, provided that he has in his favor priority of time
which entitles him to stay on the property until he is lawfully ejected by a person having a better right by
either accion publiciana or accion reivindicatoria. 36 It has even been ruled that the institution of a separate
action for quieting of title is not a valid reason for defeating the execution of the summary remedy of
ejectment. 37

WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Decision is AFFIRMED in
toto. Double costs against petitioners.

SO ORDERED.

21
G.R. No. 206248               February 18, 2014

GRACE M. GRANDE, Petitioner, 
vs.
PATRICIO T. ANTONIO, Respondent.

Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24, 2012 Decision1 and
March 5, 2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 96406.

As culled from the records, the facts of this case are:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived together
as husband and wife, although Antonio was at that time already married to someone else. 3 Out of this illicit
relationship, two sons were born: Andre Lewis (on February 8, 1998) and Jerard Patrick (on October 13,
1999).4The children were not expressly recognized by respondent as his own in the Record of Births of the
children in the Civil Registry. The parties’ relationship, however, eventually turned sour, and Grande left for the
United States with her two children in May 2007. This prompted respondent Antonio to file a Petition for
Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody,
Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction before the
Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC), appending a notarized Deed of Voluntary
Recognition of Paternity of the children.5

On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Antonio, ruling that "[t]he
evidence at hand is overwhelming that the best interest of the children can be promoted if they are under the
sole parental authority and physical custody of [respondent Antonio]."6 Thus, the court a quo decreed the
following:

WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s] prayer for recognition and
the same is hereby judicially approved. x x x Consequently, the Court forthwith issues the following Order
granting the other reliefs sought in the Petition, to wit:

a. Ordering the Office of the City Registrar of the City of Makati to cause the entry of the name of
[Antonio] as the father of the aforementioned minors in their respective Certificate of Live Birth and
causing the correction/change and/or annotation of the surnames of said minors in their Certificate of
Live Birth from Grande to Antonio;

b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over the persons of
their minor children, Andre Lewis Grande and Jerard Patrick Grande;

c. Granting [Antonio] primary right and immediate custody over the parties’ minor children Andre Lewis
Grandre and Jerard Patrick Grande who shall stay with [Antonio’s] residence in the Philippines from
Monday until Friday evening and to [Grande’s] custody from Saturday to Sunday evening;

d. Ordering [Grande] to immediately surrender the persons and custody of minors Andre Lewis Grande
and Jerard Patrick Grande unto [Antonio] for the days covered by the Order;

e. Ordering parties to cease and desist from bringing the aforenamed minors outside of the country,
without the written consent of the other and permission from the court.

22
 f. Ordering parties to give and share the support of the minor children Andre Lewis Grande and Jerard
Patrick Grande in the amount of P30,000 per month at the rate of 70% for [Antonio] and 30% for
[Grande].7(Emphasis supplied.)

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by the trial court in
its Resolution dated November 22, 20108 for being pro forma and for lack of merit.

Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly
ruling contrary to the law and jurisprudence respecting the grant of sole custody to the mother over her
illegitimate children.9 In resolving the appeal, the appellate court modified in part the Decision of the RTC. The
dispositive portion of the CA Decision reads:

WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the Regional Trial Court
Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read as
follows:

a. The Offices of the Civil Registrar General and the City Civil Registrar of Makati City are DIRECTED
to enter the surname Antonio as the surname of Jerard Patrick and Andre Lewis, in their respective
certificates of live birth, and record the same in the Register of Births;

b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody of
their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or sole
custody of these minor children;

c. [Antonio] shall have visitorial rights at least twice a week, and may only take the children out upon
the written consent of [Grande]; and

d. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]. (Emphasis supplied.)

In ruling thus, the appellate court ratiocinated that notwithstanding the father’s recognition of his children, the
mother cannot be deprived of her sole parental custody over them absent the most compelling of
reasons.10Since respondent Antonio failed to prove that petitioner Grande committed any act that adversely
affected the welfare of the children or rendered her unsuitable to raise the minors, she cannot be deprived of
her sole parental custody over their children.

The appellate court, however, maintained that the legal consequence of the recognition made by respondent
Antonio that he is the father of the minors, taken in conjunction with the universally protected "best-interest-of-
the-child" clause, compels the use by the children of the surname "ANTONIO."11

As to the issue of support, the CA held that the grant is legally in order considering that not only did Antonio
express his willingness to give support, it is also a consequence of his acknowledging the paternity of the
minor children.12 Lastly, the CA ruled that there is no reason to deprive respondent Antonio of his visitorial right
especially in view of the constitutionally inherent and natural right of parents over their children.13

Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion for reconsideration,
particularly assailing the order of the CA insofar as it decreed the change of the minors’ surname to "Antonio."
When her motion was denied, petitioner came to this Court via the present petition. In it, she posits that Article
176 of the Family Code––as amended by Republic Act No. (RA) 9255, couched as it is in permissive

23
language––may not be invoked by a father to compel the use by his illegitimate children of his surname without
the consent of their mother.

We find the present petition impressed with merit.

The sole issue at hand is the right of a father to compel the use of his surname by his illegitimate children upon
his recognition of their filiation. Central to the core issue is the application of Art. 176 of the Family Code,
originally phrased as follows:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall
be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-
half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force.

This provision was later amended on March 19, 2004 by RA 925514 which now reads:

Art. 176. – Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by their father through the record of birth
appearing in the civil register, or when an admission in a public document or private handwritten instrument is
made by the father. Provided, the father has the right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of
a legitimate child. (Emphasis supplied.)

From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall use the surname
of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly recognized
by the father through the record of birth appearing in the civil register or when an admission in a public
document or private handwritten instrument is made by the father. In such a situation, the illegitimate child may
use the surname of the father.

In the case at bar, respondent filed a petition for judicial approval of recognition of the filiation of the two
children with the prayer for the correction or change of the surname of the minors from Grande to Antonio
when a public document acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of
Court15 is enough to establish the paternity of his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration of his children’s surname as Antonio.

Parental authority over minor children is lodged by Art. 176 on the mother; hence, respondent’s prayer has no
legal mooring. Since parental authority is given to the mother, then custody over the minor children also goes
to the mother, unless she is shown to be unfit.

Now comes the matter of the change of surname of the illegitimate children. Is there a legal basis for the court
a quo to order the change of the surname to that of respondent?

Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and unequivocal provision of
Art. 176 of the Family Code, as amended by RA 9255.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is
not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the
surname of their illegitimate children.

24
Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what
it says and it must be given its literal meaning free from any interpretation.16 Respondent’s position that the
court can order the minors to use his surname, therefore, has no legal basis.

On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by
its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is
under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates
to confer discretion17 upon the illegitimate children.

It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is
their best interest. On the matter of children’s surnames, this Court has, time and again, rebuffed the idea that
the use of the father’s surname serves the best interest of the minor child. In Alfon v. Republic,18 for instance,
this Court allowed even a legitimate child to continue using the surname of her mother rather than that of her
legitimate father as it serves her best interest and there is no legal obstacle to prevent her from using the
surname of her mother to which she is entitled. In fact, in Calderon v. Republic,19 this Court, upholding the best
interest of the child concerned, even allowed the use of a surname different from the surnames of the child’s
father or mother. Indeed, the rule regarding the use of a child’s surname is second only to the rule requiring
that the child be placed in the best possible situation considering his circumstances.

In Republic of the Philippines v. Capote,20 We gave due deference to the choice of an illegitimate minor to use
the surname of his mother as it would best serve his interest, thus:

The foregoing discussion establishes the significant connection of a person’s name to his identity, his status in
relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters
should not be taken lightly as to deprive those who may, in any way, be affected by the right to present
evidence in favor of or against such change.

The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper remedy, a petition for
change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing
of Giovanni’s petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to
change his name as he was never recognized by his father while his mother has always recognized him as her
child. A change of name will erase the impression that he was ever recognized by his father. It is also to his
best interest as it will facilitate his mother’s intended petition to have him join her in the United States. This
Court will not stand in the way of the reunification of mother and son. (Emphasis supplied.)

An argument, however, may be advanced advocating the mandatory use of the father’s surname upon his
recognition of his illegitimate children, citing the Implementing Rules and Regulations (IRR) of RA
9255,21 which states:

Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father,
either at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private instrument, the child shall use the surname of the
father, provided the registration is supported by the following documents:

25
xxxx

7.2. For Births Previously Registered under the Surname of the Mother

7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the father upon
the submission of the accomplished AUSF [Affidavit of Use of the Surname of the Father].

7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of the father
upon submission of a public document or a private handwritten instrument supported by the documents listed
in Rule 7.1.2.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of
majority. The consent may be contained in a separate instrument duly notarized.

xxxx

Rule 8. Effects of Recognition

8.1 For Births Not Yet Registered

8.1.1 The surname of the father shall be entered as the last name of the child in the Certificate of Live Birth.
The Certificate of Live Birth shall be recorded in the Register of Births.

xxxx

8.2 For Births Previously Registered under the Surname of the Mother

8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a separate public
document or in a private handwritten document, the public document or AUSF shall be recorded in the
Register of Live Birth and the Register of Births as follows:

"The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255."

The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be
changed or deleted.

8.2.2 If filiation was not expressly recognized at the time of registration, the public document or AUSF shall be
recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth
and the Register of Births as follows:

"Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original
surname) on (date) pursuant to RA 9255." (Emphasis supplied.)

Nonetheless, the hornbook rule is that an administrative issuance cannot amend a legislative act. In MCC
Industrial Sales Corp. v. Ssangyong Corporation,22 We held:

After all, the power of administrative officials to promulgate rules in the implementation of a statute is
necessarily limited to what is found in the legislative enactment itself. The implementing rules and regulations
of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in
the Legislature. Thus, if a discrepancy occurs between the basic law and an implementing rule or regulation, it
26
is the former that prevails, because the law cannot be broadened by a mere administrative issuance — an
administrative agency certainly cannot amend an act of Congress.

Thus, We can disregard contemporaneous construction where there is no ambiguity in law and/or the
construction is clearly erroneous.23 What is more, this Court has the constitutional prerogative and authority to
strike down and declare as void the rules of procedure of special courts and quasi- judicial bodies24 when
found contrary to statutes and/or the Constitution.25 Section 5(5), Art. VIII of the Constitution provides:

Sec. 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphasis supplied.)

Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255 insofar as it
provides the mandatory use by illegitimate children of their father’s surname upon the latter’s recognition of his
paternity.

To conclude, the use of the word "shall" in the IRR of RA 9255 is of no moment. The clear, unambiguous, and
unequivocal use of "may" in Art. 176 rendering the use of an illegitimate father’s surname discretionary
controls, and illegitimate children are given the choice on the surnames by which they will be known.

At this juncture, We take note of the letters submitted by the children, now aged thirteen (13) and fifteen (15)
years old, to this Court declaring their opposition to have their names changed to "Antonio." 26 However, since
these letters were not offered before and evaluated by the trial court, they do not provide any evidentiary
weight to sway this Court to rule for or against petitioner. 27 A proper inquiry into, and evaluation of the evidence
of, the children's choice of surname by the trial court is necessary.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision of the Court of
Appeals in CA-G.R. CV No. 96406 is MODIFIED, the dispositive portion of which shall read:

WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed Decision of the Regional Trial Court
Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read as
follows:

a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody of
their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or sole
custody of these minor children;

b. [Antonio] shall have visitation rights28 at least twice a week, and may only take the children out upon
the written consent of [Grande]:

c. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]; and

27
 d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the sole
purpose of determining the surname to be chosen by the children Jerard Patrick and Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1, Series of 2004 are
DISAPPROVED and hereby declared NULL and VOID.

SO ORDERED.

28
G.R. No. 117188 August 7, 1997

LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION, INC., petitioner, 

vs.
HON. COURT OF APPEALS, HOME INSURANCE AND GUARANTY CORPORATION, EMDEN
ENCARNACION and HORATIO AYCARDO, respondents.

May the failure of a corporation to file its by-laws within one month from the date of its incorporation, as
mandated by Section 46 of the Corporation Code, result in its automatic dissolution?

This is the issue raised in this petition for review on certiorari of the Decision 1 of the Court of Appeals affirming
the decision of the Home Insurance and Guaranty Corporation (HIGC). This quasi-judicial body recognized
Loyola Grand Villas Homeowners Association (LGVHA) as the sole homeowners' association in Loyola Grand
Villas, a duly registered subdivision in Quezon City and Marikina City that was owned and developed by Solid
Homes, Inc. It revoked the certificates of registration issued to Loyola Grand Villas homeowners (North)
Association Incorporated (the North Association for brevity) and Loyola Grand Villas Homeowners (South)
Association Incorporated (the South Association).

LGVHAI was organized on February 8, 1983 as the association of homeowners and residents of the Loyola
Grand Villas. It was registered with the Home Financing Corporation, the predecessor of herein respondent
HIGC, as the sole homeowners' organization in the said subdivision under Certificate of Registration No. 04-
197. It was organized by the developer of the subdivision and its first president was Victorio V. Soliven, himself
the owner of the developer. For unknown reasons, however, LGVHAI did not file its corporate by-laws.

Sometime in 1988, the officers of the LGVHAI tried to register its by-laws. They failed to do so. 2 To the
officers' consternation, they discovered that there were two other organizations within the subdivision — the
North Association and the South Association. According to private respondents, a non-resident and Soliven
himself, respectively headed these associations. They also discovered that these associations had five (5)
registered homeowners each who were also the incorporators, directors and officers thereof. None of the
members of the LGVHAI was listed as member of the North Association while three (3) members of LGVHAI
were listed as members of the South Association. 3 The North Association was registered with the HIGC on
February 13, 1989 under Certificate of Registration No. 04-1160 covering Phases West II, East III, West III and
East IV. It submitted its by-laws on December 20, 1988.

In July, 1989, when Soliven inquired about the status of LGVHAI, Atty. Joaquin A. Bautista, the head of the
legal department of the HIGC, informed him that LGVHAI had been automatically dissolved for two reasons.
First, it did not submit its by-laws within the period required by the Corporation Code and, second, there was
non-user of corporate charter because HIGC had not received any report on the association's activities.
Apparently, this information resulted in the registration of the South Association with the HIGC on July 27, 1989
covering Phases West I, East I and East II. It filed its by-laws on July 26, 1989.

These developments prompted the officers of the LGVHAI to lodge a complaint with the HIGC. They
questioned the revocation of LGVHAI's certificate of registration without due notice and hearing and
concomitantly prayed for the cancellation of the certificates of registration of the North and South Associations
by reason of the earlier issuance of a certificate of registration in favor of LGVHAI.

On January 26, 1993, after due notice and hearing, private respondents obtained a favorable ruling from HIGC
Hearing Officer Danilo C. Javier who disposed of HIGC Case No. RRM-5-89 as follows:

29
 WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand Villas Homeowners
Association, Inc., under Certificate of Registration No. 04-197 as the duly registered and existing
homeowners association for Loyola Grand Villas homeowners, and declaring the Certificates of
Registration of Loyola Grand Villas Homeowners (North) Association, Inc. and Loyola Grand Villas
Homeowners (South) Association, Inc. as hereby revoked or cancelled; that the receivership be
terminated and the Receiver is hereby ordered to render an accounting and turn-over to Loyola Grand
Villas Homeowners Association, Inc., all assets and records of the Association now under his custody
and possession.

The South Association appealed to the Appeals Board of the HIGC. In its Resolution of September 8, 1993, the
Board 4 dismissed the appeal for lack of merit.

Rebuffed, the South Association in turn appealed to the Court of Appeals, raising two issues. First, whether or
not LGVHAI's failure to file its by-laws within the period prescribed by Section 46 of the Corporation Code
resulted in the automatic dissolution of LGVHAI. Second, whether or not two homeowners' associations may
be authorized by the HIGC in one "sprawling subdivision." However, in the Decision of August 23, 1994 being
assailed here, the Court of Appeals affirmed the Resolution of the HIGC Appeals Board.

In resolving the first issue, the Court of Appeals held that under the Corporation Code, a private corporation
commences to have corporate existence and juridical personality from the date the Securities and Exchange
Commission (SEC) issues a certificate of incorporation under its official seal. The requirement for the filing of
by-laws under Section 46 of the Corporation Code within one month from official notice of the issuance of the
certificate of incorporation presupposes that it is already incorporated, although it may file its by-laws with its
articles of incorporation. Elucidating on the effect of a delayed filing of by-laws, the Court of Appeals said:

We also find nothing in the provisions cited by the petitioner, i.e., Section 46 and 22, Corporation Code,
or in any other provision of the Code and other laws which provide or at least imply that failure to file
the by-laws results in an automatic dissolution of the corporation. While Section 46, in prescribing that
by-laws must be adopted within the period prescribed therein, may be interpreted as a mandatory
provision, particularly because of the use of the word "must," its meaning cannot be stretched to
support the argument that automatic dissolution results from non-compliance.

We realize that Section 46 or other provisions of the Corporation Code are silent on the result of the
failure to adopt and file the by-laws within the required period. Thus, Section 46 and other related
provisions of the Corporation Code are to be construed with Section 6 (1) of P.D. 902-A. This section
empowers the SEC to suspend or revoke certificates of registration on the grounds listed therein.
Among the grounds stated is the failure to file by-laws (see also II Campos: The Corporation Code,
1990 ed., pp. 124-125). Such suspension or revocation, the same section provides, should be made
upon proper notice and hearing. Although P.D. 902-A refers to the SEC, the same principles and
procedures apply to the public respondent HIGC as it exercises its power to revoke or suspend the
certificates of registration or homeowners association. (Section 2 [a], E.O. 535, series 1979, transferred
the powers and authorities of the SEC over homeowners associations to the HIGC.)

We also do not agree with the petitioner's interpretation that Section 46, Corporation Code prevails over
Section 6, P.D. 902-A and that the latter is invalid because it contravenes the former. There is no basis
for such interpretation considering that these two provisions are not inconsistent with each other. They
are, in fact, complementary to each other so that one cannot be considered as invalidating the other.

The Court of Appeals added that, as there was no showing that the registration of LGVHAI had been validly
revoked, it continued to be the duly registered homeowners' association in the Loyola Grand Villas. More

30
importantly, the South Association did not dispute the fact that LGVHAI had been organized and that,
thereafter, it transacted business within the period prescribed by law.

On the second issue, the Court of Appeals reiterated its previous ruling 5 that the HIGC has the authority to
order the holding of a referendum to determine which of two contending associations should represent the
entire community, village or subdivision.

Undaunted, the South Association filed the instant petition for review on certiorari. It elevates as sole issue for
resolution the first issue it had raised before the Court of Appeals, i.e., whether or not the LGVHAI's failure to
file its by-laws within the period prescribed by Section 46 of the Corporation Code had the effect of
automatically dissolving the said corporation.

Petitioner contends that, since Section 46 uses the word "must" with respect to the filing of by-laws,
noncompliance therewith would result in "self-extinction" either due to non-occurrence of a suspensive
condition or the occurrence of a resolutory condition "under the hypothesis that (by) the issuance of the
certificate of registration alone the corporate personality is deemed already formed." It asserts that the
Corporation Code provides for a "gradation of violations of requirements." Hence, Section 22 mandates that
the corporation must be formally organized and should commence transaction within two years from date of
incorporation. Otherwise, the corporation would be deemed dissolved. On the other hand, if the corporation
commences operations but becomes continuously inoperative for five years, then it may be suspended or its
corporate franchise revoked.

Petitioner concedes that Section 46 and the other provisions of the Corporation Code do not provide for
sanctions for non-filing of the by-laws. However, it insists that no sanction need be provided "because the
mandatory nature of the provision is so clear that there can be no doubt about its being an essential attribute of
corporate birth." To petitioner, its submission is buttressed by the facts that the period for compliance is
"spelled out distinctly;" that the certification of the SEC/HIGC must show that the by-laws are not inconsistent
with the Code, and that a copy of the by-laws "has to be attached to the articles of incorporation." Moreover, no
sanction is provided for because "in the first place, no corporate identity has been completed." Petitioner
asserts that "non-provision for remedy or sanction is itself the tacit proclamation that non-compliance is fatal
and no corporate existence had yet evolved," and therefore, there was "no need to proclaim its demise." 6 In a
bid to convince the Court of its arguments, petitioner stresses that:

. . . the word MUST is used in Sec. 46 in its universal literal meaning and corollary human implication —
its compulsion is integrated in its very essence — MUST is always enforceable by the inevitable
consequence — that is, "OR ELSE". The use of the word MUST in Sec. 46 is no exception — it means
file the by-laws within one month after notice of issuance of certificate of registration OR ELSE. The OR
ELSE, though not specified, is inextricably a part of MUST . Do this or if you do not you are "Kaput".
The importance of the by-laws to corporate existence compels such meaning for as decreed the by-
laws is "the government" of the corporation. Indeed, how can the corporation do any lawful act as such
without by-laws. Surely, no law is indeed to create chaos. 7

Petitioner asserts that P.D. No. 902-A cannot exceed the scope and power of the Corporation Code which
itself does not provide sanctions for non-filing of by-laws. For the petitioner, it is "not proper to assess the true
meaning of Sec. 46 . . . on an unauthorized provision on such matter contained in the said decree."

In their comment on the petition, private respondents counter that the requirement of adoption of by-laws is not
mandatory. They point to P.D. No. 902-A as having resolved the issue of whether said requirement is
mandatory or merely directory. Citing Chung Ka Bio v. Intermediate Appellate Court, 8 private respondents
contend that Section 6(I) of that decree provides that non-filing of by-laws is only a ground for suspension or
revocation of the certificate of registration of corporations and, therefore, it may not result in automatic
31
dissolution of the corporation. Moreover, the adoption and filing of by-laws is a condition subsequent which
does not affect the corporate personality of a corporation like the LGVHAI. This is so because Section 9 of the
Corporation Code provides that the corporate existence and juridical personality of a corporation begins from
the date the SEC issues a certificate of incorporation under its official seal. Consequently, even if the by-laws
have not yet been filed, a corporation may be considered a de facto corporation. To emphasize the fact the
LGVHAI was registered as the sole homeowners' association in the Loyola Grand Villas, private respondents
point out that membership in the LGVHAI was an "unconditional restriction in the deeds of sale signed by lot
buyers."

In its reply to private respondents' comment on the petition, petitioner reiterates its argument that the word "
must" in Section 46 of the Corporation Code is mandatory. It adds that, before the ruling in Chung Ka Bio
v.Intermediate Appellate Court could be applied to this case, this Court must first resolve the issue of whether
or not the provisions of P.D. No. 902-A prescribing the rules and regulations to implement the Corporation
Code can "rise above and change" the substantive provisions of the Code.

The pertinent provision of the Corporation Code that is the focal point of controversy in this case states:

Sec. 46. Adoption of by-laws. — Every corporation formed under this Code, must within one (1) month
after receipt of official notice of the issuance of its certificate of incorporation by the Securities and
Exchange Commission, adopt a code of by-laws for its government not inconsistent with this Code. For
the adoption of by-laws by the corporation, the affirmative vote of the stockholders representing at least
a majority of the outstanding capital stock, or of at least a majority of the members, in the case of non-
stock corporations, shall be necessary. The by-laws shall be signed by the stockholders or members
voting for them and shall be kept in the principal office of the corporation, subject to the stockholders or
members voting for them and shall be kept in the principal office of the corporation, subject to
inspection of the stockholders or members during office hours; and a copy thereof, shall be filed with
the Securities and Exchange Commission which shall be attached to the original articles of
incorporation.

Notwithstanding the provisions of the preceding paragraph, by-laws may be adopted and filed prior to
incorporation; in such case, such by-laws shall be approved and signed by all the incorporators and
submitted to the Securities and Exchange Commission, together with the articles of incorporation.

In all cases, by-laws shall be effective only upon the issuance by the Securities and Exchange
Commission of a certification that the by-laws are not inconsistent with this Code.

The Securities and Exchange Commission shall not accept for filing the by-laws or any amendment
thereto of any bank, banking institution, building and loan association, trust company, insurance
company, public utility, educational institution or other special corporations governed by special laws,
unless accompanied by a certificate of the appropriate government agency to the effect that such by-
laws or amendments are in accordance with law.

As correctly postulated by the petitioner, interpretation of this provision of law begins with the determination of
the meaning and import of the word "must" in this section Ordinarily, the word "must" connotes an imperative
act or operates to impose a duty which may be enforced. 9 It is synonymous with "ought" which connotes
compulsion or mandatoriness. 10 However, the word "must" in a statute, like "shall," is not always imperative. It
may be consistent with an exercise of discretion. In this jurisdiction, the tendency has been to interpret "shall"
as the context or a reasonable construction of the statute in which it is used demands or requires. 11 This is
equally true as regards the word "must." Thus, if the languages of a statute considered as a whole and with
due regard to its nature and object reveals that the legislature intended to use the words "shall" and "must" to
be directory, they should be given that meaning. 12
32
In this respect, the following portions of the deliberations of the Batasang Pambansa No. 68 are illuminating:

MR. FUENTEBELLA. Thank you, Mr. Speaker.

On page 34, referring to the adoption of by-laws, are we made to understand here, Mr. Speaker, that
by-laws must immediately be filed within one month after the issuance? In other words, would this be
mandatory or directory in character?

MR. MENDOZA. This is mandatory.

MR. FUENTEBELLA. It being mandatory, Mr. Speaker, what would be the effect of the failure of the
corporation to file these by-laws within one month?

MR. MENDOZA. There is a provision in the latter part of the Code which identifies and describes the
consequences of violations of any provision of this Code. One such consequences is the dissolution of
the corporation for its inability, or perhaps, incurring certain penalties.

MR. FUENTEBELLA. But it will not automatically amount to a dissolution of the corporation by merely
failing to file the by-laws within one month. Supposing the corporation was late, say, five days, what
would be the mandatory penalty?

MR. MENDOZA. I do not think it will necessarily result in the automatic or ipso facto dissolution of the
corporation. Perhaps, as in the case, as you suggested, in the case of El Hogar Filipino where a quo
warranto action is brought, one takes into account the gravity of the violation committed. If the by-laws
were late — the filing of the by-laws were late by, perhaps, a day or two, I would suppose that might be
a tolerable delay, but if they are delayed over a period of months — as is happening now — because of
the absence of a clear requirement that by-laws must be completed within a specified period of time,
the corporation must suffer certain consequences. 13

This exchange of views demonstrates clearly that automatic corporate dissolution for failure to file the by-laws
on time was never the intention of the legislature. Moreover, even without resorting to the records of
deliberations of the Batasang Pambansa, the law itself provides the answer to the issue propounded by
petitioner.

Taken as a whole and under the principle that the best interpreter of a statute is the statute itself (optima statuli
interpretatix est ipsum statutum), 14 Section 46 aforequoted reveals the legislative intent to attach a directory,
and not mandatory, meaning for the word "must" in the first sentence thereof. Note should be taken of the
second paragraph of the law which allows the filing of the by-laws even prior to incorporation. This provision in
the same section of the Code rules out mandatory compliance with the requirement of filing the by-laws "within
one (1) month after receipt of official notice of the issuance of its certificate of incorporation by the Securities
and Exchange Commission." It necessarily follows that failure to file the by-laws within that period does not
imply the "demise" of the corporation. By-laws may be necessary for the "government" of the corporation but
these are subordinate to the articles of incorporation as well as to the Corporation Code and related
statutes. 15 There are in fact cases where by-laws are unnecessary to corporate existence or to the valid
exercise of corporate powers, thus:

In the absence of charter or statutory provisions to the contrary, by-laws are not necessary either to the
existence of a corporation or to the valid exercise of the powers conferred upon it, certainly in all cases
where the charter sufficiently provides for the government of the body; and even where the governing
statute in express terms confers upon the corporation the power to adopt by-laws, the failure to

33
 exercise the power will be ascribed to mere nonaction which will not render void any acts of the
corporation which would otherwise be valid. 16 (Emphasis supplied.)

As Fletcher aptly puts it:

It has been said that the by-laws of a corporation are the rule of its life, and that until by-laws have been
adopted the corporation may not be able to act for the purposes of its creation, and that the first and
most important duty of the members is to adopt them. This would seem to follow as a matter of principle
from the office and functions of by-laws. Viewed in this light, the adoption of by-laws is a matter of
practical, if not one of legal, necessity. Moreover, the peculiar circumstances attending the formation of
a corporation may impose the obligation to adopt certain by-laws, as in the case of a close corporation
organized for specific purposes. And the statute or general laws from which the corporation derives its
corporate existence may expressly require it to make and adopt by-laws and specify to some extent
what they shall contain and the manner of their adoption. The mere fact, however, of the existence of
power in the corporation to adopt by-laws does not ordinarily and of necessity make the exercise of
such power essential to its corporate life, or to the validity of any of its acts. 17

Although the Corporation Code requires the filing of by-laws, it does not expressly provide for the
consequences of the non-filing of the same within the period provided for in Section 46. However, such
omission has been rectified by Presidential Decree No. 902-A, the pertinent provisions on the jurisdiction of the
SEC of which state:

Sec. 6. In order to effectively exercise such jurisdiction, the Commission shall possess the following
powers:

xxx xxx xxx

(1) To suspend, or revoke, after proper notice and hearing, the franchise or certificate of registration of
corporations, partnerships or associations, upon any of the grounds provided by law, including the
following:

xxx xxx xxx

5. Failure to file by-laws within the required period;

xxx xxx xxx

In the exercise of the foregoing authority and jurisdiction of the Commission or by a Commissioner or
by such other bodies, boards, committees and/or any officer as may be created or designated by the
Commission for the purpose. The decision, ruling or order of any such Commissioner, bodies, boards,
committees and/or officer may be appealed to the Commission sitting en banc within thirty (30) days
after receipt by the appellant of notice of such decision, ruling or order. The Commission shall
promulgate rules of procedures to govern the proceedings, hearings and appeals of cases falling with
its jurisdiction.

The aggrieved party may appeal the order, decision or ruling of the Commission sitting en banc to the
Supreme Court by petition for review in accordance with the pertinent provisions of the Rules of Court.

Even under the foregoing express grant of power and authority, there can be no automatic corporate
dissolutionsimply because the incorporators failed to abide by the required filing of by-laws embodied in
34
Section 46 of the Corporation Code. There is no outright "demise" of corporate existence. Proper notice and
hearing are cardinal components of due process in any democratic institution, agency or society. In other
words, the incorporators must be given the chance to explain their neglect or omission and remedy the same.

That the failure to file by-laws is not provided for by the Corporation Code but in another law is of no moment.
P.D. No. 902-A, which took effect immediately after its promulgation on March 11, 1976, is very much apposite
to the Code. Accordingly, the provisions abovequoted supply the law governing the situation in the case at bar,
inasmuch as the Corporation Code and P.D. No. 902-A are statutes in pari materia. Interpretare et concordare
legibus est optimus interpretandi. Every statute must be so construed and harmonized with other statutes as to
form a uniform system of jurisprudence. 18

As the "rules and regulations or private laws enacted by the corporation to regulate, govern and control its own
actions, affairs and concerns and its stockholders or members and directors and officers with relation thereto
and among themselves in their relation to it," 19 by-laws are indispensable to corporations in this jurisdiction.
These may not be essential to corporate birth but certainly, these are required by law for an orderly
governance and management of corporations. Nonetheless, failure to file them within the period required by
law by no means tolls the automatic dissolution of a corporation.

In this regard, private respondents are correct in relying on the pronouncements of this Court in Chung Ka Bio
v.Intermediate Appellate Court, 20 as follows:

. . . . Moreover, failure to file the by-laws does not automatically operate to dissolve a corporation but is
now considered only a ground for such dissolution.

Section 19 of the Corporation Law, part of which is now Section 22 of the Corporation Code, provided
that the powers of the corporation would cease if it did not formally organize and commence the
transaction of its business or the continuation of its works within two years from date of its
incorporation. Section 20, which has been reproduced with some modifications in Section 46 of the
Corporation Code, expressly declared that "every corporation formed under this Act, must within one
month after the filing of the articles of incorporation with the Securities and Exchange Commission,
adopt a code of by-laws." Whether this provision should be given mandatory or only directory effect
remained a controversial question until it became academic with the adoption of PD 902-A. Under this
decree, it is now clear that the failure to file by-laws within the required period is only a ground for
suspension or revocation of the certificate of registration of corporations.

Non-filing of the by-laws will not result in automatic dissolution of the corporation. Under Section 6(I) of
PD 902-A, the SEC is empowered to "suspend or revoke, after proper notice and hearing, the franchise
or certificate of registration of a corporation" on the ground inter alia of "failure to file by-laws within the
required period." It is clear from this provision that there must first of all be a hearing to determine the
existence of the ground, and secondly, assuming such finding, the penalty is not necessarily revocation
but may be only suspension of the charter. In fact, under the rules and regulations of the SEC, failure to
file the by-laws on time may be penalized merely with the imposition of an administrative fine without
affecting the corporate existence of the erring firm.

It should be stressed in this connection that substantial compliance with conditions subsequent will
suffice to perfect corporate personality. Organization and commencement of transaction of corporate
business are but conditions subsequent and not prerequisites for acquisition of corporate personality.
The adoption and filing of by-laws is also a condition subsequent. Under Section 19 of the Corporation
Code, a Corporation commences its corporate existence and juridical personality and is deemed
incorporated from the date the Securities and Exchange Commission issues certificate of incorporation
under its official seal. This may be done even before the filing of the by-laws, which under Section 46 of
35
 the Corporation Code, must be adopted "within one month after receipt of official notice of the issuance
of its certificate of incorporation." 21

That the corporation involved herein is under the supervision of the HIGC does not alter the result of this case.
The HIGC has taken over the specialized functions of the former Home Financing Corporation by virtue of
Executive Order No. 90 dated December 17, 1989. 22 With respect to homeowners associations, the HIGC
shall "exercise all the powers, authorities and responsibilities that are vested on the Securities and Exchange
Commission . . . , the provision of Act 1459, as amended by P.D. 902-A, to the contrary notwithstanding." 23

WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned Decision of
the Court of Appeals AFFIRMED. This Decision is immediately executory. Costs against petitioner.

SO ORDERED.

36
G.R. No. 167982             August 13, 2008

OFFICE OF THE OMBUDSMAN, petitioner, 

vs.
MERCEDITAS DE SAHAGUN, MANUELA T. WAQUIZ and RAIDIS J. BASSIG, respondent.*

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision1 dated April 28, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 78008 which set aside the
Orders dated March 10, 2003 and June 24, 2003 of the petitioner Office of the Ombudsmanin OMB-ADM-0-00-
0721.

The material antecedents are as follows:

On November 13, 1992, respondent Raidis J. Bassig, Chief of the Research and Publications Division of the
Intramuros Administration, submitted a Memorandum to then Intramuros Administrator Edda V. Henson
(Henson) recommending that Brand Asia, Ltd. be commissioned to produce a video documentary for a
television program, as well implement a media plan and marketing support services for Intramuros.

On November 17, 1992, the Bids and Awards Committee (BAC) of the Intramuros Administration, composed of
respondent Merceditas de Sahagun, as Chairman, with respondent Manuela T. Waquiz and Dominador C.
Ferrer, Jr. (Ferrer), as members, submitted a recommendation to Henson for the approval of the award of said
contract to Brand Asia, Ltd. On the same day, Henson approved the recommendation and issued a Notice of
Award to Brand Asia, Ltd.

On November 23, 1992, a contract of service to produce a video documentary on Intramuros for TV program
airing was executed between Henson and Brand Asia, Ltd. On December 1, 1992, a Notice to Proceed was
issued to Brand Asia, Ltd.

On June 2, 1993, the BAC, with Augusto P. Rustia (Rustia) as additional member, recommended to Henson
the approval of the award of contract for print collaterals to Brand Asia, Ltd. On the same day, Henson
approved the recommendation and issued a Notice of Award/Notice to Proceed to Brand Asia, Ltd.

On June 22, 1993, a contract of services to produce print collaterals was entered between Henson and Brand
Asia, Ltd.

On March 7, 1995, an anonymous complaint was filed with the Presidential Commission Against Graft and
Corruption (PGAC) against Henson in relation to the contracts entered into with Brand Asia, Ltd.

On November 30, 1995, Henson was dismissed from the service by the Office of the President upon
recommendation of the PGAC which found that the contracts were entered into without the required public
bidding and in violation of Section 3 (a) and (e) of Republic Act (R.A.) No. 3019, or the Anti-Graft and Corrupt
Practices Act.

On August 8, 1996, an anonymous complaint was filed with the Ombudsman against the BAC in relation to the
latter’s participation in the contracts with Brand Asia, Ltd. for which Henson was dismissed from service.

On September 5, 2000, Fact-Finding Intelligence Bureau (FFIB) filed criminal and administrative charges
against respondents, along with Ferrer and Rustia, for violation of Section 3 (a) and (c) of R.A. No. 3019 in
relation to Section 1 of Executive Order No. 302 and grave misconduct, conduct grossly prejudicial to the best
interest of the service and gross violation of Rules and Regulations pursuant to the Administrative Code of
37
1987, docketed as OMB-0-00-1411 and OMB-ADM-0-00-0721, respectively.2 OMB-0-00-1411 was dismissed
on February 27, 2002 for lack of probable cause.3

In his proposed Decision4 dated June 19, 2002, Graft Investigation Officer II Joselito P. Fangon recommended
the dismissal of OMB-ADM-0-00-0721.

However, then Ombudsman Simeon V. Marcelo disapproved the recommendation. In an Order5 dated March

10, 2003, he held that there was substantial evidence to hold respondents administratively liable since the
contracts awarded to Brand Asia, Ltd. failed to go through the required procedure for public bidding under
Executive Order No. 301 dated July 26, 1987. Respondents and Ferrer were found guilty of grave misconduct
and dismissed from service. Rustia was found guilty of simple misconduct and suspended for six months
without pay.

On March 17, 2003, respondents, along with Rustia, filed a Motion for Reconsideration.6

On June 24, 2003, Ombudsman Marcelo issued an Order7 partially granting the motion for reconsideration.
Respondents and Ferrer were found guilty of the lesser offense of simple misconduct and suspended for six
months without pay. Rustia's suspension was reduced to three months.

Dissatisfied, respondents filed a Petition for Review8 with the CA assailing the Orders dated March 10, 2003
and June 24, 2003 of the Ombudsman.

On April 28, 2005, the CA rendered a Decision 9 setting aside the Orders dated March 10, 2003 and June 24,
2003 of the Ombudsman. The CA held that respondents may no longer be prosecuted since the complaint was
filed more than seven years after the imputed acts were committed which was beyond the one year period
provided for by Section 20 (5) of Republic Act (R.A.) No. 6770, otherwise known as "The Ombudsman Act of
1989"; and that the nature of the function of the Ombudsman was purely recommendatory and it did not have
the power to penalize erring government officials and employees. The CA relied on the following statement
made by the Court in Tapiador v. Office of the Ombudsman,10 to wit:

x x x Besides, assuming arguendo, that petitioner [Tapiador] was administratively liable, the

Ombudsman has no authority to directly dismiss the petitioner from the government service,
more particularly from his position in the BID. Under Section 13, subparagraph 3, of Article XI of the
1987 Constitution, the Ombudsman can only "recommend" the removal of the public official or
employee found to be at fault, to the public official concerned.11(Emphasis supplied)

Hence, the present petition raising the following issues (1) whether Section 20 (5) of R.A. No. 6770 prohibits
administrative investigations in cases filed more than one year after commission, and (2) whether
the Ombudsman only has recommendatory, not punitive, powers against erring government officials and
employees.

The Court rules in favor of the petitioner.

The issues in the present case are settled by precedents.

On the first issue, well-entrenched is the rule that administrative offenses do not prescribe.12Administrative
offenses by their very nature pertain to the character of public officers and employees. In disciplining public
officers and employees, the object sought is not the punishment of the officer or employee but the
improvement of the public service and the preservation of the public’s faith and confidence in our
government.13

38
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the necessary investigation of
any administrative act or omission complained of if it believes that:

xxx

(5) The complaint was filed after one year from the occurrence of the act or omission complained of.
(Emphasis supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year from
the occurrence of the complained act or omission.

In Melchor v. Gironella,14 the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer
to the prescription of the offense but to the discretion given to the Ombudsman on whether it would investigate
a particular administrative offense. The use of the word "may" in the provision is construed as permissive and
operating to confer discretion.15 Where the words of a statute are clear, plain and free from ambiguity, they
must be given their literal meaning and applied without attempted interpretation.16

In Filipino v. Macabuhay,17 the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)],
respondent's complaint is barred by prescription considering that it was filed more than one year after
the alleged commission of the acts complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner
contends. When used in a statute, it is permissive only and operates to confer discretion; while the
word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5),
therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on
a complaint even if it was filed after one year from the occurrence of the act or omission
complained of. In fine, the complaint is not barred by prescription.18 (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the
negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not,"
becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by
jurisprudence on statutory construction.

As the Court recently held in Office of the Ombudsman v. Court of Appeals,19 Section 20 of R.A. No. 6770 has
been clarified by Administrative Order No. 17,20 which amended Administrative Order No. 07, otherwise known
as the Rules of Procedure of the Office of the Ombudsman. Section 4, Rule III21of the amended Rules of
Procedure of the Office of the Ombudsman reads:

Section 4. Evaluation. - Upon receipt of the complaint, the same shall be evaluated to determine
whether the same may be:

a) dismissed outright for any grounds stated under Section 20 of Republic Act No. 6770,
provided, however, that the dismissal thereof is not mandatory and shall be discretionary on the
part of the Ombudsman or the Deputy Ombudsman concerned;
39
 b) treated as a grievance/request for assistance which may be referred to the Public Assistance
Bureau, this Office, for appropriate action under Section 2, Rule IV of this Rules;

c) referred to other disciplinary authorities under paragraph 2, Section 23, R.A. 6770 for the taking of
appropriate administrative proceedings;

d) referred to the appropriate office/agency or official for the conduct of further fact-finding investigation;
or

e) docketed as an administrative case for the purpose of administrative adjudication by the Office of the
Ombudsman. (Emphasis supplied)

It is, therefore, discretionary upon the Ombudsman whether or not to conduct an investigation of a complaint

even if it was filed after one year from the occurrence of the act or omission complained of.

Thus, while the complaint herein was filed only on September 5, 2000, or more than seven years after the
commission of the acts imputed against respondents in November 1992 and June 1993, it was within the
authority of the Ombudsman to conduct the investigation of the subject complaint.

On the second issue, the authority of the Ombudsman to determine the administrative liability of a public
official or employee, and to direct and compel the head of the office or agency concerned to implement the
penalty imposed is likewise settled.

In Ledesma v. Court of Appeals,22 the Court has ruled that the statement in Tapiador that made reference to
the power of the Ombudsman to impose an administrative penalty was merely an obiter dictum and could not
be cited as a doctrinal declaration of this Court, thus:

x x x [A] cursory reading of Tapiador reveals that the main point of the case was the failure of the
complainant therein to present substantial evidence to prove the charges of the administrative
case. The statement that made reference to the power of the Ombudsman is, at best, merely an
obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying
interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal
declaration of this Court nor is it safe from judicial examination.23 (Emphasis supplied)

In Estarija v. Ranada,24 the Court reiterated its pronouncements in Ledesma and categorically stated:

x x x [T]he Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the
1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the
Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the
lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except
members of Congress, and the Judiciary. To conclude, we hold that Sections 15, 21, 22 and 25 of
Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this constitutional body not merely functional
but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove from government service an erring
public official other than a member of Congress and the Judiciary.25 (Emphasis supplied)

The power of the Ombudsman to directly impose administrative sanctions has been repeatedly reiterated in the
subsequent cases of Barillo v. Gervasio,26 Office of the Ombudsman v. Madriaga,27Office of the Ombudsman v.
Court of Appeals,28 Balbastro v. Junio,29 Commission on Audit, Regional Office No. 13, Butuan City v.

40
Hinampas,30 Office of the Ombudsman v. Santiago,31 Office of the Ombudsman v. Lisondra,32 and most
recently in Deputy Ombudsman for the Visayas v. Abugan33and continues to be the controlling doctrine.

In fine, it is already well-settled that the Ombudsman's power as regards the administrative penalty to be

imposed on an erring public officer or employee is not merely recommendatory. The Ombudsmanhas the
power to directly impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a
public officer or employee, other than a member of Congress and the Judiciary, found to be at fault, within the
exercise of its administrative disciplinary authority as provided in the Constitution, R.A. No. 6770, as well as
jurisprudence. This power gives the said constitutional office teeth to render it not merely functional, but also
effective.34

Thus, the CA committed a reversible error in holding that the case had already prescribed and that
the Ombudsman does not have the power to penalize erring government officials and employees.

WHEREFORE, the petition is GRANTED. The Decision dated April 28, 2005 of the Court of Appeals in CA-
G.R. SP No. 78008 is REVERSED and SET ASIDE. The Order dated June 24, 2003 of the Office of the
Ombudsman is REINSTATED.

SO ORDERED.

41
G.R. Nos. L-22160 & L-22161 January 21, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
TEODORO TAMANI, accused-appellant.

This is an appeal of defendant Teodoro Tamani y Marinay from the decision of the Court of First Instance of Isabela,
(a) sentencing him to "life imprisonment" for the murder of Jose Siyang and ordering him to indemnify the victim's
heirs in the sum of P6,000 and (b) further sentencing him to an indeterminate penalty of two (2) years, four (4)
months and one (1) day of prision correccional to eight (8) years and twenty-one (21) days of prision mayor for the
attempted murder of Eduardo Domingo and ordering him to indemnify the victim in the sum of P2,000 (Crim. Cases
Nos. II-192 and II-198).

Issue as to dismissal of the appeal.—After the appellant had filed his brief, the Solicitor General filed a motion to
dismiss the appeal on the ground that the notice of appeal was forty-seven days late. Appellant's counsel de
oficio did not oppose the motion. Action thereon was "deferred until this case is considered on the merits".
(Resolution of March 7, 1967). The motion to dismiss is reiterated in appellee's brief. That preliminary question
should first be resolved.

The lower court's decision convicting defendant Tamani was promulgated on February 14, 1963. A copy thereof was
served on his counsel on February 25, 1963. On March 1, 1963 he filed a motion for reconsideration. It was denied.
A copy of the order of denial was served by registered mail on July 13, 1963 on defendant's counsel through his
wife. He had eleven days or up to July 24, 1963 within which to appeal (if the reglementary fifteen-day period for
appeal should be computed from the date of notification and not from the date of promulgation of the decision). He
filed his notice of appeal only on September 10, 1963 or forty eight days from July 24th.

Silvestre B. Bello, defendant's counsel, filed a sworn statement, accompanying the notice of appeal. In that affidavit,
he stated that the trial court's order, denying his motion for reconsideration, although admittedly received by his wife
on July 13th, was never brought to his attention and that he came to know of the order only on September 7th when
he verified the expediente of the case and discovered that an order of denial had been issued. He averred that his
wife must have lost the envelope containing the order.

The trial court opined that the wife's affidavit should have been submitted and that the defendant should have filed a
motion praying that the tardy appeal be given due course.

After considering the gravity of the two penalties imposed on the accused and the earnest plea of defense counsel,
the trial court gave due course to the appeal without prejudice to the right of the Solicitor General to "raise the
question of jurisdiction on the ground of a very much belated appeal".

Rule 122 of the Rules of Court provides:

SEC. 6. When appeal to be taken.—An appeal must be taken within fifteen (15) days from
promulgation or notice of the judgment or order appealed from. This period for perfecting an appeal
shall be interrupted from the time a motion for new trial is filed until notice of the order overruling the
motion shall have been served upon the defendant or his attorney.

The word "must" in section 6 is synonymous with "ought". It connotes compulsion or mandatoriness. The clear terms
of section 6 leave no room for doubt that the appeal should be effected within fifteen days from the promulgation of
the judgment.

42
The counsel for appellant Tamani must have so understood that import of section 6 (which is confirmed by the
practice in trial courts) as evinced by the fact that his motion for reconsideration was filed on March 1st, which was
the fifteenth or last day of the reglementary period.

The assumption that the fifteen-day period should be counted from February 25, 1963, when a copy of the decision
was allegedly served on appellant's counsel by registered mail, is not well-taken. The word "promulgation" in section
6 should be construed as referring to "judgment" (see section 6 of Rule 120), while the word "notice" should be
construed as referring to "order". That construction is sanctioned by the rule of reddendo singula singulis: "referring
each to each; referring each phrase or expression to its appropriate object", or "let each be put in its proper place,
that is, the words should be taken distributively" (76 C. J. S. 175).

Therefore, when the order denying appellant's motion for reconsideration was served by registered mail on July 13th
on appellant's counsel, he had only one (1) day within which to file his notice of appeal and not eleven days. That
construction is an application by analogy or in a suppletory character of the rule governing appeals in civil cases
which is embodied in section 3, Rule 41 of the Rules of Court.

Appellant Tamani's notice of appeal, filed on September 10, 1963, was fifty-eight days late. A regoristic application
of section 6 justifies the dismissal of his appeal, as prayed for by the prosecution.

However, considering that appellants right to seek a review of his case was lost by reason of his counsel's
inadvertence and considering further that the briefs have been submitted, the Court has resolved to review the
record to obviate any possible miscarriage of justice (Cf. Marbury vs. Madison, 1 Cranch 135, 2 L. ed. 60, where
Chief Justice Marshall discussed the merits of a mandamus action although the Court held that it had no power to
issue that writ).

Uncontroverted facts.—There is no dispute that sometime after twilight on the night of June 11, 1953 in the place
called Centro at the commercial street of Angadanan, Isabela, Jose Siyang (Syang), the town assistant sanitary
inspector, was mortally wounded by gunfire. Death resulted from internal hemorrhage caused by the following four
(4) through and through gunshot wounds which followed an oblique direction from the point of entry to exit:

1. Entry, chest about 2-½ inches from level of the nipple. Exit, at the back level of twelfth dorsal
vertebrae to the right side.

2. Entry, above right clavicle (suprasternal notch) middle portion. Exit, at the back at the level of the
right angle of scapula.

3. Entry, anterior aspect of left shoulder. Exit, at the back of shoulder about 2-½ inches from tip of
armpit (left side).

4. Entry, anterior aspect of right forearm middle in slight oblique direction from the point of entry to
exit. (Exh. F. Certificate issued by Pablo H. Gaffud, M.D.).

By means of the same gunfire, an attempt was made to kill Mayor Eduardo Domingo. He sustained a through and
through wound in the palm of his right hand which caused his confinement in the Isabela Provincial Hospital from
June 11 to 22, 1953 (Exh. E, Certificate issued by J. L. Maddela, Sr., Resident Physician).

More than three years from the time that tragedy transpired, or on October 2 and 3, 1956, appellant Tamani signed
and thumbmarked two sworn statements before the agents of the National Bureau of Investigation (NBI), wherein he
confessed that he was the one who shot Siyang and Mayor Domingo; that his companion on the occasion of the
shooting was Domingo Cadawan; that on the morning of June 11, 1953 he and Cadawan were dismissed as
policemen and that Vice-Mayor Villamor Tamani, Matias de la Fuente and Rufino de los Santos instigated him to

43
liquidate Mayor Domingo (Exh. A and B). The two statements are in English, a language which Tamani understands
(19 tsn II Valencia).

Inasmuch as the crimes, murder and attempted murder, have been proven, meaning that the corpus delicti had
been established, and appellant Tamani had confessed having committed the same, there should be an airtight
case against him. Rule 133 of the Rules of Court provides:

SEC. 3. Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial confession
made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti. (Same as See. 96, Rule 123, 1940 Rules of Court).

Tamani's confession is corroborated by the undisputed evidence of the corpus delicti.

However, during the trial, he repudiated his confession. He assailed its voluntariness. He set up the defense of alibi.
Through his principal witness, Francisco Siyang, the father of the deceased Jose Siyang, he endeavored to prove
that the latter was shot by Policemen Gaspar Ibarra and Melchor Tumaneng. Thus, a simple case, where the
extrajudicial confession is corroborated by evidence of thecorpus delicti, became controversial, complicated and
perplexing.

Version of the prosecution.—In addition to Tamani's extrajudicial confession (Exh. A and B), the prosecution offered
the testimonies of complainant Domingo, Doctor Pablo H. Gaffud, Juana Vittori Vda. de Ibarra, Emiteria Ibarra,
Ilustre D. Mendoza, Mariano G. Almeda, Teodoro Colobong and Martin Caniero.

The prosecution's evidence discloses that Domingo was the mayor of Angadanan since 1947. Prior to June 11,
1953, he was suspended from office by the Governor. During Domingo's suspension, Villamor Tamani, the vice-
mayor, functioned as acting mayor. He appointed as policeman his second cousin, appellant Teodoro Tamani who
was then twenty-four years old. The vice-mayor used to appoint Teodoro Tamani as policeman whenever Domingo
was suspended. Teodoro Tamani resigned as policeman shortly before June 11th. In the afternoon of June 10th,
Domingo was reinstated and he reassumed the office of mayor.

The reinstatement of Domingo was obviously resented by Vice-Mayor Villamor Tamani because it meant the
termination of his tenure as acting mayor. On June 10th Teodoro Tamani and Domingo Cadawan (also a former
policeman like Teodoro Tamani) were summoned for a conference by the vice-mayor to his house at Barrio Aniog,
Angadanan. Present at the conference were the vice-mayor and his men, Matias de la Fuente and Rufino de los
Santos. It was decided at that meeting that Mayor Domingo should be liquidated. De la Fuente handed to Teodoro
Tamani a carbine.

Appellant Tamani and Cadawan spent the night in the vice-mayor's house. On the following morning of June 11th,
Cadawan was sent on a mission to the poblacion of Angadanan to ascertain the whereabouts of the quarry, Mayor
Domingo. At around seven o'clock in the evening, Cadawan returned to the vice-mayor's house and apprised
appellant Tamani that Domingo was in front of the store of Pedro Pua at the town's commercial street.

Cadawan and Teodoro Tamani proceeded with dispatch to the poblacion, making shortcuts by passing through the
yards of neighboring houses. Tamani carried the carbine. On entering the yard of the house adjoining Pedro Pua's
store, Cadawan stumbled. The resulting noise attracted the attention of the owner of the house, Mrs. Ibarra, who
focused a flashlight at Tamani and, on recognizing him, uttered his nickname, Doro. She had known Doro since
childhood. She saw that he was carrying a gun.

She had just taken her supper. She and her daughter, Emiteria Ibarra, were sitting on the veranda. It was while
chewing her buyo that Mrs. Ibarra heard somebody trip in her yard on the cement floor intended as the base of a
tank. Almost simultaneously, she heard the grunting (ngik-ngik) of her pig. When she trained her flashlight on the
intruder and recognized Doro (appellant Tamani) with a gun and called him, the latter answered, "Tia" (Aunt).

44
Mrs. Ibarra saw that Teodoro Tamani passed under the eaves of her house, crossed the bamboo fence separating
her from the vacant lot of Pedro Pua and proceeded to the corner of the vacant lot near the gate of galvanized iron
sheets and the edge of the cemented pavement which was in front of Pedro Pua's store (see sketch, Exh. C). As
appellant Tamani passed the fence, he produced a "cracking noise". Emiteria Ibarra testified:

Q. Who say (saw) Teodoro Tamani? — A. My mother and myself, sir.

Q. What was the appearance of Teodoro Tamani when you saw him after your
mother lighted him with the light of the flashlight? — A. When my mother flashed the
flashlight towards him at the same time my mother called, "Doro" and then he
answered "TIA" and he was carrying a firearm, sir.

Q. Why do you know that when you and your mother heard the cracking of the fence
Teodoro Tamani went inside the fence? — A. We know it because of the cracking of
the fence, besides that we saw him proceeded towards the fence, sir.

Q. After Teodoro Tamani entered that fence as you say, what happened, if any? —
A. He proceeded towards the gate of the Chinese, sir.

Q. What happened, if any, after Teodoro Tamani went to that gate? — A. Upon
arriving at the gate we heard the gun reports, sir.

Q. How many gun reports, if you remember? — A. Maybe eight (8) or nine (9), sir.

Q. Do you know where the gun reports came from? — A. Yes, sir, because I saw the
sparks of the bullets when they were fired, sir.

Q. Did you know who fired? — A. I know, sir.

Q. Who? — A. Teodoro Tamani, because he was the only one who entered with a
gun, sir (74-75 tsn Jan. 16, 1959).

Q. Who fired? — A. Teodoro Tamani, sir.

Q. Why do you say that he was the one who fired? — A. Because the gun reports
came from the place where he stood at the gate, sir (77 tsn Jan. 16, 1959).

From the place where Cadawan and Tamani had positioned themselves, they had a good view, through the holes of
the gate, of Mayor Domingo and his group in front of Pua's store (Exh. A). The mayor was engaged in conversation
with a group of persons on the cemented pavement ( pasillo of sidewalk) in the front of the store in Centro at the
town's commercial street. Standing near the wall of the store were Hermoso Alicam, Liberato Tanam, Primitivo
Tallog, Martin Caniero, Toedoro Colobong, Gaspar Ibarra, Francisco Siyang and Gonzalo Siyang. Mayor Domingo
was standing in front of the group, walking and gesticulating as he talked. Jose Siyang was leaning against a post
somewhat apart from the group (Exh. C, 6 tsn March 3, 1959).

Mayor Domingo was recounting his experience in Manila during his suspension. He was standing on the culvert
which bridged the canal separating the pasillo and the street (See Exh. C). As he talked, he gestured and swung his
hands up and down with palms open, facing Pua's store and his audience. Jose Siyang, who was apart from the
group of listeners, was about two to three meters on Mayor Domingo's right, leaning one of the post which
supported the roof shading the pasillo or cemented pavement. Jose Siyang was in line with Mayor Domingo while,
in contrast, the group of listeners was standing side by side close to the galvanized iron wall of the store, facing
Mayor Domingo who was telling stories.
45
In the meanwhile, Teodoro Tamani and Cadawan were standing on the vacant lot in close proximity to the gate of
galvanized iron sheets where the pasillo ended. Cadawan opened a hole in the gate, about three inches in
diameter, through which Teodoro Tamani inserted the barrel of the carbine. Tamani fired at Mayor Domingo who
was the target. Jose Siyang, a second cousin of Teodoro Tamani, like Vice-Mayor Tamani, "was farther on the right
side of Mayor Domingo along the line of fire" (Exh. A). Appellant Tamani fired two volleys. Mrs. Ibarra and her
daughter saw from the veranda the flashes of fire emitted by the carbine of Teodoro Tamani.  They left the veranda
<äre||anº•1àw>

and went inside the house.

At the moment the first volley of gunshots was fired, which was between seven and seven-thirty, Mayor Domingo
had raised his right hand. The palm of his right hand was hit. Jose Siyang was also hit. Domingo and his listeners
dispersed and sought refuge inside Pua's store. While Domingo ran for cover, a second volley was fired. The
volley's came from behind the iron gate on the vacant lot or "from the southwest end" of the cemented pavement
behind the gate. While inside the store, Mayor Domingo heard the moaning of someone in an agony of pain. That
person turned out to be Jose Siyang who had sustained four gunshot wounds and was hovering between life and
death. Siyang died before eleven o'clock that same night.

Constabulary soldiers and peace officers arrived at the scene of the shooting and conducted an investigation. Mayor
Domingo was taken to the provincial hospital. Doctor Gaffud conducted an autopsy on the body of Jose Siyang in
the municipal building. On the following day empty shells were found by the Constabulary soldiers near the
galvanized iron gate (6 tsn. III Calixto).

Teodoro Tamani and Cadawan left the scene of the shooting. They ran, passing the same route that they had taken
in coming, and went direct to the house of Vice-Mayor Villamor Tamani in Barrio Aniog. Teodoro Tamani stayed
overnight in the house of the vice-mayor. Cadawan, who reported to the vice-mayor that Mayor Domingo was dead,
proceeded to Barrio Clakcab and returned the murder weapon to Matias de la Fuente.

The trial court accepted the foregoing version as the basis of the judgment of conviction. It noted that in 1956 when
NBI Agent Mariano G. Almeda arranged a confrontation between Teodoro Tamani and Mrs. Ibarra, she identified
him as the person whom she saw in her yard in the evening of June 11, 1953. During the confrontation, Tamani
trembled, became pale and remained silent.

Teodoro Tamani sometime after the shooting went into hiding at Cabagan and Santo Tomas, Isabela, where he was
arrested by Mayor Domingo by virtue of a warrant of arrest issued in Criminal Cases Nos. 245 and 246 of the justice
of the peace court of Angadanan (Exh. 3, 4, 5 and 6, 11 tsn March 3, 1959). Appellant went into hiding although his
wife was about to deliver her baby.

As to the motive for shooting Mayor Domingo, Teodoro Tamani explained that Vice-Mayor Villamor Tamani, his
second cousin, ordered the liquidation of the mayor so that he could not assume office and the vice-mayor would
become mayor (Exh. A). Appellant Tamani was chosen to execute that task because he had lost his job as
policeman when Mayor Domingo was reinstated (Exh. A, p. 2).

On the other hand, Mayor Domingo said that when Teodoro Tamani was still a policeman, the mayor had scolded
him for not reporting for work and for working as cook of Vice-Mayor Villamor Tamani and plowing his field. The
other motive was that since Teodoro Tamani is a relative of the vice-mayor, who was a "political enemy" of the
mayor, he (appellant Tamani) could act as a policeman when the vice-mayor became mayor after the elimination of
the incumbent mayor (11 tsn March 3, 1959).

On the credibility of the prosecution eyewitness, Mrs. Ibarra, the trial judge made the following findings:

The Court concentrated attention on the attitude and observed the gestures, features, demeanor and
manner of testifying and the emphasis, gestures and inflection of the voice of prosecution witness
Juana Vitorri de Ibarra during all the time she was on the witness stand in the direct and cross-

46
 examination, and her answers were prompt, concise, responsive to interrogatories, outspoken, and
entirely devoid of evasion or any semblance of shuffling, and her entire testimony was given with
calm, self-possession, an erect front, and unhesitating accent. The Court is convinced of her
sincerity and credibility and the truthfulness of her testimony, in great contrast with defendant's
manner of testifying. (pp. 859-60, Record).

The trial court concluded that the intended victim was Mayor Domingo and not Jose Siyang.

Appellant's version and contentions.—In this appeal appellant's counsel de oficio argues that the trial court erred (1)
in disbelieving Tamani's alibi; (2) in assuming that his extrajudicial confession was voluntary; (3) in not giving
credence to the testimony of defense witness Francisco Siyang, that his son, Jose Siyang, was shot by Policemen
Gaspar Ibarra and Melchor Tumaneng; (4) in giving credence to circumstantial evidence, and (5) in the alternative,
in not holding that appellant Tamani committed the complex crime of homicide with lesiones grave.

Appellant Tamani, having abjured his confession, gave the following version of the case by means of his testimony
and the testimony of his other witness, Francisco Siyang(Syang):

Francisco Siyang was the father of Jose Siyang, the town sanitary inspector, who with his wife and four children,
resided with Francisco Siyang at his house in Centro, Angadanan. Francisco Siyang is an uncle of Vice-Mayor
Villamor Tamani. At around six-thirty in the evening of June 11, 1953 Venancio Respicio dropped at the house of
Jose Siyang and invited him for a walk. Francisco Siyang followed his son to the store of Pedro Pua which was
around four blocks from their house.

Francisco Siyang noticed that Jose Siyang was in front of Pua's store with Mayor Domingo, Policemen Alfonso
Gomez, Gaspar Ibarra, Graciano Manguelod and Melchor Tumaneng, teachers Primitivo Tallog, Teodoro Colobong
and Martin Caniero, Mariano Dalodad (a barber) and Juaning Aliangan, a farmer. Jose Siyang was leaning against
a post, obliquely at the right of Mayor Domingo. Francisco Siyang allegedly approached Jose and told him that his
wife and children were waiting for him so that they could take supper. Jose answered "yes, father".

While Francisco Siyang and Jose Siyang were standing side by side in front of Pua's store, Mayor Domingo made a
signal by stretching and raising his hand with open palm and bringing it down. Suddenly, Policeman Ibarra, who was
standing in front of Jose Siyang, fired his carbine at the latter, hitting Jose Siyang in the chest. Policeman
Tumaneng followed by firing with his carbine successive shots at Jose Siyang, hitting the latter in the breast.
Tumaneng was on the right side of Ibarra, obliquely facing Jose Siyang.

After Jose Siyang fell, Francisco Siyang went to his succor and raised him. Jose Siyang told his father: "Father, I am
dying, my children." When Jose Siyang was brought to the municipal building, he was breathing feebly. He could not
talk anymore. He expired in the municipal building. His body was brought home by Francisco Siyang.

In the morning of June 12th, Vice-Mayor Villamor Tamani with some Constabulary soldiers arrived at the house of
Francisco Siyang while the remains of Jose Siyang still lay in state. After the burial of Jose Siyang in the afternoon,
a Constabulary sergeant investigated Francisco Siyang and took him to Ilagan, where he was further investigated.
He gave a sworn statement accusing Ibarra and Tumaneng of having killed Jose Siyang (Exh. 1).

On the basis of that statement, a criminal complaint for the murder of Jose Siyang was filed on June 20, 1953 by
Constabulary Lieutenant Tomas P. Gonzales in the justice of the peace court of Angadanan against Venancio
Respicio and Policemen Ibarra, Tumaneng and Manguelod (Exh. 2, Crim. Case No. 244). The complaint was
dismissed on August 12, 1953.

Other complaints for the murder of Jose Siyang and for frustrated murder perpetrated on Mayor Domingo were filed
in the justice of the peace court against Villamor Tamani, Teodoro Tamani, Domingo Cadawan, Rufino de los
Santos and Matias de la Fuente but they were later dismiss (Exh. 3 to 6, Crim. Cases Nos. 245 and 246).

47
In October, 1956 Mariano G. Almeda of the NBI headed a team of agents that investigated the shooting of Jose
Siyang and Mayor Domingo. Francisco Siyang was investigated orally in Ilagan by Almeda. The investigation was
interrupted by former Congressman Samuel Reyes. It was not finished.

Appellant Tamani, in support of his alibi, testified that Jose Siyang was his second cousin. Tamani was a resident of
Centro in the poblacion of Angadanan. At around three o'clock in the afternoon of June 11, 1953 he was in the
house of Vice-Mayor Villamor Tamani in Barrio Aniog. He wanted a recommendation for a job in the Angadanan
Sawmill. The place known as Centro in the poblacion, where Pedro Pua's store is located, is around two kilometers
from Barrio Aniog. Vice-Mayor Tamani gave to Teodoro Tamani the recommendation between four and five o'clock.
The vice-mayor prevailed upon Teodoro Tamani to stay and they agreed to go to town on the following day.

So, Teodoro Tamani slept in the house of his cousin, the vice-mayor, on the night of June 11th. On the morning of
June 12th, Vice-Mayor Tamani and Teodoro Tamani went together to Centro in the poblacion. When they reached
Centro, they learned of Jose Siyang's death, for which reason they viewed his body in the house of Francisco
Siyang. They arrived at Siyang's house at around eight and eight-thirty in the morning. They learned that Jose
Siyang was shot in front of Pedro Pua's store.

Teodoro Tamani did not go to the Angadanan Sawmill on June 12th. He delivered the letter of recommendation on
June 13th to the manager of the sawmill. He worked in the sawmill as laborer for two weeks only. He resigned due
to the heavy work. He could not remember the name of the manager of the sawmill.

He denied that he shot Jose Siyang and Mayor Domingo. He did not participate in the commission of the crime. He
said that he was in the house of Vice-Mayor Tamani on the night of June 11th.

On October 2, 1956 NBI Agent Almeda picked him up from his house for questioning in connection with the shooting
of Siyang and Mayor Domingo. Almeda was accompanied by Alfonso Salvador, a Constabulary soldier. Tamani was
brought to the municipal building. From there, he was taken to Ilagan. He was brought by Almeda to the provincial
jail at Calamagui, Isabela, where he (Tamani) was delivered to Pedro Tamayo, a prisoner who was acted
as mayor of the cell (brigada). Tamani was formally received by the provincial guard from Almeda at around six and
six-thirty in the evening of October 2nd.

Upon delivering Tamani to Tamayo, Almeda allegedly told Tamayo: "Bahala kayo rian, Tamayo, at ako ang bahala
sa iyo". Twenty minutes later, Pedro Tamayo, Juanito Dassig, Juan Pecano, Ernesto Castañeda and other convicts
started maltreating Tamani. The alleged maltreatment consisted of the following:

First, they ordered Tamani to squat on the cemented floor inside the cell (brigada).

Second, after squatting on the cement floor, they ordered Tamani to stand and then started boxing
him for one hour.

Third, they removed all his clothings and put Tamani inside a drum where prisoners dropped their
human waste. He was required to stay inside the drum for five minutes, after which they brought him
out and poured on him water to was his body from the human waste.

Fourth, they made Tamani pulverized pepper and they placed the pulverized pepper in his anus,
penis and testicles.

Tamani was maltreated because the tormentors wanted him to admit that he was the one who shot Jose Siyang and
Mayor Domingo. As he could not endure the maltreatment he admitted he had shot Siyang and Domingo. The
maltreatment was stopped after he made the admission.

48
Around ten to ten-thirty on that same night, Almeda returned to the jail and asked Tamayo: "Does he admit now?"
Tamayo answered in the affirmative. Almeda then took Tamani out of the jail and brought him to the second floor of
Puring's Restaurant. Almeda called for NBI Agent No. 101 who came out of a room with a typewriter. Agent No. 101
placed his typewriter on a table. Almeda told Tamani "Now, I am going to take your statement that you shot Jose
Siyang and Mayor Domingo."

At first Tamani told Almeda that he knew nothing about the shooting because he was in Barrio Aniog when Domingo
and Siyang were shot. Thereupon, Almeda told Tamani not to deny the shooting because Juana Vitorri Vda. de
Ibarra recognized him when he stumbled before the shooting at a place near the fence between the lots of Pedro
Pua and Mrs. Ibarra. Tamani maintained his innocence about the shooting.

Thereafter, Almeda and NBI Agent No. 101 slapped the face of Tamani. They brought him to a toilet. They pushed
his head into the toilet bowl (iniodoro). They held his hair and pushed his face toward the mouth of the toilet bowl for
five minutes. When Tamani could not endure the torture anymore, he told Almeda that he would admit the crime.
Almeda and Agent No. 101 brought Tamani to the table on the second floor of Puring's Restaurant. Almeda told
Tamani: "You better admit now that you shot the two victims, that you took the gun from Matias de la Fuente and
that Villamor Tamani and Rufino de los Santos are the masterminds".

Tamani admitted that version for fear that he would again be maltreated. His affidavit, Exhibit A, was signed at
Puring's Restaurant on the night of October 2, 1956. The contents of Exhibit A "are all the versions of Director
Almeda". Tamani admitted his signature and thumbmarks in Exhibit A. On the following morning of October 3rd,
Almeda and Agent No. 101 brought back Tamani to the jail.

Tamani admits that he signed Exhibit B also, his supplementary confession. However, he insists that he signed it on
the night of October 2nd and not on October 3rd. He said that he never excluded Domingo Cadawan and that he
never incriminated himself as the triggerman. He might have signed Exhibit B in connection with his signing of
Exhibit A on the night of October 2nd because when he signed Exhibit A, there were several sheets of paper which
he signed and thumbmarked. He allegedly did not know the contents of Exhibit B when he affixed his signature
thereon. He says that the incriminatory statements in Exhibits A and B are not true. (See pp. 3-4, 17-28, Appellant's
Brief).

The trial court rejected the foregoing version of the defense after noting the improbabilities in Francisco Siyang's
testimony and after concluding that the appellant had not overcome the presumption that his confession was
voluntarily executed.

The shooting incident was undoubtedly another episode in the political rivalry between Mayor Domingo and Vice-
Mayor Tamani. That circumstance has given a political complexion to these two cases. It may explain why the
evidence has become muddled, if not baffling. It was to be expected that, to suit the ulterior motivations of the
contending parties there would be same insidious manipulation of the evidence.

Thus, on June 12th, the day following the shooting and before Jose Siyang was interred, Constabulary soldiers,
accompanied by Vice-Mayor Villamor Tamani, investigated Francisco Siyang (51-52 tsn Aug. 26, 1960). On June
14, 1953, or four days after the shooting and while Mayor Domingo was in the hospital, Francisco Siyang (the uncle
of Villamor Tamani and the star witness for the defense and the father of the victim, Jose Siyang) executed an
affidavit in Ilagan about the shooting. He made it appear in that statement that Patrolmen Ibarra and Tumaneng, two
followers of Mayor Domingo, were the killers of Jose Siyang and that they commenced to shoot Siyang when Mayor
Domingo made a prearranged signal (Exh. 1).

As already noted, on the basis of that affidavit, Constabulary Lieutenant Tomas P. Gonzales filed in the justice of the
peace court of Angadanan a complaint for murder against Policemen Ibarra, Tumaneng and Manguelod and one
Venancio Respicio, an alleged nephew of the mayor (Exh. 2, Crim. Case No. 244). According to Francisco Siyang's
affidavit, Respicio, a compadre of Jose Siyang, acted as decoy in bringing Jose Siyang to the place where he was
assassinated. Domingo repeatedly denied that Respicio was his relative by consanguinity or affinity. Francisco
49
Siyang made it appear that his son was murdered because he testified against Domingo in the case where the latter
was charged with theft. Because of that theft case Domingo was suspended. That murder complaint (Exh. 2) against
the followers of Mayor Domingo was dismissed.

After the mayor was released from the hospital, he and the chief of police investigated the shooting. The chief of the
police filed a complaint for murder dated July 8, 1953 against Vice-Mayor Tamani, Teodoro Tamani, Rufino de los
Santos, Matias de la Fuente, Arsenio Dayang and Medardo Tamani.  The complaint was amended by including
<äre||anº•1àw>

Domingo Cadawan as a defendant and excluding Dayang and Medardo Tamani (Exh. 3 and 4, Crim. Case No.
245). For the shooting of Mayor Domingo, a complaint for frustrated murder was filed by the chief of police against
the same persons (Exh. 5 and 6, Crim. Case No. 246).

Both complaints were dismissed apparently for lack of evidence. As the shooting was unsolved crime, the
intervention of the NBI became necessary.

On June 4, 1956 Francisco Siyang executed an affidavit in Ilagan before NBI Agent No. 39. He deviated from his
1953 affidavit by naming Melchor Tumaneng alone ("Melchor Tomines") as the assassin of his son, Jose Siyang. He
stuck to his original theory that Mayor Domingo masterminded the assassination of his son (Exh. G).

As already noted, four months later, or on October 2 and 3, 1956, an NBI investigating team headed by Mariano G.
Almeda, a lawyer and an assistant to the NBI Director, secured a confession from appellant Teodoro Tamani that
he, with the assistance of Domingo Cadawan, shot Mayor Domingo and Jose Siyang (Exh. A and B). It may be
assumed that the NBI was asked to handle the case so that political considerations would not color and influence
the course and outcome of the investigation.

Before Tamani executed his confession, Almeda and his agents, assisted by Constabulary soldiers, interviewed
several persons in Angadanan and made an ocular inspection of the scene of the crime. They investigated Mrs.
Ibarra and her daughter. They learned that Teodoro Tamani had entered Mrs. Ibarra's yard and was recognized by
her and that, immediately thereafter, she heard gunshots from the direction where Tamani had posted himself.
Thus, Tamani became a prime suspect. He was apprehended and brought to the house of Mrs. Ibarra for a
confrontation. Almeda testified:

Q. What did you do, if any, when Teodoro Tamani was brought to the house of Juana
Vittori Vda. de Ibarra? — A. In the presence of Juana Vittori Vda. de Ibarra and her
daughter I confronted them and asked Juana Vittori Vda. de Ibarra and her daughter
whether they knew Teodoro Tamani and both claimed that he is the very same fellow
who entered the yard that night with a gun and also they heard shots from the
direction of the said accused Teodoro Tamani after which Teodoro Tamani was
trembling and he became pale.

Q. And did Teodoro Tamani say anything when he was pointed out by Juana Vittori
Vda. de Ibarra and her daughter? — A. He did not utter anything. He simply became
pale and trembling. (16 tsn June 12, 1958, II Valencia).

Tamani's confession (Exh. A and B) was the basis of the information for murder and frustrated murder against him
in these two cases.

Findings: Appellant Tamani's defense of alibi, which can be fabricated with facility, cannot be given serious
consideration. Assuming that he was in Barrio Aniog in the afternoon and night of June 11th, it was physically
possible for him to be at the scene of the shooting at the time that it was perpetrated and return to the house of
Vice-Mayor Tamani in Barrio Aniog. That place was only two kilometers from the store of Pedro Pua. The victim was
shot in front of the store.

50
The settled rule is that an alibi, to be tenable, must be such as to preclude the possibility of the presence of the
accused at the scene of the crime or its immediate vicinity at the time of its commission. "The accused must show
that he was at some other place for such period of time that it was impossible for him to have been at the place
where the crime was committed at the time of its commission" (People vs. Lumantas, L-28355, July 17, 1969, 2
SCRA 764, 768).

Appellant's alibi does not satisfy that basic requirement. Moreover, it was not corroborated by Vice-Mayor Tamani or
by any other person. Its concocted character is manifest.

Appellant Tamani argues that he signed his confession, Exhibit A, because he was tortured or maltreated. He claim
that he does not remember having signed his supplementary confession (Exh. B) although he admits the
authenticity of his signature and thumbmark therein.

NBI Agents Almeda and Mendoza testified that Tamani's sworn statements were freely executed. Tamani's
testimony on the alleged maltreatment was not corroborated. As correctly noted by the Solicitor General, certain
details in the confession, which only Tamani could have supplied, are indications of its voluntariness and give it
spontaneity and coherence.

Those details are (a) that Teodoro Tamani and Cadawan conferred with Vice-Mayor Villamor Tamani in the latter's
house at Aniog at three o'clock in the afternoon of the day preceding the shooting; (b) that Matias de la Fuente and
Rufino de los Santos were present at the conference and it was decided to liquidate Mayor Domingo to enable the
vice mayor to act as mayor; (c) that De la Fuente handed to Tamani and Cadawan the carbine to be used in the
killing; (d) that Cadawan and Tamani slept in the vice-mayor's house on the night of June 10, 1953; (e) that
Cadawan went to the poblacion in the morning of June 11th in order to ascertain the whereabouts of Mayor
Domingo; (f) that Cadawan returned in the afternoon and informed Tamani that Domingo was at Pua's store; (g) that
Cadawan stumbled in the yard of Mrs. Ibarra; (h) that after firing the shots, the two returned to the vice-mayor's
house; (i) that Teodoro Tamani slept in the house of the vice-mayor after the assassination; (j) that Jose Siyang was
standing on the right side of Mayor Domingo "along the line of fire"; (k) that Jose Siyang was his second cousin and
the second cousin of the vice-mayor and (l) that the hole in the gate was three inches in diameter.

Those circumstances might not have been known if the confession had been executed under duress. NBI Agents
Almeda and Mendoza could not have manufactured all these details.

There is one significant inconsistency in appellant Tamani's testimony on March 26, 1962 which impairs his
credibility. He claimed that his supplementary confession, Exh. B, was translate to him in Tagalog but that he did not
understand Tagalog on or before October 3, 1956 (117 tsn I Valencia). However, when he testified on January 11,
1962 and he was asked to repeat what NBI Agent Almeda told in Tagalog to the prisoner, Pedro Tamayo, Tamani
was able to repeat verbatim the word: "Bahala kayo rian Tamayo at ako ang bahala sa iyo" (83 tsn II Calixto). He
repeated the same Tagalog words in the later part of his testimony (86 tsn) and at the hearing on April 5, 1962 (127
tsn I Valencia).

Agent Almeda testified that appellant Tamani understands English, being a former policeman, and that Tamani read
Exhibit B, which is in English and which NBI Agent Mendoza translated to him in Ilocano. Tamani did not deny that
he knows English. His petition to this Court that he be granted bail, which petition bears his signature, is in English.
(See Rollo).

There is no merit in appellant Tamani's contention that the trial court erred in not giving credence to the testimony of
Francisco Siyang (Syang) that Jose Siyang was shot by policemen Ibarra and Tumaneng, the latter being allegedly
a houseboy of Mayor Domingo. The inconsistencies on vital details in Siyang's two affidavits and his testimony
signify that he deliberately perverted the truth. His testimony exhibits the earmarks of untrustworthiness. It was
squarely refuted by Martin Caniero and Teodoro Colobong. It should be underscored that Francisco Siyang is the
uncle of the vice-mayor (58 tsn Aug. 26, 1960).

51
In his 1953 affidavit (Exh. 1) he declared that Policemen Ibarra and Tumaneng shot his son, Jose Siyang, whereas,
in his 1965 affidavit (Exh. G) he alleged that only Tumaneng (Tomines) shot his son.

Francisco Siyang, a farmer, was already seventy-six years old when he testified in 1960. On direct examination he
testified that his son was shot in the breast by Gaspar Ibarra, who was immediately followed by Melchor Tumaneng.
Tumaneng allegedly hit Jose Siyang in the left part of the breast below the clavicle (48 tsn I Valencia). That was also
Francisco Siyang's declaration in his 1953 affidavit (Exh. 1): that Ibarra fired first.

However, Francisco Siyang on cross-examination testified differently. He declared that Tumaneng fired first and that
the second shot was fired by Ibarra. Francisco Siyang said that he was sure that Tumaneng fired first at his son (89,
92, 93 tsn I Valencia). The following is an example of his confusing testimony:

Q. How many shots did Gaspar Ibarra fire at your son? — A. Only one, sir.

Q. Who fired the two first shots, if you know? — A. Melchor Tumaneng, sir.

Q. Did you actually see or not the two successive shots at your son? — A. I saw him,
sir.

Q. Who fired the other two shots which according to you your son was hit by five (5)
gunshots — A. Gaspar Ibarra, sir.

Q. Do you mean to say that Gaspar Ibarra fired first one shot and then two shots, all
in all three shots? — A. Gaspar Ibarra fired only one, sir. (93 tsn I Valencia).

Q. Who was the first who shot your son, according to you? — A. Melchor Tumaneng.

Q. Where was Melchor Tumaneng at the moment he shot you? — A. He was at the
gate of the fence.

Q. But he was inside with the group of persons at the media de agua of the store of
Pedro Pua. Is it? — A. Yes, sir (21 tsn I Calixto).

NBI Agent Almeda, after investigating Francisco Siyang, found his theory incredible. Almeda did not believe that
Francisco Siyang could have seen or identified the assailant who was behind the fence. According to Almeda,
Francisco Siyang merely suspected certain person as the killers of his son. He could not identify positively the
killers.

Other grave inconsistencies in Francisco Siyang's affidavits and testimony are discussed in the trial court's decision.

Appellant Tamani further contends that the trial court erred in relying on thirteen circumstances in order to convince
itself that Tamani was the culprit. Among those circumstances are that Tamani went into hiding sometime after the
shooting and that the motive for the attempted murder of Mayor Domingo was to prevent his reinstatement and to
enable the vice-mayor to become permanent mayor and ensure that appellant Tamani would again become a
policemen.

Judge Pedro C. Quinto's painstaking analysis of the evidence and his conscientious scrutiny of the discrepancies in
the testimony and affidavits of Francisco Siyang demonstrate that the guilt of Tamani has been proven beyond
reasonable doubt. A thorough perusal of the record leads to the conclusion that the trial court did not commit the
errors imputed to it by the appellant.

52
The act of shooting Siyang at a distance, without the least expectation on his part that he would be assaulted, is
murder because of the attendance of the qualifying circumstance of treachery (alevosia). Appellant Tamani
deliberately employed a mode of execution which tended directly and specially to ensure the consummation of the
killing without any risk to himself arising from the defense which the victim could have made (Par. 16, Art. 14,
Revised Penal Code). Siyang, unarmed and without any intimation that the gunshots intended for Mayor Domingo
would hit him, was not in a position to defend himself against the unseen assailant. Treachery may be appreciated
even if there was a mistake as to the victim (People vs. Mabug-at, 51 Phil. 967; People vs. Guillen, 85 Phil. 307).

As to Mayor Domingo, the accused was not able to perform all the acts of execution which would consummate the
killing (Art. 6, Revised Penal Code). The accused was not able to do so, not because of his spontaneous desistance
but because he failed to inflict on the mayor a mortal wound. The mayor was able to avoid the second volley by
taking refuge in the store of Pedro Pua. But there is no doubt that the accused was animated by the intent to kill and
that the shooting was perpetrated in a treacherous manner. Hence, the offense against the mayor is attempted
murder (People vs. Kalalo, 59 Phil. 715).

The alternative contention of appellant Tamani that should be convicted of the complex crime of homicide
with lesiones graves is not well-taken. As already pointed out, the killing of Siyang cannot be characterized as
homicide. It was qualified by treachery. There was intent to kill in the shooting of the mayor. So, the wound inflicted
on him cannot be regarded as a mere physical injury. It was overt act manifesting the willful design of the accused to
liquidate the mayor.

The infliction of the four fatal gunshot wounds on Siyang and of the wound in the palm of the mayor's right hand was
not the result of a single act.  The injuries were the consequences of two volley of gunshots. Hence, the assaults on
<äre||anº•1àw>

Siyang and the mayor cannot be categorized as a complex crime.

To convict the accused of the complex crime of murder with attempted murder would result in the imposition of the
death penalty. That eventuality would be worse for him.

There being no mitigating nor aggravating circumstances, the penalty of reclusion perpetua should be imposed on
the appellant for the killing of Siyang. (Arts. 64 [1] and 248, Revised Penal Code). The use of the term "life
imprisonment" is not proper (People vs. Mobe, 81 Phil. 58).

WHEREFORE, the appeal is dismissed with costs against the appellant. So ordered.

53
G.R. No. L-3655             April 28, 1951

MIGUEL M. RAMOS AND AURORA V. ARGOSINO, petitioners, 

vs.
VALENTINA VILLAVERDE, ET AL., respondents.

x---------------------------------------------------------x

G.R. No. L-3656             April 28, 1951.

MIGUEL M. RAMOS AND AURORA V. ARGOSINO, petitioners, 

vs.
PAULA FLORIDO, ET AL., respondents.

This appeal by certiorari from a decision of the Court of Appeals involves the validity of the sales of two parcels of
land for payment of taxes.

Briefly, the facts are these: Prior to March, 1939, Perfecto Reyes and Valentina Villaverde were the registered
owners of lot No. 1904 and Juan Jorque of lot No. 3439, both of Lopez (Quezon) cadastre. Having been forfeited for
delinquency in the payment of taxes, these lots were sold at public auction to Agapito Vergara, the first for P10 and
the last for P100. Vergara subsequently conveyed both lots for P3,000 each to the spouses Miguel M. Ramos and
Aurora V. Argosino.

In 1947, these spouses filed petitions in the above-mentioned cadastral case alleging that the owner's duplicate
certificates of title covering the two parcels had been lost and praying that new ones be issued in lieu thereof in their
favor. After a joint hearing, both petitions were granted in an order which is now the subject of appeal, over the
objections of the registered owners.

The legality of the sales is impugned on the grounds, among others not essential to the case, that said sales were
not advertised in a newspaper nor was notice thereof sent to the owners by registered mail.

As found by the Court of Appeals, the law in force at the time of the sales in question, March, 1939, was not
Commonwealth Act No. 470, Section 35, as erroneously supposed by the parties and the court a quo, but Section
41 of Act No. 3995. The latter Act remained in operation until December 31, 1939, according to the express
provision of Section 33 of Commonwealth Act No. 470.

Section 41, supra, provided, among other things, that announcement of sale of confiscated real property at public
auction "shall be made by publishing a notice once a week for three consecutive weeks in a newspaper of general
circulation published in the province, if there be any," and further that "a copy of the notice shall be forthwith sent
by registered mail to the deliquent taxpayer at his residence if known to said treasurer." These requirements were
varied by Commonwealth Act No. 470, which makes publication of notice in a newspaper discretionary with the
provincial treasurer and authorizes the treasurer, also in his discretion, to send such notice to the owner either by
registered mail or by messenger.

By "newspaper of general circulation published in the province" was meant, in our opinion, one printed and not
merely circulated herein. The purchasers of the lots in question admit that no publication of the notice in a
newspaper was accomplished. However, they assert that there was no newspaper published or printed in Quezon
Province, and now they ask for a new trial, explaining that their failure to adduce proof on this core in the court
below arose from the erroneous belief on their part as well on the part of the Court of First Instance, that in March,
1939, when the sales are effected, the procedure outlined in Section 35 of Commonwealth Act No. 470 already
governed, Act which, as has been seen, makes announcement of the sale in a newspaper optional with the
provincial treasurer.
54
The view we take of the second ground of objection, to be presently stated, makes it unnecessary to decide the first,
or to grant a new hearing.

It is conceded that no notices by registered mail were sent to the deliquent taxpayers. What the purchasers
understood to prove was that notices were transmitted by messengers. The Court of Appeals made no definite
findings on whether personal notices were dispatched, as claimed, or received by the sendees. The only evidence
on the subject was furnished by the municipal treasurer and not by the messengers themselves. Needless to say,
the treasurer was not in a position to and did not affirm positively that the messengers actually handed the notices to
the parties for whom they were intended, or left them at their places of residence.

However the case may be, we are in agreement with the Court of Appeals that notice by registered mail, as
ordained by Act No. 3995, was mandatory and excluded any other mode of service. Had this not been the case, it
would have been superflous for the Legislature to add in the subsequent law — Commonwealth Act No. 470 — the
sending of notice by messenger as an alternate means of notification. Furthermore, we think there is much to the
contention that as, the sale of property for tax deliquency is in derogation of property rights and due process, the
prescribed steps must be followed strictly.

We are constrained to affirm, as we hereby affirm, the decision of the Court of Appeals, without special findings as
to cost of this appeal.

55