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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

L-55960 November 24, 1988 YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners, vs. AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE COURT OF APPEALS, respondents. Montesa, Albon, & Associates for petitioners. De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.: Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less. Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.] The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;] (2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and, (3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 6465.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105106.] On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE and a new judgment rendered as follows: (1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried woman with whom he lived as husband and wife without benefit of marriage for many years: (2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to be valid to the laws of the Chinese People's Republic of China (sic); (3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply to be valid and accordingly, said property should be excluded from the estate of the deceased Sy Kiat; and (4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]

From said decision both parties moved for partial reconsideration, which was however denied by respondent court. They thus interposed their respective appeals to this Court. Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No. 56045. ** The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981 reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the following as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA. II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SYGONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]

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

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is issued by the Chinese government, a document signed by the parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp. 52-53.] Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy
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Kiat's admission to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.] Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the following entries are found: "Marital statusMarried"; "If married give name of spousesYao Kee"; "Address-China; "Date of marriage1931"; and "Place of marriage China" [Exhibit "SS-1".] Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following entries are likewise found: "Civil statusMarried"; and, 'If married, state name and address of spouseYao Kee Chingkang, China" [Exhibit "4".] And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's Republic of China to the effect that "according to the information available at the Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".] These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom. Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree, should be required of a foreign custom. The law on foreign marriages is provided by Article 71 of the Civil Code which states that:
Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country, except bigamous, Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis supplied.) ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).] In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of

reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).] In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they are self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).] This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).] Moreover a reading of said case would show that the party alleging the foreign marriage presented a witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting parties constitute the essential requisite for a marriage to be considered duly solemnized in China. Based on his testimony, which as found by the Court is uniformly corroborated by authors on the subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.] Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the law of China on marriage in the aforecited case, petitioners however have not shown any proof that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years later.
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Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds true in this case. The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign marriage and the issue posed was whether or not the oral testimony of a spouse is competent evidence to prove the fact of marriage in a complaint for adultery. Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.] II. The second issue raised by petitioners concerns the status of private respondents. Respondent court found the following evidence of petitioners' filiation:
(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give number of childrenFour"; and, "NameAll living in China" [Exhibit "SS-1";] (2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977, pp. 9-11;] and, (3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil Registrar of Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and one adopted son [TSN, December 6,1977, pp. 87-88.] However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws of China, they cannot be accorded the status of legitimate children but only that of acknowledged natural children. Petitioners are natural children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil Code.] Private respondents on the other hand are also the deceased's acknowledged natural children with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of marriage. They have in their favor their father's acknowledgment, evidenced by a compromise agreement entered into by and between their parents and approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not only acknowleged them as
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his children by Asuncion Gillego but likewise made provisions for their support and future inheritance, thus:
xxx xxx xxx 2. The parties also acknowledge that they are common-law husband and wife and that out of such relationship, which they have likewise decided to definitely and finally terminate effective immediately, they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born on May 7, 1958. 3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties mutually agree and covenant that (a) The stocks and merchandize and the furniture and equipments ..., shall be divided into two equal shares between, and distributed to, Sy Kiat who shall own one-half of the total and the other half to Asuncion Gillego who shall transfer the same to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy. (b) the business name and premises ... shall be retained by Sy Kiat. However, it shall be his obligation to give to the aforenamed children an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the rental of the two doors of the same building now occupied by Everett Construction. xxx xxx xxx (5) With respect to the acquisition, during the existence of the common-law husband-and-wife relationship between the parties, of the real estates and properties registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually agree and covenant that the said real estates and properties shall be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ... [Exhibit "D".] (Emphasis supplied.) xxx xxx xxx

This compromise agreement constitutes a statement before a court of record by which a child may be voluntarily acknowledged [See Art. 278, Civil Code.] Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations Court. Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to the Juvenile and Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court. xxx xxx xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original jurisdiction to hear and decide the following cases: xxx xxx xxx (2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and acknowledgment; (3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and actions for support; (4) Proceedings brought under the provisions of title six and title seven, chapters one to three of the civil code; xxx xxx xxx

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.] With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to pass upon the issue of jurisdiction raised by petitioners. Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last paragraph that:
xxx xxx xxx If any question involving any of the above matters should arise as an incident in any case pending in the ordinary court, said incident shall be determined in the main case. xxx xxx xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving paternity and acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an administration proceeding is pending or existing and has not been terminated. [at pp. 313-314.] (Emphasis supplied.) xxx xxx xxx

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

Footnotes
* The petition for review in G.R. No. 56045 was denied for lack of merit on March 9, 1981, Counsel for the petitioners then filed a Motion for Consolidation and for Extension of Time to File Motion for Reconsideration which was granted on July 8, 1981. On February 17, 1982, however, petitioners' motion for reconsideration of the resolution of March 9, 1981 was denied. ** Other than the exceptions contained in this article, this provision of law is derived from Section 19, Act No. 3613 and Section IV, General Order No. 68. *** The presumption that, in the absence of proof, the foreign law is the same as the law of the forum, is known as processual presumption which has been applied by this Court in the cases of Lim v. The Insular Collector of Customs, 36 Phil, 472 (1917); International Harvester Co. in Russia v. Hamburg-American Line, 42 Phil. 845 (1918); Miciano v. Brimo, 60 Phil, 867 (1924); and Rayray v. Chae Kyung Lee, G.R. No. L-18176, October 26, 1966,18 SCRA 450. **** Rep. Act 4834 created the Juvenile and Domestic Relations Court of Iloilo. Section 1 of said Act is the exact copy of section 19-A of Rep. Act 5502.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-25265 May 9, 1978 PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. SOCORRO C. RAMOS, defendant-appellee, PHOENIX PUBLISHING HOUSE INC., intervenor. G.R. No. L-25644 May 9, 1978 SOCORRO C. RAMOS, petitioner, vs. HON. PLACIDO RAMOS, in his capacity as Presiding Judge, Branch III, CFI, Manila; and the PEOPLE OF THE PHILIPPINES, represented by State Prosecutor DELIA P. MEDINA, respondents. Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifica P. de Castro and Solicitor Sumilang V. Bernardo for People of the Philippines. Florence D. Regalado for Socorro C. Ramos. Sevilla & Aquino Law Office for Intervenor.

SANTOS, J.: The above-entitled cases the first an appeal and the second a special civil action are decided jointly because they raise a common issue which arose from the prosecution of a common defendant, Socorro C. Ramos, for alleged violations of the copyright lawviz, whether or not the extra day in the leap year, 1964 should be taken into consideration in the computation of the two-year period of prescription provided in Section 24 of the copyright law. The factual and procedural antecedents follow. On September 3, 1965, two criminal cases No. 80006 of the Court of First Instance of Manila, Branch III, and No. 80007 also of the same Court, Branch XIV identical in every respect, except for the fact that they pertain to different editions of the same textbook, were filed against Socorro C. Ramos, for alleged violations of Act 3134, otherwise known as the Copyright Law, as amended. The information in Criminal Case No. 80007 alleged
That on or about July to September, 1963, in the City of Manila and within the jurisdiction of this Honorable Court, the said accused, as the proprietor aid general manager of the National Book

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Store, as enterprise engaged in the business of publishing, selling and distributing books, did then and there, wilfully and illegaly sell and distribute spurious and pirated copies of the high school textbook, entitled General Science Today for Philippine School, First Year, by Gilam, Van Houten and Cornista, said accused knowing that said book was duly copyrighted by the Phoenix Publishing House, Inc., and was being distributed exclusively by its sister corporation, 1 Alemar's or Sibal and Sons, Inc.

On September 7, 1965, identical motions to quash 2 were filed by accused Ramos on the ground of prescription, alleging therein, inter alia, that:
xxx xxx xxx Consequently, the delivery of the alleged offense was made as early as July 17, 1963 and all subsequent knowledge or discoveries of posterior sales and possession of said books by the respondents, including that involved in the police search of September 4, 1963 were only confirmatory of the first. Under 91 of the Revised Penal Code and in the light of the aforequoted ruling announced in the Pangasinan Trans. Co. case, supra; the prescriptive period, therefore, commenced to run on the day after such discovery on July 17, 1963 and, accordingly, the offense has long since prescribed since under the Copyright Law, Act 3134: Sec. 24. All actions, suits, or proceedings arising under this Act shall be originally cognizable by the Court of First Instance of the Philippine Islands and shall prescribe after two years from the time the cause of action arose. Assuming arguendo, that the last actual sale should be the starting point of computation, again the offense charged has prescribed, since, as already pointed out, the documented evidence on this point shows that the last sale was made on August 30, 1963.

The prosecution, also in both cases, filed its Opposition to the Motion to Quash 3 raising two issues, to wit:
1. That the issue of prescription in this case can be resolved only after the presentation of evidence and hence, it is premature to raise that issue before trial 2. That, as the violation committed by the defendant was a continuing offense, the two-year prescriptive period may be counted from September 3, 1963, or one day before the search in defendants' premises , which confirmed her possession of spurious and pirated copies of the textbook in question.

The prosecution's theory is that "(T)he crime being a continuing offense, the statute of limitations begins to run from the completion of the last act or series of acts which constitute the offense, " and this last act was committed on September 3, 1963. Therefore when the information was filed on September 3, 1965, it was filed within the two-year period, albeit the last day of the prescriptive period. Again, in both the accused filed a "Reply to Opposition to Motion to Quash." 4 She alleged that even assuming that the crime is a continuing offense, the prescriptive period should start from August 30, 1963, the date of the last invoiced sale, and not September 3, 1963, as there was no indubitable proof that she had sold copies of the questioned book on that date. Nonetheless, accused contended that even if the prescriptive period should start from September 3, 1963, as proposed by the prosecution, the two-year period was tolled on September 2, 1965. She pointed out that two years mean a period of 730 days in accordance
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with Article 13 of the New Civil Code, and 1964, being a leap year consisting of 366 days, the 730th day fell on September 2, 1965. Hence, "... . when the information was filed on September 3, 1965, the offense, if any, had already prescribed. " The prosecution filed a Rejoinder 5 in both cases alleging as follow:
l. That February 28, and 29, 1964, should be regarded as one day only, and consequently, the two-year period commencing on September 3, 1963 would end on September 3, 1965; 2. That under Act No. 3326, the prescriptive period was interrupted by the filing of the proceedings in the fiscal's office; 3. That prescription would not lie in this case because the complainant never waived the right to prosecute the defendant.

Accused Ramos, also in cases, filed an Urgent Motion to Strike the Rejoinder, 6 on the ground that it was filed after the case had been submitted for resolution. She prayed that "in the event that the same should at all be considered and allowed, that the accused be notified thereof and granted reasonable opportunity to file a surrejoinder...". It appears that the Rejoinder was admitted by both trial courts, but a Surrejoinder 7 was filed only in Criminal Case No. 80006. Here, the accused traversed the prosecution's contentions in the Rejoinder, thus:
1. Under applicable and specific provisions of Philippine law, the two-year period of prescription commencing on September 3, 1963 ended on September 2, 1965 ...; 2. The filing (of) proceedings in the Office of the City Fiscal of Manila did not interrupt the prescriptive period.

In Criminal Case No. 80007, Hon. Jesus De Veyra granted the motion to quash by an order dated October 7, 1965. 8 Pertinent portion of his order reads:
. . . . And now to the main issue - whether the crime has prescribed. In the Opposition to the Motion to Quash, the Prosecution, in its insistence on the theory of a continuing crime, admits that the two-year prescriptive period should run from September 3, 1963. This case was filed on September 3, 1965 - one day too late. Article 13, CCP provides that year shall mean a period of 365 days. This had been applied to criminal cases (People v. del Rosario, 51 O.G., 2686). 1964 was a leap year so that when this case was filed, it was filed one day too late. The Motion to Quash is, therefore, granted and this case dismissed on the ground that the crime has already prescribed. (Emphasis supplied.)

The prosecution appealed the above order to this Court on October 15, 1965.

Meanwhile, in Criminal Case No. 80006, the motion to quash was not resolved until December 23, 1965. On this date, Hon. Placido Ramos denied the motion to quash, and set the arraignment of the accused on January 12, 1966, thus

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Wherefore, finding the information to have been filed well within the statutory period of two years from the date of the last offense committed by the accused the Court denies the motion to quash. The arraignment of the accused is hereby set on January 12, 1966 at 8:30 A.M.

The trial court refused to accept the prosecution's view that the prescriptive period should run from September 3, held instead, that the same should commence on September 4, 1963.
xxx xxx xxx The evidence shows that on September 4, 1963, the Manila Police by virtue of a search warrant procured by the offended party, seized, among other articles, 69 copies of General Science Today for Philippine Schools, First Year, by Gilman, Van Houten and Cornista and one copy of the same textbook for Second Year (Exhibit 5). The evidence likewise shows that on September 3, 1963, the National Book Store, run and managed by the accused, sold one said textbook, Exhibit 'D' and Exhibit '2'. The mere possession by the accused on September 4, 1963 of several copies of this textbook which is the textbook alleged to be spurious and pirated, indicates that said accused was distributing or selling said textbook on September 4, 1963 . . . This being the case, it follows of necessity that the period of prescription commenced to run from September 4, 1963 and two years from this date, by excluding the first and including the last, would expire on September 4, 1965 and hence, the action, which was instituted on September 3, 1965 is well within the prescriptive period. xxx xxx xxx

Furthermore, the trial court ignored the accused's theory on leap year:
Even if the last sale of said textbook could be considered to have taken place on September 3, 1963, Exhibits 'D' and '2', the Court is also of the opinion that the two-year period would expire September 3, 1965. The argument that inasmuch as 1964 is a leap year the two-year period must contain 731 days, as contemplated by Article 13 of the Civil Code of the Philippines, is, in the opinion of the Court, without merits for this particular legal provision that a year is understood to be of 365 days each is applicable only in determining the number of days a year must legally contain but not for the purpose of ascertaining the period of prescription based on years. In the computation of the period of prescription, a year should be construed as the calendar year comprising the whole period from January 1 to December 31, regardless of the number of days it contains. Consequently, in this particular case, if it is considered that the last sale took place on September 3, 1963, the two-year period, following the rule exclude the- first-and-include-thelast, will expire on September 3, 1965.

The accused filed a Motion for Reconsideration. 10 Two more pleadings were filed, 11 after which, the trial court finally denied said motion for reconsideration for lack of merit, 12 and reset the arraignment of the accused on February 24, 1966 at 8:30 A.M. The accused thus filed with this Court this petition for certiorari, mandamus and prohibition, 13 with the following prayer:
(a) Forthwith issue, upon filing by petitioner of a bond in such amount as this Honorable Court may fix, a Writ of Preliminary Injunction restraining, enjoining and prohibiting respondents from further proceedings in Criminal Case No. 80006 of the Court of First instance of Manila, Branch III, daring the pendency of this Action:

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(b) After due hearing, to render judgment in favor of petitioner and against respondents (1) Annulling and setting aside the Orders of the respondent Judge of December 23, 1965 (Annex 'G') denying petitioner's motion to quash, and of January 20, 1966 (Annex 'K') denying petitioner's motion for reconsideration; (2) Ordering respondent Judge to dismiss Criminal Case No. 80006 aforesaid; and (3) Making the writ of preliminary injunction hereafter La be issued permanent and final.

This Court on February 11, 1966, issued a writ of preliminary injunction restraining the trial Court from further proceedings in Criminal Case No. 80006. 14 Also on the same date, the two cases, G.R. No. L-25265 and G.R. No. L-25644, were consolidated. 1. In G.R. No. L-25265, the appeal, then Solicitor General Arturo Alafriz filed a four-page brief dated December 21, 1965 15 wherein he recommended affirmance of the order of 'Judge De Veyra quashing the information, and the dismissal of the appeal, for the simple reason that "the order appealed from is in accordance with law." Accused, now appellee Ramos, filed a brief dated January 21, 1966 16 reiterating her previous allegations in the lower court. The Phoenix Publishing House, Inc., the offended party, filed a motion to intervene in this appeal, on the following grounds:
a) That the Solicitor General, instead of prosecuting the appeal, recommended its dismissal b) That, to protect its interest, it is necessary that the movant be allowed to intervene and to submit memorandum to sustain its view that the criminal action against the accused had not yet 17 prescribed.

Over the opposition of the accused-appellee, this Court granted the same. 18 Accordingly, the Phoenix Publishing House, Inc. filed its Memorandum 19 wherein it alleged that the trial court erred I. IN ACTING ON DEFENDANT'S MOTION TO QUASH WITHOUT REQUIRING THE PRESENTATION OF EVIDENCE IN SUPPORT OF THE PLEA OF PRESCRIPTION. II. IN NOT APPLYING TO THIS CASE THE FOUR-YEAR PRESCRIPTIVE PERIOD PROVIDED FOR IN ACT NO. 3326. III. IN NOT HOLDING THAT THE PRELIMINARY INVESTIGATION PROCEEDINGS IN THE MANILA CITY FISCAL'S OFFICE AND IN THE DEPARTMENT OF JUSTICE INTERRUPTED PRESCRIPTION. IV. IN NOT CONSIDERING FEBRUARY 28 AND 29, 1964, AS ONE DAY FOR PURPOSES OF PRESCRIPTION.

15

Accused-appellee, Ramos, filed a Reply Memorandum 20 refuting intervenor's assignment of errors. Subsequent pleadings 21 focused on whether February 28, and 29 of a leap year should be counted as one day or separate days in computing the period of prescription. 2. In G.R. No. L-25644-the special civil action the issues raised in the foregoing assignment of errors were relied upon in respondent People's Answer. 22 And, following respondent Judge Ramos' reasoning, it was contended that the period of prescription should start from September 4, 1963, and not September 3, 1963, as originally proposed by the prosecution. Furthermore, as an affirmative defense, it was alleged that the petitioner has no cause of action for certiorari, prohibition and mandamus since Judge Ramos did not commit any grave abuse of discretion in refusing to quash the information. Respondent contended that the "(P)etitioner's remedy is to appeal the judgment of conviction rendered after a trial on the merits. " This allegation was opposed by petitioner Ramos; 23 she insisted that she had a cause of action for certiorari prohibition and mandamus. Respondent People filed a Reply Memorandum 24 disputing petitioner's allegations. We are, thus, faced with conflicting orders of two different Branches of the Court of First Instance of Manila-one holding that the crime has prescribed, the other that it has not. 1. Now to resolve the preliminary issues: a. On the propriety of the special civil action for certiorari and prohibition. We find for petitioner. As We had occasion to hold in Quizon vs. Baltazar, 76 SCRA 559:
As to the contention of respondents that the denial of a motion to quash is not a ground for certiorari and prohibition, suffice it to state that to allow an accused to undergo the ordeals of trial and conviction when the information or complaint against him is patently defective or the offense charged therein has been indisputably shown to have already prescribed is unfair and unjust for which reason, procedurally, the ordinary remedy of appeal cannot be plain and adequate.

As to mandamus, We are incline to agree with respondent's allegation that "petitioner has no cause of action for mandamus which is a writ intended to control the exercise of a purely ministerial function. To quash an information is not a ministerial function," 25 However, mandamus as a remedy is a superfluity here, considering that petitioner can obtain full relief thru certiorari and prohibition. b. On the applicability of the four-year prescriptive period provided in Act No. 3326. The same is not applicable. Said Act provides:
Section 1. Violations penalized by special acts shall unless otherwise provided in such acts, prescribe in accordance with the following rules: (a)........... (b) after four years for those punished by imprisonment for more than one month, but less than two years; ... (Emphasis supplied.)
26

Act No. 3326 applies only if the special act does not provide for its own prescriptive period. It has no application here, where the Copyright Law provides for its own prescriptive period, viz:
16

Section 24. All actions, suits, or proceedings arising under this Act shall be originally cognizable by the Courts of First Instance of the Philippines and shall prescribe after two years from the time the cause of action arose.

2. Now on the main issue of prescription. The question to be resolved is the proper computation of the two-year period of prescription from September 3, 1963. Resolution of this issue hinges, in turn, on whether February 28, and 29 of a leap year, 1964, should be counted as one day, as proposed by the prosecution; or as separate days, as alleged by the defense. This issue which was in 1965 still undetermined is now a settled matter. It was held in 1969 in Namarco vs. Tuazon 27 that February 28 and 29 of a leap year should be counted as separate days in computing periods of prescription. Thus, this Court, speaking thru former Chief Justice Roberto Concepcion, held that where the prescriptive period was supposed to commence on December 21, 1955, the filing of the action on December 21, 1965, was done after the ten-year period has lapsed since 1960 and 1964 were both leap years and the case was thus filed two (2) days too late. Since this case was filed on September 3, 1965, it was filed one day too late; considering that the 730th day fell on September 2, 1965 the year 1964 being a leap year. In explaining the rationale for its holding, the Court took pains to trace the antecedent decisional and statutory bases for its conclusion, thus
Prior to the approval of the Civil Code of Spain, the Supreme Court thereof held, on March 30, 1887, that, when the law spoke of months, it meant a 'natural' month or 'solar' month, in the absence of express provision to the contrary. Such provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the same Supreme Court declared that, pursuant to Article 7 of said Code, 'whenever months are referred to in the law. it shall be understood that months are of 30 days,' not the 'natural', 'solar' or 'calendar' months, unless they are 'designated by name,' in which case, 'they shall be computed by the actual number of days they have.' This concept was, later, modified in the Philippines, by Section 13 of the Revised Administrative Code, pursuant to which 'month shall be understood to refer to a calendar month.' With the approval of the Civil Code of the Philippines (RA 386) we have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be considered as the regular 30-month and not the solar or civil month with the particularity that, whereas the Spanish Civil Code merely mentioned 'months, days or nights,' ours has added thereto the term 'years' and explicitly ordains in Article 13 that it shall be understood that years 28 are of three hundred sixty-five days.

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

Finally, there is no merit in the allegation that the reckoning of the prescriptive period should start from September 4, 1963. This was the date when the police authorities discovered several pirated books in accused's store. But the accused was charged, in both Criminal Cases Nos. 80006 and 80007, with having allegedly sold and distributed spurious and pirated copies of the textbook in question, not of illegal possession of the same. The prosecution's
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claim that the preliminary investigation proceedings in the Manila City Fiscal's Office and in the prosecution Division of the Department of Justice interrupted the running of the prescriptive period, is also without merit. We held in People vs. Tayco 30 that the running of the period of prescription is interrupted not by the act of the offended party in reporting the offense to the final but the filing of the complaint or information in court. WHEREFORE, the order dated October 7, 1965 of the Court of First Instance of Manila Branch XIV in Criminal Case No. 80007 dismissing the case on the ground of prescription, is AFFIRMED. The order dated December 23, 1965 of the same court, Branch III, in Criminal Case No. 80006, is REVERSED and SET ASIDE, and the case is DISMISSED, on the ground that the crime charged therein had already prescribed. Without pronouncement as to costs. SO ORDERED.
Barredo, Acting (Chairman), Antonio, Concepcion, Jr. and Guerrero, JJ., concur, Fernando, J. and Aquino, JJ., took no part. Guerrero, J., was designated to sit in the Second Division. Footnotes
1 Rollo G.R. No. L-25265, p. 2. In G.R. No. L-25644, the subject matter of the alleged violation of copyright was the Second Year edition of the same textbook. See Record on Appeal (R.A.), Petition, Annex "A", p. 27. 2 Record, G.R. No. L-25265, p. 3; R.A. Petition, Annex "B", p. 30. 3 Id., p. 28; Annex "C", p. 43. 4 Id., p. 37; Annex "D", p. 57. 5 Id p. 43; Annex "E " , p. 67.

6 Id, P. 49. No copy of the Urgent Motion to Strike appears in the R.A. G.R. No. L-25644, although petitioner alleged that she filed it. See Petition, par. 11, p. 9. 7 R.A., Petition, Annex "F", p. 73, 8 Record, G.R. No. L-25265, p. 55. 9 G.R. No. L-25265. 10 Id., Annex "H", p. 88. 11 Opposition to Motion for Reconsideration dated January 14, 1966, and Reply, dated January 18, 1966. 12 R.A., Petition, Annex "K", p. 124. 13 G.R. No. L-25644. 14 Id., p.11. 15 Rollo, p. 8. 16 Id, p. 34. 17 Id, p. 11, pars. 3 and 5, of the Motion for Intervention. 18 Id, pp. 19 and 31. 19 Id, p. 44. 20 Id, p. 45. 21 Id, Intervenor's Supplementary Argument, p. 46; Refutation of Intervenor's Supplementary Argument, p. 47; Intervenor's Additional Supplementary Argument, p. 52; and Manifestation on Intervenor's Additional Supplementary Argument and Motion for Consideration of Appellee's Counter Argument. 22 R.A., p. 13. 23 Id, p. 35. 24 Id, p. 47. 25 Id, p. 25. 26 Titled "Prescription of Violation of Special Laws and Municipal Ordinances." 27 G.R. No L-29131, August 27, 1969, 29 SCRA 70. 28 Idem, at p. 70 (Syllabus). 29 Idem. 30 73 Phil. 509; also cited in Aquino, Ramon C., The Revised Penal Code, Vol. I, 1976 Ed., p. 702.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-50654 November 6, 1989 RUDY GLEO ARMIGOS, petitioner, vs. COURT OF APPEALS, CRISTITO MATA, and JUDGE L. D. CARPIO, in his capacity as Judge of the Court of First Instance of Davao del Sur, Branch V, respondents. David W. Natividad for petitioner. Calamba, Garcia, Geralde & Calamba Law Offices for respondents.

PADILLA, J.: Review on certiorari of the decisio * of the Court of Appeals, which dismissed the petition filed and docketed therein as CA-G.R. No. SP-07192-R, entitled: "Rudy Gleo Armigos, petitioner, versus Judge L.D. Carpio, respondent," and the resolution denying the motion for reconsideration of said decision. The undisputed facts are as follows: The private respondent, Cristito Mata, filed a complaint against the herein petitioner with the Municipal Court of Digos, Davao del Sur, docketed as Civil Case No. 971, for the collection of damages and attorney's fees. After trial, judgment was rendered in favor of the private respondent and against the herein petitioner. A copy of the decision was received by the petitioner on 8 June 1977, and the following day, 9 June 1977, he filed a notice of appeal with the said municipal court, and on 24 June 1977, he completed the other requirements for the perfection of an appeal, including the filing of an appeal bond and the payment of the appellate court docket fee. However, when the case was elevated to the Court of First Instance of Davao del Sur (Branch V) for the consideration of the appeal, the presiding judge thereof ruled that the appeal was filed beyond the reglementary period; consequently, he dismissed the appeal. Whereupon, the petitioner filed a petition for certiorari, mandamus with preliminary injunction with the Court of Appeals, claiming that from 8 June 1977, when he received a copy of the decision of the municipal court, to 24 June 1977, when he perfected his appeal, only fifteen (15) days had elapsed so that the decision of the Court of First Instance of Davao del Sur, dismissing his appeal for having been filed beyond the reglementary period, is erroneous and contrary to law. The petitioner contended that the computation of the period to appeal should commence on the hour he received copy of the decision, so that the first of the 1 5-day period comprising 24 hours is from 4:00 o'clock p.m. of 9 June 1977 to 4:00 o'clock p.m. of 10 June 1977 and the last day, from 4:00 o'clock p.m. of 23 June 1977 to 4:00 o'clock p.m. of 24 June 1977. The Court of Appeals, however, rejected the novel interpretation suggested as it would result in many confusing situations and many unreliable testimonies as to the time a copy of a decision, order or pleading is received, and 1 cited the case of Republic of the Philippines vs. Encarnacion, where this Court held that when a law was to be effective upon approval by the President and the President signed the same on 16 June 1950, the law should be considered to have taken effect not on the exact hour when the President signed the same on 16 June 1950 but from the very first minute or hour of said day of 16 June 1950. The petitioner filed a motion for reconsideration of the appellate court's decision, but his motion was denied in a resolution promulgated on 7 December 1978.

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Hence, the present recourse. We find no merit in the petition. The rule stated in Article 13 of the Civil Code to the effect that "In computing a period, the first day shall be excluded, and the last day included" is similar, but not Identical to Section 4 of the Code of Civil Procedure which provided that "Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday or a legal holiday it shall be excluded", as well as the old Rule 28 of the Rules of Court which stated that "In computing any period of time prescribed or allowed by the Rules of Court, by order of a court, or by any other applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a Sunday or a legal holiday." In applying this rule, the Court considered the day as synonymous with the date and we find no cogent reason to adopt a different view. Besides, human memory on dates or days is frail and unless the day is an extraordinary one for a person, there is no reasonable certainty of its correctness. What more for the exact hour when a pleading, order or decision is received by a party? Petitioner's suggestion, however, may find application in appeals in habeas corpus cases where the law 2 requires that such appeals should be made within 48 hours from notice of judgment. While it is true that rules of procedure are to be interpreted liberally so that the real matter in dispute may be submitted to the judgment of the court, and that the trial court is vested with discretion to allow or admit an appeal filed out of time, this discretion is not unconditional. There must be justifiable reason to warrant such action, since the perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional, and in the absence of any justifying circumstance, the court has no jurisdiction to 3 approve or admit an appeal filed out of time. In the instant case, the petitioner failed to prove, or even claim, that his failure to appeal on time was due to fraud, accident, mistake or excusable negligence. WHEREFORE, the petition is DENIED. With costs against the petitioner. SO ORDERED. Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur. Paras, J., took no part.

Footnotes * Penned by Justice Edgardo L. Paras, with Justices Ramon G. Gaviola Jr., and B.S. de la Fuente, concurring. 1 87 Phil. 845. 2 Rule 41, Sec. 18, Rules of Court. 3 Trans-Philippines, Inc. vs. Court of Appeals, G.R. No. L-42184, July 28, 1977 SCRA 154, 161.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 98382 May 17, 1993 PHILIPPINE NATIONAL BANK, petitioner, vs. THE COURT OF APPEALS and EPIFANIO DE LA CRUZ, respondents. Santiago, Jr., Vidad, Corpus & Associates for petitioner. Pedro R. Lazo for spouses-intervenors. Rosendo G. Tansinsin, Jr. for private respondent.

MELO, J.: The notices of sale under Section 3 of Act No. 3135, as amended by Act No. 4118, on extra-judicial foreclosure of real estate mortgage are required to be posted for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notices shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city. Respondent court, through Justice Filemon Mendoza with whom Justices Campos, Jr. and Aldecoa, Jr. concurred, construed the publication of the notices on March 28, April 11 and l2, 1969 as a fatal announcement and reversed the judgment appealed from by declaring void, inter alia, the auction sale of the foreclosed pieces of realty, the final deed of sale, and the consolidation of ownership (p. 27, Rollo). Hence, the petition at bar, premised on the following backdrop lifted from the text of the challenged decision: The facts of the case as related by the trial court are, as follows: This is a verified complaint brought by the plaintiff for the reconveyance to him (and resultant damages) of two (2) parcels of land mortgaged by him to the defendant Philippine National Bank (Manila), which the defendant allegedly unlawfully foreclosed. The defendant then consolidated ownership unto itself, and subsequently sold the parcels to third parties. The amended Answer of the defendant states on the other hand that the extrajudicial foreclosure, consolidation of ownership, and subsequent sale to the third parties were all valid, the bank therefore counterclaims for damages and other equitable remedies. xxx xxx xxx From the evidence and exhibits presented by both parties, the Court is of the opinion that the following facts have been proved: Two lots, located at Bunlo, Bocaue, Bulacan (the first covered by Torrens Certificate No. 16743 and possessed of an area of approximately 3,109 square meters: the second covered by Torrens Certificate No. 5787, possessed of an area of around 610 square meters, and upon which stood a residential-commercial building were mortgaged to the defendant Philippine National Bank. The lots were under the

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common names of the plaintiff (Epifanio dela Cruz), his brother (Delfin) and his sister (Maria). The mortgage was made possible because of the grant by the latter two to the former of a special power of attorney to mortgage the lots to the defendant. The lots were mortgaged to guarantee the following promissory notes: (1) a promissory note for Pl2,000.00, dated September 2, 1958, and payable within 69 days (date of maturity Nov. l0, 1958); (2) a promissory note for P4,000.00, dated September 22, 1958, and payable within 49 days (date of maturity Nov. 10, 1958); (3) a promissory note for P4,000.00, dated June 30, 1.958 and payable within 120 days (date of maturity Nov. 10, 1958) See also Annex C of the complaint itself). [1 This date of June 30, 1958 is disputed by the plaintiff who claims that the correct date is June 30, 1961, which is the date actually mentioned in the promissory note. It is however difficult to believe the plaintiff's contention since if it were true and correct, this would mean that nearly three (3) years elapsed between the second and the third promissory note; that at the time the third note was executed, the first two had not yet been paid by the plaintiff despite the fact that the first two were supposed to be payable within 69 and 49 days respectively. This state of affairs would have necessitated the renewal of said two promissory notes. No such renewal was proved, nor was the renewal ever alleged. Finally, and this is very significant: the third mentioned promissory note states that the maturity date is Nov. 10, 1958. Now then, how could the loan have been contracted on June 30, 1961? It will be observed that in the bank records, the third mentioned promissory note was really executed on June 30, 1958 (See Exhs. 9 and 9A). The Court is therefore inclined to believe that the date "June 30, 1961" was a mere clerical error and hat the true and correct date is June 1958. However, even assuming that the true and correct date is June 30, 1961, the fact still remains that the first two promissory notes had been guaranteed by the mortgage of the two lots, and therefore, it was legal and proper to foreclose on the lots for failure to pay said two promissory notes. On September 6, 1961, Atty. Ramon de los Reyes of the bank (PNB) presented under Act No. 3135 a foreclosure petition of the two mortgaged lots before the Sheriff's Office at Malolos, Bulacan; accordingly, the two lots were sold or auctioned off on October 20, 1961 with the defendant PNB as the highest bidder for P28,908.46. On March 7, 1963, Sheriff Leopoldo Palad executed a Final Deed of Sale, in response to a letter-request by the Manager of the PNB (Malolos Branch). On January 15, 1963 a Certificate of Sale in favor of the defendant was executed by Sheriff Palad. The final Deed of Sale was registered in the Bulacan Registry of Property on March 19, 1963. Inasmuch as the plaintiff did not volunteer to buy back from the PNB the two lots, the PNB sold on June 4, 1970 the same to spouses Conrado de Vera and Marina de Vera in a "Deed of Conditional Sale". (Decision, pp.3-5; Amended Record on Appeal, pp. 96-98). After due consideration of the evidence, the CFI on January 22, 1978 rendered its Decision, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, the instant complaint against the defendant Philippine National Bank is hereby ordered DISMISSED, with costs against the plaintiff. The Counterclaim against the plaintiff is likewise DISMISSED, for the Court does not believe that the complaint had been made in bad faith. SO ORDERED. (Decision, p. B.; Amended Record on Appeal, p. 100)
1

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Not satisfied with the judgment, plaintiff interposed the present appeal assigning as errors the following: I. THE LOWER COURT ERRED IN HOLDING IN FOOTNOTE I OF ITS DECISION THAT IT IS THEREFORE INCLINED TO BELIEVE THAT THE DATE "JUNE 30, 1962" WAS A MERE CLERICAL ERROR AND THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1958. IT ALSO ERRED IN HOLDING IN THE SAME FOOTNOTE I THAT "HOWEVER, EVEN ASSUMING THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1961, THE FACT STILL REMAINS THAT THE FIRST TWO PROMISSORY NOTES HAD BEEN GUARANTEED BY THE MORTGAGE OF THE TWO LOTS, AND THEREFORE, IT WAS LEGAL AND PROPER TO FORECLOSE ON THE LOTS FOR FAILURE TO PAY SAID TWO PROMISSORY NOTES". (page 115, Amended Record on Appeal) II. THE LOWER COURT ERRED IN NOT HOLDING THAT THE PETITION FOR EXTRAJUDICIAL FORECLOSURE WAS PREMATURELY FILED AND IS A MERE SCRAP OF PAPER BECAUSE IT MERELY FORECLOSED THE ORIGINAL AND NOT THE AMENDED MORTGAGE. III. THE LOWER COURT ERRED IN HOLDING THAT "IT IS CLEAR THAT THE AUCTION SALE WAS NOT PREMATURE". (page 117, Amended Record on Appeal) IV. THE LOWER COURT ERRED IN HOLDING THAT "SUFFICE IT TO STATE THAT ACTUALLY THE POWER OF ATTORNEY GIVEN TO THE PNB WAS EMBODIED IN THE REAL ESTATE MORTGAGE (EXB. 10) WHICH WAS REGISTERED IN THE REGISTRY OF PROPERTY OF BULACAN AND WAS ANNOTATED ON THE TWO TORRENS CERTIFICATES INVOLVED" (page 118, Amended Record on Appeal). V. THE LOWER COURT ERRED IN HOLDING THAT "THE NOTICES REQUIRED UNDER SEC. 3 OF ACT NO. 3135 WERE ALL COMPLIED WITH" AND "THAT THE DAILY RECORD . . . IS A NEWSPAPER OF GENERAL CIRCULATION (pages 117-118, Amended Record on Appeal). VI. THE LOWER COURT ERRED IN NOT DECLARING THE CERTIFICATE OF SALE, FINAL DEED OF SALE AND AFFIDAVIT OF CONSOLIDATION, NULL AND VOID. VII. THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO RECONVEY TO PLAINTIFF THE PARCELS OF LAND COVERED BY T.C.T. NOS. 40712 AND 40713 OF BULACAN (page 8, Amended Record on Appeal) VIII.

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THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO PAY TO PLAINTIFF REASONABLE AMOUNTS OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES (page 8. Amended Record on Appeal). IX. THE LOWER COURT ERRED IN DISMISSING THE INSTANT COMPLAINT AGAINST THE PHILIPPINE NATIONAL BANK WITH COSTS AGAINST THE PLAINTIFF. (page 118, Amended Record on Appeal)." (Brief for Plaintiff-Appellant, pp. 1-4) (pp. 17-21, Rollo) With reference to the pertinent issue at hand, respondent court opined: The Notices of Sale of appellant's foreclosed properties were published on March 228, April 11 and April 12, 1969 issues of the newspaper "Daily Record" (Amended Record on Appeal, p. 108). The date March 28, 1969 falls on a Friday while the dates April 11 and 12, 1969 are on a Friday and Saturday, respectively. Section 3 of Act No. 3135 requires that the notice of auction sale shall be "published once a week for at least three consecutive weeks". Evidently, defendant-appellee bank failed to comly with this legal requirement. The Supreme Court has held that: The rule is that statutory provisions governing publication of notice of mortgage foreclosure sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and render the sale at least voidable (Jalandoni vs. Ledesma, 64 Phil. l058. G.R. No. 42589, August 1937 and October 29, 1937). Interpreting Sec. 457 of the Code of Civil Procedure (reproduced in Sec. 18(c) of Rule 39, Rules of Court and in Sec. 3 of Act No. 3135) in Campomanes vs. Bartolome and German & Co. (38 Phil. 808, G.R. No. 1309, October 18, 1918), this Court held that if a sheriff sells without notice prescribed by the Code of Civil Procedure induced thereto by the judgment creditor, and the purchaser at the sale is the judgment creditor, the sale is absolutely void and no title passes. This is regarded as the settled doctrine in this jurisdiction whatever the rule may be elsewhere (Boria vs. Addison, 14 Phil. 895, G.R. No. 18010, June 21, 1922). . . . It has been held that failure to advertise a mortgage foreclosure sale in compliance with statutory requirements constitutes a jurisdictional defect invalidating the sale and that a substantial error or omission in a notice of sale will render the notice insufticient and vitiate the sale (59 C.J.S. 1314). (Tambunting vs. Court of Appeals, L-48278, November 8, 1988; 167 SCRA 16, 23-24). In view of the admission of defendant-appellee in its pleading showing that there was no compliance of the notice prescribed in Section 3 of Act No. 3135, as amended by Act 4118, with respect to the notice of sale of the foreclosed real properties in this case, we have no choice but to declare the auction sale as absolutely void in view of the fact that the highest bidder and purchaser in said auction sale was defendant-appellee bank. Consequently, the Certificate of Sale, the Final Deed of Sale and Affidavit of Consolidation are likewise of no legal efffect. (pp. 24-25, Rollo) Before we focus our attention on the subject of whether or not there was valid compliance in regard to the required publication, we shall briefly discuss the other observations of respondent court vis-a-vis herein private respondent's ascriptions raised with the appellate court when his suit for reconveyance was dismissed by the court of origin even as private respondent does not impugn the remarks of respondent court along this line. Although respondent court acknowledged that there was an ambiguity on the date of execution of the third promissory note (June 30, 1961) and the date of maturity thereof (October 28, 1958), it was nonetheless

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

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

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