Persons Cases

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 15401547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 16971701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 18431844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said

petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5 The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6791

March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. QUE PO LAY, defendant-appellant. Prudencio de Guzman for appellant. First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee. MONTEMAYOR, J.: Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs. The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to the Central Bank through its agents within one day following the receipt of such foreign exchange as required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was not published in the Official Gazette prior to the act or omission imputed to the appellant, and that consequently, said circular had no force and effect. It is contended that Commonwealth Act. No., 638 and Act 2930 both require said circular to be published in the Official Gazette, it being an order or notice of general applicability. The Solicitor General answering this contention says that Commonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of said circular issued for the implementation of a law in order to have force and effect. We agree with the Solicitor General that the laws in question do not require the publication of the circulars, regulations and notices therein mentioned in order to become binding and effective. All that said two laws provide is that laws, resolutions, decisions of the Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In other words, said two Acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance of the different branches of the Government issuing same, and of the Bureau of Printing. However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall, in the absence of special provision, take effect at the beginning of the fifteenth day after the completion of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central Bank is not a statute or law but being issued for the implementation of the law authorizing its issuance, it has the force and effect of law according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of the Central Bank in question which prescribes a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties. Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws, (Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation, and that their promulgation shall be understood as made on the day of the termination of the publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws" include regulations and circulars issued in accordance with the same. He says: El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se comprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que muchas de sus disposiciones contienen la advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Español, Vol. I. p. 52). In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was not published until November 1951, that is, about 3 months after appellant's conviction of its violation. It is clear that said circular, particularly its penal provision, did not have any legal effect and bound no one until its publication in the Official Gazzette or after November 1951. In other words,

appellant could not be held liable for its violation, for it was not binding at the time he was found to have failed to sell the foreign exchange in his possession thereof. But the Solicitor General also contends that this question of non-publication of the Circular is being raised for the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, one may raise on appeal any question of law or fact that has been raised in the court below and which is within the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court). But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20 had not been published as required by law before its violation, then in the eyes of the law there was no such circular to be violated and consequently appellant committed no violation of the circular or committed any offense, and the trial court may be said to have had no jurisdiction. This question may be raised at any stage of the proceeding whether or not raised in the court below. In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with costs de oficio. Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 108461 October 21, 1996 PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner, vs. HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND FIRESTONE CERAMIC, INC., respondents.

TORRES, JR., J.:p The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z. Angeles, Presiding Judge of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-158 entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation. The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process, declared as null and void and unconstitutional, PITC's Administrative Order No. SOCPEC 89-08-01 and its appurtenant regulations. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and Intervenor and against the Respondent, as follows: 1) Enjoining the further implementation by the respondent of the following issuances relative to the applications for importation of products from the People's Republic of China, to wit: a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended Petition); b) Prescribed Export Undertaking Form (Annex B, Id.); c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.); d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order No. SOCPEC 89-08-01 (Annex D, Id.); e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of import applications (Annexes E, E-1., Ind.); f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export credits (Annex Z, Supplemental Petition), the foregoing being all null and void and unconstitutional; and, 2) Commanding respondent to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without the requirements prescribed in the above-mentioned issuances. IT IS SO ORDERED. The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01, 1under which, applications to the PITC for importation from the People's Republic of China (PROC, for brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC carried out by the improper himself or through a

tie-up with a legitimate importer in an amount equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio. Pertinent provisions of the questioned administrative order read: 3. COUNTERPART EXPORTS TO PROC In addition to existing requirements for the processing of import application for goods and commodities originating from PROC, it is declared that: 3.1 All applications covered by these rules must be accompanied by a viable and confirmed EXPORT PROGRAM of Philippine products to PROC in an amount equivalent to the value of the importation from PROC being applied for. Such export program must be carried out and completed within six (6) months from date of approval of the Import Application by PITC. PITC shall reject/deny any application for importation from PROC without the accompanying export program mentioned above. 3.2 The EXPORT PROGRAM may be carried out by any of the following: a. By the IMPORTER himself if he has the capabilities and facilities to carry out the export of Philippine products to PROC in his own name; or b. Through a tie-up between the IMPORTER and a legitimate exporter (of Philippine products) who is willing to carry out the export commitments of the IMPORTER under these rules. The tie-up shall not make the IMPORTER the exporter of the goods but shall merely ensure that the importation sought to be approved is matched one-toone (1:1) in value with a corresponding export of Philippine products to PROC. 2 3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper together with his Import Application are as follows: a) Firm Contract, Sales Invoice or Letter of Credit. b) Export Performance Guarantee (See Article 4 hereof). c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No. M-1006). This form should be used if IMPORTER has tie-up with an exporter for the export of Philippine Products to PROC. 4. EXPORT GUARANTEE To ensure that the export commitments of the IMPORTER are carried out in accordance with these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE GUARANTEE (the "Guarantee") at the time of filing of the Import Application. The amount of the guarantee shall be as follows: For essential commodities: 15% of the value of the imports applied for. For other commodities: 50% of the value of the imports applied for. 4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit; (ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic Letter of Credit (with all bank opening charges for account of Importer) opened in favor of PITC as beneficiary. 4.2 The guarantee shall be made in favor of PITC and will be automatically forfeited in favor of PITC, fully or partially, if the required export program is not completed by the importer within six (6) months from date of approval of the Import Application.

4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a (i) refund of the cash deposited without interest; (ii) cancellation of the Bank holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that he has completed the export commitment pertaining to his importation and provided further that the following documents are submitted to PITC: a) Final Sales Invoice b) Bill of lading or Airway bill c) Bank Certificate of Inward Remittance d) PITC EXPORT APPLICATION FOR NO. M-1005 5. MISCELLANEOUS 5.1 All other requirements for importations of goods and commodities from PROC must be complied with in addition to the above. 5.2 PITC shall have the right to disapprove any and all import applications not in accordance with the rules and regulations herein prescribed. 5.3 Should the IMPORTER or any of his duly authorized representatives make any false statements or fraudulent misrepresentations in the Import/Export Application, or falsify, forge or simulate any document required under these rules and regulations, PITC is authorized to reject all pending and future import/export applications of said IMPORTER and/or disqualify said IMPORTER from doing any business with SOCPEC through PITC. Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic corporations, organized and existing under Philippine laws, individually applied for authority to import from PROC with the petitioner. They were granted such authority after satisfying the requirements for importers, and after they executed respective undertakings to balance their importations from PROC with corresponding export of Philippine products to PROC. Private respondent Remington was allowed to import tools, machineries and other similar goods. Firestone, on the other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks, one of its products. Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the value of their importations, further import applications were withheld by petitioner PITC from private respondents, such that the latter were both barred from importing goods from PROC. 3 Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in the RTC Makati Branch 58. 4 The court issued a Temporary Restraining Order on January 21, 1992, ordering PITC to cease from exercising any power to process applications of goods from PROC. 5 Hearing on the application for writ of preliminary injunction ensued. Private respondent Firstone was allowed to intervene in the petition on July 2, 1992, 6 thus joining Remington in the latter's charges against PITC. It specifically asserts that the questioned Administrative Order is an undue restriction of trade, and hence, unconstitutional. Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be submitted for decision upon the evidence so far presented. The court rendered its Decision 7 on January 4, 1992. The court ruled that PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has already been repealed by EO No. 133, issued on February 27, 1987 by President Aquino. The court observed: Given such obliteration and/or withdrawal of what used to be PITC's regulatory authority under the Special provisions embodied in LOI 444 from the enumeration of power that it could exercise effective February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be successfully argued that the PITC can no longer exercise such specific regulatory power in question conformably with the legal precept "expresio unius est exclusio alterius."

Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact, makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the Congress of the Philippines by Section, 1, Article VII of the 1987 Philippine Constitution. The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer from serious constitutional infirmity, having been promulgated in pursuance of an international agreement (the Memorandum of Agreement between the Philippines and PROC), which has not been concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII, Section 21, of the 1987 Constitution, and therefore, null and void. Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1 and 19, Article XII of the 1987 Constitution, which reads: Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and, an expanding productivity as the key to raising the equality of life for all, especially the underprivileged. Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combination in restraint of trade or unfair competition shall be allowed. Lastly, the court declared the Administrative Order to be null and void, since the same was not published, contrary to Article 2 of the New Civil Code which provides, that: Art. 2. Laws shall take effect fifteen (15) days following the completion of their publication in the Official Gazette, unless the law otherwise provides. . . . Petitioner now comes to use on a Petition for Review on Certiorari, 8 questioning the court's decision particularly on the propriety of the lower court's declarations on the validity of Administrative Order No. 89-08-01. The Court directed the respondents to file their respective Comments. Subsequent events transpired, however, which affect to some extent, the submissions of the parties to the present petition. Following President Fidel V. Ramos' trip to Beijing, People's Republic of China (PROC), from April 25 to 30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President, through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and 92-03-08. 9 In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate Memorandum 10 instructing that all import applications for the PROC filed with the PITC as of April 20, 1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order. Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being required to comply anymore with the lifted requirement of balancing its imports with exports of Philippine products to PROC. 11 In its Constancia 12 filed with the Court on November 22, 1993, Remington expressed its desire to have the present action declared moot and academic considering the new supervening developments. For its part, respondent Firestone made a Manifestation 13 in lieu of its Memorandum, informing the court of the aforesaid developments of the new trade program of the Philippines with China, and prayed for the court's early resolution of the action. To support its submission that the present action is now moot and academic, respondent Remington cites Executive Order No. 244, 14 issued by President Ramos on May 12, 1995. The Executive Order states: WHEREAS, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing Republic of the Philippines-People's Republic China Trade through the Philippine International Trading Corporations as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order; The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the People's Republic of China from the list of countries covered by Letter of Instructions No. 444. Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and Ninety-Five. PITC filed its own Manifestation 15 on December 15, 1993, wherein it adopted the arguments raised in its Petition as its Memorandum. PITC disagrees with Remington on the latter's submission that the case has become moot and academic as a result of the abrogation of Administrative Order SOCPEC No. 89-08-01, since respondent Remington had incurred obligations to the petitioner consisting of charges for the 0.5% Counter Export Development Service provided by PITC to Remington, which obligations remain outstanding. 16 The propriety of such charges must still be resolved, petitioner argues, thereby maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by Executive fiat. There is no question that from April 20, 1993, when trading balancing measures with PROC were lifted by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and respondents are thus entitled anew to apply for authority to import from the PROC, without the trade balancing requirements previously imposed on proposed importers. Indeed, it appears that since the lifting of the trade balancing measures, Remington had been allowed to import anew from PROC. There remains, however, the matter of the outstanding obligations of the respondent for the charges relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the respondents freed from it? To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC 89-08-01, based on the arguments set up by the parties in their Petition and Comment. In so doing, we must inquire into the nature of the functions of the PITC, in the light of present realities. The PITC is a government owned or controlled corporation created under P.D. No. 252 17 dated August 6, 1973. P.D. No. 1071, 18 issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes and powers of the said governmental entity were enumerated under Section 5 and 6 thereof. 19 On August 9, 1976, the late President Ferdinand Marcos issued Letter of Instruction (LOI) No. 444, 20directing, inter alia, that trade (export or import of all commodities), whether direct or indirect, between the Philippines and any of the Socialist and other Centrally Planned Economy Countries (SOCPEC), including the People's Republic of China (PROC) shall be undertaken or coursed through the PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under its instructions; and, 3) undertake the processing and approval of all applications for export to or import from the SOCPEC. Pertinent provisions of the Letter of Instruction are herein reproduced: LETTER OF INSTRUCTION 444 xxx xxx xxx II. CHANNELS OF TRADE 1. The trade, direct or indirect, between the Philippines and any of the Socialist and other centrally-planned economy countries shall upon issuance hereof, be undertaken by or coursed through the Philippine International Trading Corporation. This shall apply to the export and import of all commodities of products including those specified for export or import by expressly authorized government agencies. xxx xxx xxx 4. The Philippine International Trading Corporation shall participate in all official trade and economic discussions between the Philippines and other centrally-planned economy countries. xxx xxx xxx

V. SPECIAL PROVISIONS The Philippine International Trading Corporation shall adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under these instructions.In this connection, the processing and approval of applications for export to or import from the Socialist and other centrally-planned economy countries shall, henceforth, be performed by the said Corporation. (Emphasis ours) After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino promulgated Executive Order (EO) No. 133 21 reorganizing the Department of Trade and Industry (DTI) empowering the said department to be the "primary coordinative, promotive, facilitative and regulatory arm of the government for the country's trade, industry and investment activities" (Sec. 2, EO 133). The PITC was made one of DTI's line agencies. 22 The Executive Order reads in part: EXECUTIVE ORDER NO. 133 xxx xxx xxx Sec. 16. Line Corporate Agencies and Government Entities. The following line corporate agencies and government entities defined in Section 9 (c) of this Executive Order that will perform their specific regulatory functions, particularly developmental responsibilities and specialized business activities in a manner consonant with the Department mandate, objectives, policies, plans and programs: xxx xxx xxx d) Philippine International Trading Corporation. — This corporation, which shall be supervised by the Undersecretary for International Trade, shall only engage in both export and trading on new or non-traditional products and markets not normally pursued by the private business sector; provide a wide range of export oriented auxiliary services to the private sector; arrange for or establish comprehensive system and physical facilities for handling the collection, processing, and distribution of cargoes and other commodities; monitor or coordinate risk insurance services for existing institutions; promote and organize, whenever warranted, production enterprises and industrial establishments and collaborate or associate in joint venture with any person, association, company or entity, whether domestic or foreign, in the fields of production, marketing, procurement, and other relate businesses; and provide technical advisory, investigatory, consultancy and management services with respect to any and all of the functions, activities, and operations of the corporation. Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and PROC entered into a Memorandum of Understanding 23 (MOU) wherein the two countries agreed to make joint efforts within the next five years to expand bilateral trade to US $600 — US $800 Million by 1992, and to strive for a steady progress towards achieving a balance between the value of their imports and exports during the period, agreeing for the purpose that upon the signing of the Memorandum, both sides shall undertake to establish the necessary steps and procedures to be adopted within the framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and ensure the implementation of the MOU. Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989, 1990 and 1991, 24 under which was specified the commodities to be traded between them. The protocols affirmed their agreement to jointly endeavor between them. The protocols affirmed their agreement to jointly endeavor to achieve more or less a balance between the values of their imports and exports in their bilateral trade. It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols with PROC that PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01 25 on August 30, 1989 (amended in March, 1992). Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of LOI 444, which was issued by then President Marcos, both issuances being executive directives. As observed by us in Philippine Association of Services Exporters, Inc. vs. Torres, 26 there is no need for legislative delegation of power to the President to revoke the Letter of Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI 1190 was issued by President Marcos, when he was extraordinarily empowered to exercise legislative powers, whereas EO 450 was issued by Pres.

Aquino when her transitional legislative powers have already ceased, since it was found that LOI 1190 was a mere administrative directive, hence, may be repealed, altered, or modified by EO 450. We do not agree, however, with the trial court's ruling PITC's authority to issue rules and regulations pursuant to the Special Provision of LOI 444 and P.D. No. 1071, have already been repealed by EO 133. While PITC's power to engage in commercial import and export activities is expressly recognized and allowed under Section 16 (d) of EO 133, the same is not limited only to new or non-traditional products and markets not normally pursued by the private business sector. There is not indication in the law of the removal of the powers of the PITC to exercise its regulatory functions in the area of importations from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded, is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the PITC. Likewise, the general repealing clause in EO 133 stating that "all laws, ordinances, rules, and regulations, or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between the issuances, relating to the regulatory power of the PITC. The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI was established, and was given powers and duties including those previously held by the PITC as an independent government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI as an implementing arm of the said department. EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of government for the country's trade, industry and investment activities, which shall act as a catalyst for intensified private sector activity in order to accelerate and sustain economic growth. 27 In furtherance of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities of the government related to trade industry and investments; to formulate and administer policies and guidelines for the investment priorities plan and the delivery of investment incentives; to formulate country and product export strategies which will guide the export promotion and development thrusts of the government. 28 Corollarily, the Secretary of Trade and Industry is given the power to promulgate rules and regulations necessary to carry out the department's objectives, policies, plans, programs and projects. The PITC, on the other hand, was attached as an integral part to the said department as one of its line agencies, 29 and given the focal task of implementing the department's programs. 30 The absence of the regulatory power formerly enshrined in the Special Provision of LOI 444, from Section 16 of EO 133, and the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC has lost the authority to issue the questioned Administrative Order. It is our view that PITC still holds such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the Department of Trade and Industry. Furthermore, the lower court's ruling to the effect that the PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of the later presidential edict. The President could not have intended to deprive herself of the power to regulate the flow of trade between the Philippines and PROC under the two countries' Memorandum of Understanding, a power which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President intended merely to reorganize the Department of Trade and Industry to cope with the need of a streamlined bureaucracy. 31 Thus, there is not real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the administrative functions among the administrative bodies affective by the edict, but not an abolition of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a construction of a statutory provision which harmonizes and reconciles it with other statutory provisions. 32 The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since the law may be cumulative or a continuation of the old one. 33 Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal within the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government. 34 Evidently, in the exercise of such powers, the agency concerned must commonly interpret and apply contracts and determine the rights of private parties under such contracts. One thrust of the multiplication of administrative agencies is that the interpretation of contracts and the determination of private rights thereunder is no longer uniquely judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs.

National Housing Authority, G.R. No. L-50444, August 31, 1987, 153 SCRA 399). With global trade and business becoming more intricate may even with new discoveries in technology and electronics notwithstanding, the time has come to grapple with legislations and even judicial decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign governments or entities may have interests. Thus, administrative policies and regulations must be devised to suit these changing business needs in a faster rate than to resort to traditional acts of the legislature. This tendency finds support in a well-stated work on the subject, viz.: Since legislatures had neither the time nor the knowledge to create detailed rules, however, it was soon clear that new governmental arrangements would be needed to handle the job of rule-making. The courts, moreover, many of them already congested, would have been swamped if they had to adjudicate all the controversies that the new legislation was bound to create; and the judges, already obliged to handle a great diversity of cases, would have been hard pressed to acquire the knowledge they needed to deal intelligently with all the new types of controversy. So the need to "create a large number of specialized administrative agencies and to give them broader powers than administrators had traditionally exercised. These included the power to issue regulations having the force of law, and the power to hear and decide cases — powers that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce, Lawmaking by Administrative Agencies, p. 166) The respondents likewise argue that PITC is not empowered to issue the Administrative Order because no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols aforesaid, are only the enumeration of the products and goods which signatory countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested in the Executive Department, 35 and it is for the latter to delegate the exercise of such power among its designated agencies. In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power ancillary to legislation. This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importation, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Art. 2. Laws shall take effect fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. . . . The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This court, in Tanada vs. Tuvera 36 stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties xxx xxx xxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made subject to them, because Administrative Order 89-08-01 embodying the same was never published, as mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said Administrative Order were filed in the UP Law Center, and published in the National Administrative Register as required by the Administrative Code of 1987. Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the People's Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing RP-PROC trade through the PITC as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade. 37 Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade relations with our neighbors to flourish and may be encouraged. ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS: 1) Enjoining the petitioner: a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the total value of the unliquidated or unfulfilled Undertakings of the private respondents; b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its appurtenant rules; and, 2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the requirements prescribed in the above-stated issuances. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 80718 January 29, 1988 FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents. RESOLUTION

CORTES, J.: This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time. At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212) Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the nonpublication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case. WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-65894 September 24, 1987 THE MUNICIPAL GOVERNMENT OF CORON, PALAWAN, duly represented by MAYOR RICARDO F. LIM,petitioner, vs. JOSE CARINO, VICTORIANO DACULLA, BEN GUMASING, LUCENA CRUZ, HILARIA YALON, PEPITO YAMBAO, RIC GACUTAN, ANDRES DACULLA, FELICISIMA URSAIS, PASTOR JOSOL, TEDDY ACTANG, CANDIDA MANALO, LETICIA RAMAL, ASSOCIATE JUSTICES PORFIRIO V. SISON, ABDULWAHID A. BIDIN, MARCELINO R. VELOSO and DESIDERIO P. JURADO, respondents.

GUTIERREZ, JR., J.: The second paragraph of Section 39, Batas Pambansa Bilang 129 provides that: No record on appeal shall be required to take an appeal. In lieu thereof, the entire original record shall be transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof. Likewise, Sections 18 and 19(b) of the Interim Rules of Court promulgated on January 11, 1983 provide that: Sec. 18. The filing of a record on appeal shall be dispensed with, except in the cases referred to in subparagraph (b) of paragraph (1) hereof. No appeal bond shall be required for an appeal. xxx xxx xxx Sec. 19 (b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required. Whether or not the above provisions are applicable to the case at bar is the lone issue in this petition which assails the resolution of the respondent appellate court dated July 29, 1983. The dispositive part of the questioned resolution reads: WHEREFORE, notwithstanding the foregoing, in the broader interest of justice and considering that under the present Interim Rules a record on appeal is no longer necessary for taking an appeal, the Court resolved to order the recall of the records of this case from the Regional Trial Court of Palawan Branch I, Puerto Princess for further proceedings before this Court. (Rollo, pp. 12-13) Following are the pertinent facts of the case as culled from the records. Sometime in 1976, an action was filed by the petitioner before the Court of First Instance of Palawan and Puerto Princess City, Branch IV where it was docketed as Civil Case No. 35. The action sought authority from the court to demolish the structures built by the private respondents alongside the rock causeway of the petitioner's wharf. The complaint alleged, among others: that the defendants' houses were constructed more than 3 years before the filing of instant action (par. 2, Complaint),: that on August 19, 1974 the herein defendants undertook to remove their structures on space where they were then at that time and are presently standing, when it will be needed by the government (par. 3, Ibid); that the space or area is needed by the plaintiff for the docking or berthing of pumpboats (motorized bancas) and fishing boats and for the loading and unloading of cargoes along the pier on both sides thereof (par. 4, Ibid); and also to ease the congested traffic along it (par. 10, Ibid); that his Excellency, President Ferdinand E. Marcos had the Mayor of plaintiff-municipality to demolish and remove all constructions along the

pier after giving the defendants one month notice (par. 5, Ibid) and aside from this directive of the President, the mayor of the plaintiff-municipality is also authorized to remove the defendants' illegal constructions under LOI 19 (par. 7, Ibid); that despite said mayor's desire to comply immediately with the said presidential directive, the defendants had already been given 3 extensions thereby delaying their ejectment therefrom (par. 6, Ibid); that most of the defendants are affluent squatters (par. 9, Ibid); and that for the indigent defendants, a surveyed area has already been made ready for their relocation (par. 12, Ibid). (Decision CFI, Palawan and Puerto Princess City, Branch IV, p. 2; Reno, p. 15). On the other hand, the private respondents, in their answer, counter-alleged, among others: that their structures when made were covered by building permits with the approval of the Bureau of Public Highways (par, 2, Answer); that the area where their structures were located is a foreshore area (Par. 4, Ibid); that a meeting was convened and presided by Governor Socrates at Coron, the same having been attended by the local representatives of the Philippine Constabulary, the Philippine Coast Guard, the Department (now Ministry) of Social Services and Development, the Sangguniang Bayan and the defendants and it was agreed in this meeting that the demolition of the defendants' houses will be suspended pending action of the Office of the President (par. 15, 16, 17, Ibid); and that the Chairman of the National Housing Authority had sent a letteradvice to the mayor of the plaintiff-municipality to suspend the demolition of the houses of the defendants (par. 18, Ibid). (Rollo, pp. 15-16) After a series of postponements, the trial court, on January 16, 1979, reset the hearing of the case for the last time for three consecutive dates, March 20, 21, and 22, 1979 with further warning to the private respondents that no more postponements shall be allowed. On March 20, 1979, despite proper notice, the private respondents and their counsel failed to appear at the scheduled hearing. Consequently, the petitioner moved that private respondents' non-appearance be considered as a waiver on their part of their right to cross-examine the petitioner's witnesses and their right to present evidence. The lower court issued an order granting the petitioner's motion and considered the case submitted for decision. In view of the above order, the private respondents went to the appellate court on certiorari. On June 9, 1979, the appellate court dismissed for lack of merit CA G.R. SP-09389-R captioned "Jose Carino, et al., petitioners v. Mayor Ricardo Lim and Hon. Benjamin Vega, Judge CFI, Palawan, Branch IV." On May 15, 1979, after the main case had been submitted for decision as aforestated, the private respondents filed a notice to take deposition which the lower court disregarded for being "irrelevant and for other obvious reasons." On October 10, 1980, the lower court rendered its decision, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff-municipality of Coron, Palawan and against all the herein defendants as follows: 1. Dismissing the defendants'counterclaim for lack of merit; 2. Confirming the power of plaintiff-municipality and authority of its incumbent mayor to demolish the defendants' structures along the rock causeway or pier of Coron; and 3. Ordering the said defendants to remove their structures in the area in question within thirty (30) days from receipt of this decision and for their failure to do so, authorizing the herein plaintiff represented by its incumbent mayor to demolish the said structures at the expense of the said defendants. Costs against all the defendants. (Rollo, pp. 28-29) On appeal, the private respondents on February 2, 1982 were required "to submit the forty (40) printed copies of their record on appeal together with the proof of service of fifteen (15) copies thereof upon the appellee" within fifteen (15) days from receipt of the notice of the appellate court's Acting Clerk of Court regarding their appeal. (Rollo, p. 32) Upon motion by the private respondents, the appellate court granted an extension of sixty (60) days from April 7, 1982 within which the required printed copies of the record on appeal may be submitted. However, despite the extended period given, the private respondents were not able to comply with the appellate court's requirement. In a resolution dated July 19, 1982, the appellate court required the private respondents to show cause why their appeal should not be dismissed for failure to file the printed copies of the record on appeal.

On August 31, 1982, the appellate court resolved to dismiss the private respondents' appeal docketed as CA G.R. No. 69052-R for failure to file the required record on appeal. On December 6, 1982, the Acting Clerk of Court of the appellate court, in an Entry of Judgment, certified that the above resolution dismissing the private respondents' appeal had become final and executory on September 27, 1982. Accordingly, on February 1, 1983, a writ of execution was issued to enforce the October 10, 1980 decision of the Court of First Instance of Palawan and Puerto Princesa City, Branch IV. Before the Provincial Sheriff could proceed with the execution of the judgment, the private respondents, in a motion dated April 12, 1983 asked the appellate court that the records of the case be recalled from the court of origin. In their supplemental motion, the private respondents argued that since under the present law, printed records on appeal are no longer required, their right to be heard on appeal must be upheld instead of the rule on technicalities. In its opposition to the private respondents' motion, the Petitioner pointed out that although the newly promulgated procedural rules invoked by the private respondents may be given retroactive effect, their applicability only covers pending actions and does not extend to those which had already become final and executory. As a consequence of the private respondents' motion to recall the records of the case, a temporary restraining order dated April 29, 1983 was issued by the appellate court directing the Provincial Sheriff of Palawan to desist from executing the October 10, 1980 decision. On July 29, 1983, the appellate court issued the disputed resolution. The subsequent denial of the petitioner's motion for reconsideration prompted the filing of this petition. The petitioner maintains that the Interim Rules of Court promulgated on January 11, 1983 to implement the provisions of Batas Pambansa Bilang 29 cannot apply to the case at bar for the simple reason that to revive or recall appealed cases which had been dismissed or which had become final and executory would cause a great injustice to those in whose favor these cases had been decided. It is further contended that to allow its application would put no end to those appealed cases which are otherwise considered as closed ones. We find merit in the petitioner's contentions. We have resolved the issue as to the extent of the retroactive application of section 18 of the Interim Rules of Court in Alday v. Camilon (120 SCRA 521). We reiterated the rule that: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent. (People vs. Sumilang, 77 Phil. 764 [1946]) Emphasis supplied. The appellate court should have followed this time-honoured rule instead of issuing its July 29, 1983 resolution seeking to revive a case already long final as evidenced by the entry of judgment made by its Acting Clerk of Court on December 6, 1982. The records of the instant case show that despite the 60-day extension period given to the private respondents within which they could file their printed record of appeal as then required, they still failed to do so. It was only after a writ of execution had been issued on February 1, 1983 that the private respondents responded to the appellate court's resolution dated July 19, 1982 requiring them to show cause why their appeal should not be dismissed for failure to file the printed record on appeal. They claimed that the court's resolution must have been a result of oversight because they actually filed a record on appeal. As a general rule, our policy towards an invocation of the right to appeal has been one of liberality. (Castro vs. Court of Appeals, 123 SCRA 782 citing De Las Alas vs. Court of Appeals, 83 SCRA 200). This is so because an appeal is an essential part of our judicial system and every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause freed from the constraints of technicalities. (See Siguenza vs. Court of Appeals, 137 SCRA 570). However, it is an equally established doctrine that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. (See United CMC Textile Workers Union vs. Clave, 137 SCRA 346). For a proper exercise of their right to appeal, the private respondents should have complied with Section 5, Rule 46 of the Rules of Court, as amended by our resolution en banc dated September 17, 1974, which partly provides that: Sec. 5. Duty of Appellant upon Receipt of Notice. — It shall be the duty of the appellant, within fifteen (15) days from the date of the notice referred to in the preceding section, to pay to the Clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court twelve (12)

printed copies of the record on appeal, or twelve (12) typewritten or mimeographed (on one side of good quality paper, eleven inches in length by eight and a half inches in width — commonly known as letter size — written double spaced) copies of said record on appeal together with proof of service of two (2) printed, typewritten or mimeographed copies thereof upon the appellee. Thus, upon failure of the appellant to comply with the above rule, the Court of Appeals may dismiss his appeal. Said provision implicitly grants the Court of Appeals the power to do so. (See Pfleider vs. Victoriano, 98 SCRA 491). The private respondents in this case did not submit printed copies of their record on appeal. When the appellate court issued its July 19, 1982 resolution, it was to afford the private respondents a chance to explain why they failed to comply with the applicable rule. After having failed to submit the required printed copies of their record on appeal, they cannot now rectify a clear non-compliance with the law by invoking the court's liberality insofar as the application of remedial laws is concerned. The private respondents even faulted the appellate court as having issued the July 19, 1982 resolution through oversight. They alleged that they had filed the required record on appeal when in fact what they referred to was the record on appeal from the lower court to the appellate court and not the printed record on appeal. Since the private respondents failed to submit the required printed record on appeal, the lower court's judgment in favor of the petitioner became final. and executory as an eventual result of the dismissal of the appeal. Once a judgment becomes final the prevailing party, the petitioner in the instant case, is entitled as a matter of right to the execution of the judgment in his favor. For the court, it becomes its ministerial duty to order the execution of said judgment. (Santos, Jr. vs. Court of Appeals, et al., G.R. No. 56614, promulgated July 28, 1987 citing Agricultural and Industrial Marketing, Inc. vs. Court of Appeals, 118 SCRA 49; Balintawak Construction Supply Corporation vs. Valenzuela, 124 SCRA 331; Rizal Commercial Banking Corporation vs. Dayrit, 123 SCRA 203; Gonzales vs. Sayo, 122 SCRA 607). WHEREFORE, the petition is hereby GRANTED. The resolution of respondent appellate court dated July 29, 1983 is SET ASIDE. Let the records of this case be remanded to the court of origin for enforcement of the writ of execution of the judgment. This decision is immediately executory. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 97973 January 27, 1992 SPOUSES GAUVAIN and BERNARDITA BENZONAN, petitioners, vs. COURT OF APPEALS, BENITO SALVANI PE and DEVELOPMENT BANK OF THE PHILIPPINES, respondents. G.R. No. 97998 January 27, 1992 DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and BENITO SALVANI PE, respondents. Ruben E. Agpalo for Sps. Gauvain and Bernardita Benzonan. Vicente R. Acsay for Benito Salvani Pe. Thomas T. Jacobo for DBP.

GUTIERREZ, JR., J.: This is a petition to review the August 31, 1990 decision of the Court of Appeals which sustained the right of respondent Benito Salvani Pe to repurchase a parcel of land foreclosed by petitioner Development Bank of the Philippines (DBP) and sold to petitioners Gauvain and Bernardita Benzonan. Respondent Pe is a businessman in General Santos City who owns extensive commercial and agricultural properties. He is the proprietor of the firm "Dadiangas B.P. Trading." One of the properties he acquired through free patents and miscellaneous sales from the Bureau of Lands is a 26,064 square meters parcel covered by Free Patent No. 46128 issued on October 29, 1969. OCT No. P-2404 was issued on November 24, 1969. On February 24, 1970 or barely three months after he acquired the land, the respondent mortgaged the lot in question, together with another lot covered by TCT No. 3614 and some chattels to secure a commercial loan of P978,920.00 from the DBP. The lot was developed into a commercial-industrial complex with ricemill and warehouse facilities, a solar drier, an office and residential building, roadway, garden, depository, and dumping grounds for various materials. When the private respondent failed to pay his loan after more than seven years had passed, DBP foreclosed the mortgage on June 28, 1977. On that date, the total obligation amounted to P1,114,913.34. DBP was the highest bidder. Certificates of sale were issued in its favor; P452,995.00 was for the two lots and P108,450.00 for the chattels. The certificate covering the disputed lot was registered with the Registry of Deeds on January 24, 1978. After the foreclosure sale, respondent Pe leased the lot and its improvements from DBP for P1,500.00 a month. Part of the property was also leased by DBP to the then National Grains Authority. The respondent failed to redeem the property within the one year period. On September 24, 1979 DBP sold the lot to the petitioner for P1,650,000.00 payable in quarterly amortizations over a five year period. The petitioners occupied the purchased lot and introduced further improvements worth P970,000.00. On July 12, 1983, claiming that he was acting within the legal period given to him to repurchase, respondent Pe offered in writing to repurchase the lot for P327,995.00. DBP countered, however, that over the years a total of P3,056,739.52 had already been incurred in the preservation, maintenance, and introduction of improvements.

On October 4, 1983, Pe filed a complaint for repurchase under Section 119 of Commonwealth Act No. 141 with the Regional Trial Court (RTC) of General Santos City. On November 27, 1986, the trial court rendered judgment. The dispositive portion reads: WHEREFORE, in view of the foregoing, the defendant Development Bank of the Philippines is ordered: 1) to reconvey unto the plaintiff the parcel of land in question (Lot No. P-2404) for the repurchase price of P327,995.00 plus legal interest from June 18, 1977 to June 19, 1978 only, and the expenses of extrajudicial foreclosure of mortgage; expenses for registration and ten percent (10%) attorneys fees; 2) ordering the defendants to vacate forever the premises of said property in favor of the plaintiff upon payment of the total repurchase price; 3) ordering the defendants, jointly and solidarily, to pay the plaintiff attorney's fees in the amount of P25,000.00; 4) and to set an example to government banking and lending institutions not to take borrowers for granted by making it hard for them to repurchase by misleading them, the bank is hereby ordered to pay the plaintiff by way of exemplary damages in the amount of P50,000.00; Ordering further the defendant DBP: 5) to reimburse the co-defendants spouses Benzonan the amount they have paid or advanced the defendant DBP for the purchase of Lot O.C.T. No. P-2404; 6) ordering the defendants to pay the cost of suit. (Rollo of G.R. No. 97973, pp. 74-75) On appeal, the Court of Appeals affirmed the decision with modifications as follows: xxx xxx xxx All the foregoing premises considered, judgment is hereby rendered AFFIRMING the decision rendered by the court a quo with the modification that the defendant DBP shall reimburse to its co-defendant Benzonan spouses all amounts that the latter have paid for the land, minus interest, and that the Benzonan spouses shall be allowed to remove the improvement that they have made on the property under litigation, without impairing or damaging the same. (Rollo of G.R. No. 97973, p. 105) A motion for reconsideration was denied on March 19, 1991. The petitioners-spouses in G.R. No. 97973 raise the following "legal issues, reasons, or errors" allegedly committed by the Court of Appeals, to wit: 1. The Court of Appeals erred in holding that conversion and use of the land in question to industrial or commercial purposes, as a result of which it could no longer be used for cultivation, and the fact that respondent Pe has vast holdings whose motive in seeking to repurchase the property is to continue the business or for speculation or greater profits did not deprive him of the right to repurchase under Sec. 119 of CA 141, and, as a result, in ignoring or disregarding Pe's admissions and undisputed facts establishing such circumstances, contrary to what this Court held in Santana v.Mariñas, 94 SCRA 853 [1979], Vargas v. Court of Appeals, 91 SCRA 195 [1979] and Simeon v. Peña,36 SCRA 610 [1970]. 2. Assuming, arguendo, that respondent Pe still had the right to repurchase the land under Sec. 119 of CA 141, the Court of Appeals erred in not counting the 5-year period from the date of foreclosure sale on June 18, 1977 or at the very most from its registration on January 24, 1978, in accordance with the prevailing doctrinal law at the time as enunciated in Monge v. Angeles, 101 Phil. 561 [1957],Oliva v. Lamadrid, 21 SCRA 737 [1967] and Tupas v. Damasco, 132 SCRA 593 [1984], pursuant to which Pe's right to repurchase already expired. 3. The Court of Appeals erred in applying retroactively the ruling in Belisario v. Intermediate Appellate Court, 165 SCRA 101 [1988], which held that the 5-year period is counted from the date after the one-year period to redeem foreclosed homestead expired, to the foreclosure of the land in question in 1977, as its retroactive application revived Pe's lost right of repurchase and defeated petitioners' right of ownership that already accrued under the then prevailing doctrinal law.

4. Assuming, arguendo, that respondent Pe had the right to repurchase the land in question and assuming, further, that the 5-year period is to be counted from the consolidation of ownership after the expiration of the one-year period to redeem, the Court of Appeals erred in not holding that the mere filing of an action for repurchase without tendering or depositing the repurchase price did not satisfy the requirements of repurchase, Pe's failure to make the tender or deposit even up to the present being confirmatory of speculative motive behind his attempt to repurchase. 5. Assuming, finally, that respondent Pe is entitled to repurchase the property, the Court of Appeals erred in not holding that petitioners are possessors in good faith, similar to a vendee a retro, entitled (a) to reimbursement of necessary and useful expenses under Article 1616 of the Civil Code as held in Calagan v. CFI of Davao, 95 SCRA 498 [1980] and in Lee v. Court of Appeals, 68 SCRA 196 [1975]; and (b) to refund of all amounts paid by them by reason of the sale of the property in their favor, including interest payments, in both instances with right of retention. (Rollo of G.R. No. 97973, pp. 14-16) In G.R No. 97998, DBP limited its petition to the value of the repurchase price and the nature of the contract between the parties. It framed the issues as follows: 1. The Court of Appeals erred in not holding that Section 31 of Commonwealth Act No. 459 as amended is not applicable in the instant case to determine the repurchase price contrary to decisions of the Honorable Supreme Court in the following cases: DBP v. Jimenez, et al. (36 SCRA 426) andDBP v. Mirang (66 SCRA 141). 2. The Court of Appeals erred in not holding that the law between the contracting parties are the terms and conditions embodied in the contract signed by them. (Rollo of G.R. No. 97998, p. 12) We find merit in the petitions. The determination of the main issues raised by the petitioners calls for the proper application of Section 119 of CA 141 as amended which provides: "Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the date of conveyance." There is no dispute over the fact that the Government awarded the land to respondent Pe so that he could earn a living by farming the land. Did respondent Pe lose his right to repurchase the subject agricultural lot under the aforequoted law considering its conversion for industrial or commercial purposes? The evidence relating to the conversion is sufficiently established and yet was not properly appreciated by the respondent court. Only three months after getting the free patent and the original certificate of title over the subject lot, it was mortgaged by respondent Pe to get a commercial loan of nearly P1 million from DBP. Pe spent the proceeds of the loan to construct permanent improvements on the lot for his rice-mill and other businesses, i.e., two warehouse buildings; administration-residential building; perimeter fence; solar and concrete drier; shed; machine shop; dirty kitchen; and machineries and equipments such as ricemill (TSN, August 13, 1984, pp. 173-174). The entire lot has been converted to serve commercial and industrial purposes. The testimony of petitioners Gauvain Benzonan on this score has not been successfully challenged, viz: Q. Out of this 2.6 hectares land area, how much of this is devoted to the solar drier construction? A. The solar drier is about one thousand (1,000) square meters . . . ah no, about six thousand (6,000) square meters. Q. What about the area occupied by the warehouse and the ricemill complex? A. The warehouse and ricemill complex is occupying about one and a half (1 1/2) hectares. Q. What about the area occupied by the residence as well as the roadways? A. It covers about another half of a hectare again, Sir. Q. Is any part of this two point six hectares devoted to agricultural production or production of agricultural crops? A. None whatsoever because the other portion is occupied as a dumping area for our waste materials. (TSN, PP. 361-362, Sept. 3, 1985).

The conversion of the lot for commercial purposes is understandable considering that the heart of General Santos City developed in that area. The respondent does not deny that, he is using the land for purely commercial and industrial purposes. His explanation is that the land may be converted into agricultural land in the future. He applies the Krivenko v.Register of Deeds of Manila (79 Phil. 461 [1947]) ruling that lands not mineral or forest are agricultural in nature and may be devoted to business purposes without losing their agricultural classification. Indeed, the records show that it was never the intention of respondent Pe to utilize the land, given to him for free by the Government, for agricultural purposes. He was not the kind of poor farmer for whom homesteads and free patents were intended by the law. As stated by the petitioners: 1. Respondent Pe acquired by free patent the land in question with an area of 2.6064 hectares, which was issued Original Certificate of Title No. P-2404 on November 24, 1969. Instead of cultivating it for agricultural purposes, Pe mortgaged the land, along with another land, on February 24, 1970, or only three (3) months from issuance of OCT No. P-2404, with the DBP for P978,920.00. (par. 4, complaint, Annex "A"). Pe testified that his purpose was to construct in the land in question "bodega", an administration-residential building, a perimeter fence, a concrete drier, and for some machineries and equipment." (TSN, p. 95, June 22, 1984). He stated that the improvements and facilities in the land included "the warehouse, the ricemill and a big warehouse housing the palay of stocks of the National Grains Authority and an administration-residential building, a solar drier and a perimeter fence and some sheds or garage . . . a small piggery pen of several compartments, a dirty kitchen . . . a machine shop." (TSN, pp. 173-174, August 13, 1984). Pe used the property for such purposes and operated the ricemill business for a period of about nine (9) years until September, 1979 (pars. 7 and 8, complaint, Annex "A"), without paying the DBP of his mortgage indebtedness, as a result of which DBP foreclosed the properties. (Annex "F") 2. Respondent Pe testified that the land in question with its improvements has an appraised value of P1,347,860.00 in 1974, and P2,028,030.00 in 1976. (TSN, pp. 176, 177, August 13, 1984). Petitioner Gauvain Benzonan claimed it has a fair market value, as of 1985, of P5,000,000.00. (p. 8, trial court decision, Annex "F"). As against such value of the land and improvements, respondent Pe insisted that the repurchase price should only be the principal sum of P327,995.00. (par. 10, complaint, Annex "A") 3. Respondent Pe, when he testified in 1984, said he was 60 years old; he is now therefore over 66 years old. He is a "businessman and resident of Dadiangas, General Santos City" (TSN, p. 3, June 20, 1984), doing business under the style, "Dadiangas B.P. Trading" (TSN, 144, June 22, 1984). In his sworn declaration dated July 18, 1983, filed with the assessor's office pursuant to P.D. No. 1612, he listed the following real properties and their market value, all situated in General Santos City, to wit (Exh. 11-Benzonan): (a) 447 sq. m. residential P 28,720.00 (b) 11.9980 hectares of agri. lot P 23,880.00 (c) 2.000 hectares of agri. lot P 40,000.00 (d) 2.000 hectares of agri. lot P 40,000.00 (e) 6,064 sq. m. of industrial lot P303,200.00 (f) Industrial building P434,130.00 (g) Industrial machinery P 96,000.00 On June 22, 1984, when Pe testified, he said that "I own three (3) residential lots," (TSN, p. 153, June 22, 1984) and that he and his wife own in Antique Province "around twenty (20) hectares planted to coconut and sugarcane" (ibid., p. 145); he used to have 30 hectares of agricultural lands and 22 subdivision lots, which he sold to Norma Salvani and Carlos Salvani. (TSN, pp. 166-169, June 22, 1984); Exhs. 1, 1-A, 1-B, 1-C, 3, 6, 6-ABenzonan). (Rollo of G.R. No. 97973, pp. 17-19) In the light of the records of these cases, we rule that respondent Pe cannot repurchase the disputed property without doing violence to everything that CA No. 141 (as amended) stands for. We ruled in Simeon v. Peña, 36 SCRA 610, 617 [1970] through Chief Justice Claudio Teehankee, that: xxx xxx xxx These findings of fact of the Court of Appeals that "(E)vidently, the reconveyance sought by the plaintiff (petitioner) is not in accordance with the purpose of the law, that is, "to preserve and keep in the family of the

homesteader that portion of public land which the State has gratuitously given to him"" and expressly found by it to "find justification from the evidence of record. . . ." Under the circumstances, the Court is constrained to agree with the Court of Appeals that petitioners' proposed repurchase of the property does not fall within the purpose, spirit and meaning of section 119 of the Public Land Act, authorizing redemption of the homestead from any vendee thereof. We reiterated this ruling in Vargas v. Court of Tax Appeals, 91 SCRA 195, 200, [1979] viz: As regards the case of Simeon v. Peña, petitioners ought to know that petitioner therein was not allowed to repurchase because the lower court found that his purpose was only speculative and for profit. In the present case, the Court of Appeals found that herein petitioners' purposes and motives are also speculative and for profit. It might be well to note that the underlying principle of Section 119 of Commonwealth Act No. 141 is to give the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given to him as a reward for his labor in cleaning and cultivating it. (Simeon v. Peña, 36 SCRA 617). As found by the Court of Appeals, the motive of the petitioners in repurchasing the lots in question being one for speculation and profit, the same therefore does not fall within the purpose, spirit and meaning of said section. and in Santana et al. v. Mariñas, 94 SCRA 853, 861-862 [1979] to wit: In Simeon v. Peña we analyzed the various cases previously decided, and arrived at the conclusion that the plain intent, the raison d' etre, of Section 119, C.A. No. 141 ". . . is to give the homesteader or patentee every chance to preserve for himself and his family the land that the state had gratuitously given to him as a reward for his labor in cleaning and cultivating it." In the same breath, we agreed with the trial court, in that case, that "it is in this sense that the provision of law in question becomes unqualified and unconditional. And in keeping with such reasons behind the passage of the law, its basic objective is to promote public policy, that is, to provide home and decent living for destitutes, aimed at promoting a class of independent small landholders which is the bulwark of peace and order. As it was in Simeon v. Peña, respondent Mariñas' intention in exercising the right of repurchase "is not for the purpose of preserving the same within the family fold," but "to dispose of it again for greater profit in violation of the law's policy and spirit." The foregoing conclusions are supported by the trial court's findings of fact already cited, culled from evidence adduced. Thus respondent Mariñas was 71 years old and a widower at the time of the sale in 1956; that he was 78 when he testified on October 24, 1963 (or over 94 years old today if still alive); that . . . he was not living on the property when he sold the same but was residing in the poblacion attending to a hardware store, and that the property was no longer agricultural at the time of the sale, but was a residential and commercial lot in the midst of many subdivisions. The profit motivation behind the effort to repurchase was conclusively shown when the then plaintiff's counsel, in the case below, Atty. Loreto Castillo, in his presence, suggested to herein petitioners' counsel, Atty. Rafael Dinglasan ". . . to just add to the original price so the case would be settled." Moreover, Atty. Castillo manifested in court that an amicable settlement was possible, for which reason he asked for time "within which to settle the terms thereof'" and that "the plaintiff . . . Mr. Mariñas, has manifested to the Court that if the defendants would be willing to pay the sum of One Peso and Fifty Centavos (P1.50) per square meter, he would be willing to accept the offer and dismiss the case." Our decisions were disregarded by the respondent court which chose to adopt a Court of Appeals ruling in Lim, et al. v. Cruz, et al., CA-G.R. No. 67422, November 25, 1983 that the motives of the homesteader in repurchasing the land are inconsequential" and that it does not matter even "when the obvious purpose is for selfish gain or personal aggrandizement." The other major issue is when to count the five-year period for the repurchase by respondent Pe — whether from the date of the foreclosure sale or from the expiration of the one year period to redeem the foreclosed property. The respondent court ruled that the period of repurchase should be counted from the expiration of the one year period to redeem the foreclosed property. Since the one year period to redeem expired on January 24, 1979 and he filed Case No. 280 on October 4, 1983 to enforce his right to repurchase the disputed property, the Court of Appeals held that Pe exercised his right to repurchase within the five-year period provided by Section 119 of CA 141 as amended. The respondent court cited Belisario, et al., v. Intermediate Appellate Court, et al., 165 SCRA 101, 107 [1988] where we held: . . . In addition, Section 119 of Commonwealth Act 141 provides that every conveyance of land acquired under the free patent or homestead patent provisions of the Public Land Act, when proper, shall be subject to repurchase by the applicant, his widow or legal heirs within the period of five years from the date of

conveyance. The five-year period of redemption fixed in Section 119 of the Public Land Law of homestead sold at extrajudicial foreclosure begins to run from the day after the expiration of the one-year period of repurchase allowed in an extrajudicial foreclosure. (Manuel v. PNB, et al., 101 Phil. 968) Hence, petitioners still had five (5) years from July 22, 1972 (the expiration of the redemption period under Act 3135) within which to exercise their right to repurchase under the Public Land Act. As noted by the respondent court, the 1988 case of Belisario reversed the previous rulings of this Court enunciated in Monge, et al., v. Angeles, et al., 101 Phil. 563 [1957] and Tupas v. Damasco, et al., 132 SCRA 593 [1984] to the effect that the five year period of repurchase should be counted from the date of conveyance or foreclosure sale. The petitioners, however, urge that Belisario should only be applied prospectively or after 1988 since it established a new doctrine. We sustain the petitioners' position. It is undisputed that the subject lot was mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners on September 29, 1979. At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated inMonge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]). The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof." There may be special cases where weighty considerations of equity and social justice will warrant a retroactive application of doctrine to temper the harshness of statutory law as it applies to poor farmers or their widows and orphans. In the present petitions, however, we find no such equitable considerations. Not only did the private respondent apply for free agricultural land when he did not need it and he had no intentions of applying it to the noble purposes behind the law, he would now repurchase for only P327,995.00, the property purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which, because of improvements and the appreciating value of land must be worth more than that amount now. The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas when they purchased the property from DBP in 1979 or thirteen (13) years ago. Under the rulings in these two cases, the period to repurchase the disputed lot given to respondent Pe expired on June 18, 1982. He failed to exercise his right. His lost right cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over the subject lot had already become vested as of that time and cannot be impaired by the retroactive application of the Belisarioruling. Considering our above findings, we find no need to resolve the other issues raised by the petitioners in their petitions. WHEREFORE, the questioned decision of the respondent court is hereby REVERSED and SET ASIDE. The complaint for repurchase under Section 119 of Commonwealth Act No. 141 as amended is DISMISSED. No pronouncement as to costs.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 100210 April 1, 1998 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN,respondents.

MARTINEZ, J.: Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling that Subversion is the "main offense" in a charge of Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under P.D. No. 1866, as amended, and that, therefore, the said charge should be quashed in view of a previous charge of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending in another court? Stated differently, is the accused charged with the same offense in both cases, which would justify the dismissal of the second charge on the ground of double jeopardy? This is the pith issue presented before us in this appeal by certiorari interposed by the People under Rule 45 of the Revised Rules of Court, seeking a review of the decision 1 of the Court of Appeals (Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents." The record discloses the following antecedent facts: As early as 1983, private respondent Antonio Tujan was charged with Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as amended, before the Regional Trial Court of Manila (Branch 45), National Capital Region, docketed as Criminal Case No. 64079. 2 As a consequence thereof, a warrant for his arrest was issued on July 29, 1983, 3 but it remained unserved as he could not be found. Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the basis of the warrant of arrest in the subversion case. 4 When arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live ammunition were found in his possession. 5 Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under Presidential Decree No. 1866, as amended, before the Regional Trial Court of Makati (Branch 148), docketed as Criminal Case No. 1789. The Information reads: That on or about the 5th day of June, 1990, in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a member of a communist party of the Philippines, and its front organization, did then and there willfully, unlawfully and feloniously have in his possession, control and custody, in furtherance of or incident to, or in connection with the crime of subversion, a special edition ARMSCOR PHILS. caliber .38 special revolver with Serial No. 1026387 and with six (6) live ammunitions, without first securing the necessary license or permit thereof from competent government authority. 6 The above Information recommended no bail for Antonio Tujan, which recommendation was approved by the trial court in an Order dated June 19, 1990. 7 The same order also directed the continued detention of Antonio Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while his case is pending. On June 26, 1990, Antonio Tujan, through counsel, filed a motion 8 invoking his right to a preliminary investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and praying that his arraignment be held in abeyance until the preliminary investigation is terminated.

However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary investigation, his counsel withdrew the motion since he would file a motion to quash the Information, for which reason counsel requested a period of twenty (20) days to do so. This was granted by the trial court on that same day. 9 On July 16, 1990, Antonio Tujan did file the motion to quash 10 the Information in Criminal Case No. 1789 on the ground that he "has been previously in jeopardy of being convicted of the offense charged" in Criminal Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch 45). The said ground is based on Sections 3 (h) and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends that "common crimes such as illegal possession of firearms and ammunition should actually be deemed absorbed in subversion," 11 citing the cases of Misolas vs. Panga, et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke the constitutional protection against double jeopardy." 12 The petitioner opposed 13 the motion to quash, arguing that Antonio Tujan does not stand in jeopardy of being convicted a second time because: (a) he has not even been arraigned in the subversion case, and (b) the offense charged against him in Criminal Case No. 64079 is for Subversion, punishable under Republic Act No. 1700; while the present case is for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion, punishable under a different law (Presidential Decree No. 1866). Moreover, petitioner contends that Antonio Tujan's reliance on the Misolas and Enrile cases "is misplaced." 14Tujan merely relies on the dissenting opinions in the Misolas case. Also, the Enrile case which involved a complex crime of rebellion with murder is inapplicable to the instant case which is not a complex offense. Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for application in the present case because (illegal) possession of firearm and ammunition is not a necessary means of committing the offense of subversion, nor is subversion a necessary means of committing the crime of illegal possession of firearm and ammunition." 15 The trial court, in an order dated October 12, 1990, granted the motion to quash the Information in Criminal Case No. 1789, the dispositive portion of the order reading: WHEREFORE, the motion to quash the information is hereby GRANTED, but only in so far as the accused may be placed in jeopardy or in danger of being convicted or acquitted of the crime of Subversion and as a consequence the Information is hereby quashed and the case dismissed without prejudice to the filing of Illegal Possession of Firearm. SO ORDERED. 16 It is best to quote the disquisition of the respondent court in quashing the information and dismissing the case: xxx xxx xxx In other words, the main offense the accused is being charged in this case is also Subversion considering that the alleged Illegal Possession of the Firearm and Ammunition is only in furtherance thereof. Now, subversion being a continuing offense as has been previously held by the Supreme Court, the fact that the accused has been previously charged of Subversion before another court before the institution of this instant case is just a continuing offense of his former charge or that his acts constituting subversion is a continuation of the acts he committed before. The court therefore cannot subscribe to the position taken by the prosecution that this case is very different from the other case and that double jeopardy will attach in this particular case. This court agrees with the position taken by the defense that double jeopardy will attach to the accusation of subversion, punishable now under Republic Act 1700, as Rule 117 of the Rules of Court particularly Section 1 thereof, provides: Time to move to quash — At anytime before entering his plea, the accused may move to quash the complaint or information.(la) In other words, there is no necessity that the accused should be arraigned first before he can move to quash the information. It is before he pleads which the accused did in this case. On the other submissions by the prosecution, that the possession of firearms and ammunitions is not a necessary means of committing the offense of subversion or vice versa, then if the court follows such argument, there could be no offense of Illegal Possession of Firearm and Ammunition in furtherance of Subversion, for even the prosecution admits also that in subversion which is an offense involving propaganda, counter propaganda, a battle of the hearts and mind of the people does not need the possession or use of firearms and ammunitions.

The prosecution even admits and to quote: The defense of double jeopardy. while unquestionably available to the accused, had not been clearly shown to be invokable(sic) at this point in time. But the rule says otherwise as previously stated as provided for under Section 1 of Rule 117 of the Rules of Court. Thus, if ever the accused is caught in possession of a firearm and ammunition which is separate and distinct from the crime of subversion and is not a necessary ingredient thereof and the court believed so, the prosecution will have to file another information as they may wish. The court therefore has to grant the motion to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering that the only offense to which the accused in this case may be placed in jeopardy is Subversion and not Illegal Possession of Firearms and Ammunitions. The prosecution may file any information as warranted within ten (10) days from receipt of this order otherwise the court will order the release of the accused, unless he is in custody for some other offense. 17(Emphasis ours) Petitioner's motion for reconsideration 18 was also denied in an order dated December 28, 1990. 19 The petitioner elevated the case to the Court of Appeals through a petition for certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate court found that the trial court did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in quashing the questioned Information. In dismissing the petition, the appellate court, in its decision dated May 27, 1991, basically reiterated the aforequoted ruling of the trial court. Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is not in accord with the law and applicable jurisprudence; and (2) it was deprived of due process to prosecute and prove its case against private respondent Antonio Tujan in Criminal Case No. 1789. We agree with the petitioner. The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866 filed against private respondent Antonio Tujan. It ruled: The foregoing information (for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion) filed before the Makati court shows that the main case is subversion considering that there is an allegation that the alleged illegal possession of firearms was made "in furtherance of or incident to, or in connection with the crime of subversion." Also, the information alleged likewise that the accused is a member of a communist party of the Philippines and its front organization. Basically, the information refers to the crime of Subversion qualified by Illegal Possession of Firearms. . . . 20 The ruling of the Court of Appeals is erroneous. Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal Case No. 1789 before the Regional Trial Court of Makati (Branch 148), provides as follows: Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty ofreclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearms, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. (Emphasis ours)

The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph of Section 1, themere possession of an unlicensed firearm or ammunition is the crime itself which carries the penalty of reclusion temporal in its maximum period to reclusion perpetua. The third paragraph of the same Section makes the use of said firearm and ammunition "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion" a circumstance to increase the penalty to death. Thus, the allegation in the Information in Criminal Case No. 1789 that the unlicensed firearm found in the possession of Antonio Tujan, "a member of the communist party of the Philippines and its front organization," was used "in furtherance of or incident to, or in connection with the crime of subversion" does not charge him with the separate and distinct crime of Subversion in the same Information, but simply describes the mode or manner by which the violation of Section 1 of P.D. No.1866 was committed 21 so as to qualify the penalty to death. There is, therefore, only one offense charged in the questioned information, that is, the illegal possession of firearm and ammunition, qualified by its being used in furtherance of subversion. 22 There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees categorically or by implication that the crimes of rebellion, insurrection or subversion are the very acts that are being penalized. This is clear from the title of the law itself which boldly indicates the specific acts penalized under it: CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. (Emphasis ours) On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch 45), is based on a different law, that is, Republic Act No. 1700, as amended. Section 3 thereof penalizes any person who "knowingly, willfully and by overt act affiliates with, becomes or remains a member of a subversive association or organization . . ." Section 4 of said law further penalizes "such member [of the Communist Party of the Philippines and/or its successor or of any subversive association] (who) takes up arms against the Government." Thus, in the present case, private respondent Antonio Tujan could be charged either under P.D. No. 1866 or R.A. No. 1700, 23 or both. This leads us to the issue of whether or not private respondent Antonio Tujan was placed in double jeopardy with the filing of the second Information for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion. We rule in the negative. Article III of the Constitution provides: Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis ours) Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court states: Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. xxx xxx xxx The right of an accused against double jeopardy is a matter which he may raise in a motion to quash to defeat a subsequent prosecution for the same offense. The pertinent provision of Rule 117 of the Revised Rules of Court provides: Sec. 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds: xxx xxx xxx (h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. (2a) (Emphasis ours)

In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must have obtained in the first criminal action: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; 24 and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. 25 Suffice it to say that in the present case, private respondent's motion to quash filed in the trial court did not actually raise the issue of double jeopardy simply because it had not arisen yet. It is noteworthy that the private respondent has not even been arraigned in the first criminal action for subversion. Besides, as earlier discussed, the two criminal charges against private respondent are not of the same offense as required by Section 21, Article III of the Constitution. It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in accordance with the law and jurisprudence and thus should be reversed. While we hold that both the subversion charge under R.A. No. 1700, as amended, and the one for illegal possession of firearm and ammunition in furtherance of subversion under P.D. No. 1866, as amended, can co-exist, the subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally repealing R.A. No. 1700, as amended, has substantially changed the complexion of the present case, inasmuch as the said repealing law being favorable to the accused-private respondent, who is not a habitual delinquent, should be given retroactive effect. 26 Although this legal effect of R.A. No. 7636 on private-respondent's case has never been raised as an issue by the parties — obviously because the said law came out only several months after the questioned decision of the Court of Appeals was promulgated and while the present petition is pending with this Court — we should nonetheless fulfill our duty as a court of justice by applying the law to whomsoever is benefited by it regardless of whether or not the accused or any party has sought the application of the beneficent provisions of the repealing law. 27 That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond question. The repeal by said law of R.A. No. 1700, as amended, was categorical, definite and absolute. There was no saving clause in the repeal. The legislative intent of totally abrogating the old anti-subversion law is clear. Thus, it would be illogical for the trial courts to try and sentence the accused-private respondent for an offense that no longer exists. 28 As early as 1935, we ruled in People vs. Tamayo: 29 There is no question that at common law and in America a much more favorable attitude towards the accused exists relative to statutes that have been repealed than has been adopted here. Our rule is more in conformity with the Spanish doctrine, but even in Spain, where the offense ceases to be criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours) Where, as here, the repeal of a penal law is total and absolute and the act with was penalized by a prior law ceases to be criminal under the new law, the previous offense is obliterated. 30 It is a recognized rule in this jurisdiction that a total repeal deprives the courts of jurisdiction to try, convict and sentence persons charged with violation of the old law prior to the repeal. 31 With the enactment of R.A. No. 7636, the charge of subversion against the accused-private respondent has no more legal basis and should be dismissed. As regards the other charge of illegal possession of firearm and ammunition, qualified by subversion, this charge should be amended to simple illegal possession of firearm and ammunition since, as earlier discussed, subversion is no longer a crime. Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable under Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as amended, by eliminating the provision in said P.D. that if the unlicensed firearm is used in furtherance of subversion, the penalty of death shall he imposed. 32 Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal possession of firearm (.38 caliber) is now reduced to prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00). 33 The reduced penalty of imprisonment — which is four (4) years, two (2) months and one (1) day to six (6) years — entitles the accused-private respondent to bail. Considering, however, that the accused-private respondent has been detained since his arrest on June 5, 1990 up to the present (as far as our record has shown), or more than seven (7) years now, his immediate release is in order. This is so because even if he were convicted for illegal possession of firearm and ammunition, the length of his detention while his case is pending has already exceeded the penalty prescribed by the new law. WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990 and December 28, 1990 of the Regional Trial Court of Makati (Branch 148), National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and SET ASIDE.

The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED. The other Information for illegal possession of firearm and ammunition in furtherance of subversion against the same accused in Criminal Case No. 1789 of the Regional Trial Court of Makati, Branch 148, is DEEMED AMENDED to Simple Illegal Possession of Firearm and Ammunition. The accused-appellant is hereby ordered RELEASED IMMEDIATELY from detention for the reason stated above, unless he is being detained for any other offense. This decision is IMMEDIATELY EXECUTORY. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5448 December 16, 1910 SEVERO AGUILLON, petitioner-appellee, vs. THE DIRECTOR OF LANDS, opponents-appellant. Attorney-General Villamor, for appellant. Silvino Lopez y de Jesus, for appellee.

JOHNSON, J.: On the 29th of July, 1908, Severo Aguillon, the petitioner, presented a petition in the Court of Land Registration for the registration of certain parcels of land described in the said petition. On the 14th of November, 1908, the Attorney-General, representing the Insular Government, opposed the registration of the parcels of land in question, upon the theory that the said land belonged to the Government. At the time of the trial of the cause the Director of Lands amended his opposition to the registration of the parcels of land in question, alleging that the plans presented by the petitioner had not been prepared in conformity with the provisions of sections 4 and 5 of Act No. 1875 of the Philippine Agriculture. Notwithstanding the opposition of the Director of Lands, the Court of Land Registration ordered the registration of the parcels of land in question. From that decision the Director of Lands appealed and assigned as error in this court that the lower court committed an error in admitting the plans Exhibits A and B, upon the ground that they had been prepared in conformity with the provisions of said Act No. 1875. The plans marked "Exhibits A and B" were made long before the presentation of the said petition for registration and were made by private surveyors who had not been authorized by the Director of Lands or the Governor-General to make surveys for the registration of property in the Land Court. Exhibit A was prepared and finished on the 10th of November, 1906, Exhibit B was prepared and finished upon the same day. Said Act No. 1875 took effect upon the 1st of July, 1908. The petition in the present case was presented upon the 29th of July, 1908. Said Act was, therefore, in effect at the time of the presentation of the petition. Section 4 of said Act is as follows: The surveyor who is employed to prepare surveys, maps, and plats of property shall give due notice in advance to the adjoining owners, whose addresses are known, of the date and hour when they shall present themselves on the property for the purpose of making such objections to the boundaries of the property to be surveyed as they consider necessary for the protection of their rights. The surveyor shall report all objections made to him by adjoining property owners at the time of the survey and demarcation, giving a proper description of the boundaries claimed by the protestant or protestants. The surveyor shall define the boundaries of the lands submitted for registration by means of temporary monuments placed on the land and he shall designate on the map or plat the boundaries as claimed by the applicant for registration and the boundaries as claimed by protesting adjoining property owners. In case the court shall find that the boundary line claimed by the protestant or protestants and that that designated by the applicant is correct, the cost of making any extra survey over that required by the applicant shall be assessed against the protestant or protestants. Should the boundary line designated that of the applicant incorrect the court shall assess the cost of making the survey to the applicant. The usual process of the court shall be available for collecting such costs. The work of survey and demarcation shall not be suspended because of the presentation of any complaint or objection. Section 5 of said Act is as follows: It shall be the duty of private surveyors who make surveys, maps, or plats of property for which registration of title is requested to comply with the requirements of the preceding section and to promptly send their reports, surveys, maps, and plats of such property to the Bureau of Lands for verification. Private surveyors shall not be authorized to make surveys for the Court of Land Registration unless they shall have passed either a civil service examination or an examination by the Bureau of Lands for the purpose of determining their qualifications.

The appellee contends that, inasmuch as his plans had been prepared long before the enactment of the said Act No. 1875, the same was not applicable, for the reason that to make the law applicable to the present case would be giving to said law a retroactive effect, and cites article 3 of the Civil Code and rules 1 and 2 De las Disposiciones Transitorias of the Civil Code, as well as volume 12 of Manresa, page 922, in support of his contention. In our opinion the law does not have a retroactive effect. It only applied to cases which were begun in the Court of Land Registration after its enactment. The law had been in force nearly a month prior to the commencement of the present action. And moreover the law only related to the procedure — to the character of the evidence which the petitioner must present in support of his claim. It is a doctrine well established that the procedure of the court may be changed at any time and become effective at once, so long as it does not affect or change vested rights. We are of the opinion that the judgment of the lower court should be reversed and stand reversed until with the provisions of Act No. 1875, and the case is hereby ordered to be returned to the lower court with direction that the petitioner present his plans in accordance with said Act. If, however, when the plans shall have been presented, the lower court finds that the same conform to the plans already presented, then the judgment heretofore rendered may be affirmed without further procedure. If, however, the new plans when presented do not conform to the plans heretofore presented and shall affect the rights of any persons who have not heretofore been heard, then notice shall be given them and an opportunity to present whatever opposition they may have to the registration of the land included in the new plans. It is so ordered.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 125539 July 27, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO PATALIN, JR., ALEX MIJAQUE, AND NESTOR RAS, accused-appellants.

MELO, J.: Accused-appellants Alex Mijaque and Alfonso Patalin, Jr, were charged before Branch 25 of the Regional Trial Court of the 6th Judicial Region stationed in Iloilo City, with the crime of robbery.* The Amended information dated October 11, 1985 charged: That on or about August 11, 1984, in the municipality of Lambunao, province of Iloilo, Philippines, and within the jurisdiction of this Court, the above named two (2) accused, conspiring, confederating and cooperating with three (3) others whose identities are still unknown and who are still at large, armed with bladed weapons by means of force, violence and intimidation, taking advantage of the nighttime to better realize their purpose, and in the dwelling of the offended party, did then and there wilfully, unlawfully and feloniously take, steal and carry away, with intent to gain, cash amount of Three Hundred (P300,00) Pesos, Philippine Currency, owned by the victim Corazon Aliman and the following personal property: one (1) adjustable wrench, one (l) vise grip, one (1) screw driver, one (1) pair of levis pants, one (1) travelling bag and one (1) wallet containing ten (P10,00) pesos, with a total value of Four Hundred (P400.00) Pesos, Philippine Currency, owned by the victims Reynaldo Aliman and Josephine Belesario, the over all total of cash and personal property being SEVEN HUNDRED (P700.00) PESOS, Philippine Currency, without the consent of the above-mentioned offended parties and to their damage and prejudice in the aforestated amount; that by reason or on the occasion of said Robbery, the above named two (2) accused did then and there hack victim Reynaldo Aliman twice hitting him and inflicting wounds which required medical attendance of more than thirty (30) days, as well as inflict physical injuries to the other victims Corazon Aliman and Josephine Belesario causing them to sustain injuries requiring medical attendance for several number of days. CONTRARY TO LAW. (pp, 92-93, II Record.) In a Second Amended Information also dated October 11, 1985 and docketed as Criminal Case No. 18305, accused-appellants Alex Mijaque, Alfonso Patalin, Jr., and Nestor Ras were charged before the same court with the crime of robbery with multiple rape, thusly: That on or about August 11, 1984, in the municipality of Lambunao, province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named three (3) accused, with deliberate intent, and without any justifiable motive, conspiring, confederating and working together with Richard Doe, Philip Doe and Robert Doe who are still at large, all armed with firearms and other deadly weapons, thereby performing [sic] themselves into a band, entered the dwelling of Jesusa Carcillar, and once inside, with intent to gain and with violence against, and/or intimidation of persons, did then and there wilfully, unlawfully and feloniously take, steal and carry away Five Hundred (P500.00) Pesos in cash, one (1) ring worth Two Thousand (P2,000.00) Pesos, one (1) pair of earrings worth One Thousand (P1,000.00) Pesos, and one (1) Seiko wrist watch worth Three Thousand (P3,000.00) Pesos, making a total of Six Thousand Five Hundred (P6,500.00) Pesos, against the will and/or consent of the owner; that on the occasion thereof, the above-named three (3) accused, conspiring and working together with their companions who are still at large, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with Perpetua Carcillar, Juliana Carcillar, Rogelia Carcillar, and Josephine Belesario, against their will and consent.1âwphi1.nêt CONTRARY TO LAW.

(pp. 90-91, II Record.) Upon arraignment on November 12, 1985, accused-appellants entered a plea of "not guilty" to both crimes charged (p. 103, II Record). After trial on the merits, a joint judgment was rendered, disposing: Wherefore, premises considered there being sufficient and satisfactory proof showing that the accused in these two cases are guilty beyond reasonable doubt of the charges filed against them, they are hereby sentenced as follows: a) In Crim. Case No. 18376 for Robbery with Physical Injuries, accused Alfonso Patalin, Jr. and Alex Mijaque are penalized to suffer the indeterminate penalty of imprisonment of Ten (10) years, and One (1) day of Prision Mayor, as minimum, to Seventeen (17) years and Four (4) months of Reclusion Temporal, as maximum, to indemnify Corazon Aliman the amount of P700.00 representing the value of her property robbed from her and also to indemnify Reynaldo Aliman the amount of P8,000.00 representing the expenses he incurred for his medication and hospitalization due to the wounds he suffered. b) In Criminal Case No. 18305 for Robbery with Multiple Rapes, accused Alfonso Patalin, Jr. Alex Mijaque and Nestor Ras are sentenced to a death penalty and to indemnify the members of the Carcillar family the amount of P6,500.00 representing the cash and articles taken from them. In both cases the accused are also ordained to pay the costs. SO ORDERED. (p. 80, Rollo.) The trial court arrived at the aforestated conclusion based on the following findings: Criminal Case No. 18376 The crime of robbery (with physical injuries) was indeed committed by accused-appellants Alfonso Patalin, Jr. and Alex Mijaque, as well as by their unidentified companions, based on the positive identification made by complaining witness Corazon Aliman, and corroborated by her son Reynaldo and the latter's half-sister Josephine Belisario (p. 77, Rollo). Criminal Case No. 18305 Accused-appellants Alfonso Patalin, Jr., Alex Mijaque, and Nestor Ras, as well as an unidentified companion, acted in concert to commit the crime of robbery with multiple rape. They were positively identified by the following witnesses. Juliana Carcillar who was raped twice by Alex Mijaque; Josephine Belisario who was raped once by Alex Mijaque; Rogelia Carcillar who was raped by Alex Mijaque; and Perpetua Carcillar, who was raped by Nestor Ras, after Alfonso Patalin, Jr. failed in his attempt to rape her. Accusedappellant Patalin was likewise identified by Reynaldo Aliman who personally knew him as former barangay-mate for a long time, as well as by Corazon Aliman, mother of Reynaldo. The identification of accused-appellants was facilitated and aided by a bright full moon and due to the fact that they tarried in the crime scene for a long period of time, thus allowing their victims to imprint in their memory the countenance or visage of accused-appellants. Said positive and clear identification by the complaining witnesses, who were not shown to have ill motive to falsify the truth and to implicate accused-appellants, prevail over the latter's defense of denial. Band, nocturnity, and dwelling, were likewise appreciated against accused-appellant (pp. 78-79, Rollo). The errors assigned by the accused-appellant in their individual briefs are summarized as follows: (1) The trial court erred in finding that accused-appellants are responsible for the crimes charged; (2) The trial court erred in convicting accused-appellant Patalin notwithstanding the fact that the latter was arrested without a warrant; (3) Assuming without conceding that accused-appellants (Patalin and Ras) committed the crimes charged, the trial court in erred in imposing the penalty of death as the same was suspended upon the ratification of the 1987 Constitution (pp. 86, 146, 204, Rollo). The prosecution's version of the August 11, 1984 incident, based on the testimony of prosecution witnesses Dr. Edgardo Carmelo, Dra. Leticia Sitchon Santiago, Reynaldo Aliman, Josephine Belisario, Juliana Carcillar, Rogelia Carcillar, and Perpetua Carcillar, is summarized in the Solicitor General's consolidated Brief, as follows: At about 7:30 in the evening of August 11, 1984, while Reynaldo Aliman, his half sister Josephine Belisario, and their mother Corazon Aliman were having a conversation inside their house at Barangay Lumanay, municipality of Lambunao, province of Iloilo, appellant Alfonso Patalin, Jr., who was outside the fenced perimeter of said

house, called out Reynaldo Aliman by his nickname and asked the latter to let him and the other persons with him in (pp. 5-6, TSN, Dec. 16, 1986). Reynaldo Aliman opened the window and, because of the moonlight, saw appellant Alfonso Patalin, Jr. with (2) other persons. Appellant Alfonso Patalin, Jr. asked again Reynaldo Aliman to let them in (pp. 7-8, ibid.). Reynaldo Aliman opened the gate and Alfonso Patalin together with his companions, one of whom is appellant Alex Mijaque, entered the premises (pp. 8, 10-11, ibid.). Immediately upon entering, appellant Alfonso Patalin, Jr. pointed the beam of his flashlight at Reynaldo Aliman. At this juncture, appellant Alex Mijaque hacked Reynaldo Aliman twice with a bolo hitting the latter at the neck, right arm, and the chest (pp. 14-16, ibid.). Thereupon, Reynaldo Aliman immediately ran away (p. 17, ibid.). Corazon Aliman and Josephine Belisario, who went to the balcony of their house, witnessed the hacking incident and the former shouted for help (p. 6, TSN, July 21, 1987; pp. 8-9, TSN, June 30, 1988). Two of the assailants, one of whom is appellant Alex Mijaque, pushed Corazon Aliman and Josephine Belisario inside their house, covered their mouth and told them not to make any noise. Later, appellant Alex Mijaque dragged Josephine Belisario to the house of the latter's aunt (sister of Corazon Aliman) which is beside their house. The other man stayed put and while holding a double-bladed knife, threatened to kill Corazon Aliman if the latter will not give him money. After Corazon Aliman gave him three hundred pesos (P300.00) cash, he ransacked the house and took one (1) wrist watch, one (1) vise grip, one (1) screw driver one, (1) pair of Levis trousers, one (1) travelling bag, and one (1) wallet containing ten pesos (P10.00); the total value thereof is seven hundred pesos (P700.00) inclusive of the three hundred pesos (P300.00) cash. Thereafter, the man also dragged Corazon Aliman to her sister's house (pp. 6-8, TSN, July 21, 1987; pp. 11-12, TSN, June 30, 1988). Josephine Belisario, who was dragged by Alex Mijaque to her aunt's house which is just twenty (20) meters away, saw six (6) persons, one of whom is appellant, Alfonso Patalin, Jr., outside the house of her aunt. Josephine Belisario was forced to call out her aunt's name and ask that the door be opened for her. While the door was being opened, it was kicked by one of the six (6) persons. Alfonso Patalin immediately went in, boxed the aunt of Josephine Belisario on the body and announced that they are staging a hold-up. The other companions of appellant Alfonso Patalin, Jr., including appellant Alex Mijaque, who were armed with knive's a bolo and a gun also went in and restrained Josephine Belisario's cousins, namely Rogelio, Juliana, Perpetua, Roy, and Victoriano, who are all surnamed Carcillar, (pp. 11-15, TSN, June 30, 1988; p. 11, TSN, June 29, 1989). Josephine Belisario together with her aunt and cousins were all forced to lie face down on the floor of the sala (p. 15, TSN, June 30, 1998; p. 7, TSN, Feb. 15, 1990). Appellant Alfonso Patalin got hold of Mrs. Carcillar (Josephine Belisario's aunt and the mother of her cousins), kicked and boxed the latter and exclaimed: "Money, money". "It is money we want." Appellant Alfonso Patalin forced Mrs. Carcillar into a room where the latter gave him money (p. 16, TSN, June 30, 1988; pp. 7-8, February 15, 1990.). Then, appellants and their companions seized the following personalities of the Carcillars: (1) one Seiko 5 wristwatch worth three thousand pesos (P3,000.00), (2) two (2) pairs of lady's rings worth two thousand (P2,000.00), (3) one (1) pair of earrings, and (4) two (2) travelling bags (p. 9, TSN, February 15, 1990). Rogelia Carcillar was brought outside their house by appellant Alex Mijaque who was armed with a butcher's knife and threatened to kill her if she will not lie down. Because of fear, she did as she was told (pp. 10, 16-17, TSN, February 15, 1990). Appellant Alex Mijaque forcibly removed her underwear and placed himself on top of Rogelia. She tried to resist but appellant Alex Mijaque pressed the tip of his knife at the former's neck and succeeded in having sexual intercourse with her (pp. 11-12, ibid.). Thereafter, appellant Alex Mijaque brought her inside the house and ordered her to lie face down on the floor again (pp. 13-14, ibid.). Then, one of the companions of appellant Alex Mijaque who was armed with a gun took her outside and brought her to a place not far from where she was raped (p. 14, ibid.). This man, at the point of a gun, threatened to kill her if she will not obey his orders. Rogelia Carcillar, who feared for her life, was left with no choice but to obey the man's orders. There, she was raped for the second time by this gun-wielding man (pp. 15-16, ibid.). While Rogelia Carcillar was being raped, appellant Alfonso Patalin was also outside the house standing on guard (p. 18, ibid.). Juliana Carcillar was likewise brought outside the house by appellant Alex Mijaque who, with his knife, tried to rape her but he initially failed because of her resistance. This angered appellant Alex Mijaque and he tried to kill Juliana Carcillar by stabbing the latter but was prevailed upon not to do so by one of his companions (pp. 12-15, TSN, June 29, 1989). Appellant Alex Mijaque, after delivering fist blows on the body of Juliana Carcillar, turned her over to one of his companions who was in the garden outside the house and armed with a gun. This man threatened her with the gun and mauled her. She was overpowered and he undressed her. He inserted his finger on her sex organ and eventually succeeded in having sexual intercourse with her (pp. 15-17, ibid.). Then, this companion of appellant Alex Mijaque brought Juliana Carcillar back inside the house and ordered to look for money. When she told him that they have no more money, he kept on harming her. In the course thereof, he found and took a Seiko wristwatch owned by Perpetua Carcillar. Then, he brought her outside the house again where he had a brief conversation with appellants Nestor Ras and Alfonso Patalin. She was then brought back inside the house and ordered to lie face down on the floor again. While at this position, appellant Alex Mijaque approached her and brought her outside the house. She refused to obey appellant Alex Mijaque's order to lie down on the ground so

he pushed her downwards. Her strength gave out and he succeeded in raping her twice. She was then brought back inside the house (pp. 18-21, TSN, June 29, 1989). Josephine Belisario, while laying face down on the floor of the sala, was dragged by appellant Alex Mijaque inside one of the rooms. He threatened her with his knife and was able to undress her. He fondled her breasts, pulled her pubic hair and eventually succeeded in having sexual intercourse with her. She was then left inside the room. Two companions of appellant Alex Mijaque came in bringing with them her cousins Rogelia and Perpetua Carcillar. One of them saw Josephine Belisario and brought her to another room. The man demanded money from her but she was not able to give him money. The man was also carrying a knife and threatened her with the same. She resisted when he was forcing her to lie down on the bed but her strength finally gave out . He likewise succeeded in having sexual intercourse with her. After raping her, the man took a piggy bank which was at the foot of the bed and brought her back to the room where she was first raped. Her aunt and cousins were also inside the said room (pp. 17-25, TSN, June 30, 1988). Perpetua Carcillar suffered the same fate. While laying face down on the floor of the living room, she was pulled by the hair by appellant Alfonso Patalin and ordered to stand up. When she stood up, she realized that her sister were no longer there. Appellant Alfonso Patalin, armed with a double-bladed knife, brought her outside the house, ordered her to undress and lie down. Because of fear, Perpetua Carcillar, who was then only thirteen (13) years old, obeyed appellant Alfonso Patalin. He tried to force his penis into her vagina but did not succeed. Then, appellant Alfonso Patalin handed her over to appellant Nestor Ras, a member of their group who was only about two (2) arms length away. Appellant Nestor Ras, armed with a double-bladed knife which he was pointing at Perpetua Carcillar, ordered her to lie down. He fondled her breasts, kissed her, and succeeded in having sexual intercourse with her. After raping her, appellant Nestor Ras brought her back inside the house. When she was returned inside the house, the intruders were still demanding for money from her mother and were taking turns in beating the latter (pp.4, 15-23, TSN, July 12, 1990). Appellants left, together with the other assailants, taking with them the valuables stated earlier after threatening them not to report the matter to the police or else they will return and kill all of them (p.19, TSN, February 15, 1990). Reynaldo Aliman was brought to Ricardo Ladrido Memorial Hospital where he received first aid. He was then brought to West Visayas Medical Center located in Manduriao, Iloilo (pp. 18-20, TSN, December 16, 1986) and was treated by Dr. Edgardo Carmelo (p. 4, TSN, May 14, 1986). Reynaldo Aliman sustained the following injuries: (1) hackwound, mid forearm, area ulnar side middle third forearm, and (2) hack wound, left side of neck (pp. 5-6, ibid; Exhibit A). Reynaldo Aliman was confined in the hospital for almost three (3) months and he spent more than eight thousand pesos (P8,000.00) for medicines, food and other expenditures (p. 19, TSN, December 16, 1986). Dr. Leticia Sitchon Santiago examined and treated Josephine Belisario two days after she was raped. A hematoma, about 3x4 inches in diameter, was found on the left shoulder of Josephine Belisario which could have been caused by forcing the latter to lie down on the ground. Josephine Belisario "vagina admits two (2) fingers". Further, hematoma was noted in the hymen at nine o'clock and three o'clock positions and fresh lacerations was also noted at nine, eleven, and three o'clock positions. These are indications that a foreign object, which could be a human penis, was inserted in the vagina and caused the lacerations of the hymen (pp. 6-9, TSN, September 3, 1986).1âwphi1.nêt Rogelia Carcillar, Juliana Carcillar and Perpetua Carcillar were also examined and treated by Dr. Leticia Santiago but such was conducted three days after the incident (p. 17, ibid). A hematoma was noted in the occipital region of the head of Rogelia Carcillar (p. 18, ibid). Her vagina admits two fingers snugly and the perineum has a lacerated wound which is one centimeter in length (pp. 18-19, ibid; pp. 2-3, TSN, November 10, 1986). Fresh lacerations were likewise noted in her hymen at eight, eleven and three o'clock positions (p. 3, TSN, November 10, 1986). Dr. Santiago further testified that a foreign object was inserted in the vagina of Rogelia Carcillar (p. 19, TSN, September 3, 1986; p. 3, TSN, November 10, 1986). Juliana Carcillar, 22 years old, sustained a hematoma in the forehead, left and right side of the face, upper right arm, uppermost and lower portions of the left thigh, occipital region of the head and left side of the mouth. She also sustained the following injuries: (1) 1/2 cm. lacerated wound on the left side of the lower lip, (2) bite mark with hematoma on the left shoulder, (3) 1 cm. incised wounds on the right index finger and right thumb, (4) 4 inches incised wound on the right forearm, and (5) multiple abrasions at the back including the portion below the waistline, her vagina admits two fingers and fresh lacerations in the hymen were noted at eight, eleven, and four o'clock positions (pp. 10-15, TSN, November 10, 1986).

Perpetua Carcillar, 13 years old, sustained a centimeter lacerated wound on the perineum which was also swollen. Her vagina admits two fingers snugly (pp. 8-9, ibid). A fresh laceration at six o'clock position and a hematoma also at six o'clock position were noted on her hymen (Exhibit C, p. 15, Record). (pp. 300-311, Rollo.) Denial and alibi were set up by accused-appellants based on their testimony and that of their witnesses, Alejandro Tabucan, Felizardo Lebona, Rhodora Losaria, and Cristina Gumban. The denials, together with other arguments, are summarized as follows: Alfonso Patalin Accused-appellant Alfonso Patalin alleges that his name was only included by Jesus Larang, whom he described as the land lord of Jesusa Carcillar and the Carcillar sisters, to force him to reveal the names of the persons who staged the robbery and rape. Verily, he declared on the stand that when the victims saw him at the police station, two of them (Josephine Belisario and Reynaldo Aliman) even smiled at him (tsn, August 13, 1993, pp. 10-11, 19-20). In his brief, he argues that he was not positively identified, rationalizing that when prosecution witness Josephine Belisario was asked on the stand if she recognized "the person who called [her] brother Reynaldo," said witness responded that she did not know the person who called her brother, and that she only recognized the caller's voice (tsn, August 11, 1988, pp. 30-31). Further, accused-appellant Patalin also alleges that he was arrested without a warrant. Alex Mijaque Accused-appellant Alex Mijaque argues that in the sworn statement of Reynaldo Aliman (p. 3, II Record), there is no mention of his name nor that of accused-appellant Patalin as the perpetrators of the crimes charged. Moreover, during the preliminary examination in the lower court, accused-appellant Mijaque was also not named as one of the malefactors. He likewise points out that in the police blotter, the first report mentioned that the alleged offenders were unknown persons. No rape was reported. In the second report, it was blottered that the alleged offenders were four unidentified persons. Again, no rape was reported. Accused-appellant Mijaque likewise takes note of the report given by Rogelia Carcillar who merely narrated the robbery but did not report any rape. According to this accused-appellant, the police authorities of Iloilo, Manduriao (also referred to in the record as "Mandurriao") received a complaint from a resident thereat that his television set was stolen previous to the incidents herein involved. Accusedappellant Mijaque was suspected as the thief and was picked up by the agents of the Manduriao Police Station without any warrant of arrest and was thence detained for three days without any complaint (p. 93, Rollo). Meanwhile, the robbery at Lambunao, Iloilo was being flashed at all police stations in Iloilo. The arresting officers of the Manduriao Police Station, so accused-appellant Mijaque contends, in order to save themselves from charges of arbitrary detention, immediately referred him for custodial investigation in regard to the Lambunao robbery. Consequently, three days after his confinement, a criminal complaint for robbery with physical injuries and another for robbery with rape was filed against him by the Chief of Police of Lambunao, Iloilo. Nestor Pas The third accused-appellant, Nestor Pas, argues that his name was never mentioned by Dr. Edgardo Carmelo, and that Josephine Belisario was merely led by the public prosecutor into mentioning his name. He also states that the witnesses' declarations as regards his identification are confusing and inconsistent (pp. 208-210, Rollo). Further, it is contended that Rogelio Carcillar himself, when asked by the public prosecutor about what happened to his sister Perpetua Carcillar, testified that "Nothing happened to them" (p. 210, id). And when Perpetua Carcillar and the other female prosecution witnesses reported the alleged incident to the police authorities, they never mentioned that they were raped. As mentioned, all three accused-appellants, aside from denying the charges, also presented their respective alibis. Accusedappellant Patalin testified that he was at home with his parents, wife, and children, at Pandan, Lambunao (tsn, August 13, 1993, pp. 16-17) at the time of the incident. As corroborative witness, he presented Felizardo Lebona, the person in charge of the plantation where he was working, who testified that accused-appellant Patalin did not leave the plantation house from August 9 to 12, 1984 (tsn, October 15, 1993, pp. 4-5). For his part, accused-appellant Mijaque insists that he had no opportunity to get out of the farm where he was working which was located in Manduriao, Iloilo (tsn, May 6, 1993, p. 6). In July, 1985, he was arrested for theft of a television set and detained in the Lambunao jail for investigation. Although three of the herein complainants were brought in front of his detention cell, he was not identified. Instead, the policemen pointed to him and said, "That is Alex Mijaque who raped you. If you will not include him, he will file a case against you." Moreover, he testified that he was mauled in jail (tsn, July 29, 1993, pp. 10-13). Defense witness, Alejandro Tabucan, neighbor of accused-appellant Mijaque, corroborated the latter's alibi that on August 11, 1984, they had a drinking spree from 6 o'clock in the evening to 12 o'clock midnight, and accused-appellant Mijaque was not able to leave the premises in Manduriao. Tabucan also said that he saw Mijaque still asleep the following morning (tsn, August 6, 1993, pp. 4-5, 10).

Lastly, accused-appellant Nestor Ras declared that he was in the province of Antique (particularly, in Igbangkal, Dao) on August 11, 1984 (tsn, December 17, 1993, p. 4). As corroborative witness, he presented Cristina Gumban, a vendor who testified that on August 11, 1984, she bought cassava and sweet potatoes from accused-appellant Ras in Igbangkal, Dao, Antique from 3 o'clock to 5 o'clock in the afternoon, and that he saw Ras put the purchased items in a sack (tan, March 4, 1994, p. 4). We are not persuaded by the above posturing and are compelled to affirm. Of primordial consideration in appellate matters is the legal principle that the assessment of the credibility of witnesses and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination (People vs. Ombrog, 268 SCRA 93 [1997]). We generally uphold and respect this appraisal since, as an appellate court, we do not deal with live witnesses but only with the cold pages of a written record (People vs. Herbieto, 269 SCRA 472 [1997]). A close examination of the record convinces us of the prosecution witnesses' credibility, particularly the ravished victims, who, for approximately two agonizing hours, were subjected to a hellish nightmare occurring in the very privacy of their own homes. As pointed out by the Office of the Solicitor General in its consolidated brief, the defense was not able to prove any motive on the part of the private complainants to falsely testify that they were robbed and raped by accused-appellants. In fact, two of the rape victims, Josephine Belisario and Rogelia Carcillar, were even married to first cousins of accused-appellant Patalin (pp. 327328, Rollo), and would not ordinarily turn against a relative although this be by mere affinity unless they really suffered the fate they narrated. Accused-appellants rely on the delay or vacillation on the part of the complaining witnesses. As discussed above in their individual defenses, they emphasize that Reynaldo Aliman failed to mention the names of the perpetrators in his sworn statement; that on August 11, 1984, Reynaldo instructed a relative, Jesus Larang, to report the hacking and robbery incidents at the Lambunao Police Department, as well as the robbery committed in the Carcillar household, and that the police blotter stated that the alleged offenders were unknown persons but contained no report of any rape; and that Rogelia Carcillar's report did not mention that she was raped. Time and again, we have ruled that delay in lodging a criminal accusation does not impair the credibility of a witness if such delay is satisfactorily explained (People vs. Bugarin, 273 SCRA 384 [1997]). An examination of Reynaldo Aliman's sworn statement (p. 3, I Record) shows that he clearly identified one of the callers as accused-appellant Alfonso Patalin. Anent his failure to mention accused-appellant Mijaque's name, he explained on cross-examination that he did not know yet the name of the person who attacked him with the bolo at the time he executed his sworn statement (tsn, Dec. 16, 1986, pp. 35, 38-39). It was only later that he found out that the name of his assailant was Alex Mijaque. As regards Jesus Larang, the fact that he mentioned "unknown persons" in his report does not affect Reynaldo's categorical and positive identification of accused-appellants Patalin and Mijaque as the perpetrators of the hacking and robbery incidents at his home. Anent the rape victims, it was clearly explained that their assailants told them not to report the matter to the police, otherwise, the assailants will return and kill them (tsn, Feb. 15, 1990, p. 19). The victims were overcome by fear and shame (ibid., p. 31). Besides, the delay in reporting the multiple rapes was not procrastination as this was only 3 days from the date of the incident (tsn, June 30, 1988, p. 22), a far shorter period than those mentioned inPeople vs. Gecomo (254 SCRA 82 [1996]) where we held that a delay of 17 or 35 days, or even 6 months, by a victim of rape in reporting the attack on her honor, does not detract from the veracity of her charge. The defense also notes certain inconsistencies in the testimony of the complaining witnesses, as follows: (1) Juliana Carcillar testified earlier that the only light in the house came from a kerosene lamp placed on a small table which was extinguished as a result of it being knocked down, thus placing the house in darkness, while on the other hand, Perpetua Carcillar, earlier said that although there was no more light in the house coming from the lamp, yet she could still see because the light of the moon still illuminated their house, allegedly through the plastic roofing; and (2) the prosecution witnesses could not agree concerning the date they went to San Dionisio, Iloilo to identify accused-appellant Nestor Ras, as well as the date when Ras was arrested. Inconsistencies in the testimony of witnesses, when referring only to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony, and do not impair the credibility of such witnesses where there is consistency in relating the principal occurrence and the positive identification of the assailant (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). In fact, honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when the crime is shocking to the conscience and numbing to the senses (People vs. Agunias, 279 SCRA 52 [1997]). With respect to the defenses of denial and alibi, significantly, these defenses, if unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People vs. Gayon, 269 SCRA 587 [1997]). Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial (People vs. Javier, 269 SCRA 181 [1997]). Verily, even if the defense of denial is supported by the testimony of friends of the accused, it deserves the barest consideration (People vs. Gamiao, 240 SCRA 254 [1995]). It will be given weight only if it would preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of

commission (People vs. Daquipil, 240 SCRA 314 [1995]; People vs. De Roxas, 241 SCRA 369 [1995]; People vs. Morin, 241 SCRA 709 [1995]; People vs. Rivera, 242 SCRA 26 [1995]; People vs. Dela Iglesia, 241 SCRA 718 [1995]; People vs. Umali, 242 SCRA 17 [1995]; People vs. Dayson, 242 SCRA 124 [1995]; People vs. Espinosa, Jr. 243 SCRA 7 [1995]; People vs. Parica, 243 SCRA 557 [1995]; People vs. Escoto, 244 SCRA 87 [1995]). Accused-appellant Mijaque testified that on August 11, 1984, he was in Manduriao, Iloilo. The overland travel time from the town of Manduriao to Lambunao is approximately one hour and twenty minutes. Accused-appellant Patalin testified that he was in Barangay Pandan, which is merely adjacent to Lambunao. Lastly, accused-appellant Nestor Ras testified that he was in Antique, a province neighboring Iloilo, which is approximately two hours away therefrom via overland transportation. The defense tried to corroborate these alibis by presenting witnesses who testified on details which happened ten years prior to the date their testimony was given, and hence of naturally doubtful credibility. Mutatis mutandi People vs. Queliza (279 SCRA 145 [1997]), considering that the places where accused-appellants alleged they were at could be traversed by motorized vehicles, it was not impossible that accused-appellants could not have been at the crime scene by 7 o'clock or 7:30 o'clock in the evening on August 11, 1984. More importantly and damning yet is the positive identification of their presence thereat by the victims. The trial court correctly appreciated the aggravating circumstances of nighttime and dwelling in Criminal Case No. 18376 considering that nighttime facilitated the commission of the crime and the evidence shows that accused-appellants took advantage of the darkness to successfully consummate their plans (People vs. Apduhan, Jr., 24 SCRA 798 [1968]). Dwelling is clear from the abuse of confidence which the victims reposed in the offenders by opening the door to them, as well as the violation of the sanctity of privacy in the victims' homes. He who goes to another's house to slander him, hurt him, or do him wrong, is more guilty than he who offends him elsewhere (Reyes, The Revised Penal Code — Criminal Law, Vol. I, 1993 ed., citing the dissenting opinion of Justice Villareal in People vs. Ambis, 68 Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp. 323-324). We further affirm the trial court's finding on the presence of the aggravating circumstance of band considering that Reynaldo Aliman testified that accused-appellants Patalin and two other companions (one of whom was later identified as accused-appellant Mijaque) entered his home (tsn, p. 7, Dec. 16, 1986). This was corroborated by Josephine Belisario who even saw four (4) persons enter their gate, one of whom was accused-appellant Patalin (tsn, p.10, June 30, 1988). These same aggravating circumstances likewise attended the commission of the crime of robbery with multiple rape in Criminal Case No. 18305 and this was clearly testified to by the victims thereof who stated that five persons, including accused-appellant Patalin, armed with a bolo, a knife, and a long gun, entered their dwelling that unfortunate night (tsn, June 29, 1989, p. 10; February 15, 1990, p. 5). With respect to accused-appellants Patalin and Mijaque's defense that they were arrested without warrants, suffice it to say that any objection, defect, or irregularity attending an arrest must be made before the accused enters his plea (Padilla vs. CA, 269 SCRA 402 [1997]). As correctly pointed out in the People's consolidated brief, the record shows no objection was ever interposed prior to arraignment and trial (p. 324, Rollo). It is indubitable that there was conspiracy in the commission of the crimes in both Criminal Cases No. 18376 and 18305. In the first criminal case, the evidence clearly shows that accused-appellants Patalin and Mijaque, together with unidentified companions, committed the crime charged. Said culprits shared the common criminal objective of robbing the victims and inflicting wounds upon Reynaldo Aliman on the occasion of the robbery. In the second case, all three accused-appellants (together with unidentified companions), who were positively identified by the victims themselves, undoubtedly had the common criminal design of robbing the household of Jesusa Carcillar, and of committing multiple rape on the occasion of the robbery. Accused-appellant Mijaque dragged Josephine Belisario to her aunt's house and the other culprits followed suit. Accused-appellant Patalin boxed Jesusa Carcillar and announced that they were staging a hold-up. After robbing the household, they proceeded in ravishing the four young female victims, Rogelia, Juliana, Josephine, and Perpetua, one after the other, thus truly exhibiting their concerted acts. Conspiracy exists when two or more persons came to an agreement concerning the commission of a felony and decide to commit it (People vs. Abarri, 242 SCRA 39 [1995]). It cannot be merely presumed. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. In the case at bar, although there was no proof of previous actual agreement among accused-appellants adduced at the trial — . . . direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy maybe, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, then a conspiracy maybe inferred though no actual meeting among them to concert means is proved (People vs. Carbonel, 48 Phil. 868; See also People vs. Viray, 147 SCRA 146; People vs. Balignasay, G.R. No. 76743, May 22, 1992; People vs. Galit, 230 SCRA 486). . . ( People vs. Miranday, 242 SCRA 620 [1995]).

Verily, the participation of each of the accused-appellants was exhibited by the straightforward testimony of the victims themselves. This brings us to the crucial issue raised by accused-appellants on the death penalty. At the time the crimes charged were committed in 1984, robbery with rape was punishable by death (Art. 294, Revised Penal Code). However, by virtue of the ratification of the 1987 Constitution, specifically Paragraph (1), Section 19 of Article III thereof, the death penalty was abolished. Hence, the argument that it could not be imposed upon accused-appellants. Said provision reads as follows: Sec. 19 (1) Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. The constitutional abolition of the death penalty immediately took effect upon the ratification of the 1987 Constitution. However, said provision left the matter open for Congress to revive capital punishment at its discretion, "for compelling reasons involving heinous crimes." Simply stated, it did not prevent the legislature from reimposing the death penalty at some future time (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., pp. 507-508). Congress eventually restored the death penalty by virtue of Republic Act No. 7659 or the Death Penalty Law which took effect on January 1, 1994. Accused-appellants are of the position that since the Constitution's abolition of the death penalty had retroactive effect, being beneficial to the accused, the restoration or imposition of the death penalty on January 1, 1994 would no longer cover them notwithstanding the fact that the decision was rendered by the trial court on June 14, 1995, when the Death Penalty Law had already taken effect. Article 21 of the Revised Penal Code provides that no felony shall be punishable by any penalty not prescribed by law prior to its commission. At the time of the commission of the crime in 1984, as held by the trial court, robbery with rape, if committed with the use of a deadly weapon or by two or more persons, was punishable by reclusion perpetua to death (Article 294[2], Revised Penal Code [as amended by Presidential Decree No. 767]). True, in 1987, the Constitution abolished the death penalty subject to Congress' future restoration thereof "for compelling reasons involving heinous crimes." At the time of such ratification, the instant case was still at its trial stage. No penalty had as yet then been imposed. Considering that the provision provides that "[a]ny death penalty already imposed shall be reduced to reclusion perpetua," it is clear that the framers intended said provision to have a retroactive effect on cases pending without any penalty of death having been imposed yet. Consequently, upon ratification of the 1987 Constitution, any death penalty already imposed is automatically — without need for any executive action — commuted (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 508). The instant case poses the following issue: When the death penalty was abolished in 1987 and was retroactively applied to herein accused-appellants, did they gain a vested right thereto so that any future act restoring the death penalty would no longer cover them? An affirmative answer would free accused-appellants from the fatal clutches of the death penalty. Ours is a government of laws and not of men. The idea that an individual may be compelled to hold his life (or lose it), or the means of living, at the mere will of another, is intolerable in any country where freedom prevails (Villavicencio vs. Lukban, 39 Phil. 778 [1919]). Before us is a heinous crime indeed where people were harmed, robbed, ravished, and abused in the defaced sanctity of their own homes. It is but human nature to feel some measure of loathing, disgust, and hatred for the offenders considering the inhuman aspect of the crime committed. However, the ascendancy of the law is axiomatic in our type of government. Every official act must be based on and must conform to the authority of a valid law, lacking which the act must be rejected (Cruz, Phil. Political Law, 1996 ed., p. 51). The nobility of our intention is insufficient. There is no doubt that the abolition of the death penalty in 1987 retroactively affected and benefited accused-appellants. Article 22 of the Revised Penal Code provides that "[p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal . . . although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." A statute is penal when it imposes punishment for an offense committed against the state (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 5). The above-cited provision of the Constitution is penal in character since it deals with the penalty to be imposed for capital crimes. This penal provision may be given retroactive effect during three possible stages of a criminal prosecution: (a) when the crime has been committed and the prosecution began; (b) when sentence has been passed but the service has not begun; and (c) when the sentence is being carried out (Gregorio, Fundamentals of Criminal Law Review, 1988 ed., p. 167, citing Escalante vs. Santos, 56 Phil. 483 [1932]). In the light of the discussion above, there is no question that the abolition of the death penalty benefits herein accused-appellants. Perforce, the subsequent reimposition of the death penalty will not affect them. The framers of the Constitution themselves state that the law to be passed by Congress reimposing the death penalty (Republic Act 7659) can only have prospective application (Bernas,

The 1987 Constitution the Republic of the Philippines: A Commentary, 1996 ed., p. 508, citing I RECORD, p. 748; Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., p. 227, citing I Record, p. 747-748). There is no question that a person has no vested right in any rule of law which entitles him to insist that it shall remain unchanged for his benefit, nor has he a vested right in the continued existence of a statute which precludes its change or repeal, nor in any omission to legislate on a particular matter. However, a subsequent statute cannot be so applied retroactively as to impair a right that accrued under the old law (Agpalo, Statutory Construction, 1986 ed., p. 264, citing Benguet Consolidated Mining Co. vs. Pineda, 98 Phil. 711 [1956]; Laurel vs. Misa, 76 Phil. 372 [1946]). Courts have thus given statutes strict construction to prevent their retroactive operation in order that the statutes would not impair or interfere with vested or existing rights. Clearly, accusedappellants' right to be benefited by the abolition of the death penalty accrued or attached by virtue of Article 22 of the Revised Penal Code. This benefit cannot be taken away from them. Since the retroactive application of a law usually divests rights that have already become vested (Benzonan vs. Court of Appeals, 205 SCRA 515 [1992]), the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used (Balatbat vs. Court of Appeals, 205 SCRA 419 [1992]). By analogy, we apply the rule in labor law which provides that benefits accruing to workmen under the old law cannot be taken away from them by a succeeding law. In the case at bar, there is greater reason to apply this principle since the very taking of life is involved and is at issue. As regards accused-appellant's civil liability, the trial court, in Criminal Case No. 18376, correctly awarded P700.00 to Corazon Aliman representing the total value of the cash and personal property forcibly taken, and P8,000.00 to Reynaldo Aliman representing expenses incurred for medication and hospitalization. However, in Criminal Case No. 18305, the trial court failed to order indemnification for the multiple rapes. Thus, in line with the pronouncement in People vs. Victor (G.R. No. 127903, July 9, 1998) wherein we said: One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity. accused-appellants should be made to pay P375,000.00 as indemnification for five counts of rape (considering that Juliana Carcillar was twice raped by accused-appellant Mijaque) in addition to the sum of P6,500.00 representing the value of the cash and articles that were taken from the victims. In line with the recent ruling inPeople vs. Prades (G.R. No. 127569, July 30, 1998), moral damages in the amount of P50,000.00 for each count of rape, or a total of P250,000.00 is likewise awarded. Lastly, so that the instant case may serve as an object lesson to the public, exemplary damages in the amount of P10,000 per count of rape is further awarded (People vs. Burce, 269 SCRA 293 [1997]). Because of the findings of conspiracy, accused-appellants Patalin and Mijaque are jointly and severally liable for the amounts awarded in Criminal Case No. 18376; whereas all three accused-appellants are solidarily liable for the amounts awarded in Criminal Case No. 18305. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS said judgment, with the following modifications: (a) In Criminal Case No. 18376, for purposes of the Indeterminate Sentence Law, considering that the aggravating circumstances of band, nighttime, and dwelling attended the commission of the crime, accused-appellants Patalin and Mijaque are hereby sentenced to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum; (b) Accused-appellants Patalin and Mijaque are jointly and severally held liable for the amounts awarded by the trial court in said criminal case, particularly, the amount of P700.00 representing the total value of the cash and articles taken from Corazon Aliman, and P8,000.00 representing the expenses incurred by Reynaldo Aliman for medication and hospitalization; (c) In Criminal Case No. 18305, the penalty imposed is reduced to reclusion perpetua; and (d) Aside from the amount of P6,500.00 already awarded by the trial court to the Carcillar family representing the value of the cash and articles taken, the victims in Criminal Case No. 18305 are hereby awarded an additional P75,000 as indemnity for each count of

rape, P50,000.00 for each count of rape as moral damages, and P10,000 for each count of rape as exemplary damages, for which amounts all the three accused-appellant are jointly and severally liable. SO ORDERED.1âwphi1.nêt

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-15127

May 30, 1961

EMETERIO CUI, plaintiff-appellant, vs. ARELLANO UNIVERSITY, defendant-appellee. G.A.S. Sipin, Jr., for plaintiff-appellant. E. Voltaire Garcia for defendant-appellee. CONCEPCION, J.: Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon. In the language of the decision appealed from: The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant university up to and including the first semester of the fourth year. During all the school years in which plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos University, plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the college of law of the Abad Santos University graduating from the college of law of the latter university. Plaintiff, during all the time he was studying law in defendant university was awarded scholarship grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After graduating in law from Abad Santos University he applied to take the bar examination. To secure permission to take the bar he needed the transcripts of his records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to recover from defendant in this case. Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the following contract covenant and agreement: "In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer to another school without having refunded to the University (defendant) the equivalent of my scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and universities," reading: 1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to deserving students — for excellence in scholarship or for leadership in extra-curricular activities. Such inducements to poor but gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students concerned continue in the same school nullifies the principle of merit in the award of these scholarships. 2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the

recipient students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to attract and keep students in a school. 3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect that they could not transfer to other schools since their credentials would not be released unless they would pay the fees corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the right to authorize such transfer. that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on his right to secure the transcript of his record in defendant University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a written order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses of litigation. In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees. The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the former waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that, although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and simply because he wanted to follow the example of his uncle." Moreover, defendant maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void because said officer had no authority to issue it, and because it had been neither approved by the corresponding department head nor published in the official gazette. We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature of the issue before us, and its far reaching effects, transcend personal equations and demand a determination of the case from a high impersonal plane. Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant, There is one more point that merits refutation and that is whether or not the contract entered into between Cui and Arellano University on September 10, 1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of government officers.' It might take more than a government bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of government officials as one of the four factors in determining a public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a direct violation of our Memorandum and an open challenge to the authority of the Director of Private Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing to be done, contravenes some established interest of society, or is inconsistent with sound policy and good morals or tends clearly to undermine the security of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep outstanding students in school to bolster its prestige. In the understanding of that university scholarships award is a business scheme designed to increase the business potential of an education institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is morals? Manresa has this definition. It is good customs; those generally accepted principles of morality which have received some kind of social and practical confirmation. The practice of awarding scholarships to attract students and keep them in school is not good customs nor has it received some kind of social and practical confirmation except in some private institutions as in Arellano University. The University of the Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the corresponding value of the scholarships if they transfer to other schools. So also with the leading colleges and universities of the United States after which our educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in

school for their propaganda mine but to reward merit or help gifted students in whom society has an established interest or a first lien. (Emphasis supplied.) WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-65425 November 5, 1987 IRENEO LEAL, JOSE LEAL, CATALINA LEAL, BERNABELA LEAL, VICENTE LEAL EUIOGIA LEAL PATERNO RAMOS, MACARIO DEL ROSARIO, MARGARITA ALBERTO, VICTORIA TORRES, JUSTINA MANUEL, JULIAN MANUEL, MELANIA SANTOS, CLEMENTE SAMARIO, MARIKINA VALLEY, INC., MIGUELA MENDOZA, and REGISTER OF DEEDS OF RIZAL, petitioners, vs. THE HONORABLE INTERMEDIATE APPELLATE COURT (4th Civil Cases Division), and VICENTE SANTIAGO (Substituted by SALUD M. SANTIAGO), respondents.

SARMIENTO, J.: In its resolution dated September 27, 1983, the respondent Intermediate Appellate Court, 1 speaking through Justice Porfirio V, Sison, ordered, in part, the petitioners to accept the sum of P5,600.00 from the private respondent as repurchase price of the lots described in the "Compraventa" and, thereafter, to execute a Deed of Repurchase to effect transfer over ownership over the same properties to the private respondent. This ruling was a complete reversal of the earlier decision, 2 dated June 28, 1.978, penned by Justice Paras, of the Court of Appeals, in the same case, affirming the trial court's dismissal of the private respondent's complaint. The petitioners, feeling aggrieved and astonished by the complete turnaround of the respondent court, come to Us with this petition for review by certiorari. The antecedent facts are undisputed. This case brings us back almost half a century ago, on March 21, 1941, when a document entitled "Compraventa," written entirely in the Spanish language, involving three parcels of land, was executed by the private respondent's predecessors-in-interest, Vicente Santiago and his brother, Luis Santiago, in favor of Cirilio Leal the deceased father of some of the petitioners, Pursuant to this "Compraventa," the title over the three parcels of land in the name of the vendors was cancelled and a new one was issued in the name of Cirilo Leal who immediately took possession and exercised ownership over the said lands. When Cirilo died on December 10, 1959, the subject lands were inherited by his six children, who are among the petitioners, and who caused the consolidation and subdivision of the properties among themselves. Between the years 1960 and 1965, the properties were either mortgaged or leased by the petitioners-children of Cirilo Leal — to their co-petitioners. Sometime before the agricultural year 1966-1967, Vicente Santiago approached the petitioners and offered re- repurchase the subject properties. Petitioners, however, refused the offer. Consequently, Vicente Santiago instituted a complaint for specific performance before the then Court of First Instance of Quezon City on August 2, 1967. All the trial, the court a quo rendered its decision,-dismissing the complaint on the ground that the same was still premature considering that there was, as yet, no sale nor any alienation equivalent to a sale. Not satisfied with this decision, the private respondent appealed to the Court of Appeals and the latter, acting through the Fourth Division and with Justice Edgardo Paras as ponente affirmed the decision of the court a quo. The petitioners seasonably filed a motion to amend the dispositive portion of the decision so as to include an order for the cancellation of the annotations at the back of the Transfer certificates of Title issued in their favor. The private respondent,-on the other hand, filed a-timely motion for reconsideration of the above decision and an opposition to petitioners' motion to amend. These incidents were not resolved until then Court of Appeals was abolished and in lieu of which the Intermideate Appellate Court was established In view of the said reorganization, case was reassigned to the Fourth Civil in this cases Division. Resolving the abovestated motion for reconsideration, the respondent court, in a resolution penned by Justice Sison and promulgated on September 27, 1983, ruled, as follows:

WHEREFORE, Our decision of June 28, 1978 is hereby reversed and set aside and another one is rendered ordering: (1) defendants-appellees surnamed Leal to accept the sum of P5,600.00 from plaintiff-appellant (substituted by Salud M. Santiago) as repurchase price of the lots described in the "Compraventa" of March 21, 1941, and thereafter to execute a deed of repurchase sufficient in law to transfer ownership of the properties to appellant Salud M. Santiago, the same to be done within five (5) days from payment; (2) ordering the same defendants Leals and defendant Clemente Samario to indemnify appellant in the sum of P3,087.50 as rental for the year 1967-1968 and the same amount every year thereafter; (3) ordering an the defendants jointly and severally to pay the sum of Pl,500.00 as attorney's fees and other expenses of litigation; and (4) ordering defendant Register of Deeds of Rizal to cancel Transfer Certificate of Title No. 42535 in the names of Vicente Santiago and Luis Santiago upon presentation of the deed of sale herein ordered to be executed by the appellees in favor of Salud M. Santiago and to issue thereof another Transfer Certificate of Title in the name alone of Salud M. Santiago. No costs here and in the courts (sic) below. SO ORDERED. Verily, the well-spring whence the present controversy arose is the abovementioned "Compraventa," more particularly paragraph (b) thereof, to wit: xxx xxx xxx (b) En caso de venta, no podran vender a otros dichos tres lotes de terreno sino al aqui vendedor Vicente Santiago, o los herederos o sucesores de este por el niismo precio de CINCO MIL SEISCIENTOS PESOS (P5,600.00) siempre y cuando estos ultimos pueden hacer la compra. 3 xxx xxx xxx which is now the subject of varying and conflicting interpretations. xxx xxx xxx It is admitted by both parties that the phrase "they shall not sell to others these three lots but only to the seller Vicente Santiago or to his heirs or successors" is an express prohibition against the sale of the lots described in the "Compraventa" to third persons or strangers to the contract. However, while private respondent naturally lauds the resolution of Justice Sison, which sustains the validity of this prohibition, the petitioners, on the other hand, endorse the decision penned by Justice Paras, which states, in part: xxx xxx xxx Finally, there is grave doubt re the validity of the ostensible resolutory condition here, namely, the prohibition to sell the lots to persons other than the vendor (appellant); uncertainly, a prohibition to alienate should not exceed at most a period of twenty years, otherwise there would be subversion of public policy, which naturally frowns on unwarranted restrictions on the right of ownership. 4 xxx xxx xxx We agree with the Paras ponencia. Contracts are generally binding between the parties, their assigns and heirs; however, under Art. 1255 of the Civil Code of Spain, which is applicable in this instance, pacts, clauses, and conditions which are contrary to public order are null and void, thus, without any binding effect. Parenthetically, the equivalent provision in the Civil Code of the Philippines is that of Art. 1306, which states: "That contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. Public order signifies the public weal — public policy. 5 Essentially, therefore, public order and public policy mean one and the same thing. Public policy is simply the English equivalent of "order publico" in Art. 1255 of the Civil Code of Spain. 6 One such condition which is contrary to public policy is the present prohibition to self to third parties, because the same virtually amounts to a perpetual restriction to the right of ownership, specifically the owner's right to freely dispose of his properties. This, we hold that any such prohibition, indefinite and stated as to time, so much so that it shall continue to be applicable even beyond the lifetime of the original parties to the contract, is, without doubt, a nullity. In the light of this pronouncement, we grant the petitioners' prayer for the cancellation of the annotations of this prohibition at the back of their Transfer Certificates 'Title.

It will be noted, moreover, that the petitioners have never sold, or even attempted to sell, the properties subject of the "Compraventa. " We now come to what we believe is the very issue in this case which is, whether or not under the aforequoted paragraph (b) of the "Compraventa" a right of repurchase in favor of the private respondent exist. The ruling of the Fourth Division (Justice Paras) is that the said stipulation does not grant a right to repurchase. Contrarily, the resolution of the Fourth Civil Cases Division (Justice P. V. Sison) interpreted the same provision as granting the right to repurchase subject to a condition precedent. Thus, the assailed Resolution, reversing the earlier decision of the same respondent court, ruled xxx xxx xxx The all-importartant phrase "en caso de venta," must of necessity refer to the sale of the properties either by Cirilo or his heirs to the Santiago brothers themselves or to their heirs, including appellants Vicente Santiago including appellants Vicente Santiago and Salud M Santiago, for the same sum of P5,600.00, "siempre y cuando estos ultimos pueden hacer la compra" (when the latter shall be able to buy it). xxx xxx xxx ... We repeat, The words envision the situation contemplated by the contracting parties themselves, the resale of the lots to their owners, and NOT to a sale of the lots to third parties or strangers to the contracts. ... 7 xxx xxx xxx The law provides that for conventional redemption to take place, the vendor should reserve, in no uncertain terms, the right to repurchase the thing sold. 8 Thus, the right to redeem must be expressly stipulated in the contract of sale in order that it may have legal existence. In the case before us, we cannot and any express or implied grant of a right to repurchase, nor can we infer, from any word or words in the questioned paragraph, the existence of any such right. The interpretation in the resolution (Justice Sison) is rather strained. The phrase "in case case" of should be construed to mean "should the buyers wish to sell which is the plain and simple import of the words, and not "the buyers should sell," which is clearly a contorted construction of the same phrase. The resort to Article 1373 of the Civil Code of the Philippines is erroneous. The subject phrase is patent and unambiguous, hence, it must not be given another interpretation But even assuming that such a right of repurchase is granted under the "Compraventa," the petitioner correctly asserts that the same has already prescribed. Under Art. 1508 of the Civil Code of Spain (Art,. 1606 of the Civil Code of the Philippines), the right to redeem or repurchase, in the absence of an express agreement as to time, shall last four years from the date of the contract. In this case then, the right to repurchase, if it was at four guaranteed under in the "Compraventa," should have been exercise within four years from March 21, 1941 (indubitably the date of execution of the contract), or at the latest in 1945. In the respondent court's resolution, it is further ruled that the right to repurchase was given birth by the condition precedent provided for in the phrase "siempre y cuando estos ultimos pueden hacer la compra" (when the buyer has money to buy). In other words, it is the respondent court's contention that the right may be exercised only when the buyer has money to buy. If this were so, the second paragraph of Article 1508 would apply — there is agreement as to the time, although it is indefinite, therefore, the right should be exercised within ten years, because the law does not favor suspended ownership. Since the alleged right to repurchase was attempted to be exercised by Vicente Santiago only in 1966, or 25 years from the date of the contract, the said right has undoubtedly expired. WHEREFORE, in view of the foregoing, the Resolution dated September 27, 1983, of the respondent court is SET ASIDE and the Decision promulgated on June 28, 1978 is hereby REINSTATED. The annotations of the prohibition to sell at the back of TCT Nos. 138837, 138838, 138839, 138840, 138841, and 138842 are hereby ordered CANCELLED. Costs against the private respondent. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 108947 September 29, 1997 ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, ALFREDO T. SANCHEZ and MYRNA T. SANCHEZ,petitioners, vs. THE HONORABLE COURT OF APPEALS, ROSALIA S. LUGOD, ARTURO S. LUGOD, EVELYN LUGOD-RANISES and ROBERTO S. LUGOD, respondents.

PANGANIBAN, J.: Is a petition for certiorari, in lieu of appeal, the proper remedy to correct orders of a probate court nullifying certain deeds of sale and, thus, effectively passing upon title to the properties subject of such deeds? Is a compromise agreement partitioning inherited properties valid even without the approval of the trial court hearing the intestate estate of the deceased owner? The Case These questions are answered by this Court as it resolves the petition for review on certiorari before us assailing the November 23, 1992 Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 28761 which annulled the decision 3 of the trial court 4 and which declared the compromise agreement among the parties valid and binding even without the said trial court's approval. The dispositive portion of the assailed Decision reads: WHEREFORE, for the reasons hereinabove set forth and discussed, the instant petition is GRANTED and the challenged decision as well as the subsequent orders of the respondent court are ANNULLED and SET ASIDE. The temporary restraining order issued by this Court on October 14, 1992 is made PERMANENT. The compromise agreement dated October 30, 1969 as modified by the memorandum of agreement of April 13, 1970 is DECLARED valid and binding upon herein parties. And Special Proceedings No. 44-M and 1022 are deemed CLOSED and TERMINATED. SO ORDERED. 5 The Antecedent Facts The facts are narrated by the Court of Appeals as follows: [Herein private respondent] Rosalia S. Lugod is the only child of spouses Juan C. Sanchez and Maria Villafranca while [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod are the legitimate children of [herein private respondent] Rosalia. [Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, are the illegitimate children of Juan C. Sanchez. Following the death of her mother, Maria Villafranca, on September 29, 1967, [herein private respondent] Rosalia filed on January 22, 1968, thru counsel, a petition for letters of administration over the estate of her mother and the estate of her father, Juan C. Sanchez, who was at the time in state of senility (Annex "B", Petition). On September 30, 1968, [herein private respondent] Rosalia, as administratrix of the intestate estate of her mother, submitted an inventory and appraisal of the real and personal estate of her late mother (Annex "C", Petition). Before the administration proceedings Special in Proceedings No. 44-M could formally be terminated and closed, Juan C. Sanchez, [herein private respondent] Rosalia's father, died on October 21, 1968.

On January 14, 1969, [herein petitioners] as heirs of Juan C. Sanchez, filed a petition for letters of administration (Special Proceedings No. 1022) over the intestate estate of Juan C. Sanchez, which petition was opposed by (herein private respondent) Rosalia. 6 On October 30, 1969, however, [herein private respondent] Rosalia and [herein petitioners] assisted by their respective counsels executed a compromise agreement (Annex "D", Petition) wherein they agreed to divide the properties enumerated therein of the late Juan C. Sanchez. On November 3, 1969, petitioner Rosalia was appointed by [the trial court], and took her oath as the administratrix of her father's intestate estate. On January 19, 1970, [herein petitioners] filed a motion to require administratrix, [herein private respondent] Rosalia, to deliver deficiency of 24 hectares and or to set aside compromise agreement (Annex "E", Petition). Under date of April 13, 1970, (herein private respondent) Rosalia and [herein petitioners] entered into and executed a memorandum of agreement which modified the compromise agreement (Annex "F". Petition) On October 25, 1979, or nine years later, [herein petitioners] filed, thru counsel, a motion to require [herein private respondent] Rosalia to submit a new inventory and to render an accounting over properties not included in the compromise agreement (Annex "G", Petition). They likewise filed a motion to defer the approval of the compromise agreement (Annex "H", Ibid), in which they prayed for the annulment of the compromise agreement on the ground of fraud. On February 4, 1980, however, counsel for [herein petitioners] moved to withdraw his appearance and the two motions he flied, Annex "G" and "H" (Annex "I", Petition). On February 28, 1980, the [trial] court issued an order directing [herein private respondent] Rosalia to submit a new inventory of properties under her administration and an accounting of the fruits thereof, which prompted [herein private respondent] Rosalia to file a rejoinder on March 31, 1980 (Annex "K", Petition). On May 12, 1980, [herein petitioners], thru new counsel, filed a motion to change administratrix (Annex "L", Petition) to which [herein private respondent] Rosalia filed an opposition (Annex "M", Ibid). The parties were subsequently ordered to submit their respective position papers, which they did (Annexes "N" and "O", Petition). On September 14, 1989, former counsel of (herein petitioners) entered his re-appearance as counsel for (herein petitioners). On the bases of memoranda submitted by the parties, the [trial court], this time presided by Judge Vivencio A. Galon, promulgated its decision on June 26, 1991, the dispositive portion of which states: WHEREFORE, premises considered, judgment is hereby rendered as follows by declaring and ordering: 1. That the entire intestate estate of Maria Villafranca Sanchez under Special Proceedings No. 44-M consists of all her paraphernal properties and one-half (1/2) of the conjugal properties which must be divided equally between Rosalia Sanchez de Lugod and Juan C. Sanchez; 2. That the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 consists of all his capital properties, one-half (1/2) from the conjugal partnership of gains and one-half (1/2) of the intestate estate of Maria Villafranca under Special Proceedings No. 44-M; 3. That one-half (1/2) of the entire intestate estate of Juan C. Sanchez shall be inherited by his only legitimate daughter, Rosalia V. Sanchez de Lugod while the other one-half (1/2) shall be inherited and be divided equally by, between and among the six (6) illegitimate children, namely: Patricia Alburo, Maria Ramuso Sanchez, Rolando Pedro T. Sanchez, Florida Mierly T. Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez; 4. That all the Deed (sic) of Absolute Sales executed by Juan C. Sanchez and Maria Villafranca in favor of Rosalia Sanchez Lugod, Arturo S. Lugod, Evelyn S. Lugod and

Roberto S. Lugod on July 26, 1963 and June 26, 1967 are all declared simulated and fictitious and must be subject to collation and partition among all heirs; 5. That within thirty (30) days from finality of this decision, Rosalia Sanchez Lugod is hereby ordered to prepare a project of partition of the intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 and distribute and deliver to all heirs their corresponding shares. If she fails to do so within the said thirty (30) days, then a Board of Commissioners is hereby constituted, who are all entitled to honorarium and per diems and other necessary expenses chargeable to the estate to be paid by Administratrix Rosalia S. Lugod, appointing the Community Environment and Natural Resources Officer (CENRO) of Gingoog City as members thereof, with the task to prepare the project of partition and deliver to all heirs their respective shares within ninety (90) days from the finality of said decision; 6. That within thirty (30) days from receipt of this decision, Administratrix Rosalia Sanchez Vda. de Lugod is hereby ordered to submit two (2) separate certified true and correct accounting, one for the income of all the properties of the entire intestate estate of Maria Villafranca under Special Proceedings No. 44-M, and another for the properties of the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 duly both signed by her and both verified by a Certified Public Accountant and distribute and deliver to her six (6) illegitimate brothers and sisters in equal shares, one-half (1/2) of the net income of the estate of Juan C. Sanchez from October 21, 1968 up to the finality of this decision; 7. For failure to render an accounting report and failure to give cash advances to the illegitimate children of Juan C. Sanchez during their minority and hour of need from the net income of the estate of Juan C. Sanchez, which adversely prejudiced their social standing and pursuit of college education, (the trial court) hereby orders Rosalia Sanchez Vda. de Lugod to pay her six (6) illegitimate brothers and sisters the sum of Five Hundred Thousand (P500,000.00) Pesos, as exemplary damages, and also the sum of One Hundred Fifty Thousand (P150,000.00) Pesos for attorney's fees; 8. Upon release of this decision and during its pendency, should appeal be made, the Register of Deeds and Assessors of the Provinces and Cities where the properties of Juan C. Sanchez and Maria Villafranca are located, are all ordered to register and annotate in the title and/or tax declarations, the dispositive portion of this decision for the protection of all heirs and all those who may be concerned. SO ORDERED. [Herein private respondent] Rosalia filed a motion for reconsideration dated July 17, 1991 (Annex "P", Petition) on August 6, 1991. On August 13, 1991, [herein petitioners] filed a motion for execution and opposition to [herein private respondent] Rosalia's motion for reconsideration (Annex "Q", Petition). On September 3, 1991, [the trial court] issued an Omnibus Order (Annex "S", Petition) declaring, among other things, that the decision at issue had become final and executory. [Herein private respondent] Rosalia then filed a motion for reconsideration of said Omnibus Order (Annex "T", Petition). Said [herein private respondent] was allowed to file a memorandum in support of her motion (Annex "V", Petition). On June 26, 1991, [the trial court] issued and Order denying petitioner Rosalia's motion for reconsideration (Annex "W", Petition). 7 Thereafter, private respondents elevated the case to the Court of Appeals via a petition for certiorari and contended: I The [trial court] has no authority to disturb the compromise agreement. II

The [trial court] has arbitrarily faulted [herein private respondent] Rosalia S. Lugod for alleged failure to render an accounting which was impossible. III The [trial court] acted without jurisdiction in derogation of the constitutional rights of [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod when [the trial court] decided to annul the deed of sale between the said [herein private respondents] and Juan C. Sanchez without affording them their day in court. IV [The trial court judge] defied without rhyme or reason well-established and entrenched jurisprudence when he determined facts sans any evidence thereon. V [The trial court] grossly misinterpreted [herein private respondent] Rosalia S. Lugod's right to appeal. 8 For clarity's sake, this Court hereby reproduces verbatim the compromise agreement 9 of the parties: COMPROMISE AGREEMENT COME NOW, the parties in the above-entitled case, motivated by their mutual desire to preserve and maintain harmonious relations between and among themselves, for mutual valuable considerations and in the spirit of good will and fair play, and, for the purpose of this Compromise Agreement, agree to the following: 1. That the deceased Juan C. Sanchez who died intestate on October 21, 1968 was legally married to Maria Villafranca de Sanchez, who predeceased her on September 29, 1967, out of whose wedlock Rosalia Sanchez Lugod, Oppositor herein, was born, thus making her the sole and only surviving legitimate heir of her deceased parents; 2. That the said deceased Juan C. Sanchez, left illegitimate children, Intervenors-Oppositors and Petitioners, respectively, herein namely; (1) Patricio Alburo, born out of wedlock on March 17, 1926 at Cebu City, Philippines, to Emilia Alburo; (2) Maria Ramoso Sanchez, born out of wedlock on May 9, 1937 at Gingoog, Misamis Oriental, now, Gingoog City, to Alberta Ramoso; (3) (a) Rolando Pedro Sanchez, born on May 19, 1947, (b) Florida Mierly Sanchez, born on February 16, 1949, (c) Alfredo Sanchez, born on July 21, 1950, and (d) Myrna Sanchez, born on June 16, 1952, all born out of wedlock to Laureta Tampus in Gingoog City, Philippines. 3. That the deceased Juan C. Sanchez left the following properties, to wit: I. SEPARATE CAPITAL OF JUAN C. SANCHEZ NATURE, DESCRIPTION AND AREA ASSESSED VALUE (1) Agricultural Land. Covered by Tax. Decl. No. 06458, Cad. Lot No. 1041 C-2, located at Murallon, Gingoog City and bounded on the North by Lot Nos. 1033, 1035, 1036, 1037, 1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088, 1087 & 1084; East by Lot Nos. 1089, 1061 & 2319; West by Lot Nos. 954, 1038, 1057 & 1056,

containing an area of ONE HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED SEVENTY TWO (183, 672) sq. ms. more or less. P21,690.00 II. CONJUGAL PROPERTY OF JUAN C. SANCHEZ AND MARIA VILLAFRANCA DE SANCHEZ (1) Agricultural Land. Covered by Tax Decl. No. 06447, Cad. Lot No. 2745, C-7 located at Agay-ayan, Gingoog City and bounded on the North by Lot Nos. 2744, 2742, 2748; South by Lot No. 2739; East by Lot No. 2746; West by Lot No. 2741, containing an area of FOURTEEN THOUSAND SEVEN HUNDRED (14,700) sq. ms. more or less. P1,900.00 (2) Agricultural Land. Covered by Tax Decl. No. 06449, Cad, Lot No. 3271 C-7 located at Panyangan, Lanao, Gingoog City and bounded on the North by Lot No. 3270; South by Lot Nos. 2900 & 3462; East by Panyangan River & F. Lumanao; and Part of Lot 3272; and West by Samay Creek, containing an area of ONE HUNDRED FOUR THOUSAND SIX HUNDRED (104,600) sq. ms. more or less. P11,580.00 (3) Agricultural Land. Covered by Tax Decl. No. 06449, Cad. Lot No. 2319, Case 2, located at Murallon, Gingoog City and bounded on the North by Lot No. 1061; South by Hinopolan Creek; East by Lot No. 1044; and West by Lot No. 1041, containing an area of THREE THOUSAND TWO HUNDRED TWENTY FIVE (3,225) sq. ms. more or less. (4) Agricultural Land. Covered by Tax Decl. No. 06452, Cad. Lot No. 3272, C-7 Part 4 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot Nos. 3270 & 3273; East by Panyangan River; South by Panyangan River; and West by Lot Nos. 3270 & 3271, containing an area of FIFTY FIVE THOUSAND SIX HUNDRED (55,600) sq. ms. more or less, being claimed by Damian Querubin. P2,370.00 (5) Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 & 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHT THREE THOUSAND SIX HUNDRED (483,600) sq. ms. more or less. P61,680.00 (6) Agricultural Land. Covered by Tax Decl. No. 06457, Cad. Lot No. 3273, C-7 Part 2 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot No. 3269; South by Lot No. 3272; East by Panyangan River; and West by Lot No. 3270, containing an area of THIRTY FOUR THOUSAND THREE HUNDRED (34,300) sq. ms. more or less, being claimed by Miguel Tuto. P3,880.00 (7) Agricultural Land. Covered by Tax Decl. No. 12000, Cad. Lot No. 2806, Case 7 located at Agayayan, Gingoog City and bounded on the North by Agayayan River; South by Victoriano Barbac; East by Isabelo Ramoso; and West by Restituto Baol, containing an area of SIX THOUSAND SIX HUNDRED SEVENTY SIX (6,676) sq. ms. more or less. P380.00 (8) Agricultural Land. Covered by Tax Decl. No. 12924, Cad. Lot No. 1206 C-1 located at Cahulogan, Gingoog City and bounded on the NW., by Lot No. 1209; SW., by Lot No. 1207; Eastby National Highway; and West by Lot No. 1207; containing an area of FOUR THOUSAND FIVE HUNDRED THIRTEEN (4,513) sq. ms. more or less. P740.00

(9) Agricultural Land. Covered by Tax Decl. No. 12925, Cad. Lot No. 5554, located at Tinaytayan, Pigsalohan, Gingoog City and bounded on the North by Lot Nos. 5559 & 5558; South by Lot No. 3486; East by Lot No. 5555; and West by Lot No. 5355, containing an area of EIGHTEEN THOUSAND FIVE HUNDRED TWENTY EIGHT (18,528) sq. ms. more or less. P320.00 (10) Agricultural Land. Covered by Tax Decl. No. 12926, Cad. Lot No. 5555 C-7 located at Tinaytayan, Pigsalojan, Gingoog City and bounded on the North by Tinaytayan Creek & Lot Nos. 5557 & 5558; South by Lot Nos. 3486, 3487, 3488, 3491 & 3496; East by Cr. & Lot No. 3496; and West by Lot No. 5554, containing an area of SEVENTY SEVEN THOUSAND SEVEN HUNDRED SEVENTY SIX (77,776) sq. ms. more or less. P1,350.00 (11) A Commercial Land. Covered by Tax Decl. No. 06454, Cad. Lot No. 61-C-1 located at Guno-Condeza Sts., Gingoog City and bounded on the North by Lot 64; South by Road-Lot 613 Condeza St; East by Lot Nos. 63, and 62; West by Road-Lot 614-Guno St., containing an area of ONE THOUSAND FORTY TWO (1,042) sq. ms. more or less. P9,320.00 (12) A Commercial Land. Covered by Tax Decl. No. 06484, Lot No. 5, Block 2, located at Cabuyoan, Gingoog City and bounded on the North by Lot No. 4, block 2; South by Lot No. 8, block 2; East by Lot No. 6, block 2, West by Subdivision Road, containing an area of FOUR HUNDRED (400) sq. ms. more or less. P12,240.00 (13) A Commercial Land. Covered by Tax Decl. No. 15798, Block No. 7-A-16-0 located at Cabuyoan, Gingoog City and bounded on the North by Lot No. 7-A-16-0; South by Lot No. 7-16-0; East by Lot No. 7-A-18-Road; West by Lot No. 8, PSU-120704-Julito Arengo vs. Restituto Baol, containing an area of TWO HUNDRED SIXTEEN (216) sq. ms. more or less. P1,050.00 (14) Agricultural Land. Covered by Tax, Decl. No. 06789, Cad. Lot No. 5157-C-7, located at Kiogat, Agayayan, Gingoog City and bounded on the North by Lot No. 5158, 5159, 5156; South by SE-Steep Bank; East by NW, by Lot No. 5158, Villafranca, containing an area of NINETY SIX THOUSAND TWO HUNDRED (96,200) sq. ms. more or less. P3,370.00 III. PERSONAL ESTATE (CONJUGAL) NATURE AND DESCRIPTION LOCATION APPRAISAL 1. Fifty (50) shares of stock Rural Bank of Gingoog, Inc. at P100.00 per share P5,000.00 2. Four (4) shares of Preferred Stock with San Miguel Corporation 400.00 4. That, the parties hereto have agreed to divide the above-enumerated properties in the following manner, to wit: (a) To Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro T. Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez, in equal pro-indiviso shares, considering not only their respective areas but also the improvements existing thereon, to wit:

Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED (483,600) sq. ms. and assessed in the sum of P61,680.00. (b) To Rosalia Sanchez Lugod all the rest of the properties, both real and personal, enumerated above with the exception of the following: (1) Two Preferred Shares of Stock in the San Miguel Corporation, indicated in San Miguel Corporation Stock Certificate No. 30217, which two shares she is ceding in favor of Patricio Alburo; (2) The house and lot designated as Lot No. 5, Block 2 together with the improvements thereon and identified as parcel No. II-12, lot covered by Tax Decl. No. 15798 identified as Parcel No. II-13 in the above enumerated, and Cad. Lot No. 5157C-7 together with the improvements thereon, which is identified as parcel No. II-14 of the aboveenumeration of properties, which said Rosalia S. Lugod is likewise ceding and renouncing in favor of Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, in equal proindiviso shares; 5. That Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez hereby acknowledge to have received jointly and severally in form of advances after October 21, 1968 the aggregate sum of EIGHT THOUSAND FIVE HUNDRED THIRTY-THREE PESOS (P8,533.94) and NINETY-FOUR CENTAVOS; 6. That the parties hereto likewise acknowledge and recognize in the indebtedness of the deceased Juan G. Sanchez and his deceased wife Maria Villafranca Sanchez to the Lugod Enterprises, Inc., in the sum of P43,064.99; 7. That the parties hereto shall be responsible for the payment of the estate and inheritance taxes proportionate to the value of their respective shares as may be determined by the Bureau of Internal Revenue and shall likewise be responsible for the expenses of survey and segregation of their respective shares; 8. That Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro Sanchez, Florida Mierly Sanchez, Alfredo Sanchez and Myrna Sanchez hereby waive, relinquish and renounce, jointly and individually, in a manner that is absolute and irrevocable, all their rights and interests, share and participation which they have or might have in all the properties, both real and personal, known or unknown and/or which may not be listed herein, or in excess of the areas listed or mentioned herein, and/or which might have been, at one time or another, owned by, registered or placed in the name of either of the spouses Juan C. Sanchez or Maria Villafranca de Sanchez or both, and which either one or both might have sold, ceded, transferred, or donated to any person or persons or entity and which parties hereto do hereby confirm and ratify together with all the improvements thereon, as well as all the produce and proceeds thereof, and particularly of the properties, real and personal listed herein, as well as demandable obligations due to the deceased spouses Juan C. Sanchez, before and after the death of the aforementioned spouses Juan C. Sanchez and Maria Villafranca de Sanchez, in favor of oppositor Rosalia S. Lugod; 9. That the expenses of this litigation including attorney's fees shall be borne respectively by the parties hereto; 10. That Laureta Tampus for herself and guardian ad-litem of her minor children, namely: Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez, hereby declare that she has no right, interest, share and participation whatsoever in the estate left by Juan C. Sanchez and/or Maria Villafranca de Sanchez, or both, and that she likewise waives, renounces, and relinquishes whatever rigid, share, participation or interest therein which she has or might have in favor of Rosalia S. Lugod; 11. That, the parties hereto mutually waive and renounce in favor of each other any whatever claims or actions, arising from, connected with, and as a result of Special Proceedings Nos. 44-M and 1022 of the Court of First

Instance of Misamis Oriental, Rosalia S. Lugod, warranting that the parcel of land ceded to the other parties herein contains 48 hectares and 36 ares. 12. That, Rosalia S. Lugod shall assume as she hereby assumes the payment to Lugod Enterprises, Inc., of the sum of P51,598.93 representing the indebtedness of the estate of Juan C. Sanchez and Maria Villafranca de Sanchez and the advances made to Rolando Pedro, Mierly, Alfredo, and Myna all surnamed Sanchez, mentioned in paragraphs 5 hereto agree to have letters of administration issued in favor of Rosalia S. Lugod without any bond. That Rosalia S. Lugod likewise agrees to deliver possession and enjoyment of the parcel of land herein ceded to petitioners and intervenors immediately after the signing of this agreement and that the latter also mutually agree among themselves to have the said lot subdivided and partitioned immediately in accordance with the proportion of one sixth (1/6) part for every petitioner and intervenor and that in the meantime that the partition and subdivision is not yet effected, the administrations of said parcel of land shall be vested jointly with Laureta Tampos, guardian ad litem of petitioners and Maria Ramoso, one of the intervenors who shall see to it that each petitioner and intervenor is given one sixth (1/6) of the net proceeds of all agricultural harvest made thereon. WHEREFORE, it is most respectfully prayed that the foregoing compromise agreement be approved. Medina, Misamis Oriental, October 30, 1969. (Sgd.) (Sgd.) PATRICIO ALBURO ROSALIA S. LUGOD Intervenor-Oppositor Oppositor (Sgd.) MARIA RAMOSO SANCHEZ ASSISTED BY: Intervenor-Oppositor (Sgd.) ASSISTED BY: PABLO S. REYES R-101-Navarro Bldg. (Sgd.) Don A. Velez St. REYNALDO L. FERNANDEZ Cagayan de Oro City Gingoong City (Sgd.) (Sgd.) ROLANDO PEDRO T. SANCHEZ ALFREDO T. SANCHEZ Petitioner Petitioner (Sgd.) (Sgd.) FLORIDA MIERLY T. SANCHEZ MYRNA T. SANCHEZ Petitioner Petitioner (Sgd.) LAURETA TAMPUS For herself and as Guardian Ad-Litem of the minors Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez ASSISTED BY: TEOGENES VELEZ, JR. Counsel for Petitioners Cagayan de Oro City The Clerk of Court Court of First Instance Branch III, Medina, Mis. Or. Greetings:

Please set the foregoing compromise agreement for the approval of the Honorable Court today, Oct. 30, 1969. (Sgd.) (Sgd.) (Sgd.) PABLO S. REYES TEOGENES VELEZ, JR. REYNALDO L. FERNANDEZ The Memorandum of Agreement dated April 13, 1970, which the parties entered into with the assistance of their counsel, amended the above compromise. (It will be reproduced later in our discussion of the second issue raised by the petitioners.) The Court of Appeals, in a Resolution 10 dated September 4, 1992, initially dismissed private respondents' petition. Acting, however, on a motion for reconsideration and a supplemental motion for reconsideration dated September 14, 1992 and September 25, 1992, respectively, 11 Respondent Court thereafter reinstated private respondents' petition in a resolution 12 dated October 14, 1992. In due course, the Court of Appeals, as earlier stated, rendered its assailed Decision granting the petition, setting aside the trial court's decision and declaring the modified compromise agreement valid and binding. Hence, this appeal to this Court under Rule 45 of the Rules of Court. The Issues In this appeal, petitioners invite the Court's attention to the following issues: I The respondent court grossly erred in granting the petition for certiorari under Rule 65 considering that the special civil action of certiorari may not be availed of as a substitute for an appeal and that, in any event, the grounds invoked in the petition are merely alleged errors of judgment which can no longer be done in view of the fact that the decision of the lower court had long become final and executory. II Prescinding from the foregoing, the respondent court erred in annulling the decision of the lower court for the reason that a compromise agreement or partition as the court construed the same to be, executed by the parties on October 30, 1969 was void and unenforceable the same not having been approved by the intestate court and that the same having been seasonably repudiated by petitioners on the ground of fraud. III The respondent court grossly erred in ignoring and disregarding findings of facts of the lower court that the alleged conveyances of real properties made by the spouses Juan C. Sanchez and Maria Villafranca just before their death in favor of their daughter and grandchildren, private respondents herein, are tainted with fraud or made in contemplation of death, hence, collationable. IV In any event, the respondent court grossly erred in treating the lower court's declaration of fictitiousness of the deeds of sale as a final adjudication of annulment. V The respondent court grossly erred in declaring the termination of the intestate proceedings even as the lower court had not made a final and enforceable distribution of the estate of the deceased Juan C. Sanchez. VI Prescinding from the foregoing, the respondent court grossly erred in not at least directing respondent Rosalia S. Lugod to deliver the deficiency of eight (8) hectares due petitioners under the compromise agreement and memorandum of agreement, and in not further directing her to include in the inventory properties conveyed under the deeds of sale found by the lower court to be part of the estate of Juan C. Sanchez. 13

The salient aspects of some issues are closely intertwined; hence, they are hereby consolidated into three main issues specifically dealing with the following subjects: (1) the propriety of certiorari as a remedy before the Court of Appeals, (2) the validity of the compromise agreement, and (3) the presence of fraud in the execution of the compromise and/or collation of the properties sold. The Court's Ruling The petition is not meritorious. First Issue: Propriety of Certiorari Before the Court of Appeals Since private respondents had neglected or failed to file an ordinary appeal within the reglementary period, petitioners allege that the Court of Appeals erred in allowing private respondent's recourse to Rule 65 of the Rules of Court. They contend that private respondents' invocation of certiorari was "procedurally defective." 14 They further argue that private respondents, in their petition before the Court of Appeals, alleged errors of the trial court which, being merely errors of judgment and not errors of jurisdiction, were not correctable by certiorari. 15 This Court disagrees. Doctrinally entrenched is the general rule that certiorari is not a substitute for a lost appeal. However, Justice Florenz D. Regalado lists several exceptions to this rule, viz.: "(1) where the appeal does not constitute a speedy and adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were involved from orders issued in a single proceeding which will inevitably result in a proliferation of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar. 29, 1974); (2) where the orders were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. vs. Sarmiento, et al., L45137, Sept. 231985); (3) for certain special consideration, as public welfare or public policy (See Jose vs. Zulueta, et al. 16598, May 31, 1961 and the cases cited therein); (4) where in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (People vs. Abalos, L029039, Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June 29, 1982); and (6) where the decision in the certiorari case will avoid future litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975)." 16 Even in a case where the remedy of appeal was lost, the Court has issued the writ ofcertiorari where the lower court patently acted in excess of or outside its jurisdiction, 17 as in the present case. A petition for certiorari under Rule 65 of the Rules of Court is appropriate and allowable when the following requisites concur: (1) the writ is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. 18 After a thorough review of the case at bar, we are convinced that all these requirements were met. As a probate court, the trial court was exercising judicial functions when it issued its assailed resolution. The said court had jurisdiction to act in the intestate proceedings involved in this case with the caveat that, due to its limited jurisdiction, it could resolve questions of title only provisionally. 19 It is hornbook doctrine that "in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar." 20 In the instant case, the trial court rendered a decision declaring as simulated and fictitious all the deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor of their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled further that the properties covered by the said sales must be subject to collation. Citing Article 1409 (2) of the Civil Code, the lower court nullified said deeds of sale and determined with finality the ownership of the properties subject thereof . In doing so, it clearly overstepped its jurisdiction as a probate court. Jurisprudence teaches: [A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is not dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. 21 Furthermore, the trial court committed grave abuse of discretion when it rendered its decision in disregard of the parties' compromise agreement. 22 Such disregard, on the ground that the compromise agreement "was nor approved by the court," 23 is tantamount to "an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation and within the bounds of law. " 24 The foregoing issues clearly involve not only the correctness of the trial court's decision but also the latter's jurisdiction. They encompass plain errors of jurisdiction and grave abuse of discretion, not merely errors of judgment. 25 Since the trial court exceeded its jurisdiction, a petition for certiorari is certainly a proper remedy. Indeed, it is well-settled that "(a)n act done by a probate court in excess of its jurisdiction may be corrected by certiorari." 26

Consistent with the foregoing, the following disquisition by respondent appellate court is apt: As a general proposition, appeal is the proper remedy of petitioner Rosalia here under Rule 109 of the Revised Rules of Court. But the availability of the ordinary course of appeal does not constitute sufficient ground to [prevent] a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient (Echauz vs. Court of Appeals, 199 SCRA 381). Here, considering that the respondent court has disregarded the compromise agreement which has long been executed as early as October, 1969 and declared null and void the deeds of sale with finality, which, as a probate court, it has no jurisdiction to do, We deem ordinary appeal is inadequate. Considering further the [trial court's] granting of [herein petitioners') motion for execution of the assailed decision, 27 [herein private respondent] Rosalia's resort to the instant petition [for review on certiorari] is all the more warranted under the circumstances. 28 We thus hold that the questioned decision and resolutions of the trial court may be challenged through a special civil action for certiorari under Rule 65 of the Rules of Court. At the very least, this case is a clear exception to the general rule that certiorari is not a substitute for a lost appeal because the trial court's decision and resolutions were issued without or in excess of jurisdiction, which may thus be challenged or attacked at any time. "A void judgment for want of jurisdiction is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void; ' . . . it may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.' " 29 Second Issue: Validity of Compromise Agreement Petitioners contend that, because the compromise agreement was executed during the pendency of the probate proceedings, judicial approval is necessary to shroud it with validity. They stress that the probate court had jurisdiction over the properties covered by said agreement. They add that Petitioners Florida Mierly, Alfredo and Myrna were all miners represented only by their mother/natural guardian, Laureta Tampus. 30 These contentions lack merit. Article 2028 of the Civil Code defines a compromise agreement as "a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced." Being a consensual contract, it is perfected upon the meeting of the minds of the parties. Judicial approval is not required for its perfection. 31 Petitioners' argument that the compromise was not valid for lack of judicial approval is not novel; the same was raised in Mayuga vs. Court of Appeals, 32 where the Court, through Justice Irene R. Cortes, ruled: It is alleged that the lack of judicial approval is fatal to the compromise. A compromise is a consensual contract. As such, it is perfected upon the meeting of the minds of the parties to the contract. (Hernandez v. Barcelon, 23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505 [1945].) And from that moment not only does it become binding upon the parties (De los Reyes v. De Ugarte, supra ), it also has upon them the effect and authority of res judicata (Civil Code, Art. 2037),even if not judicially approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23 SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71 [April 22, 1977], 76 SCRA 361). (Emphasis found in the original.) In the case before us, it is ineludible that the parties knowingly and freely entered into a valid compromise agreement. Adequately assisted by their respective counsels, they each negotiated its terms and provisions for four months; in fact, said agreement was executed only after the fourth draft. As noted by the trial court itself, the first and second drafts were prepared successively in July, 1969; the third draft on September 25, 1969; and the fourth draft, which was finally signed by the parties on October 30, 1969, 33 followed. Since this compromise agreement was the result of a long drawn out process, with all the parties ably striving to protect their respective interests and to come out with the best they could, there can be no doubt that the parties entered into it freely and voluntarily. Accordingly, they should be bound thereby. 34 To be valid, it is merely required under the law to be based on real claims and actually agreed upon in good faith by the parties thereto. 35 Indeed, compromise is a form of amicable settlement that is not only allowed but also encouraged in civil cases. 36Article 2029 of the Civil Code mandates that a "court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise." In opposing the validity and enforcement of the compromise agreement, petitioners harp on the minority of Florida Mierly, Alfredo and Myna. Citing Article 2032 of the Civil Code, they contend that the court's approval is necessary in compromises entered into by guardians and parents in behalf of their wards or children. 37 However, we observe that although denominated a compromise agreement, the document in this case is essentially a deed of partition, pursuant to Article 1082 of the Civil Code which provides that "[e]very act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction."

For a partition to be valid, Section 1, Rule 74 of the Rules of Court, requires the concurrence of the following conditions: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all had been paid; (3) the heirs and liquidators are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; and (4) the partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds. 38 We find that all the foregoing requisites are present in this case. We therefore affirm the validity of the parties' compromise agreement/partition in this case. In any event, petitioners neither raised nor ventilated this issue in the trial court. This new question or matter was manifestly beyond the pale of the issues or questions submitted and threshed out before the lower court which are reproduced below, viz.: I Are the properties which are the object of the sale by the deceased spouses to their grandchildren collationable? II Are the properties which are the object of the sale by the deceased spouses to their legitimate daughter also collationable? III The first and second issues being resolved, how much then is the rightful share of the four (4) recognized illegitimate children? 39 Furthermore, the 27-page Memorandum dated February 17, 1990 filed by petitioners before the Regional Trial Court 40 readily reveals that they never questioned the validity of the compromise. In their comment before the Court of Appeals, 41 petitioners based their objection to sad compromise agreement on the solitary "reason that it was tainted with fraud and deception," zeroing specifically on the alleged fraud committed by private respondent Rosalia S. Lugod. 42 The issue of minority was first raised only in petitioners' Motion for Reconsideration of the Court of Appeals' Decision; 43 thus, it "is as if it was never duly raised in that court at all." 44 Hence, this Court cannot now, for the first time on appeal, entertain this issue, for to do so would plainly violate the basic rule of fair play, justice and due process. 45 We take this opportunity to reiterate and emphasize the well-settled rule that "(a)n issue raised for the first time on appeal and not raised timely in the proceedings in the lower court is barred by estoppel. Questions raised on appeal must be within the issues framed by the parties and, consequently, issues not raised in the trial court cannot be raised for the first time on appeal." 46 The petitioners likewise assail as void the provision on waiver contained in No. 8 of the aforequoted compromise, because it allegedly constitutes a relinquishment by petitioners of "a right to properties which were not known." 47They argue that such waiver is contrary to law, public policy, morals or good custom. The Court disagrees. The assailed waiver pertained to their hereditary right to properties belonging to the decedent's estate which were not included in the inventory of the estate's properties. It also covered their right to other properties originally belonging to the spouses Juan Sanchez and Maria Villafranca de Sanchez which have been transferred to other persons. In addition, the parties agreed in the compromise to confirm and ratify said transfers. The waiver is valid because, contrary to petitioners' protestation, the parties waived a known and existing interest — their hereditary right which was already vested in them by reason of the death of their father. Article 777 of the Civil Code provides that "(t)he rights to the succession are transmitted from the moment of death of the decedent." Hence, there is no legal obstacle to an heir's waiver of his/her hereditary share "even if the actual extent of such share is not determined until the subsequent liquidation of the estate." 48 At any rate, such waiver is consistent with the intent and letter of the law advocating compromise as a vehicle for the settlement of civil disputes. 49 Finally, petitioners contend that Private Respondent Rosalia T. Lugod's alleged fraudulent acts, specifically her concealment of some of the decedent's properties, attended the actual execution of the compromise agreement. 50 This argument is debunked by the absence of any substantial and convincing evidence on record showing fraud on her part. As aptly observed by the appellate court: [Herein petitioners] accuse [herein private respondent] Rosalia of fraud or deception by alleging, inter alia, that the parcel of land given to them never conformed to the stated area, i.e., forty-eight (48) hectares, as stated in the compromise agreement. We find this argument unconvincing and unmeritorious. [Herein petitioners'] averment of fraud on the part of [herein private respondent] Rosalia becomes untenable when We consider the memorandum of agreement they later executed with [herein private respondent] Rosalia wherein said compromise agreement was modified by correcting the actual area given to [herein petitioners] from forty-eight (48) hectares to thirty-six (36) hectares only. If the actual area allotted to them did not conform to the 48 hectare area stated in the compromise agreement, then why did they agree to the memorandum of agreement whereby their share in the estate of their father was even reduced to just 36 hectares? Where is fraud or deception there? Considering that [herein petitioners] were ably represented by their lawyers in executing these documents and who presumably had explained to them the import and consequences thereof, it is hard to believe their charge that they were defrauded and deceived by [herein private respondent] Rosalia. If the parcel of land given to [herein petitioners], when actually surveyed, happened to be different in area to the stated area of 48 hectares in the compromise agreement, this circumstance is not enough proof of fraud or deception on [herein private respondent] Rosalia's part. Note that Tax Declaration No. 06453 plainly discloses that the land transferred to [herein petitioners] pursuant to the compromise agreement contained an area of 48 hectares (Annex "A", Supplemental Reply). And when [herein petitioners] discovered that the land allotted to

them actually contained only 24 hectares, a conference between the parties took place which led to the execution and signing of the memorandum of agreement wherein [herein petitioners'] distributive share was even reduced to 36 hectares. In the absence of convincing and clear evidence to the contrary, the allegation of fraud and deception cannot be successfully imputed to [herein private respondent] Rosalia who must be presumed to have acted in good faith. 51 The memorandum of agreement freely and validly entered into by the parties on April 13, 1970 and referred to above reads: MEMORANDUM OF AGREEMENT The parties assisted by their respective counsel have agreed as they hereby agree: 1. To amend the compromise agreement executed by them on October 30, 1969 so as to include the following: a. Correction of the actual area being given to the petitioners and intervenors, all illegitimate children of the late Juan C. Sanchez, forty-eight (48) hectares, thirty-six (36) ares as embodied in the aforementioned compromise agreement to thirty-six (36) hectares only, thus enabling each of them to get six (6) hectares each. b. That the said 36-hectare area shall be taken from that parcel of land which is now covered by O.C.T. No. 146 (Patent No. 30012) and the adjoining areas thereof designated as Lot A and Lot C as reflected on the sketch plan attached to the record of this case prepared by Geodetic Engineer Olegario E. Zalles pursuant to the Court's commission of March 10, 1970 provided, however, that if the said 36-hectare area could not be found after adding thereto the areas of said lots A and C, then the additional area shall be taken from what is designated as Lot B, likewise also reflected in the said sketch plan attached to the records; c. That the partition among the six illegitimate children of the late Juan C. Sanchez (petitioners and intervenors) shall be effective among themselves in such a manner to be agreed upon by them, each undertaking to assume redemption of whatever plants found in their respective shares which need redemption from the tenants thereof as well as the continuity of the tenancy agreements now existing and covering the said shares or areas. d. The subdivision survey shall be at the expense of the said petitioners and intervenors prorata. e. That the administratrix agrees to deliver temporary administration of the area designated as Lot 5 of the Valles Sketch Plan pending final survey of the said 36-hectare area. Cagayan de Oro City, April 13, 1970. (Sgd.) LAURETA TAMPOS For herself and as Guardian ad-litem of Rolando, Mierly, Alfredo and Myrna, all surnamed Sanchez Assisted by: (Sgd.) TEOGENES VELEZ, Jr. Counsel for Petitioners (Sgd.) ROSALIA S. LUGOD Administratrix Assisted by:

(Sgd.) PABLO S. REYES Counsel for Administratrix (Sgd.) MARIA RABOSO SANCHEZ Intervenor 52 Not only did the parties knowingly enter into a valid compromise agreement; they even amended it when they realized some errors in the original. Such correction emphasizes the voluntariness of said deed. It is also significant that all the parties, including the then minors, had already consummated and availed themselves of the benefits of their compromise. 53 This Court has consistently ruled that "a party to a compromise cannot ask for a rescission after it has enjoyed its benefits." 54 By their acts, the parties are ineludibly estopped from questioning the validity of their compromise agreement. Bolstering this conclusion is the fact that petitioners questioned the compromise only nine years after its execution, when they filed with the trial court their Motion to Defer Approval of Compromise Agreement, dated October 26, 1979. 55 In hindsight, it is not at all farfetched that petitioners filed said motion for the sole reason that they may have felt shortchanged in their compromise agreement or partition with private respondents, which in their view was unwise and unfair. While we may sympathize with this rueful sentiment of petitioners, we can only stress that this alone is not sufficient to nullify or disregard the legal effects of said compromise which, by its very nature as a perfected contract, is binding on the parties. Moreover, courts have no jurisdiction to look into the wisdom of a compromise or to render a decision different therefrom. 56 It is a well-entrenched doctrine that "the law does not relieve a party from the effects of an unwise, foolish, or disastrous contract, entered into with all the required formalities and with full awareness of what he was doing" 57 and "a compromise entered into and carried out in good faith will not be discarded even if there was a mistake of law or fact, (McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no power to relieve parties from obligations voluntarily assumed, simply because their contracts turned out to be disastrous deals or unwise investments." 58 Volenti non fit injuria. Corollarily, the petitioners contend that the Court of Appeals gravely abused its discretion in deeming Special Proceedings Nos. 44M and 1022 "CLOSED and TERMINATED," arguing that there was as yet no order of distribution of the estate pursuant to Rule 90 of the Rules of Court. They add that they had not received their full share thereto. 59 We disagree. Under Section 1, Rule 90 of the Rules of Court, an order for the distribution of the estate may be made when the "debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any," had been paid. This order for the distribution of the estate's residue must contain the names and shares of the persons entitled thereto. A perusal of the whole record, particularly the trial court's conclusion, 60 reveals that all the foregoing requirements already concurred in this case. The payment of the indebtedness of the estates of Juan C. Sanchez and Maria Villafranca in the amount of P51,598.93 was shouldered by Private Respondent Rosalia, who also absorbed or charged against her share the advances of Rolando T. Lugod in the sum of P8,533.94, in compliance with Article 1061 of the Civil Code on collation. 61 Furthermore, the compromise of the parties, which is the law between them, already contains the names and shares of the heirs to the residual estate, which shares had also been delivered. On this point, we agree with the following discussion of the Court of Appeals: But what the (trial court) obviously overlooked in its appreciation of the facts of this case are the uncontroverted facts that (herein petitioners) have been in possession and ownership of their respective distributive shares as early as October 30, 1969 and they have received other properties in addition to their distributive shares in consideration of the compromise agreement which they now assail. Proofs thereof are Tax Declarations No. 20984, 20985, 20986, 20987, 20988, 20989 and 20990 (Annexes "B" to "H", Supplemental Reply) in the respective names of (herein petitioners), all for the year 1972. (Herein petitioners) also retained a house and lot, a residential lot and a parcel of agricultural land (Annexes "I", "J" and "K", Ibid.) all of which were not considered in the compromise agreement between the parties. Moreover, in the compromise agreement per se, it is undoubtedly stated therein that cash advances in the aggregate sum of P8,533.94 were received by (herein petitioners) after October 21, 1968 (Compromise Agreement, par. 5) 62 All the foregoing show clearly that the probate court had essentially finished said intestate proceedings which, consequently, should be deemed closed and terminated. In view of the above discussion, the Court sees no reversible error on the part of the Court of Appeals. Third Issue: Fraud and Collation Petitioners fault Respondent Court for not ordering Private Respondent Rosalia T. Lugod to deliver to them the deficiency as allegedly provided under the compromise agreement. They further contend that said court erred in not directing the provisional inclusion of the alleged deficiency in the inventory for purposes of collating the properties subject of the questioned deeds of sale. 63 We see no such error. In the trial court, there was only one hearing conducted, and it was held only for the reception of the evidence of Rosalia S. Lugod to install her as administratrix of the estate of Maria Villafranca. There was no other evidence, whether testimonial or otherwise, "received, formally offered to, and subsequently admitted by the probate court below"; nor was there "a trial on the merits of the parries' conflicting claims." 64 In fact, the petitioners "moved for the deferment of the compromise agreement on the basis of alleged fraudulent concealment of properties — NOT because of any deficiency in the land conveyed to them under the agreements." 65Hence, there is no hard evidence on record to back up petitioners' claims.

In any case, the trial court noted Private Respondent Rosalia's willingness to reimburse any deficiency actually proven to exist. It subsequently ordered the geodetic engineer who prepared the certification and the sketch of the lot in question, and who could have provided evidence for the petitioners, "to bring records of his relocation survey." 66 However, Geodetic Engineer Idulsa did not comply with the court's subpoena duces tecum and ad testificandum. Neither did he furnish the required relocation survey. 67 No wonder, even after a thorough scrutiny of the records, this Court cannot find any evidence to support petitioners' allegations of fraud against Private Respondent Rosalia. Similarly, petitioners' allegations of fraud in the execution of the questioned deeds of sale are bereft of substance, in view of the palpable absence of evidence to support them. The legal presumption of validity of the questioned deeds of absolute sale, being duly notarized public documents, has not been overcome. 68 On the other hand, fraud is not presumed. It must be proved by clear and convincing evidence, and not by mere conjectures or speculations. We stress that these deeds of sale did not involve gratuitous transfers of future inheritance; these were contracts of sale perfected by the decedents during their lifetime. 69 Hence, the properties conveyed thereby are not collationable because, essentially, collation mandated under Article 1061 of the Civil Code contemplates properties conveyed inter vivos by the decedent to an heir by way of donation or other gratuitous title. In any event, these alleged errors and deficiencies regarding the delivery of shares provided in the compromise, concealment of properties and fraud in the deeds of sale are factual in nature which, as a rule, are not reviewable by this Court in petitions under Rule 45. 70 Petitioners have failed to convince us that this case constitutes an exception to such rule. All in all, we find that the Court of Appeals has sufficiently addressed the issues raised by them. Indeed, they have not persuaded us that said Court committed any reversible error to warrant a grant of their petition. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 124290 January 16, 1998 ALLIED BANKING CORPORATION, petitioner, vs. COURT OF APPEALS , HON. JOSE C. DE GUZMAN, OSCAR D. TAN-QUECO, LUCIA D. TANQUECO-MATIAS, RUBEN D. TANQUECO and NESTOR D. TANQUECO, respondents.

BELLOSILLO, J.: There are two (2) main issues in this petition for review: namely, (a) whether a stipulation in a contract of lease to the effect that the contract "may be renewed for a like term at the option of the lessee" is void for being potestative or violative of the principle of mutuality of contracts under Art. 1308 of the Civil Code and, corollarily, what is the meaning of the clause "may be renewed for a like term at the option of the lessee;" and, (b) whether a lessee has the legal personality to assail the validity of a deed of donation executed by the lessor over the leased premises. Spouses Filemon Tanqueco and Lucia Domingo-Tanqueco owned a 512-square meter lot located at No. 2 Sarmiento Street corner Quirino Highway, Novaliches, Quezon City, covered by TCT No. 136779 in their name. On 30 June 1978 they leased the property to petitioner Allied Banking Corporation (ALLIED) for a monthly rental of P1,000.00 for the first three (3) years, adjustable by 25% every three (3) years thereafter. 1 The lease contract specifically states in its Provision No. 1 that "the term of this lease shall be fourteen (14) years commencing from April 1, 1978 and may be renewed for a like term at the option of the lessee." Pursuant to their lease agreement, ALLIED introduced an improvement on the property consisting of a concrete building with a floor area of 340-square meters which it used as a branch office. As stipulated, the ownership of the building would be transferred to the lessors upon the expiration of the original term of the lease. Sometime in February 1988 the Tanqueco spouses executed a deed of donation over the subject property in favor of their four (4) children, namely, private respondents herein Oscar D. Tanqueco, Lucia Tanqueco-Matias, Ruben D. Tanqueco and Nestor D. Tanqueco, who accepted the donation in the same public instrument. On 13 February 1991, a year before the expiration of the contract of lease, the Tanquecos notified petitioner ALLIED that they were no longer interested in renewing the lease. 2 ALLIED replied that it was exercising its option to renew their lease under the same terms with additional proposals. 3 Respondent Ruben D. Tanqueco, acting in behalf of all the donee-lessors, made a counterproposal. 4 ALLIED however rejected the counter-proposal and insisted on Provision No. 1 of their lease contract. When the lease contract expired in 1992 private respondents demanded that ALLIED vacate the premises. But the latter asserted its sole option to renew the lease and enclosed in its reply letter a cashier's check in the amount of P68,400.00 representing the advance rental payments for six (6) months taking into account the escalation clause. Private respondents however returned the check to ALLIED, prompting the latter to consign the amount in court. An action for ejectment was commenced before the Metropolitan Trial Court of Quezon City. After trial, the MeTC-Br. 33 declared Provision No. 1 of the lease contract void for being violative of Art. 1308 of the Civil Code thus — . . . but such provision [in the lease contract], to the mind of the Court, does not add luster to defendant's cause nor constitutes as an unbridled or unlimited license or sanctuary of the defendants to perpetuate its occupancy on the subject property. The basic intention of the law in any contract is mutuality and equality. In other words, the validity of a contract cannot be left at (sic) the will of one of the contracting parties. Otherwise, it infringes (upon) Article 1308 of the New Civil Code, which provides: The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them . . . Using the principle laid down in the case of Garcia v. Legarda as cornerstone, it is evident that the renewal of the lease in this case cannot be left at the sole option or will of the defendant notwithstanding provision no. 1 of their expired contract. For that would amount to a situation where the continuance and effectivity of a contract will depend only upon the sole will or power of the lessee, which is repugnant to the very spirit envisioned under Article 1308 of the New Civil Code . .

. . the theory adopted by this Court in the case at bar finds ample affirmation from the principle echoed by the Supreme Court in the case of Lao Lim v. CA, 191 SCRA 150, 154, 155. On appeal to the Regional Trial Court, and later to the Court of Appeals, the assailed decision was affirmed. 5 On 20 February 1993, while the case was pending in the Court of Appeals ALLIED vacated the leased premises by reason of the controversy. 6 ALLIED insists before us that Provision No. 1 of the lease contract was mutually agreed upon hence valid and binding on both parties, and the exercise by petitioner of its option to renew the contract was part of their agreement and in pursuance thereof. We agree with petitioner. Article 1308 of the Civil Code expresses what is known in law as the principle of mutuality of contracts. It provides that "the contract must bind both the contracting parties; its validity or compliance cannot be left to the will of one of them." This binding effect of a contract on both parties is based on the principle that the obligations arising from the contracts have the force of law between the contracting parties, and there must be mutuality between them based essentially on their equality under which it is repugnant to have one party bound by the contract while leaving the other free therefrom. The ultimate purpose is to render void a contract containing a condition which makes its fulfillment dependent solely upon the uncontrolled will of one of the contracting parties. An express agreement which gives the lessee the sole option to renew the lease is frequent and subject to statutory restrictions, valid and binding on the parties. This option, which is provided in the same lease agreement, is fundamentally part of the consideration in the contract and is no different from any other provision of the lease carrying an undertaking on the part of the lessor to act conditioned on the performance by the lessee. It is a purely executory contract and at most confers a right to obtain a renewal if there is compliance with the conditions on which the rights is made to depend. The right of renewal constitutes a part of the lessee's interest in the land and forms a substantial and integral part of the agreement. The fact that such option is binding only on the lessor and can be exercised only by the lessee does not render it void for lack of mutuality. After all, the lessor is free to give or not to give the option to the lessee. And while the lessee has a right to elect whether to continue with the lease or not, once he exercises his option to continue and the lessor accepts, both parties are thereafter bound by the new lease agreement. Their rights and obligations become mutually fixed, and the lessee is entitled to retain possession of the property for the duration of the new lease, and the lessor may hold him liable for the rent therefor. The lessee cannot thereafter escape liability even if he should subsequently decide to abandon the premises. Mutuality obtains in such a contract and equality exists between the lessor and the lessee since they remain with the same faculties in respect to fulfillment. 7 The case of Lao Lim v. Court of Appeals 8 relied upon by the trial court is not applicable here. In that case, the stipulation in the disputed compromise agreement was to the effect that the lessee would be allowed to stay in the premises "as long as he needs it and can pay the rents." In the present case, the questioned provision states that the lease "may be renewed for a like term at the option of the lessee." The lessor is bound by the option he has conceded to the lessee. The lessee likewise becomes bound only when he exercises his option and the lessor cannot thereafter be executed from performing his part of the agreement. Likewise, reliance by the trial court on the 1967 case of Garcia v. Rita Legarda, Inc., 9 is misplaced. In that case, what was involved was a contract to sell involving residential lots, which gave the vendor the right to declare the contract called and of no effect upon the failure of the vendee to fulfill any of the conditions therein set forth. In the instant case, we are dealing with a contract of lease which gives the lessee the right to renew the same. With respect to the meaning of the clause "may be renewed for a like term at the option of the lessee," we sustain petitioner's contention that its exercise of the option resulted in the automatic extension of the contract of lease under the same terms and conditions. The subject contract simply provides that "the term of this lease shall be fourteen (14) years and may be renewed for a like term at the option of the lessee." As we see it, the only term on which there has been a clear agreement is the period of the new contract, i.e., fourteen (14) years, which is evident from the clause "may be renewed for a like term at the option of the lessee," the phrase "for a like term"referring to the period. It is silent as to what the specific terms and conditions of the renewed lease shall be. Shall it be the same terms and conditions as in the original contract, or shall it be under the terms and conditions as may be mutually agreed upon by the parties after the expiration of the existing lease? In Ledesma v. Javellana 10 this Court was confronted with a similar problem. In the case the lessee was given the sole option to renew the lease, but the contract failed to specify the terms and conditions that would govern the new contract. When the lease expired, the lessee demanded an extension under the same terms and conditions. The lessor expressed conformity to the renewal of the contract but refused to accede to the claim of the lessee that the renewal should be under the same terms and conditions as the original contract. In sustaining the lessee, this Court made the following pronouncement: . . . in the case of Hicks v. Manila Hotel Company, a similar issue was resolved by this Court. It was held that "such a clause relates to the very contract in which it is placed, and does not permit the defendant upon the renewal of the contract in which the clause is found, to insist upon different terms and those embraced in the contract to be renewed;" and that "a stipulation to renew always relates to the contract in which it is found and

the rights granted thereunder, unless it expressly provides for variations in the terms of the contract to be renewed." The same principle is upheld in American Law regarding the renewal of lease contracts. In 50 Am. Jur. 2d, Sec. 1159, at p. 45, we find the following citations: "The rule is well-established that a general covenant to renew or extend a lease which makes no provision as to the terms of a renewal or extension implies a renewal or extension upon the same terms as provided in the original lease." In the lease contract under consideration, there is no provision to indicate that the renewal will be subject to new terms and conditions that the parties may yet agree upon. It is to renewal provisions of lease contracts of the kind presently considered that the principles stated above squarely apply. We do not agree with the contention of the appellants that if it was intended by the parties to renew the contract under the same terms and conditions stipulated in the contract of lease, such should have expressly so stated in the contract itself. The same argument could easily be interposed by the appellee who could likewise contend that if the intention was to renew the contract of lease under such new terms and conditions that the parties may agree upon, the contract should have so specified. Between the two assertions, there is more logic in the latter. The settled rule is that in case of uncertainty as to the meaning of a provision granting extension to a contract of lease, the tenant is the one favored and not the landlord. "As a general rule, in construing provisions relating to renewals or extensions, where there is any uncertainty, the tenants is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so; and also upon the principle that every man's grant is to be taken most strongly against himself (50 Am Jur. 2d, Sec. 1162, p. 48; see also 51 C.J.S. 599). Besides, if we were to adopt the contrary theory that the terms and conditions to be embodied in the renewed contract were still subject to mutual agreement by and between the parties, then the option — which is an integral part of the consideration for the contract — would be rendered worthless. For then, the lessor could easily defeat the lessee's right of renewal by simply imposing unreasonable and onerous conditions to prevent the parties from reaching an agreement, as in the case at bar. As in a statute no word, clause, sentence, provision or part of a contract shall be considered surplusage or superfluous, meaningless, void, insignificant or nugatory, if that can be reasonably avoided. To this end, a construction which will render every word operative is to be preferred over that which would make some words idle and nugatory. 11 Fortunately for respondent lessors, ALLIED vacated the premises on 20 February 1993 indicating its abandonment of whatever rights it had under the renewal clause. Consequently, what remains to be done is for ALLIED to pay rentals for the continued use of premises until it vacated the same, computed from the expiration of the original term of the contract on 31 March 1992 to the time it actually left the premises on 20 February 1993, deducting therefrom the amount of P68,400.00 consigned in court by ALLIED and any other amount which it may have deposited or advanced in connection with the lease. Since the old lease contract was deemed renewed under the same terms and conditions upon the exercise by ALLIED of its option, the basis of the computation of rentals should be the rental rate provided for in the existing contract. Finally, ALLIED cannot assail the validity of the deed of donation, not being a party thereto. A person who is not principally or subsidiarily bound has no legal capacity to challenge the validity of the contract. 12 He must first have an interest in it. "Interest" within the meaning of the term means material interest, an interest to be affected by the deed, as distinguished from a mere incidental interest. Hence, a person who is not a party to a contract and for whose benefit it was not expressly made cannot maintain an action on it, even if the contract, if performed by the parties thereto would incidentally affect him, 13 except when he is prejudiced in his rights with respect to one of the contracting parties and can show the detriment which could positively result to him from the contract in which he had no intervention. 14 We find none in the instant case. WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE. Considering that petitioner ALLIED BANKING CORPORATION already vacated the leased premises as of 20 February 1993, the renewed lease contract is deemed terminated as of that date. However, petitioner is required to pay rentals to respondent lessors at the rate provided in their existing contract, subject to computation in view of the consignment in court of P68,400.00 by petitioner, and of such other amounts it may have deposited or advanced in connection with the lease. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 102316 June 30, 1997 VALENZUELA HARDWOOD AND INDUSTRIAL SUPPLY INC., petitioner, vs. COURT OF APPEALS AND SEVEN BROTHERS SHIPPING CORPORATION, respondents.

PANGANIBAN, J.: Is a stipulation in a charter party that the "(o)wners shall not be responsible for loss, split, short-landing, breakages and any kind of damages to the cargo" 1 valid? This is the main question raised in this petition for review assailing the Decision of Respondent Court of Appeals 2 in CA-G.R. No. CV-20156 promulgated on October 15, 1991. The Court of Appeals modified the judgment of the Regional Trial Court of Valenzuela, Metro Manila, Branch 171, the dispositive portion of which reads: WHEREFORE, Judgment is hereby rendered ordering South Sea Surety and Insurance Co., Inc. to pay plaintiff the sum of TWO MILLION PESOS (P2,000,000.00) representing the value of the policy of the lost logs with legal interest thereon from the date of demand on February 2, 1984 until the amount is fully paid or in the alternative, defendant Seven Brothers Shipping Corporation to pay plaintiff the amount of TWO MILLION PESOS (2,000,000.00) representing the value of lost logs plus legal interest from the date of demand on April 24, 1984 until full payment thereof; the reasonable attorney's fees in the amount equivalent to five (5) percent of the amount of the claim and the costs of the suit. Plaintiff is hereby ordered to pay defendant Seven Brothers Shipping Corporation the sum of TWO HUNDRED THIRTY THOUSAND PESOS (P230,000.00) representing the balance of the stipulated freight charges. Defendant South Sea Surety and Insurance Company's counterclaim is hereby dismissed. In its assailed Decision, Respondent Court of Appeals held: WHEREFORE, the appealed judgment is hereby AFFIRMED except in so far (sic) as the liability of the Seven Brothers Shipping Corporation to the plaintiff is concerned which is hereby REVERSED and SET ASIDE. 3 The Facts The factual antecedents of this case as narrated in the Court of Appeals Decision are as follows: It appears that on 16 January 1984, plaintiff (Valenzuela Hardwood and Industrial Supply, Inc.) entered into an agreement with the defendant Seven Brothers (Shipping Corporation) whereby the latter undertook to load on board its vessel M/V Seven Ambassador the former's lauan round logs numbering 940 at the port of Maconacon, Isabela for shipment to Manila. On 20 January 1984, plaintiff insured the logs against loss and/or damage with defendant South Sea Surety and Insurance Co., Inc. for P2,000,000.00 and the latter issued its Marine Cargo Insurance Policy No. 84/24229 for P2,000,000.00 on said date. On 24 January 1984, the plaintiff gave the check in payment of the premium on the insurance policy to Mr. Victorio Chua. In the meantime, the said vessel M/V Seven Ambassador sank on 25 January 1984 resulting in the loss of the plaintiff's insured logs.

On 30 January 1984, a check for P5,625.00 (Exh. "E") to cover payment of the premium and documentary stamps due on the policy was tendered due to the insurer but was not accepted. Instead, the South Sea Surety and Insurance Co., Inc. cancelled the insurance policy it issued as of the date of the inception for non-payment of the premium due in accordance with Section 77 of the Insurance Code. On 2 February 1984, plaintiff demanded from defendant South Sea Surety and Insurance Co., Inc. the payment of the proceeds of the policy but the latter denied liability under the policy. Plaintiff likewise filed a formal claim with defendant Seven Brothers Shipping Corporation for the value of the lost logs but the latter denied the claim. After due hearing and trial, the court a quo rendered judgment in favor of plaintiff and against defendants. Both defendants shipping corporation and the surety company appealed. Defendant-appellant Seven Brothers Shipping Corporation impute (sic) to the court a quo the following assignment of errors, to wit: A. The lower court erred in holding that the proximate cause of the sinking of the vessel Seven Ambassadors, was not due to fortuitous event but to the negligence of the captain in stowing and securing the logs on board, causing the iron chains to snap and the logs to roll to the portside. B. The lower court erred in declaring that the non-liability clause of the Seven Brothers Shipping Corporation from logs (sic) of the cargo stipulated in the charter party is void for being contrary to public policy invoking article 1745 of the New Civil Code. C. The lower court erred in holding defendant-appellant Seven Brothers Shipping Corporation liable in the alternative and ordering/directing it to pay plaintiff-appellee the amount of two million (2,000,000.00) pesos representing the value of the logs plus legal interest from date of demand until fully paid. D. The lower court erred in ordering defendant-appellant Seven Brothers Shipping Corporation to pay appellee reasonable attorney's fees in the amount equivalent to 5% of the amount of the claim and the costs of the suit. E. The lower court erred in not awarding defendant-appellant Seven Brothers Corporation its counter-claim for attorney's fees. F. The lower court erred in not dismissing the complaint against Seven Brothers Shipping Corporation. Defendant-appellant South Sea Surety and Insurance Co., Inc. assigns the following errors: A. The trial court erred in holding that Victorio Chua was an agent of defendant-appellant South Sea Surety and Insurance Company, Inc. and likewise erred in not holding that he was the representative of the insurance broker Columbia Insurance Brokers, Ltd. B. The trial court erred in holding that Victorio Chua received compensation/commission on the premiums paid on the policies issued by the defendant-appellant South Sea Surety and Insurance Company, Inc. C. The trial court erred in not applying Section 77 of the Insurance Code. D. The trial court erred in disregarding the "receipt of payment clause" attached to and forming part of the Marine Cargo Insurance Policy No. 84/24229. E. The trial court in disregarding the statement of account or bill stating the amount of premium and documentary stamps to be paid on the policy by the plaintiff-appellee. F. The trial court erred in disregarding the endorsement of cancellation of the policy due to non-payment of premium and documentary stamps. G. The trial court erred in ordering defendant-appellant South Sea Surety and Insurance Company, Inc. to pay plaintiff-appellee P2,000,000.00 representing value of the policy with legal interest from 2 February 1984 until the amount is fully paid,

H. The trial court erred in not awarding to the defendant-appellant the attorney's fees alleged and proven in its counterclaim. The primary issue to be resolved before us is whether defendants shipping corporation and the surety company are liable to the plaintiff for the latter's lost logs. 4 The Court of Appeals affirmed in part the RTC judgment by sustaining the liability of South Sea Surety and Insurance Company ("South Sea"), but modified it by holding that Seven Brothers Shipping Corporation ("Seven Brothers") was not liable for the lost cargo. 5 In modifying the RTC judgment, the respondent appellate court ratiocinated thus: It appears that there is a stipulation in the charter party that the ship owner would be exempted from liability in case of loss. The court a quo erred in applying the provisions of the Civil Code on common carriers to establish the liability of the shipping corporation. The provisions on common carriers should not be applied where the carrier is not acting as such but as a private carrier. Under American jurisprudence, a common carrier undertaking to carry a special cargo or chartered to a special person only, becomes a private carrier. As a private carrier, a stipulation exempting the owner from liability even for the negligence of its agent is valid (Home Insurance Company, Inc. vs. American Steamship Agencies, Inc., 23 SCRA 24). The shipping corporation should not therefore be held liable for the loss of the logs.

6

South Sea and herein Petitioner Valenzuela Hardwood and Industrial Supply, Inc. ("Valenzuela") filed separate petitions for review before this Court. In a Resolution dated June 2, 1995, this Court denied the petition of South Sea. 7 There the Court found no reason to reverse the factual findings of the trial court and the Court of Appeals that Chua was indeed an authorized agent of South Sea when he received Valenzuela's premium payment for the marine cargo insurance policy which was thus binding on the insurer. 8 The Court is now called upon to resolve the petition for review filed by Valenzuela assailing the CA Decision which exempted Seven Brothers from any liability for the lost cargo. The Issue Petitioner Valenzuela's arguments resolve around a single issue: "whether or not respondent Court (of Appeals) committed a reversible error in upholding the validity of the stipulation in the charter party executed between the petitioner and the private respondent exempting the latter from liability for the loss of petitioner's logs arising from the negligence of its (Seven Brothers') captain." 9 The Court's Ruling The petition is not meritorious. Validity of Stipulation is Lis Mota The charter party between the petitioner and private respondent stipulated that the "(o)wners shall not be responsible for loss, split, short-landing, breakages and any kind of damages to the cargo." 10 The validity of this stipulation is the lis mota of this case. It should be noted at the outset that there is no dispute between the parties that the proximate cause of the sinking of M/V Seven Ambassadors resulting in the loss of its cargo was the "snapping of the iron chains and the subsequent rolling of the logs to the portside due to the negligence of the captain in stowing and securing the logs on board the vessel and not due to fortuitous event." 11 Likewise undisputed is the status of Private Respondent Seven Brothers as a private carrier when it contracted to transport the cargo of Petitioner Valenzuela. Even the latter admits this in its petition. 12 The trial court deemed the charter party stipulation void for being contrary to public policy, 13 citing Article 1745 of the Civil Code which provides: Art. 1745. Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy:

(1) That the goods are transported at the risk of the owner or shipper; (2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods; (3) That the common carrier need not observe any diligence in the custody of the goods; (4) That the common carrier shall exercise a degree of diligence less than that of a good father of a family, or of a man of ordinary prudence in the vigilance over the movables transported; (5) That the common carrier shall not be responsible for the acts or omissions of his or its employees; (6) That the common carrier's liability for acts committed by thieves, or of robbers who do not act with grave or irresistible threat, violence or force, is dispensed with or diminished; (7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the contract of carriage. Petitioner Valenzuela adds that the stipulation is void for being contrary to Articles 586 and 587 of the Code of Commerce 14 and Articles 1170 and 1173 of the Civil Code. Citing Article 1306 and paragraph 1, Article 1409 of the Civil Code, 15 petitioner further contends that said stipulation "gives no duty or obligation to the private respondent to observe the diligence of a good father of a family in the custody and transportation of the cargo." The Court is not persuaded. As adverted to earlier, it is undisputed that private respondent had acted as a private carrier in transporting petitioner's lauan logs. Thus, Article 1745 and other Civil Code provisions on common carriers which were cited by petitioner may not be applied unless expressly stipulated by the parties in their charter party. 16 In a contract of private carriage, the parties may validly stipulate that responsibility for the cargo rests solely on the charterer, exempting the shipowner from liability for loss of or damage to the cargo caused even by the negligence of the ship captain. Pursuant to Article 1306 17 of the Civil Code, such stipulation is valid because it is freely entered into by the parties and the same is not contrary to law, morals, good customs, public order, or public policy. Indeed, their contract of private carriage is not even a contract of adhesion. We stress that in a contract of private carriage, the parties may freely stipulate their duties and obligations which perforce would be binding on them. Unlike in a contract involving a common carrier, private carriage does not involve the general public. Hence, the stringent provisions of the Civil Code on common carriers protecting the general public cannot justifiably be applied to a ship transporting commercial goods as a private carrier. Consequently, the public policy embodied therein is not contravened by stipulations in a charter party that lessen or remove the protection given by law in contracts involving common carriers. The issue posed in this case and the arguments raised by petitioner are not novel; they were resolved long ago by this Court in Home Insurance Co. vs. American Steamship Agencies, Inc. 18 In that case, the trial court similarly nullified a stipulation identical to that involved in the present case for being contrary to public policy based on Article 1744 of the Civil Code and Article 587 of the Code of Commerce. Consequently, the trial court held the shipowner liable for damages resulting for the partial loss of the cargo. This Court reversed the trial court and laid down, through Mr. Justice Jose P. Bengzon, the following well-settled observation and doctrine: The provisions of our Civil Code on common carriers were taken from Anglo-American law. Under American jurisprudence, a common carrier undertaking to carry a special cargo or chartered to a special person only, becomes a private carrier. As a private carrier, a stipulation exempting the owner from liability for the negligence of its agent is not against public policy, and is deemed valid. Such doctrine We find reasonable. The Civil Code provisions on common carriers should not be applied where the carrier is not acting as such but as a private carrier. The stipulation in the charter party absolving the owner from liability for loss due to the negligence of its agent would be void if the strict public policy governing common carriers is applied. Such policy has no force where the public at large is not involved, as in this case of a ship totally chartered for the used of a single party. 19(Emphasis supplied.) Indeed, where the reason for the rule ceases, the rule itself does not apply. The general public enters into a contract of transportation with common carriers without a hand or a voice in the preparation thereof. The riding public merely adheres to the contract; even if the public wants to, it cannot submit its own stipulations for the approval of the common carrier. Thus, the law on common carriers extends its protective mantle against one-sided stipulations inserted in tickets, invoices or other documents over which the riding public has no understanding or, worse, no choice. Compared to the general public, a charterer in a contract of private carriage is not similarly situated. It can — and in fact it usually does — enter into a free and voluntary agreement. In practice, the parties in a contract of private carriage can stipulate the carrier's obligations and liabilities over the shipment which, in turn, determine the price or consideration of the charter. Thus, a charterer, in exchange for convenience and economy, may opt to set

aside the protection of the law on common carriers. When the charterer decides to exercise this option, he takes a normal business risk. Petitioner contends that the rule in Home Insurance is not applicable to the present case because it "covers only a stipulation exempting a private carrier from liability for the negligence of his agent, but it does not apply to a stipulation exempting a private carrier like private respondent from the negligence of his employee or servant which is the situation in this case." 20 This contention of petitioner is bereft of merit, for it raises a distinction without any substantive difference. The case Home Insurance specifically dealt with "the liability of the shipowner for acts or negligence of its captain and crew" 21 and a charter party stipulation which "exempts the owner of the vessel from any loss or damage or delay arising from any other source, even from the neglect or fault of the captain or crew or some other person employed by the owner on board, for whose acts the owner would ordinarily be liable except for said paragraph." 22 Undoubtedly, Home Insurance is applicable to the case at bar. The naked assertion of petitioner that the American rule enunciated in Home Insurance is not the rule in the Philippines 23 deserves scant consideration. The Court there categorically held that said rule was "reasonable" and proceeded to apply it in the resolution of that case. Petitioner miserably failed to show such circumstances or arguments which would necessitate a departure from a wellsettled rule. Consequently, our ruling in said case remains a binding judicial precedent based on the doctrine of stare decisis and Article 8 of the Civil Code which provides that "(j)udicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines." In fine, the respondent appellate court aptly stated that "[in the case of] a private carrier, a stipulation exempting the owner from liability even for the negligence of its agents is valid." 24 Other Arguments On the basis of the foregoing alone, the present petition may already be denied; the Court, however, will discuss the other arguments of petitioner for the benefit and satisfaction of all concerned. Articles 586 and 587, Code of Commerce Petitioner Valenzuela insists that the charter party stipulation is contrary to Articles 586 and 587 of the Code of Commerce which confer on petitioner the right to recover damages from the shipowner and ship agent for the acts or conduct of the captain. 25 We are not persuaded. Whatever rights petitioner may have under the aforementioned statutory provisions were waived when it entered into the charter party. Article 6 of the Civil Code provides that "(r)ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a person with a right recognized by law." As a general rule, patrimonial rights may be waived as opposed to rights to personality and family rights which may not be made the subject of waiver. 26 Being patently and undoubtedly patrimonial, petitioner's right conferred under said articles may be waived. This, the petitioner did by acceding to the contractual stipulation that it is solely responsible or any damage to the cargo, thereby exempting the private carrier from any responsibility for loss or damage thereto. Furthermore, as discussed above, the contract of private carriage binds petitioner and private respondent alone; it is not imbued with public policy considerations for the general public or third persons are not affected thereby. Articles 1170 and 1173, Civil Code Petitioner likewise argues that the stipulation subject of this controversy is void for being contrary to Articles 1170 and 1173 of the Civil Code 27 which read: Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, shall apply. If the law does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. The Court notes that the foregoing articles are applicable only to the obligor or the one with an obligation to perform. In the instant case, Private Respondent Seven Brothers is not an obligor in respect of the cargo, for this obligation to bear the loss was shifted to petitioner by virtue of the charter party. This shifting of responsibility, as earlier observed, is not void. The provisions cited by petitioner are, therefore, inapplicable to the present case.

Moreover, the factual milieu of this case does not justify the application of the second paragraph of Article 1173 of the Civil Code which prescribes the standard of diligence to be observed in the event the law or the contract is silent. In the instant case, Article 362 of the Code of Commerce 28 provides the standard of ordinary diligence for the carriage of goods by a carrier. The standard of diligence under this statutory provision may, however, be modified in a contract of private carriage as the petitioner and private respondent had done in their charter party. Cases Cited by Petitioner Inapplicable Petitioner cites Shewaram vs. Philippine Airlines, Inc. 29 which, in turn, quoted Juan Ysmael & Co. vs. Gabino Barreto & Co. 30 and argues that the public policy considerations stated there vis-a-vis contractual stipulations limiting the carrier's liability be applied "with equal force" to this case. 31 It also cites Manila Railroad Co. vs. Compañia Transatlantica 32 and contends that stipulations exempting a party from liability for damages due to negligence "should not be countenanced" and should be "strictly construed" against the party claiming its benefit. 33 We disagree. The cases of Shewaram and Ysmael both involve a common carrier; thus, they necessarily justify the application of such policy considerations and concomitantly stricter rules. As already discussed above, the public policy considerations behind the rigorous treatment of common carriers are absent in the case of private carriers. Hence, the stringent laws applicable to common carriers are not applied to private carries. The case of Manila Railroad is also inapplicable because the action for damages there does not involve a contract for transportation. Furthermore, the defendant therein made a "promise to use due care in the lifting operations" and, consequently, it was "bound by its undertaking"'; besides, the exemption was intended to cover accidents due to hidden defects in the apparatus or other unforseeable occurrences" not caused by its "personal negligence." This promise was thus constructed to make sense together with the stipulation against liability for damages. 34 In the present case, we stress that the private respondent made no such promise. The agreement of the parties to exempt the shipowner from responsibility for any damage to the cargo and place responsibility over the same to petitioner is the lone stipulation considered now by this Court. Finally, petitioner points to Standard Oil Co. of New York vs. Lopez Costelo, 35 Walter A. Smith & Co. vs.Cadwallader Gibson Lumber Co., 36 N. T . Hashim and Co. vs. Rocha and Co., 37 Ohta Development Co. vs. Steamship "Pompey" 38 and Limpangco Sons vs. Yangco Steamship Co. 39 in support of its contention that the shipowner be held liable for damages. 40 These however are not on all fours with the present case because they do not involve a similar factual milieu or an identical stipulation in the charter party expressly exempting the shipowner form responsibility for any damage to the cargo. Effect of the South Sea Resolution In its memorandum, Seven Brothers argues that petitioner has no cause of action against it because this Court has earlier affirmed the liability of South Sea for the loss suffered by petitioner. Private respondent submits that petitioner is not legally entitled to collect twice for a single loss. 41 In view of the above disquisition upholding the validity of the questioned charter party stipulation and holding that petitioner may not recover from private respondent, the present issue is moot and academic. It suffices to state that the Resolution of this Court dated June 2, 1995 42 affirming the liability of South Sea does not, by itself, necessarily preclude the petitioner from proceeding against private respondent. An aggrieved party may still recover the deficiency for the person causing the loss in the event the amount paid by the insurance company does not fully cover the loss. Article 2207 of the Civil Code provides: Art. 2207. If the plaintiff's property has been insured, and he has received indemnity for the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency form the person causing the loss or injury. WHEREFORE, premises considered, the petition is hereby DENIED for its utter failure to show any reversible error on the part of Respondent Court. The assailed Decision is AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 79688

February 1, 1996

PLEASANTVILLE DEVELOPMENT CORPORATION, petitioner, vs. COURT OF APPEALS, WILSON KEE, C.T. TORRES ENTERPRISES, INC. and ELDRED JARDINICO,respondents. DECISION PANGANIBAN, J.: Is a lot buyer who constructs improvements on the wrong property erroneously delivered by the owner's agent, a builder in good faith? This is the main issue resolved in this petition for review on certiorari to reverse the Decision1 of the Court of Appeals2 in CAG.R. No. 11040, promulgated on August 20, 1987. By resolution dated November 13, 1995, the First Division of this Court resolved to transfer this case (along with several others) to the Third Division. After due deliberation and consultation, the Court assigned the writing of this Decision to the undersigned ponente. The Facts The facts, as found by respondent Court, are as follows: Edith Robillo purchased from petitioner a parcel of land designated as Lot 9, Phase II and located at Taculing Road, Pleasantville Subdivision, Bacolod City. In 1975, respondent Eldred Jardinico bought the rights to the lot from Robillo. At that time, Lot 9 was vacant. Upon completing all payments, Jardinico secured from the Register of Deeds of Bacolod City on December 19, 1978 Transfer Certificate of Title No. 106367 in his name. It was then that he discovered that improvements had been introduced on Lot 9 by respondent Wilson Kee, who had taken possession thereof. It appears that on March 26, 1974, Kee bought on installment Lot 8 of the same subdivision from C.T. Torres Enterprises, Inc. (CTTEI), the exclusive real estate agent of petitioner. Under the Contract to Sell on Installment, Kee could possess the lot even before the completion of all installment payments. On January 20, 1975, Kee paid CTTEI the relocation fee of P50.00 and another P50.00 on January 27, 1975, for the preparation of the lot plan. These amounts were paid prior to Kee's taking actual possession of Lot 8. After the preparation of the lot plan and a copy thereof given to Kee, CTTEI through its employee, Zenaida Octaviano, accompanied Kee's wife, Donabelle Kee, to inspect Lot 8. Unfortunately, the parcel of land pointed by Octaviano was Lot 9. Thereafter, Kee proceeded to construct his residence, a store, an auto repair shop and other improvements on the lot. After discovering that Lot 9 was occupied by Kee, Jardinico confronted him. The parties tried to reach an amicable settlement, but failed. On January 30, 1981, Jardinico's lawyer wrote Kee, demanding that the latter remove all improvements and vacate Lot 9. When Kee refused to vacate Lot 9, Jardinico filed with the Municipal Trial Court in Cities, Branch 3, Bacolod City (MTCC), a complaint for ejectment with damages against Kee. Kee, in turn, filed a third-party complaint against petitioner and CTTEI. The MTCC held that the erroneous delivery of Lot 9 to Kee was attributable to CTTEI. It further ruled that petitioner and CTTEI could not successfully invoke as a defense the failure of Kee to give notice of his intention to begin construction required under paragraph 22 of the Contract to Sell on Installment and his having built a sari-sari store without the prior approval of petitioner required under paragraph 26 of said contract, saying that the purpose of these requirements was merely to regulate the type of improvements to be constructed on the Lot.3 However, the MTCC found that petitioner had already rescinded its contract with Kee over Lot 8 for the latter's failure to pay the installments due, and that Kee had not contested the rescission. The rescission was effected in 1979, before the complaint was

instituted. The MTCC concluded that Kee no longer had any right over the lot subject of the contract between him and petitioner. Consequently, Kee must pay reasonable rentals for the use of Lot 9, and, furthermore, he cannot claim reimbursement for the improvements he introduced on said lot. The MTCC thus disposed: IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1. Defendant Wilson Kee is ordered to vacate the premises of Lot 9, covered by TCT No. 106367 and to remove all structures and improvements he introduced thereon; 2. Defendant Wilson Kee is ordered to pay to the plaintiff rentals at the rate of P15.00 a day computed from the time this suit was filed on March 12, 1981 until he actually vacates the premises. This amount shall bear interests (sic) at the rate of 12 per cent (sic) per annum. 3. Third-Party Defendant C.T. Torres Enterprises, Inc. and Pleasantville Subdivision are ordered to pay the plaintiff jointly and severally the sum of P3,000.00 as attorney's fees and P700.00 as cost and litigation expenses. 4 On appeal, the Regional Trial Court, Branch 48, Bacolod City (RTC) ruled that petitioner and CTTEI were not at fault or were not negligent, there being no preponderant evidence to show that they directly participated in the delivery of Lot 9 to Kee 5. It found Kee a builder in bad faith. It further ruled that even assuming arguendo that Kee was acting in good faith, he was, nonetheless, guilty of unlawfully usurping the possessory right of Jardinico over Lot 9 from the time he was served with notice to vacate said lot, and thus was liable for rental. The RTC thus disposed: WHEREFORE, the decision appealed from is affirmed with respect to the order against the defendant to vacate the premises of Lot No. 9 covered by Transfer Certificate of Title No. T-106367 of the land records of Bacolod City; the removal of all structures and improvements introduced thereon at his expense and the payment to plaintiff (sic) the sum of Fifteen (P15.00) Pesos a day as reasonable rental to be computed from January 30, 1981, the date of the demand, and not from the date of the filing of the complaint, until he had vacated (sic) the premises, with interest thereon at 12% per annum. This Court further renders judgment against the defendant to pay the plaintiff the sum of Three Thousand (P3,000.00) Pesos as attorney's fees, plus costs of litigation. The third-party complaint against Third-Party Defendants Pleasantville Development Corporation and C.T. Torres Enterprises, Inc. is dismissed. The order against Third-Party Defendants to pay attorney's fees to plaintiff and costs of litigation is reversed.6 Following the denial of his motion for reconsideration on October 20, 1986, Kee appealed directly to the Supreme Court, which referred the matter to the Court of Appeals. The appellate court ruled that Kee was a builder in good faith, as he was unaware of the "mix-up" when he began construction of the improvements on Lot 8. It further ruled that the erroneous delivery was due to the negligence of CTTEI, and that such wrong delivery was likewise imputable to its principal, petitioner herein. The appellate court also ruled that the award of rentals was without basis. Thus, the Court of Appeals disposed: WHEREFORE, the petition is GRANTED, the appealed decision is REVERSED, and judgment is rendered as follows: 1. Wilson Kee is declared a builder in good faith with respect to the improvements he introduced on Lot 9, and is entitled to the rights granted him under Articles 448, 546 and 548 of the New Civil Code. 2. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville Development Corporation are solidarily liable under the following circumstances: A. If Eldred Jardinico decides to appropriate the improvements and, thereafter, remove these structures, the third-party defendants shall answer for all demolition expenses and the value of the improvements thus destroyed or rendered useless;

b. If Jardinico prefers that Kee buy the land, the third-party defendants shall answer for the amount representing the value of Lot 9 that Kee should pay to Jardinico. 3. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville Development Corporation are ordered to pay in solidum the amount of P3,000.00 to Jardinico as attorney's fees, as well as litigation expenses. 4. The award of rentals to Jardinico is dispensed with. Furthermore, the case is REMANDED to the court of origin for the determination of the actual value of the improvements and the property (Lot 9), as well as for further proceedings in conformity with Article 448 of the New Civil Code. 7 Petitioner then filed the instant petition against Kee, Jardinico and CTTEI. The Issues The petition submitted the following grounds to justify a review of the respondent Court's Decision, as follows: 1. The Court of Appeals has decided the case in a way probably not in accord with law or the the (sic) applicable decisions of the Supreme Court on third-party complaints, by ordering third-party defendants to pay the demolition expenses and/or price of the land; 2. The Court of Appeals has so far departed from the accepted course of judicial proceedings, by granting to private respondent-Kee the rights of a builder in good faith in excess of what the law provides, thus enriching private respondent Kee at the expense of the petitioner; 3. In the light of the subsequent events or circumstances which changed the rights of the parties, it becomes imperative to set aside or at least modify the judgment of the Court of Appeals to harmonize with justice and the facts; 4. Private respondent-Kee in accordance with the findings of facts of the lower court is clearly a builder in bad faith, having violated several provisions of the contract to sell on installments; 5. The decision of the Court of Appeals, holding the principal, Pleasantville Development Corporation (liable) for the acts made by the agent in excess of its authority is clearly in violation of the provision of the law; 6. The award of attorney's fees is clearly without basis and is equivalent to putting a premium in (sic) court litigation. From these grounds, the issues could be re-stated as follows: (1) Was Kee a builder in good faith? (2) What is the liability, if any, of petitioner and its agent, C.T. Torres Enterprises, Inc.? and (3) Is the award of attorney's fees proper? The First Issue: Good Faith Petitioner contends that the Court of Appeals erred in reversing the RTC's ruling that Kee was a builder in bad faith. Petitioner fails to persuade this Court to abandon the findings and conclusions of the Court of Appeals that Kee was a builder in good faith. We agree with the following observation of the Court of Appeals: The roots of the controversy can be traced directly to the errors committed by CTTEI, when it pointed the wrong property to Wilson Kee and his wife. It is highly improbable that a purchaser of a lot would knowingly and willingly build his residence on a lot owned by another, deliberately exposing himself and his family to the risk of being ejected from the land and losing all improvements thereon, not to mention the social humiliation that would follow. Under the circumstances, Kee had acted in the manner of a prudent man in ascertaining the identity of his property. Lot 8 is covered by Transfer Certificate of Title No. T-69561, while Lot 9 is identified in Transfer Certificate of Title No. T-

106367. Hence, under the Torrens system of land registration, Kee is presumed to have knowledge of the metes and bounds of the property with which he is dealing. . . . xxx

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But as Kee is a layman not versed in the technical description of his property, he had to find a way to ascertain that what was described in TCT No. 69561 matched Lot 8. Thus, he went to the subdivision developer's agent and applied and paid for the relocation of the lot, as well as for the production of a lot plan by CTTEI's geodetic engineer. Upon Kee's receipt of the map, his wife went to the subdivision site accompanied by CTTEI's employee, Octaviano, who authoritatively declared that the land she was pointing to was indeed Lot 8. Having full faith and confidence in the reputation of CTTEI, and because of the company's positive identification of the property, Kee saw no reason to suspect that there had been a misdelivery. The steps Kee had taken to protect his interests were reasonable. There was no need for him to have acted ex-abundantia cautela, such as being present during the geodetic engineer's relocation survey or hiring an independent geodetic engineer to countercheck for errors, for the final delivery of subdivision lots to their owners is part of the regular course of everyday business of CTTEI. Because of CTTEI's blunder, what Kee had hoped to forestall did in fact transpire. Kee's efforts all went to naught.8 Good faith consists in the belief of the builder that the land he is building on is his and his ignorance of any defect or flaw in his title 9. And as good faith is presumed, petitioner has the burden of proving bad faith on the part of Kee 10. At the time he built improvements on Lot 8, Kee believed that said lot was what he bought from petitioner. He was not aware that the lot delivered to him was not Lot 8. Thus, Kee's good faith. Petitioner failed to prove otherwise. To demonstrate Kee's bad faith, petitioner points to Kee's violation of paragraphs 22 and 26 of the Contract of Sale on Installment. We disagree. Such violations have no bearing whatsoever on whether Kee was a builder in good faith, that is, on his state of mind at the time he built the improvements on Lot 9. These alleged violations may give rise to petitioner's cause of action against Kee under the said contract (contractual breach), but may not be bases to negate the presumption that Kee was a builder in good faith. Petitioner also points out that, as found by the trial court, the Contract of Sale on Installment covering Lot 8 between it and Kee was rescinded long before the present action was instituted. This has no relevance on the liability of petitioner, as such fact does not negate the negligence of its agent in pointing out the wrong lot. to Kee. Such circumstance is relevant only as it gives Jardinico a cause of action for unlawful detainer against Kee. Petitioner next contends that Kee cannot "claim that another lot was erroneously pointed out to him" because the latter agreed to the following provision in the Contract of Sale on installment, to wit: 13. The Vendee hereby declares that prior to the execution of his contract he/she has personally examined or inspected the property made subject-matter hereof, as to its location, contours, as well as the natural condition of the lots and from the date hereof whatever consequential change therein made due to erosion, the said Vendee shall bear the expenses of the necessary fillings, when the same is so desired by him/her. 11 The subject matter of this provision of the contract is the change of the location, contour and condition of the lot due to erosion. It merely provides that the vendee, having examined the property prior to the execution of the contract, agrees to shoulder the expenses resulting from such change. We do not agree with the interpretation of petitioner that Kee contracted away his right to recover damages resulting from petitioner's negligence. Such waiver would be contrary to public policy and cannot be allowed. "Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law." 12 The Second Issue: Petitioner's Liability Kee filed a third-party complaint against petitioner and CTTEI, which was dismissed by the RTC after ruling that there was no evidence from which fault or negligence on the part of petitioner and CTTEI can be inferred. The Court of Appeals disagreed and found CTTEI negligent for the erroneous delivery of the lot by Octaviano, its employee. Petitioner does not dispute the fact that CTTEI was its agent. But it contends that the erroneous delivery of Lot 9 to Kee was an act which was clearly outside the scope of its authority, and consequently, CTTEI I alone should be liable. It asserts that "while [CTTEI] was authorized to sell the lot belonging to the herein petitioner, it was never authorized to deliver the wrong lot to Kee" 13. Petitioner's contention is without merit.

The rule is that the principal is responsible for the acts of the agent, done within the scope of his authority, and should bear the damage caused to third persons 14. On the other hand, the agent who exceeds his authority is personally liable for the damage 15 CTTEI was acting within its authority as the sole real estate representative of petitioner when it made the delivery to Kee. In acting within its scope of authority, it was, however, negligent. It is this negligence that is the basis of petitioner's liability, as principal of CTTEI, per Articles 1909 and 1910 of the Civil Code. Pending resolution of the case before the Court of Appeals, Jardinico and Kee on July 24, 1987 entered into a deed of sale, wherein the former sold Lot 9 to Kee. Jardinico and Kee did not inform the Court of Appeals of such deal. The deed of sale contained the following provision: 1. That Civil Case No. 3815 entitled "Jardinico vs. Kee" which is now pending appeal with the Court of Appeals, regardless of the outcome of the decision shall be mutually disregarded and shall not be pursued by the parties herein and shall be considered dismissed and without effect whatso-ever; 16 Kee asserts though that the "terms and conditions in said deed of sale are strictly for the parties thereto" and that "(t)here is no waiver made by either of the parties in said deed of whatever favorable judgment or award the honorable respondent Court of Appeals may make in their favor against herein petitioner Pleasantville Development Corporation and/or private respondent C.T. Torres Enterprises; Inc." 17 Obviously, the deed of sale can have no effect on the liability of petitioner. As we have earlier stated, petitioner's liability is grounded on the negligence of its agent. On the other hand, what the deed of sale regulates are the reciprocal rights of Kee and Jardinico; it stressed that they had reached an agreement independent of the outcome of the case. Petitioner further assails the following holding of the Court of Appeals: 2. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville Development Corporation are solidarily liable under the following circumstances: a. If Eldred Jardinico decides to appropriate the improvements and, thereafter, remove these structures, the third-party defendants shall answer for all demolition expenses and the value of the improvements thus destroyed or rendered useless; b. If Jardinico prefers that Kee buy the land, the third-party defendants shall answer for the amount representing the value of Lot 9 that Kee should pay to Jardinico. 18

Petitioner contends that if the above holding would be carried out, Kee would be unjustly enriched at its expense. In other words, Kee would be able to own the lot, as buyer, without having to pay anything on it, because the aforequoted portion of respondent Court's Decision would require petitioner and CTTEI jointly and solidarily to "answer" or reimburse Kee therefor. We agree with petitioner. Petitioner' s liability lies in the negligence of its agent CTTEI. For such negligence, the petitioner should be held liable for damages. Now, the extent and/or amount of damages to be awarded is a factual issue which should be determined after evidence is adduced. However, there is no showing that such evidence was actually presented in the trial court; hence no damages could flow be awarded. The rights of Kee and Jardinico vis-a-vis each other, as builder in good faith and owner in good faith, respectively, are regulated by law (i.e., Arts. 448, 546 and 548 of the Civil Code). It was error for the Court of Appeals to make a "slight modification" in the application of such law, on the ground of "equity". At any rate, as it stands now, Kee and Jardinico have amicably settled through their deed of sale their rights and obligations with regards to Lot 9. Thus, we delete items 2 (a) and (b) of the dispositive portion of the Court of Appeals' Decision [as reproduced above] holding petitioner and CTTEI solidarily liable. The Third Issue: Attorney's Fees The MTCC awarded Jardinico attorney's fees and costs in the amount of P3,000.00 and P700.00, respectively, as prayed for in his complaint. The RTC deleted the award, consistent with its ruling that petitioner was without fault or negligence. The Court of Appeals, however, reinstated the award of attorney's fees after ruling that petitioner was liable for its agent's negligence.

The award of attorney's fees lies within the discretion of the court and depends upon the circumstances of each case 19. We shall not interfere with the discretion of the Court of Appeals. Jardinico was compelled to litigate for the protection of his interests and for the recovery of damages sustained as a result of the negligence of petitioner's agent 20. In sum, we rule that Kee is a builder in good faith. The disposition of the Court of Appeals that Kee "is entitled to the rights granted him under Articles 448, 546 and 548 of the New Civil Code" is deleted, in view of the deed of sale entered into by Kee and Jardinico, which deed now governs the rights of Jardinico and Kee as to each other. There is also no further need, as ruled by the appellate Court, to remand the case to the court of origin "for determination of the actual value of the improvements and the property (Lot 9), as well as for further proceedings in conformity with Article 448 of the New Civil Code." WHEREFORE , the petition is partially GRANTED. The Decision of the Court of Appeals is hereby MODIFIED as follows: (1) Wilson Kee is declared a builder in good faith; (2) Petitioner Pleasantville Development Corporation and respondent C.T. Torres Enterprises, Inc. are declared solidarily liable for damages due to negligence; however, since the amount and/or extent of such damages was not proven during the trial, the same cannot now be quantified and awarded; (3) Petitioner Pleasantville Development Corporation and respondent C.T. Torres Enterprises, Inc. are ordered to pay in solidum the amount of P3,000.00 to Jardinico as attorney's fees, as well as litigation expenses; and (4) The award of rentals to Jardinico is dispensed with. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 119987-88 October 12, 1995 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents.

KAPUNAN, J.: The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death? The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men: On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila. When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left ear, lacerations on her genitalia, and with her head bashed in. On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071, reads: That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one alias "LANDO" and other persons whose true names, identifies and present whereabouts are still unknown and helping one another, with treachery, taking advantage of their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138, allegedly committed as follows: That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength and nocturnity and

ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said accused together with their confederates ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided over by respondent Judge. Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12, 1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information. After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a decision 2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty of reclusion perpetuawith all the accessories provided for by law." 3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads: The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila. WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein accused is hereby reiterated. The Clerk of this Court is hereby directed to transmit the complete records of these cases, together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure. SO ORDERED. Hence, the instant petition. The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide. We find for petitioner. Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," 4 resist encroachments by governments, political parties, 5 or even the interference of their own personal beliefs. In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions. Section 11 of R.A. No. 7659 provides: Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation. 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. . . . 6 Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows judges the discretion — depending on the existence of circumstances modifying the offense committed — to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death." The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death. We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held that: [W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However,as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the law-making body. 8 Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper penalty and civil liability provided for by the law on the accused." 9 This is not a case of a magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the penalty of Death. WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent judge's finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty.

SO ORDERED. Republic of the Philippines SUPREME COURT THIRD DIVISION G.R. No. 148311. March 31, 2005 IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. DECISION SANDOVAL-GUTIERREZ, J.: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate childStephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994; 2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name Astorga be changed to "Garcia," her mother’s surname, and that her surname "Garcia" be changed to "Catindig," his surname. On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus: "After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner’s care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED."4 On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,6 the trial court denied petitioner’s motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary

for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that"the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother."7 We find merit in the petition. Use Of Surname Is Fixed By Law – For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.8 It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law. 9 Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: "Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as ‘Mrs.’ Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name andsurname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name and surnameemployed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word ‘Junior’ can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x" Law Is Silent As To The Use Of Middle Name – As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176 11 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to what middle name a child may use. The middle name or the mother’s surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mother’s surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x" However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child’s mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus "Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the father’s surname indicates the family to which he belongs, for which reason he would insist on the use of the father’s surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enrile’s correct surname is Ponce since the mother’s surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family name is Gutierrez and his mother’s surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion."12 (Emphasis supplied) In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. 14 The Underlying Intent of Adoption Is In Favor of the Adopted Child – Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as aState Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the adopted.20 One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23 Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother’s surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount consideration, 26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.27 Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law."28 Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mother’s surname "GARCIA" as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-68470 October 8, 1985 ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\ In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding. Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. 'I'hat there are no community obligations to be adjudicated by the court. xxx xxx xxx 4 There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDERED.

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

REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9 Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date,

petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15 On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option. This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21 In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be

categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 In the cited Loftus case, the Supreme Court of Iowa held that — 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ... It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ... Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ... 25 Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently

contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 124371

November 23, 2000

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents. DECISION PARDO, J.: The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City2 declaring respondent Alicia F. Llorente (herinafter referred to as "Alicia"), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years that they lived together as husband and wife. The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957.3 On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.4 Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.5 On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York. 6 Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines.7 He discovered that his wife Paula was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino Llorente.8 On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as "Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the father’s name was left blank. 9 Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzo’s salary and all other obligations for Paula’s daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paula’s father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.10 Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce.11 On December 4, 1952, the divorce decree became final. 12

In the meantime, Lorenzo returned to the Philippines. On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.13 Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. 14 From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente.16 On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit: "(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; "(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; "(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; "(4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among themselves; "(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; "(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond; "(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; "(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorente’s Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament." 17 On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.18 On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive. 19 On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate.20 On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21 On September 4, 1985, Paula filed with the same court a petition22 for letters of administration over Lorenzo’s estate in her favor. Paula contended (1) that she was Lorenzo’s surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzo’s will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property.23 On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary.24 On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paula’s petition in Sp. Proc. No. IR-888.25

On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26 On May 18, 1987, the Regional Trial Court issued a joint decision, thus: "Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). "On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares. "Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. "On the other matters prayed for in respective petitions for want of evidence could not be granted. "SO ORDERED."27 In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision.28 On September 14, 1987, the trial court denied Alicia’s motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not legally adopted by him. 29 Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate.30 On September 28, 1987, respondent appealed to the Court of Appeals. 31 On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise: "WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. "SO ORDERED."32 On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.33 On March 21, 1996, the Court of Appeals,34 denied the motion for lack of merit. Hence, this petition.35 The Issue Stripping the petition of its legalese and sorting through the various arguments raised,36 the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente? We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased. The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides: "Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons arebinding upon citizens of the Philippines, even though living abroad. "Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. "However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." (emphasis ours) True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.37 While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the decedent’s domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that "American law follows the ‘domiciliary theory’ hence, Philippine law applies when determining the validity of Lorenzo’s will.38 First, there is no such thing as one American law.1ªwph!1 The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident.39Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial court’s opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining. Validity of the Foreign Divorce In Van Dorn v. Romillo, Jr.40 we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals,41 that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. 43 We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.

Validity of the Will The Civil Code provides: "Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. "When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution." (underscoring ours) The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and duties, status, condition and legal capacity."44 Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.45 Having thus ruled, we find it unnecessary to pass upon the other issues raised. The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente’s will and determination of the parties’ successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 138322

October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondents. PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision 1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows: "WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties."3 The assailed Order denied reconsideration of the above-quoted Decision. The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987. 4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6 Petitioner – a Filipina – and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and "Filipino."8 Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.9 On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage andits subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1âwphi1.nêt On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down."13 Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action. 14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the documentary evidence of both parties. 16 After they submitted their respective memoranda, the case was submitted for resolution. 17

Thereafter, the trial court rendered the assailed Decision and Order. Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual. Hence, this Petition.18 Issues Petitioner submits the following issues for our consideration: "I The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. "2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent. "3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case. "4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. "5 The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19 The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Court's Ruling The Petition is partly meritorious. First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws. 27 A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. 29 Presentation solely of the divorce decree is insufficient. Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: "ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx

xxx

xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or annulled; xxx

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. "ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons." Respondent, on the other hand, argues that the Australian divorce decree is a public document – a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country.32 Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.34 The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated. Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification. 37Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992. 39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 43 Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. Second Issue: Respondent's Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46 Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior.47 On its face, the herein Australian divorce decree contains a restriction that reads: "1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48 This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50 As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" – Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52(c) Exhibit "C" – Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila; 53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto; 55 (2) for respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995. 60 Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of Makati RTC, Branch 149, respondents. QUISUMBING, J.: At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree obtained abroad by petitioner. In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The assailed orders partially set aside the trial court’s order dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the property settlement of the spouses and the custody of their children. Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987, respectively. On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997. On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case to the RTC. Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-Blankenese, promulgated on December 16, 1997. The decree provides in part: [T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997: The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of Hamburg-Altona is hereby dissolved. The parental custody for the children Carolynne Roehr, born 18 November 1981 Alexandra Kristine Roehr, born on 25 October 1987 is granted to the father. The litigation expenses shall be assumed by the Parties.9 In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that the trial court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had already been promulgated dissolving the marriage of petitioner and private respondent.

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioner’s motion to dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the purpose of determining the issues of custody of children and the distribution of the properties between petitioner and private respondent. On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the ground that there is nothing to be done anymore in the instant case as the marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the decree of divorce promulgated by the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce had already been recognized by the RTC in its order of July 14, 1999, through the implementation of the mandate of Article 26 of the Family Code, 10 endowing the petitioner with the capacity to remarry under the Philippine law. On September 30, 1999, respondent judge issued the assailed order partially setting aside her order dated July 14, 1999 for the purpose of tackling the issues of property relations of the spouses as well as support and custody of their children. The pertinent portion of said order provides: Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru counsel which was opposed by respondent and considering that the second paragraph of Article 26 of the Family Code was included as an amendment thru Executive Order 227, to avoid the absurd situation of a Filipino as being still married to his or her alien spouse though the latter is no longer married to the Filipino spouse because he/she had obtained a divorce abroad which is recognized by his/her national law, and considering further the effects of the termination of the marriage under Article 43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the property relations of the spouses, and the support and custody of their children, the Order dismissing this case is partially set aside with respect to these matters which may be ventilated in this Court. SO ORDERED.11 (Emphasis supplied.) Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge in an order dated March 31, 2000.12 Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent judge. He cites as grounds for his petition the following: 1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by 1997 Rules of Civil Procedure.13 2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany.14 3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children had already been awarded to Petitioner Wolfgang Roehr.15 Pertinent in this case before us are the following issues: 1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September 30, 1999, which partially modified her order dated July 14, 1999; and 2. Whether or not respondent judge gravely abused her discretion when she assumed and retained jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree from a German court. On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides: Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.)

Petitioner avers that a court’s action on a motion is limited to dismissing the action or claim, denying the motion, or ordering the amendment of the pleading. Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999 because it had not yet attained finality, given the timely filing of respondent’s motion for reconsideration. Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which provides: Sec. 3. Action upon motion for new trial or reconsideration.—The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. Sec. 7. Partial new trial or reconsideration.—If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (Emphasis supplied.) It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet attained finality. Considering that private respondent filed a motion for reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still be modified. Moreover, in Sañado v. Court of Appeals,16we held that the court could modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its decision unjust and inequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory17 and when it becomes imperative in the higher interest of justice or when supervening events warrant it.18 In our view, there are even more compelling reasons to do so when, as in this case, judgment has not yet attained finality. Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she partially set aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce decree from the Court of First Instance of Hamburg, Germany. In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized the validity of a divorce obtained by a German citizen in his country, the Federal Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. In this case, the divorce decree issued by the German court dated December 16, 1997 has not been challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court recognized said decree to be valid and binding, thereby endowing private respondent the capacity to remarry. Thus, the present controversy mainly relates to the award of the custody of their two children, Carolynne and Alexandra Kristine, to petitioner. As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by our courts. 23 Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody to petitioner by the German court, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit: SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facieevidence of the justness of the claim of a party and, as such, is subject to proof to the contrary.24

In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to have parental custody of their two children. The proceedings in the German court were summary. As to what was the extent of private respondent’s participation in the proceedings in the German court, the records remain unclear. The divorce decree itself states that neither has she commented on the proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner who was represented by two lawyers, private respondent had no counsel to assist her in said proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending spouse was. Absent any finding that private respondent is unfit to obtain custody of the children, the trial court was correct in setting the issue for hearing to determine the issue of parental custody, care, support and education mindful of the best interests of the children. This is in consonance with the provision in the Child and Youth Welfare Code that the child’s welfare is always the paramount consideration in all questions concerning his care and custody. 28 On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her jurisdiction when she claimed cognizance of the issue concerning property relations between petitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any conjugal or community property nor have they incurred any debts during their marriage."29Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief warranted by the allegations and the proof.30 Given the factual admission by the parties in their pleadings that there is no property to be accounted for, respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy. In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two children born of the union between petitioner and private respondent. Private respondent erred, however, in claiming cognizance to settle the matter of property relations of the parties, which is not at issue. WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court has jurisdiction over the issue between the parties as to who has parental custody, including the care, support and education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial court for continuation of appropriate proceedings. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT SECOND DIVISION G.R. No. 152577 September 21, 2005 REPUBLIC OF THE PHILIPPINES, Petitioners, vs. CRASUS L. IYOY, Respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001,1 affirming the Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines. The proceedings before the RTC commenced with the filing of a Complaint 3 for declaration of nullity of marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City. As a result of their union, they had five children – Crasus, Jr., Daphne, Debbie, Calvert, and Carlos – who are now all of legal ages. After the celebration of their marriage, respondent Crasus discovered that Fely was "hot-tempered, a nagger and extravagant." In 1984, Fely left the Philippines for the United States of America (U.S.A.), leaving all of their five children, the youngest then being only six years old, to the care of respondent Crasus. Barely a year after Fely left for the U.S.A., respondent Crasus received a letter from her requesting that he sign the enclosed divorce papers; he disregarded the said request. Sometime in 1985, respondent Crasus learned, through the letters sent by Fely to their children, that Fely got married to an American, with whom she eventually had a child. In 1987, Fely came back to the Philippines with her American family, staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because he was afraid he might not be able to bear the sorrow and the pain she had caused him. Fely returned to the Philippines several times more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation of their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued to live with her American family in New Jersey, U.S.A. She had been openly using the surname of her American husband in the Philippines and in the U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she was named as "Mrs. Fely Ada Micklus." At the time the Complaint was filed, it had been 13 years since Fely left and abandoned respondent Crasus, and there was no more possibility of reconciliation between them. Respondent Crasus finally alleged in his Complaint that Fely’s acts brought danger and dishonor to the family, and clearly demonstrated her psychological incapacity to perform the essential obligations of marriage. Such incapacity, being incurable and continuing, constitutes a ground for declaration of nullity of marriage under Article 36, in relation to Articles 68, 70, and 72, of the Family Code of the Philippines. Fely filed her Answer and Counterclaim 4 with the RTC on 05 June 1997. She asserted therein that she was already an American citizen since 1988 and was now married to Stephen Micklus. While she admitted being previously married to respondent Crasus and having five children with him, Fely refuted the other allegations made by respondent Crasus in his Complaint. She explained that she was no more hot-tempered than any normal person, and she may had been indignant at respondent Crasus on certain occasions but it was because of the latter’s drunkenness, womanizing, and lack of sincere effort to find employment and to contribute to the maintenance of their household. She could not have been extravagant since the family hardly had enough money for basic needs. Indeed, Fely left for abroad for financial reasons as respondent Crasus had no job and what she was then earning as the sole breadwinner in the Philippines was insufficient to support their family. Although she left all of her children with respondent Crasus, she continued to provide financial support to them, as well as, to respondent Crasus. Subsequently, Fely was able to bring her children to the U.S.A., except for one, Calvert, who had to stay behind for medical reasons. While she did file for divorce from respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting him to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely married her American husband and acquired American citizenship. She argued that her marriage to her American husband was legal because now being an American citizen, her status shall be governed by the law of her present nationality. Fely also pointed out that respondent Crasus himself was presently living with another woman who bore him a child. She also accused respondent Crasus of misusing the amount of P90,000.00 which she advanced to him to finance the brain operation of their son, Calvert. On the basis of the foregoing, Fely also prayed that the RTC declare her marriage to respondent Crasus null and void; and that respondent Crasus be ordered to pay to Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary damages, attorney’s fees, and litigation expenses. After respondent Crasus and Fely had filed their respective Pre-Trial Briefs,5 the RTC afforded both parties the opportunity to present their evidence. Petitioner Republic participated in the trial through the Provincial Prosecutor of Cebu. 6 Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his own testimony on 08 September 1997, in which he essentially reiterated the allegations in his Complaint; 7 (2) the Certification, dated 13 April 1989, by the Health

Department of Cebu City, on the recording of the Marriage Contract between respondent Crasus and Fely in the Register of Deeds, such marriage celebration taking place on 16 December 1961;8 and (3) the invitation to the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American husband’s surname, Micklus. 9 Fely’s counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses, namely, Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular officers of the Philippines in New York and California, U.S.A, where the said witnesses reside. Despite the Orders 12 and Commissions13 issued by the RTC to the Philippine Consuls of New York and California, U.S.A., to take the depositions of the witnesses upon written interrogatories, not a single deposition was ever submitted to the RTC. Taking into account that it had been over a year since respondent Crasus had presented his evidence and that Fely failed to exert effort to have the case progress, the RTC issued an Order, dated 05 October 1998,14 considering Fely to have waived her right to present her evidence. The case was thus deemed submitted for decision. Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of respondent Crasus and Fely null and void ab initio, on the basis of the following findings – The ground bearing defendant’s psychological incapacity deserves a reasonable consideration. As observed, plaintiff’s testimony is decidedly credible. The Court finds that defendant had indeed exhibited unmistakable signs of psychological incapacity to comply with her marital duties such as striving for family unity, observing fidelity, mutual love, respect, help and support. From the evidence presented, plaintiff adequately established that the defendant practically abandoned him. She obtained a divorce decree in the United States of America and married another man and has establish [sic] another family of her own. Plaintiff is in an anomalous situation, wherein he is married to a wife who is already married to another man in another country. Defendant’s intolerable traits may not have been apparent or manifest before the marriage, the FAMILY CODE nonetheless allows the annulment of the marriage provided that these were eventually manifested after the wedding. It appears to be the case in this instance. Certainly defendant’s posture being an irresponsible wife erringly reveals her very low regard for that sacred and inviolable institution of marriage which is the foundation of human society throughout the civilized world. It is quite evident that the defendant is bereft of the mind, will and heart to comply with her marital obligations, such incapacity was already there at the time of the marriage in question is shown by defendant’s own attitude towards her marriage to plaintiff. In sum, the ground invoked by plaintiff which is defendant’s psychological incapacity to comply with the essential marital obligations which already existed at the time of the marriage in question has been satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant Fely Ada Rosal Iyoy, firmly. Going over plaintiff’s testimony which is decidedly credible, the Court finds that the defendant had indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital obligations. These are her excessive disposition to material things over and above the marital stability. That such incapacity was already there at the time of the marriage in question is shown by defendant’s own attitude towards her marriage to plaintiff. And for these reasons there is a legal ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy null and void ab initio.15 Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its Decision, dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible error therein. It even offered additional ratiocination for declaring the marriage between respondent Crasus and Fely null and void, to wit – Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently residing in the United States. Plaintiff-appellee categorically stated this as one of his reasons for seeking the declaration of nullity of their marriage… … Article 26 of the Family Code provides: "Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. "WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE LAW." The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she

has obtained a divorce abroad. In the case at bench, the defendant has undoubtedly acquired her American husband’s citizenship and thus has become an alien as well. This Court cannot see why the benefits of Art. 26 aforequoted can not be extended to a Filipino citizen whose spouse eventually embraces another citizenship and thus becomes herself an alien. It would be the height of unfairness if, under these circumstances, plaintiff would still be considered as married to defendant, given her total incapacity to honor her marital covenants to the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to remain married to a spouse who is incapacitated to discharge essential marital covenants, is verily to condemn him to a perpetual disadvantage which this Court finds abhorrent and will not countenance. Justice dictates that plaintiff be given relief by affirming the trial court’s declaration of the nullity of the marriage of the parties. 16 After the Court of Appeals, in a Resolution, dated 08 March 2002,17 denied its Motion for Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the following arguments/grounds – I. Abandonment by and sexual infidelity of respondent’s wife do not per se constitute psychological incapacity. II. The Court of Appeals has decided questions of substance not in accord with law and jurisprudence considering that the Court of Appeals committed serious errors of law in ruling that Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar.18 In his Comment19 to the Petition, respondent Crasus maintained that Fely’s psychological incapacity was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family Code of the Philippines was indeed applicable to the marriage of respondent Crasus and Fely, because the latter had already become an American citizen. He further questioned the personality of petitioner Republic, represented by the Office of the Solicitor General, to institute the instant Petition, because Article 48 of the Family Code of the Philippines authorizes the prosecuting attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene on behalf of the State, in proceedings for annulment and declaration of nullity of marriages. After having reviewed the records of this case and the applicable laws and jurisprudence, this Court finds the instant Petition to be meritorious. I The totality of evidence presented during trial is insufficient to support the finding of psychological incapacity of Fely. Article 36, concededly one of the more controversial provisions of the Family Code of the Philippines, reads – ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases, this Court laid down guidelines for determining its existence. In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus – ". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated…21 The psychological incapacity must be characterized by – (a) Gravity – It must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Juridical Antecedence – It must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) Incurability – It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. 22

More definitive guidelines in the interpretation and application of Article 36 of the Family Code of the Philippines were handed down by this Court in Republic v. Court of Appeals and Molina,23 which, although quite lengthy, by its significance, deserves to be reproduced below – (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job… (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts… (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.24 A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial. Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the totality of evidence presented by respondent Crasus failed miserably to establish the alleged psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage null and void under Article 36 of the Family Code of the Philippines. The only substantial evidence presented by respondent Crasus before the RTC was his testimony, which can be easily put into question for being self-serving, in the absence of any other corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on the recording with the Register of Deeds of the Marriage Contract between respondent Crasus and Fely, such marriage being celebrated on 16 December 1961; and (2) the invitation to the wedding of Crasus, Jr., their eldest son, in which

Fely used her American husband’s surname. Even considering the admissions made by Fely herself in her Answer to respondent Crasus’s Complaint filed with the RTC, the evidence is not enough to convince this Court that Fely had such a grave mental illness that prevented her from assuming the essential obligations of marriage. It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse.26 Irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do not warrant a finding of psychological incapacity under the said Article.27 As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume."28 The evidence may have proven that Fely committed acts that hurt and embarrassed respondent Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment of respondent Crasus; her marriage to an American; and even her flaunting of her American family and her American surname, may indeed be manifestations of her alleged incapacity to comply with her marital obligations; nonetheless, the root cause for such was not identified. If the root cause of the incapacity was not identified, then it cannot be satisfactorily established as a psychological or mental defect that is serious or grave; neither could it be proven to be in existence at the time of celebration of the marriage; nor that it is incurable. While the personal examination of Fely by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their marriage under Article 36 of the Family Code of the Philippines, by virtue of this Court’s ruling in Marcos v. Marcos,29 respondent Crasus must still have complied with the requirement laid down in Republic v. Court of Appeals and Molina30 that the root cause of the incapacity be identified as a psychological illness and that its incapacitating nature be fully explained. In any case, any doubt shall be resolved in favor of the validity of the marriage.31 No less than the Constitution of 1987 sets the policy to protect and strengthen the family as the basic social institution and marriage as the foundation of the family. 32 II Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar. According to Article 26, paragraph 2 of the Family Code of the Philippines – Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple getting married is a Filipino citizen and the other a foreigner at the time the marriage was celebrated. By its plain and literal interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. Although the exact date was not established, Fely herself admitted in her Answer filed before the RTC that she obtained a divorce from respondent Crasus sometime after she left for the United States in 1984, after which she married her American husband in 1985. In the same Answer, she alleged that she had been an American citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained a divorce from respondent Crasus. III The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for annulment and declaration of nullity of marriages. Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor General had no personality to file the instant Petition on behalf of the State. Article 48 provides – ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal defender of the Government.33 His Office is tasked to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. 34 The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the land, then his intervention in such proceedings could only serve and contribute to the realization of such intent, rather than thwart it. Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals. 35 While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the State. In fact, this Court had already recognized and affirmed the role of the Solicitor General in several cases for annulment and declaration of nullity of marriages that were appealed before it, summarized as follows in the case of Ancheta v. Ancheta36 – In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Id., at 213] This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its pronouncement in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State…37 Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,38 which became effective on 15 March 2003, should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are reproduced below – Sec. 5. Contents and form of petition. – … (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. … Sec. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 19. Decision. –

… (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. … Sec. 20. Appeal. – … (2) Notice of Appeal. – An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the Court of Appeals, and sustains the validity and existence of the marriage between respondent Crasus and Fely. At most, Fely’s abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds to file for legal separation under Article 55 of the Family Code of the Philippines, but not for declaration of nullity of marriage under Article 36 of the same Code. While this Court commiserates with respondent Crasus for being continuously shackled to what is now a hopeless and loveless marriage, this is one of those situations where neither law nor society can provide the specific answer to every individual problem.39 WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE. The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting. SO ORDERED.

Republic of the Philippines SUPREME COURT FIRST DIVISION G.R. No. 154380 October 5, 2005 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent. DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.3 The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Laman, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE 4 The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no law that governs respondent’s situation. The OSG posits that this is a matter of legislation and not of judicial determination. 6 For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petition—Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ... The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8 This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops’ Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.12 If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.13 Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be proved as our courts cannot

take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondent’s bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondent’s submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.