Persons and Family Relations 1-18

F.F. CRUZ & CO., INC.
,
Petitioner,
project called the East Bank Levee and

Cut-Off Channel in accordance with the
specifications of the main contract.
- versus HR CONSTRUCTION CORP.,

Respondent.
G.R. No. 187521
Promulgated:
The subcontract price agreed upon by the

parties amounted to P31,293,532.72.
Pursuant to the Subcontract Agreement,
HRCC would submit to FFCCI a monthly
progress billing which the latter would
then pay, subject to stipulated deductions,
within 30 days from receipt thereof.
March 14, 2012
x---------------------------------------------------------------------------------------x
DECISION
The parties agreed that the requests of

HRCC for payment should include progress
accomplishment of its completed works as
approved by FFCCI. Additionally, they
agreed to conduct a joint measurement of
the completed works of HRCC together
with the representative of DPWH and
consultants to arrive at a common
quantity.
REYES, J.:
This is a petition for review on certiorari

under Rule 45 of the Rules of Court filed
by petitioner F.F. Cruz & Co., Inc. (FFCCI)
assailing the Decision[1] dated February 6,
2009 and Resolution[2] dated April 13,
2009 issued by the Court of Appeals (CA)
in CA-G.R. SP No. 91860.
The Antecedent Facts
Sometime in 2004, FFCCI entered into a

contract with the Department of Public
Works and Highways (DPWH) for the
construction of the Magsaysay Viaduct,
known as the Lower Agusan Development
Project. On August 9, 2004, FFCCI, in turn,
entered into a Subcontract Agreement[3]
with HR Construction Corporation (HRCC)
for the supply of materials, labor,
equipment, tools and supervision for the
construction of a portion of the said
Thereafter,
HRCC
commenced
the
construction of the works pursuant to the
Subcontract Agreement.
On September 17, 2004, HRCC submitted

to FFCCI its first progress billing in the
amount of P2,029,081.59 covering the
construction works it completed from
August 16 to September 15, 2004.[4]
However, FFCCI asserted that the DPWH
was then able to evaluate the completed
works of HRCC only until July 25, 2004.
Thus, FFCCI only approved the gross
amount of P423,502.88 for payment.
Pursuant to the Subcontract Agreement,
FFCCI deducted from the said gross
amount P42,350.29 for retention and
P7,700.05 for expanded withholding tax
leaving a net payment in the amount of
P373,452.54. This amount was paid by
FFCCI to HRCC on December 3, 2004.[5]
Persons and Family Relations Cases (Art 1-18)
FFCCI and the DPWH then jointly

evaluated the completed works of HRCC
for the period of July 26 to September 25,
2004. FFCCI claimed that the gross
amount due for the completed works
during the said period was P2,008,837.52.
From the said gross amount due, FFCCI
deducted therefrom P200,883.75 for
retention and P36,524.07 for expanded
withholding tax leaving amount of
P1,771,429.45 as the approved net
payment for the said period. FFCCI paid
this amount on December 21, 2004.[6]
On October 29, 2004, HRCC submitted to

FFCCI its second progress billing in the
amount of P1,587,760.23 covering its
completed works from September 18 to
25, 2004.[7] FFCCI did not pay the amount
stated in the second progress billing,
claiming that it had already paid HRCC for
the completed works for the period stated
therein.
On even date, HRCC submitted its third

progress billing in the amount of
P2,569,543.57 for its completed works
from September 26 to October 25, 2004.
[8] FFCCI did not immediately pay the
amount stated in the third progress billing,
claiming that it still had to evaluate the
works accomplished by HRCC.
On November 25, 2004, HRCC submitted

to FFCCI its fourth progress billing in the
amount of P1,527,112.95 for the works it
had completed from October 26 to
November 25, 2004.
Subsequently,
FFCCI,
after
it
had
evaluated the completed works of HRCC
from September 26 to November 25,
2004, approved the payment of the gross
amount of P1,505,570.99 to HRCC. FFCCI
deducted therefrom P150,557.10 for
retention and P27,374.02 for expanded
withholding tax leaving a net payment of

P1,327,639.87, which amount was paid to
HRCC on March 11, 2005.[9]
Meanwhile, HRCC sent FFCCI a letter[10]

dated December 13, 2004 demanding the
payment of its progress billings in the total
amount of P7,340,046.09, plus interests,
within three days from receipt thereof.
Subsequently, HRCC completely halted the
construction of the subcontracted project
after taking its Christmas break on
December 18, 2004.
On March 7, 2005, HRCC, pursuant to the

arbitration clause in the Subcontract
Agreement, filed with the Construction
Industry Arbitration Commission (CIAC) a
Complaint[11] against FFCCI praying for
the payment of the following: (1) overdue
obligation in the reduced amount of
P4,096,656.53 as of December 15, 2004
plus legal interest; (2) P1,500,000.00 as
attorneys
fees;
(3)
P80,000.00
as
acceptance
fee
and
representation
expenses; and (4) costs of litigation.
In its Answer,[12] FFCCI claimed that it no

longer has any liability on the Subcontract
Agreement as the three payments it made
to
HRCC,
which
amounted
to
P3,472,521.86, already represented the
amount due to the latter in view of the
works actually completed by HRCC as
shown by the survey it conducted jointly
with the DPWH. FFCCI further asserted
that the delay in the payment processing
was primarily attributable to HRCC
inasmuch as it presented unverified work
accomplishments
contrary
to
the
stipulation in the Subcontract Agreement
regarding requests for payment.
Likewise, FFCCI maintained that HRCC

failed to comply with the condition stated
under the Subcontract Agreement for the
payment of the latters progress billings,

i.e. joint measurement of the completed
works, and, hence, it was justified in not
paying the amount stated in HRCCs
progress billings.
On June 16, 2005, an Arbitral Tribunal was

created composed of Engineer Ricardo B.
San Juan, Joven B. Joaquin and Attorney
Alfredo F. Tadiar, with the latter being
appointed as the Chairman.
In a Preliminary Conference held on July 5,

2005, the parties defined the issues to be
resolved in the proceedings before the
CIAC as follows:
1.
What is the correct amount of
[HRCCs] unpaid progress billing?
2.
Did [HRCC] comply with the
conditions set forth in subparagraph 4.3 of
the Subcontract Agreement for the
submission, evaluation/processing and
release of payment of its progress billings?
3.
3.1
Did [HRCC] stop work on the project?
Likewise, during the said Preliminary

Conference, HRCC further reduced the
amount of overdue obligation it claimed
from FFCCI to P2,768,916.66. During the
course of the proceedings before the CIAC,
HRCC further reduced the said amount to
P2,635,397.77
the
exact
difference
between the total amount of HRCCs
progress billings (P6,107,919.63) and
FFCCIs total payments in favor of the
latter (P3,472,521.86).
The CIAC Decision
On September 6, 2005, after due

proceedings,
the
CIAC
rendered
a
Decision[14] in favor of HRCC, the decretal
portion of which reads:
WHEREFORE, judgment is hereby rendered

in
favor
of
the
Claimant
HR
CONSTRUCTION
CORPORATION
and
AWARD made on its monetary claim
against Respondent F.F. CRUZ & CO., INC.,
as follows:
[P]2,239,452.63 as the balance of its

unpaid billings and
If so, is the work stoppage justified?

101,161.57 as reimbursement
arbitration costs.
3.2
If so, what was the percentage and
value of [HRCCs] work accomplishment at
the time it stopped work on the project?
4.
Who between the parties should
bear the cost of arbitration or in what
proportion should it be shared by the
parties?[13]
of
the
[P]2,340,614.20 Total due the Claimant
Interest
on
the
foregoing
amount
[P]2,239,452.63 shall be paid at the rate
of 6% per annum from the date of this
Decision. After finality of this Decision,
interest at the rate of 12% per annum
shall be paid thereon until full payment of
the awarded amount shall have been

made x x x.
SO ORDERED.[15]
It is accordingly the holding of this Arbitral

Tribunal that [FFCCI] is not justified in
withholding payment of [HRCCs] third
progress billing for this scheme that
[HRCC] has not agreed to in the subcontract agreement x x x.
xxx
The CIAC held that the payment method
adopted by FFCCI is actually what is
known as the back-to-back payment
scheme which was not agreed upon under
the Subcontract Agreement. As such, the
CIAC ruled that FFCCI could not impose
upon HRCC its valuation of the works
completed by the latter. The CIAC gave
credence to HRCCs valuation of its
completed works as stated in its progress
billings. Thus:
During the trial, [FFCCIs] Aganon admitted

that
[HRCCs]
accomplishments
are
included in its own billings to the DPWH
together with a substantial mark-up to
cover overhead costs and profit. He
further admitted that it is only when
DPWH approves its (Respondents) billings
covering [HRCCs] scope of work and pays
for them, that [FFCCI] will in turn pay
[HRCC] for its billings on the subcontracted works.
On clarificatory questioning by the

Tribunal, [FFCCI] admitted that there is no
back-to-back provision in the sub-contract
as basis for this sequential payment
arrangement and, therefore, [FFCCIs]
imposition thereof by withholding payment
to [HRCC] until it is first paid by the project
owner on the Main Contract, clearly
violates said sub-contract. It [is] this
unauthorized implementation of a back-toback payment scheme that is seen to be
the reason for [FFCCIs] non-payment of
the third progress billings.
The total retention money deducted by

[FFCCI] from [HRCCs] three progress
billings, amounts to [P]395,945.14 x x x.
The retention money is part of [HRCCs]
progress billings and must, therefore, be
credited to this account. The two amounts
(deductions and net payments) total
[P]3,868,467.00 x x x. This represents the
total gross payments that should be
credited and deducted from the total gross
billings to arrive at what has not been paid
to the [HRCC]. This results in the amount
of [P]2,239,452.63 ([P]6,107,919.63 [P]3,868,467.00) as the correct balance of
[HRCCs] unpaid billings.[16]
Further, the CIAC ruled that FFCCI had

already waived its right under the
Subcontract Agreement to require a joint
measurement of HRCCs completed works
as a condition precedent to the payment
of the latters progress billings. Hence:
[FFCCI] admits that in all three instances

where it paid [HRCC] for its progress
billings, it never required compliance with
the aforequoted contractual provision of a
prior joint quantification. Such repeated
omission may reasonably be construed as
a waiver by [FFCCI] of its contractual right
to require compliance of said condition
and it is now too late in the day to so
impose it. Article 6 of the Civil Code
expressly provides that rights may be
waived unless the waiver is contrary to
law, public order, public policy, morals or

good customs. The tribunal cannot see
any such violation in this case.
xxx
[FFCCIs]
omission
to
enforce
the
contractually
required
condition
of
payment, has led [HRCC] to believe it to
be true that indeed [FFCCI] has waived the
condition of joint quantification and,
therefore, [FFCCI] may not be permitted to
falsify such resulting position.[17]
Likewise, the CIAC held that FFCCIs nonpayment of the progress billings submitted
by HRCC gave the latter the right to
rescind the Subcontract Agreement and,
accordingly, HRCCs work stoppage was
justified. It further opined that, in effect,
FFCCI had ratified the right of HRCC to
stop the construction works as it did not
file any counterclaim against HRCC for
liquidated damages arising therefrom.
FFCCI then filed a petition for review with

CA assailing the foregoing disposition by
the CIAC.
The CA Decision
On February 6, 2009, the CA rendered the

herein assailed Decision[18] denying the
petition for review filed by FFCCI. The CA
agreed with the CIAC that FFCCI had
waived its right under the Subcontract
Agreement to require a joint quantification
of HRCCs completed works.
The CA further held that the amount due

to HRCC as claimed by FFCCI could not be
given credence since the same was based
on a survey of the completed works
conducted without the participation of
HRCC.
Likewise,
being
the
main
contractor, it ruled that it was the
responsibility of FFCCI to include HRCC in
the joint measurement of the completed
works. Furthermore, the CA held that
HRCC was justified in stopping its
construction works on the project as the
failure of FFCCI to pay its progress billings
gave the former the right to rescind the
FFCCI sought a reconsideration[19] of the

said February 6, 2009 Decision but it was
denied by the CA in its Resolution[20]
dated April 13, 2009.
Issues
In the instant petition, FFCCI submits the

following issues for this Courts resolution:
[I.]
x x x First, [d]oes the act of [FFCCI] in

conducting a verification survey of
[HRCCs] billings in the latters presence
amount to a waiver of the right of [FFCCI]
to verify and approve said billings? What,
if any, is the legal significance of said act?
[II.]
x x x Second, [d]oes the payment of

[FFCCI] to [HRCC] based on the results of
the above mentioned verification survey
result in the former being obliged to
accept whatever accomplishment

reported by the latter?
was
The petition is not meritorious.
[III.]
x x x Third, [d]oes the mere comparison of

the payments made by [FFCCI] with the
contested progress billings of [HRCC]
amount to an adjudication of the
controversy between the parties?
[IV.]
x x x Fourth, [d]oes the failure of [FFCCI]

to interpose a counterclaim against
[HRCC] for liquidated damages due to the
latters work stoppage, amount to a
ratification of such work stoppage?
Procedural Issue:
Finality and Conclusiveness of the CIACs
Factual Findings
Before we delve into the substantial issues

raised by FFCCI, we shall first address the
procedural
issue
raised
by
HRCC.
According to HRCC, the instant petition
merely assails the factual findings of the
CIAC as affirmed by the CA and,
accordingly, not proper subjects of an
appeal under Rule 45 of the Rules of
Court. It likewise pointed out that factual
findings of the CIAC, when affirmed by the
CA, are final and conclusive upon this
Court.
[V.]
x x x Fifth, [d]id the [CA] disregard or

overlook significant and material facts
which would affect the result of the
litigation?[21]
In sum, the crucial issues for this Courts

resolution are: first, what is the effect of
FFCCIs
non-compliance
with
the
stipulation in the Subcontract Agreement
requiring a joint quantification of the
works completed by HRCC on the payment
of the progress billings submitted by the
latter; and second, whether there was a
valid rescission of the Subcontract
Agreement by HRCC.
The Courts Ruling
Generally, the arbitral award of CIAC is

final and may not be appealed except on
questions of law.
Executive Order (E.O.) No. 1008[22] vests

upon the CIAC original and exclusive
jurisdiction over disputes arising from, or
connected with, contracts entered into by
parties involved in construction in the
Philippines. Under Section 19 of E.O. No.
1008, the arbitral award of CIAC "shall be
final and inappealable except on questions
of law which shall be appealable to the
Supreme Court."[23]
In Hi-Precision Steel Center, Inc. v. Lim Kim

Steel Builders, Inc.,[24] we explained
raison d etre for the rule on finality of the
CIACs arbitral award in this wise:
Voluntary
arbitration
involves
the
reference of a dispute to an impartial
body, the members of which are chosen
by the parties themselves, which parties
freely consent in advance to abide by the
arbitral award issued after proceedings
where both parties had the opportunity to
be heard. The basic objective is to provide
a speedy and inexpensive method of
settling disputes by allowing the parties to
avoid the formalities, delay, expense and
aggravation which commonly accompany
ordinary litigation, especially litigation
which goes through the entire hierarchy of
courts. Executive Order No. 1008 created
an arbitration facility to which the
construction industry in the Philippines
can have recourse. The Executive Order
was enacted to encourage the early and
expeditious settlement of disputes in the
construction industry, a public policy the
implementation of which is necessary and
important for the realization of national
development goals.
Aware of the objective of voluntary

arbitration in the labor field, in the
construction industry, and in any other
area for that matter, the Court will not
assist one or the other or even both
parties in any effort to subvert or defeat
that objective for their private purposes.
The Court will not review the factual
findings of an arbitral tribunal upon the
artful allegation that such body had
"misapprehended the facts" and will not
pass upon issues which are, at bottom,
issues of fact, no matter how cleverly
disguised they might be as "legal
questions." The parties here had recourse
to arbitration and chose the arbitrators
themselves;
they
must
have
had
confidence in such arbitrators. x x x[25]
(Citation omitted)
Thus, in cases assailing the arbitral award

rendered by the CIAC, this Court may only
pass upon questions of law. Factual
findings of construction arbitrators are
final and conclusive and not reviewable by
this Court on appeal. This rule, however,
admits of certain exceptions.
In Spouses David v. Construction Industry

and Arbitration Commission,[26] we laid
down the instances when this Court may
pass upon the factual findings of the CIAC,
thus:
We reiterate the rule that factual findings

of construction arbitrators are final and
conclusive and not reviewable by this
Court on appeal, except when the
petitioner proves affirmatively that: (1) the
award was procured by corruption, fraud
or other undue means; (2) there was
evident partiality or corruption of the
arbitrators or of any of them; (3) the
arbitrators were guilty of misconduct in
refusing to postpone the hearing upon
sufficient cause shown, or in refusing to
hear evidence pertinent and material to
the controversy; (4) one or more of the
arbitrators were disqualified to act as such
under section nine of Republic Act No. 876
and willfully refrained from disclosing such
disqualifications
or
of
any
other
misbehavior by which the rights of any
party have been materially prejudiced; or
(5) the arbitrators exceeded their powers,
or so imperfectly executed them, that a
mutual, final and definite award upon the
subject matter submitted to them was not
made. x x x[27] (Citation omitted)
Issues on the proper interpretation of the

terms of the Subcontract Agreement
involve questions of law.
A question of law arises when there is

doubt as to what the law is on a certain
state of facts, while there is a question of
fact when the doubt arises as to the truth
or falsity of the alleged facts. For a
question to be one of law, the same must
not involve an examination of the
probative value of the evidence presented
by the litigants or any of them. The
resolution of the issue must rest solely on
what the law provides on the given set of
circumstances. Once it is clear that the
issue invites a review of the evidence
presented, the question posed is one of
fact.[28]
On the surface, the instant petition

appears to merely raise factual questions
as it mainly puts in issue the appropriate
amount that is due to HRCC. However, a
more thorough analysis of the issues
raised by FFCCI would show that it actually
asserts questions of law.
FFCCI primarily seeks from this Court a

determination of whether amount claimed
by HRCC in its progress billing may be
enforced against it in the absence of a
joint measurement of the formers
completed works. Otherwise stated, the
main question advanced by FFCCI is this:
in the absence of the joint measurement
agreed
upon
in
the
Subcontract
Agreement, how will the completed works
of HRCC be verified and the amount due
thereon be computed?
The determination of the foregoing

question entails an interpretation of the
terms of the Subcontract Agreement vis-vis the respective rights of the parties
herein. On this point, it should be stressed
that where an interpretation of the true
agreement between the parties is involved
in an appeal, the appeal is in effect an
inquiry of the law between the parties, its

interpretation necessarily involves a
question of law.[29]
Moreover, we are not called upon to

examine the probative value of the
evidence presented before the CIAC.
Rather, what is actually sought from this
Court is an interpretation of the terms of
the Subcontract Agreement as it relates to
the dispute between the parties.
First Substantive Issue: Effect of Noncompliance with the Joint Quantification

Requirement on the Progress Billings of
HRCC
Basically, the instant issue calls for a

determination as to which of the parties
respective valuation of accomplished
works should be given credence. FFCCI
claims that its valuation should be upheld
since the same was the result of a
measurement of the completed works
conducted by it and the DPWH. On the
other hand, HRCC maintains that its
valuation should be upheld on account of
FFCCIs failure to observe the joint
measurement requirement in ascertaining
the extent of its completed works.
The terms of the Subcontract Agreement

should prevail.
In resolving the dispute as to the proper

valuation of the works accomplished by
HRCC, the primordial consideration should
be the terms of the Subcontract
Agreement. It is basic that if the terms of a
contract are clear and leave no doubt
upon the intention of the contracting
parties, the literal meaning of its
stipulations shall control.[30]
4.3 Terms of Payment

In Abad v. Goldloop Properties, Inc.,[31]
we stressed that:
A courts purpose in examining a contract

is to interpret the intent of the contracting
parties, as objectively manifested by
them. The process of interpreting a
contract requires the court to make a
preliminary inquiry as to whether the
contract before it is ambiguous. A contract
provision is ambiguous if it is susceptible
of
two
reasonable
alternative
interpretations. Where the written terms of
the contract are not ambiguous and can
only be read one way, the court will
interpret the contract as a matter of law. If
the contract is determined to be
ambiguous, then the interpretation of the
contract is left to the court, to resolve the
ambiguity in the light of the intrinsic
evidence.[32] (Emphasis supplied and
citation omitted)
Article 4 of the Subcontract Agreement, in

part, contained the following stipulations:
ARTICLE 4
SUBCONTRACT PRICE
4.1 The total SUBCONTRACT Price shall be
THIRTY ONE MILLION
TWO HUNDRED NINETY THREE THOUSAND
FIVE HUNDRED THIRTY TWO PESOS &
72/100 ONLY ([P]31,293,532.72) inclusive
of Value Added Tax x x x.
xxx
FFCCI shall pay [HRCC] within thirty (30)

days upon receipt of the [HRCCs] Monthly
Progress Billings subject to deductions due
to ten percent (10%) retention, and any
other sums that may be due and
recoverable by FFCCI from [HRCC] under
this SUBCONTRACT. In all cases, however,
two percent (2%) expanded withholding
tax on the [HRCCs] income will be
deducted from the monthly payments.
Requests for the payment by the [HRCC]

shall include progress accomplishment of
completed
works
(unit
of
work
accomplished x unit cost) as approved by
[FFCCI]. Cut-off date of monthly billings
shall be every 25th of the month and joint
measurement shall be conducted with the
DPWHs representative, Consultants, FFCCI
and [HRCC] to arrive at a common/agreed
quantity.[33] (Emphasis supplied)
Pursuant to the terms of payment agreed

upon by the parties, FFCCI obliged itself to
pay the monthly progress billings of HRCC
within 30 days from receipt of the same.
Additionally, the monthly progress billings
of HRCC should indicate the extent of the
works completed by it, the same being
essential to the valuation of the amount
that FFCCI would pay to HRCC.
The parties further agreed that the extent

of HRCCs completed works that would be
indicated in the monthly progress billings
should be determined through a joint
measurement conducted by FFCCI and
HRCC together with the representative of
DPWH and the consultants.
It is the responsibility of FFCCI to call for

the
joint
measurement
of
HRCCs
completed works.
It
bears
stressing
that
the
joint
measurement contemplated under the
Subcontract
Agreement
should
be
conducted by the parties herein together
with the representative of the DPWH and
the consultants. Indubitably, FFCCI, being
the main contractor of DPWH, has the
responsibility
to
request
the
representative of DPWH to conduct the
said joint measurement.
ENGR. AGANON:
Puwede ko po bang i-explain sandali lang

po
regarding
lang
po
doon
sa
quantification na iyon? Basically po as
main contractor of DPWH, we are the ones
who [are] requesting for joint survey
quantification with the owner, DPWH.
Ngayon po, although wala sa papel na
nag-witness and [HRCC] still the same po,
nandoon din po sila during that time, kaya
lang ho . . .
MR. J. B. JOAQUIN:
On this score, the testimony of Engineer
Antonio M. Aganon, Jr., project manager of
FFCCI, during the reception of evidence
before the CIAC is telling, thus:
Hindi pumirma?
ENGR. AGANON:
MR. J. B. JOAQUIN:
Engr. Aganon, earlier there was a

stipulation that in all the four billings,
there never was a joint quantification.
PROF. A. F. TADIAR:
Hindi sila puwede pumirma kasi ho kami

po ang contractor ng DPWH hindi sila.[34]
(Emphasis supplied)
FFCCI had waived its right to demand for a

joint measurement of HRCCs completed
works under the Subcontract Agreement.
He admitted that earlier. Pinabasa ko sa

kanya.
ENGR. R. B. SAN JUAN:
The joint quantification was done only

between them and DPWH.
The CIAC held that FFCCI, on account of its

failure to demand the joint measurement
of HRCCs completed works, had effectively
waived its right to ask for the conduct of
the same as a condition sine qua non to
HRCCs submission of its monthly progress
billings.
xxxx
We agree.
In People of the Philippines v. Donato,[35]

this Court explained the doctrine of waiver
in this wise:
Waiver is defined as "a voluntary and

intentional
relinquishment
or
abandonment of a known existing legal
right, advantage, benefit, claim or
privilege, which except for such waiver the
party would have enjoyed; the voluntary
abandonment or surrender, by a capable
person, of a right known by him to exist,
with the intent that such right shall be
surrendered and such person forever
deprived of its benefit; or such conduct as
warrants
an
inference
of
the
relinquishment of such right; or the
intentional doing of an act inconsistent
with claiming it."
in his private capacity, if it can be

dispensed with and relinquished without
infringing on any public right, and without
detriment to the community at large. x x
x[36] (Emphasis supplied and citations
omitted)
Here, it is undisputed that the joint

contemplated by the parties in the
Subcontract
Agreement
never
materialized. Indeed, HRCC, on separate
occasions, submitted its monthly progress
billings indicating the extent of the works
it had completed sans prior joint
measurement. Thus:
Progress Billing
Period Covered
Amount
As to what rights and privileges may be

waived, the authority is settled:
1st Progress Billing dated September 17,

2004[37]
August 16 to September 15, 2004
x x x the doctrine of waiver extends to

rights and privileges of any character,
and, since the word waiver covers every
conceivable right, it is the general rule
that a person may waive any matter which
affects his property, and any alienable
right or privilege of which he is the owner
or which belongs to him or to which he is
legally entitled, whether secured by
contract, conferred with statute, or
guaranteed by constitution, provided such
rights and privileges rest in the individual,
are intended for his sole benefit, do not
infringe on the rights of others, and
further provided the waiver of the right or
privilege is not forbidden by law, and does
not contravene public policy; and the
principle is recognized that everyone has a
right to waive, and agree to waive, the
advantage of a law or rule made solely for
the benefit and protection of the individual
P2,029,081.59
2nd Progress Billing dated October 29,
2004[38]
September 18 to 25, 2004
P1,587,760.23
3rd Progress Billing dated October 29,
2004[39]
September 26 to October 25, 2004
P2,569,543.57
4th Progress Billing dated November 25,
2004
October 26 to November 25, 2004
P1,527,112.95
FFCCI did not contest the said progress

billings submitted by HRCC despite the
lack of a joint measurement of the latters
completed works as required under the
Subcontract Agreement. Instead, FFCCI
proceeded to conduct its own verification
of the works actually completed by HRCC
and, on separate dates, made the
following payments to HRCC:
Date of Payment
Period Covered
FFCCI is already barred from contesting

HRCCs valuation of the completed works
having waived its right to demand the
joint measurement requirement.
In view of FFCCIs waiver of the joint

measurement
requirement,
the
CA,
essentially echoing the CIACs disposition,
found that FFCCI is obliged to pay the
amount claimed by HRCC in its monthly
progress billings. The CA reasoned thus:
Amount
December 3, 2004[40]
April 2 to July 25, 2004
P373,452.24
December 21, 2004[41]
July 26 to September 25, 2004
P1,771,429.45
March 11, 2005[42]
September 26 to November 25, 2004
P1,327,639.87
FFCCIs voluntary payment in favor of

HRCC, albeit in amounts substantially
different from those claimed by the latter,
is a glaring indication that it had
effectively waived its right to demand for
the joint measurement of the completed
works. FFCCIs failure to demand a joint
reasonably justified the inference that it
had already relinquished its right to do so.
Indeed, not once did FFCCI insist on the
conduct of a joint measurement to verify
the extent of HRCCs completed works
despite its receipt of the four monthly
progress billings submitted by the latter.
Verily, the joint measurement that [FFCCI]

claims
it
conducted
without
the
participation of [HRCC], to which [FFCCI]
anchors its claim of full payment of its
obligations to [HRCC], cannot be applied,
nor imposed, on [HRCC]. In other words,
[HRCC] cannot be made to accept a
quantification of its works when the said
quantification was made without its
participation. As a consequence, [FFCCIs]
claim of full payment cannot be upheld as
this is a result of a quantification that was
made contrary to the express provisions of
the Subcontract Agreement.
The Court is aware that by ruling so,

[FFCCI] would seem to be placed at a
disadvantage because it would result in
[FFCCI] having to pay exactly what [HRCC]
was billing the former. If, on the other
hand, the Court were to rule otherwise[,]
then [HRCC] would be the one at a
disadvantage because it would be made to
accept payment that is less than what it
was billing.
Circumstances considered, however, the

Court deems it proper to rule in favor of
[HRCC] because of the explicit provision of
the Subcontract Agreement that requires
the participation of the latter in the joint
measurement. If the Court were to rule
otherwise, then the Court would, in effect,

be disregarding the explicit agreement of
the parties in their contract.[43]
Essentially, the question that should be

resolved is this: In view of FFCCIs waiver of
its right to demand a joint measurement
of HRCCs completed works, is FFCCI now
barred from disputing the claim of HRCC in
its monthly progress billings?
We rule in the affirmative.
As
intimated
earlier,
the
joint
measurement
requirement
is
a
mechanism essentially granting FFCCI the
opportunity to verify and, if necessary,
contest HRCCs valuation of its completed
works prior to the submission of the latters
monthly progress billings.
In
the
final
analysis,
the
joint
measurement requirement seeks to limit
the dispute between the parties with
regard to the valuation of HRCCs
completed works. Accordingly, any issue
which FFCCI may have with regard to
HRCCs valuation of the works it had
completed should be raised and resolved
during the said joint measurement instead
of raising the same after HRCC had
submitted its monthly progress billings.
Thus, having relinquished its right to ask
for a joint measurement of HRCCs
completed works, FFCCI had necessarily
waived its right to dispute HRCCs
valuation
of
the
works
it
had
accomplished.
Second Substantive Issue:

Validity of HRCCs Rescission
Subcontract Agreement
of
the
Both the CA and the CIAC held that the

work stoppage of HRCC was justified as
the same is but an exercise of its right to
rescind the Subcontract Agreement in
view of FFCCIs failure to pay the formers
monthly progress billings. Further, the
CIAC stated that FFCCI could no longer
assail the work stoppage of HRCC as it
failed to file any counterclaim against
HRCC pursuant to the terms of the
For its part, FFCCI asserted that the work

stoppage of HRCC was not justified and, in
any case, its failure to raise a counterclaim
against HRCC for liquidated damages
before the CIAC does not amount to a
ratification of the latters work stoppage.
The determination of the validity of HRCCs

work
stoppage
depends
on
a
determination of the following: first,
whether
HRCC
has
the
right
to
extrajudicially rescind the Subcontract
Agreement; and second, whether FFCCI is
already barred from disputing the work
stoppage of HRCC.
HRCC had waived its right to rescind the

The right of rescission is statutorily

recognized in reciprocal obligations. Article
1191 of the Civil Code pertinently reads:
Art. 1191. The power to rescind

obligations is implied in reciprocal ones, in
case one of the obligors should not comply

with what is incumbent upon him.
right. Apropos is Article 11.2 of

Subcontract Agreement, which reads:
The injured party may choose between the

fulfillment and the rescission of the
obligation, with the payment of damages
in either case. He may also seek
rescission, even after he has chosen
fulfillment, if the latter should become
impossible.
11.2
Effects of Disputes and
Continuing Obligations
The court shall decree the rescission

claimed, unless there be just cause
authorizing the fixing of a period.
This is understood to be without prejudice

to the rights of third persons who have
acquired the thing, in accordance with
Articles 1385 and 1388 and the Mortgage
Law.
The rescission referred to in this article,

more
appropriately
referred
to
as
resolution is on the breach of faith by the
defendant which is violative of the
reciprocity between the parties.[44] The
right to rescind, however, may be waived,
expressly or impliedly.[45]
While the right to rescind reciprocal

obligations is implied, that is, that such
right need not be expressly provided in
the contract, nevertheless the contracting
parties may waive the same.[46]
Contrary to the respective dispositions of

the CIAC and the CA, we find that HRCC
had no right to rescind the Subcontract
Agreement in the guise of a work
stoppage, the latter having waived such
the
Notwithstanding any dispute, controversy,

differences or arbitration proceedings
relating directly or indirectly to this
SUBCONTRACT Agreement and without
prejudice to the eventual outcome thereof,
[HRCC] shall at all times proceed with the
prompt performance of the Works in
accordance with the directives of FFCCI
and this SUBCONTRACT Agreement.[47]
(Emphasis supplied)
Hence, in spite of the existence of dispute

or controversy between the parties during
the course of the Subcontract Agreement,
HRCC had agreed to continue the
performance of its obligations pursuant to
the Subcontract Agreement. In view of the
provision of the Subcontract Agreement
quoted above, HRCC is deemed to have
effectively waived its right to effect
extrajudicial rescission of its contract with
FFCCI. Accordingly, HRCC, in the guise of
rescinding the Subcontract Agreement,
was not justified in implementing a work
stoppage.
The costs of arbitration should be shared

by the parties equally.
Section 1, Rule 142 of the Rules of Court

provides:
Section 1. Costs ordinarily follow results of

suit. Unless otherwise provided in these
rules, costs shall be allowed to the
prevailing party as a matter of course, but
the court shall have power, for special
reasons, to adjudge that either party shall
pay the costs of an action, or that the
same be divided, as may be equitable. No
costs shall be allowed against the Republic
of the Philippines unless otherwise
provided by law. (Emphasis supplied)
[G.R. No. 129295. August 15, 2001]
PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. EDWIN MORIAL, LEONARDO

MORIAL alias CARDING and NONELITO
ABION* alias NOLY, defendants-appellants.
DECISION
PER CURIAM:
Although, generally, costs are adjudged

against
the
losing
party,
courts
nevertheless have discretion, for special
reasons, to decree otherwise.
Here, considering that the work stoppage

of HRCC is not justified, it is only fitting
that both parties should share in the
burden of the cost of arbitration equally.
HRCC had a valid reason to institute the
complaint against FFCCI in view of the
latters failure to pay the full amount of its
monthly progress billings. However, we
disagree with the CIAC and the CA that
only FFCCI should shoulder the arbitration
costs. The arbitration costs should be
shared equally by FFCCI and HRCC in view
of the latters unjustified work stoppage.
WHEREFORE, in consideration of the

foregoing disquisitions, the Decision dated
February 6, 2009 and Resolution dated
April 13, 2009 of the Court of Appeals in
CA-G.R. SP No. 91860 are hereby
AFFIRMED with MODIFICATION that the
arbitration costs shall be shared equally
by the parties herein.
SO ORDERED.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXX
Two of the three appellants herein were

sentenced to death by the Regional Trial
Court (RTC) of Southern Leyte for Robbery
with Homicide. The other was sentenced
to suffer only the penalty of reclusion
perpetua on account of minority. The
judgment of conviction is now before this
Court on automatic review.
The information charging appellants reads

as follows:
That on the 6th day of January 1996, at

about 6:30 o'clock [sic] in the evening
more or less, in [B]arangay Cagnituan,
[M]unicipality of Maasin, [P]rovince of
Southern Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named
accused
conspiring,
confederating and mutually helping one
another, with intent to kill and with intent
of [sic] gain, entered into [sic] the house
of Paula Bandibas and Benjamin Morial
and once inside did then and there
willfully and unlawfully and feloniously
attack, assault, box, beat and stab the
victims Paula Bandibas and Albert
Bandibas, with the use of sharp-pointed
weapons and stones which the accused
had provided themselves for the purpose,
thereby inflicting upon the victims mortal
wounds which caused their instantaneous
death, after [which], said accused took,
stole and carried away therefrom Cash in
the amount of Eleven Thousand Pesos

(P11,000.00)
Philippine
Currency,
belonging to said Paula Bandibas and
Benjamin Morial, to the damage and
prejudice of the victims and of social
order.
The three accused stayed in the house for

about ten minutes after the killing the
victims. Thereafter, they departed and
headed towards the nearby houses.[2]
CONTRARY TO LAW.[1]
Upon arraignment,
pleaded not guilty.
the
Gabriel
also
saw
Paula
Bandibas'
grandson, Albert Bandibas, run towards
his grandmother's garden. Gabriel then
heard the crushing sound of a stone
against flesh.
three
accused
The prosecution theorized that the

accused committed the robbery in the
early evening of January 6, 1996 so they
would have money to spend for the dance
later that night. To obtain the money or to
silence any witnesses, the accused killed
the occupants of the house, Paula
Bandibas and her three-year old grandson
Albert. In proving its theory, the
prosecution offered the testimonies of
Gabriel Guilao, Benjamin Morial, SPO4
Antonio Macion and Dr. Teodulo Salas.
The crime allegedly took place at 6:00 in

the evening in Barangay Cagnituan,
Maasin, Southern Leyte. Gabriel Guilao,
62, had just finished pasturing his horses
and was on his way home. He was passing
through the road near the house of
Benjamin Morial when he heard the voice
of Paula Bandibas pleading, "[P]lease don't
kill me[.] I am going to give you money."
Finding what he heard "weird," Gabriel
paused and remained at a distance of
about eight (8) meters from the yard of
the house. From where he stood, Gabriel
saw accused Nonelito Abion slap Paula
Bandibas' neck. Paula fell and was stabbed
by accused Edwin Morial with a small,
sharp, pointed weapon. Accused Leonardo
Morial stood outside the house.
Paula Bandibas' common-law husband,

Benjamin Morial, 56, was in neighboring
Barangay Maria Clara when the incident
took place. He, along with the father of
accused Leonardo Morial, and two others,
Heracleo Alonzo and Leo Padilla, were
having drinks in his Maria Clara residence.
Benjamin left Barangay Maria Clara the

next day at 2:00 in the afternoon. He
arrived
in
Barangay
Cagnituan,
7
kilometers away, two hours later. As was
his wont, Benjamin called out Paula's
name when he was some five (5) meters
from the house. This time, however, there
was no answer.
Benjamin raced to the house, heading

straight to the bedroom. There, he found
the clothes all topsy-turvy. The box where
he and Paula hid their money was turned
upside down. Someone had ransacked
their house.
Benjamin moved back and saw Paula lying

on the floor with a cut in her neck. He
shouted for help. Responding to his cries,
Benjamin's neighbors, including barangay
kagawads Patricio Abion and Rufino
Guilao, rushed to his house. Benjamin
asked his neighbors to help search for
Albert, who was found shortly some 50
meters from the house. Albert Bandibas
laid flat on the ground with two stones
near his head. Benjamin requested Patricio

to send someone to report the incident to
the police.[3]
Upon learning of Benjamin's return to

Barangay Cagnituan, Gabriel Guilao also
hurried to Benjamin's house.[4] He
revealed to the grieving Benjamin that he
witnessed Paula's killing and that the three
accused, Edwin Morial, Leonardo Morial
and Nonelito Abion, were the perpetrators.
Benjamin advised Gabriel not to tell
anyone about what he knew for fear that
they would all be killed since the Abions
were "saturated in [their] place." Gabriel
heeded Benjamin's advice.[5]
The police arrived at around 10:00 that

evening. SPO4 Antonio Macion, along with
four other police officers, investigated the
tragedy. They found wounds in Paula
Bandibas' stomach, breast and neck.
Albert Bandibas, on the other hand, had a
contusion on the right side of his head.
Beside him were two stones.[6]
After examining the victims' wounds, the

police officers, along with Benjamin Morial,
proceeded to the bedroom. Benjamin
informed the officers that P11,000.00 was
missing from the moneybox. Other than
the cash, nothing else was missing.
Outside the house, Benjamin disclosed to

the officers his three suspects, the
accused in this case. He advised them,
however, to bring only Leonardo and
Edwin Morial into custody and not to
include Nonelito Abion, who had many
relatives in Cagnituan. As a former
barangay captain of 22 years, he knew
that the Abions were "most feared" in
Cagnituan. Benjamin did not tell the police
that Gabriel Guilao had witnessed the
incident.[7]
The police found Edwin and Leonardo

Morial in the house of Nonelito Abion and
invited the two to the police station, where
they were turned over to SPO4 Andres
Fernandez. The investigation conducted by
SPO4 Fernandez yielded an extra-judicial
confession from accused Leonardo Morial,
[8] who was assisted by Atty. Tobias
Aguilar.
On January 8, 1996, Dr. Teodulo Salas, a

rural health physician, conducted a postmortem examination on the bodies of the
victims. Dr. Salas found an incised wound
at the upper portion of Paula Bandibas'
neck, which he believed was caused by a
sharp-edged
weapon
or
instrument,
possibly a knife. Two stab wounds on the
chest below and above the right nipple,
both punctured the lung. Another stab
wound at the abdomen pierced the
intestine. Dr. Salas concluded that the
cause of death of Paula Bandibas is severe
hemorrhages secondary to the incised
wound.
On the remains of Albert Bandibas, Dr.

Salas found multiple angular corrogated
wounds on the head, which could have
been caused by a heavy object such as a
stone. Multiple stab wounds punctured the
skull. There was also an abrasion on the
right side of the face, which was grossly
swollen and disfigured. The abrasion,
according to Dr. Salas, might have been
caused by a piece of wood, by friction with
the ground, or by some rough material
that struck the child's face. The last injury
was a stab wound on the right forehead.
Dr. Salas believed that the cause of death
of Albert Bandibas is the intra-cranial
hemorrhages secondary to the violent
injury to the head.[9] The foregoing
findings and conclusions were reduced to
writing in the doctor's Necropsy Reports.
[10]
The accused, all first-degree cousins,

interposed denial and alibi as their
defense. They denied being together at
the time of the incident.
Accused Nonelito Abion, 22, claimed that

he was in his house at around 6:00 in the
evening of January 6, 1996. An hour later,
he went to the house of his sweetheart,
Rosalie Mepico, and the two later attended
a dance at around 9:30 that evening. At
the dance, they occupied a table with
Renida Mepico, Renato Montederamos and
Edwin Morial. Leonardo Morial, he said,
was not with them.[11]
Accused Edwin Morial, 18, maintained that

he was also at home on January 6, 1996.
He slept from 6:00 until 7:30 in the
evening. At 9:00 p.m., he went to the
dance
with
Renato
Montederamos.
Nonelito Abion and Reneda Mepico were
also at the dance.[12]
The defense pinned its bid for exculpation

on the lengthy testimony of accused
Leonardo Morial, 20. He narrated as
follows:
At around 6:00 to 7:00 p.m. of January 6,

1996, he was at home washing dishes. He
had supper at approximately 7:00 and
went to sleep at about 7:30 or 8:00. Unlike
his fellow accused, Leonardo did not go to
the dance.[13]
At 4:00 in the afternoon of the next day,

he was in the basketball court of their
barangay watching Nonelito and Edwin
playing basketball with Jaime Morial,
Renato Montederamos, Jimmy Abion,
Danilo Morial and Christopher Morial,
among others.[14] Suddenly, they heard
Benjamin Morial shout for help several

times.[15] Nonelito and Edwin, along with
the others in the basketball court, all
rushed to Benjamin Morial's house.[16]
Leonardo Morial also proceeded to
Benjamin's house after bringing home his
two-year old sister.[17]
At the house of Benjamin Morial, they

found the lifeless body of Paula Bandibas
on the floor underneath the kitchen table.
Her hands were on her breast, one foot
crooked and the other straight. She had
wounds in her neck and breast. The corpse
exuded a bad odor. Benjamin Morial was
crying. He said that whoever killed Paula
shall pay.[18] Edwin asked Daniel Morial
who the suspects to the killing were.
Daniel said he did not know. Edwin went
home after about five minutes.[19]
After viewing Paula Bandibas' remains,

Leonardo went out of the house because
of the unpleasant smell and then headed
home.[20] Nonelito, on the other hand,
departed as people started looking for the
body of Albert Bandibas since it was
getting late. That was about 5:15 in the
afternoon.[21]
That night, Edwin and Leonardo slept at

Nonelito's house. Nonelito had invited
Edwin to sleep over as they were going to
dress a chicken,[22] and Edwin had told
Leonardo about it. The cousins had the
chicken for dinner. It was quite late when
they finished their supper so Leonardo
also decided to spend the night at
Nonelito's house.[23] They slept at past
8:00 in the evening.[24] According to
Nonelito, that was not the only time that
the two had slept over. He said there were
previous occasions that his cousins had
spent the night at their place.[25]
The Abion household was to be roused

from its slumber three hours later. At
11:00 p.m., the police arrived to
investigate the killing of the Bandibases. A
police officer asked Edwin where he was at
6:00 in the evening of January 6, 1996.
Edwin replied that he was in their house
sleeping. They also asked the same
question
to
Leonardo
Morial,
who
answered that he was at home taking care
of his younger siblings. Nonelito, however,
was not questioned. A policeman informed
Edwin and Leonardo that they would be
brought to the police station for the
continuation of the investigation.[26]
Edwin and Leonardo went with the police

officers and arrived at the station at
around 3:00 dawn the next day. The police
told them to go to sleep.[27]
The suspects were interrogated after they

awoke at past 6:00 that same morning.
Edwin was advised to tell the truth so he
would not be killed. Nevertheless, he
refused to admit his alleged participation
in the killings. Someone then struck his
left hand with a pistol. His hand swelled. A
policeman in uniform warned him that if
he did not tell the truth, he would be
brought to the toilet.
Sure enough, Edwin was subsequently

brought to the lavatory where he was
boxed at the back and instructed to
undress. As Edwin stood naked, hands on
his side, six tires were placed around his
body. A towel soaked with water was
pushed into his mouth. Fortunately, the
towel did not go all the way to his throat
since another policeman, a certain Leoni
Egido, advised Edwin' s tormentors to stop
and have pity on him. Edwin said that
around seven policemen were in the toilet
with him though he could not identify any
of them in court. He claimed that he did
not have his hand examined

physician since he was afraid.[28]
by
Like Edwin, Leonardo was also asked

where he was on January 6, 1996 at 6:00
in the evening. Leonardo reiterated that
he was at home. He was then brought to a
separate room where his interrogation
continued.
Leonardo refused to own up to the

incident so a policeman called two other
policemen and directed them to gag
Leonardo. The two held Leonardo's arms
while the other stuffed a shirt into his
mouth. One of them inflicted three
successive painful blows on Leonardo's left
side as the two others continued to hold
his hands.
Leonardo was then seated and his gag

removed. The police told Leonardo to
confess to the killings. Leonardo professed
that he did not witness the incident and
could not tell them anything about it.
Again, they gagged his mouth and the
same policeman who had hit him then
boxed him twice, this time on his right
side. Thereafter, they released their hold
and advised him to confess so they would
not kill him. Leonardo repeated that he did
not know anything about the incident.
When a policeman attempted to box him
again, Leonardo finally admitted that
Nonelito Abion and Edwin Morial were
responsible for the death of Paula
Bandibas. Leonardo's interrogation lasted
one and a half to two hours.
Asked in court to identify the uniformed

policemen who beat him up, Leonardo said
he could not recall their faces. He did not
look at the policemen during his
interrogation and did not see their
nameplates.
Leonardo did not ask the police for a

physician to examine him nor did he tell
anyone about his injuries because he did
not know he was permitted to do so.
Leonardo's statements were then reduced

into writing. A policeman informed him
that they were going to contact a lawyer
to assist him during the investigation.
Leonardo was told that his counsel would
be a certain Atty. Aguilar whose office was
very near the police station. Leonardo
consented.
Having prepared Leonardo's statement,

the police then told Leonardo to come with
them to Atty. Aguilar's office, which was
about 50 meters from the police station.
There, he saw Atty. Aguilar for the first
time. The lawyer read to him the
document and asked him whether its
contents were true. The police had
instructed Leonardo to answer "yes" if he
was asked that question, and Leonardo
heeded the instructions.
Leonardo denied that Atty. Aguilar

examined his body for any injuries. Atty.
Aguilar did ask Leonardo if he was forced
or intimidated to execute the extra-judicial
confession. Leonardo, however, did not tell
his lawyer about his injuries since a police
officer had warned him that he would be
mauled again should he do so. Leonardo
then signed the extra-judicial confession,
after which Atty. Aguilar affixed his. The
signing over, Leonardo was brought back
to the police station.[29] Later in court,
Leonardo claimed that he merely made up
all the statements in the document
because he was afraid.
At around 8:30 that morning, Nonelito

visited Leonardo and Edwin at the police
station. A police officer informed Nonelito

that he was one of the suspects and
handcuffed him.[30]
To belie Gabriel Guilao's eyewitness

account, the defense also presented
Patricio Abion and Eulogio Padilla. Patricio
and Eulogio purportedly saw Gabriel in
Barangay Maria Clara at the alleged time
of the incident as well as the morning
after.
On rebuttal, the prosecution offered the

testomonies of Flora Bandibas, Martin
Galope and Erlito Bandibas.
Flora and Martin were presented to

disprove the testimony of the accused that
Edwin Morial was not at the dance with his
co-accused. Flora claimed that she saw
the three together at the dance with
Rosalia and Reneda Mepico occupying one
table. Nonelito and Edwin danced joyfully,
even somewhat unusually, and caught the
attention of other people. Leonardo also
danced but did not seem to enjoy himself.
[31]
Martin, a barangay tanod, was at the

dance to help preserve the peace. He
maintained that he saw all the three
accused, including Leonardo Morial, at the
dance.[32]
The defense attempted to diminish these

witnesses' credibility by showing their
relation to the victim. On crossexamination, Flora admitted that she is
the wife of Ireneo Bandibas, the barangay
captain, and the son of Paula Bandibas.
[33] Martin Galope, for his part, said that
the same Ireneo Bandibas had appointed
him barangay tanod.[34]
Erlito Bandibas' testimony, on the other

hand, was intended to refute the
testimonies of defense witnesses Patricio
Abion and Eulogio Padilla that Gabriel
Guilao, the alleged eyewitness to the
killings, was in Maria Clara at the
purported time of the incident.
On sur-rebuttal, the defense again

presented Eulogio Padilla to dispute the
testimony of Erlito Bandibas.
4. To indemnify the heirs of Albert

Bandibas the amount of P50,000.00 as
death indemnity;
5. To indemnify complainant Benjamin

Morial the amount of P20,546.00 as actual
damages for the funeral, burial and wake
expenses;
6. To pay to the heirs [the] aforementioned

moral damages of P60,000.00 for each
death; and
After trial, the RTC rendered a decision

convicting all the three accused, thus:

finding
all
the
accused,
namely:
LEONARDO MORIAL, NONELITO ABION and
EDWIN MORIAL, GUILTY beyond reasonable
doubt of the crime of ROBBERY WITH
HOMICIDE as defined under Article 293
and penalized under Article 294 (1) of the
Revised Penal Code and are hereby
sentenced as follows:
1. Accused LEONARDO MORIAL and

NONELITO ABION to each suffer the
supreme penalty of DEATH by lethal
injection; and
2. Accused EDWIN MORIAL, due to his

minority, to suffer the lesser penalty of
RECLUSION PERPETUA.
Civilly, the three (3) accused aforenamed

are held liable JOINTLY and SEVERALLY as
follows:
3. To indemnify the heirs of Paula Bandibas

the amount of P50,000.00 as death
indemnity;
7. To restitute or restore to private

complainant
Benjamin
Morial
the
P11,000.00 amount robbed;
8. To pay the costs.
SO ORDERED.[35]
Appellants' conviction rests on two vital

pieces of evidence: the extra-judicial
confession of appellant Leonardo Morial
and the eyewitness account of Gabriel
Guilao.
The Court finds Leonardo Morial's extrajudicial confession invalid since he was
effectively deprived of his right to counsel
during the custodial investigation.
A custodial investigation is understood to

mean as "any questioning initiated by law
enforcement authorities after a person is
taken into custody or otherwise deprived
of his freedom of action in any significant
manner."[36] It begins when there is no
longer a general inquiry into an unsolved
crime but starts to focus on a particular
person as a suspect, i.e., when the police
investigator
starts
interrogating
or
exacting a confession from the suspect in
connection with an alleged offense.[37]
A person under custodial investigation is

guaranteed certain rights, which attach
upon the commencement thereof. These
are the rights (1) to remain silent, (2) to
competent and independent counsel,
preferably of his own choice, and (3) to be
informed of the two other rights.[38] The
prosecution must prove with clear and
convincing evidence that the accused was
accorded said rights before he extrajudicially admitted his guilt to the
authorities.[39]
Thus,
the
prosecution
offered
the
testimonies of SPO4 Andres Fernandez and
Atty. Tobias Aguilar. SPO4 Fernandez
testified
that
the
investigation
he
conducted resulted in an admission by
Leonardo Morial that he was one of those
who participated in the robbery with
homicide. SPO4 Fernandez asked Leonardo
whether he was willing to reduce his
statement into writing and to sign the
same. The suspect answered positively.
SPO4 Fernandez then advised him of his
right "to remain silent and [to] have a
counsel[,] [and informed him that]
whatever will be his answer will be used
as evidence in Court.[40]
Leonardo told the investigator that he had

no money to pay for the services of
counsel. SPO4 Fernandez informed him
that there are many lawyers in their
municipality and named some of them.
Leonardo said he did not know any of the
lawyers mentioned. SPO4 Fernandez thus
volunteered to obtain a lawyer for the
suspect, to which Leonardo Morial
consented.
SPO4
Fernandez
then
contacted Atty. Aguilar.[41]
Atty. Tobias Aguilar arrived at about 8:00

that morning of January 9, 1996. After
being introduced to Leonardo Morial, Atty.
Aguilar had a short conference with him.
He asked Leonardo if he was willing to
answer the questions that may be
propounded by the police investigator.
Atty. Aguilar warned him that the
statements that he may give might be
used in evidence against him. Leonardo
said he was willing to answer the
questions voluntarily. According to Atty.
Aguilar, Leonardo was bent on revealing
what really happened. Thereafter, SPO4
Fernandez conducted the investigation in
Cebuano.
Midway into the investigation, after the

police investigator had asked "all the
material points," Atty. Aguilar asked the
investigator that he be given leave as he
had a very important engagement. The
investigator agreed to the lawyer's
request.[42]
Before leaving, Atty. Aguilar asked

Leonardo if he was willing to answer the
questions in his absence. He also
instructed the police that, after the written
confession had been prepared, the
accused and the document containing the
confession should be brought to his office
for "further examination." Atty. Aguilar was
in the police station for less than thirty
minutes
from
the
start
of
the
interrogation.
At about 1:30 or 2:00 in the afternoon,

Leonardo and his policeman-escort arrived
at Atty. Aguilar's office. Atty. Aguilar asked
the accused whether he was maltreated
while he was away and examined the
suspect's
body
for
contusions
or
abrasions. Leonardo told him that he was
not harmed by the police officer. The
lawyer then studied the document to
determine whether its contents conformed
to the answers given by the accused in his

(counsel's) presence. He propounded
questions to Leonardo with reference to
the document. Atty. Aguilar asked him
whether he understood its contents and
whether he was willing to sign it. Leonardo
replied in the positive and signed the
document in the presence of Atty. Aguilar
and the policeman-escort.[43]
SPO4 Fernandez confirmed that Atty.

Aguilar left during the investigation. On
direct examination, SPO4 Fernandez said
the lawyer left the station while the
investigation was still going on, saying
that he had so many things to do in his
office.[44] On cross-examination, SPO4
Fernandez hesitated a little when he
testified that Atty. Aguilar "might" have
probably gone out in the middle of the
investigation.[45] Later, he clarified that
while in the process of drafting the
statement, Atty. Aguilar told him that he
had to go to his office to attend to some
matters.[46] SPO4 Fernandez added that
while Atty. Aguilar was "in the police
station during the investigation," "he (Atty.
Aguilar) [would] come and go but within
the police station.[47]
During and despite Atty. Aguilar's absence,

SPO4 Fernandez continued with the
investigation and propounded several
more questions to Leonardo, which the
latter answered.[48]
The Court has stressed that an accused

under
custodial
interrogation
must
continuously have a counsel assisting him
from the very start thereof.[49] In People
vs. Lucero,[50] where the suspect's
counsel left just when the interrogation
was starting, this Court chastised both
counsel and the trial court for their lack of
zeal in safeguarding the rights of the
accused.
SPO4 Fernandez cannot justify Atty.

Aguilar's leaving by claiming that when
the lawyer left, he knew very well that the
suspect had already admitted that he
(Leonardo) and his companions committed
the crime.[51] Neither can Atty. Aguilar
rationalize his abandoning his client by
saying that he left only after the latter had
admitted the "material points," referring to
the
three
accused's
respective
participation in the crime.[52] For even as
the person under custodial investigation
enjoys the right to counsel from its
inception, so does he enjoy such right until
its termination -indeed, "in every phase of
the investigation.[53] An effective and
vigilant counsel "necessarily and logically
requires that the lawyer be present and
able to advise and assist his client from
the time the confessant answers the first
question asked by the investigating officer
until the signing of the extrajudicial
confession."[54]
Furthermore,
Section
2(a)
of
R.A.
No.7438[55] requires that "[a]ny person
arrested, detained or under custodial
investigation shall at all times be assisted
by counsel." The last paragraph of Section
3 of the same law mandates that "[i]n the
absence of any lawyer, no custodial
investigation shall be conducted."
The right of appellant to counsel was

therefore completely negated by the
precipitate departure of Atty. Tobias before
the
termination
of
the
custodial
investigation. In People vs. Deniega,[56]
we explained the rationale for the rule
requiring counsel's continuing presence
throughout the custodial investigation:
Conditions vary at every stage of the

process of custodial investigation. What
may satisfy constitutional requirements of
voluntariness at the investigation's onset
may not be sufficient as the investigation
goes on. x x x. The competent or

independent counsel so engaged should
be present from the beginning to end, i.e.,
at all stages of the interview, counseling
or advising caution reasonably at every
turn of the investigation, and stopping the
interrogation once in a while either to give
advice to the accused that he may either
continue, choose to remain silent or
terminate the interview.
If it were true that Atty. Tobias had to

attend to matters so pressing that he had
to abandon a client undergoing custodial
investigation, he could have terminated
the same to be continued only until as
soon as his schedule permitted, advising
the suspect in the meantime to remain
silent. This he failed to do. Apallingly, he
even asked his client whether he was
willing to answer questions during the
lawyer's absence. The records also
disclose that Atty. Tobias never informed
appellant of his right to remain silent, not
even before the custodial investigation
started.[57]
Atty. Tobias, by his failure to inform

appellant of the latter's right to remain
silent, by his "coming and going" during
the custodial investigation, and by his
abrupt departure before the termination of
the proceedings, can hardly be the
counsel that the framers of the 1987
Constitution contemplated when it added
the modifier "competent" to the word
"counsel." Neither can he be described as
the "vigilant and effective" counsel that
jurisprudence requires. Precisely, it is Atty.
Tobias' nonchalant behavior during the
custodial
investigation
that
the
Constitution abhors and which this Court
condemns. His casual attitude subverted
the very purpose for this vital right, which
is to:
x x x curb the uncivilized practice of

extracting confession even by the slightest
coercion as would lead the accused to
admit something false. What is sought to
be avoided is the "evil of extorting from
the very mouth of the person undergoing
interrogation for the commission of an
offense, the very evidence with which to
prosecute and thereafter convict him."
These constitutional guarantee have been
made available to protect him from the
inherently coercive psychological, if not
physical,
atmosphere
of
such
investigation.[58]
Even granting that appellant consented to

Atty. Aguilar's departure during the
investigation and to answer questions
during the lawyer's absence, such consent
was an invalid waiver of his right to
counsel and his right to remain silent.
Under Section 12 (3), Article III of the
Constitution, these rights cannot be
waived unless the same is made in writing
and in the presence of counsel. No such
written and counseled waiver of these
rights was offered in evidence.
That the extra-judicial

subsequently signed in
counsel did not cure
defects. In People vs.
Court held:
confession was
the presence of
its constitutional
Compil,[59] this
x x x it is evident that accused-appellant

was
immediately
subjected
to
an
interrogation upon his arrest in the house
of Rey Lopez in Tayabas, Quezon. He was
then brought to the Tayabas Police Station
where he was further questioned. And
while on their way to Manila, the arresting
agents
again
elicited
incriminating
information. In all three instances, he
confessed to the commission of the crime
and admitted his participation therein. In
all those instances, he was not assisted by
counsel.
The belated arrival of the CLAO lawyer the

following day even if prior to the actual
signing of the uncounseled confession
does not cure the defect for the
investigators were already able to extract
incriminatory statements from accusedappellant. The operative act, it has been
stressed, is when the police investigation
is no longer a general inquiry into an
unsolved crime but has began to focus on
a particular suspect who has been taken
into custody by the police to carry out a
process of interrogation that lends itself to
eliciting incriminatory statements, and not
the signing by the suspect of his supposed
extrajudicial confession. Thus in People v.
de Jesus [213 SCRA 345 (1992)] we said
that admissions obtained during custodial
interrogations without the benefit of
counsel although later reduced to writing
and signed in the presence of counsel are
still flawed under the Constitution.
[Underscoring supplied.]
Moreover, appellant's policeman-escort

was also present in the lawyer's office as
attorney
and
client
discussed
the
voluntariness of the latter's confession.
One can hardly expect the suspect, in the
face of such intimidating presence, to
candidly admit that he was coerced into
confessing.
As
appellant
Leonardo
Morial
was
effectively deprived of his right to counsel
during custodial investigation, his extrajudicial confession is inadmissible in
evidence against him.[60]
The confession is also inadmissible against

appellant Leonardo Morial's co-accused,
Nonelito Abion and Edwin Morial. The rule
on res inter alios acta provides that the
rights of a party cannot be prejudiced by
an act, declaration, or omission of another
[61]
An exception to the res inter alios acta

rule is an admission made by a
conspirator. Section 30, Rule 130 of the
Rules of Court provides that the act or
declaration of the conspirator relating to
the conspiracy and during its existence
may be given in evidence against the coconspirator provided that the conspiracy is
shown by evidence other than by such act
or declaration. The exception, however,
does not apply in this case since the
confession was made after the alleged
conspiracy and not while the declarant
was engaged in carrying out the
conspiracy.[62]
Notwithstanding the inadmissibility of the

extrajudicial confession executed by
Leonardo Morial, the conviction of
appellants is fully supported by the other
pieces of evidence adduced by the
prosecution. It is well settled that where
there is independent evidence, apart from
the
accused's
alleged
uncounseled
confession, that the accused is truly guilty,
the latter nevertheless faces a conviction.
[63] Here, the testimony of eyewitness
Gabriel
Guilao
certainly
deserves
credence. He recounted before the trial
court:
Q Now, do you still recall Mr. Witness

where you were on January 6, 1996 at
more or less 6:00 o'clock in the afternoon?
A I can remember, sir.
Q Where were you if you can recall?
A I was pasturing my horse.
Q How many horses do you have?
A One mature and one young horse, the

young one is not yet tied up.
Q So you have two horses all in all?
PROS. RUIZ:
Q Do you have carabao, Mr. Witness?
Q What was that incident are you referring

to?
A When I went home, I passed by on the

road near the house of Benjamin Morial,
then I heard the voice of Paula saying:
"please don't kill me I am going to give
you money."
Q Now, when you said, Paula are you

referring to Paula one of the victim in this
case?
A None, Sir.
A Yes, Sir.
Q Now, while you were pasturing your
horse at more or less 6:00 o'clock in the
afternoon of January 6, 1996, I withdraw
that question, Your Honor.
COURT:
Reform.
PROS. RUIZ:
PROS. RUIZ
Q Now, when you heard that voice of

Paula, what did you do?
A I paused for a while because what I

heard I found it weird.
Q Where did you stay at that moment as

what you have said that you stayed for a
while?
Q Now, how long did you stay in that

pasture land?
A I stayed at a distance of about 8 meters
from their yard.
A Two minutes, Sir, then I went home.
Q So, after pasturing your horse for two

minutes, after that you went home? Now,
on your way home, do you remember
what happened if any?
A Yes, Sir.
Q Were there trees in the place where you

were staying at that time?
A Yes, Sir.
Q While staying at the distance of 8

meters away from the yard of the house of
Benjamin Morial, what did you observe if

any?
A I saw that the old woman was slapped

by Nonelito Abion on her neck.
Q What else have you observed if any?
A Then the old woman was down and

when she was down, this Edwin Morial
stabbed her.
Q Would you please tell this Honorable

Court what was that weapon used in
stabbing the old woman by Edwin Morial?
A A small sharp pointed weapon, Sir.
WITNESS:
After they have killed the old woman, two

minutes. . .
ATTY. GABUCAN:
The answer is not responsive, the question

was how long?
PROS. RUIZ:
That is the answer of the witness.
COURT:
Q Now, have you seen Leonardo Morial in

the house of Benjamin Morial?
Continue with the answer.
WITNESS:
WITNESS:
A Leonardo Morial was just outside the

house of Paula Bandibas.
A After killing the old woman, they stayed

inside the house for about ten minutes,
Sir.
PROS. RUIZ:
Q What was Leonardo Morial doing outside

the house of Benjamin Morial?
A He was just standing thereat.
Q Now, in your estimate, how long did

Nonelito and Edwin were inside the house
of Benjamin Morial?
Q Now, after ten minutes, what did they

do Mr. Witness?
A They went out of the house.
PROS. RUIZ:
Q After getting out from the house, what

did they do?
A They went home, Sir.
Q In what direction?
house from Maria Clara.[73] The failure of

Gabriel to execute an affidavit on what he
witnessed was in fact due to the request
of Benjamin who advised him not to tell
anybody for fear that they might all be
killed,[74] as the Abions were the most
feared persons in this place.[75]
A Towards the houses nearby.[64]
The defense has tried to discredit Guilao

by harping on the latter's relationship with
private complainant, Benjamin Morial, who
is the brother of Gabriel's wife,[65]
conveniently forgetting that Gabriel is also
related to all of the accused who are all his
nephews.[66] On this score, the Court has
held that the weight of testimony of a
witness is not impaired or in any way
affected by his relationship to the victim
when there is no showing of improper
motive on the part of the witness.[67] A
person who was close to the victim would
not callously violate his conscience by
blaming it on someone he believed
innocent thereof,[68] especially if the
accused were his blood relatives.
Anent the failure of Guilao to either attend

to the victims or to report the matter
immediately to the authorities, it should
be remembered that different people react
differently to an unusual event and there
is no standard of behavior when a person
becomes a witness to something so
shocking
or
gruesome
as
murder
especially if the assailant is near.[69] The
initial reluctance of the eyewitness to
disclose what transpired was sufficiently
explained: Gabriel, who was 62 years old
at the time of the incident, was too afraid
to share what he saw even to his wife,[70]
and while he wanted to tell their barangay
captain, the latter was in Davao at that
time.[71] Instead, he made up his mind to
tell only Benjamin,[72] the common-law
husband of the victim Paula, which he
promptly did upon Benjamin's arrival at his
The defense, likewise, tried to show that

Gabriel could not have possibly witnessed
the crime because he was in Maria Clara
at that time. Patricio Abion, a relative of
the accused Nonelito Abion,[76] testified
that he saw Gabriel at Maria Clara at
around six o'clock in the evening of 06
January 1996,[77] and again at around
eight o'clock in the morning the following
day.[78] He surmised that Gabriel stayed
in Maria Clara because it would take him
about two (2) hours of hiking to travel
from Maria Clara to Cagnituan. However, it
could not be discounted that Patricio was
merely making an opinion as to the travel
or hiking time of Gabriel and he also
admitted that he was not wearing a
timepiece.[79] Hence, as observed by the
trial court, it was not farfetched that
Gabriel was in Maria Clara in the afternoon
of 06 January 1996, hiked to Cagnituan in
time to witness the incident and then
returned to Maria Clara in the morning of
07 January 1996 to buy some fish.
As regards the defense testimonies that

Gabriel could not have possibly seen the
incident from the trail, it should be
stressed here that Gabriel categorically
stated that he was about eight (8) meters
from the yard of Benjamins house when he
saw Nonelito Abion slap Paula on the neck
after which Edwin Morial stabbed her.[80]
In addition, defense witnesses Patricio
Abion
and
Eulogio
Padilla
even
contradicted each other when the former
stated it would be possible to see the
inside of the house if the light was on[81]
while the latter stated that any person
inside could not be seen even if the light
was on.[82]
Pending review of this case, Gabriel Guilao

filed before this Court a three page
Manifestation with Prayer, dated 22 June
2000, which in effect, was a recantation of
his testimony in the trial court. He
declared that he was utilized by Benjamin
Morial against the three accused because
the latter had a long-standing grudge
against them and was impelled by hatred
and a false sense of anger. Since Benjamin
could not pinpoint the killer of Paula and
Albert Bandibas, it was decided that the
three accused be implicated to the crime
''as a way of getting revenge." Gabriel's
relation to Benjamin, whose wife is the
sister of Gabriel's wife Regina, accounted
for Benjamin's influence over him. In sum,
Gabriel maintained that appellants Edwin
Morial, Leonardo Morial and Nonelito Abion
had "nothing to do with the crime
charged."
The attitude of courts towards affidavits of

retraction is one of distrust, if not of
disapprobation, because
x x x affidavits of recantation can easily be

secured from poor and ignorant witnesses
for monetary consideration or through
intimidation.
Recanted
testimony
is
exceedingly unreliable for there is always
the probability that it may later be
repudiated. Courts thus look with disfavor
at affidavits of retractions of testimony
given in open court, and are wary or
reluctant to allow a new trial based on
retracted testimony. Indeed, it would be a
dangerous rule to reject the testimony
taken before the court of justice simply
because the witness later on changed his
mind for one reason or another, for such a
rule will make a solemn trial a mockery
and will place the investigation of truth at
the mercy of unscrupulous witnesses.[83]
Further, the defense, during the trial of

this case, failed to establish any grudge or
animosity between and against the
accused and Benjamin Morial, as well as
against the accused and Gabriel Guilao. In
fact, when Edwin's father died, Benjamin
accommodated Edwin and his mother in
his nipa house "kamalig" for more than
two (2) years.[84] Nonelito Abion also
testified that he could not recall having
personal differences with Benjamin.[85]
The accused have no other excuse other

than alibi. Interestingly, they all testified
that they were in their respective homes
at the time of the incident. Edwin Morial
was sleeping,[86] Leonardo Morial was
cooking,[87] while Nonelito Abion was at
home, not doing anything.[88] In a
number of cases, the Court as ruled that
alibi is the weakest of all defenses as it is
easy to fabricate and difficult to disprove,
and it is practically worthless in the face of
positive identification of the accused.[89]
The Court noted that none of the accused
even presented any of their supposed
home companions to prove that they were
at home when the killings took place. In
addition, it was not established that it
would have been physically impossible for
them to be at the scene of the crime at
the time of its commission.[90] The house
of Edwin Morial was about two hundred
(200) meters from the house of Benjamin,
[91] the house of Leonardo Morial only
about sixty (60) meters away,[92] while
the house of Nonelito Abion was about
seven hundred (700) meters from the
house of Benjamin and he could negotiate
the distance in about ten (10) minutes.
[93] Equally unnatural were the respective
reactions of the accused when the bodies
of Paula and Albert were discovered.
Leonardo Morial went home after seeing
the body of Paula,[94] Edwin Morial looked
at the body of Paula for five (5) minutes
after which he went home,[95] while
Nonelito Abion left the house of Benjamin
while the others who went there upon
hearing the shouts of Benjamin were still
searching for the body of Albert.[96] The

prosecution was also able to establish that
the three accused were in one table during
the benefit dance which transpired on the
eve of the incident,[97] contrary to
statements of Edwin Morial and Nonelito
Abion.
The trial court correctly ruled when it

found the accused guilty of robbery with
homicide. It was established that all the
elements of the crime were present; i.e.,
(1) the taking of personal property
perpetrated by means of violence or
intimidation against a person; (2) the
property taken belongs to another; (3) the
taking is characterized by intent to gain or
animus lucrandi; and (4) on the occasion
of the robbery or by reason thereof, the
crime of homicide was committed.[98]
In this case, Benjamin, upon arrival at his

house, found that their room as in
disarray, the clothes were scattered and
the box where they kept their money was
already turned upside down.[99] The
amount of P11,000.00 contained in the
box was already missing,[100] Paula was
already lifeless[101] and Albert was
nowhere to be found.[102]
The trial court also correctly ruled that the

accused conspired to commit the crime.
Conspiracy exists when two or more
persons come to an agreement concerning
the commission of a felony, and decide to
commit it.[103] It may be inferred from
the acts of the accused before, during and
after the crime, which are indicative of a
joint purpose, concerted action and
concurrence of sentiments.[104] Where
the acts of the accused collectively and
individually demonstrate the existence of
a
common
design
towards
the
accomplishment of the same unlawful
purpose, conspiracy is evident and all the
perpetrators will be liable as principals.
[105] To exempt himself from criminal

liability, the conspirator must have
performed an overt act to dissociate or
detach himself from the unlawful plan to
commit the felony.[106]
In this case, it was established that after

the killing of Paula, the accused even
stayed inside the house for about ten (10)
minutes,[107] presumably to look for the
hidden money. After about ten (10)
minutes, they left the house of Benjamin
and went home.[108] Clearly, Paula and
Albert were already dead or dying but not
one of the accused lifted a finger to show
any pity or remorse. Hence, they should
all be made liable for the crime.
Dwelling was correctly appreciated as an

aggravating circumstance because of the
sanctity that the law accords to the
privacy of the human abode.[109] The
home is considered a sacred place to its
owners, and one who goes to another
house to slander or hurt him, or do him
wrong, more guilty than he who offends
him elsewhere.[110] However, evident
premeditation is inherent in robbery and
should not have been considered against
the accused.[111] Treachery could only be
appreciated in crimes against persons,
[112] the same way with disregard of
respect due to sex and age which can be
considered only in cases of crimes against
persons and honor.[113]
Nevertheless,
accused
Edwin
Morial
should still be spared the death penalty.
The records would show that he was a
minor at the time of the execution of the
crime.[114] In People vs. Villagracia,[115]
the Court ruled:
In this case, the trial court failed to

consider the age of appellant Nixon
Ledesma when the crime was committed.
At the time he testified on May 17, 1989,

he stated that he was only 15 years old
(TSN, May 17, 1989, p. 31). No
contradictory evidence was presented by
the prosecution. So, when the crime was
committed on September 23, 1987, or
more than a year before he was presented
as a witness, Nixon Ledesma was less than
15 years old.
In People vs. Lugto, 190 SCRA 754 [1990],

we held that the accused has the burden
of proof that he was minor at the time of
the commission of the crime. However, in
People v. Tismo, 204 SCRA 535 [1991], we
upheld appellants' claim that he was 17
years old at the time the crime was
committed even without any proof to
corroborate his testimony. Considering
that the prosecution failed to present
contradictory evidence, we applied to
appellant therein the privileged mitigating
circumstance of minority under the second
paragraph of Article 13 of the Revised
Penal Code.
Lugto appears to be an aberration from

the long line of decisions antedating it.
From U.S. v. Bergantino, 3 Phil. 118 [1903]
to People v. Ebora, 141 SCRA 282 [1986],
we have consistently ruled that, although
the accused did not offer any evidence to
support his claim of minority, this fact will
remain as such, until disproved by the
prosecution (See also U.S. v. Barbicho, 13
Phil. 616 [1909]; U.S. vs. Agadas, 36 Phil.
247 [1917]; People v. Ebora, 141 SCRA
282 [1986]; People v. Bernalde, 139 SCRA
426 [1986]).
Article 294 (1) of the Revised Penal Code

prescribes the penalty of reclusion
perpetua to death, when by reason or on
occasion of the robbery, the crime of
homicide shall have been committed. As
the aggravating circumstance of dwelling
attended the commission thereof, the
greater penalty, i.e., death, shall be

imposed[116] upon appellants Nonelito
Abion and Leonardo Morial.
However, appellant Edwin Morial, who was

over 15 but under 18 years of age at the
time of the commission of the crime, is
entitled to the privileged mitigating
circumstance of minority. Accordingly, the
penalty next lower,[117] i.e., reclusion
temporal, shall be imposed upon him in its
maximum period,[118] there being one
aggravating circumstance (dwelling).
Said appellant is further entitled to the

benefits of the Indeterminate Sentence
Law.[119] Under Section 1 thereof, the
court shall sentence the accused to an
indeterminate sentence the maximum
term of which shall be that which, in view
of the attending circumstances, could be
properly imposed under the rules of the
Revised Penal Code, and the minimum
which shall be within the range of the
penalty next lower to that prescribed in
the Code for the offense. Thus, appellant
Edwin Morial is hereby sentenced to an
indeterminate penalty of ten (10) years
and one (1) day of prision mayor as
minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion
temporal as maximum.
As regards the civil liability of appellants,

the award of P60,000.00 to he heirs of
each victim as moral damages is hereby
reduced to P50,000.00 each, in conformity
with recent jurisprudence.[120]
Four members of the Court maintain their

position that Republic Act No. 7659,
insofar as it prescribes the death penalty,
is unconstitutional; nevertheless, they
submit to the ruling of the Court, by
majority vote, that the law is constitutional
and the death penalty should be imposed

accordingly.
WHEREFORE, finding the accused guilty

beyond reasonable doubt of the crime of
"Robbery with Homicide," with the
aggravating circumstance of dwelling,
Leonardo Morial and Nonelito Abion are
hereby sentenced to suffer the penalty of
death by lethal injection, while Edwin
Morial, on account of his minority, is
hereby sentenced to the indeterminate
penalty of from ten (10) years and one (1)
day of prision mayor as minimum, to
seventeen (17) years, four (4) months and
one (1) day of reclusion temporal as
maximum. The accused are likewise
sentenced, jointly and severally, to:
(1) indemnify the heirs of Paula Bandibas

in the amount of Fifty Thousand
(P50,000.00) Pesos as death indemnity;
(2) indemnify the heirs of Albert Bandibas

in the amount of Fifty Thousand
(P50,000.00) Pesos as death indemnity;
Cost against accused-appellants.
In accordance with Section 25 of Republic

Act No. 7659, amending Article 83 of the
Revised Penal Code, upon the finality of
this decision, let the records of this case
be forthwith forwarded to the Office of the
President for the possible exercise of
executive clemency or pardoning power.
SO ORDERED.
XXXXXXXXXX
EXPRESS and IMPLIED REPEAL
G.R. No. 162155
2007
August 28,
COMMISSIONER OF INTERNAL
REVENUE and ARTURO V. PARCERO in
his official capacity as Revenue
District Officer of Revenue District
No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP,
INC., Respondent.
DECISION
(3) indemnify the heirs of Paula Bandibas

and Albert Bandibas in the amount of Fifty
Thousand (P50,000.00) Pesos for each
death as moral damages;
(4) indemnify Benjamin Morial in the

amount of Twenty Thousand Five Hundred
Forty-Six (P20,546.00) pesos as actual
damages for funeral, burial and wake
expenses;
(5) restitute Benjamin Morial the amount

of Eleven Thousand (P11,000.00) Pesos
representing the stolen money.
CORONA, J.:
This petition for review on certiorari1 seeks
to set aside the August 1, 2003
decision2 of the Court of Appeals (CA) in
CA-G.R. SP No. 64782 and its February 9,
2004 resolution denying reconsideration.3
On March 11, 1999, Gilbert Yap, vice chair
of respondent Primetown Property Group,
Inc., applied for the refund or credit of
income tax respondent paid in 1997. In
Yap's letter to petitioner revenue district
officer Arturo V. Parcero of Revenue
District No. 049 (Makati) of the Bureau of
Internal Revenue (BIR),4 he explained that
the increase in the cost of labor and
materials and difficulty in obtaining
financing for projects and collecting
receivables caused the real estate
industry to slowdown.5 As a consequence,

while business was good during the first
quarter of 1997, respondent suffered
losses amounting to P71,879,228 that
year.6
According to Yap, because respondent
suffered losses, it was not liable for
income taxes.7 Nevertheless, respondent
paid its quarterly corporate income tax
and remitted creditable withholding tax
from real estate sales to the BIR in the
total amount
of P26,318,398.32.8 Therefore, respondent
was entitled to tax refund or tax credit.9
On May 13, 1999, revenue officer
Elizabeth Y. Santos required respondent to
submit additional documents to support its
claim.10 Respondent complied but its claim
was not acted upon. Thus, on April 14,
2000, it filed a petition for review11 in the
Court of Tax Appeals (CTA).
On December 15, 2000, the CTA dismissed
the petition as it was filed beyond the twoyear prescriptive period for filing a judicial
claim for tax refund or tax credit.12 It
invoked Section 229 of the National
Internal Revenue Code (NIRC):
Sec. 229. Recovery of Taxes Erroneously
or Illegally Collected. -- No suit or
proceeding shall be maintained in any
court for the recovery of any national
internal revenue tax hereafter alleged to
have been erroneously or illegally
assessed or collected, or of any penalty
claimed to have been collected without
authority, or of any sum alleged to have
been excessively or in any manner
wrongfully collected, until a claim for
refund or credit has been duly filed with
the Commissioner; but such suit or
proceeding may be maintained, whether
or not such tax, penalty, or sum has been
paid under protest or duress.
In any case, no such suit or proceeding
shall be filed after the expiration of
two (2) years from the date of
payment of the tax or penalty
regardless of any supervening cause
that may arise after
payment:Provided, however, That the

Commissioner may, even without a claim
therefor, refund or credit any tax, where
on the face of the return upon which
payment was made, such payment
appears clearly to have been erroneously
paid. (emphasis supplied)
The CTA found that respondent filed its
final adjusted return on April 14, 1998.
Thus, its right to claim a refund or credit
commenced on that date.13
The tax court applied Article 13 of the Civil
Code which states:
Art. 13. When the law speaks of years,
months, days or nights, it shall be
understood that years are of three
hundred sixty-five days each; months,
of thirty days; days, of twenty-four hours,
and nights from sunset to sunrise.
If the months are designated by their
name, they shall be computed by the
number of days which they respectively
have.
In computing a period, the first day shall
be excluded, and the last included.
(emphasis supplied)
Thus, according to the CTA, the two-year
prescriptive period under Section 229 of
the NIRC for the filing of judicial claims
was equivalent to 730 days. Because the
year 2000 was a leap year, respondent's
petition, which was filed 731 days14 after
respondent filed its final adjusted return,
was filed beyond the reglementary
period.15
Respondent moved for reconsideration but
it was denied.16 Hence, it filed an appeal in
the CA.17
On August 1, 2003, the CA reversed and
set aside the decision of the CTA.18 It ruled
that Article 13 of the Civil Code did not
distinguish between a regular year and a
leap year. According to the CA:
The rule that a year has 365 days applies,

notwithstanding the fact that a particular
year is a leap year.19
In other words, even if the year 2000 was
a leap year, the periods covered by April
15, 1998 to April 14, 1999 and April 15,
1999 to April 14, 2000 should still be
counted as 365 days each or a total of 730
days. A statute which is clear and explicit
shall be neither interpreted nor
construed.20
Petitioners moved for reconsideration but
it was denied.21 Thus, this appeal.
Petitioners contend that tax refunds, being
in the nature of an exemption, should be
strictly construed against
claimants.22 Section 229 of the NIRC
should be strictly applied against
respondent inasmuch as it has been
consistently held that the prescriptive
period (for the filing of tax refunds and tax
credits) begins to run on the day claimants
file their final adjusted returns.23 Hence,
the claim should have been filed on or
before April 13, 2000 or within 730 days,
reckoned from the time respondent filed
its final adjusted return.
The conclusion of the CA that respondent
filed its petition for review in the CTA
within the two-year prescriptive period
provided in Section 229 of the NIRC is
correct. Its basis, however, is not.
The rule is that the two-year prescriptive
period is reckoned from the filing of the
final adjusted return.24 But how should the
two-year prescriptive period be
computed?
Section 31, Chapter VIII, Book I thereof

provides:
Sec. 31. Legal Periods. "Year" shall be
understood to be twelve calendar
months; "month" of thirty days, unless it
refers to a specific calendar month in
which case it shall be computed according
to the number of days the specific month
contains; "day", to a day of twenty-four
hours and; "night" from sunrise to sunset.
(emphasis supplied)
A calendar month is "a month designated
in the calendar without regard to the
number of days it may contain."28It is the
"period of time running from the beginning
of a certain numbered day up to, but not
including, the corresponding numbered
day of the next month, and if there is not
a sufficient number of days in the next
month, then up to and including the last
day of that month."29 To illustrate, one
calendar month from December 31, 2007
will be from January 1, 2008 to January 31,
2008; one calendar month from January
31, 2008 will be from February 1, 2008
until February 29, 2008.30
A law may be repealed expressly (by a
categorical declaration that the law is
revoked and abrogated by another) or
impliedly (when the provisions of a more
recent law cannot be reasonably
reconciled with the previous one).31Section
27, Book VII (Final Provisions) of the
Administrative Code of 1987 states:
Sec. 27. Repealing clause. All laws,
decrees, orders, rules and regulation, or
portions thereof, inconsistent with this
Code are hereby repealed or modified
accordingly.
As already quoted, Article 13 of the Civil

Code provides that when the law speaks of
a year, it is understood to be equivalent to
365 days. In National Marketing
Corporation v. Tecson,25 we ruled that a
year is equivalent to 365 days regardless
of whether it is a regular year or a leap
year.26
A repealing clause like Sec. 27 above is

not an express repealing clause because it
fails to identify or designate the laws to be
abolished.32 Thus, the provision above
only impliedly repealed all laws
inconsistent with the Administrative Code
of 1987.1avvphi1
However, in 1987, EO27 292 or the

Administrative Code of 1987 was enacted.
Implied repeals, however, are not favored.

An implied repeal must have been clearly
and unmistakably intended by the

legislature. The test is whether the
subsequent law encompasses entirely the
subject matter of the former law and they
cannot be logically or reasonably
reconciled.33
July 15, 1998 to

4th
August 15, 1998 to

5th
Both Article 13 of the Civil Code and

Section 31, Chapter VIII, Book I of the
Administrative Code of 1987 deal with the
same subject matter the computation of
legal periods. Under the Civil Code, a year
is equivalent to 365 days whether it be a
regular year or a leap year. Under the
Administrative Code of 1987, however, a
year is composed of 12 calendar months.
Needless to state, under the
Administrative Code of 1987, the number
of days is irrelevant.
calendar
month
6th
calendar
month
7th
calendar
month
8th
calendar
month
Applying Section 31, Chapter VIII, Book I of

the Administrative Code of 1987 to this
case, the two-year prescriptive period
(reckoned from the time respondent filed
its final adjusted return34 on April 14,
1998) consisted of 24 calendar months,
computed as follows:
9th
calendar
month
10th
calendar
month
11th
calendar
month
2nd
12th
calendar
month
calendar
month
Ja
January 15, 1999 to
Feb
Year
2
calendar
month
April 15, 1999 to
13th
calendar
month
14th
calendar
month
June 15, 1998

3rd
December 15, to
1998
March 15, 1999 to
calendar
month
May 15, 1998
Oc
November 15, to
1998
February 15, 1999 to
April 15, 1998

1st
September 15, to
1998
October 15, 1998 to
There obviously exists a manifest

incompatibility in the manner of
computing legal periods under the Civil
Code and the Administrative Code of
1987. For this reason, we hold that Section
31, Chapter VIII, Book I of the
Administrative Code of 1987, being the
more recent law, governs the computation
of legal periods. Lex posteriori derogat
priori.
Year
1
calendar
month
May 15, 1999 to
15th
calendar
month
16th
calendar
month
17th
calendar
month
18th
calendar
month
June 15, 1999 from the day respondent filed its final
adjusted return. Hence, it was filed within
the reglementary period.
Accordingly, the petition is
July 15, 1999 hereby DENIED. The case
is REMANDED to the Court of Tax Appeals
which is ordered to expeditiously proceed
to hear C.T.A. Case No. 6113
entitled Primetown Property Group, Inc. v.
August 15, 1999 Commissioner of Internal Revenue and
Arturo V. Parcero.
No costs.
September 15, SO ORDERED.
1999
XXXXXXXXXX
October 15, 1999
19th
calendar
month
20th
calendar
month
21st
calendar
month
22n
d
calendar
month
CARIDAD MAGKALAS,
Petitioner,
November 15,
1999
December 15,
1999
January 15, 2000

- versus -
February 15, 2000

23rd
calendar
month
March 15, 2000
24th
calendar
month
NATIONAL HOUSING AUTHORITY,
We therefore hold that respondent's

petition (filed on April 14, 2000) was filed
on the last day of the 24th calendar month
Respondent.
G.R. No. 138823
Present:
PUNO, C.J., Chairperson,

CORONA,
CARPIO MORALES*,
AZCUNA, and
In this petition for review on certiorari

under Rule 45 of the 1997 Rules of Civil
Procedure, petitioner seeks to set aside
and annul the Decision[1] dated March 10,
1999 as well as the Order[2] dated May
14, 1999 rendered by the Regional Trial
Court (RTC) of Caloocan City, Branch 124,
in Civil Case No. C-16464.
The RTC decision dismissed the complaint

for damages with prayer for temporary
restraining order/writ of preliminary
injunction filed by herein petitioner
against the National Housing Authority
(NHA). The RTC also ordered the NHA to
proceed with the demolition of petitioners
structure.
LEONARDO-DE CASTRO, JJ.

The undisputed facts, as found by the RTC,
are quoted hereunder:
Promulgated:
September 17, 2008
x-----------------------------------------------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:
x x x plaintiff and her predecessors-ininterest have been occupying a lot

designated as TAG-77-0063, Block 1,
Barangay 132, located at the corner of
109 Gen. Concepcion and Adelfa Streets,
Bagong Barrio, Caloocan City, for the past
39 years.
On March 26, 1978, P.D. No. 1315 was

issued expropriating certain lots at
Bagong Barrio, Caloocan City. In the same
Decree, the National Housing Authority
(NHA) was named Administrator of the
Bagong Barrio Uban Bliss Project with the
former to take possession, contol (sic) and
disposition of the expropriated properties
with the power of demolition. During the
Census survey of the area, the structure
built by the plaintiff was assigned TAG No.
0063. After conducting studies of the area,
the NHA determined that the area where
plaintiffs structure is located should be
classified as an area center (open space).
The Area Center was determined in
compliance with the requirement to
reserve 30% open space in all types of

residential development.
Plaintiff, together with Mr. & Mrs. Josefino

Valenton and Mr. & Mrs. Rey Pangilinan,
through counsel, filed an appeal from the
decision to designate the area where the
plaintiff and the two other spouses have
erected structures, as an Area Center. On
January 25, 1985, the NHA, through its
General Manager, sent a letter to the
counsel of the plaintiff and the two other
previously named spouses explaining why
the area where their structures were
erected was designated as the area center
(open space). The said appeal was denied
by the NHA. In a letter, dated August 6,
1985, the NHA sent a Notice of Lot
Assignment to plaintiff recognizing the
latter as a Censused Owner of a structure
with TAG No. 0063-04 which was identified
for relocation.
In the same Notice, the NHA informed

plaintiff that per Development Program of
Bagong Barrio, she was being assigned to
Lot 77, Block 2, Barangay 132.
On August 23, 1985, plaintiff filed a

Complaint for Damages with prayer for the
issuance of a restraining order and writ of
Preliminary Injunction against the NHA
with the Regional Trial Court of Caloocan
City. This was docketed as Civil Case No.
C-12102. The civil case was filed after the
NHA, through Henry Camayo, sent a letter
to the plaintiff earlier in the month of
August, 1985 directing said plaintiff to
vacate the premises and dismantle her
structure. In an Order, dated July 23, 1981,
this civil case docketed as C-12102 was
dismissed with the instruction that the
parties exhaust the administrative
remedies available to the plaintiff.
Sometime in March, 1994, plaintiff

received a letter, dated March 8, 1994
from Ines Gonzales, the Office-in-charge of
District II-NCR. In said letter, plaintiff was
advised that her previous request to stay
put in her house which is located within
the area designated as Area Center, was
previously denied per resolution of the
NHA which was signed as early as
February 21, 1990 by the former manager
of the NHA, Monico Jacob. The plaintiff was
told to remove the structure she erected
on the area within 30 days and to transfer
her residence to Lot 77, Block 2. It was
stressed in said letter that no Judicial
Order was required to remove the
plaintiffs structure pursuant to P.D. No.
1472.
Plaintiff prays that, aside from the

issuance of a temporary restraining
order/writ of preliminary injunction,
defendants be enjoined from transferring
plaintiffs residential house from its present
location to another lot and/or demolishing
the same without judicial order; payment
of moral damages, in the amount of
P50,000.00, for the malicious and illegal
acts of defendants; and payment of
P50,000.00 as attorneys fees.
At this juncture, it may not be remiss to

state that the two other homeowners, Mr.
& Mrs. Josefino Valenton, and Mr. & Mrs.
Rey Pangilinan had already transferred to
their allocated lots at Lot 2, Block 1, and
Lot 78, Block 2, respectively.
On March 25, 1994, the Court issued a

Temporary Restraining Order (TRO)
against defendants. After hearing and
submission of memoranda, plaintiffs
prayer for issuance of a writ of preliminary
injunction was denied in an Order dated
April 14, 1994.
The Order denying plaintiffs prayer for

issuance of a writ of preliminary injunction
was appealed, by way of Petition for
Certiorari, to the Court of Appeals
(docketed therein as CA-G.R. No. 33833).
On May 31, 1994, the Court of Appeals,
Seventeenth Division, promulgated a
Decision denying the Petition. Plaintiffs
(petitioner herein) motion for
reconsideration having been denied in a
Resolution dated July 29, 1994, she
appealed to the Supreme Court by way of
Petition for Review on Certiorari. The
Supreme Court, through the First Division,
issued a Resolution dated October 5,
1994, denying the Petition. An Entry of
Judgment on the aforesaid Resolution was
made on December 22, 1994.
Thereafter, pre-trial conference was

scheduled on January 9, January 23,
February 16, March 22 and finally on April
25, all in 1996 (an Order dated May 16,
1996 was issued declaring the pre-trial
terminated). During the pre-trial, counsel
for plaintiff proposed that the case be
decided based on the memoranda to be
submitted by the parties, to which counsel
for defendants agreed. Hence, a Motion
for Leave of Court to allow parties to
submit memoranda in lieu of trial was filed
by the defendants. Plaintiff filed her
comment thereto. After submission of
NHAs Reply and plaintiffs rejoinder,
reiterating their respective stands, the
Court resolved to grant the Motion for
Leave. In the same Order, the parties were
directed to submit their respective
memoranda within thirty (30) days from
receipt, on the sole issue of whether or not
the NHA can lawfully relocate the plaintiff
and demolish plaintiffs structure.[3]
On March 10, 1999, the trial court

promulgated its assailed decision
dismissing petitioners complaint.
Petitioners subsequent motion for

reconsideration was likewise denied by the
trial court in its Order dated May 14, 1999.
Hence, this petition for review of the said
decision and order of the RTC.
In the instant petition for review,

petitioner raises the following issues:
A.
WHETHER OR NOT THE
DEMOLITION OR RELOCATION OF THE
PETITIONERS STRUCTURE WILL VIOLATE
THE VESTED RIGHTS OF THE PETITIONER
OVER THE ACQUIRED PROPERTY UNDER
THE SOCIAL JUSTICE CLAUSE OF THE
CONSTITUTION.
B.
WHETHER OR NOT R.A. 7279
IMPLIEDLY REPEALED P.D. 1472 AND P.D.
1315.[4]
As to the first issue, petitioner maintains

that she had acquired a vested right over
the property subject of this case on the
ground that she had been in possession of
it for forty (40) years already. Thus, to
order her relocation and the demolition of
her house will infringe the social justice
clause guaranteed under the Constitution.
Petitioners contentions must necessarily

fail. The NHAs authority to order the
relocation of petitioner and the demolition
of her property is mandated by
Presidential Decree (P.D.) No. 1315.[5]
Under this Decree, the entire Bagong
Barrio in Caloocan City was identified as a
blighted area and was thereby declared
expropriated. The properties covered
under P.D. No. 1315 included petitioners
property. The NHA, as the decrees
designated administrator for the national

government, was empowered to take
possession, control and disposition of the
expropriated properties with the power of
demolition of their improvements.[6]
Section 2 of P.D. No. 1315 further states:
Section 2. The comprehensive

development plan shall consider the
upgrading of existing dwelling units, the
relocation of qualified squatter families to
a resettlement area nearby; and the reblocking, re-arrangement and realignment of existing dwelling and other
structures to allow for the introduction of
basic facilities and services, all in
accordance with the provision of national
SIR [Slum Improvement Resettlement] and
Metro Manila ZIP [Zonal Improvement
Program] Programs. The Authority [NHA]
shall maximize the land use of the area
and shall provide for a controlled, orderly
and structured growth of dwellings in an
environment provided with adequate
sanitary and other physical facilities.
(Words in bracket ours)
Pursuant to Section 2 of P.D. No. 1315, the

NHA identified Area 1 where petitioners
property was located as part of the Area
Center reserved for open space, after
studies have shown that the development
of the area will affect only three (3)
structures compared to six (6) or more
structures in the other areas. A stage and
recreation center was expected to be
constructed at the Area Center. As a
result, petitioner was informed by the NHA
that she would be relocated to Lot 77,
Block 2, Barangay 132. However,
petitioner adamantly refused to vacate the
property claiming she had acquired a
vested right over the same. Her refusal to
vacate and relocate to her assigned lot
had hampered the development of the
entire area. It should be noted that to
date, only petitioner had refused to
comply with the NHA directive as the other
occupants in Area 1 had already vacated
the premises.
To stress, P.D. No. 1315 explicitly vests the

NHA the power to immediately take
demolition. Clearly, the NHA, by force of
law, has the authority to order the
relocation of petitioner, and the demolition
of her structure in case of her refusal as
this is the only way through which the
NHA can effectively carry out the
implementation of P.D. No. 1315.
The NHAs authority to demolish squatters

and illegal occupants was further
reinforced by P.D. No. 1472[7] which
specifically provides as follows:
SEC. 2. The National Housing Authority

shall have the power to summarily eject,
without the necessity of judicial order, any
and all squatters colonies on government
resettlement projects, as well as any
illegal occupants in any homelot,
apartment or dwelling unit owned or
administered by it. In the exercise of such
power, the National Housing Authority
shall have the right and authority to
request the help of the Barangay
Chairman and any peace officer in the
locality. xxx.(Emphasis ours)
Inasmuch as petitioners property was

located in the area identified as an open
space by the NHA, her continued refusal to
vacate has rendered illegal her occupancy
thereat. Thus, in accordance with P.D. No.
1472, petitioner could lawfully be ejected
even without a judicial order.
Neither can it be successfully argued that

petitioner had already acquired a vested
right over the subject property when the
NHA recognized her as the censused
owner by assigning to her a tag number

(TAG No. 77-0063). We quote with
approval the trial courts pertinent findings
on the matter:
Plaintiffs structure was one of those found

existing during the census/survey of the
area, and her structure was assigned TAG
No. 77-0063. While it is true that NHA
recognizes plaintiff as the censused owner
of the structure built on the lot, the
issuance of the tag number is not a
guarantee for lot allocation. Plaintiff had
petitioned the NHA for the award to her of
the lot she is occupying. However, the
census, tagging, and plaintiffs petition, did
not vest upon her a legal title to the lot
she was occupying, but a mere
expectancy that the lot will be awarded to
her. The expectancy did not ripen into a
legal title when the NHA, through Ms. Ines
Gonzales, sent a letter dated March 8,
1994 informing her that her petition for
the award of the lot was denied. Moreover,
the NHA, after the conduct of studies and
consultation with residents, had
designated Area 1, where the lot
petitioned by plaintiff is located, as an
Area Center.[8]
A vested right is one that is absolute,

complete and unconditional and no
obstacle exists to its exercise. It is
immediate and perfect in itself and not
dependent upon any contingency. To be
vested, a right must have become a title -legal or equitable -- to the present or
future enjoyment of property.[9]
Contrary to petitioners position, the

issuance of a tag number in her favor did
not grant her irrefutable rights to the
subject property. The tagging of structures
in the Bagong Barrio area was conducted
merely to determine the qualified
beneficiaries and bona fide residents
within the area. It did not necessarily
signify an assurance that the tagged
structure would be awarded to its

occupant as there were locational and
physical considerations that must be taken
into account, as in fact, the area where
petitioners property was located had been
classified as Area Center (open space).
The assignment of a tag number was a
mere expectant or contingent right and
could not have ripened into a vested right
in favor of petitioner. Her possession and
occupancy of the said property could not
be characterized as fixed and absolute. As
such, petitioner cannot claim that she was
deprived of her vested right when the NHA
ordered her relocation to another area.
Petitioner invokes the Social Justice Clause

of the Constitution, asserting that a poor
and unlettered urban dweller like her has
a right to her property and to a decent
living. Thus, her relocation and the
demolition of her house would be violative
of her right embodied under Article XIII of
the Constitution, to wit:
Sec. 9. The State shall, by law, and for the

common good, undertake, in cooperation
with the private sector, a continuing
program of urban land reform and housing
which will make available at affordable
cost decent housing and basic services to
underprivileged and homeless citizens in
urban centers and resettlement areas. It
shall also promote adequate employment
opportunities to such citizens. In the
implementation of such program the State
shall respect the rights of small property
owners. (Underscoring supplied)
Sec. 10. Urban or rural poor dwellers shall

not be evicted nor their dwellings
demolished, except in accordance with law
and in a just and humane manner.
(Underscoring supplied)
No resettlement of urban or rural dwellers

shall be undertaken without adequate
consultation with them and the
communities where they are to be
relocated.
Hence, there is a need to weigh

and balance the rights and welfare of both
contending parties in every case in
accordance with the applicable law,
regardless of their situation in life.
Petitioner cannot find solace in the

aforequoted Constitutional provisions.
Social Justice, as the term suggests,
should be used only to correct an injustice.
As the eminent Justice Jose P. Laurel
observed, social justice must be founded
on the recognition of the necessity of
interdependence among diverse units of a
society and of the protection that should
be equally and evenly extended to all
groups as a combined force in our social
and economic life, consistent with the
fundamental and paramount objective of
the State of promoting the health,
comfort, and quiet of all persons, and of
bringing about the greatest good to the
greatest number.[10]
In the instant case, the relocation of

petitioner and the demolition of her
structure were in accordance with the
mandate of P.D. No. 1315 which was
enacted primarily to address the housing
problems of the country and to adopt an
effective strategy for dealing with slums,
squatter areas and other blighted
communities in urban areas. Significantly,
the whereas clause of P.D. No. 1315
states:
Moreover, jurisprudence stresses the

need to dispense justice with an even
hand in every case:
This Court has stressed more than

once that social justice or any justice for
that matter is for the deserving, whether
he be a millionaire in his mansion or a
pauper in his hovel. It is true that, in case
of reasonable doubt, we are called upon to
tilt the balance in favor of the poor to
whom the Constitution fittingly extends its
sympathy and compassion. But never is it
justified to give preference to the poor
simply because they are poor, or to reject
the rich simply because they are rich, for
justice must always be served for poor
and rich alike, according to the mandate
of the law.[11] (Underscoring supplied)
WHEREAS, the Constitution of the

Philippines mandates that the State shall
establish, maintain and ensure adequate
social services in the field of housing, to
guarantee the enjoyment of the people of
a decent standard of living and directs
that The State shall promote social justice
to ensure the dignity, welfare and security
of all the people xxx.
For sure, the NHAs order of relocating
petitioner to her assigned lot and
demolishing her property on account of
her refusal to vacate was consistent with
the laws fundamental objective of
promoting social justice in the manner the
will inure to the common good. The
petitioner cannot disregard the lawful
action of the NHA which was merely
implementing P.D. No. 1315. It is also
worth noting that petitioners continued
refusal to leave the subject property has
hindered the development of the entire
area. Indeed, petitioner cannot invoke the
social justice clause at the expense of the
common welfare.
Anent the second issue, petitioner avers

that P.D. No. 1315 and P.D. No. 1472 were
impliedly repealed by R.A. No. 7279,

otherwise known as the Urban
Development and Housing Act of 1992.
[12] She contends that while P.D. No. 1315
and P.D. No. 1472 authorized the NHA to
eject without the necessity of a judicial
order all squatter colonies in government
resettlement projects, R.A. No. 7279
discouraged such eviction and demolition
without a court order. According to
petitioner, R.A. No. 7279, being the later
law, impliedly repealed the former laws,
i.e. P.D. No. 1315 and P.D. No. 1472,
following the legal axiom that when a later
law is passed with provisions contrary to
the former law, an implied repeal of the
former law takes effect. In particular,
petitioner cites Section 28 of R.A. No. 7279
which provides:
Sec. 28. Eviction and Demolition Eviction
or demolition as a practice shall be
discouraged. Eviction or demolition,
however, may be allowed under the
following situations:
(a) When persons or entities occupy

danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks,
shorelines, waterways and other public
places such as sidewalks, roads, parks and
playgrounds;
(b) When government infrastructure

projects with available funding are about
to be implemented; or
(c) When there is a court order for eviction

and demolition.
Petitioner asserts that the afore-quoted

provision of R.A. No. 7279 is inconsistent
with Section 1 of P.D. No. 1315 and
Section 2 of P.D. No. 1472, which state as
follows:
Sec. 1 (P.D. No. 1315) xxx. The National

Housing Authority hereinafter referred to
as the Authority is designated
administrator for the national government
and is authorized to immediately take
demolition of their improvements. xxx.
Sec. 2 (P.D. No. 1472) - The National

Housing Authority shall have the power to
summarily eject, without the necessity of
judicial order, any and all squatters
colonies on government resettlement
projects, as well as any illegal occupants
in any homelot, apartment or dwelling unit
owned or administered by it. xxx.
From a careful reading of the foregoing

provisions, we hold that R.A. No. 7279
does not necessarily repeal P.D. No. 1315
and P.D. No. 1472 as it does not contain
any provision which categorically and
expressly repeals the provisions of P.D. No.
1315 and P.D. No. 1472. Neither could
there be an implied repeal. It is a wellsettled rule of statutory construction that
repeals by implication are not favored. The
rationale behind the rule is explained as
follows:
Repeal of laws should be made clear and

expressed. Repeals by implication are not
favored as laws are presumed to be
passed with deliberation and full
knowledge of all laws existing on the
subject. Such repeals are not favored for a
law cannot be deemed repealed unless it
is clearly manifest that the legislature so
intended it. The failure to add a specific
repealing clause indicates that the intent
was not to repeal any existing law, unless
an irreconcilable inconsistency and
repugnancy exist in the terms of the new
and old laws.[13]
Likewise, in another case, it was held:
Well-settled is the rule that repeals of laws

by implication are not favored, and that
courts must generally assume their
congruent application. The two laws must
be absolutely incompatible, and a clear
finding thereof must surface, before the
inference of implied repeal may be drawn.
The rule is expressed in the maxim,
interpretare et concordare leqibus est
optimus interpretendi, i.e., every statute
must be so interpreted and brought into
accord with other laws as to form a
uniform system of jurisprudence. The
fundament is that the legislature should
be presumed to have known the existing
laws on the subject and not have enacted
conflicting statutes. Hence, all doubts
must be resolved against any implied
repeal, and all efforts should be exerted in
order to harmonize and give effect to all
laws on the subject.[14]
We find, as the trial court has found, no

irreconcilable conflict or repugnancy
between Section 28 of R.A. No. 7279 and
P.D. No. 1315 and No. 1472, rather, they
can be read together and harmonized to
give effect to their provisions. It should be
stressed that Section 28 of R.A. No. 7279
does not totally and absolutely prohibit
eviction and demolition without a judicial
order as in fact it provides for exceptions.
Pursuant to established doctrine, the three
(3) statutes should be construed in light of
the objective to be achieved and the evil
or mischief to be suppressed by the said
laws, and they should be given such
construction as will advance the object,

suppress the mischief, and secure the
benefits intended.[15] It is worthy to note
that the three laws (P.D. No. 1315, P.D. No.
1472 and R.A. No. 7279) have a common
objective to address the housing
problems of the country by establishing a
comprehensive urban development and
housing program for the homeless. For
this reason, the need to harmonize these
laws all the more becomes imperative.
Hence, in construing the three laws
together, we arrive at a conclusion that
demolition and eviction may be validly
carried out even without a judicial order in
certain instances, to wit:
(1)
when the property
involved is an expropriated property in
Bagong Barrio, Caloocan City pursuant to
Section 1 of P.D. No. 1315,
(2)
when there are squatters
on government resettlement projects and
illegal occupants in any homelot,
apartment or dwelling unit owned or
administered by the NHA pursuant to
Section 2 of P.D. No. 1472,
(3)
when persons or entities
occupy danger areas such as esteros,
railroad tracks, garbage dumps,
riverbanks, shorelines, waterways and
other public places such as sidewalks,
roads, parks and playgrounds, pursuant to
Section 28(a) of R.A. No. 7279;
(4)
when government
infrastructure projects with available
funding are about to be implemented
pursuant to Section 28(b) of R.A. No. 7279.
It readily appears that R.A. No. 7279 does

not foreclose the NHAs authority to
dismantle the house of petitioner. Besides,
under Section 28(b) of R.A. No. 7279,

demolition may be carried out when
government infrastructure projects with
available funding are about to be
implemented. Under P.D. No. 1315, the
government has set aside the amount of
P40 million for the establishment and
upgrading of housing facilities and
services in Bagong Barrio.[16] Thus, on
the ground of a much-delayed government
infrastructure project about to be
implemented, the NHA has the authority
to carry out the summary eviction and
demolition of petitioners structure on the
subject lot.
QUISUMBING,
- versus - YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES CALLEJO, SR.,
SANDIGANBAYAN and AZCUNA,
WHEREFORE, the petition for review is

hereby DENIED. The assailed decision of
the Regional Trial Court in Civil Case No. C16464 is hereby AFFIRMED.
the OFFICE OF THE TINGA,

OMBUDSMAN, CHICO-NAZARIO, and
Respondents. GARCIA, JJ.
SO ORDERED.
XXXXXXXXXX
EFFECTS OF REPEAL OF REPEALING
LAW
EN BANC
Promulgated:
June 22, 2005
x
----------------------------------------------------------------- x
DECISION
MAJOR GENERAL G.R. No. 165835
TINGA, J.:
CARLOS F. GARCIA,
Petitioner, Present:
DAVIDE, JR.,C.J.,
PUNO,
PANGANIBAN,
Petitioner Major General Carlos F. Garcia

was the Deputy Chief of Staff for
Comptrollership, J6, of the Armed Forces of
the Philippines. Petitioner filed this Petition
for certiorari and prohibition under Rule 65
to annul and set aside public respondent
Sandiganbayans Resolution[1] dated 29
October 2004 and Writ of Preliminary
Attachment[2] dated 2 November 2004,
and to enjoin public respondents

Sandiganbayan and Office of the
Ombudsman from further proceeding with
any action relating to the enforcement of
the assailed issuances.
On 27 September 2004, Atty. Maria Olivia

Elena A. Roxas, Graft Investigation and
Prosecution Officer II of the Field
Investigation Office of the Office of the
Ombudsman, after due investigation, filed
a complaint against petitioner with public
respondent Office of the Ombudsman, for
violation of Sec. 8, in relation to Sec. 11 of
Republic Act (R.A.) No. 6713,[3] violation
of Art. 183 of the Revised Penal Code, and
violation of Section 52 (A)(1), (3) and (20)
of the Civil Service Law. Based on this
complaint, a case for Violations of R.A. No.
1379,[4] Art. 183 of the Revised Penal
Code, and Sec. 8 in relation to Sec. 11 of
R.A. No. 6713, docketed as Case
No. OMB-P-C-04-1132-I, was filed against
petitioner.[5] Petitioners wife Clarita
Depakakibo Garcia, and their three sons,
Ian Carl, Juan Paolo and Timothy Mark, all
surnamed Garcia, were impleaded in the
complaint for violation of R.A. No. 1379
insofar as they acted as conspirators,
conduits, dummies and fronts of petitioner
in receiving, accumulating, using and
disposing of his ill-gotten wealth.
On the same day, 27 October 2004, the

Republic of the Philippines, acting through
public respondent Office of the
Ombudsman, filed before the
Sandiganbayan, a Petition with Verified
Urgent Ex Parte Application for the
Issuance of a Writ of Preliminary
Attachment[6] against petitioner, his wife,
and three sons, seeking the forfeiture of
unlawfully acquired properties under Sec.
2 of R.A. No. 1379, as amended. The
petition was docketed as Civil Case No.
0193, entitled Republic of the Philippines
vs. Maj. Gen. Carlos F. Garcia, et al. It was
alleged that the Office of the Ombudsman,
after conducting an inquiry similar to a
preliminary investigation in criminal cases,

has determined that a prima facie case
exists against Maj. Gen. Garcia and the
other respondents therein who hold such
properties for, with, or on behalf of, Maj.
Gen. Garcia, since during his incumbency
as a soldier and public officer he acquired
huge amounts of money and properties
manifestly out of proportion to his salary
as such public officer and his other lawful
income, if any.[7]
Acting on the Republics prayer for

issuance of a writ of preliminary
attachment, the Sandiganbayan issued
the questioned Resolution granting the
relief prayed for. The corresponding writ of
preliminary attachment was subsequently
issued on 2 November 2004 upon the
filing of a bond by the Republic. On 17
November 2004, petitioner (as respondent
a quo) filed a Motion to Dismiss[8] in Civil
Case No. 0193 on the ground of lack of
jurisdiction of the Sandiganbayan over
forfeiture proceedings under R.A. No.
1379. On even date, petitioner filed the
present Petition, raising the same issue of
lack jurisdiction on the part of the
Sandiganbayan.
Petitioner argues in this Petition that the

Sandiganbayan is without jurisdiction over
the civil action for forfeiture of unlawfully
acquired properties under R.A. No. 1379,
maintaining that such jurisdiction actually
resides in the Regional Trial Courts as
provided under Sec. 2[9] of the law, and
that the jurisdiction of the Sandiganbayan
in civil actions pertains only to separate
actions for recovery of unlawfully acquired
property against President Marcos, his
family, and cronies as can be gleaned

from Sec. 4 of Presidential Decree (P.D.)
No. 1606,[10] as amended, and Executive
Orders (E.O.) Nos. 14[11] and 14-A.[12]
Theorizing that the Sandiganbayan, under

P.D. No. 1606 or the law creating it, was
intended principally as a criminal court,
with no jurisdiction over separate civil
actions, petitioner points to President
Corazon C. Aquinos issuances after the
EDSA Revolution, namely: (1) E.O. No. 1
creating the Presidential Commission on
Good Government (PCGG) for the recovery
of ill-gotten wealth amassed by President
Ferdinand E. Marcos, his family and
cronies, (2) E.O. No. 14 which amended
P.D. No. 1606 and R.A. No. 1379 by
transferring to the Sandiganbayan
jurisdiction over civil actions filed against
President Marcos, his family and cronies
based on R.A. No. 1379, the Civil Code and
other existing laws, and (3) E.O. No. 14-A
whch further amended E.O. No. 14, P.D.
No. 1606 and R.A. No. 1379 by providing
that the civil action under R.A. No. 1379
which may be filed against President
Marcos, his family and cronies, may
proceed independently of the criminal
action.
Petitioner gathers from the presidential

issuances that the Sandiganbayan has
been granted jurisdiction only over the
separate civil actions filed against
President Marcos, his family and cronies,
regardless of whether these civil actions
were for recovery of unlawfully acquired
property under R.A. No. 1379 or for
restitution, reparation of damages or
indemnification for consequential
damages or other civil actions under the
Civil Code or other existing laws.
According to petitioner, nowhere in the
amendments to P.D. No. 1606 and R.A. No.
1379 does it provide that the
Sandiganbayan has been vested
jurisdiction over separate civil actions
other than those filed against President
Marcos, his family and cronies.[13] Hence,
the Sandiganbayan has no jurisdiction

over any separate civil action against him,
even if such separate civil action is for
recovery of unlawfully acquired property
under R.A. No. 1379.
Petitioner further contends that in any

event, the petition for forfeiture filed
against him is fatally defective for failing
to comply with the jurisdictional
requirements under Sec. 2, R.A. No. 1379,
[14] namely: (a) an inquiry similar to a
preliminary investigation conducted by the
prosecution arm of the government; (b) a
certification to the Solicitor General that
there is reasonable ground to believe that
there has been violation of the said law
and that respondent is guilty thereof; and
(c) an action filed by the Solicitor General
on behalf of the Republic of the
Philippines.[15] He argues that only
informations for perjury were filed and
there has been no information filed
against him for violation of R.A. No. 1379.
Consequently, he maintains, it is
impossible for the Office of the
Ombudsman to certify that there is
reasonable ground to believe that a
violation of the said law had been
committed and that he is guilty thereof.
The petition is also supposedly bereft of
the required certification which should be
made by the investigating City or
Provincial Fiscal (now Prosecutor) to the
Solicitor General. Furthermore, he opines
that it should have been the Office of the
Solicitor General which filed the petition
and not the Office of the Ombudsman as
in this case. The petition being fatally
defective, the same should have been
dismissed, petitioner concludes.
In their Comment,[16] respondents submit
the contrary, noting that the issues raised
by petitioner are not novel as these have
been settled in Republic vs.
Sandiganbayan[17] which categorically
ruled that there is no issue that
jurisdiction over violations of [R.A.] Nos.
3019 and 1379 now rests with the
Sandiganbayan.[18] Respondents argue
that under the Constitution[19] and
prevailing statutes, the Sandiganbayan is

vested with authority and jurisdiction over
the petition for forfeiture under R.A. No.
1379 filed against petitioner. Respondents
point to Sec. 4.a (1) (d) of P.D. 1606, as
amended, as the prevailing law on the
jurisdiction of the Sandiganbayan, thus:
Sec. 4. Jurisdiction.The Sandiganbayan

shall exercise exclusive original jurisdiction
in all cases involving:
a.
Violations of Republic Act No.
3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the
accused are officials occupying the
following positions in the government,
whether in a permanent, acting or interim
capacity, at the time of the commission of
the offense:
(1) Officials of the executive branch

occupying the positions of regional
director and higher, otherwise classified as
Grade 27 and higher of the Compensation
and Position Classification Act of 1989
(Republic Act No. 6758), specifically
including:
(d) Philippine army and air force colonels,

naval captains, and all officers of higher
ranks;
As petitioner falls squarely under the

category of public positions covered by
the aforestated law, the petition for
forfeiture should be within the jurisdiction
of the Sandiganbayan.
Respondents also brush off as

inconsequential petitioners argument that
the petition for forfeiture is civil in nature
and the Sandiganbayan, having allegedly
no jurisdiction over civil actions, therefore
has no jurisdiction over the petition, since
the same P.D. No. 1606 encompasses all
cases involving violations of R.A. No. 3019,
irrespective of whether these cases are
civil or criminal in nature. The petition for
forfeiture should not be confused with the
cases initiated and prosecuted by the
PCGG pursuant to E.O. Nos. 14 and 14-A,
as these are dealt with under a separate
subparagraph of P.D. No. 1606, as
amended, in particular Sec. 4.c thereof.
[20] Further, respondents stress that E.O.
Nos. 14 and 14-A exclusively apply to
actions for recovery of unlawfully acquired
property against President Marcos, his
family, and cronies. It would also not be
accurate to refer to a petition for forfeiture
as a civil case, since it has been held that
petitions for forfeiture are deemed
criminal or penal and that it is only the
proceeding for its prosecution which is
civil in nature.[21]
The Office of the Ombudsman filed a

separate Comment,[22] likewise relying on
Republic v. Sandiganbayan to argue that
the Sandiganbayan has jurisdiction over
the petition for forfeiture filed against
petitioner. The Ombudsman explains that
the grant to the Sandiganbayan of
jurisdiction over violations of R.A. No. 1379
did not change even under the
amendments of
R.A. No. 7975[23] and R.A. No. 8294[24],

although it came to be limited to cases
involving high-ranking public officials as
enumerated therein, including Philippine
army and air force colonels, naval
captains, and all other officers of higher
rank, to which petitioner belongs.[25]
In arguing that it has authority to

investigate and initiate forfeiture
proceedings against petitioner, the Office
of the Ombudsman refers to both the
Constitution[26] and R.A. No. 6770.[27]
The constitutional power of investigation
of the Office of the Ombudsman is plenary
and unqualified; its power to investigate
any act of a public official or employee
which appears to be illegal, unjust,
improper or inefficient covers the unlawful
acquisition of wealth by public officials as
defined under R.A. No. 1379. Furthermore,
Sec. 15 (11)[28] of R.A. No. 6770 expressly
empowers the Ombudsman to investigate
and prosecute such cases of unlawful
acquisition of wealth. This authority of the
Ombudsman has been affirmed also in
Republic vs. Sandiganbayan.[29]
The Office of the Ombudsman then refutes
petitioners allegation that the petition for
forfeiture filed against him failed to
comply with the procedural and formal
requirements under the law. It asserts that
all the requirements of R.A. No. 1379 have
been strictly complied with. An inquiry
similar to a preliminary investigation was
conducted by a Prosecution Officer of the
Office of the Ombudsman. The
participation of the Office of the Solicitor
General, claimed by petitioner to be
necessary, is actually no longer required
since the Office of the Ombudsman is
endowed with the authority to investigate
and prosecute the case as discussed
above.[30]
In addition, the Office of the Ombudsman

alleges that the present Petition should be
dismissed for blatant forum-shopping.
Even as petitioner had filed a Motion to
Dismiss as regards the petition for

forfeiture (docketed as Civil Case No.
0193) before the Sandiganbayan on the
ground of the Sandiganbayans alleged
lack of jurisdiction, he filed the instant
Petition raising exactly the same issue,
even though the Motion to Dismiss in Civil
Case No. 0193 is still pending resolution.
Worse, it appears that the Motion to
Dismiss and the instant Petition were filed
on the same day, 17 November 2004.
Petitioner refutes these arguments in his
Reply[31] and enunciates that the
Sandiganbayans criminal jurisdiction is
separate and distinct from its civil
jurisdiction, and that the Sandiganbayans
jurisdiction over forfeiture cases had been
removed without subsequent amendments
expressly restoring such civil jurisdiction.
His thesis is that R.A. No. 1379 is a special
law which is primarily civil and remedial in
nature, the clear intent of which is to
separate the prima facie determination in
forfeiture proceedings from the litigation
of the civil action. This intent is further
demonstrated by Sec. 2 of R.A. No. 1379
which grants the authority to make an
inquiry similar to a preliminary
investigation being done by the City or
Provincial Fiscal, and the authority to file a
petition for forfeiture to the Solicitor
General.
Petitioner also points out in his Reply[32]

to the Comment of the Office of the
Ombudsman, that the use of the phrase
violations of [R.A.] Nos. 3019 and 1379 in
P.D. No. 1606, as amended, implies
jurisdiction over cases which are
principally criminal or penal in nature
because the concept of violation of certain
laws necessarily carries with it the concept
of imposition of penalties for such
violation. Hence, when reference was
made to violations of [R.A.] Nos. 3019 and
1379, the only jurisdiction that can
supposedly be implied is criminal
jurisdiction, not civil jurisdiction, thereby
highlighting respondent Sandiganbayans
lack of jurisdiction over the civil case for
forfeiture of ill-gotten wealth. Of course,
petitioner does not rule out cases where

the crime carries with it the corresponding
civil liability such that when the criminal
action is instituted, the civil action for
enforcement of the civil liability is
impliedly instituted with it, and the court
having jurisdiction over the criminal action
also acquires jurisdiction over the ancillary
civil action. However, petitioner argues
that the action for forfeiture subject of this
case is not the ancillary civil action
impliedly instituted with the criminal
action. Rather, the petition for forfeiture is
an independent civil action over which the
Sandiganbayan has no jurisdiction.
Petitioner points to P.D. No. 1606, as
amended, which treats of independent
civil actions only in the last paragraph of
Sec. 4 thereof:
Any provisions of law or Rules of Court to

the contrary notwithstanding, the criminal
action and the corresponding civil action
for the recovery of civil liability shall at all
times be simultaneously instituted with,
and jointly determined in, the same
proceeding by the Sandiganbayan or the
appropriate courts, the filing of the
criminal action being deemed to
necessarily carry with it the filing of the
civil action, and no right to reserve the
filing of such civil action separately from
the criminal action shall be recognized:
Provided, however, That where the civil
action had heretofore been filed
separately but judgment therein has not
yet been rendered, and the criminal case
is hereafter filed with the Sandiganbayan
or the appropriate court, said civil action
shall be transferred to the Sandiganbayan
or the appropriate court, as the case may
be, for consolidation and joint
determination with the criminal action,
otherwise the separate civil action shall be
deemed abandoned.
Petitioner however did not raise any

argument to refute the charge of forumshopping.
The issues for resolution are: (a) whether

the Sandiganbayan has jurisdiction over
petitions for forfeiture under R.A. No.
1379; (b) whether the Office of the
Ombudsman has the authority to
investigate, initiate and prosecute such
petitions for forfeiture; and (c) whether
petitioner is guilty of forum-shopping.
The petition is patently without merit. It

should be dismissed.
The seminal decision of Republic v.

Sandiganbayan[33] squarely rules on the
issues raised by petitioner concerning the
jurisdiction of the Sandiganbayan and the
authority of the Office of the Ombudsman.
After reviewing the legislative history of
the Sandiganbayan and the Office of the
Ombudsman, the Court therein resolved
the question of jurisdiction by the
Sandiganbayan over violations of R.A. No.
3019 and R.A. No. 1379. Originally, it was
the Solicitor General who was authorized
to initiate forfeiture proceedings before
the then Court of First Instance of the city
or province where the public officer or
employee resides or holds office, pursuant
to Sec. 2 of R.A. No. 1379. Upon the
creation of the Sandiganbayan pursuant to
P.D. No. 1486,[34] original and exclusive
jurisdiction over such violations was
vested in the said court.[35] P.D. No.
1606[36] was later issued expressly
repealing P.D. No. 1486, as well as
modifying the jurisdiction of the
Sandiganbayan by removing its
jurisdiction over civil actions brought in
connection with crimes within the
exclusive jurisdiction of said court.[37]
Such civil actions removed from the
jurisdiction of the Sandigabayan include
those for restitution or reparation of
damages, recovery of instruments and
effects of the crime, civil actions under
Articles 32 and 34 of the Civil Code, and
forfeiture proceedings provided for under
R.A. No. 1379.[38]
Subsequently, Batas Pambansa Blg.

129[39] abolished the concurrent
jurisdiction of the Sandiganbayan and the
regular courts and expanded the exclusive
original jurisdiction of the Sandiganbayan
over the offenses enumerated in Sec. 4 of
P.D. No. 1606 to embrace all such offenses
irrespective of the imposable penalty.
Since this change resulted in the
proliferation of the filing of cases before
the Sandiganbayan where the offense
charged is punishable by a penalty not
higher than prision correccional or its
equivalent, and such cases not being of a
serious nature, P.D. No. 1606 was again
amended by P.D. No. 1860[40] and
eventually by P.D. No. 1861.[41]
On the foregoing premises alone, the

Court in Republic v. Sandiganbayan,
deduced that jurisdiction over violations of
R.A. No. 3019 and 1379 is lodged with the
Sandiganbayan.[42] It could not have
taken into consideration R.A. No. 7975[43]
and R.A. No. 8249[44] since both statutes
which also amended the jurisdiction of the
Sandiganbayan were not yet enacted at
the time. The subsequent enactments only
serve to buttress the conclusion that the
Sandiganbayan indeed has jurisdiction
over violations of R.A. No. 1379.
Under R.A. No. 8249, the Sandiganbayan

is vested with exclusive original
jurisdiction in all cases involving violations
of R.A. No. 3019, R.A. No. 1379, and
Chapter II, Sec. 2, Title VII, Book II of the
Revised Penal Code, where one or more of
the accused are officials occupying the
following positions whether in a
permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch
occupying the positions of regional
director and higher, otherwise classified as
Grade '27' and higher, of the
Compensation and Position Classification
Act of 989 (R.A. No. 6758), specifically
including: (a) Provincial governors, vicegovernors, members of the sangguniang

panlalawigan, and provincial treasurers,
assessors, engineers, and other city
department heads; (b) City mayor, vicemayors, members of the sangguniang
panlungsod, city treasurers, assessors,
engineers, and other city department
heads; (c) Officials of the diplomatic
service occupying the position of consul
and higher; (d) Philippine army and air
force colonels, naval captains, and all
officers of higher rank; (e) Officers of the
Philippine National Police while occupying
the position of provincial director and
those holding the rank of senior
superintended or higher; (f) City and
provincial prosecutors and their assistants,
and officials and prosecutors in the Office
of the Ombudsman and special
prosecutor; (g) Presidents, directors or
trustees, or managers of governmentowned or controlled corporations, state
universities or educational institutions or
foundations; (2) Members of Congress and
officials thereof classified as Grade '27'
and up under the Compensation and
Position Classification Act of 1989; (3)
Members of the judiciary without prejudice
to the provisions of the Constitution; (4)
Chairmen and members of Constitutional
Commission, without prejudice to the
provisions of the Constitution; and (5) All
other national and local officials classified
as Grade '27' and higher under the
Compensation and Position Classification
Act of 1989.[45]
In the face of the prevailing jurisprudence

and the present state of statutory law on
the jurisdiction of the Sandiganbayan,
petitioners argumentthat the
Sandiganbayan has no jurisdiction over
the petition for forfeiture it being civil in
nature and the Sandiganbayan allegedly
having no jurisdiction over civil
actionscollapses completely.
The civil nature of an action for forfeiture

was first recognized in Republic v.
Sandiganbayan, thus: [T]he rule is settled

that forfeiture proceedings are actions in
rem and, therefore, civil in nature.[46]
Then, Almeda, Sr.
v. Perez,[47] followed, holding that the
proceedings under R.A. No. 1379 do not
terminate in the imposition of a penalty
but merely in the forfeiture of the
properties illegally acquired in favor of the
State. It noted that the
procedure outlined in the law leading to
forfeiture is that provided for in a civil
action.[48]
However, the Court has had occasion to

rule that forfeiture of illegally acquired
property partakes the nature of a penalty.
In Cabal v. Kapunan, Jr.,[49] the Court
cited voluminous authorities in support of
its declaration of the criminal or penal
nature of forfeiture proceedings, viz:
In a strict signification, a forfeiture is a

divestiture of property without
compensation, in consequence of a default
or an offense, and the term is used in such
a sense in this article. A forfeiture, as thus
defined, is imposed by way of punishment
not by the mere convention of the parties,
but by the lawmaking power, to insure a
prescribed course of conduct. It is a
method deemed necessary by the
legislature to restrain the commission of
an offense and to aid in the prevention of
such an offense. The effect of such a
forfeiture is to transfer the title to the
specific thing from the owner to the
sovereign power. (23 Am. Jur. 599)
"In Black's Law Dictionary a 'forfeiture' is

defined to be 'the incurring of a liability to
pay a definite sum of money as the
consequence of violating the provisions of
some statute or refusal to comply with
some requirement of law.' It may be said
to be a penalty imposed for misconduct or

breach of duty.'" (Com. vs. French, 114
S.W. 255.)
.
"Generally speaking, informations for the

forfeiture of goods that seek no judgment
of fine or imprisonment against any
person are deemed to be civil proceedings
in rem. Such proceedings are criminal in
nature to the extent that where the person
using the res illegally is the owner of
rightful possessor of it the forfeiture
proceeding is in the nature of a
punishment. They have been held to be so
far in the nature of
criminal proceedings that a general

verdict on several counts in an information
is upheld if one count is good. According
to the authorities such proceedings, where
the owner of the property appears, are so
far considered as quasicriminal
proceedings as to relieve the owner from
being a witness against himself and to
prevent the compulsory production of his
books and papers. . . ." (23 Am. Jur. 612)
.
Proceedings for forfeitures are generally

considered to be civil and in the nature of
proceedings in rem. The statute providing
that no judgment or other proceedings in
civil causes shall be arrested or reversed
for any defect or want of form is
applicable to them. In some aspects,
however, suits for penalties and forfeitures
are of quasi-criminal nature and within the
reason of criminal proceedings for all the
purposes of . . . that portion of the Fifth
Amendment which declares that no person
shall be compelled in any criminal case to
be a witness against himself. The
proceeding is one against the owner, as
well as against the goods; for it is his
breach of the laws which has to be proved

to establish the forfeiture and his property
is sought to be forfeited." (15 Am. Jur.,
Sec. 104, p. 368)[50]
Cabal v. Kapunan modified the earlier

ruling in Almeda, Sr. v. Perez.[51] The
Court in Cabal held that the doctrine laid
down in Almeda refers to the purely
procedural aspect of the forfeiture
proceedings and has no bearing on the
substantial rights of respondents,
particularly their constitutional right
against self-incrimination.[52] This was
reaffirmed and reiterated in
Republic v. Agoncillo[53] and Katigbak v.

Solicitor General.[54]
The Sandiganbayan is vested with

jurisdiction over violations of R.A. No.
1379, entitled An Act Declaring Forfeiture
In Favor of the State Any Property Found
to Have Been Unlawfully Acquired By Any
Public Officer or Employee and Providing
For the Proceedings Therefor. What acts
would constitute a violation of such a law?
A reading of R.A. No. 1379 establishes that
it does not enumerate any prohibited acts
the commission of which would
necessitate the imposition of a penalty.
Instead, it provides the procedure for
forfeiture to be followed in case a public
officer or employee has acquired during
his incumbency an amount of property
manifestly out of proportion to his salary
as such public officer or employee and to
his lawful income and income from
legitimately acquired property.[55] Section
12[56] of the law provides a penalty but it
is only imposed upon the public officer or
employee who transfers or conveys the
unlawfully acquired property; it does not
penalize the officer or employee for
making the unlawful acquisition. In effect,
as observed in Almeda, Sr. v. Perez, it

imposes the penalty of forfeiture of the
properties unlawfully acquired upon the
respondent public officer or employee.[57]
It is logically congruent, therefore, that

violations of R.A. No. 1379 are placed
under the jurisdiction of the
Sandiganbayan, even though the
proceeding is civil in nature, since the
forfeiture of the illegally acquired property
amounts to a penalty. The soundness of
this reasoning becomes even more
obvious when we consider that the
respondent in such forfeiture proceedings
is a public officer or employee and the
violation of R.A. No. 1379 was committed
during the respondent officer or
employees incumbency and in relation to
his office. This is in line with the purpose
behind the creation of the Sandiganbayan
as an anti-graft courtto address the urgent
problem of dishonesty in public service.
[58]
Following the same analysis, petitioner

should therefore abandon his erroneous
belief that the Sandiganbayan has
jurisdiction only over petitions for
forfeiture filed against President Marcos,
his family and cronies.
We come then to the question of authority

of the Office of the Ombudsman to
investigate, file and
prosecute petitions for forfeiture under

R.A. No. 1379. This was the main issue
resolved in Republic v. Sandiganbayan.
[59]
Under Sec. 2 of R.A. No. 1379, it was the

Solicitor General who was authorized to
initiate forfeiture proceedings before the

then Courts of First Instance. P.D. No.
Decree No. 1486 was later issued on 11
June 1978 vesting the Sandiganbayan with
jurisdiction over R.A. No. 1379 forfeiture
proceedings. Sec. 12 of P.D. No. 1486 gave
the Chief Special Prosecutor the authority
to file and prosecute forfeiture cases. This
may be taken as an implied repeal by P.D.
No. 1486 of the jurisdiction of the former
Courts of First Instance and the authority
of the Solicitor General to file a petition for
forfeiture under Sec. 2 of R.A. No. 1379 by
transferring said jurisdiction and authority
to the Sandiganbayan and the Chief
Special Prosecutor, respectively.[60] An
implied repeal is one which takes place
when a new law contains some provisions
which are contrary to, but do not expressly
repeal those of a former law.[61] As a rule,
repeals by implication are not favored and
will not be so declared unless it be
manifest that the legislature so intended.
Before such repeal is deemed to exist, it
must be shown that the statutes or
statutory provisions deal with the same
subject matter and that the latter be
inconsistent with the former. The language
used in the latter statute must be such as
to render it irreconcilable with what had
been formerly enacted. An inconsistency
that falls short of that standard does not
suffice. What is needed is a manifest
indication of the legislative purpose to
repeal.[62]
P.D. No. 1486 contains a repealing clause

which provides that [A]ny provision of law,
order, rule or regulation inconsistent with
the provisions of this Decree is hereby
repealed or modified accordingly.[63] This
is not an express repealing clause because
it fails to identify or designate the statutes
that are intended to be repealed. Rather, it
is a clause which predicates the intended
repeal upon the condition that a
substantial conflict must be found in
existing and prior laws.[64]
The conflict between P.D. No. 1486 and

R.A. No. 1379 refers to the jurisdiction
over the forfeiture proceeding and the
authority to file the petition for forfeiture.
As P.D. No. 1486 grants exclusive
jurisdiction and authority to the
Sandiganbayan and the Chief Special
Prosecutor, the then Courts of First
Instance and Solicitor General cannot
exercise concurrent jurisdiction or
authority over such cases. Hence, P.D. No.
1486 and Sec. 2, R.A. No. 1379 are
inconsistent with each other and the
former should be deemed to have
repealed the latter.
On 11 June 1978, the same day that P.D.

No. 1486 was enacted, P.D. No. 1487[65]
creating the Office of the Ombudsman
(then known as the Tanodbayan) was
passed. The Tanodbayan initially had no
authority to prosecute cases falling within
the jurisdiction of the Sandiganbayan as
provided in Sec. 4 of P.D. No. 1486, such
jurisdiction being vested in the Chief
Special Prosecutor as earlier mentioned.
On 10 December 1978, P.D. No. 1606 was

enacted expressly repealing P.D. No. 1486.
Issued on the same date was P.D. No.
1607[66] which amended the powers of
the Tanodbayan to investigate
administrative complaints[67] and created
the Office of the Chief Special Prosecutor.
[68] P.D. No. 1607 provided said Office of
the Chief Special Prosecutor with exclusive
authority to conduct preliminary
investigation of all cases cognizable by the
Sandiganbayan, file informations therefor,
and direct and control the prosecution of
said cases.[69] P.D. No. 1607 also
removed from the Chief Special Prosecutor
the authority to file actions for forfeiture
under R.A. No. 1379.[70]
The rule is that when a law which
expressly repeals a prior law is itself
repealed, the law first repealed shall not
be thereby revived unless expressly so
provided. From this it may fairly be
inferred that the old rule continues in force

where a law which repeals a prior law, not
expressly but by implication, is itself
repealed; and that in such cases the
repeal of the repealing law revives the
prior law, unless the language of the
repealing statute provides otherwise.[71]
Hence, the repeal of P.D. No. 1486 by P.D.
No. 1606 necessarily revived the authority
of the Solicitor General to file a petition for
forfeiture under R.A. No. 1379, but not the
jurisdiction of the Courts of First Instance
over the case nor the authority of the
Provincial or City Fiscals (now Prosecutors)
to conduct the preliminary investigation
therefore, since said powers at that time
remained in the Sandiganbayan and the
Chief Special Prosecutor.[72]
The Tanodbayans authority was further

expanded by P.D. No. 1630[73] issued on
18 July 1990. Among other things, the
Tanodbayan was given the exclusive
authority to conduct preliminary
investigation of all cases cognizable by the
Sandiganbayan, to file informations
therefore and to direct and control the
prosecution of said cases.[74] The power
to conduct the necessary investigation
and to file and prosecute the
corresponding criminal and administrative
cases before the Sandiganbayan or the
proper court or administrative agency
against any public personnel who has
acted in a manner warranting criminal and
disciplinary action or proceedings was also
transferred from the Chief Special
Prosecutor to the Tanodbayan.[75]
Thereafter, P.D. No. 1606 was amended by

P.D. Nos. 1860 and 1861[76] which
granted the Tanodbayan the same
authority. The present Constitution was
subsequently ratified and then the
Tanodbayan became known as the Office
of the Special Prosecutor which continued
to exercise its powers except those
conferred on the Office of the Ombudsman
created under the Constitution.[77] The
Office of the Ombudsman was officially

created under R.A. No. 6770.[78]
At present, the powers of the

Ombudsman, as defined by R.A. No. 6770,
corollary to Sec. 13, Art. XI of the
Constitution, include the authority, among
others, to:
(1) Investigate and prosecute on its own or

on complaint by any person, any act or
omission of any public officer or employee,
office or agency, when such act or
omission appears to be illegal, unjust,
improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this
primary jurisdiction, may take over, at any
stage, from any investigatory agency of
Government, the investigation of such
cases;[79]
(11) Investigate and initiate the proper
action for the recovery of ill-gotten and/or
unexplained wealth amassed after 25
February 1986 and the prosecution of the
parties involved therein.[80]
Ostensibly, it is the Ombudsman who

should file the petition for forfeiture under
R.A. No. 1379. However, the Ombudsmans
exercise of the correlative powers to
investigate and initiate the proper action
for recovery of ill-gotten and/or
unexplained wealth is restricted only to
cases for the recovery of ill-gotten and/or
unexplained wealth amassed after 25
February 1986.[81] As regards such
wealth accumulated on or before said
date, the Ombudsman is without authority
to commence before the Sandiganbayan
such forfeiture actionsince the authority to
file forfeiture proceedings on or before 25
February 1986 belongs to the Solicitor
Generalalthough he has the authority to
investigate such cases for forfeiture even
before 25 February 1986, pursuant to the
Ombudsmans general investigatory power

under Sec. 15 (1) of R.A. No. 6770.[82]
It is obvious then that respondent Office of

the Ombudsman acted well within its
authority in conducting the investigation
of petitioners illegally acquired assets and
in filing the petition for forfeiture against
him. The contention that the procedural
requirements under Sec. 2 of R.A. No.
1379 were not complied with no longer
deserve consideration in view of the
foregoing discussion.
Now to the charge that petitioner is guilty

of forum-shopping. Forum-shopping is
manifest whenever a party repetitively
avail[s] of several judicial remedies in
different courts, simultaneously or
successively, all substantially founded on
the same transactions and the same
essential facts and circumstances, and all
raising substantially the same issues
either pending in, or already resolved
adversely by, some other court.[83] It has
also been defined as an act of a party
against whom an adverse judgment has
been rendered in one forum of seeking
and possibly getting a favorable opinion in
another forum, other than by appeal or
the special civil action of certiorari, or the
institution of two or more actions or
proceedings grounded on the same cause
on the supposition that one or the other
court would make a favorable disposition.
[84] Considered a pernicious evil, it
adversely affects the efficient
administration of justice since it clogs the
court dockets, unduly burdens the
financial and human resources of the
judiciary, and trifles with and mocks
judicial processes.[85] Willful and
deliberate forum-shopping is a ground for
summary dismissal of the complaint or
initiatory pleading with prejudice and
constitutes direct contempt of court, as
well as a cause for administrative
sanctions, which may both be resolved
and imposed in the same case where the
forum-shopping is found.[86]
There is ample reason to hold that

petitioner is guilty of forum-shopping. The
present petition was filed accompanied by
the requisite Verification and Certification
Against Forum Shopping[87] in which
petitioner made the following
representation:
3.] As Petitioner, I have not heretofore

commenced any other action or
proceeding in the Supreme Court, the
Court of Appeals, or any other tribunal or
agency, involving the same issues as that
in the above-captioned case.
4.] To the best of my knowledge, no such

action or proceeding is pending in the
Supreme Court, the Court of Appeals, or
any other tribunal or agency.
5.] If I should hereafter learn that such

proceeding has been commenced or is
pending before the Supreme Court, the
Court of Appeals, or any other tribunal or
agency, I undertake to report that fact to
this Honorable Court within five (5) days
from knowledge thereof.
However, petitioner failed to inform the

Court that he had filed a Motion to
Dismiss[88] in relation to the petition for
forfeiture before the Sandiganbayan. The
existence of this motion was only brought
to the attention of this Court by
respondent Office of the Ombudsman in
its Comment. A scrutiny of the Motion to
Dismiss reveals that petitioner raised

substantially the same issues and prayed
for the same reliefs therein as it has in the
instant petition. In fact, the Arguments
and Discussion[89] in the Petition of
petitioners thesis that the Sandiganbayan
has no jurisdiction over separate civil
actions for forfeiture of unlawfully
acquired properties appears to be wholly
lifted from the Motion to Dismiss. The only
difference between the two is that in the
Petition, petitioner raises the ground of
failure of the petition for forfeiture to
comply with the procedural requirements
of R.A. No. 1379, and petitioner prays for
the annulment of the Sandiganbayans
Resolution dated 29 October 2004 and
Writ of Preliminary Attachment dated 2
November 2004. Nevertheless, these
differences are only superficial. Both
Petition and Motion to Dismiss have the
same intent of dismissing the case for
forfeiture filed against petitioner, his wife
and their sons. It is undeniable that
petitioner had failed to fulfill his
undertaking. This is incontestably forumshopping which is reason enough to
dismiss the petition outright, without
prejudice to the taking of appropriate
action against the counsel and party
concerned.[90] The brazenness of this
attempt at forum-shopping is even
demonstrated by the fact that both the
Petition and Motion to Dismiss were filed
on the same day, 17 November 2004.
Petitioner should have waited for the
resolution of his Motion to Dismiss before
resorting to the petition at hand.
conduct which tends to delay, impede or

obstruct the administration thereof
contravenes his oath of office.[91] Atty. De
Jesus failed to accord due regard, as he
must, the tenets of the legal profession
and the mission of our courts of justice.
For this, he should be penalized. Penalties
imposed upon lawyers who engaged in
forum-shopping range from severe
censure to suspension from the practice of
law.[92] In the instant case, we deem the
imposition of a fine in the amount of
P20,000.00 to be sufficient to make Atty.
De Jesus realize the seriousness of his
naked abuse of the judicial process.
WHEREFORE, in view of the foregoing, the
Petition is DISMISSED. Atty. Constantino B.
De Jesus is DECLARED in CONTEMPT of
this Court and meted a fine of Twenty
Thousand Pesos (P20,000.00) to be paid
within ten (10) days from the finality of
this Decision. Costs against petitioner.
SO ORDERED.
XXXXXXXXXX
STARE DECISIS
THIRD DIVISION
BENJAMIN G. TING,
Petitioner,
- versus Petitioners counsel of record, Atty.

Constantino B. De Jesus, needs to be
reminded that his primary duty is to assist
the courts in the administration of justice.
As an officer of the court, his duties to the
court are more significant and important
than his obligations to his clients. Any
CARMEN M. VELEZ-TING,
Respondent.
G.R. No. 166562
G.R. CV No. 59903. The appellate court, in

its assailed decision and resolution,
affirmed the January 9, 1998 Decision[3]
of the Regional Trial Court (RTC), Branch
23, Cebu City, declaring the marriage
between petitioner and respondent null
and void ab initio pursuant to Article 36 of
the Family Code.[4]
Present:
The facts follow.
YNARES-SANTIAGO, J.,
Chairperson,
CARPIO MORALES,*
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.
Promulgated:
March 31, 2009

x-----------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before us is a petition for review on

certiorari seeking to set aside the
November 17, 2003 Amended Decision[1]
of the Court of Appeals (CA), and its
December 13, 2004 Resolution[2] in CA-
Petitioner Benjamin Ting (Benjamin) and

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

home in Maguikay, Mandaue City.[6] When
their second child was born, the couple
decided to move to Carmens family home
in Cebu City.[7] In September 1975,
Benjamin passed the medical board
examinations[8] and thereafter proceeded
to take a residency program to become a
surgeon but shifted to anesthesiology
after two years. By 1979, Benjamin
completed the preceptorship program for
the said field[9] and, in 1980, he began
working for Velez Hospital, owned by
Carmens family, as member of its active
staff,[10] while Carmen worked as the
hospitals Treasurer.[11]
The couple begot six (6) children, namely

Dennis, born on December 9, 1975; James
Louis, born on August 25, 1977; Agnes
Irene, born on April 5, 1981; Charles
Laurence, born on July 21, 1986; Myles
Vincent, born on July 19, 1988; and Marie
Corinne, born on June 16, 1991.[12]
On October 21, 1993, after being married

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

to their marriage, she was already aware
that Benjamin used to drink and gamble
occasionally with his friends.[14] But after
they were married, petitioner continued to
drink regularly and would go home at
about midnight or sometimes in the wee
hours of the morning drunk and violent.
He would confront and insult respondent,
physically assault her and force her to
have sex with him. There were also
instances when Benjamin used his gun
and shot the gate of their house.[15]
Because of his drinking habit, Benjamins
job as anesthesiologist was affected to the
point that he often had to refuse to answer
the call of his fellow doctors and to pass
the task to other anesthesiologists. Some
surgeons even stopped calling him for his
services because they perceived petitioner
to be unreliable. Respondent tried to talk
to her husband about the latters drinking
problem,
but Benjamin
refused
to
acknowledge the same.[16]
Carmen also complained that petitioner

deliberately refused to give financial
support to their family and would even get
angry at her whenever she asked for
money for their children. Instead of
providing support, Benjamin would spend
his money on drinking and gambling and
would even buy expensive equipment for
his hobby.[17] He rarely stayed home[18]
and even neglected his obligation to his

children.[19]
Aside from this, Benjamin also engaged in

compulsive
gambling.[20]
He
would
gamble two or three times a week and
would borrow from his friends, brothers, or
from loan sharks whenever he had no
money. Sometimes, Benjamin would pawn
his wifes own jewelry to finance his
gambling.[21] There was also an instance
when the spouses had to sell their family
car and even a portion of the lot Benjamin
inherited from his father just to be able to
pay off his gambling debts.[22] Benjamin
only stopped going to the casinos in 1986
after he was banned therefrom for having
caused trouble, an act which he said he
purposely committed so that he would be
banned
from
the
gambling
establishments.[23]
In sum, Carmens allegations of Benjamins
psychological incapacity consisted of the
following manifestations:
1.
Benjamins alcoholism, which
adversely affected his family relationship
and his profession;
2.
Benjamins violent nature
brought about by his excessive and
regular drinking;
3.
His compulsive gambling
habit, as a result of which Benjamin found
it necessary to sell the family car twice
and the property he inherited from his
father in order to pay off his debts,
because he no longer had money to pay
the same; and
4.
Benjamins irresponsibility and
immaturity as shown by his failure and
refusal to give regular financial support to
his family.[24]
In his answer, Benjamin denied being

psychologically
incapacitated.
He
maintained that he is a respectable

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

of respondent are clear indications that
petitioner suffers from a personality
disorder.[32]
During the trial, Carmens testimony

regarding
Benjamins
drinking
and
gambling habits and violent behavior was
corroborated by Susana Wasawas, who
served as nanny to the spouses children
from 1987 to 1992.[29] Wasawas stated
that she personally witnessed instances
when Benjamin maltreated Carmen even
in front of their children.[30]
On January 9, 1998, the lower court

rendered its Decision[36] declaring the
marriage
between
petitioner
and
respondent null and void. The RTC gave
credence to Dr. Oates findings and the
admissions made by Benjamin in the
course of his deposition, and found him to
be
psychologically
incapacitated
to
comply with the essential obligations of
marriage. Specifically, the trial court found
Benjamin
an
excessive
drinker,
a
compulsive
gambler,
someone
who
prefers his extra-curricular activities to his
family, and a person with violent
tendencies, which character traits find
root in a personality defect existing even
before his marriage to Carmen. The
decretal portion of the decision reads:
Carmen also presented as witness Dr.

Pureza Trinidad-Oate, a psychiatrist.[31]
Instead of the usual personal interview,
however, Dr. Oates evaluation of Benjamin
was
limited
to
the
transcript
of
stenographic
notes
taken
during
Benjamins deposition because the latter
had already gone to work as an
anesthesiologist in a hospital in South
Africa. After reading the transcript of
stenographic notes, Dr. Oate concluded
that Benjamins compulsive drinking,
To refute Dr. Oates opinion, petitioner

presented Dr. Renato D. Obra, a
psychiatrist and a consultant at the
Department of Psychiatry in Don Vicente
Sotto Memorial Medical Center, as his
expert witness.[33] Dr. Obra evaluated
Benjamins psychological behavior based
on the transcript of stenographic notes, as
well as the psychiatric evaluation report
prepared by Dr. A.J.L. Pentz, a psychiatrist
from the University of Pretoria in South
Africa, and his (Dr. Obras) interview with
Benjamins brothers.[34] Contrary to Dr.
Oates findings, Dr. Obra observed that
there is nothing wrong with petitioners
personality, considering the latters good
relationship with his fellow doctors and his
good track record as anesthesiologist.[35]
WHEREFORE, all the foregoing considered,

judgment is hereby rendered declaring the
marriage between plaintiff and defendant
null and void ab initio pursuant to Art. 36

of the Family Code. x x x
ruling. Thus, on November 17, 2003, it

issued an Amended Decision[46] reversing
its first ruling and sustaining the trial
courts decision.[47]
xxxx
SO ORDERED.[37]
A motion for reconsideration was filed, this

time by Benjamin, but the same was
denied by the CA in its December 13,
2004 Resolution.[48]
Hence, this petition.
Aggrieved, petitioner appealed to the CA.

On October 19, 2000, the CA rendered a
Decision[38] reversing the trial courts
ruling. It faulted the trial courts finding,
stating that no proof was adduced to
support the conclusion that Benjamin was
psychologically incapacitated at the time
he married Carmen since Dr. Oates
conclusion was based only on theories and
not on established fact,[39] contrary to
the guidelines set forth in Santos v. Court
of Appeals[40] and in Rep. of the Phils. v.
Court of Appeals and Molina.[41]
Because of this, Carmen filed a motion for

reconsideration, arguing that the Molina
guidelines should not be applied to this
case since the Molina decision was
promulgated only on February 13, 1997, or
more than five years after she had filed
her petition with the RTC.[42] She claimed
that the Molina ruling could not be made
to apply retroactively, as it would run
counter to the principle of stare decisis.
Initially, the CA denied the motion for
reconsideration for having been filed
beyond the prescribed period. Respondent
thereafter filed a manifestation explaining
compliance with the prescriptive period
but the same was likewise denied for lack
of merit. Undaunted, respondent filed a
petition for certiorari[43] with this Court.
In a Resolution[44] dated March 5, 2003,
this Court granted the petition and
directed the CA to resolve Carmens
motion for reconsideration.[45] On review,
the CA decided to reconsider its previous
For our resolution are the following issues:
I.
Whether the CA violated the
rule on stare decisis when it refused to
follow the guidelines set forth under the
Santos and Molina cases;
II.
Whether the CA correctly ruled
that the requirement of proof of
psychological
incapacity
for
the
declaration of absolute nullity of marriage
based on Article 36 of the Family Code has
been liberalized; and
III.
Whether the CAs decision
declaring the marriage between petitioner
and respondent null and void [is] in
accordance with law and jurisprudence.
We find merit in the petition.
I. On the issue of stare decisis.
The principle of stare decisis enjoins

adherence by lower courts to doctrinal
rules established by this Court in its final

decisions. It is based on the principle that
once a question of law has been examined
and decided, it should be deemed settled
and closed to further argument.[49]
Basically, it is a bar to any attempt to
relitigate the same issues,[50] necessary
for two simple reasons: economy and
stability. In our jurisdiction, the principle is
entrenched in Article 8 of the Civil Code.
[51]
This doctrine of adherence to precedents

or stare decisis was applied by the English
courts and was later adopted by the
United States. Associate Justice (now Chief
Justice) Reynato S. Punos discussion on
the historical development of this legal
principle in his dissenting opinion in
Lambino v. Commission on Elections[52] is
enlightening:
The latin phrase stare decisis et non

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

States. It was recognized by the framers of
the U.S. Constitution. According to
Hamilton, strict rules and precedents are
necessary to prevent arbitrary discretion
in the courts. Madison agreed but stressed
that x x x once the precedent ventures
into the realm of altering or repealing the

law, it should be rejected. Prof. Consovoy
well noted that Hamilton and Madison
disagree about the countervailing policy
considerations that would allow a judge to
abandon a precedent. He added that their
ideas reveal a deep internal conflict
between the concreteness required by the
rule of law and the flexibility demanded in
error correction. It is this internal conflict
that the Supreme Court has attempted to
deal with for over two centuries.
Indeed, two centuries of American case

law
will
confirm
Prof.
Consovoy's
observation
although
stare
decisis
developed its own life in the United States.
Two strains of stare decisis have been
isolated by legal scholars. The first, known
as vertical stare decisis deals with the
duty of lower courts to apply the decisions
of the higher courts to cases involving the
same facts. The second, known as
horizontal stare decisis requires that high
courts must follow its own precedents.
Prof. Consovoy correctly observes that
vertical stare decisis has been viewed as
an obligation, while horizontal stare
decisis, has been viewed as a policy,
imposing choice but not a command.
Indeed, stare decisis is not one of the
precepts set in stone in our Constitution.
It is also instructive to distinguish the two

kinds
of
horizontal
stare
decisis
constitutional stare decisis and statutory
stare decisis. Constitutional stare decisis
involves judicial interpretations of the
Constitution while statutory stare decisis
involves interpretations of statutes. The
distinction is important for courts enjoy
more flexibility in refusing to apply stare
decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the
doctrine in constitutional litigations still
holds sway today. In soothing prose,
Brandeis stated: Stare decisis is not . . . a
universal and inexorable command. The
rule of stare decisis is not inflexible.

Whether it shall be followed or departed
from, is a question entirely within the
discretion of the court, which is again
called upon to consider a question once
decided. In the same vein, the venerable
Justice Frankfurter opined: the ultimate
touchstone of constitutionality is the
Constitution itself and not what we have
said about it. In contrast, the application
of stare decisis on judicial interpretation of
statutes is more inflexible. As Justice
Stevens explains: after a statute has been
construed, either by this Court or by a
consistent course of decision by other
federal judges and agencies, it acquires a
meaning that should be as clear as if the
judicial gloss had been drafted by the
Congress itself. This stance reflects both
respect for Congress' role and the need to
preserve the courts' limited resources.
In general, courts follow the stare decisis

rule for an ensemble of reasons, viz.: (1) it
legitimizes judicial institutions; (2) it
promotes judicial economy; and, (3) it
allows for predictability. Contrariwise,
courts refuse to be bound by the stare
decisis rule where (1) its application
perpetuates
illegitimate
and
unconstitutional holdings; (2) it cannot
accommodate
changing
social
and
political understandings; (3) it leaves the
power to overturn bad constitutional law
solely in the hands of Congress; and, (4)
activist judges can dictate the policy for
future courts while judges that respect
stare decisis are stuck agreeing with them.
In its 200-year history, the U.S. Supreme

Court has refused to follow the stare
decisis rule and reversed its decisions in
192 cases. The most famous of these
reversals is Brown v. Board of Education
which junked Plessy v. Ferguson's separate
but equal doctrine. Plessy upheld as
constitutional a state law requirement that
races
be
segregated
on
public
transportation. In Brown, the U.S. Supreme

Court, unanimously held that separate . . .
is inherently unequal. Thus, by freeing
itself from the shackles of stare decisis,
the U.S. Supreme Court freed the colored
Americans from the chains of inequality. In
the Philippine setting, this Court has
likewise refused to be straitjacketed by the
stare decisis rule in order to promote
public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos, we reversed
our original ruling that certain provisions
of the Mining Law are unconstitutional.
Similarly, in Secretary of Justice v. Lantion,
we overturned our first ruling and held, on
motion for reconsideration, that a private
respondent is bereft of the right to notice
and hearing during the evaluation stage of
the extradition process.
An examination of decisions on stare

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

court should follow the stare decisis rule in
constitutional
litigations
is
Planned
Parenthood v. Casey. It established a 4pronged test. The court should (1)
determine whether the rule has proved to
be intolerable simply in defying practical
workability; (2) consider whether the rule
is subject to a kind of reliance that would
lend
a
special
hardship
to
the
consequences of overruling and add
inequity to the cost of repudiation; (3)
determine whether related principles of
law have so far developed as to have the
old rule no more than a remnant of an
abandoned doctrine; and, (4) find out
whether facts have so changed or come to
be seen differently, as to have robbed the

old rule of significant application or
justification.[53]
To be forthright, respondents argument

that the doctrinal guidelines prescribed in
Santos and Molina should not be applied
retroactively for being contrary to the
principle of stare decisis is no longer new.
The same argument was also raised but
was struck down in Pesca v. Pesca,[54]
and again in Antonio v. Reyes.[55] In these
cases, we explained that the interpretation
or construction of a law by courts
constitutes a part of the law as of the date
the statute is enacted. It is only when a
prior ruling of this Court is overruled, and
a different view is adopted, that the new
doctrine may have to be applied
prospectively in favor of parties who have
relied on the old doctrine and have acted
in good faith, in accordance therewith
under the familiar rule of lex prospicit, non
respicit.
II. On liberalizing the required proof for the

declaration of nullity of marriage under
Article 36.
Now, petitioner wants to know if we have

abandoned the Molina doctrine.
We have not.
In Edward Kenneth Ngo Te v. Rowena Ong

Gutierrez Yu-Te,[56] we declared that, in
hindsight, it may have been inappropriate
for the Court to impose a rigid set of rules,
as the one in Molina, in resolving all cases
of psychological incapacity. We said that
instead of serving as a guideline, Molina
unintentionally became a straightjacket,
forcing all cases involving psychological
incapacity to fit into and be bound by it,

which is not only contrary to the intention
of the law but unrealistic as well because,
with respect to psychological incapacity,
no case can be considered as on all fours
with another.[57]
By the very nature of cases involving the
application of Article 36, it is logical and
understandable to give weight to the
expert opinions furnished by psychologists
regarding the psychological temperament
of parties in order to determine the root
cause, juridical antecedence, gravity and
incurability of the psychological incapacity.
However, such opinions, while highly
advisable, are not conditions sine qua non
in granting petitions for declaration of
nullity of marriage.[58] At best, courts
must treat such opinions as decisive but
not indispensable evidence in determining
the merits of a given case. In fact, if the
totality of evidence presented is enough to
sustain
a
finding
of
psychological
incapacity, then actual medical or
psychological examination of the person
concerned need not be resorted to.[59]
The trial court, as in any other given case
presented before it, must always base its
decision not solely on the expert opinions
furnished by the parties but also on the
totality of evidence adduced in the course
of the proceedings.
It was for this reason that we found it

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

suggested the relaxation of the stringent
requirements set forth therein, cognizant
of the explanation given by the Committee
on the Revision of the Rules on the
rationale of the Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
02-11-10-SC), viz.:
To require the petitioner to allege in the

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

the full opportunity to present professional
and expert opinions of psychiatrists
tracing the root cause, gravity and
incurability
of
a
partys
alleged
psychological incapacity, then such expert
opinion
should
be
presented
and,
accordingly, be weighed by the court in
deciding whether to grant a petition for
nullity of marriage.
III. On petitioners psychological incapacity.
Coming now to the main issue, we find the

totality
of
evidence
adduced
by
respondent insufficient to prove that
petitioner is psychologically unfit to
discharge the duties expected of him as a
husband, and more particularly, that he
suffered
from
such
psychological
incapacity as of the date of the marriage
eighteen (18) years ago. Accordingly, we
reverse the trial courts and the appellate
courts rulings declaring the marriage
between petitioner and respondent null
and void ab initio.
The intendment of the law has been to
confine the application of Article 36 to the
most
serious
cases
of
personality
disorders clearly demonstrative of an utter
insensitivity or inability to give meaning
and significance to the marriage.[61] The
psychological illness that must have
afflicted a party at the inception of the
marriage should be a malady so grave and
permanent as to deprive one of awareness
of the duties and responsibilities of the
matrimonial bond he or she is about to
assume.[62]
In this case, respondent failed to prove

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

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

condoning
petitioners
drinking
and
gambling
problems,
or
his
violent
outbursts against his wife. There is no
valid excuse to justify such a behavior.
Petitioner must remember that he owes
love, respect, and fidelity to his spouse as
much as the latter owes the same to him.
Unfortunately, this court finds respondents
testimony, as well as the totality of
evidence presented by the respondent, to
be too inadequate to declare him
psychologically unfit pursuant to Article
36.
It should be remembered that the

presumption is always in favor of the
validity of marriage. Semper praesumitur
pro matrimonio.[65] In this case, the
presumption has not been amply rebutted
and must, perforce, prevail.
WHEREFORE, premises considered, the

petition for review on certiorari is
GRANTED. The November 17, 2003
Amended Decision and the December 13,
2004 Resolution of the Court of Appeals in
CA-G.R. CV No. 59903 are accordingly

REVERSED and SET ASIDE.
SO ORDERED.
XXXXXXXXXX
[G.R. No. 110398. November 7, 1997]
NEGROS NAVIGATION CO., INC., petitioner,

vs. THE COURT OF APPEALS, RAMON
MIRANDA, SPS. RICARDO and VIRGINIA DE
LA VICTORIA, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of

the decision of the Court of Appeals
affirming with modification the Regional
Trial Courts award of damages to private
respondents for the death of relatives as a
result of the sinking of petitioners vessel.
In April of 1980, private respondent

Ramon Miranda purchased from the
Negros Navigation Co., Inc. four special
cabin tickets (#74411, 74412, 74413 and
74414) for his wife, daughter, son and
niece who were going to Bacolod City to
attend a family reunion. The tickets were
for Voyage No. 457-A of the M/V Don Juan,
leaving Manila at 1:00 p.m. on April 22,
1980.
The ship sailed from the port of Manila on

schedule.
At about 10:30 in the evening of April 22,

1980, the Don Juan collided off the Tablas
Strait in Mindoro, with the M/T Tacloban
City, an oil tanker owned by the Philippine
National Oil Company (PNOC) and the
PNOC Shipping and Transport Corporation
(PNOC/STC). As a result, the M/V Don Juan
sank. Several of her passengers perished

in the sea tragedy. The bodies of some of
the victims were found and brought to
shore, but the four members of private
respondents families were never found.
Private respondents filed a complaint on

July 16, 1980 in the Regional Trial Court of
Manila, Branch 34, against the Negros
Navigation, the Philippine National Oil
Company (PNOC), and the PNOC Shipping
and Transport Corporation (PNOC/STC),
seeking damages for the death of Ardita
de la Victoria Miranda, 48, Rosario V.
Miranda, 19, Ramon V. Miranda, Jr., 16,
and Elfreda de la Victoria, 26.
binding upon petitioner, PNOC and

PNOC/STC. Private respondents did not
join in the agreement.
After trial, the court rendered judgment on

February 21, 1991, the dispositive portion
of which reads as follows:
WHEREFORE, in view of the foregoing,

judgment is hereby rendered in favor of
the plaintiffs, ordering all the defendants
to pay jointly and severally to the plaintiffs
damages as follows:
To Ramon Miranda:
In its answer, petitioner admitted that
private respondents purchased ticket
numbers 74411, 74412, 74413 and 74414;
that the ticket numbers were listed in the
passenger manifest; and that the Don Juan
left Pier 2, North Harbor, Manila on April
22, 1980 and sank that night after being
rammed by the oil tanker M/T Tacloban
City, and that, as a result of the collision,
some of the passengers of the M/V Don
Juan died. Petitioner, however, denied that
the four relatives of private respondents
actually boarded the vessel as shown by
the fact that their bodies were never
recovered. Petitioner further averred that
the Don Juan was seaworthy and manned
by a full and competent crew, and that the
collision was entirely due to the fault of
the crew of the M/T Tacloban City.
On January 20, 1986, the PNOC and

petitioner Negros Navigation Co., Inc.
entered into a compromise agreement
whereby
petitioner
assumed
full
responsibility for the payment and
satisfaction of all claims arising out of or in
connection with the collision and releasing
the PNOC and the PNOC/STC from any
liability to it. The agreement was
subsequently held by the trial court to be
P42,025.00 for actual damages;
P152,654.55 as compensatory damages

for loss of earning capacity of his wife;
P90,000.00 as compensatory damages for

wrongful death of three (3) victims;
P300,000.00 as moral damages;
P50,000.00 as exemplary damages, all in

the total amount of P634,679.55; and
To Spouses Ricardo and Virginia de la

Victoria:

for loss of earning capacity;

wrongful death;

On appeal, the Court of Appeals[1]

affirmed the decision of the Regional Trial
Court with modification
1. Ordering and sentencing defendantsappellants, jointly and severally, to pay

plaintiff-appellee Ramon Miranda the
amount of P23,075.00 as actual damages
instead of P42,025.00;

plaintiff-appellee Ramon Miranda the
amount of P150,000.00, instead of
P90,000.00, as compensatory damages for
the death of his wife and two children;

plaintiffs-appellees Dela Victoria spouses
the amount of P50,000.00, instead of
P30,000.00, as compensatory damages for
the death of their daughter Elfreda Dela
Victoria;
Hence this petition, raising the following

issues:
(1) whether the members of private

respondents
families
were
actually
passengers of the Don Juan;
(2) whether the ruling in Mecenas v. Court

of Appeals,[2] finding the crew members
of petitioner to be grossly negligent in the
performance of their duties, is binding in
this case;
(3) whether the total loss of the M/V Don

Juan extinguished petitioners liability; and
(4) whether the damages awarded by the

appellate
court
are
excessive,
unreasonable and unwarranted.
First. The trial court held that the fact that

the victims were passengers of the M/V
Don Juan was sufficiently proven by
private respondent Ramon Miranda, who
testified that he purchased tickets
numbered 74411, 74412, 74413, and
74414 at P131.30 each from the Makati
office of petitioner for Voyage No. 47-A of
the M/V Don Juan, which was leaving
Manila on April 22, 1980. This was
corroborated by the passenger manifest
(Exh. E) on which the numbers of the
tickets and the names of Ardita Miranda
and her children and Elfreda de la Victoria
appear.
Petitioner contends that the purchase of

the tickets does not necessarily mean that
the alleged victims actually took the trip.
Petitioner asserts that it is common
knowledge that passengers purchase
tickets in advance but do not actually use
them. Hence, private respondent should
also prove the presence of the victims on
the ship. The witnesses who affirmed that
the victims were on the ship were biased

and unreliable.
so because it was dark and there was a

stampede of passengers from the deck.
This contention is without merit. Private

respondent Ramon Miranda testified that
he personally took his family and his niece
to the vessel on the day of the voyage and
stayed with them on the ship until it was
time for it to leave. There is no reason he
should claim members of his family to
have perished in the accident just to
maintain an action. People do not normally
lie about so grave a matter as the loss of
dear ones. It would be more difficult for
private respondents to keep the existence
of their relatives if indeed they are alive
than it is for petitioner to show the
contrary. Petitioners only proof is that the
bodies of the supposed victims were not
among those recovered from the site of
the mishap. But so were the bodies of the
other passengers reported missing not
recovered, as this Court noted in the
Mecenas[3] case.
Petitioner casts doubt on Ramirez

testimony, claiming that Ramirez could not
have talked with the victims for about
three hours and not run out of stories to
tell, unless Ramirez had a storehouse of
stories. But what is incredible about
acquaintances thrown together on a long
journey staying together for hours on end,
in idle conversation precisely to while the
hours away?
Private respondent Mirandas testimony

was corroborated by Edgardo Ramirez.
Ramirez was a seminarian and one of the
survivors of the collision. He testified that
he saw Mrs. Miranda and Elfreda de la
Victoria on the ship and that he talked
with them. He knew Mrs. Miranda who was
his teacher in the grade school. He also
knew Elfreda who was his childhood friend
and townmate. Ramirez said he was with
Mrs. Miranda and her children and niece
from 7:00 p.m. until 10:00 p.m. when the
collision happened and that he in fact had
dinner with them. Ramirez said he and
Elfreda stayed on the deck after dinner
and it was there where they were jolted by
the
collision
of the
two vessels.
Recounting the moments after the
collision, Ramirez testified that Elfreda ran
to fetch Mrs. Miranda. He escorted her to
the room and then tried to go back to the
deck when the lights went out. He tried to
return to the cabin but was not able to do
Petitioner also points out that it took

Ramirez three (3) days before he finally
contacted private respondent Ramon
Miranda to tell him about the fate of his
family. But it is not improbable that it took
Ramirez three days before calling on
private respondent Miranda to tell him
about the last hours of Mrs. Miranda and
her children and niece, in view of the
confusion in the days following the
collision as rescue teams and relatives
searched for survivors.
Indeed, given the facts of this case, it is

improper for petitioner to even suggest
that private respondents relatives did not
board the ill-fated vessel and perish in the
accident simply because their bodies were
not recovered.
Second. In finding petitioner guilty of

negligence and in failing to exercise the
extraordinary diligence required of it in the
carriage of passengers, both the trial court
and the appellate court relied on the
findings of this Court in Mecenas v.
Intermediate Appellate Court,[4] which
case was brought for the death of other
passengers. In that case it was found that
although the proximate cause of the
mishap was the negligence of the crew of
the M/T Tacloban City, the crew of the Don
Juan was equally negligent as it found that

the
latters
master,
Capt.
Rogelio
Santisteban, was playing mahjong at the
time of collision, and the officer on watch,
Senior Third Mate Rogelio De Vera,
admitted that he failed to call the
attention of Santisteban to the imminent
danger facing them. This Court found that
Capt. Santisteban and the crew of the M/V
Don Juan failed to take steps to prevent
the collision or at least delay the sinking of
the ship and supervise the abandoning of
the ship.
Petitioner Negros Navigation was found

equally negligent in tolerating the playing
of mahjong by the ship captain and other
crew members while on board the ship
and failing to keep the M/V Don Juan
seaworthy so much so that the ship sank
within 10 to 15 minutes of its impact with
the M/T Tacloban City.
In addition, the Court found that the Don

Juan was overloaded. The Certificate of
Inspection, dated August 27, 1979, issued
by the Philippine Coast Guard Commander
at Iloilo City stated that the total number
of persons allowed on the ship was 864, of
whom 810 are passengers, but there were
actually 1,004 on board the vessel when it
sank, 140 persons more than the
maximum number that could be safely
carried by it.
Taking these circumstances together, and

the fact that the M/V Don Juan, as the
faster and better-equipped vessel, could
have avoided a collision with the PNOC
tanker, this Court held that even if the
Tacloban City had been at fault for failing
to observe an internationally-recognized
rule of navigation, the Don Juan was guilty
of
contributory
negligence.
Through
Justice Feliciano, this Court held:
The grossness of the negligence of the

Don Juan is underscored when one
considers the foregoing circumstances in
the context of the following facts: Firstly,
the Don Juan was more than twice as fast
as the Tacloban City. The Don Juans top
speed was 17 knots; while that of the
Tacloban City was 6.3. knots. Secondly,
the Don Juan carried the full complement
of officers and crew members specified for
a passenger vessel of her class. Thirdly,
the Don Juan was equipped with radar
which was functioning that night. Fourthly,
the Don Juans officer on-watch had
sighted the Tacloban City on his radar
screen while the latter was still four (4)
nautical miles away. Visual confirmation of
radar contact was established by the Don
Juan while the Tacloban City was still 2.7
miles away. In the total set of
circumstances which existed in the instant
case, the Don Juan, had it taken seriously
its duty of extraordinary diligence, could
have easily avoided the collision with the
Tacloban City. Indeed, the Don Juan might
well have avoided the collision even if it
had exercised ordinary diligence merely.
It is true that the Tacloban City failed to

follow Rule 18 of the International Rules of
the Road which requires two (2) powerdriven vessels meeting end on or nearly
end on each to alter her course to
starboard (right) so that each vessel may
pass on the port side (left) of the other.
The Tacloban City, when the two (2)
vessels were only three-tenths (0.3) of a
mile apart, turned (for the second time)
15o to port side while the Don Juan veered
hard to starboard. . . . [But] route
observance of the International Rules of
the Road will not relieve a vessel from
responsibility if the collision could have
been avoided by proper care and skill on
her part or even by a departure from the
rules.
In the petition at bar, the Don Juan having

sighted the Tacloban City when it was still
a long way off was negligent in failing to

take early preventive action and in
allowing the two (2) vessels to come to
such close quarters as to render the
collision inevitable when there was no
necessity for passing so near to the
Tacloban City as to create that hazard or
inevitability, for the Don Juan could choose
its own distance. It is noteworthy that the
Tacloban City, upon turning hard to port
shortly before the moment of collision,
signalled its intention to do so by giving
two (2) short blasts with its horn. The Don
Juan gave no answering horn blast to
signal its own intention and proceeded to
turn hard to starboard.
We conclude that Capt. Santisteban and

Negros Navigation are properly held liable
for gross negligence in connection with
the collision of the Don Juan and Tacloban
City and the sinking of the Don Juan
leading to the death of hundreds of
passengers. . . .[5]
Petitioner criticizes the lower courts

reliance on the Mecenas case, arguing
that, although this case arose out of the
same incident as that involved in
Mecenas, the parties are different and trial
was conducted separately. Petitioner
contends that the decision in this case
should be based on the allegations and
defenses pleaded and evidence adduced
in it or, in short, on the record of this case.
The contention is without merit. What

petitioner contends may be true with
respect to the merits of the individual
claims against petitioner but not as to the
cause of the sinking of its ship on April 22,
1980 and its liability for such accident, of
which there can only be one truth.
Otherwise, one would be subscribing to
the sophistry: truth on one side of the
Pyrenees, falsehood on the other!
Adherence to the Mecenas case is dictated

by this Courts policy of maintaining
stability in jurisprudence in accordance
with the legal maxim stare decisis et non
quieta movere (Follow past precedents
and do not disturb what has been settled.)
Where, as in this case, the same questions
relating to the same event have been put
forward by parties similarly situated as in
a previous case litigated and decided by a
competent court, the rule of stare decisis
is a bar to any attempt to relitigate the
same issue.[6] In Woulfe v. Associated
Realties Corporation,[7] the Supreme
Court of New Jersey held that where
substantially similar cases to the pending
case were presented and applicable
principles declared in prior decisions, the
court was bound by the principle of stare
decisis. Similarly, in State ex rel. Tollinger
v. Gill,[8] it was held that under the
doctrine of stare decisis a ruling is final
even as to parties who are strangers to
the original proceeding and not bound by
the judgment under the res judicata
doctrine. The Philadelphia court expressed
itself in this wise: Stare decisis simply
declares that, for the sake of certainty, a
conclusion reached in one case should be
applied to those which follow, if the facts
are substantially the same, even though
the parties may be different.[9] Thus, in J.
M. Tuason v. Mariano, supra, this Court
relied on its rulings in other cases
involving different parties in sustaining the
validity of a land title on the principle of
stare decisis et non quieta movere.
Indeed, the evidence presented in this

case was the same as those presented in
the Mecenas case, to wit:
Document Mecenas case This case
Decision of Commandant Exh. 10[10] Exh.

11-B-NN/X
Phil. Coast Guard in BMI Case
No. 415-80 dated 3/26/81

Decision of the Minister Exh. 11[11] Exh.
ZZ
of National Defense dated 3/12/82
Resolution on the motion Exh. 13[12] Exh.
AAA
for reconsideration
respondents)
of
the
(private
In Mecenas, this Court found petitioner

guilty of negligence in (1) allowing or
tolerating the ship captain and crew
members in playing mahjong during the
voyage, (2) in failing to maintain the
vessel seaworthy and (3) in allowing the
ship to carry more passengers than it was
allowed to carry. Petitioner is, therefore,
clearly liable for damages to the full
extent.
decision of the Minister of

National Defense dated 7/24/84
Certificate of inspection Exh. 1-A[13] Exh.
19-NN
dated 8/27/79
Certificate of Stability Exh. 6-A[14] Exh.
19-D-NN
dated 12/16/76
Nor is it true that the trial court merely

based its decision on the Mecenas case.
The trial court made its own independent
findings on the basis of the testimonies of
witnesses, such as Senior Third Mate
Rogelio de Vera, who incidentally gave
substantially the same testimony on
petitioners behalf before the Board of
Marine Inquiry. The trial court agreed with
the conclusions of the then Minister of
National Defense finding both vessels to
be negligent.
Third. The next issue is whether petitioner

is liable to pay damages notwithstanding
the total loss of its ship. The issue is not
one of first impression. The rule is wellentrenched in our jurisprudence that a
shipowner may be held liable for injuries
to
passengers
notwithstanding
the
exclusively real and hypothecary nature of
maritime law if fault can be attributed to
the shipowner.[15]
Fourth. Petitioner contends that, assuming

that the Mecenas case applies, private
respondents should be allowed to claim
only P43,857.14 each as moral damages
because in the Mecenas case, the amount
of P307,500.00 was awarded to the seven
children of the Mecenas couple. Under
petitioners formula,
Ramon Miranda
should receive P43,857.14, while the De la
Victoria
spouses
should
receive
P97,714.28.
Here is where the principle of stare decisis

does not apply in view of differences in the
personal circumstances of the victims. For
that matter, differentiation would be
justified even if private respondents had
joined the private respondents in the
Mecenas case. The doctrine of stare
decisis works as a bar only against issues
litigated in a previous case. Where the
issue involved was not raised nor
presented to the court and not passed
upon by the court in the previous case,
the decision in the previous case is not
stare decisis of the question presently
presented.[16] The decision in the
Mecenas case relates to damages for
which petitioner was liable to the
claimants in that case.
In the case at bar, the award of

P300,000.00 for moral damages is
reasonable considering the grief petitioner
Ramon Miranda suffered as a result of the
loss of his entire family. As a matter of
fact, three months after the collision, he

developed a heart condition undoubtedly
caused by the strain of the loss of his
family. The P100,000.00 given to Mr. and
Mrs. de la Victoria is likewise reasonable
and should be affirmed.
As for the amount of civil indemnity

awarded to private respondents, the
appellate courts award of P50,000.00 per
victim should be sustained. The amount of
P30,000.00 formerly set in De Lima v.
Laguna Tayabas Co.,[17] Heirs of Amparo
delos Santos v. Court of Appeals,[18] and
Philippine Rabbit Bus Lines, Inc. v.
Intermediate
Appellate Court[19] as
benchmark was subsequently increased to
P50,000.00 in the case of Sulpicio Lines,
Inc. v. Court of Appeals,[20] which
involved the sinking of another interisland
ship on October 24, 1988.
We now turn to the determination of the

earning capacity of the victims. With
respect to Ardita Miranda, the trial court
awarded damages computed as follows:
[21]
In the case of victim Ardita V. Miranda

whose age at the time of the accident was
48 years, her life expectancy was
computed to be 21.33 years, and
therefore, she could have lived up to
almost 70 years old. Her gross earnings
for 21.33 years based on P10,224.00 per
annum, would be P218,077.92. Deducting
therefrom 30% as her living expenses, her
net earnings would be P152,654.55, to
which plaintiff Ramon Miranda is entitled
to compensatory damages for the loss of
earning capacity of his wife. In considering
30% as the living expenses of Ardita
Miranda, the Court takes into account the
fact that plaintiff and his wife were
supporting their daughter and son who
were both college students taking
Medicine and Law respectively.
In accordance with the ruling in Villa-Rey

Transit, Inc. v. Court of Appeals,[22] we
think the life expectancy of Ardita Miranda
was correctly determined to be 21.33
years, or up to age 69. Petitioner
contends, however, that Mrs. Miranda
would have retired from her job as a public
school teacher at 65, hence her loss of
earning capacity should be reckoned up to
17.33 years only.
The accepted formula for determining life

expectancy is 2/3 multiplied by (80 minus
the age of the deceased). It may be that in
the Philippines the age of retirement
generally is 65 but, in calculating the life
expectancy of individuals for the purpose
of determining loss of earning capacity
under Art. 2206(1) of the Civil Code, it is
assumed that the deceased would have
earned income even after retirement from
a particular job. In this case, the trial court
took into account the fact that Mrs.
Miranda had a masters degree and a good
prospect of becoming principal of the
school in which she was teaching. There
was reason to believe that her income
would have increased through the years
and she could still earn more after her
retirement,
e.g.,
by
becoming
a
consultant, had she not died. The gross
earnings which Mrs. Miranda could
reasonably be expected to earn were it
not for her untimely death was, therefore,
correctly computed by the trial court to be
P218,077.92 (given a gross annual income
of P10,224.00 and life expectancy of 21.33
years).
Petitioner contends that from the amount

of gross earnings, 60% should be
deducted as necessary living expenses,
not merely 30% as the trial court allowed.
Petitioner contends that 30% is unrealistic,
considering that Mrs. Mirandas earnings
would have been subject to taxes, social
security deductions and inflation.
We agree with this contention. In Villa-Rey

Transit, Inc. v. Court of Appeals,[23] the
Court allowed a deduction of P1,184.00 for
living expenses from the P2,184.00 annual
salary of the victim, which is roughly
54.2% thereof. The deceased was 29 years
old and a training assistant in the
Bacnotan Cement Industries. In People v.
Quilaton,[24] the deceased was a 26-year
old laborer earning a daily wage. The court
allowed a deduction of P120,000.00 which
was 51.3% of his annual gross earnings of
P234,000.00. In People v. Teehankee,[25]
the court allowed a deduction of
P19,800.00, roughly 42.4% thereof from
the
deceaseds
annual
salary
of
P46,659.21. The deceased, Maureen
Hultman, was 17 years old and had just
received her first paycheck as a secretary.
In the case at bar, we hold that a
deduction of 50% from Mrs. Mirandas
gross earnings (P218,077.92) would be
reasonable, so that her net earning
capacity should be P109,038.96. There is
no basis for supposing that her living
expenses
constituted
a
smaller
percentage of her gross income than the
living expenses in the decided cases. To
hold that she would have used only a
small part of her income for herself, a
larger part going to the support of her
children would be conjectural and
unreasonable.
As for Elfreda de la Victoria, the trial court

found that, at the time of her death, she
was 26 years old, a teacher in a private
school in Malolos, Bulacan, earning
P6,192.00 per annum. Although a
probationary employee, she had already
been working in the school for two years
at the time of her death and she had a
general efficiency rating of 92.85% and it
can be presumed that, if not for her
untimely death, she would have become a
regular teacher. Hence, her loss of earning
capacity is P111,456.00, computed as
follows:
net earning capacity (x) = life expectancy

x [ gross annual income less reasonable &
necessary living expenses (50%) ]
x = [ 2 (80-26) ] x [P6,192.00 - P3,096.00]
= 36 x 3,096.00
= P111,456.00
On the other hand, the award of actual

damages in the amount of P23,075.00 was
determined by the Court of Appeals on the
basis of receipts submitted by private
respondents. This amount is reasonable
considering the expenses incurred by
private respondent Miranda in organizing
three search teams to look for his family,
spending for transportation in going to
places such as Batangas City and Iloilo,
where survivors and the bodies of other
victims were found, making long distance
calls, erecting a monument in honor of the
four victims, spending for obituaries in the
Bulletin Today and for food, masses and
novenas.
Petitioners contention that the expenses

for the erection of a monument and other
expenses for memorial services for the
victims should be considered included in
the indemnity for death awarded to
private respondents is without merit.
Indemnity
for
death
is
given
to
compensate for violation of the rights of
the deceased, i.e., his right to life and
physical integrity.[26] On the other hand,
damages incidental to or arising out of
such death are for pecuniary losses of the
beneficiaries of the deceased.
As for the award of attorneys fees, we

agree with the Court of Appeals that the
amount
of
P40,000.00
for
private
respondent
Ramon
Miranda
and
P15,000.00 for the de la Victoria spouses
is justified. The appellate court correctly
held:
The Mecenas case cannot be made the

basis for determining the award for
attorneys fees. The award would naturally
vary or differ in each case. While it is
admitted that plaintiff-appellee Ramon
Miranda who is himself a lawyer,
represented also plaintiffs-appellees Dela
Victoria spouses, we note that separate
testimonial evidence were adduced by
plaintiff-appellee Ramon Miranda (TSN,
February 26, 1982, p. 6) and plaintiffsappellees spouses Dela Victoria (TSN,
August 13, 1981, p. 43). Considering the
amount of work and effort put into the
case as indicated by the voluminous
transcripts of stenographic notes, we find
no reason to disturb the award of
P40,000.00 for plaintiff-appellee Ramon
Miranda and P15,000.00 for plaintiffsappellees Dela Victoria spouses.[27]
the law seeks to compel them to control

their employees, to tame their reckless
instincts and to force them to take
adequate care of human beings and their
property. The Court will take judicial notice
of the dreadful regularity with which
grievous maritime disasters occur in our
waters with massive loss of life. The bulk
of our population is too poor to afford
domestic air transportation. So it is that
notwithstanding the frequent sinking of
passenger vessels in our waters, crowds of
people continue to travel by sea. This
Court is prepared to use the instruments
given to it by the law for securing the ends
of law and public policy. One of those
instruments is the institution of exemplary
damages; one of those ends, of special
importance in an archipelagic state like
the Philippines, is the safe and reliable
carriage of people and goods by sea.[28]
WHEREFORE, the decision of the Court of

Appeals is AFFIRMED with modification
and petitioner is ORDERED to pay private
respondents damages as follows:
To private respondent Ramon Miranda:
The award of exemplary damages should

be increased to P300,000.00 for Ramon
Miranda and P100,000.00 for the de la
Victoria spouses in accordance with our
ruling in the Mecenas case:
Exemplary damages are designed by our

civil law to permit the courts to reshape
behaviour that is socially deleterious in its
consequence
by
creating
negative
incentives or deterrents against such
behaviour. In requiring compliance with
the standard of extraordinary diligence, a
standard which is in fact that of the
highest possible degree of diligence, from
common carriers and in creating a
presumption of negligence against them,

for wrongful death of three (3) victims;

for loss of earning capacity of his wife;

To private respondents Spouses Ricardo

and Virginia de la Victoria:

for loss of earning capacity;

wrongful death;

Petitioners are further ordered to pay

costs of suit.
In the event the Philippine National Oil

Company and/or the PNOC Shipping and
Transport Corporation pay or are required
to pay all or a portion of the amounts
adjudged, petitioner Negros Navigation
Co., Inc. shall reimburse either of them
such amount or amounts as either may
have paid, and in the event of failure of
Negros Navigation Co., Inc., to make the
necessary reimbursement, PNOC and/or
PNOC/STC shall be entitled to a writ of
execution without need of filing another
action.
SO ORDERED.
XXXXXXXXXX
LAW OF THE CASE
[G.R. No. 141600. September 12, 2003]
ROBERTO FULGENCIO, ROLANDO A. LAYA,

SR., SUSANO A. ATIENZA, CARLITO S. DE
GUZMAN, HERMAN DELIMA, EDGARDO H.
REYES, RAMIL HERNANDEZ, WILFREDO Y.
BRUN, ROMULO C. MAGPILI, GERARDO S.
DE
GUZMAN,
JORGE
CIPRIANO,
CRISOSTOMO
D.
DOROMPILI,
JAIME
CALIPAYAN (deceased), and ANGELITO
REALINGO, petitioners, vs. NATIONAL
LABOR RELATIONS COMMISSION (FIRST
DIVISION) and RAYCOR AIRCONTROL
SYSTEMS, INC., respondents.
DECISION
CALLEJO, SR., J.:

filed under Rule 45 of the 1997 Rules of
Civil Procedure, assailing the September
10, 1999 Resolution of the Court of
Appeals (CA) in CA-G.R. SP No. 54641
which dismissed outright the petitioners
petition for certiorari for alleged failure to
comply with the formal requirements of
the rules, and its January 18, 2000
Resolution denying the petitioners motion
for reconsideration.
As culled from the records, the petition at

bar stemmed from the following factual
antecedents:
The private respondent Raycor Aircontrol

Systems, Inc. was engaged in the
installation of airconditioning systems in
the buildings of its clients. In connection
with such installation work, the herein
petitioners were among those hired by the
private respondent to work in various
capacities, such as tinsmith, leadsman,
aircon mechanic, installer, welder and

painter.
On different dates in 1992, the private

respondent served the petitioners with
uniformly worded notices of termination of
employment. As a result, the petitioners
joined other employees in filing three
separate cases of illegal dismissal against
the private respondent, docketed as NLRCNCR Nos. 00-03-01930-92, 00-05-0278992 and 00-07-03699-92. The proceedings
in all the cases were subsequently
consolidated.
On January 22, 1993, the Labor Arbiter

rendered
judgment
dismissing
the
complaints for lack of merit.[1] On appeal,
the National Labor Relations Commission
(NLRC) reversed the labor arbiters findings
and ruled as follows:
WHEREFORE, the appealed Decision is

hereby SET ASIDE and a new one entered
ordering respondent to:
1. Immediately reinstate complainants to

their former positions without loss of
seniority rights and privileges; and
2. Pay them full backwages from the time

they were dismissed up to the time they
are actually reinstated.[2]
WHEREFORE, the foregoing considered,

the assailed Decision is hereby SET ASIDE
and a new one rendered holding that
petitioner has failed to discharge its
burden of proof in the instant case and
therefore ORDERING the reinstatement of
private respondents as regular employees
of petitioner, without loss of seniority
rights and privileges and with payment of
backwages from the day they were
dismissed up to the time they are actually
reinstated. No costs.
SO ORDERED.
The judgment of the court became final

and executory on November 18, 1996.[5]
The private respondent filed a motion for
clarification claiming that it had offered
reinstatement to the petitioners on July
13, 1992 but that the latter spurned its
offer. The Court denied the said motion.
The case was remanded to the NLRC for
implementation. In due course, the
Research and Information Unit of the NLRC
computed the benefits due the petitioners
and submitted an updated computation on
April 15, 1997, viz:
RE: UPDATED COMPUTATION OF AWARD

AS PER NLRC DECISION DATED NOV. 29,
1993[6]
Backwages Additional
Name (as of 4/30/96) Backwages TOTAL
The private respondents motion for

reconsideration having been denied by the
NLRC, the private respondent filed a
petition for certiorari[3] assailing the
above-quoted decision with the Supreme
Court which rendered judgment on
September 9, 1996,[4] the decretal
1.
Rolando
Laya,
Sr.
P54,232.10 P233,906.70
P179,674.60
2. Romulo Magpili 180,637.60 54,232.10

234,869.16
3. Wilfredo Brun 179,474.62 54,232.10

233,706.72
15. Florencio Espina 191,761.77 54,232.10

245,993.87
4. Ramil Hernandez 179,474.62 54,232.10

233,706.72
TOTAL
AWARD
3,600,607.69
5. Eduardo Reyes 179,474.62 54,232.10

233,706.72
Computation of Additional Backwages
(as
of
4/15/97)
5/1/96 2/5/97 = 9.16 mos.

6. Crisostomo Dorompili
54,232.10 233,706.72
179,474.62
P165 x 26 days x 9.16 mos. = P39,296.40

2/6/97 4/15/97 = 2.30 mos.
7. Herman Delima 174,489.12 54,232.10

228,721.22
8. Angelito Realizo 191,672.48 54,232.10

245,904.58
P180 x 26 days x 2.30 mos. = 10,764.00

P50,060.40
13th Mo.
4,171.70
Pay
(1/12
of
P50,060.40)
Total P54,232.10
9.
Roberto
Fulgencio
54,232.10 245,904.58
191,672.48
10. Susano Atienza 191,672.48 54,232.10

245,904.58
11. Jorge Cipriano 191,672.48 54,232.10

245,904.58
12. Gerardo de Guzman

54,232.10 245,904.58
191,672.48
13. Jaime Calipayan 191,672.48 54,232.10

245,904.58
14. Gerardo de Guzman

54,232.10 246,862.38
192,630.28
=========
The
Labor
Arbiter
approved
the
computation in an Order dated August 15,
1997.[7]
Meanwhile, on motion of the petitioners, a

writ of execution[8] was issued by the
Labor Arbiter on January 28, 1998,
directing the sheriff of the NLRC, as
follows:
NOW THEREFORE, you are hereby

commanded to accompany complainants
Rolando Laya Sr., Romulo Magpili, Wilfredo
Brun, Ramil Hernandez, Eduardo Reyes,
Crisostomo Dorompili, Hernan Delima,
Angelito Ralizo, Roberto Fulgencio, Susano
Atienza, Jorge Cipriano, Gerardo de
Guzman, Jaime Calipay, Carlito de Guzman
and Florencio Espino to the premises of
respondent located at Room 306, 20th

Century Building, Mandaluyong City, for
the purpose of reinstating them to their
former position and collect from said
respondent the amount of P3,960,668.45
corresponding to complainants backwages
and attorneys lien. If you fail to collect
sufficient amount in cash, you are further
commanded to satisfy the award from the
movable and immovable properties of
respondent not exempt from execution
and deposit the amount you have with the
Cashier of this Office. You may also collect
your execution fees in the amount of
P4,450.60 pursuant to Section 5, Rule IX of
the Manual of Instructions for Sheriffs and
likewise to turnover the same to the
Cashier or authorized Disbursing Officer of
this Office. You shall return this writ within
fifteen (15) days from receipt hereof with
the proceedings endorsed thereon.[9]
Pursuant to the above writ, the sheriff on

February 10, 1998 garnished the funds of
the private respondent amounting to
P3,960,668.45
which
was
in
the
possession of Intel Technology Philippines,
Inc.[10]
The
same
amount
was
subsequently remitted by Intel to the
Cashier of the NLRC on March 19, 1998.
[11]
On February 13, 1998, the private

respondent appealed the January 27, 1998
Order of the Labor Arbiter to the NLRC
which rendered judgment on June 16,
1998, to wit:
We therefore sum up our ruling as follows:
a) The backwages of the complainant will

not be reduced by their salaries obtained
elsewhere during the period of their
dismissal until the offer of reinstatement
was made.
b) The computation of backwages stopped

on July 13, 1992, when the return-to-work
[order] was made by the respondent but
was refused by the complainants.
c) The backwages should be based on the

complainants wage rate in 1992.
d) The complainants are awarded 13th

Month Pay.
...
WHEREFORE, the appeal is hereby

GRANTED but the petition for preliminary
injunction is DENIED for being moot and
academic. The Cashier is hereby ordered
to release the amount of TWO HUNDRED
TWO THOUSAND THIRTY PESOS AND
TWENTY-NINE CENTAVOS (P202,030.29)
for
distribution
to
the
individual
complainants in accordance with the
above computation and to remit the
balance of the garnished and deposited
amount to the respondent.[12]
The petitioners filed a motion for the

reconsideration of the above-quoted
decision, contending that by computing
the backwages of the petitioners up to July
13, 1992 only, the NLRC modified the
already final and executory decision of the
Supreme Court. The NLRC issued an Order
dated May 11, 1999 denying the said
motion.[13] On August 31, 1999, the
petitioners filed a petition for certiorari
with a prayer for the issuance of a writ of
preliminary injunction[14] with the CA
which outrightly dismissed the petition in
a Resolution dated September 10, 1999,
[15] which reads:
Section 3, Rule 46 as amended by the

Supreme Court in Bar Matter No. 803
which took effect on September 1, 1998
provides that In actions filed under Rule
65, the petition shall further indicate the
material dates showing when notice of the
judgment or final order or resolution
subject thereof was received, when a
motion for new trial or reconsideration, if
any, was filed and when notice of the
denial thereof was received. The petition
has no such statement of material dates,
violating the aforecited rule and is a
sufficient ground for the dismissal thereof.
Also, We note that the petitioners have

failed to include in their petition the
required explanation on why personal
service upon the respondents was not
resorted to pursuant to Sec. 11, Rule 13 of
the 1997 Rules of Civil Procedure, as
amended. Strict compliance with this rule
is mandated. (Solar Team Entertainment,
Inc. vs. Hon. Helen Bautista-Ricafort, et al.,
G.R. No. 132007, August 5, 1998).
Petition is hereby DISMISSED outright.[16]
The petitioners instituted the present

recourse, assigning to the CA the following
errors:
THE HONORABLE COURT OF APPEALS

ERRED IN DISMISSING OUTRIGHT THE
PETITION FOR CERTIORARI WITH WRIT OF
PRELIMINARY
INJUNCTION
ON
THE
ALLEGED GROUND THAT THE SAID
PETITION HAS NO SUCH STATEMENT OF
MATERIAL DATES, IN VIOLATION OF RULE
65.

ERRED IN STRICTLY ADHERING TO
TECHNICALITIES,
RATHER
THAN
IN
SUBSTANTIAL
COMPLIANCE,
IN
THE
APPLICATION OF THE PROVISIONS OF THE
RULES OF COURT.[17]
We find the petition meritorious.
It appears that the petitioners failed to

indicate in their petition with the CA the
dates showing when they received notice
of the NLRCs June 16, 1998 Decision, and
the date when they filed a motion for
reconsideration therefrom, in violation of
Section 3, Rule 46 of the Revised Rules of
Court, as amended.[18] Petitioners also
failed to include in their petition the
required explanation under Section 11,
Rule 13 of the same Rules[19] as to why
personal service upon the respondents
was not resorted to. The petitioners,
however,
submit
that
they
raised
meritorious arguments in their petition;
hence, the dismissal thereof by the CA on
a mere technicality would cause a
miscarriage of justice. The petitioners,
therefore,
invoke
considerations
of
substantial justice for this Court to give
their petition due course and pray that the
questioned resolutions be set aside.
For its part, the private respondent asserts

that the CA did not commit any reversible
error in dismissing the petition in CA-G.R.
SP No. 51288 for it simply applied the
express and categorical mandate of the
Rules. The private respondent argues that
while it is true that the Rules of Court
should be liberally construed, it is also
equally true that the Rules cannot be
ignored since strict observance thereof is
indispensable to the orderly and speedy
discharge of judicial business.
II
We agree that for the petitioners failure to

comply with Section 3, Rule 46 and
Section 11, Rule 13 of the Revised Rules of
Court, as amended, the petition should be
dismissed, pursuant to the last paragraph
of Section 3 of Rule 46 of the Rules. In the
case of Solar Team Entertainment, Inc. v.
Ricafort,[20]
cited
in
the
assailed
September 10, 1999 Resolution of the CA,
we indeed underscored the mandatory
character of Section 11 of Rule 13, thus:
We thus take this opportunity to clarify

that under Section 11, Rule 13 of the 1997
Rules of Civil Procedure, personal service
and filing is the general rule, and resort to
other modes of service and filing, the
exception. Henceforth, whenever personal
service or filing is practicable, in light of
the circumstances of time, place and
person, personal service or filing is
mandatory. Only when personal service or
filing is not practicable may resort to other
modes be had, which must then be
accompanied by a written explanation as
to why personal service or filing was not
practicable to begin with. In adjudging the
plausibility of an explanation, a court shall
likewise consider the importance of the
subject matter of the case or the issues
involved therein, and the prima facie merit
of the pleading sought to be expunged for
violation of Section 11. This Court cannot
rule
otherwise,
lest
we
allow
circumvention
of
the
innovation
introduced by the 1997 Rules in order to
obviate delay in the administration of
justice.
Nonetheless, we resolve to give due

course to the petition to avert a
miscarriage of justice. For judicial cases do
not come and go through the portals of a
court of law by the mere mandate of
technicalities. Where a rigid application of
the rules will result in a manifest failure or
miscarriage
of
justice,
technicalities
should be disregarded in order to resolve
the case.[21] In Aguam v. CA,[22] we ruled

that:
The court has the discretion to dismiss or

not to dismiss an appellant's appeal. It is a
power conferred on the court, not a duty.
The "discretion must be a sound one, to
be exercised in accordance with the tenets
of justice and fair play, having in mind the
circumstances obtaining in each case."
Technicalities, however, must be avoided.
The law abhors technicalities that impede
the cause of justice. The court's primary
duty is to render or dispense justice. "A
litigation is not a game of technicalities."
"Lawsuits unlike duels are not to be won
by a rapier's thrust. Technicality, when it
deserts its proper office as an aid to
justice and becomes its great hindrance
and
chief
enemy,
deserves
scant
consideration from courts." Litigations
must be decided on their merits and not
on technicality. Every party litigant must
be afforded the amplest opportunity for
the proper and just determination of his
cause, free from the unacceptable plea of
technicalities. Thus, dismissal of appeals
purely on technical grounds is frowned
upon where the policy of the court is to
encourage hearings of appeals on their
merits and the rules of procedure ought
not to be applied in a very rigid, technical
sense; rules of procedure are used only to
help secure, not override substantial
justice. It is a far better and more prudent
course of action for the court to excuse a
technical lapse and afford the parties a
review of the case on appeal to attain the
ends of justice rather than dispose of the
case on technicality and cause a grave
injustice to the parties, giving a false
impression of speedy disposal of cases
while actually resulting in more delay, if
not a miscarriage of justice.[23]
The rules of procedure are merely tools

designed to facilitate the attainment of
justice.
They
were
conceived
and
promulgated to effectively aid the court in
the dispensation of justice. Courts are not

slaves to or robots of technical rules,
shorn of judicial discretion. In rendering
justice, courts have always been, as they
ought to be, conscientiously guided by the
norm that on the balance, technicalities
take a backseat against substantive rights,
and not the other way around. Thus, if the
application of the Rules would tend to
frustrate rather than promote justice, it is
always within our power to suspend the
rules, or except a particular case from its
operation.[24]
In this case, the Court finds compelling

reasons to disregard the petitioners
procedural lapses in order to obviate a
patent injustice. And to avert further
delay, we have also opted to resolve the
petition on its merits rather than remand
the case to the appellate court, a remand
not being necessary where, as in the
instant case, the ends of justice would not
be subserved thereby and we are in a
position to resolve the dispute based on
the records before us.[25]
We are convinced beyond cavil that the

NLRC committed a grave abuse of its
discretion amounting to lack or excess of
jurisdiction in reversing the order of the
Labor Arbiter, for in so doing, the NLRC
modified the decision of this Court in
Raycor Aircontrol Systems, Inc. v. NLRC.
[26]
It bears stressing that in our decision in

G.R. No. 114290, we specifically enjoined
the petitioners reinstatement coupled with
the payment of backwages, from the time
of their dismissal up to the time of their
actual reinstatement. However, the NLRC,
in its assailed June 16, 1998 Decision,
directed the payment of the petitioners
backwages from the time of dismissal up
to July 13, 1992, thus sustaining the claim
of the private respondent that when the
petitioners were directed to return to work

on the said date, they refused. In so doing,
the NLRC sought to enforce the final
judgment in G.R. No. 114290 in a manner
contrary to the explicit terms thereof. We
cannot and should not countenance such
a travesty. Thus, in Solidbank Corporation
v. Court of Appeals,[27] we held that:
It is a settled general principle that a writ

of execution must conform substantially to
every essential particular of the judgment
promulgated. Execution not in harmony
with the judgment is bereft of validity. It
must conform, more particularly, to that
ordained or decreed in the dispositive
portion of the decision.
Corollary thereto, it must be stressed that

a judgment which has acquired finality
becomes immutable and unalterable, and
hence may no longer be modified in any
respect except only to correct clerical
errors or mistakes all the issues between
the parties being deemed resolved and
laid to rest. This is meant to preserve the
stability of decisions rendered by the
courts, and to dissuade parties from
trifling with court processes. One who has
submitted his case to a regular court
necessarily commits himself to abide by
whatever decision the court may render.
Any error in the decision which has not
been considered in a timely motion for
reconsideration or appeal cannot be
impugned when such error becomes
apparent only during execution.
We note that in its Decision dated June 16,

1998, the NLRC reversed the Labor
Arbiters dismissal of the case and directed
the payment of backwages, to be
reckoned from the time of the petitioners
dismissal up to the time of their actual
reinstatement.[28]
If
the
private
respondent
believed
the
aforesaid
computation to be erroneous in the light of
the
factual
circumstances
obtaining
between the parties, it should have
assigned the same as an error when it
filed its petition for certiorari in G.R. No.
114290 assailing the said NLRC judgment.
The private respondent did not do so.
Although the private respondent filed a
motion for clarification of the decision of
this Court in the said case, the said motion
was, however, denied by this Court in its
Resolution dated October 15, 1997[29]
considering that entry of judgment had
already been made.
It is, therefore, crystal-clear that the

manner of the computation of the
petitioners backwages is an issue which
was already resolved by this Court in its
decision in G.R. No. 114290 which had
long acquired finality. Hence, the Courts
decision in G.R. No. 114290, which
directed the payment of the petitioners
backwages from the time they were
dismissed up to the time they are actually
reinstated, has become the law of the
case which now binds the NLRC and the
private respondent. The law of the case
doctrine has been defined as a term
applied to an established rule that when
an appellate court passes on a question
and remands the case to the lower court
for further proceedings, the question there
settled becomes the law of the case upon
subsequent
appeal.[30]
The
private
respondent, therefore, on appeal to the
NLRC in the course of the execution
proceedings in the case, is barred from
challenging anew the issue of the manner
in which the petitioners backwages should
be computed. Corollarily, the NLRC can no
longer modify the ruling of the Court on
the matter. Judgment of courts should
attain finality at some point in time, as in
this case, otherwise, there would be no
end to litigation. In Hufana v. Genato,[31]
we held that:
It is well established that when a right or

fact has been judicially tried and
determined by a court of competent

jurisdiction, so long as it remains
unreversed, it should be conclusive upon
the parties and those in privity with them.
The dictum therein laid down became the
law of the case and what was once
irrevocably established as the controlling
legal rule or decision, continues to be
binding between the same parties as long
as the facts on which the decision was
predicated, continue to be the facts of the
case before the court. Hence, the binding
effect and enforceability of that dictum
can no longer be relitigated anew since
said issue had already been resolved and
finally laid to rest in that aforementioned
case (Miranda v. CA, 141 SCRA 306
[1986]), if not by the principle of res
judicata, but at least by conclusiveness of
judgment (Vda. de Sta. Romana v. PCIB
118 SCRA 335 [1982]).
IN LIGHT OF ALL THE FOREGOING, the

petition is GRANTED. The Decision of the
NLRC dated June 16, 1998 is SET ASIDE.
The Order of the Labor Arbiter dated
August 15, 1997 is AFFIRMED.
SO ORDERED.
XXXXXXXXXX
OBITER DICTUM
[G.R. No. 142947. March 19, 2002]
FRANCISCO N. VILLANUEVA, JR., petitioner,

vs. THE HON. COURT OF APPEALS and
ROQUE VILLADORES, respondents.
DECISION
DE LEON, JR., J.:

certiorari of the Decision[1] of the Court of
Appeals dated April 12, 2000 in CA-G.R. SP
No. 50235 reversing the two (2) Orders

dated August 27, 1998[2] and December
4, 1998[3] of the Regional Trial Court of
Manila, Branch 41, in Criminal Cases Nos.
94-138744-45 which denied respondent
Roque
Villadoress
motion
for
disqualification of Rico and Associates as
private prosecutor for petitioner Francisco
N. Villanueva, Jr., and the motion for
reconsideration thereof, respectively.
Respondent Villadores is one of the

accused in the amended informations in
Criminal Cases Nos. 94-138744 and 94138745 entitled, People of the Philippines
v. Atty. Tomas Bernardo, Roque Villadores,
Alberto Adriano and Rolando Advincula, for
Falsification of Public Document before the
Regional Trial Court of Manila, Branch 41.
It appears that petitioner Villanueva, Jr.

filed a complaint for illegal dismissal
against several parties, among them, IBC
13. When the labor arbiter[4] ruled in
favor of petitioner Villanueva, Jr., IBC 13
appealed to the National Labor Relations
Commission (NLRC).[5] As an appeal bond,
IBC 13 filed Surety Bond No. G (16) 00136
issued by BF General Insurance Company,
Inc. (BF) with the Confirmation Letter
dated September 20, 1993 supposedly
issued by BFs Vice-President. However,
both documents were subsequently found
to be falsified.
Thus, the two (2) complaints for

falsification of public document were filed
before the Manila City Prosecutors Office.
The charges against respondent Villadores
and Atty. Eulalio Diaz III were dismissed by
the
City
Prosecutors Office
which,
however, found probable cause against
the other respondents. Nonetheless, on a
petition for review before the Department
of Justice (DOJ), the latter affirmed the
dismissal against Diaz but ordered the
inclusion of respondent Villadores as an
accused in the two (2) criminal cases.

Accordingly, the original informations were
amended to include respondent Villadores
among those charged.
Following the arraignment of respondent

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

and the amended informations were
admitted in an Order dated October 10,
1997. Respondent Villadores subsequently
filed a Manifestation and/or Motion for
Reconsideration but the same was denied
in an Order dated October 24, 1997.
Thus, respondent Villadores interposed on

November 26, 1997 a petition for
certiorari with the Court of Appeals. Said
petition, which was docketed as CA-G.R.
SP No. 46103, sought to annul the Order
of the trial court dated October 10, 1997
which admitted the second amended
informations, as well as the Order dated
October 24, 1997 denying his motion for
reconsideration thereof.[6]
In a Decision dated June 22, 1998, the

appellate court, acting thru its Eleventh
Division, found that the trial court
committed no grave abuse of discretion in
admitting the amended informations and
dismissed the petition of respondent

Villadores.[7] The decision in CA-G.R. SP
No. 46103 became final and executory on
July 18, 1998.[8]
Subsequently, before Branch 41 of the

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

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

on the ground that the above-quoted
pronouncement of the appellate court is a
mere obiter dictum.[11]
In an Order[12] dated August 27, 1998 the

trial court denied the motion for
disqualification ratiocinating, thus:
A reading of the aforecited decision of the

Court of Appeals clearly shows that the
aforecited reason for the motion is a mere

obiter dictum. As held by the Supreme
Court, an obiter dictum lacks force of
adjudication. It is merely an expression of
an opinion with no binding force for
purposes of res judicata (City of Manila vs.
Entote, June 28, 1974, 57 SCRA, 508-509).
What is controlling is the dispositive
portion of the subject decision of the Court
of Appeals which denied due course and
ordered dismissed the petition of the
movant questioning the Order of this
Court granting the Motion to Admit
Informations and admitting the Amended
Informations that include the name of
Francisco N. Villanueva, Jr. as the private
offended party, which in effect upheld
and/or affirmed the questioned Order of
this Court admitting the amended
informations.
Reconsideration[13]
was
sought
by
respondent Villadores but the same was
denied by the trial court in its Order dated
December 4, 1998.[14]
Thus, on January 7, 1999, respondent

Villadores filed a petition for certiorari with
the Court of Appeals, docketed therein as
CA-G.R. SP No. 50235, seeking the
annulment of the trial courts Order dated
August 27, 1998 denying the Motion for
Disqualification as well as its subsequent
Order dated December 4, 1998 denying
reconsideration.[15]
On April 12, 2000, the appellate court

rendered its now challenged decision
which reversed and set aside the two (2)
Orders of the trial court dated August 27,
1998 and December 4, 1998. The
appellate court directed that the name of
petitioner Villanueva, Jr., appearing as the
offended party in Criminal Cases Nos. 94138744-45 be stricken out from the
records.[16]
Hence, this petition anchored on the

following grounds:[17]
THE HON. COURT OF APPEALS SERIOUSLY

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

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

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

ERRED IN FAILING TO APPRECIATE THAT
FRANCISCO N. VILLANUEVA, JR., WAS IN
FACT AN AGGRIEVED PARTY.

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

issue
of
whether
or
not
the
pronouncement of the appellate court in
CA-G.R. SP No. 46103 to the effect that
petitioner Villanueva, Jr. is not an offended
party in Criminal Cases Nos. 94-138744-45
is obiter dictum.
An obiter dictum has been defined as an

opinion expressed by a court upon some
question of law which is not necessary to
the decision of the case before it. It is a
remark made, or opinion expressed, by a
judge, in his decision upon a cause, by the
way, that is, incidentally or collaterally,
and not directly upon the question before
him, or upon a point not necessarily
involved in the determination of the
cause, or introduced by way of illustration,
or analogy or argument. Such are not
binding as precedent.[18]
Based
on
the
foregoing,
the
pronouncement of the appellate court in
CA-G.R. SP No. 46103 is not an obiter
dictum as it touched upon a matter clearly
raised by respondent Villadores in his
petition assailing the admission of the
Amended Informations. Among the issues
upon which the petition for certiorari in
CA-G.R. SP No. 46103 was anchored, was
whether Francisco N. Villanueva, Jr. is the
offended party.[19] Argument on whether
petitioner Villanueva, Jr. was the offended
party was, thus, clearly raised by
respondent Villadores. The body of the
decision contains discussion on that point
and it clearly mentioned certain principles
of law.
It has been held that an adjudication on

any point within the issues presented by
the case cannot be considered as obiter
dictum, and this rule applies to all
pertinent
questions,
although
only
incidentally involved, which are presented
and decided in the regular course of the
consideration of the case, and led up to
the final conclusion, and to any statement
as to matter on which the decision is
predicated. Accordingly, a point expressly
decided does not lose its value as a
precedent because the disposition of the
case is, or might have been, made on
some other ground, or even though, by
reason of other points in the case, the
result reached might have been the same
if the court had held, on the particular
point, otherwise than it did. A decision
which the case could have turned on is not
regarded
as
obiter
dictum
merely
because, owing to the disposal of the
contention, it was necessary to consider
another question, nor can an additional
reason in a decision, brought forward after
the case has been disposed of on one
ground, be regarded as dicta. So, also,
where a case presents two (2) or more
points, any one of which is sufficient to
determine the ultimate issue, but the
court actually decides all such points, the
case as an authoritative precedent as to
every point decided, and none of such
points can be regarded as having the
status of a dictum, and one point should
not be denied authority merely because
another point was more dwelt on and
more fully argued and considered, nor
does a decision on one proposition make
statements of the court regarding other
propositions dicta.[20]
The decision of the appellate court in CAG.R. SP No. 46103 allegedly show a
conflict between the pronouncements in
the body of the decision and the
dispositive portion thereof. However, when
that decision is carefully and thoroughly
read, such conflict is revealed to be more
illusory than real. In denying the petition
for certiorari in CA-G.R. SP No. 46103, the

appellate court had this to say:
At the centerfold of this controversy is

Section 14 of Rule 110, 1st paragraph,
which is quoted hereunder:
SEC. 14. Amendment. - The information or

complaint may be amended, in substance
or form, without leave of court, at any
time before the accused pleads, and
thereafter and during the trial as to all
matters of form, by leave and at the
discretion of the court, when the same can
be done without prejudice to the rights of
the accused.
Needless to state, amendment of a

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

primary consideration is whether the
intended amendment is only as to matter
of form and same could be done without
prejudice to the rights of the accused.
Substantial amendment as a consequence
is proscribed. In essence, substantial
matters in the complaint or information is
the recital of facts constituting the offense
charged
and determinative
of
the
jurisdiction of the court. All other matters

are merely of form [Almeda vs. Villaluz, 66
SCRA 38 (1975); Teehankee vs. Madayag,
supra].
In other words, even if the amendment is

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

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

fact that the crime charged in the two
informations is falsification of public
document committed by a private
individual defined and penalized under

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

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

petitioner when it argued that Francisco N.
Villanueva, Jr. is not the offended party in
these cases. It must be underscored that it
was IBC 13 who secured the falsified
surety bond for the purpose of the appeal
it had taken from an adverse judgment of
the labor case filed by Francisco N.

Villanueva, Jr. himself and wherein the
latter prevailed. We see no reason how
Villanueva could have sustained damages
as a result of the falsification of the surety
appeal bond and its confirmation letter
when it could have even redounded to his
own benefit if the appeal would be
dismissed as a result of the forgery. If
there be anyone who was prejudiced, it
was IBC 13 when it purchased a fake
surety bond.[21]
Clearly then, while the appellate court in

CA-G.R. SP No. 46103 admitted that the
addition of petitioner Villanueva, Jr. as an
offended party is not necessary, it held
that the admission of the amended
informations due to the amendment to
include petitioner Villanueva, Jr. did not by
itself amount to grave abuse of discretion
amounting to lack or excess of jurisdiction.
Otherwise stated, there is an error of
judgment but such did not amount to an
error of jurisdiction.
The special civil action for certiorari, which

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

intervention of petitioner Villanueva, Jr. in
the criminal cases as an offended party is
apparently
predicated[23]
on
the
reduction by the NLRC, in IBCs appeal of
the illegal dismissal case, of the monetary
award to which he is entitled, despite
finding the appeal as not perfected due to
the posting of the spurious appeal bond.
[24] However, such alleged error should
have
been
brought
by
petitioner
Villanueva, Jr. to the appropriate forum,
[25] and not raised in criminal cases
before the trial court as a ground for his
inclusion as a prejudiced party.
In view of all the foregoing, the instant

petition, being devoid of merit, must fail.
WHEREFORE, the instant petition is hereby

DENIED, and the Decision of the Court of
Appeals dated April 12, 2000 in CA-G.R. SP
No. 50235 is AFFIRMED. No costs.
SO ORDERED.
XXXXXXXXXX
[G.R. No. 146486. March 4, 2005]
OFFICE OF THE OMBUDSMAN, petitioner,

vs. HONORABLE COURT OF APPEALS AND
FORMER DEPUTY OMBUDSMAN FOR THE
VISAYAS ARTURO C. MOJICA, respondents.
DECISION
CHICO-NAZARIO, J.:

Procedure, and alternatively, an original
special civil action for certiorari under Sec.
1, Rule 65 of the Decision[1] of the Court
of Appeals of 18 December 2000 in CA-
G.R. SP No. 58460 entitled, Arturo C.

Mojica, Deputy Ombudsman for the
Visayas v. Ombudsman Aniano Desierto,
Over-all Deputy Ombudsman Margarito
Gervacio, Jr. and the Committee of Peers
composed of Deputy Ombudsman Jesus F.
Guerrero, Deputy Ombudsman Rolando
Casimiro and Special Prosecutor Leonardo
P. Tamayo.
The case had its inception on 29

December 1999, when twenty-two officials
and employees of the Office of the Deputy
Ombudsman (OMB) for the Visayas, led by
its
two
directors,
filed
a
formal
complaint[2] with the Office of the
Ombudsman requesting an investigation
on the basis of allegations that then
Deputy Ombudsman for the Visayas,
herein private respondent Arturo Mojica,
committed the following:
1.
Sexual harassment against Rayvi
Padua-Varona;
2.
Mulcting money from confidential
employees James Alueta and Eden
Kiamco; and
3.
Oppression against all employees in
not releasing the P7,200.00 benefits of
OMB-Visayas employees on the date the
said amount was due for release.
The complainants further requested that

an officer-in-charge from the OMB-Manila
be appointed to manage their office to
prevent the Deputy Ombudsman from
harassing witnesses and wielding his
influence over them. To underscore the
seriousness of their intentions, they
threatened to go on a mass leave of
absence, and in fact took their cause to
the media.[3]
The subsequent events, as stated by the

Ombudsman and adopted by the Court of
Appeals,[4] are as follows:
The Ombudsman immediately proceeded

to the OMB-Visayas office in Cebu City to
personally deal with the office rebellion.
Reaching Cebu, the Ombudsman was
informed by Petitioner that Petitioner
wanted to proceed to Manila, apparently
because of his alienation and the fear for
reprisal from his alleged lady victims
husbands. Petitioner in fact already had a
ticket for the plane leaving two hours later
that day. The Ombudsman assented to the
quick movement to Manila for Petitioners
safety and the interest of the Offices
operations.
Subsequently,
the
Ombudsman
installed
Assistant
Ombudsman Nicanor J. Cruz as the Officerin-Charge of OMB-Visayas.
Acting on the formal complaint against

petitioner, the Ombudsman directed his
Fact-Finding and Intelligence Bureau (FFIB)
to conduct a verification and fact-finding
investigation on the matter. The FFIB, later
in its Report, found the evidence against
Petitioner strong on the charges of acts of
extortion,
sexual
harassment
and
oppression. The FFIB report was referred
by the Ombudsman to a constituted
Committee of Peers composed of the
Deputy Ombudsman for Luzon, The
Special Prosecutor and the Deputy
Ombudsman for the Military.
The
Committee
of
Peers
initially
recommended that the investigation be
converted into one solely for purposes of
impeachment.
However,
this
recommendation was denied by the
Ombudsman after careful study, and
following the established stand of the
Office of the Ombudsman that the Deputy
Ombudsmen and The Special Prosecutor
are not removable through impeachment.

As
succintly
(sic)
stated
by
the
Ombudsman in his Memorandum dated
March 27, 2000 (in reiteration of the March
13, 2000 Order of Overall Deputy
Ombudsman) -
Upon
evaluation,
the
Committee
recommended the docketing of the
complaint as criminal and administrative
cases. The Committee of Peers Evaluation
dated 30 March 2000, stated as follows:
Acting on your query as to whether or not

the Ombudsman confirms or affirms the
disapproval
by
Overall
Deputy
Ombudsman Margarito P. Gervacio, Jr., of
your recommendation to conduct instead
an investigation of the complaint against
Deputy Ombudsman Arturo C. Mojica
solely for the purpose of impeachment, I
hereby confirm the action of disapproval.
On the basis of the foregoing facts, duly

supported
with
sworn-statements
executed by all concerned parties, the
undersigned members of the COP find
sufficient cause to warrant the conduct of
preliminary
investigation
and
administrative
adjudication
against
Deputy Ombudsman Arturo C. Mojica for
the following criminal and administrative
offenses, namely:
xxx
I. CRIMINAL
Moreover, as demonstrated in many

previous
cases
against
Deputy
Ombudsman Arturo C. Mojica, Deputy
Ombudsman Manuel B. Casaclang, Deputy
Ombudsman Jesus F. Guerrero, Special
Prosecutor Leonardo P. Tamayo and former
Overall Deputy Ombudsman Francisco A.
Villa, the official position of the Office is
that the Constitution, R.A. 6770 and the
Supreme Court in Zaldivar vs. Gonzales,
G.R. No. 80578, 19 May 1988, exclude the
Deputy Ombudsman and the Special
Prosecutor from the list of impeachable
officials and the Jarque case involves
Ombudsman Aniano A. Desierto as
respondent, hence, the mention therein of
the Deputy Ombudsmen is merely an
obiter dictum. Two of your present
members in fact participated in the
investigation of the previous Mojica cases
and
thereafter
recommended
the
dismissal thereof for lack of merit.
In
the
same
Memorandum,
the
Ombudsman directed the Committee of
Peers to evaluate the merits of the case
and if warranted by evidence, to conduct
administrative
and
criminal
investigation(s) immediately thereafter.
Violation of Section 3, paragraph[s] (b)

and (e) of R.A. 3019 (Anti-Graft and
Corrupt Practices Act);
Violation of R.A. 7877

Harassment Act of 1995),
(Anti-Sexual
II. ADMINISTRATIVE
a.
Dishonesty
b.
Grave Misconduct
c.
Oppression
d.
Conduct grossly prejudicial to
the best interest of the service
e.
Directly or indirectly having
financial and material interest in any
transaction requiring the approval of his
Office; (Section 22, paragraphs (A), (C),
(N), (T) and (U), Rule XIV of Executive
Order No. 292, otherwise known as the
Administrative Code of 1987.)
Accordingly, let the instant case be

docketed separately, one for the criminal
case and another for the administrative
case covering all the offenses specified
above
and,
thereafter,
a
formal
investigation be simultaneously and jointly
conducted by the Committee of Peers,
pursuant to Administrative Order No. 7.
Accordingly, on 6 April 2000, the

Committee of Peers (COP) directed the
herein private respondent Mojica in OMB0-00-0615
entitled,
Padua-Varona
v.
Mojica, for violation of Republic Act No.
7877 (Anti-Sexual Harassment Act of
1995) and Sec. 3, par. (b) and (c) of Rep.
Act No. 3019 (Anti-Graft and Corrupt
Practices Act) to submit his controverting
evidence.
On 10 April 2000, the complainants in

OMB-0-00-0615 filed a Motion to Place
Respondent Under Preventive Suspension,
[5] claiming that the offenses for which
private respondent Mojica was charged
warranted removal from office, the
evidence against him was strong, and that
Mojicas continued stay in office would
prejudice the case, as he was harassing
some witnesses and complainants to
recant or otherwise desist from pursuing
the case.
On the same date, the Ombudsman issued

a Memorandum[6] to the COP, directing
them
to
conduct
administrative
proceedings
in
OMB-ADM-0-00-0316
entitled, OMB Visayas Employees v. Mojica
(for
dishonesty,
grave
misconduct,
oppression, conduct grossly prejudicial to
the best interest of the service, and
directly or indirectly having financial and
material interest in any transaction
requiring the approval of his office), and
submit
a
recommendation
on
the
propriety
of
putting
Mojica
under
preventive suspension.
Subsequently, the COP issued an Order[7]

in OMB-ADM-0-00-0316 finding prima facie
evidence against Mojica and requiring him
to submit an answer to the abovementioned offenses within ten days, as
well
as
his
counter-affidavit
and
supporting evidence.[8]
Aggrieved, the private respondent filed a

petition[9] for Certiorari before the Court
of Appeals praying that a resolution be
issued:
1. . . . issuing a Temporary Restraining

Order (TRO) upon the filing of the petition
to enjoin and restrain the respondents,
(the Ombudsman, the Over-all Deputy
Ombudsman, the Committee of Peers, and
the Special Prosecutor) their agents and
representatives, from suspending the
petitioner (herein private respondent
Mojica);
2. thereafter, converting said TRO into a

Writ of Preliminary Injunction;
3. after hearing, a decision be rendered

declaring the following acts of the
Ombudsman null and void ab initio:
a. detailing and assigning indefinitely the

petitioner to OMB-Manila in a [special]
capacity,
thus
effectively
demoting/suspending
petitioner,
and
preventing
defense;
him
from
preparing
his
b. authorizing or directing the docketing of

the complaints against the petitioner,
which is equivalent to authorizing the
filing of the administrative and/or criminal
cases against the petitioner, who is an
impeachable official;
c. denying the request of petitioner for

leave of absence, which acts were done
without lawful authority, in a malevolent
and oppressive manner and without
jurisdiction.
On 04 May 2000, the Court of Appeals

resolved to grant the prayer for Temporary
Restraining Order and required the
Ombudsman to comment and show cause
why no writ of preliminary injunction
should be issued, which reads in part:
Meanwhile, to maintain the status quo and

in order to forestall the petition at bench
from becoming moot and academic, and
considering that upon examination of the
records we believe that there is an urgent
need for the issuance of a temporary
restraining order to prevent great and
irreparable injury that would result to
herein petitioner before the matter could
be
heard
on
notice,
the
herein
respondents,
their
agents
and
representatives acting for and in their
behalf or under their authority, are hereby
enjoined and restrained from proceeding
with the hearing of the Motion to Place
Respondent Under Preventive Suspension
dated April 10, 2000, which hearing is set
on May 9, 2000 at 2:00 oclock in the
afternoon and/or from conducting any
further proceedings relative to the
suspension from (o)ffice of the herein
petitioner until further order and/or notice
from this Court.[10]
Nevertheless, on 6 June 2000, the COP

issued an Order[11] in both OMB-0-000615 and OMB-ADM-0-00-0316 to the
effect that having failed to submit the
required counter-affidavits despite the
lapse of seventeen days from the
expiration of the extended reglementary
period for filing the same, respondent
Mojica was deemed to have waived his
right to present his evidence. The COP
thus
deemed
both
criminal
and
administrative
cases
submitted
for
resolution on the basis of the evidence on
record.
Thus, on 13 June 2000, the private

respondent
thus
filed
an
urgent
motion[12] before the Court of Appeals to
enjoin the Ombudsman from taking any
action whatsoever in the criminal and
administrative cases aforementioned. The
following day, the private respondent filed
another urgent motion, this time praying
that the Court of Appeals issue an order
requiring the Ombudsman to show cause
why it should not be cited for contempt for
failing to conform with the 4 May 2000
Resolution of the Court of Appeals. On 20
June 2000, the Court of Appeals
directed[13] the Ombudsman to comment
on the above pleadings, and to comply
with the formers Temporary Restraining
Order of 4 May 2000.
The parties subsequently exchanged

various pleadings that culminated in a
Resolution[14] by the Court of Appeals on
5 July 2000 that, among other things,
directed the issuance of a writ of
preliminary injunction enjoining all therein
respondents from taking any action
whatsoever in cases No. OMB-0-00-0615
(criminal) and No. OMB-ADM-0-00-0316
(administrative) against
Mojica,
and
deemed the instant petition submitted for
resolution on the merits upon the
submission of the comment or explanation
on the appellate courts

Resolution of 20 June 2000.
show
cause
Meanwhile, on 19 June 2000, the Office of

the Deputy Ombudsman for the Military
directed the private respondent Mojica
ostensibly to answer a different set of
charges for violation of Art. 266 and Sec.
3(e) of Rep. Act No. 3019 (OMB-00-0-1050)
and for grave misconduct, gross neglect of
duty, and conduct prejudicial to the best
interest of the service[15] (OMB-ADM-000-0506). Feeling that this was merely an
attempt at circumventing the directives of
the Court of Appeals, Mojica filed an
urgent motion before the Court of Appeals
for respondents to show cause again why
they should not be cited for contempt.
By way of opposition, the Ombudsman

pointed out that the writ of preliminary
injunction issued by the appellate court
was against any action taken in cases No.
OMB-0-00-0615 and No. OMB-ADM-0-000316, and not against any new cases filed
against the private respondent thereafter.
The Ombudsman further pointed out that
since Mojicas term of office had already
expired as of 6 July 2000, the private
respondent could no longer invoke his
alleged immunity from suit.
On 14 August 2000, the Office of the

Deputy Ombudsman for the Military issued
an order deeming that cases No. OMB-000-1050 and No. OMB-ADM-0-00-0506 had
been deemed submitted for resolution on
the basis of the evidence at hand. On 17
August 2000, the private respondent filed
an urgent motion for the immediate
issuance of an order enjoining the
Ombudsman from taking any further
action whatsoever in OMB-ADM-0-00-0506
and OMB-0-00-1050.[16]
On 18 December 2000, despite the

expiration of private respondent Mojicas
term of office, the Court of Appeals
nevertheless
rendered
the
assailed
Decision[17] on the grounds of public
interest.
In essence, the appellate court held that

although the 1987 Constitution, the
deliberations
thereon,
and
the
commentaries of noted jurists, all indicate
that a Deputy Ombudsman is not an
impeachable official, it was nevertheless
constrained to hold otherwise on the basis
of this Courts past rulings. Thus, the
dispositive portion thereof reads:
WHEREFORE, in view of the foregoing, the

order of the Committee of Peers in its
Evaluation dated March 30, 2000 directing
the docketing separately of the criminal
case as well as the administrative case
against the petitioner is hereby SET ASIDE
and
DECLARED
NULL
AND
VOID.
Accordingly, the complaints in Criminal
Case
No.
OMB-0-00-0615
and
Administrative Case No. OMB-ADM-0-000316, respectively, filed against the
petitioner are hereby DISMISSED. All acts
or orders of the Ombudsman, the Overall
Deputy Ombudsman and the Committee
of Peers, subjecting the petitioner [herein
private respondent] to criminal and
administrative investigations, or pursuant
to such investigations, are likewise hereby
DECLARED INVALID.[18]
Thereupon, on 15 January 2001, the Office

of the Ombudsman filed before this Court
a petition for review on certiorari under
Rule 45 of the 1997 Rules of Civil
Procedure, and alternatively, an original
special civil action for certiorari under Sec.
1, Rule 65 of the same rules, of the above
decision, on the following grounds:

GRAVELY ABUSED ITS DISCRETION IN
ERRONEOUSLY RULING THAT PRIVATE
RESPONDENT,
AS
THEN
DEPUTY
OMBUDSMAN FOR THE VISAYAS, IS AN
IMPEACHABLE OFFICIAL, CONSIDERING
THAT THE PLAIN TEXT OF SEC. 2, ART. XI
OF THE 1987 CONSTITUTION, AS WELL AS
THE INTENT OF THE FRAMERS THEREOF,
EXCLUDES A DEPUTY OMBUDSMAN FROM
THE LIST OF IMPEACHABLE OFFICIALS.
II
THE PRINCIPLE OF STARE DECISIS ET NON

QUIETA MOVERE MAY NOT BE INVOKED TO
PERPETUATE AN ERRONEOUS OBITER
DICTUM.
III
THE HONORABLE COURT OF APPEALS HAS

NO
JURISDICTION
TO
ORDER
THE
DISMISSAL OF A CRIMINAL CASE AGAINST
A RETIRED DEPUTY OMBUDSMAN, WHICH
IS
STILL
PENDING
PRELIMINARY
INVESTIGATION
BEFORE
PETITIONER
OMBUDSMAN.[19]
At the outset, it bears noting that instead

of assailing the Court of Appeals Decision
solely by petition for review on certiorari
Procedure, petitioner lodged the present
petition alternatively as an original special
civil action for certiorari under Sec. 1, Rule
65 of the same rules.
It is settled that the appeal from a final

disposition of the Court of Appeals is a
petition for review under Rule 45 and not a

special civil action under Rule 65 of the
1997 Rules of Civil Procedure. Rule 45 is
clear that the decisions, final orders or
resolutions of the Court of Appeals in any
case, i.e., regardless of the nature of the
action or proceeding involved, may be
appealed to this Court by filing a petition
for review, which would be but a
continuation of the appellate process over
the original case. Under Rule 45, the
reglementary period to appeal is fifteen
(15) days from notice of judgment or
denial of motion for reconsideration.[20]
The records show that following the

petitioners receipt on 5 January 2001 of a
copy the Court of Appeals Decision, it filed
the present petition on 16 January 2001,
well within the reglementary period so
indicated.
We go now into the substantive aspect of

this case, where we are presented an
attack upon a prior interpretation of Article
XI, Sec. 2 in relation to Article XI, Sec. 8 of
our Constitution.
The interpretation in question first appears

in Cuenco v. Fernan,[21] a disbarment
case against then Associate Justice
Marcelo Fernan filed by Atty. Miguel
Cuenco, a former member of the House of
Representatives, where we held in part:
There is another reason why the complaint

for disbarment here must be dismissed.
Members of the Supreme Court must,
under Article VIII (7)(1) of the Constitution,
be members of the Philippine Bar and may
be
removed
from
office
only
by
impeachment (Article XI [2], Constitution).
To grant a complaint for disbarment of a
Member of the Court during the Members
incumbency, would in effect be to
circumvent and hence to run afoul of the
constitutional mandate that Members of

the Court may be removed from office
only by impeachment for and conviction of
certain offenses listed in Article XI (2) of
the Constitution. Precisely the same
situation exists in respect of the
Ombudsman and his deputies (Article XI
[8] in relation to Article XI [2], id.), a
majority of the
members of the
Commission on Elections (Article IX [C] [1]
[1] in relation to Article XI [2], id.), and the
members of the Commission on Audit who
are not certified public accountants
(Article XI [D] [1] [1], id.), all of whom are
constitutionally required to be members of
the Philippine Bar. (Emphasis supplied.)
Barely two months later, we issued

another Resolution in In Re: Raul M.
Gonzales,[22]
concerning
the
same
charges for disbarment brought against
Justice Fernan, wherein we cited the above
ruling to underscore the principle involved
in the case, that [a] public officer who
under the Constitution is required to be a
member of the Philippine Bar as a
qualification for the office held by him and
who may be removed from office only by
impeachment, cannot be charged with
disbarment during the incumbency of such
public officer.[23]
In 1995, we subsequently anchored our

Resolution in Jarque v. Desierto,[24] a
disbarment
case
against
then
Ombudsman Aniano Desierto, on the
above ruling, adding that:
. . . [T]he court is not here saying that the

Ombudsman and other constitutional
officers who are required by the
Constitution to be members of the
Philippine Bar and are remova[ble] only by
impeachment,
are
immunized
from
liability possibly for criminal acts or for
violation of the Code of Professional
Responsibility
or
other
claimed
misbehavior. What the Court is saying is

that there is here a fundamental
procedural requirement which must be
observed before such liability may be
determined
and
enforced.
The
Ombudsman or his deputies must first be
removed from office via the constitutional
route of impeachment under Sections 2
and 3 of Article XI of the 1987
Constitution. Should the tenure of the
Ombudsman be thus terminated by
impeachment, he may then be held to
answer
either
criminally
or
administratively
e.g.,
in
disbarment
proceedings for any wrong or misbehavior
which may be proven against him in
appropriate
proceedings.
(Emphasis
supplied)
Finally, in Lastimosa-Dalawampu v. Deputy

Ombudsman Mojica and Graft Investigator
Labella,[25] the Court, citing its Resolution
in Jarque v. Desierto,[26] dismissed, in a
minute resolution, the complaint for
disbarment against the herein private
respondent Mojica in his capacity as
Deputy Ombudsman for the Visayas,
stating that:
Anent the complaint for disbarment

against respondent Arturo C. Mojica in his
capacity as Deputy Ombudsman for
Visayas, suffice it to state that a public
officer
whose
membership
in
the
Philippine Bar is a qualification for the
office held by him and removable only by
impeachment cannot be charged with
disbarment during his membership (In Re:
Raul M. Gonzales, 160 SCRA 771, 774
[1988]; Cuenco vs. Fernan, 158 SCRA 29,
40 [1988]). And we have held in the case
of Jarque vs. Desierto (A.C. No. 4509, En
Banc Resolution December 5, 1995), that
the Ombudsman or his deputies must first
be removed from office via impeachment
before they may be held to answer for any
wrong or misbehavior which may be
proven against them in disbarment
proceedings.
The above Resolution was subsequently

made the basis of the appellate courts
assailed Decision of 18 December 2000.
Thus,
in
holding
that
a
Deputy
Ombudsman is an impeachable officer, the
appellate court stated that it had to defer
to the loftier principle of adherence to
judicial precedents, otherwise known as
the doctrine of Stare Decisis.... necessary
for the uniformity and continuity of the law
and also to give stability to society.[27]
Nevertheless, the court a quo took pains

to point out that the 1987 Constitution,
the deliberations thereon, and the
opinions of constitutional law experts all
indicate that the Deputy Ombudsman is
not an impeachable officer.
Is the Deputy Ombudsman, then, an

impeachable officer? Section 2, Article XI
of the 1987 Constitution, states that:
Sec. 2. The President, the Vice-President,

the members of the Supreme Court, the
members
of
the
Constitutional
Commissions, and the Ombudsman may
be removed from office, on impeachment
for, and conviction of, culpable violation of
the Constitution, treason, bribery, graft
and corruption, other high crimes, or
betrayal of public trust. All other public
officers and employees may be removed
from office as provided by law, but not by
impeachment.
To determine whether or not the

Ombudsman therein mentioned refers to a
person or to an office, reference was made
by the appellate court to the Records of
the Constitutional Commission, as well as
to the opinions of leading commentators
in constitutional law. Thus:
. . . It appears that the members of the

Constitutional Commission have made
reference only to the Ombudsman as
impeachable, excluding his deputies. The
pertinent portions of the record read, to
wit:
...
MR. REGALADO. Yes, thank you.
On Section 10, regarding the Ombudsman,

there has been concern aired by
Commissioner Rodrigo about who will see
to it that the Ombudsman will perform his
duties because he is something like a
guardian of the government. This recalls
the statement of Juvenal that while the
Ombudsman is the guardian of the people,
Quis custodiet ipsos custodies, who will
guard the guardians? I understand here
that the Ombudsman who has the rank of
a chairman of a constitutional commission
is also removable only by impeachment.
MR. ROMULO. That is the intention, Madam

President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies,

because I am concerned with the phrase
have the rank of. We know, for instance,
that the City Fiscal of Manila has the rank
of a justice of the Intermediate Appellate
Court, and yet he is not a part of the
judiciary. So I think we should clarify that
also and read our discussions into the
Record for purposes of the Commission
and the Committee.
MR. MONSOD. Madam President.

MR. ROMULO. Yes. If I may just comment:
the Ombudsman in this provision is a rank
in itself really. That is how we look at it.
But
for
purposes
of
government
classification and salary, we thought we
have to give him a recognizable or an
existing rank as a point of reference more
than anything else.
MR. REGALADO. Yes, but my concern is

whether or not he is removable only by
impeachment,
because
Section
2
enumerates the impeachable officials, and
it does not mention public officers with the
rank of constitutional commissioners.
MR. ROMULO. But we do mention them as

the Ombudsman is mentioned in that
enumeration.
We
used
the
word
Ombudsman because we would like it to
be his title; we do not want him called
Chairman or Justice. We want him called
Ombudsman.
...
(Records of the 1986 Constitutional

Commission, Vol. II, July 26, 1986, pp. 273274)
THE PRESIDENT. Commissioner Monsod is

recognized.
MR. MONSOD. We regret we cannot accept

the amendment because we feel that the
Ombudsman is at least on the same level
as the Constitutional Commissioners and
this is one way of insulating it from
politics.
MR. DAVIDE. Madam President, to make

the
members
of
the
Ombudsman
removable only by impeachment would be
to enshrine and install an officer whose
functions are not as delicate as the others
whom we wanted to protect from
immediate removal by way of an
impeachment.
MR. MONSOD. We feel that an officer in

the Ombudsman, if he does his work well,
could be stepping on a lot of toes. We
would really prefer to keep him there but
we would like the body to vote on it,
although I would like to ask if we still have
a quorum, Madam President.
THE PRESIDENT. Do we have a quorum?

There are members who are in the lounge.
MR. DAVIDE. I will not insist.
On lines 13 and 14, I move for the deletion

of the words and the Ombudsman. The
Ombudsman should not be placed on the
level of the President and the VicePresident, the members of the judiciary
and the members of the Constitutional
Commissions in the matter of removal
from office.
The Secretary-General and the pages

conduct
an
actual
count
of
the
Commissioners present.
THE PRESIDENT. We have a quorum.
MR. MONSOD. May we restate the

proposed amendment for the benefit of
those who were not here a few minutes

ago.
MR. DE LOS REYES. Madam President,

parliamentary inquiry. I thought that
amendment was already covered in the
amendment of Commissioner Rodrigo.
One of those amendments proposed by
Commissioner Rodrigo was to delete the
word Ombudsman and, therefore, we have
already voted on it.
MR. RODRIGO. The Ombudsman, is this

only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.

MR. DAVIDE. Madam President, may I
comment on that.
THE PRESIDENT. Yes, the Gentleman may

proceed.
MR. DAVIDE. The proposed amendment of

Commissioner Rodrigo was the total
deletion of the Office of the Ombudsman
and all sections relating to it. It was
rejected by the body and, therefore, we
can have individual amendments now on
the particular sections.
THE PRESIDENT. The purpose of the

amendment of Commissioner Davide is
not just to include the Ombudsman among
those officials who have to be removed
from office only on impeachment. Is that
right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the

amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is

recognized.
...
(Ibid., p. 305, emphasis supplied)
Moreover, this Court has likewise taken

into account the commentaries of the
leading
legal
luminaries
on
the
Constitution as to their opinion on whether
or not the Deputy Ombudsman is
impeachable. All of them agree in unison
that the impeachable officers enumerated
in Section 2, Article XI of the 1986
Constitution is exclusive. In their belief,
only the Ombudsman, not his deputies, is
impeachable. Foremost among them is the
erudite Justice Isagani A. Cruz (ret.), who
opined:
The impeachable officers are the President

of the Philippines, the Vice-President, the
members of the Supreme Court, the
members
of
the
Constitutional
Commissions, and the Ombudsman. (see
Art. XI, Sec. 2) The list is exclusive and
may not be increased or reduced by
legislative enactment. The power to
impeach is essentially a non-legislative
prerogative and can be exercised by the
Congress only within the limits of the
authority conferred upon it by the
Constitution. This authority may not be

expanded by the grantee itself even if
motivated by the desire to strengthen the
security of tenure of other officials of the
government.
Q. Is the list of officers subject

impeachment
found
in
Section
exclusive?
to
2
A. As presently worded, yes.

It is now provided by decree (see P.D. No.
1606) that justices of the Sandiganbayan
may be removed only through process of
impeachment, the purpose evidently
being to withdraw them from the removal
power of the Supreme Court. This
prohibition is of dubious constitutionality.
In the first place, the list of impeachable
officers is covered by the maxim expressio
unius est exclusio alterius. Secondly,
Article VIII, Section 11, of the Constitution
states that all judges of inferior courts and
this would include the Sandiganbayan are
under the disciplinary power of the
Supreme Court and may be removed by it.
This view is bolstered by the last sentence
of Article XI, Section 2, which runs in full
as follows:
Sec. 2. The President, the Vice-President,

the members of the Supreme Court, the
members
of
the
Constitutional
Commissions, and the Ombudsman may
be removed from office, on impeachment
for and conviction of, culpable violation of
the Constitution, treason, bribery, graft
and corruption, other high crimes, or
betrayal of public trust. All other public
officers and employees may be removed
from office as provided by law, but not by
impeachment. (Cruz, Isagani A., Philippine
Political Law, 1996 ed., pp. 333-334)
Equally worth noting is the opinion of no

less than Rev. Fr. Joaquin G. Bernas, S.J.,
himself who was a member of the
Constitutional Commission which drafted
the 1987 Constitution, (who) asserted:
(Bernas, Joaquin G., S.J., The 1987

Philippine Constitution, A Reviewer-Primer,
1997 ed., p. 401)
Last but certainly not the least is the

equally erudite Representative Antonio B.
Nachura himself, who, as a professor of
law, commented that the enumeration of
impeachable officers in Section 2, Article
XI of the 1987 Constitution, is exclusive.
(Nachura, Antonio B., Outline/Reviewer in
Political Law, 1998 ed., p. 192)[28]
From the foregoing, it is immediately

apparent that, as enumerated in Sec. 2 of
Article XI of the 1987 Constitution, only
the following are impeachable officers: the
President,
the
Vice
President,
the
members of the Supreme Court, the
members
of
the
Constitutional
Commissions, and the Ombudsman.[29]
How
then
to
explain
our
earlier
pronouncement in Cuenco v. Fernan, as
later cited in In Re: Raul M. Gonzales,
Jarque
v.
Desierto
and
LastimosaDalawampu v. Dep. Ombudsman Mojica
and Graft Investigator Labella? By way of
reiteration, said Resolution reads in part:
. . . To grant a complaint for disbarment of

a Member of the Court during the
Members incumbency, would in effect be
to circumvent and hence to run afoul of
the constitutional mandate that Members
of the Court may be removed from office
only by impeachment for and conviction of
certain offenses listed in Article XI [2] of
the Constitution. Precisely the same

situation exists in respect of the
Ombudsman and his deputies (Article XI
[8] in relation to Article XI [2]), . . . all of
whom are constitutionally required to be
members of the Philippine Bar.[30]
(Emphasis supplied)
In cross-referencing Sec. 2, which is an

enumeration of impeachable officers, with
Sec. 8, which lists the qualifications of the
Ombudsman and his deputies, the
intention was to indicate, by way of obiter
dictum, that as with members of this
Court, the officers so enumerated were
also constitutionally required to be
members of the bar.
A dictum is an opinion that does not

embody the resolution or determination of
the court, and made without argument, or
full consideration of the point. Mere dicta
are not binding under the doctrine of stare
decisis.[31]
The legal maxim "stare decisis et non

quieta movere" (follow past precedents
and do not disturb what has been settled)
states that where the same questions
relating to the same event have been put
forward by parties similarly situated as in
a previous case litigated and decided by a
competent court, the rule of stare decisis
is a bar to any attempt to relitigate the
same issue.[32]
The succeeding cases of In Re: Raul M.

Gonzales and Jarque v. Desierto do not
tackle the impeachability of a Deputy
Ombudsman either. Nor, for that matter,
does Lastimosa-Dalawampu v. Deputy
Ombudsman Mojica and Graft Investigator
Labella, which, as previously mentioned, is
a minute resolution dismissing a complaint
for disbarment against the herein private
respondent on the basis of the questioned
obiter in Cuenco v. Fernan and the

succeeding cases without going into the
merits.
Thus, where the issue involved was not

raised nor presented to the court and not
passed upon by the court in the previous
case, the decision in the previous case is
not stare decisis of the question
presented.[33]
As to whether or not the private

respondent, then Deputy Ombudsman for
the Visayas, may be held criminally and/or
administratively liable, we likewise resolve
the issue in favor of the petitioner.
The rule that an impeachable officer

cannot be criminally prosecuted for the
same offenses which constitute grounds
for
impeachment
presupposes
his
continuance in office.[34] Hence, the
moment he is no longer in office because
of his removal, resignation, or permanent
disability, there can be no bar to his
criminal prosecution in the courts.[35]
Nor does retirement bar an administrative

investigation from proceeding against the
private respondent, given that, as pointed
out by the petitioner, the formers
retirement benefits have been placed on
hold in view of the provisions of Sections
12[36] and 13[37] of the Anti-Graft and
Corrupt Practices Act.
WHEREFORE, the Order of the Court of

Appeals dated 18 December 2000 is
hereby REVERSED and SET ASIDE. The
complaints in Criminal Case No. OMB-0-000615 and Administrative Case No. OMBADM-0-00-0316 are hereby REINSTATED
and the Office of the Ombudsman is
ordered to proceed with the investigation
relative to the above cases.
SO ORDERED.
XXXXXXXXXX
[G.R. No. 134284. December 1, 2000]
AYALA CORPORATION, petitioner, vs.

ROSA-DIANA REALTY AND DEVELOPMENT
CORPORATION, respondent.
DECISION
a) the vendees shall build on the lot and

submit the building plans to the vendor
before September 30, 1976 for the latters
approval
b) the construction of the building shall

start on or before March 30, 1977 and
completed before 1979. Before such
completion, neither the deed of sale shall
be registered nor the title released even if
the purchase price shall have been fully
paid
DE LEON, JR., J.:

c) there shall be no resale of the property
certiorari seeking the reversal of a
decision rendered by the Court of Appeals
in C.A. G.R. C.V. No. 4598 entitled, Ayala
Corporation vs. Rosa-Diana Realty and
Development
Corporation,
dismissing
Ayala Corporations petition for lack of
merit.
The Deed Restrictions, on the other hand,

contained the stipulation that the gross
floor area of the building to be constructed
shall not be more than five (5) times the
lot area and the total height shall not
exceed forty two (42) meters. The
restrictions were to expire in the year
2025.
The facts of the case are not in dispute:
Petitioner Ayala Corporation (hereinafter

referred to as Ayala) was the registered
owner of a parcel of land located in Alfaro
Street, Salcedo Village, Makati City with an
area of 840 square meters, more or less
and covered by Transfer Certificate of Title
(TCT) No. 233435 of the Register of Deeds
of Rizal.
On April 20, 1976, Ayala sold the lot to

Manuel Sy married to Vilma Po and Sy Ka
Kieng married to Rosa Chan. The Deed of
Sale executed between Ayala and the
buyers contained Special Conditions of
Sale and Deed Restrictions. Among the
Special Conditions of Sale were:
Manuel Sy and Sy Ka Kieng failed to

construct the building in violation of the
Special
Conditions
of
Sale.
Notwithstanding the violation, Manuel Sy
and Sy Ka Kieng, in April 1989, were able
to sell the lot to respondent Rosa-Diana
Realty and Development Corporation
(hereinafter referred to as Rosa-Diana)
with Ayalas approval. As a consideration
for Ayala to release the Certificate of Title
of the subject property, Rosa-Diana, on
July 27, 1989 executed an Undertaking
promising to abide by said special
conditions of sale executed between Ayala
and the original vendees. Upon the
submission of the Undertaking, together
with the building plans for a condominium
project, known as The Peak, Ayala
released title to the lot, thereby enabling
Rosa-Diana to register the deed of sale in
its favor and obtain Certificate of Title No.
165720 in its name. The title carried as
encumbrances the special conditions of

sale and the deed restrictions. RosaDianas building plans as approved by
Ayala were subject to strict compliance of
cautionary notices appearing on the
building plans and to the restrictions
encumbering the Lot regarding the use
and occupancy of the same.
Thereafter, Rosa-Diana submitted to the

building official of Makati another set of
building plans for The Peak which were
substantially different from those that it
earlier submitted to Ayala for approval.
While the building plans which Rosa-Diana
submitted to Ayala for approval envisioned
a 24-meter high, seven (7) storey
condominium project with a gross floor
area of 3,968.56 square meters, the
building
plans
which
Rosa-Diana
submitted to the building official of Makati,
contemplated a 91.65 meter high, 38
storey condominium building with a gross
floor area of 23,305.09 square meters.[1]
Needless to say, while the first set of
building plans complied with the deed
restrictions, the latter set exceeded the
same.
During the construction of Rosa-Dianas

condominium project, Ayala filed an action
with the Regional Trial Court (RTC) of
Makati,
Branch
139
for
specific
performance, with application for a writ of
preliminary
injunction/temporary
restraining order against Rosa-Diana
Realty seeking to compel the latter to
comply with the contractual obligations
under the deed of restrictions annotated
on its title as well as with the building
plans it submitted to the latter. In the
alternative, Ayala prayed for rescission of
the sale of the subject lot to Rosa- Diana
Realty.
to complete the construction of the

building. Undeterred, Ayala tried to cause
the annotation of a notice of lis pendens
on Rosa-Dianas title. The Register of
Deeds of Makati, however, refused
registration of the notice of lis pendens on
the ground that the case pending before
the trial court, being an action for specific
performance and/or rescission, is an action
in personam which does not involve the
title, use or possession of the property.[2]
The Land Registration Authority (LRA)
reversed the ruling of the Register of
Deeds saying that an action for specific
performance or rescission may be
classified as a proceeding of any kind in
court directly affecting title to the land or
the use or occupation thereof for which a
notice of lis pendens may be held proper.
[3] The decision of the LRA, however, was
overturned by the Court of Appeals in C.A.
G.R. S.P. No. 29157. In G.R. No. 112774,
We affirmed the ruling of the CA on
February 16, 1994 saying
We agree with respondent court that the

notice of lis pendens is not proper in this
instance. The case before the trial court is
a personal action since the cause of action
thereof arises primarily from the alleged
violation of the Deed of Restrictions.
In the meantime, Ayala completed its

presentation of evidence before the trial
court. Rosa-Diana filed a Demurrer to
Evidence averring that Ayala failed to
establish its right to the relief sought
inasmuch as (a) Ayala admittedly does not
enforce the deed restrictions uniformly
and strictly (b) Ayala has lost its
right/power to enforce the restrictions due
to its own acts and omissions; and (c) the
deed restrictions are no longer valid and
effective against lot buyers in Ayalas
controlled subdivision.
The lower court denied Ayalas prayer for

injunctive relief, thus enabling Rosa-Diana
The trial court sustained Rosa-Dianas

Demurrer to Evidence saying that Ayala
was guilty of abandonment and/or
estoppel due to its failure to enforce the
terms of deed of restrictions and special
conditions of sale against Manuel Sy and
Sy Ka Kieng. The trial court noted that
notwithstanding the violation of the
special conditions of sale, Manuel Sy and
Sy Ka Kieng were able to transfer the title
to Rosa-Diana with the approval of Ayala.
The trial court added that Ayalas failure to
enforce the restrictions with respect to
Trafalgar, Shellhouse, Eurovilla, LPL Plaza,
Parc Regent, LPL Mansion and Leronville
which are located within Salcedo Village,
shows that Ayala discriminated against
those which it wants to have the
obligation enforced. The trial court then
concluded that for Ayala to discriminately
choose which obligor would be made to
follow certain conditions and which should
not, did not seem fair and legal.
The Court of Appeals affirmed the ruling of

the trial court saying that the appeal is
sealed by the doctrine of the law of the
case in C.A. G.R. S.P. No. 29157 where it
was stated that
]x x x Ayala is barred from enforcing the

Deed of Restrictions in question pursuant
to the doctrine of waiver and estoppel.
Under the terms of the deed of sale, the
vendee Sy Ka Kieng assumed faithful
compliance with the special conditions of
sale and with the Salcedo Village Deed of
Restrictions. One of the conditions was
that a building would be constructed
within one year. However, Sy Ka Kieng
failed to construct the building as required
under the Deed of Sale. Ayala did nothing
to enforce the terms of the contract. In
fact, it even agreed to the sale of the lot
by Sy Ka Kieng in favor of petitioner Realty
in 1989 or thirteen (13) years later. We,
therefore, see no justifiable reason for
Ayala to attempt to enforce the terms of
the conditions
petitioner.
of
sale
against
the
xxx
The Court of Appeals also cited C.A. G.R.

C.V. No. 46488 entitled, Ayala Corporation
vs. Ray Burton Development Corporation
which relied on C.A. G.R. S.P. No. 29157 in
ruling that Ayala is barred from enforcing
the deed restrictions in dispute. Upon a
motion for reconsideration filed by herein
petitioner, the Court of Appeals clarified
that the citation of the decision in Ayala
Corporation vs. Ray Burton Development
Corporation, C.A. G.R. C.V. No. 46488,
February 27, 1996, was made not because
said decision is res judicata to the case at
bar but rather because it is precedential
under the doctrine of stare decisis.
Upon
denial
of
said
motion
for
reconsideration, Ayala filed the present
appeal.
Ayala contends that the pronouncement of

the Court of Appeals in C.A. G.R. S.P. No.
29157 that it is estopped from enforcing
the deed restrictions is merely obiter dicta
inasmuch as the only issue raised in the
aforesaid case was the propriety of a lis
pendens annotation on Rosa-Dianas
certificate of title.
Ayala avers that Rosa-Diana presented no

evidence whatsoever on Ayalas supposed
waiver or estoppel in C.A. G.R. S.P. No.
29157. Ayala likewise pointed out that at
the time C.A. G.R. S.P. No. 29157 was on
appeal, the issues of the validity and
continued viability of the deed of
restrictions and their enforceability by
Ayala were joined and then being tried
before the trial court.
Petitioners assignment of errors in the

present appeal may essentially be
summarized as follows:
I. The Court of Appeals acted in a manner

not in accord with law and the applicable
decisions of the Supreme Court in holding
that the doctrine of the law of the case, or
stare decisis, operated to dismiss Ayalas
appeal.
II. The Court of Appeals erred as a matter

of law and departed from the accepted
and usual course of judicial proceedings
when it failed to expressly pass upon the
specific errors assigned in Ayalas appeal.
A discussion on the distinctions between

law of the case, stare decisis and obiter
dicta is in order.
The doctrine of the law of the case has

certain affinities with, but is clearly
distinguishable from, the doctrines of res
judicata and stare decisis, principally on
the ground that the rule of the law of the
case operates only in the particular case
and only as a rule of policy and not as one
of law.[4] At variance with the doctrine of
stare decisis, the ruling adhered to in the
particular case under the doctrine of the
law of the case need not be followed as a
precedent
in
subsequent
litigation
between other parties, neither by the
appellate court which made the decision
followed on a subsequent appeal in the
same case, nor by any other court. The
ruling covered by the doctrine of the law
of the case is adhered to in the single case
where it arises, but is not carried into
other cases as a precedent.[5] On the
other hand, under the doctrine of stare
decisis, once a point of law has been
established by the court, that point of law
will, generally, be followed by the same

court and by all courts of lower rank in
subsequent cases where the same legal
issue is raised.[6] Stare decisis proceeds
from the first principle of justice that,
absent
powerful
countervailing
considerations, like cases ought to be
decided alike.[7]
The Court of Appeals, in ruling against

petitioner Ayala Corporation stated that
the appeal is sealed by the doctrine of the
law of the case, referring to G.R. No.
112774
entitled
Ayala
Corporation,
petitioner vs. Court of Appeals, et al.,
respondents. The Court of Appeals
likewise made reference to C.A. G.R. C.V.
No. 46488 entitled, Ayala Corporation vs.
Ray Burton Development Corporation, Inc.
in ruling against petitioner saying that it is
jurisprudential under the doctrine of stare
decisis.
It must be pointed out that the only issue

that was raised before the Court of
Appeals in C.A. G.R. S.P. No. 29157 was
whether or not the annotation of lis
pendens is proper. The Court of Appeals,
in its decision, in fact stated the principal
issue to be resolved is: whether or not an
action for specific performance, or in the
alternative, rescission of deed of sale to
enforce the deed of restrictions governing
the use of property, is a real or personal
action, or one that affects title thereto and
its use or occupation thereof."[8]
In the aforesaid decision, the Court of

Appeals even justified the cancellation of
the notice of lis pendens on the ground
that Ayala had ample protection should it
succeed
in
proving
its
allegations
regarding the violation of the deed of
restrictions, without unduly curtailing the
right of the petitioner to fully enjoy its
property in the meantime that there is as
yet no decision by the trial court.[9]
From the foregoing, it is clear that the

Court of Appeals was aware that the issue
as to whether petitioner is estopped from
enforcing the deed of restrictions has yet
to be resolved by the trial court. Though it
did make a pronouncement that the
petitioner is estopped from enforcing the
deed of restrictions, it also mentioned at
the same time that this particular issue
has yet to be resolved by the trial court.
Notably, upon appeal to this Court, We
have affirmed the ruling of the Court of
Appeals only as regards the particular
issue of the propriety of the cancellation of
the notice of lis pendens.
We see no reason then, how the law of the

case or stare decisis can be held to be
applicable in the case at bench. If at all,
the pronouncement made by the Court of
Appeals that petitioner Ayala is barred
from enforcing the deed of restrictions can
only be considered as obiter dicta. As
earlier mentioned, the only issue before
the Court of Appeals at the time was the
propriety of the annotation of the lis
pendens. The additional pronouncement of
the Court of Appeals that Ayala is
estopped from enforcing the deed of
restrictions even as it recognized that this
said issue is being tried before the trial
court was not necessary to dispose of the
issue as to the propriety of the annotation
of the lis pendens. A dictum is an opinion
of a judge which does not embody the
resolution or determination of the court,
and made without argument, or full
consideration of the point, not the
proffered deliberate opinion of the judge
himself.[10] It is not necessarily limited to
issues essential to the decision but may
also include expressions of opinion which
are not necessary to support the decision
reached by the court. Mere dicta are not
binding under the doctrine of stare decisis.
[11]
While the Court of Appeals did not err in

ruling that the present petition is not
barred by C.A. G.R. C.V. No. 46488 entitled
Ayala
Corporation
vs.
Ray
Burton
Development Inc. under the doctrine of
res judicata, neither, however, can the
latter case be cited as precedential under
the doctrine of stare decisis. It must be
pointed out that at the time the assailed
decision was rendered, C.A. G.R. C.V. No.
46488 was on appeal with this Court.
Significantly, in the decision We have
rendered in Ayala Corporation vs. Ray
Burton
Development
Corporation[12]
which became final and executory on July
5, 1999 we have clearly stated that An
examination of the decision in the said
Rosa-Diana case reveals that the sole
issue raised before the appellate court
was the propriety of the lis pendens
annotation. However, the appellate court
went beyond the sole issue and made
factual findings bereft of any basis in the
record to inappropriately rule that AYALA is
in estoppel and has waived its right to
enforce the subject restrictions. Such
ruling was immaterial to the resolution of
the issue of the propriety of the
annotation of the lis pendens. The finding
of estoppel was thus improper and made
in excess of jurisdiction.
Coming now to the merits of the case,

petitioner avers that the Court of Appeals
departed from the usual course of judicial
proceedings when it failed to expressly
pass upon the specific errors assigned in
its appeal. Petitioner reiterates its
contention that the trial courts findings
that Ayala has waived its right to enforce
the deed of restrictions is not supported
by law and evidence.
We find merit in the petition.
It is basic that findings of fact of the trial

court and the Court of Appeals are
conclusive upon the Supreme Court when

supported by substantial evidence.[13] We
are constrained, however, to review the
trial courts findings of fact, which the
Court of Appeals chose not to pass upon,
inasmuch as there is ample evidence on
record to show that certain facts were
overlooked which would affect the
disposition of the case.
In its assailed decision of February 4,

1994, the trial court, ruled in favor of
respondent Rosa-Diana Realty on the
ground that Ayala had not acted fairly
when it did not institute an action against
the original vendees despite the latters
violation of the Special Conditions of Sale
but chose instead to file an action against
herein respondent Rosa-Diana. The trial
court added that although the 38 storey
building of Rosa-Diana is beyond the total
height restriction, it was not violative of
the National Building Code. According to
the trial court the construction of the 38
storey building known as The Peak has not
been shown to have been prohibited by
law and neither is it against public policy.
It bears emphasis that as complainant,

Ayala had the prerogative to initiate an
action against violators of the deed
restrictions. That Rosa-Diana had acted in
bad faith is manifested by the fact that it
submitted two sets of building plans, one
which was in conformity with the deed
restrictions submitted to Ayala and
MACEA, and the other, which exceeded
the height requirement in the deed
restrictions to the Makati building official
for the purpose of procuring a building
permit from the latter. Moreover, the
violation
of
the
deed
restrictions
committed by respondent can hardly be
denominated as a minor violation. It
should be pointed out that the original
building plan which was submitted to and
approved by petitioner Ayala Corporation,
envisioned a twenty four (24) meter high,
seven (7) storey condominium whereas
the respondents building plan which was

submitted to and approved by the building
official of Makati is that of a thirty eight
(38) storey, 91.65 meters high, building.
At present, the Peak building of
respondent which actually stands at
133.65 meters with a total gross floor area
of 23,305.09 square meters, seriously
violates the dimensions indicated in the
building plans submitted by Rosa-Diana to
petitioner Ayala for approval inasmuch as
the Peak building exceeds the approved
height limit by about 109 meters and the
allowable gross floor area under the
applicable deed restrictions by about
19,105 square meters. Clearly, there was
a gross violation of the deed restrictions
and evident bad faith by the respondent.
It may not be amiss to mention that the

deed restrictions were revised in a general
membership meeting of the association of
lot owners in Makati Central Business
District the Makati Commercial Estate
Association, Inc. (MACEA) whereby direct
height restrictions were abolished in lieu
of floor area limits. Respondent, however,
did not vote for the approval of this
revision during the General Membership
meeting which was held on July 11, 1990
at the Manila Polo Club Pavilion, Makati,
Metro Manila and again on July 12, 1990 at
the Hotel Mandarin Oriental, Makati, Metro
Manila. Hence, respondent continues to be
bound by the original deed restrictions
applicable to Lot 7, Block 1 and annotated
on its title to said lot. In any event,
assuming arguendo that respondent voted
for the approval of direct height
restrictions in lieu of floor area limits, the
total floor area of its Peak building would
still be violative of the floor area limits to
the extent of about 9,865 square meters
of allowable floor area under the MACEA
revised restrictions.
Respondent Rosa-Diana avers that there is

nothing illegal or unlawful in the building
plans which it used in the construction of
the Peak condominium inasmuch as it

bears the imprimatur of the building
official of Makati, who is tasked to
determine
whether
building
and
construction plans are in accordance with
the law, notably, the National Building
Code.
Respondent Rosa-Diana, however, misses

the point inasmuch as it has freely
consented to be bound by the deed
restrictions when it entered into a contract
of sale with spouses Manuel Sy and Sy Ka
Kieng. While respondent claims that it was
under the impression that the deed
restrictions were no longer being enforced
by Ayala, the Undertaking[14] it executed
belies
this
same
claim.
In
said
Undertaking,
respondent
agreed
to
construct and complete the construction
of the house on said lot as required under
the special condition of sale. Respondent
likewise bound itself to abide and comply
with x x x the condition of the rescission of
the sale by Ayala Land, Inc. on the
grounds therein stated x x x.
Contractual obligations between parties

have the force of law between them and
absent any allegation that the same are
contrary to law, morals, good customs,
public order or public policy, they must be
complied with in good faith. Hence, Article
1159 of the New Civil Code provides
Obligations arising from contracts have

the force of law between the contracting
parties and should be complied with in
good faith.
Respondent Rosa-Diana insists that the

trial court had already ruled that the
Undertaking executed by its Chairman and
President cannot validly bind Rosa-Diana
and hence, it should not be held bound by
the deed restrictions.
We
agree
with
petitioner
Ayalas
observation that respondent Rosa-Dianas
special and affirmative defenses before
the trial court never mentioned any
allegation that its president and chairman
were not authorized to execute the
Undertaking.
It
was
inappropriate
therefore for the trial court to rule that in
the absence of any authority or
confirmation from the Board of Directors of
respondent Rosa-Diana, its Chairman and
the President cannot validly enter into an
undertaking relative to the construction of
the building on the lot within one year
from July 27, 1989 and in accordance with
the deed restrictions. Curiously, while the
trial court stated that it cannot be
presumed that the Chairman and the
President can validly bind respondent
Rosa-Diana to enter into the aforesaid
Undertaking in the absence of any
authority or confirmation from the Board
of Directors, the trial court held that the
ordinary presumption of regularity of
business transactions is applicable as
regards the Deed of Sale which was
executed by Manuel Sy and Sy Ka Kieng
and respondent Rosa-Diana. In the light of
the fact that respondent Rosa-Diana never
alleged in its Answer that its president and
chairman were not authorized to execute
the Undertaking, the aforesaid ruling of
the trial court is without factual and legal
basis and surprising to say the least.
The fact alone that respondent Rosa-Diana

conveniently prepared two sets of building
plans - with one set which fully conformed
to the Deed Restrictions and another in
gross violation of the same - should have
cautioned the trial court to conclude that
respondent Rosa-Diana was under the
erroneous impression that the Deed
Restrictions were no longer enforceable
and that it never intended to be bound by
the Undertaking signed by its President
and
Chairman.
We
reiterate
that
contractual obligations have the force of
law between parties and unless the same

are contrary to public policy morals and
good customs, they must be complied by
the parties in good faith.
Petitioner, in its Petition,

judgment be rendered:
prays
that
a) ordering Rosa-Diana Realty and

Development Corporation to comply with
its
contractual
obligations
in
the
construction of the Peak by removing, or
closing down and prohibiting Rosa-Diana
from using, selling, leasing or otherwise
disposing of, the portions of areas thereof
constructed beyond or in excess of the
approved height, as shown by the building
plans submitted to, and approved by,
Ayala, including any other portion of the
building constructed not in accordance
with the said building plans, during the
effectivity of the Deed Restrictions;
b) Alternatively, in the event specific

performance has become impossible:
(1)Ordering the cancellation and rescission

of the April 20, 1976 Deed of Sale by Ayala
in favor of the original vendees thereof as
well as the subsequent Deed of Sale
executed by such original vendees in favor
of Rosa-Diana, and ordering Rosa-Diana to
return to Ayala Lot 7, Block 1 of Salcedo
Village;
(2)ordering the cancellation of Transfer

Certificate of Title No. 165720 (in the
name of Rosa-Diana) and directing the
office of the Register of Deeds of Makati to
issue a new title over the lot in the name
of Ayala; and
(3)ordering Rosa-Diana to pay Ayala

attorneys fees in the amount of
P500,000.00, exemplary damages in the

amount of P5,000,000.00 and the costs of
suit.
It must be noted that during the trial

respondent Rosa-Diana was able to
complete the construction of The Peak as
a building with a height of thirty eight (38)
floors or 133.65 meters and with a total
gross floor area of 23,305.09 square
meters. Having been completed for a
number of years already, it would be
reasonable to assume that it is now fully
tenanted. Consequently, the remedy of
specific performance by respondent is no
longer feasible. However, neither can we
grant
petitioners
prayer
for
the
cancellation and rescission of the April 20,
1976 Deed of Sale by petitioner Ayala in
favor of the original vendees thereof as
well as the subsequent Deed of Sale
executed by the original vendees in favor
of respondent Rosa-Diana inasmuch as the
original vendees were not even made
parties in the case at bar. Moreover,
petitioner Ayala, having agreed to the
resale of the property by the original
vendees, spouses Manuel Sy and Sy Ka
Kieng, to respondent Rosa-Diana despite
the failure of Manuel Sy and Sy Ka Kieng
to comply with their obligation to
construct a building within one year from
April 20, 1976, has effectively waived its
right to rescind the sale of the subject lot
to the original vendees.
Faced with the same question as to the

proper remedy available to petitioner in
the case of Ayala Corporation vs. Ray
Burton Development Inc., a case which is
on all fours with the case at bench, we
ruled therein that the party guilty of
violating the deed restrictions may only be
held alternatively liable for substitute
performance of its obligation, that is, for
the payment of damages. In the aforesaid
case
it
was
observed
that
the
Consolidated
and
Revised
Deed
Restrictions (CRDR) imposed development
charges on constructions which exceed

the estimated Gross Limits permitted
under the original Deed Restrictions but
which are within the limits of the CRDRs.
The pertinent portion of the Deed of

Restrictions reads:
3. DEVELOPMENT CHARGE
For any building construction within the

Gross Floor Area limits defined under
Paragraphs C-2.1 to C-2.4 above, but
which will result in a Gross Floor Area
exceeding certain standards defined in
Paragraphs C-3.1-C below, the OWNER
shall pay MACEA, prior to the construction
of any new building, a DEVELOPMENT
CHARGE as a contribution to a trust fund
to be administered by MACEA. This trust
fund shall be used to improve facilities and
utilities in Makati Central District.
3.1. The amount of the development

charge that shall be due from the OWNER
shall be computed as follows:
DEVELOPMENT CHARGE = A x (B-C-D)
where:
A is equal to the Area Assessment which

shall be set at Five Hundred Pesos
(P500.00) until December 31,1990. Each
January 1st thereafter, such amount shall
increase by ten percent (10%) over the
Area
Assessment
charged
in
the
immediately preceding year; provided that
beginning 1995 and at the end of every
successive five-year period thereafter, the
increase in the Area Assessment shall be
reviewed and adjusted by the VENDOR to
correspond to the accumulated increase in

the construction cost index during the
immediately preceding five years as based
on the weighted average of wholesale
price and wage indices of the National
Census and Statistics Office and the
Bureau of Labor Statistics.
B - is equal to the Gross Floor Area of the

completed or expanded building in square
meters.
C - is equal to the estimated Gross Floor

Area permitted under the original deed
restrictions, derived by multiplying the lot
area by the effective original FAR shown
below for each location.
We then ruled in the aforesaid case that

the development charges are a fair
measure of compensatory damages which
therein
respondent
Ray
Burton
Development Inc. is liable to Ayala
Corporation. The dispositive portion of the
decision in the said case which is squarely
applicable to the case at bar, reads as
follows:

assailed Decision of the Court of Appeals
dated February 27, 1996, in CA-G.R. C.V.
No. 46488, and its Resolution dated
October 7, 1996 are hereby REVERSED
and SET ASIDE, and in lieu thereof,
judgment is hereby rendered finding that:
(1) The Deed Restrictions are valid and

petitioner AYALA is not estopped from
enforcing them against lot owners who
have not yet adopted the Consolidated
and Revised Deed Restrictions.
(2) Having admitted that the Consolidated

and Revised Deed Restrictions are the
applicable Deed Restrictions to Ray Burton

Development Corporation, RBDC should
be, and is bound by the same.
(3)
Considering
that
Ray
Burton
Development Corporations Trafalgar plaza
exceeds the floor area limits of the Deed
Restrictions, RBDC is hereby ordered to
pay development charges as computed
under the provisions of the consolidated
and Revised Deed Restrictions currently in
force.
(4) Ray Burton Development corporation is

further ordered to pay AYALA exemplary
damages in the amount of P2,500,000.00
attorneys fees in the amount of
P250,000.00.
SO ORDERED.
There is no reason why the same rule

should not be followed in the case at bar,
the remedies of specific performance
and/or rescission prayed for by petitioner
no longer being feasible. In accordance
with the peculiar circumstances of the
case at bar, the development charges
would certainly be a fair measure of
compensatory damages to petitioner
Ayala.
Exemplary damages in the sum of

P2,500,000.00 as prayed for by petitioner
are also in order inasmuch as respondent
Rosa-Diana was in evident bad faith when
it submitted a set of building plans in
conformity with the deed restrictions to
petitioner Ayala for the sole purpose of
obtaining title to the property, but only to
prepare and later on submit another set of
building plans which are in gross violation
of the Deed Restrictions. Petitioner Ayala
is likewise entitled to an award of
attorneys fees in the sum of P250,000.00.
WHEREFORE, the assailed Decision of the

Court of Appeals dated December 4, 1997
and its Resolution dated June 19, 1998 ,
C.A. G.R. C.V. No. 4598, are REVERSED and
SET ASIDE. In lieu thereof, judgment is
rendered
a) ordering respondent Rosa-Diana Realty

and Development Corporation to pay
development charges as computed under
the provisions of the consolidated and
Revised Deed Restrictions currently in
force; and
b) ordering respondent Rosa-Diana Realty

and Development Corporation to pay
petitioner Ayala Corporation exemplary
damages in the sum of P2,500,000.00,
attorneys fees in the sum of P250,000.00
and the costs of the suit.
SO ORDERED.
XXXXXXXXXX
DURA LEX SED LEX
249 SCRA 244 Civil Law Preliminary
Title Application of Laws Duty of a
Judge to Impose Prescribed Penalty
In August 1994, four accused were found

guilty beyond reasonable doubt of rape
with homicide committed against a seven
year old girl. The Presiding judge was
Lorenzo Veneracion.
Under Article 335 of the Revised Penal

Code which treats of the crime of Rape
with Homicide, the penalty imposable
shall be death. However, Judge Veneracion
refused to impose the death penalty but
instead he sentenced the four accused to
reclusion perpetua. The city prosecutor

filed a motion for reconsideration praying
that the penalty of death be imposed upon
the four accused but the judge refused to
act.
CORTES, J.:
ISSUE: Whether or not Judge Veneracion
has the discretion to impose a lesser
penalty than that imposed by law.
HELD: No. The Supreme Court ruled that

the
law
mandates
that
after
an
adjudication of guilt, the judge should
impose the proper penalty provided for by
the law on the accused regardless of his
own religious or moral beliefs. In this case,
the judge must impose the death penalty.
This is consistent in the rule laid down in
the Civil Code (Article 9 thereof) which
provides that no judge or court shall
decline to render judgment by reason of
the silence, obscurity, or insufficiency of
the laws.
XXXXXXXXXX
CONCEPT OF CUSTOMS
G.R. No. L-55960
November 24, 1988
Sy Kiat, a Chinese national. died on

January 17, 1977 in Caloocan City where
he was then residing, leaving behind real
and personal properties here in the
Philippines worth P300,000.00 more or
less.
Thereafter, Aida Sy-Gonzales, Manuel Sy,

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

and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA
SY-BERNABE,
RODOLFO
SY,
and
HONORABLE
COURT
OF
APPEALS,
respondents.
Montesa,
Albon,
petitioners.
&
Associates
for
De Lapa, Salonga, Fulgencio & De Lunas

for respondents.
The petition was opposed by Yao Kee, Sze

Sook Wah, Sze Lai Cho and Sy Yun Chen
who alleged that: (a) Yao Kee is the lawful
wife of Sy Kiat whom he married on
January 19, 1931 in China; (b) the other
oppositors are the legitimate children of
the deceased with Yao Kee; and, (c) Sze
Sook Wah is the eldest among them and is
competent, willing and desirous to
become the administratrix of the estate of
Sy Kiat [Record on Appeal, pp. 12-13;
Rollo, p. 107.] After hearing, the probate
court, finding among others that:
(1)
Sy Kiat was legally married to Yao
Kee [CFI decision, pp. 12-27; Rollo, pp. 4964;]
(2)
Sze Sook Wah, Sze Lai Cho and Sze
Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31;
Rollo. pp. 65-68;] and,
(3)
Aida Sy-Gonzales, Manuel Sy,
Teresita Sy-Bernabe and Rodolfo Sy are
the acknowledged illegitimate offsprings
of Sy Kiat with Asuncion Gillego [CFI
decision, pp. 27-28; Rollo, pp. 64- 65.]
held if favor of the oppositors (petitioners

herein) and appointed Sze Sook Wah as
the administratrix of the intestate estate
of the deceased [CFI decision, pp. 68-69;
Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a

decision modifying that of the probate
court, the dispositive portion of which
reads:
IN VIEW OF THE FOREGOING, the decision

of the lower Court is hereby MODIFIED and
SET ASIDE and a new judgment rendered
as follows:
(1)
Declaring petitioners Aida SyGonzales, Manuel Sy, Teresita Sy- Bernabe
and Rodolfo Sy acknowledged natural
children of the deceased Sy Kiat with
Asuncion Gillego, an unmarried woman
with whom he lived as husband and wife
without benefit of marriage for many
years:
(2)
Declaring oppositors Sze Sook Wah,
Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the

deceased Sy Kiat with his Chinese wife Yao
Kee, also known as Yui Yip, since the
legality of the alleged marriage of Sy Mat
to Yao Kee in China had not been proven
to be valid to the laws of the Chinese
People's Republic of China (sic);
(3)
Declaring
the
deed
of
sale
executed by Sy Kiat on December 7, 1976
in favor of Tomas Sy (Exhibit "G-1", English
translation of Exhibit "G") of the Avenue
Tractor and Diesel Parts Supply to be valid
and accordingly, said property should be
excluded from the estate of the deceased
Sy Kiat; and
(4)
Affirming the appointment by the
lower court of Sze Sook Wah as judicial
administratrix of the estate of the
deceased. [CA decision, pp. 11-12; Rollo,
pp. 36- 37.]
From said decision both parties moved for

partial
reconsideration,
which
was
however denied by respondent court. They
thus interposed their respective appeals to
this Court.
Private respondents filed a petition with

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

questions paragraphs (1) and (2) of the
dispositive portion of the decision of the

Court of Appeals. This petition was initially
denied by the Supreme Court on June 22,
1981. Upon motion of the petitioners the
Court in a resolution dated September 16,
1981 reconsidered the denial and decided
to give due course to this petition. Herein
petitioners assign the following as errors:
I.
RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT
HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE
PEOPLE'S REPUBLIC OF CHINA.
II.
RESPONDENT COURT OF APPEALS
GRAVELY ERRED IN DECLARING AIDA SYGONZALES, MANUEL SY, TERESITA SYBERNABE AND RODOLFO SY AS NATURAL
CHILDREN OF SY KIAT WITH ASUNCION
GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I.
Petitioners argue that the marriage
of Sy Kiat to Yao Kee in accordance with
Chinese law and custom was conclusively
proven. To buttress this argument they
rely on the following testimonial and
documentary evidence.
First,
the
testimony
of
Yao
Kee
summarized by the trial court as follows:
Yao Kee testified that she was married to

Sy Kiat on January 19, 1931 in Fookien,
China; that she does not have a marriage
certificate because the practice during
that time was for elders to agree upon the
betrothal of their children, and in her case,
her elder brother was the one who
contracted or entered into [an] agreement
with the parents of her husband; that the
agreement was that she and Sy Mat would
be married, the wedding date was set, and
invitations were sent out; that the said
agreement was complied with; that she

has five children with Sy Kiat, but two of
them died; that those who are alive are
Sze Sook Wah, Sze Lai Cho, and Sze Chun
Yen, the eldest being Sze Sook Wah who is
already 38 years old; that Sze Sook Wah
was born on November 7, 1939; that she
and her husband, Sy Mat, have been living
in FooKien, China before he went to the
Philippines on several occasions; that the
practice during the time of her marriage
was a written document [is exchanged]
just between the parents of the bride and
the parents of the groom, or any elder for
that matter; that in China, the custom is
that there is a go- between, a sort of
marriage broker who is known to both
parties who would talk to the parents of
the bride-to-be; that if the parents of the
bride-to-be agree to have the groom-to-be
their son in-law, then they agree on a date
as an engagement day; that on
engagement day, the parents of the
groom would bring some pieces of jewelry
to the parents of the bride-to-be, and then
one month after that, a date would be set
for the wedding, which in her case, the
wedding date to Sy Kiat was set on
January 19, 1931; that during the wedding
the bridegroom brings with him a couch
(sic) where the bride would ride and on
that same day, the parents of the bride
would give the dowry for her daughter and
then the document would be signed by the
parties but there is no solemnizing officer
as is known in the Philippines; that during
the wedding day, the document is signed
only by the parents of the bridegroom as
well as by the parents of the bride; that
the parties themselves do not sign the
document; that the bride would then be
placed in a carriage where she would be
brought to the town of the bridegroom and
before departure the bride would be
covered with a sort of a veil; that upon
reaching the town of the bridegroom, the
bridegroom takes away the veil; that
during her wedding to Sy Kiat (according
to said Chinese custom), there were many
persons present; that after Sy Kiat opened
the door of the carriage, two old ladies
helped her go down the carriage and

brought her inside the house of Sy Mat;
that during her wedding, Sy Chick, the
eldest brother of Sy Kiat, signed the
document with her mother; that as to the
whereabouts of that document, she and
Sy Mat were married for 46 years already
and the document was left in China and
she doubt if that document can still be
found now; that it was left in the
possession of Sy Kiat's family; that right
now, she does not know the whereabouts
of that document because of the lapse of
many years and because they left it in a
certain place and it was already eaten by
the termites; that after her wedding with
Sy Kiat, they lived immediately together
as husband and wife, and from then on,
they lived together; that Sy Kiat went to
the Philippines sometime in March or April
in the same year they were married; that
she went to the Philippines in 1970, and
then came back to China; that again she
went back to the Philippines and lived with
Sy Mat as husband and wife; that she
begot her children with Sy Kiat during the
several trips by Sy Kiat made back to
China. [CFI decision, pp. 13-15; Rollo, pp.
50-52.]
Second, the testimony of Gan Ching, a

younger brother of Yao Kee who stated
that he was among the many people who
attended the wedding of his sister with Sy
Kiat and that no marriage certificate is
issued by the Chinese government, a
document signed by the parents or elders
of the parties being sufficient [CFI
decision, pp. 15-16; Rollo, pp.
married according to Chinese custom [CFI

decision, p. 17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered

Alien issued in Caloocan City on October 3,
1972 where the following entries are
found:
"Marital
statusMarried";
"If
married give name of spousesYao Kee";
"Address-China; "Date of marriage
1931"; and "Place of marriageChina"
[Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of

Registration issued in Manila on January
12, 1968 where the following entries are
likewise found: "Civil statusMarried";
and, 'If married, state name and address
of spouseYao Kee Chingkang, China"
[Exhibit "4".]
And lastly, the certification issued in

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

fact of marriage between Yao Kee and Sy
Kiat. However, the same do not suffice to
establish the validity of said marriage in
accordance with Chinese law or custom.
52-53.]
Third, the statements made by Asuncion

Gillego when she testified before the trial
court to the effect that (a) Sy Mat was
married to Yao Kee according to Chinese
custom; and, (b) Sy Kiat's admission to her
that he has a Chinese wife whom he
Custom is defined as "a rule of conduct

formed by repetition of acts, uniformly
observed (practiced) as a social rule,
legally binding and obligatory" [In the
Matter of the Petition for Authority to
Continue Use of the Firm Name "Ozaeta,
Romulo, de Leon, Mabanta and Reyes",
July 30, 1979, SCRA 3, 12 citing JBL Reyes
& RC Puno, Outline of Phil. Civil Law,
Fourth Ed., Vol. 1, p. 7.] The law requires

that "a custom must be proved as a fact,
according to the rules of evidence" [Article
12, Civil Code.] On this score the Court
had occasion to state that "a local custom
as a source of right can not be considered
by a court of justice unless such custom is
properly
established
by
competent
evidence like any other fact" [Patriarca v.
Orate, 7 Phil. 390, 395 (1907).] The same
evidence, if not one of a higher degree,
should be required of a foreign custom.
The law on foreign marriages is provided

by Article 71 of the Civil Code which states
that:
Art. 71.
All marriages performed
outside the Philippines in accordance with
the laws in force in the country where they
were performed and valid there as such,
shall also be valid in this country, except
bigamous, Polygamous, or incestuous
marriages, as determined by Philippine
law. (Emphasis supplied.) ***
Construing this provision of law the Court

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

provided in the Rules of Court. With
respect to an unwritten foreign law, Rule
130 section 45 states that:
SEC. 45.
Unwritten law.The oral
testimony of witnesses, skilled therein, is
admissible as evidence of the unwritten
law of a foreign country, as are also
printed and published books of reports of
decisions of the courts of the foreign

country, if proved to be commonly
admitted in such courts.
Proof of a written foreign law, on the other

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

include competent evidence like the
testimony of a witness to prove the
existence of a written foreign law
[Collector of Internal Revenue v. Fisher
110 Phil. 686, 700-701 (1961) citing
Willamette Iron and Steel Works v. Muzzal,
61 Phil. 471 (1935).]
In the case at bar petitioners did not

present any competent evidence relative
to the law and custom of China on
marriage. The testimonies of Yao and Gan
Ching cannot be considered as proof of
China's law or custom on marriage not
only because they are
self-serving
evidence,
but
more
importantly, there is no showing that they
are competent to testify on the subject

matter. For failure to prove the foreign law
or custom, and consequently, the validity
of the marriage in accordance with said
law or custom, the marriage between Yao
Kee and Sy Kiat cannot be recognized in
this jurisdiction.
Petitioners contend that contrary to the

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

principle that Philippine courts cannot take
judicial notice of foreign laws. They must
be alleged and proved as any other fact
[Yam Ka Lim v. Collector of Customs, 30
Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil.
610 (1930).]
Moreover a reading of said case would

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

argument that the Court has indeed taken
judicial notice of the law of China on
marriage
in
the
aforecited
case,
petitioners however have not shown any
proof that the Chinese law or custom
obtaining at the time the Sy Joc Lieng

marriage was celebrated in 1847 was still
the law when the alleged marriage of Sy
Kiat to Yao Kee took place in 1931 or
eighty-four (84) years later.
Petitioners moreover cite the case of U.S.

v. Memoracion [34 Phil. 633 (1916)] as
being applicable to the instant case. They
aver that the judicial pronouncement in
the Memoracion case, that the testimony
of one of the contracting parties is
competent evidence to show the fact of
marriage, holds true in this case.
The Memoracion case however is not

applicable to the case at bar as said case
did not concern a foreign marriage and the
issue posed was whether or not the oral
testimony of a spouse is competent
evidence to prove the fact of marriage in a
complaint for adultery.
Accordingly, in the absence of proof of the

Chinese law on marriage, it should be
presumed that it is the same as ours ***
[Wong Woo Yiu v. Vivo, G.R. No. L-21076,
March 31, 1965, 13 SCRA 552, 555.] Since
Yao Kee admitted in her testimony that
there was no solemnizing officer as is
known here in the Philippines [See Article
56, Civil Code] when her alleged marriage
to Sy Mat was celebrated [CFI decision, p.
14; Rollo, p. 51], it therefore follows that
her marriage to Sy Kiat, even if true,
cannot be recognized in this jurisdiction
[Wong Woo Yiu v. Vivo, supra., pp. 555556.]
II.
The second issue raised by
petitioners concerns the status of private
respondents.
Respondent court found the following

evidence of petitioners' filiation:
(1)
Sy Kiat's Master Card of Registered
Alien where the following are entered:
"Children if any: give number of children
Four"; and, "NameAll living in China"
[Exhibit "SS-1";]
(2)
the testimony of their mother Yao
Kee who stated that she had five children
with Sy Kiat, only three of whom are alive
namely, Sze Sook Wah, Sze Lai Chu and
Sze Chin Yan [TSN, December 12, 1977,
pp. 9-11;] and,
(3)
an affidavit executed on March
22,1961 by Sy Kiat for presentation to the
Local Civil Registrar of Manila to support
Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated
that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of

Asuncion Gillego that Sy Kiat told her he
has three daughters with his Chinese wife,
two of whomSook Wah and Sze Kai Cho
she knows, and one adopted son [TSN,
December 6,1977, pp. 87-88.]
However, as petitioners failed to establish

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

also the deceased's acknowledged natural
children with Asuncion Gillego, a Filipina
with whom he lived for twenty-five (25)
years without the benefit of marriage.
They have in their favor their father's
acknowledgment,
evidenced
by
a
compromise agreement entered into by
and between their parents and approved
by the Court of First Instance on February
12, 1974 wherein Sy Kiat not only
acknowleged them as his children by
Asuncion Gillego but likewise made
provisions for their support and future
inheritance, thus:
xxx
xxx
xxx
2.
The parties also acknowledge that
they are common-law husband and wife
and that out of such relationship, which
they have likewise decided to definitely
and
finally
terminate
effective
immediately, they begot five children,
namely: Aida Sy, born on May 30, 1950;
Manuel Sy, born on July 1, 1953; Teresita
Sy, born on January 28, 1955; Ricardo Sy
now deceased, born on December 14,
1956; and Rodolfo Sy, born on May 7,
1958.
3.
With respect to the AVENUE
TRACTOR AND DIESEL PARTS SUPPLY ... ,
the parties mutually agree and covenant
that
(a)
The stocks and merchandize and
the furniture and equipments ..., shall be
divided into two equal shares between,
and distributed to, Sy Kiat who shall own
one-half of the total and the other half to
Asuncion Gillego who shall transfer the
same to their children, namely, Aida Sy,
Manuel Sy, Teresita Sy, and Rodolfo Sy.
(b)
the business name and premises ...
shall be retained by Sy Kiat. However, it
shall be his obligation to give to the
aforenamed children an amount of One
Thousand Pesos ( Pl,000.00 ) monthly out
of the rental of the two doors of the same
building
now
occupied
by
Everett
Construction.
xxx
xxx
xxx
(5)
With respect to the acquisition,
during the existence of the
common-law
husband-and-wife
relationship between the parties, of the
real estates and properties registered
and/or appearing in the name of Asuncion
Gillego ... , the parties mutually agree and
covenant that the said real estates and
properties shall be transferred in equal
shares to their children, namely, Aida Sy,
Manuel Sy, Teresita Sy, and Rodolfo Sy,
but to be administered by Asuncion
Gillego during her lifetime ... [Exhibit "D".]
(Emphasis supplied.)
xxx
xxx
xxx
This compromise agreement constitutes a

statement before a court of record by
which a child may be voluntarily
acknowledged [See Art. 278, Civil Code.]
Petitioners
further
argue
that
the
questions on the validity of Sy Mat's
marriage to Yao Kee and the paternity and
filiation of the parties should have been
ventilated in the Juvenile and Domestic
Relations Court.
Specifically, petitioners rely on the

following provision of Republic Act No.
5502, entitled "An Act Revising Rep. Act
No. 3278, otherwise known as the Charter
of the City of Caloocan', with regard to the
Juvenile and Domestic Relations Court:
SEC. 91-A.
the Court.
Creation and Jurisdiction of
xxx
xxx
xxx
The provisions of the Judiciary Act to the

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

Bartolome [G.R. No. L-23661, 21 SCRA
1324] reiterated in Divinagracia v. Rovira
[G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa

Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, the Juvenile
and Domestic Relations Courts were
abolished. Their functions and jurisdiction
are now vested with the Regional Trial
Courts [See Section 19 (7), B.P. Blg. 129
and Divinagracia v. Belosillo, G.R. No. L47407, August 12, 1986, 143 SCRA 356,
360] hence it is no longer necessary to
pass upon the issue of jurisdiction raised
by petitioners.
Moreover, even without the exactment of

Batas Pambansa Blg. 129 we find in Rep.
Act No. 5502 sec. 91-A last paragraph
that:
xxx
xxx
xxx
If any question involving any of the above

matters should arise as an incident in any
case pending in the ordinary court, said
incident shall be determined in the main
case.
administration proceeding is pending or

existing and has not been terminated. [at
pp. 313-314.] (Emphasis supplied.)
xxx
xxx
xxx
The reason for ths rule is not only "to

obviate the rendition of conflicting rulings
on the same issue by the Court of First
Instance and the Juvenile and Domestic
Relations Court" [Vda. de Baluyut v.
Luciano, G.R. No. L-42215, July 13, 1976,
72 SCRA 52, 63] but more importantly to
prevent multiplicity of suits. Accordingly,
this Court finds no reversible error
committed by respondent court.
WHEREFORE, the decision of the Court of

Appeals is hereby AFFIRMED.
SO ORDERED.
XXXXXXXXXX
EQUITY IN THE APPLICATION OF LAWS
xxx
xxx
xxx
As held in the case of Divinagracia v.

Rovira [G.R. No. L42615. August 10, 1976,
72 SCRA 307]:
xxx
xxx
xxx
It is true that under the aforequoted

section 1 of Republic Act No. 4834 **** a
case
involving
paternity
and
acknowledgment may be ventilated as an
incident in the intestate or testate
proceeding (See Baluyot vs. Ines Luciano,
L-42215, July 13, 1976). But that legal
provision presupposes that such an
G.R. No. L-30642
April 30, 1985
PERFECTO S. FLORESCA, in his own behalf

and on behalf of the minors ROMULO and
NESTOR S. FLORESCA; and ERLINDA
FLORESCA-GABUYO, PEDRO S. FLORESCA,
JR., CELSO S. FLORESCA, MELBA S.
FLORESCA, JUDITH S. FLORESCA and
CARMEN S. FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her

own behalf and on behalf of her minor
children LINDA, ROMEO, ANTONIO JEAN
and ELY, all surnamed Martinez; and
DANIEL MARTINEZ and TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in

her own behalf and on behalf of her minor
children JOSE, ESTELA, JULITA SALUD and
DANILO, all surnamed OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her

children EDNA, GEORGE and LARRY III, all
surnamed VILLAR;
DOLORES LOLITA ADER VDA. DE LANUZA,

in her own behalf and on behalf of her
minor
children
EDITHA,
ELIZABETH,
DIVINA,
RAYMUNDO,
NESTOR
and
AURELIO, JR. all surnamed LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her

children JOSE, LORENZO, JR., MARIA,
VENUS and FELIX, all surnamed ISLA,
petitioners,
vs.
PHILEX MINING CORPORATION and HON.
JESUS P. MORFE, Presiding Judge of Branch
XIII, Court of First Instance of Manila,
respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.
MAKASIAR, J.:
This is a petition to review the order of the

former Court of First Instance of Manila,
Branch XIII, dated December 16, 1968
dismissing petitioners' complaint for
damages on
jurisdiction.
the
ground
of
lack
of
Petitioners are the heirs of the deceased

employees of Philex Mining Corporation
(hereinafter referred to as Philex), who,
while working at its copper mines
underground operations at Tuba, Benguet
on June 28, 1967, died as a result of the
cave-in that buried them in the tunnels of
the mine. Specifically, the complaint
alleges that Philex, in violation of
government
rules
and
regulations,
negligently and deliberately failed to take
the required precautions for the protection
of the lives of its men working
underground. Portion of the complaint
reads:
xxx
xxx
xxx
9.
That for sometime prior and up to
June 28,1967, the defendant PHILEX, with
gross and reckless negligence and
imprudence and deliberate failure to take
the required precautions for the due
protection of the lives of its men working
underground at the time, and in utter
violation of the laws and the rules and
regulations duly promulgated by the
Government pursuant thereto, allowed
great amount of water and mud to
accumulate in an open pit area at the
mine above Block 43-S-1 which seeped
through and saturated the 600 ft. column
of broken ore and rock below it, thereby
exerting tremendous pressure on the
working spaces at its 4300 level, with the
result that, on the said date, at about 4
o'clock in the afternoon, with the collapse
of all underground supports due to such
enormous
pressure,
approximately
500,000 cubic feet of broken ores rocks,
mud and water, accompanied by surface
boulders, blasted through the tunnels and
flowed out and filled in, in a matter of
approximately five (5) minutes, the
underground workings, ripped timber

supports and carried off materials,
machines and equipment which blocked
all avenues of exit, thereby trapping within
its tunnels of all its men above referred to,
including those named in the next
preceding paragraph, represented by the
plaintiffs herein;
10.
That out of the 48 mine workers
who were then working at defendant
PHILEX's mine on the said date, five (5)
were able to escape from the terrifying
holocaust; 22 were rescued within the
next 7 days; and the rest, 21 in number,
including those referred to in paragraph 7
hereinabove, were left mercilessly to their
fate, notwithstanding the fact that up to
then, a great many of them were still
alive, entombed in the tunnels of the
mine, but were not rescued due to
defendant PHILEX's decision to abandon
rescue operations, in utter disregard of its
bounden legal and moral duties in the
premises;
xxx
xxx
xxx
13.
That defendant PHILEX not only
violated the law and the rules and
regulations duly promulgated by the duly
constituted authorities as set out by the
Special Committee above referred to, in
their Report of investigation, pages 7-13,
Annex 'B' hereof, but also failed
completely to provide its men working
underground the necessary security for
the
protection
of
their
lives
notwithstanding the fact that it had vast
financial resources, it having made, during
the year 1966 alone, a total operating
income of P 38,220,254.00, or net
earnings, after taxes of P19,117,394.00,
as per its llth Annual Report for the year
ended December 31, 1966, and with
aggregate
assets
totalling
P
45,794,103.00 as of December 31, 1966;
xxx
xxx
xxx
(pp. 42-44, rec.)
A motion to dismiss dated May 14, 1968

was filed by Philex alleging that the
causes of action of petitioners based on an
industrial accident are covered by the
provisions
of
the
Workmen's
Compensation Act (Act 3428, as amended
by RA 772) and that the former Court of
First Instance has no jurisdiction over the
case. Petitioners filed an opposition dated
May 27, 1968 to the said motion to
dismiss claiming that the causes of action
are not based on the provisions of the
Workmen's Compensation Act but on the
provisions of the Civil Code allowing the
award of actual, moral and exemplary
damages, particularly:
Art. 2176.
Whoever by act or omission
causes damage to another, there being
fault or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre- existing
contractual relation between the parties,
is called a quasi-delict and is governed by
the provisions of this Chapter.
Art. 2178. The provisions of articles 1172

to 1174 are also applicable to a quasidelict.
(b)
Art. 1173The 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, paragraph 2
shall apply.
Petitioners thus filed the present petition.

Art. 2201. x x x x x x x x x
In case of fraud, bad faith, malice or

wanton attitude, the obligor shall be
responsible for all damages which may be
reasonably
attributed
to
the
nonperformance of the obligation.
Art. 2231. In quasi-delicts, exemplary

damages may be granted if the defendant
acted with gross negligence.
In their brief, petitioners raised

following assignment of errors:
the
THE LOWER COURT ERRED IN DISMISSING

THE PLAINTIFFS- PETITIONERS' COMPLAINT
FOR LACK OF JURISDICTION.
II
After a reply and a rejoinder thereto were
filed, respondent Judge issued an order
dated June 27, 1968 dismissing the case
on the ground that it falls within the
exclusive jurisdiction of the Workmen's
Compensation
Commission.
On
petitioners' motion for reconsideration of
the said order, respondent Judge, on
September 23, 1968, reconsidered and set
aside his order of June 27, 1968 and
allowed Philex to file an answer to the
complaint. Philex moved to reconsider the
aforesaid order which was opposed by
petitioners.
On December 16, 1968, respondent Judge

dismissed the case for lack of jurisdiction
and ruled that in accordance with the
established jurisprudence, the Workmen's
Compensation Commission has exclusive
original jurisdiction over damage or
compensation claims for work-connected
deaths or injuries of workmen or
employees, irrespective of whether or not
the employer was negligent, adding that if
the employer's negligence results in workconnected deaths or injuries, the employer
shall, pursuant to Section 4-A of the
Workmen's
Compensation
Act,
pay
additional compensation equal to 50% of
the compensation fixed in the Act.
THE LOWER COURT ERRED IN FAILING TO

CONSIDER
THE
CLEAR
DISTINCTION
BETWEEN CLAIMS FOR DAMAGES UNDER
THE CIVIL CODE AND CLAIMS FOR
COMPENSATION UNDER THE WORKMEN'S
COMPENSATION ACT.
In the first assignment of error, petitioners

argue that the lower court has jurisdiction
over the cause of action since the
complaint is based on the provisions of the
Civil Code on damages, particularly
Articles 2176, 2178, 1173, 2201 and 2231,
and not on the provisions of the
Workmen's Compensation Act. They point
out that the complaint alleges gross and
brazen negligence on the part of Philex in
failing to take the necessary security for
the protection of the lives of its employees
working underground. They also assert
that since Philex opted to file a motion to
dismiss in the court a quo, the allegations
in
their
complaint
including
those
contained in the annexes are deemed
admitted.
In the second assignment of error,

petitioners asseverate that respondent
Judge failed to see the distinction between
the claims for compensation under the
Workmen's Compensation Act and the
claims for damages based on gross
negligence of Philex under the Civil Code.
They
point
out
that
workmen's
compensation refers to liability for
compensation for loss resulting from
injury, disability or death of the working
man through industrial accident or
disease, without regard to the fault or
negligence of the employer, while the
claim for damages under the Civil Code
which petitioners pursued in the regular
court, refers to the employer's liability for
reckless and wanton negligence resulting
in the death of the employees and for
which the regular court has jurisdiction to
adjudicate the same.
On the other hand, Philex asserts that

work-connected injuries are compensable
exclusively under the provisions of
Sections 5 and 46 of the Workmen's
Compensation Act, which read:
SEC. 5.Exclusive right to compensation.

The rights and remedies granted by this
Act to an employee by reason of a
personal
injury
entitling
him
to
compensation shall exclude all other rights
and remedies accruing to the employee,
his personal representatives, dependents
or nearest of kin against the employer
under the Civil Code and other laws
because of said injury ...
SEC. 46.
Jurisdiction.
The
Workmen's Compensation Commissioner
shall have exclusive jurisdiction to hear
and decide claims for compensation under
the Workmen's Compensation Act, subject
to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster

Wheeler (98 Phil. 855 [1956]) where it was
held that "all claims of workmen against
their employer for damages due to
accident suffered in the course of
employment shall be investigated and
adjudicated
by
the
Workmen's
Compensation Commission," subject to
appeal to the Supreme Court.
Philex maintains that the fact that an

employer was negligent, does not remove
the case from the exclusive character of
recoveries
under
the
Workmen's
Compensation Act; because Section 4-A of
the
Act
provides
an
additional
compensation in case the employer fails
to comply with the requirements of safety
as imposed by law to prevent accidents. In
fact, it points out that Philex voluntarily
paid the compensation due the petitioners
and all the payments have been accepted
in behalf of the deceased miners, except
the heirs of Nazarito Floresca who insisted
that they are entitled to a greater amount
of damages under the Civil Code.
In the hearing of this case, then

Undersecretary of Labor Israel Bocobo,
then Atty. Edgardo Angara, now President
of the University of the Philippines, Justice
Manuel Lazaro, as corporate counsel and
Assistant General Manager of the GSIS
Legal
Affairs
Department,
and
Commissioner on Elections, formerly UP
Law Center Director Froilan Bacungan,
appeared as amici curiae and thereafter,
submitted their respective memoranda.
The issue to be resolved as WE stated in

the resolution of November 26, 1976, is:
Whether the action of an injured employee

or worker or that of his heirs in case of his
death under the Workmen's Compensation
Act is exclusive, selective or cumulative,
that is to say, whether his or his heirs'

action is exclusively restricted to seeking
the limited compensation provided under
the Workmen's Compensation Act or
whether they have a right of selection or
choice of action between availing of the
worker's right under the Workmen's
Compensation Act and suing in the regular
courts under the Civil Code for higher
damages (actual, moral and/or exemplary)
from the employer by virtue of negligence
(or fault) of the employer or of his other
employees or whether they may avail
cumulatively of both actions, i.e., collect
the limited compensation under the
Workmen's Compensation Act and sue in
addition for damages in the regular courts.
There are divergent opinions in this case.

Justice Lazaro is of the opinion that an
injured employee or worker, or the heirs in
case of his death, may initiate a complaint
to recover damages (not compensation
under the Workmen's Compensation Act)
with the regular court on the basis of
negligence of an employer pursuant to the
Civil Code provisions. Atty. Angara
believes otherwise. He submits that the
remedy of an injured employee for workconnected injury or accident is exclusive
in accordance with Section 5 of the
Workmen's Compensation Act, while Atty.
Bacungan's position is that the action is
selective. He opines that the heirs of the
employee in case of his death have a right
of choice to avail themselves of the
benefits provided under the Workmen's
Compensation Act or to sue in the regular
court under the Civil Code for higher
damages from the employer by virtue of
negligence of the latter. Atty. Bocobo's
stand is the same as that of Atty.
Bacungan and adds that once the heirs
elect the remedy provided for under the
Act, they are no longer entitled to avail
themselves of the remedy provided for
under the Civil Code by filing an action for
higher damages in the regular court, and
vice versa.
On August 3, 1978, petitioners-heirs of

deceased employee Nazarito Floresca filed
a motion to dismiss on the ground that
they have amicably settled their claim
with respondent Philex. In the resolution of
September 7, 1978, WE dismissed the
petition only insofar as the aforesaid
petitioners are connected, it appearing
that there are other petitioners in this
case.
WE hold that the former Court of First

Instance has jurisdiction to try the case,
It should be underscored that petitioners'

complaint is not for compensation based
on the Workmen's Compensation Act but a
complaint for damages (actual, exemplary
and moral) in the total amount of eight
hundred
twenty-five
thousand
(P825,000.00) pesos. Petitioners did not
invoke the provisions of the Workmen's
Compensation Act to entitle them to
compensation thereunder. In fact, no
allegation appeared in the complaint that
the employees died from accident arising
out of and in the course of their
employments. The complaint instead
alleges gross and reckless negligence and
deliberate failure on the part of Philex to
protect the lives of its workers as a
consequence of which a cave-in occurred
resulting in the death of the employees
working underground. Settled is the rule
that in ascertaining whether or not the
cause of action is in the nature of
workmen's compensation claim or a claim
for damages pursuant to the provisions of
the Civil Code, the test is the averments or
allegations in the complaint (Belandres vs.
Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between

Philex and the deceased employees a
contractual relationship. The alleged gross
and reckless negligence and deliberate
failure that amount to bad faith on the

part of Philex, constitute a breach of
contract for which it may be held liable for
damages. The provisions of the Civil Code
on cases of breach of contract when there
is fraud or bad faith, read:
Art. 2232.
In contracts and quasicontracts, the court may award exemplary
damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive
or malevolent manner.
Art. 2201. In contracts and quasicontracts, the damages for which the
obligor who acted in good faith is able
shall be those that are the natural and
probable consequences of the breach of
the obligation, and which the parties have
foreseen or could have reasonably
foreseen at the time the obligation was
constituted.
In cases of fraud, bad faith, malice or

wanton attitude, the obligor shall be
responsible for all damages which may be
reasonably
attributed
to
the
nonperformance of the obligation.
Furthermore, Articles 2216 et seq., Civil

Code, allow the payment of all kinds of
damages, as assessed by the court.
The rationale in awarding compensation

under the Workmen's Compensation Act
differs from that in giving damages under
the Civil Code. The compensation acts are
based on a theory of compensation
distinct from the existing theories of
damages, payments under the acts being
made as compensation and not as
damages (99 C.J.S. 53). Compensation is
given to mitigate the harshness and
insecurity of industrial life for the
workman and his family. Hence, an
employer is liable whether negligence

exists or not since liability is created by
law. Recovery under the Act is not based
on any theory of actionable wrong on the
part of the employer (99 C.J.S. 36).
In other words, under the compensation

acts, the employer is liable to pay
compensation benefits for loss of income,
as long as the death, sickness or injury is
work-connected or work-aggravated, even
if the death or injury is not due to the fault
of the employer (Murillo vs. Mendoza, 66
Phil. 689). On the other hand, damages
are awarded to one as a vindication of the
wrongful invasion of his rights. It is the
indemnity recoverable by a person who
has sustained injury either in his person,
property or relative rights, through the act
or default of another (25 C.J.S. 452).
The claimant for damages under the Civil

Code has the burden of proving the causal
relation
between
the
defendant's
negligence and the resulting injury as well
as the damages suffered. While under the
Workmen's Compensation Act, there is a
presumption in favor of the deceased or
injured employee that the death or injury
is work-connected or work-aggravated;
and the employer has the burden to prove
otherwise (De los Angeles vs. GSIS, 94
SCRA 308; Carino vs. WCC, 93 SCRA 551;
Maria Cristina Fertilizer Corp. vs. WCC, 60
SCRA 228).
The claim of petitioners that the case is

not
cognizable
by
the
Workmen's
Compensation Commission then, now
Employees Compensation Commission, is
strengthened by the fact that unlike in the
Civil Code, the Workmen's Compensation
Act did not contain any provision for an
award of actual, moral and exemplary
damages. What the Act provided was
merely the right of the heirs to claim
limited compensation for the death in the
amount of six thousand (P6,000.00) pesos

plus burial expenses of two hundred
(P200.00) pesos, and medical expenses
when incurred (Sections 8, 12 and 13,
Workmen's Compensation Act), and an
additional compensation of only 50% if the
complaint alleges failure on the part of the
employer to "install and maintain safety
appliances or to take other precautions for
the prevention of accident or occupational
disease" (Section 4-A, Ibid.). In the case at
bar, the amount sought to be recovered is
over and above that which was provided
and which cannot be granted by the
Commission.
Moreover,
under
the
Workmen's
Compensation Act, compensation benefits
should be paid to an employee who
suffered an accident not due to the
facilities or lack of facilities in the industry
of his employer but caused by factors
outside the industrial plant of his
employer. Under the Civil Code, the
liability of the employer, depends on
breach of contract or tort. The Workmen's
Compensation
Act
was
specifically
enacted to afford protection to the
employees or workmen. It is a social
legislation designed to give relief to the
workman who has been the victim of an
accident causing his death or ailment or
injury in the pursuit of his employment
(Abong vs. WCC, 54 SCRA 379).
WE now come to the query as to whether

or not the injured employee or his heirs in
case of death have a right of selection or
choice
of
action
between
availing
themselves of the worker's right under the
Workmen's Compensation Act and suing in
the regular courts under the Civil Code for
higher damages (actual, moral and
exemplary) from the employers by virtue
of that negligence or fault of the
employers or whether they may avail
themselves cumulatively of both actions,
i.e., collect the limited compensation

and sue in addition for damages in the
regular courts.
In disposing of a similar issue, this Court in

Pacana vs. Cebu Autobus Company, 32
SCRA 442, ruled that an injured worker
has a choice of either to recover from the
employer the fixed amounts set by the
Workmen's Compensation Act or to
prosecute an ordinary civil action against
the tortfeasor for higher damages but he
cannot pursue both courses of action
simultaneously.
In Pacaa WE said:
In the analogous case of Esguerra vs.

Munoz Palma, involving the application of
Section 6 of the Workmen's Compensation
Act on the injured workers' right to sue
thirdparty tortfeasors in the regular
courts, Mr. Justice J.B.L. Reyes, again
speaking for the Court, pointed out that
the injured worker has the choice of
remedies but cannot pursue both courses
of action simultaneously and thus
balanced the relative advantage of
recourse
under
the
Workmen's
Compensation Act as against an ordinary
action.
As applied to this case, petitioner Esguerra

cannot maintain his action for damages
against the respondents (defendants
below), because he has elected to seek
compensation under the Workmen's
Compensation Law, and his claim (case
No.
44549
of
the
Compensation
Commission) was being processed at the
time he filed this action in the Court of
First Instance. It is argued for petitioner
that as the damages recoverable under
the Civil Code are much more extensive
than the amounts that may be awarded
under the Workmen's Compensation Act,
they should not be deemed incompatible.

As already indicated, the injured laborer
was initially free to choose either to
recover from the employer the fixed
amounts set by the Compensation Law or
else, to prosecute an ordinary civil action
against the tortfeasor for higher damages.
While perhaps not as profitable, the
smaller indemnity obtainable by the first
course is balanced by the claimant's being
relieved of the burden of proving the
causal
connection
between
the
defendant's negligence and the resulting
injury, and of having to establish the
extent of the damage suffered; issues that
are apt to be troublesome to establish
satisfactorily. Having staked his fortunes
on a particular remedy, petitioner is
precluded from pursuing the alternate
course, at least until the prior claim is
rejected
by
the
Compensation
Commission. Anyway, under the proviso of
Section 6 aforequoted, if the employer
Franklin Baker Company recovers, by
derivative action against the alleged
tortfeasors, a sum greater than the
compensation he may have paid the
herein petitioner, the excess accrues to
the latter.
Although the doctrine in the case of

Esguerra vs. Munoz Palma (104 Phil. 582),
applies to third-party tortfeasor, said rule
should likewise apply to the employertortfeasor.
Insofar as the heirs of Nazarito Floresca

are concerned, as already stated, the
petition has been dismissed in the
resolution of September 7, 1978 in view of
the amicable settlement reached by Philex
and the said heirs.
With regard to the other petitioners, it was

alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a
quo, that the heirs of the deceased
employees, namely Emerito Obra, Larry

Villar, Jr., Aurelio Lanuza, Lorenzo Isla and
Saturnino Martinez submitted notices and
claims for compensation to the Regional
Office No. 1 of the then Department of
Labor and all of them have been paid in
full as of August 25, 1967, except
Saturnino Martinez whose heirs decided
that they be paid in installments (pp. 106107, rec.). Such allegation was admitted
by herein petitioners in their opposition to
the motion to dismiss dated May 27, 1968
(pp. 121-122, rec.) in the lower court, but
they set up the defense that the claims
were
filed
under
the
Workmen's
Compensation Act before they learned of
the official report of the committee
created to investigate the accident which
established the criminal negligence and
violation of law by Philex, and which report
was forwarded by the Director of Mines to
the then Executive Secretary Rafael Salas
in a letter dated October 19, 1967 only (p.
76, rec.).
WE hold that although the other

petitioners had received the benefits
under the Workmen's Compensation Act,
such may not preclude them from bringing
an action before the regular court because
they became cognizant of the fact that
Philex has been remiss in its contractual
obligations with the deceased miners only
after receiving compensation under the
Act. Had petitioners been aware of said
violation of government rules and
regulations by Philex, and of its
negligence, they would not have sought
redress
under
the
Workmen's
Compensation Commission which awarded
a lesser amount for compensation. The
choice of the first remedy was based on
ignorance or a mistake of fact, which
nullifies the choice as it was not an
intelligent choice. The case should
therefore be remanded to the lower court
for further proceedings. However, should
the petitioners be successful in their bid
before the lower court, the payments
made under the Workmen's Compensation
Act should be deducted from the damages

that may be decreed in their favor.
Contrary to the perception of the

dissenting opinion, the Court does not
legislate in the instant case. The Court
merely applies and gives effect to the
constitutional guarantees of social justice
then secured by Section 5 of Article 11
and Section 6 of Article XIV of the 1935
Constitution, and now by Sections 6, 7,
and 9 of Article 11 of the DECLARATION OF
PRINCIPLES AND STATE POLICIES of the
1973 Constitution, as amended, and as
implemented by Articles 2176, 2177,
2178, 1173, 2201, 2216, 2231 and 2232 of
the New Civil Code of 1950.
To emphasize,
declares that:
the
1935
Constitution
Sec. 5. The promotion of social justice to

insure the well-being and economic
security of all the people should be the
concern of the State (Art. II).
Sec. 6. The State shall afford protection to

labor, especially to working women, and
minors, and shall regulate the relations
between landowner and tenant, and
between labor and capital in industry and
in agriculture. The State may provide for
compulsory arbitration (Art. XIV).
The 1973 Constitution likewise commands

the State to "promote social justice to
insure the dignity, welfare, and security of
all the people "... regulate the use ... and
disposition of private property and
equitably diffuse property ownership and
profits "establish, maintain and ensure
adequate social services in, the field of
education, health, housing, employment,

welfare and social security to guarantee
the enjoyment by the people of a decent
standard of living" (Sections 6 and 7, Art.
II, 1973 Constitution); "... afford protection
to labor, ... and regulate the relations
between workers and employers ..., and
assure the rights of workers to ... just and
humane conditions of work" (Sec. 9, Art. II,
1973 Constitution, emphasis supplied).
The foregoing constitutional guarantees in

favor of labor institutionalized in Section 9
of Article 11 of the 1973 Constitution and
re-stated as a declaration of basic policy in
Article 3 of the New Labor Code, thus:
Art. 3. Declaration of basic policy.The

State shall afford protection to labor,
promote full employment, ensure equal
work opportunities regardless of sex, race
or creed, and regulate the relations
between workers and employers. The
State shall assure the rights of workers to
self-organization, collective bargaining,
security of tenure, and just and humane
conditions of work. (emphasis supplied).
The aforestated constitutional principles

as implemented by the aforementioned
articles of the New Civil Code cannot be
impliedly repealed by the restrictive
provisions of Article 173 of the New Labor
Code. Section 5 of the Workmen's
Compensation Act (before it was amended
by R.A. No. 772 on June 20, 1952),
predecessor of Article 173 of the New
Labor Code, has been superseded by the
aforestated provisions of the New Civil
Code, a subsequent law, which took effect
on August 30, 1950, which obey the
constitutional mandates of social justice
enhancing as they do the rights of the
workers as against their employers. Article
173 of the New Labor Code seems to
diminish the rights of the workers and
therefore collides with the social justice
guarantee of the Constitution and the

liberal provisions of the New Civil Code.
The guarantees of social justice embodied

in Sections 6, 7 and 9 of Article II of the
1973 Constitution are statements of legal
principles to be applied and enforced by
the courts. Mr. Justice Robert Jackson in
the case of West Virginia State Board of
Education vs. Barnette, with characteristic
eloquence, enunciated:
The very purpose of a Bill of Rights was to

withdraw certain subjects from the
vicissitudes of political controversy, to
place them beyond the reach of majorities
and officials and to establish them as legal
principles to be applied by the courts.
One's right to life, liberty, and property, to
free speech, a free press, freedom of
worship
and
assembly,
and
other
fundamental rights may not be submitted
to vote; they depend on the outcome of no
elections (319 U.S. 625, 638, 87 L.ed.
1638, emphasis supplied).
In case of any doubt which may be

engendered by Article 173 of the New
Labor Code, both the New Labor Code and
the Civil Code direct that the doubts
should be resolved in favor of the workers
and employees.
Thus, Article 4 of the New Labor Code,

otherwise known as Presidential Decree
No. 442, as amended, promulgated on
May 1, 1974, but which took effect six
months thereafter, provides that "all
doubts in the implementation and
interpretation of the provisions of this
Code, including its implementing rules and
regulations, shall be resolved in favor of
labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In

case of doubt in the interpretation or
application of laws, it is presumed that the
law-making body intended right and
justice to prevail. "
More specifically, Article 1702 of the New

Civil Code likewise directs that. "In case of
doubt, all labor legislation and all labor
contracts shall be construed in favor of the
safety and decent living of the laborer."
Before it was amended by Commonwealth

Act No. 772 on June 20, 1952, Section 5 of
the
Workmen's
Compensation
Act
provided:
Sec. 5. Exclusive right to compensation.The rights and remedies granted by this

personal
injury
entitling
him
to
under the Civil Code and other laws,
because
of
said
injury
(emphasis
supplied).
Employers contracting laborecsrs in the

Philippine Islands for work outside the
same may stipulate with such laborers
that the remedies prescribed by this Act
shall apply exclusively to injuries received
outside the Islands through accidents
happening in and during the performance
of the duties of the employment; and all
service contracts made in the manner
prescribed in this section shall be
presumed to include such agreement.
Only the second paragraph of Section 5 of

the Workmen's Compensation Act No.
3428, was amended by Commonwealth
Act No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.The rights and remedies granted by this

personal
injury
entitling
him
to
under the Civil Code and other laws,
because of said injury.
Employers contracting laborers in the

Philippine Islands for work outside the
same shall stipulate with such laborers
that the remedies prescribed by this Act
shall apply to injuries received outside the
Island through accidents happening in and
during the performance of the duties of
the employment. Such stipulation shall not
prejudice the right of the laborers to the
benefits of the Workmen's Compensation
Law of the place where the accident
occurs, should such law be more favorable
to them (As amended by section 5 of
Republic Act No. 772).
Article 173 of the New Labor Code does

not repeal expressly nor impliedly the
applicable provisions of the New Civil
Code, because said Article 173 provides:
Art. 173.
Exclusiveness of liability.Unless otherwise provided, the liability of
the State Insurance Fund under this Title
shall be exclusive and in place of all other
liabilities of the employer to the employee,
his dependents or anyone otherwise
entitled to receive damages on behalf of
the employee or his dependents. The
payment of compensation under this Title
shall bar the recovery of benefits as
provided for in Section 699 of the Revised
Administrative
Code,
Republic
Act
Numbered Eleven hundred sixty-one, as
amended, Commonwealth Act Numbered
One hundred eighty- six, as amended,
Commonwealth
Act
Numbered
Six
hundred ten, as amended, Republic Act
Numbered Forty-eight hundred Sixty-four,
as amended, and other laws whose
benefits are administered by the System
during the period of such payment for the
same disability or death, and conversely
(emphasis supplied).
As above-quoted, Article 173 of the New

Labor Code expressly repealed only
Section 699 of the Revised Administrative
Code, R.A. No. 1161, as amended, C.A. No.
186, as amended, R.A. No. 610, as
amended, R.A. No. 4864, as amended, and
all other laws whose benefits are
administered by the System (referring to
the GSIS or SSS).
Unlike Section 5 of the Workmen's

Compensation Act as aforequoted, Article
173 of the New Labor Code does not even
remotely, much less expressly, repeal the
New Civil Code provisions heretofore
quoted.
It is patent, therefore, that recovery under

the New Civil Code for damages arising
from negligence, is not barred by Article
173 of the New Labor Code. And the
damages recoverable under the New Civil
Code are not administered by the System
provided for by the New Labor Code,
which defines the "System" as referring to
the Government Service Insurance System
or the Social Security System (Art. 167 [c],
[d] and [e] of the New Labor Code).
Furthermore, under Article 8 of the New

Civil Code, decisions of the Supreme Court
form part of the law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or

interpreting the laws or the Constitution
shall form a part of the legal system of the
Philippines.
The Court, through the late Chief Justice

Fred Ruiz Castro, in People vs. Licera ruled:
Article 8 of the Civil Code of the

Philippines decrees that judicial decisions
applying or interpreting the laws or the
Constitution form part of this jurisdiction's
legal system. These decisions, although in
themselves not laws, constitute evidence
of what the laws mean. The application or
interpretation placed by the Court upon a
law is part of the law as of the date of the
enactment of the said law since the
Court's
application
or
interpretation
merely establishes the contemporaneous
legislative intent that the construed law
purports to carry into effect" (65 SCRA
270, 272-273 [1975]).
WE ruled that judicial decisions of the

Supreme
Court
assume
the
same
authority as the statute itself (Caltex vs.
Palomer, 18 SCRA 247; 124 Phil. 763).
The aforequoted provisions of Section 5 of

the Workmen's Compensation Act, before
and
after
it
was
amended
by
Commonwealth Act No. 772 on June 20,
1952, limited the right of recovery in favor
of the deceased, ailing or injured
employee to the compensation provided
for therein. Said Section 5 was not
accorded controlling application by the
Supreme Court in the 1970 case of Pacana
vs. Cebu Autobus Company (32 SCRA 442)
when WE ruled that an injured worker has
a choice of either to recover from the
employer the fixed amount set by the
Workmen's Compensation Act or to
prosecute an ordinary civil action against
the tortfeasor for greater damages; but he
cannot pursue both courses of action

simultaneously. Said Pacana case penned
by Mr. Justice Teehankee, applied Article
1711 of the Civil Code as against the
Workmen's Compensation Act, reiterating
the 1969 ruling in the case of Valencia vs.
Manila Yacht Club (28 SCRA 724, June
30,1969) and the 1958 case of Esguerra
vs. Munoz Palma (104 Phil. 582), both
penned by Justice J.B.L. Reyes. Said
Pacana case was concurred in by Justices
J.B.L. Reyes, Dizon, Makalintal, Zaldivar,
Castro, Fernando and Villamor.
Since the first sentence of Article 173 of

the New Labor Code is merely a restatement of the first paragraph of Section
5 of the Workmen's Compensation Act, as
amended, and does not even refer, neither
expressly nor impliedly, to the Civil Code
as
Section
5
of
the
Workmen's
Compensation Act did, with greater reason
said Article 173 must be subject to the
same interpretation adopted in the cases
of
Pacana,
Valencia
and
Esguerra
aforementioned as the doctrine in the
aforesaid three (3) cases is faithful to and
advances the social justice guarantees
enshrined in both the 1935 and 1973
Constitutions.
It should be stressed likewise that there is

no similar provision on social justice in the
American Federal Constitution, nor in the
various state constitutions of the American
Union.
Consequently,
the
restrictive
nature of the American decisions on the
Workmen's Compensation Act cannot limit
the
range
and
compass
of
OUR
interpretation of our own laws, especially
Article 1711 of the New Civil Code, vis-avis Article 173 of the New Labor Code, in
relation to Section 5 of Article II and
Section 6 of Article XIV of the 1935
Constitution then, and now Sections 6, 7
and 9 of the Declaration of Principles and
State Policies of Article II of the 1973
Constitution.
The dissent seems to subordinate the life

of the laborer to the property rights of the
employer. The right to life is guaranteed
specifically by the due process clause of
the Constitution. To relieve the employer
from liability for the death of his workers
arising from his gross or wanton fault or
failure to provide safety devices for the
protection of his employees or workers
against the dangers which are inherent in
underground mining, is to deprive the
deceased worker and his heirs of the right
to recover indemnity for the loss of the life
of the worker and the consequent loss to
his family without due process of law. The
dissent in effect condones and therefore
encourages such gross or wanton neglect
on the part of the employer to comply with
his legal obligation to provide safety
measures for the protection of the life,
limb and health of his worker. Even from
the moral viewpoint alone, such attitude is
un-Christian.
It is therefore patent that giving effect to

the social justice guarantees of the
Constitution, as implemented by the
provisions of the New Civil Code, is not an
exercise of the power of law-making, but is
rendering obedience to the mandates of
the
fundamental
law
and
the
implementing legislation aforementioned.
The Court, to repeat, is not legislating in

the instant case.
It is axiomatic that no ordinary statute can

override a constitutional provision.
The words of Section 5 of the Workmen's

Compensation Act and of Article 173 of
the New Labor Code subvert the rights of
the petitioners as surviving heirs of the
deceased mining employees. Section 5 of
the Workmen's Compensation Act and

Article 173 of the New Labor Code are
retrogressive;
because
they
are
a
throwback to the obsolete laissez-faire
doctrine of Adam Smith enunciated in
1776 in his treatise Wealth of Nations
(Collier's Encyclopedia, Vol. 21, p. 93,
1964), which has been discarded soon
after the close of the 18th century due to
the Industrial Revolution that generated
the machines and other mechanical
devices (beginning with Eli Whitney's
cotton gin of 1793 and Robert Fulton's
steamboat of 1807) for production and
transportation which are dangerous to life,
limb and health. The old socio-politicaleconomic philosophy of live-and-let-live is
now superdesed by the benign Christian
shibboleth of live-and-help others to live.
Those who profess to be Christians should
not adhere to Cain's selfish affirmation
that he is not his brother's keeper. In this
our civilization, each one of us is our
brother's keeper. No man is an island. To
assert otherwise is to be as atavistic and
ante-deluvian as the 1837 case of Prisley
vs. Fowler (3 MN 1,150 reprint 1030)
invoked by the dissent, The Prisley case
was decided in 1837 during the era of
economic royalists and robber barons of
America.
Only
ruthless,
unfeeling
capitalistics and egoistic reactionaries
continue to pay obeisance to such unChristian doctrine. The Prisley rule
humiliates man and debases him; because
the decision derisively refers to the lowly
worker as "servant" and utilizes with
aristocratic
arrogance
"master"
for
"employer." It robs man of his inherent
dignity and dehumanizes him. To stress
this affront to human dignity, WE only
have to restate the quotation from Prisley,
thus: "The mere relation of the master and
the servant never can imply an obligation
on the part of the master to take more
care of the servant than he may
reasonably be expected to do himself."
This is the very selfish doctrine that
provoked the American Civil War which
generated so much hatred and drew so
much precious blood on American plains
and valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the

law sacrifices the human being. The spirit
of the law insures man's survival and
ennobles
him.
In
the
words
of
Shakespeare, "the letter of the law killeth;
its spirit giveth life."
It is curious that the dissenting opinion

clings to the myth that the courts cannot
legislate.
That myth had been exploded by Article 9

of the New Civil Code, which provides that
"No judge or court shall decline to render
judgment by reason of the silence,
obscurity or insufficiency of the laws. "
Hence, even the legislator himself,

through Article 9 of the New Civil Code,
recognizes that in certain instances, the
court, in the language of Justice Holmes,
"do and must legislate" to fill in the gaps
in the law; because the mind of the
legislator, like all human beings, is finite
and therefore cannot envisage all possible
cases to which the law may apply Nor has
the human mind the infinite capacity to
anticipate all situations.
But about two centuries before Article 9 of

the New Civil Code, the founding fathers
of the American Constitution foresaw and
recognized the eventuality that the courts
may have to legislate to supply the
omissions or to clarify the ambiguities in
the American Constitution and the
statutes.
'Thus, Alexander Hamilton pragmatically

admits that judicial legislation may be
justified but denies that the power of the
Judiciary to nullify statutes may give rise
to Judicial tyranny (The Federalist, Modern
Library, pp. 503-511, 1937 ed.). Thomas
Jefferson went farther to concede that the
court is even independent of the Nation
itself (A.F.L. vs. American Sash Company,
1949 335 US 538).
Many of the great expounders of the

American Constitution likewise share the
same
view.
Chief
Justice
Marshall
pronounced: "It is emphatically the
province and duty of the Judicial
department to say what the law is
(Marbury vs. Madison I Cranch 127 1803),
which was re-stated by Chief Justice
Hughes
when
he
said
that
"the
Constitution is what the judge says it is
(Address on May 3, 1907, quoted by
President Franklin Delano Roosevelt on
March 9, 1937). This was reiterated by
Justice Cardozo who pronounced that "No
doubt the limits for the judge are
narrower. He legislates only between gaps.
He fills the open spaces in the law. " (The
Nature of the Judicial Process, p. 113). In
the language of Chief Justice Harlan F.
Stone, "The only limit to the judicial
legislation is the restraint of the judge"
(U.S. vs. Butler 297 U.S. 1 Dissenting
Opinion, p. 79), which view is also
entertained by Justice Frankfurter and
Justice Robert Jackson. In the rhetoric of
Justice Frankfurter, "the courts breathe
life, feeble or strong, into the inert pages
of the Constitution and all statute books."
It should be stressed that the liability of

the employer under Section 5 of the
Workmen's Compensation Act or Article
173 of the New Labor Code is limited to
death, ailment or injury caused by the
nature of the work, without any fault on
the part of the employers. It is correctly
termed no fault liability. Section 5 of the
Workmen's
Compensation
Act,
as
amended, or Article 173 of the New Labor

Code, does not cover the tortious liability
of the employer occasioned by his fault or
culpable negligence in failing to provide
the safety devices required by the law for
the protection of the life, limb and health
of the workers. Under either Section 5 or
Article 173, the employer remains liable to
pay compensation
benefits to
the
employee whose death, ailment or injury
is work-connected, even if the employer
has faithfully and diligently furnished all
the safety measures and contrivances
decreed by the law to protect the
employee.
The written word is no longer the

"sovereign talisman." In the epigrammatic
language of Mr. Justice Cardozo, "the law
has outgrown its primitive stage of
formalism when the precise word was the
sovereign talisman, and every slip was
fatal" (Wood vs. Duff Gordon 222 NW 88;
Cardozo, The Nature of the Judicial Process
100). Justice Cardozo warned that:
"Sometimes the conservatism of judges
has threatened for an interval to rob the
legislation of its efficacy. ... Precedents
established in those items exert an
unhappy influence even now" (citing
Pound, Common Law and Legislation 21
Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup

de grace when he pragmatically admitted,
although with a cautionary undertone:
"that judges do and must legislate, but
they can do so only interstitially they are
confined from molar to molecular motions"
(Southern Pacific Company vs. Jensen, 244
US 204 1917). And in the subsequent case
of Springer vs. Government (277 US 188,
210-212, 72 L.ed. 845, 852- 853), Justice
Holmes pronounced:
The great ordinances of the Constitution

do not establish and divide fields of black
and white. Even the more specific of them

are found to terminate in a penumbra
shading gradually from one extreme to the
other. x x x. When we come to the
fundamental distinctions it is still more
obvious that they must be received with a
certain latitude or our government could
not go on.
To make a rule of conduct applicable to an

individual who but for such action would
be free from it is to legislate yet it is what
the judges do whenever they determine
which of two competing principles of
policy shall prevail.
xxx
xxx
xxx
It does not seem to need argument to

show that however we may disguise it by
veiling words we do not and cannot carry
out the distinction between legislative and
executive
action
with
mathematical
precision and divide the branches into
waterlight compartments, were it ever so
desirable to do so, which I am far from
believing that it is, or that the Constitution
requires.
True, there are jurists and legal writers

who affirm that judges should not
legislate, but grudgingly concede that in
certain cases judges do legislate. They
criticize the assumption by the courts of
such law-making power as dangerous for it
may degenerate into Judicial tyranny. They
include Blackstone, Jeremy Bentham,
Justice Black, Justice Harlan, Justice
Roberts, Justice David Brewer, Ronald
Dworkin, Rolf Sartorious, Macklin Fleming
and Beryl Harold Levy. But said Justices,
jurists or legal commentators, who either
deny the power of the courts to legislate
in-between gaps of the law, or decry the
exercise of such power, have not pointed
to examples of the exercise by the courts
of such law-making authority in the

interpretation and application of the laws
in specific cases that gave rise to judicial
tyranny or oppression or that such judicial
legislation has not protected public
interest or individual welfare, particularly
the lowly workers or the underprivileged.
On the other hand, there are numerous

decisions interpreting the Bill of Rights
and statutory enactments expanding the
scope of such provisions to protect human
rights. Foremost among them is the
doctrine in the cases of Miranda vs.
Arizona (384 US 436 1964), Gideon vs.
Wainright (372 US 335), Escubedo vs.
Illinois (378 US 478), which guaranteed
the accused under custodial investigation
his rights to remain silent and to counsel
and to be informed of such rights as even
as it protects him against the use of force
or intimidation to extort confession from
him. These rights are not found in the
American Bill of Rights. These rights are
now institutionalized in Section 20, Article
IV of the 1973 Constitution. Only the
peace-and-order adherents were critical of
the activism of the American Supreme
Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for

purposes of the double jeopardy provision
was developed by American judicial
decisions, not by amendment to the Bill of
Rights on double jeopardy (see Justice
Laurel in People vs. Tarok, 73 Phil. 260,
261-268). And these judicial decisions
have been re-stated in Section 7 of Rule
117 of the 1985 Rules on Criminal
Procedure, as well as in Section 9 of Rule
117 of the 1964 Revised Rules of Court. In
both provisions, the second offense is the
same as the first offense if the second
offense is an attempt to commit the first
or frustration thereof or necessarily
includes or is necessarily included in the
first offense.
The requisites of double jeopardy are not

spelled out in the Bill of Rights. They were
also developed by judicial decisions in the
United States and in the Philippines even
before people vs. Ylagan (58 Phil. 851853).
Again, the equal protection clause was

interpreted in the case of Plessy vs.
Ferguson (163 US 537) as securing to the
Negroes equal but separate facilities,
which doctrine was revoked in the case of
Brown vs. Maryland Board of Education
(349 US 294), holding that the equal
protection clause means that the Negroes
are entitled to attend the same schools
attended by the whites-equal facilities in
the same school-which was extended to
public parks and public buses.
De-segregation, not segregation, is now

the governing principle.
Among other examples, the due process

clause was interpreted in the case of
People vs. Pomar (46 Phil. 440) by a
conservative,
capitalistic
court
to
invalidate a law granting maternity leave
to working women-according primacy to
property rights over human rights. The
case of People vs. Pomar is no longer the
rule.
As early as 1904, in the case of Lochner

vs. New York (198 US 45, 76, 49 L. ed.
937, 949), Justice Holmes had been railing
against the conservatism of Judges
perverting the guarantee of due process
to protect property rights as against
human rights or social justice for the
working man. The law fixing maximum
hours of labor was invalidated. Justice
Holmes was vindicated finally in 1936 in
the case of West Coast Hotel vs. Parish
(300 US 377-79; 81 L. ed. 703) where the
American Supreme Court upheld the rights
of workers to social justice in the form of

guaranteed minimum wage for women
and minors, working hours not exceeding
eight (8) daily, and maternity leave for
women employees.
HEREIN PETITIONERS, THE PAYMENTS

ALREADY MADE TO THEM PURSUANT TO
THE WORKMEN'S COMPENSATION ACT
SHALL BE DEDUCTED. NO COSTS.
SO ORDERED.
The power of judicial review and the
principle of separation of powers as well
as the rule on political questions have
been evolved and grafted into the
American Constitution by judicial decisions
(Marbury vs. Madison, supra Coleman vs.
Miller, 307 US 433, 83 L. ed. 1385;
Springer vs. Government, 277 US 210-212,
72 L. ed. 852, 853).
XXXXXXXXXX
[G.R. No. 112170. April 10, 1996]
CESARIO URSUA, petitioner, vs. COURT OF

APPEALS
AND
PEOPLE
OF
THE
PHILIPPINES, respondents.
SYLLABUS
It is noteworthy that Justice Black, who

seems to be against judicial legislation,
penned a separate concurring opinion in
the case of Coleman vs. Miller, supra,
affirming the doctrine of political question
as beyond the ambit of judicial review.
There is nothing in both the American and
Philippine
Constitutions
expressly
providing that the power of the courts is
limited by the principle of separation of
powers and the doctrine on political
questions. There are numerous cases in
Philippine jurisprudence applying the
doctrines of separation of powers and
political questions and invoking American
precedents.
Unlike the American Constitution, both the

1935 and 1973 Philippine Constitutions
expressly vest in the Supreme Court the
power
to
review
the
validity
or
constitutionality
of
any
legislative
enactment or executive act.
WHEREFORE, THE TRIAL COURT'S ORDER

OF DISMISSAL IS HEREBY REVERSED AND
SET ASIDE AND THE CASE IS REMANDED
TO IT FOR FURTHER PROCEEDINGS.
SHOULD
A
GREATER
AMOUNT
OF
DAMAGES BE DECREED IN FAVOR OF
1. STATUTORY CONSTRUCTION; STATUTES;

CONSTRUED WITH REFERENCE TO THE
INTENDED SCOPE AND PURPOSE. - Time
and again we have decreed that statutes
are to be construed in the light of the
purposes to be achieved and the evils
sought to be remedied. Thus in construing
a statute the reason for its enactment
should be kept in mind and the statute
should be construed with reference to the
intended scope and purpose. The court
may consider the spirit and reason of the
statute, where a literal meaning would
lead to absurdity, contradiction, injustice,
or would defeat the clear purpose of the
lawmakers.
2. ID.; COMMONWEALTH ACT 142, AS

AMENDED (AN ACT TO REGULATE THE USE
OF ALIASES); PURPOSE IS TO REGULATE
THE USE OF ALIASES IN BUSINESS
TRANSACTION. - The objective and
purpose of C.A. No. 142 have their origin
and basis in Act No. 3883, An Act to
Regulate the Use in Business Transactions
of Names other than True Names,
Prescribing the Duties of the Director of
the Bureau of Commerce and Industry in
its Enforcement, Providing Penalties for
Violations thereof, and for other purposes,

which was approved on 14 November
1931 and amended by Act No. 4147,
approved on 28 November 1934. The
enactment of C.A. No. 142 as amended
was made primarily to curb the common
practice among the Chinese of adopting
scores of different names and aliases
which created tremendous confusion in
the field of trade. Such a practice almost
bordered on the crime of using fictitious
names which for obvious reasons could
not be successfully maintained against the
Chinese who, rightly or wrongly, claimed
they possessed a thousand and one
names. C.A. No. 142 thus penalized the
act of using an alias name, unless such
alias was duly authorized by proper
judicial proceedings and recorded in the
civil register.
3. CRIMINAL LAW; COMMONWEALTH ACT

142, AS AMENDED (AN ACT TO REGULATE
THE USE OF ALIASES); ALIAS, DEFINED. An alias is a name or names used by a
person or intended to be used by him
publicly and habitually usually in business
transactions in addition to his real name
by which he is registered at birth or
baptized the first time or substitute name
authorized by a competent authority. A
mans name is simply the sound or sounds
by which he is commonly designated by
his fellows and by which they distinguish
him but sometimes a man is known by
several different names and thse are
known as aliases.
4. ID.; ID.; USE OF FICTITIOUS NAME IN A

SINGLE
TRANSACTION
WITHOUT
INTENDING TO BE KNOWN BY THIS NAME
IN ADDITION TO HIS REAL NAME, NOT A
VIOLATION THEREOF. - The use of a
fictitious name or a different name
belonging to another person in a single
instance without any sign or indication
that the user intends to be known by this
name in addition to his real name from
that day forth does not fall within the
prohibition contained in C.A. No. 142 as

amended.
5. ID.; ID.; ID.; CASE AT BAR. - This is so in

the case at bench. It is not disputed that
petitioner introduced himself in the Office
of the Ombudsman as Oscar Perez, which
was the name of the messenger of his
lawyer who should have brought the letter
to that office in the first place instead of
petitioner. He did so while merely serving
the request of his lawyer to obtain a copy
of the complaint in which petitioner was a
respondent. There is no question then that
Oscar Perez is not an alias name of
petitioner. There is no evidence showing
that he had used or was intending to use
that name as his second name in addition
to his real name. The use of the name
Oscar Perez was made by petitioner in an
isolated transaction where he was not
even legally required to expose his real
identity. For, even if he had identified
himself properly at the Office of the
Ombudsman, petitioner would still be able
to get a copy of the complaint as a matter
of right, and the Office of the Ombudsman
could not refuse him because the
complaint was part of public records
hence open to inspection and examination
by
anyone
under
the
proper
circumstances. While the act of petitioner
may be covered by other provisions of
law, such does not constitute an offense
within the concept of C.A. No. 142 as
amended under which he is prosecuted.
The confusion and fraud in business
transactions which the anti-alias law and
its related statutes seek to prevent are not
present here as the circumstances are
peculiar
and
distinct
from
those
contemplated by the legislature in
enacting C.A. No. 142 as amended. There
exists
a
valid
presumption
that
undesirable consequences were never
intended by a legislative measure and that
a construction of which the statute is fairly
susceptible is favored, which will avoid all
objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences.
Indeed, our mind cannot rest easy on the

proposition that petitioner should be
convicted on a law that does not clearly
penalize the act done by him.
Wherefore, the questioned decision of the

Court of Appeals affirming that of the
Regional Trial Court of Davao City is
REVERSED and SET ASIDE and petitioner
CESARIO URSUA is ACQUITTED of the
crime charged.
6. STATUTORY CONSTRUCTION; A PENAL

STATUTE LIKE COMMONWEALTH ACT 142,
AS AMENDED, CONSTRUED STRICTLY
AGAINST THE STATE AND IN FAVOR OF THE
ACCUSED. - As C.A. No. 142 is a penal
statute, it should be construed strictly
against the State and in favor of the
accused. The reason for this principle is
the tenderness of the law for the rights of
individuals and the object is to establish a
certain rule by conformity to which
mankind would be safe, and the discretion
of the court limited.
APPEARANCES OF COUNSEL
Ceferino Padua Law Office for petitioner.

The Solicitor General for respondents.
DECISION
BELLOSILLO, J.:
This is a petition for a review of the

decision of the Court of Appeals which
affirmed the conviction of petitioner by the
Regional Trial Court of Davao City for
violation of Sec. 1 of C.A. No. 142, as
amended by R.A. No. 6085, otherwise
known as An Act to Regulate the Use of
Alliases.[1]
Petitioner Cesario Ursua was a Community

Environment
and
Natural
Resources
Officer assigned in Kidapawan, Cotabato.
On 9 May 1989 the Provincial Governor of
Cotabato requested the Office of the
Ombudsman in Manila to conduct an
investigation on a complaint for bribery,
dishonesty, abuse of authority and giving
of unwarranted benefits by petitioner and
other officials of the Department of
Environment and Natural Resources. The
complaint
was
initiated
by
the
Sangguniang Panlalawigan of Cotabato
through a resolution advising the Governor
to report the involvement of petitioner and
others in the illegal cutting of mahogany
trees and hauling of illegally-cut logs in
the area.[2]
On 1 August 1989 Atty. Francis Palmones,

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

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

he was greeted by an acquaintance, Josefa
Amparo, who also worked in the same
office. They conversed for a while then he
left. When Loida learned that the person
who introduced himself as Oscar Perez
was actually petitioner Cesario Ursua, a
customer of Josefa Amparo in her gasoline
station, Loida reported the matter to the
Deputy Ombudsman who recommended
that petitioner be accordingly charged.
On 18 December 1990, after the

prosecution
had
completed
the
presentation of its evidence, petitioner
without leave of court filed a demurrer to
evidence alleging that the failure of the
prosecution to prove that his supposed
alias was different from his registered
name in the local civil registry was fatal to
its cause. Petitioner argued that no
document from the local civil registry was
presented to show the registered name of
accused which according to him was a
condition sine qua non for the validity of
his conviction.
The trial court rejected his contentions

and found him guilty of violating Sec. 1 of
C.A. No. 142 as amended by R. A. No.
6085. He was sentenced to suffer a prison
term of one (1) year and one (1) day of
prision
correccional
minimum
as
minimum, to four (4) years of prision
correccional medium as maximum, with all
the accessory penalties provided for by
law, and to pay a fine of P4,000.00 plus
costs.
Petitioner
Appeals.
appealed
to
the
Court
of
On 31 May 1993 the Court of Appeals

affirmed the conviction of petitioner but
modified the penalty by imposing an
indeterminate term of one (1) year as
minimum to three (3) years as maximum
and a fine of P5,000.00.
Petitioner now comes to us for review of

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

statutes are to be construed in the light of
the purposes to be achieved and the evils
sought to be remedied. Thus in construing
a statute the reason for its enactment
should be kept in mind and the statute
should be construed with reference to the
intended scope and purpose.[6] The court
may consider the spirit and reason of the
statute, where a literal meaning would
lead to absurdity, contradiction, injustice,
or would defeat the clear purpose of the

lawmakers.[7]
For a clear understanding of the purpose

of C.A. No. 142 as amended, which was
allegedly violated by petitioner, and the
surrounding circumstances under which
the law was enacted, the pertinent
provisions thereof, its amendments and
related statutes are herein cited. C.A. No.
142, which was approved on 7 November
1936, and before its amendment by R. A.
No. 6085, is entitled An Act to Regulate
the Use of Aliases. It provides as follows:
Section 1. Except as a pseudonym for

literary purposes, no person shall use any
name different from the one with which he
was christened or by which he has been
known since his childhood, or such
substitute name as may have been
authorized by a competent court. The
name shall comprise the patronymic name
and one or two surnames.
Section 2. Any person desiring to use an

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

by R. A. No. 6085, approved on 4 August
1969. As amended, C.A. No. 142 now
reads:
Section 1. Except as a pseudonym solely

for literary, cinema, television, radio or
other entertainment purposes and in
athletic events where the use of
pseudonym is a normally accepted
practice, no person shall use any name
different from the one with which he was
registered at birth in the office of the local
civil registry or with which he was
baptized for the first time, or in case of an
alien, with which he was registered in the
bureau of immigration upon entry; or such
substitute name as may have been
authorized
by
a
competent
court:
Provided, That persons whose births have
not been registered in any local civil
registry and who have not been baptized,
have one year from the approval of this
act within which to register their names in
the civil registry of their residence. The
name shall comprise the patronymic name
and one or two surnames.
Sec. 2. Any person desiring to use an alias

shall apply for authority therefor in
proceedings like those legally provided to
obtain judicial authority for a change of
name and no person shall be allowed to
secure such judicial authority for more
than one alias. The petition for an alias
shall set forth the persons baptismal and
family name and the name recorded in the
civil registry, if different, his immigrants
name, if an alien, and his pseudonym, if
he has such names other than his original
or real name, specifying the reason or
reasons for the desired alias. The judicial
authority for the use of alias, the christian
name and the alien immigrants name shall
be recorded in the proper local civil
registry, and no person shall use any
name or names other than his original or
real name unless the same is or are duly
recorded in the proper local civil registry.
The objective and purpose of C. A. No. 142

have their origin and basis in Act No.
3883, An Act to Regulate the Use in
Business Transactions of Names other
than True Names, Prescribing the Duties of

the Director of the Bureau of Commerce
And Industry in its Enforcement, Providing
Penalties for Violations thereof, and for
other purposes, which was approved on 14
November 1931 and amended by Act No.
4147, approved on 28 November 1934.[8]
The pertinent provisions of Act No. 3883
as amended follow -Section 1. It shall be
unlawful for any person to use or sign, on
any written or printed receipt including
receipt for tax or business or any written
or printed contract not verified by a notary
public or on any written or printed
evidence of any agreement or business
transactions, any name used in connection
with his business other than his true
name, or keep conspicuously exhibited in
plain view in or at the place where his
business is conducted, if he is engaged in
a business, any sign announcing a firm
name or business name or style without
first registering such other name, or such
firm name, or business name or style in
the Bureau of Commerce together with his
true name and that of any other person
having a joint or common interest with
him in such contract agreement, business
transaction, or business x x x.
For a bit of history, the enactment of C.A.

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

of an alias within the purview of C.A. No.
142 when we ruled
There can hardly be any doubt that

petitioners use of alias Kheng Chiau Young
in addition to his real name Yu Cheng
Chiau would add to more confusion. That
he is known in his business, as manager of
the Robert Reid, Inc., by the former name,
is not sufficient reason to allow him its
use. After all, petitioner admitted that he
is known to his associates by both names.
In fact, the Anselmo Trinidad, Inc., of which
he is a customer, knows him by his real
name. Neither would the fact that he had
encountered certain difficulties in his
transactions with government offices
which required him to explain why he bore
two names, justify the grant of his
petition, for petitioner could easily avoid
said difficulties by simply using and
sticking only to his real name Yu Cheng
Chiau.
The fact that petitioner intends to reside

permanently in the Philippines, as shown
by his having filed a petition for
naturalization in Branch V of the
abovementioned court, argues the more
against the grant of his petition, because if
naturalized as a Filipino citizen, there
would then be no necessity for his further
using said alias, as it would be contrary to
the usual Filipino way and practice of
using only one name in ordinary as well as
business transactions. And, as the lower
court correctly observed, if he believes
(after he is naturalized) that it would be
better for him to write his name following
the Occidental method, he can easily file a
petition for change of name, so that in lieu
of the name Yu Kheng Chian, he can,
abandoning the same, ask for authority to
adopt the name Kheng Chiau Young.
In Yu Kheng Chiau v. Republic[10] the

Court had occasion to explain the
All things considered, we are of the

opinion and so hold, that petitioner has
not shown satisfactory proper and
reasonable grounds under the aforequoted
provisions of Commonwealth Act No. 142
and the Rules of Court, to warrant the
grant of his petition for the use of an alias
name.
Clearly therefore an alias is a name or

names used by a person or intended to be
used by him publicly and habitually
usually in business transactions in addition
to his real name by which he is registered
at birth or baptized the first time or
substitute
name
authorized
by
a
competent authority. A mans name is
simply the sound or sounds by which he is
commonly designated by his fellows and
by which they distinguish him but
sometimes a man is known by several
different names and these are known as
aliases.[11] Hence, the use of a fictitious
name or a different name belonging to
another person in a single instance
without any sign or indication that the
user intends to be known by this name in
addition to his real name from that day
forth does not fall within the prohibition
contained in C.A. No. 142 as amended.
This is so in the case at bench.
It is not disputed that petitioner

introduced himself in the Office of the
Ombudsman as Oscar Perez, which was
the name of the messenger of his lawyer
who should have brought the letter to that
office in the first place instead of
petitioner. He did so while merely serving
the request of his lawyer to obtain a copy
of the complaint in which petitioner was a
respondent. There is no question then that
Oscar Perez is not an alias name of
petitioner. There is no evidence showing
that he had used or was intending to use
that name as his second name in addition
to his real name. The use of the name
Oscar Perez was made by petitioner in an
isolated transaction where he was not
even legally required to expose his real

identity. For, even if he had identified
himself properly at the Office of the
Ombudsman, petitioner would still be able
to get a copy of the complaint as a matter
of right, and the Office of the Ombudsman
could not refuse him because the
complaint was part of public records
hence open to inspection and examination
by
anyone
under
the
proper
circumstances.
While the act of petitioner may be covered

by other provisions of law, such does not
constitute an offense within the concept of
C.A. No. 142 as amended under which he
is prosecuted. The confusion and fraud in
business transactions which the anti-alias
law and its related statutes seek to
prevent are not present here as the
circumstances are peculiar and distinct
from
those
contemplated
by
the
legislature in enacting C.A. No. 142 as
amended.
There
exists
a
valid
presumption
that
undesirable
consequences were never intended by a
legislative
measure
and
that
a
construction of which the statute is fairly
susceptible is favored, which will avoid all
objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences.
[12] Moreover, as C.A. No. 142 is a penal
statute, it should be construed strictly
against the State and in favor of the
accused.[13] The reason for this principle
is the tenderness of the law for the rights
of individuals and the object is to establish
a certain rule by conformity to which
mankind would be safe, and the discretion
of the court limited.[14] Indeed, our mind
cannot rest easy on the proposition that
petitioner should be convicted on a law
that does not clearly penalize the act done
by him.
WHEREFORE, the questioned decision of

the Court of Appeals affirming that of the
Regional Trial Court of Davao City is
REVERSED and SET ASIDE and petitioner
CESARIO URSUA is ACQUITTED of the

crime charged.
officials on the high seas, the contention

being raised that importation had not yet
begun and that the seizure was effected
outside our territorial waters..
SO ORDERED.
XXXXXXXXXX
G.R. No. L-24170
December 16, 1968
ILLUH ASAALI, HATIB ABDURASID, INGKOH

BANTALA,
BASOK
INGKIN,
and
MOHAMMAD BANTALLA, petitioners,
vs.
THE
COMMISSIONER
respondent.
OF
Why such a plea could not be given the

least credence without doing violence to
common sense and placing the law in
disrepute would be apparent from a
statement of the case and the findings of
facts as set forth in the decision now
under review, of the Court of Tax Appeals,
dated November 19, 1964, the opinion
being penned by the late Associate Judge
Augusto M. Luciano.
CUSTOMS,
FERNANDO, J.:
The policy relentlessly adhered to and

unhesitatingly pursued to minimize, if not
to do away entirely, with the evil and
corruption that smuggling brings in its
wake would be frustrated and set at
naught if the action taken by respondent
Commissioner of Customs in this case, as
affirmed by the Court of Tax Appeals, were
to be set aside and this appeal from the
decision of the latter were to succeed.
Fortunately, the controlling principles of
law do not call for a contrary conclusion. It
cannot be otherwise if the legitimate
authority vested in the government were
not to be reduced to futility and impotence
in the face of an admittedly serious
malady, that at times has assumed
epidemic proportions.
The
principal
question
raised
by
petitioners, owners of five sailing vessels
and the cargo loaded therein declared
forfeited by respondent Commissioner of
Customs for smuggling, is the validity of
their interception and seizure by customs
His opinion starts thus: "This is an appeal

from
the
decision
of
the
Acting
Commissioner of Customs in Customs
Case No. 113, dated September 26, 1961,
(Jolo Seizure Identification Cases Nos. 38,
39, 40, 41 & 42) decreeing the forfeiture
of five (5) sailing vessels (kumpits) named
'Iroc-Iroc,' 'Lahat-lahat,' 'Liberal Wing III,'
'Sulu Area Command,' and 'Business,' with
their respective cargoes of blue seal
cigarettes and rattan chairs for violation of
Section
1363(a)
of
the
Revised
Administrative Code and Section 20 of
Republic Act No. 426 in relation with
Section
1363(f)
of
the
Revised
Administrative Code."1
The facts according to the above opinion

"are not controverted." Thus: "It appears
that on September 10, 1950, at about
noon time, a customs patrol team on
board Patrol Boat ST-23 intercepted the
five (5) sailing vessels in question on the
high seas, between British North Borneo
and Sulu while they were heading towards
Tawi-tawi, Sulu. After ordering the vessels
to stop, the customs officers boarded and
found on board, 181 cases of 'Herald'
cigarettes, 9 cases of 'Camel' cigarettes,
and some pieces of rattan chairs. The
sailing vessels are all of Philippine registry,
owned and manned by Filipino residents of

Sulu, and of less than thirty (30) tons
burden. They came from Sandakan, British
North Borneo, but did not possess any
permit from the Commissioner of Customs
to engage
in the
importation of
merchandise into any port of the Sulu sea,
as required by Section 1363(a) of the
Revised
Administrative
Code.
Their
cargoes were not covered by the required
import license under Republic Act No. 426,
otherwise known as the Import Control
Law."2
Respondent Commissioner of Customs, as

noted at the outset, affirmed the decision
rendered by the Collector of Customs of
Jolo, who found cause for forfeiture under
the law of the vessels and the cargo
contained therein. He was, as also already
made known, sustained by the Court of
Tax Appeals. Hence this petition for review.
The first two errors assigned by petitioners

would impugn the jurisdiction of the
Bureau of Customs to institute seizure
proceedings and thereafter to declare the
forfeiture of the vessels in question and
their cargo. They would justify their stand
thus: "In the light of the fact that the
vessels involved with the articles laden
therein were apprehended and seized on
the high seas, beyond the territorial
waters of the Philippines, the said vessels
could not have touched any place or port
in the Philippines, whether a port or place
of entry or not, consequently, the said
vessels could not have been engaged in
the importation of the articles laden
therein into any Philippine port or place,
whether a port or place of entry or not, to
have incurred the liability of forfeiture
under Section 1363(a) of the Revised
Administrative Code."3
Appeals. It met the repudiation that it

deserved. Thus: "We perfectly see the
point of the petitioners but considering the
circumstances
surrounding
the
apprehension of the vessels in question,
we believe that Section 1363(a) of the
Revised Administrative Code should be
applied to the case at bar. It has been
established that the five vessels came
from Sandakan, British North Borneo, a
foreign port, and when intercepted, all of
them were heading towards Tawi-tawi, a
domestic port within the Sulu sea. Laden
with foreign manufactured cigarettes, they
did not possess the import license
required by Republic Act No. 426, nor did
they
carry
a
permit
from
the
Commissioner of Customs to engage in
importation into any port in the Sulu sea.
Their course announced loudly their
intention not merely to skirt along the
territorial boundary of the Philippines but
to come within our limits and land
somewhere in Tawi-tawi towards which
their prows were pointed. As a matter of
fact, they were about to cross our aquatic
boundary but for the intervention of a
customs
patrol
which,
from
all
appearances, was more than eager to
accomplish its mission."4
The sense of realism and the vigorous

language employed by the late Judge
Luciano in rejecting such a plea deserve to
be quoted. Thus: "To entertain even for a
moment the thought that these vessels
were probably not bound for a Philippine
port would be too much a concession even
for a simpleton or a perennial optimist. It
is quite irrational for Filipino sailors
manning five Philippine vessels to sneak
out of the Philippines and go to British
North Borneo, and come a long way back
laden with highly taxable goods only to
turn about upon reaching the brink of our
territorial waters and head for another
foreign port."5
Such a contention was advanced by

petitioners before the Court of Tax
1. We find no plausible reason not to

accept in its entirety such a conclusion
reached by the Court of Tax Appeals. Nor,
even if the persuasive element in the
above view were not so overwhelming,
could we alter the decisive facts as found
by it. For it is now beyond question that its
finding, if supported by substantial
evidence, binds us, only questions of law
being for us to resolve. Where the issue
raised belongs to the former category, we
lack the power of review.6
Moreover, for understandable reasons, we

feel extreme reluctance to substitute our
own discretion for that of the Court of Tax
Appeals in its appreciation of the relevant
facts and its appraisal of their significance.
As we had occasion to state in a relatively
recent decision: "Nor as a matter of
principle is it advisable for this Court to set
aside the conclusion reached by an
agency such as the Court of Tax Appeals
which is, by the very nature of its function,
dedicated exclusively to the study and
consideration of tax problems and has
necessarily developed an expertise on the
subject, ..., there has been an abuse or
improvident exercise of its authority."7
2. We thus could rest our decision

affirming that of the Court of Tax Appeals
on the above consideration.
It might not be amiss however to devote

some degree of attention to the legal
points raised in the above two assignment
of errors, discussed jointly by petitionersappellants, alleging the absence of
jurisdiction, the deprivation of property
without due process of law and the
abatement of liability consequent upon
the repeal of Republic Act No. 426. Not
one of the principles of law relied upon
suffices to call for reversal of the action
taken by the respondent Commissioner of
Customs, even if the facts presented a
situation less conclusive against

pretension of petitioners-appellants.
the
From the apprehension and seizure of the

vessels in question on the high seas
beyond the territorial waters of the
Philippines, the absence of jurisdiction of
Commissioner of Customs is predicated.
Such contention of petitioners-appellants
is without merit.
It is unquestioned that all vessels seized

are of Philippine registry. The Revised
Penal Code leaves no doubt as to its
applicability and enforceability not only
within the Philippines, its interior waters
and maritime zone, but also outside of its
jurisdiction against those committing
offense while on a Philippine ship ...8 The
principle of law that sustains the validity
of such a provision equally supplies a firm
foundation for the seizure of the five
sailing vessels found thereafter to have
violated the applicable provisions of the
Revised Administrative Code.9
Moreover, it is a well settled doctrine of

International Law that goes back to Chief
Justice Marshall's opinion in Church v.
Hubbart,10 an 1804 decision, that a state
has the right to protect itself and its
revenues, a right not limited to its own
territory but extending to the high seas. In
the language of Chief Justice Marshall:
"The authority of a nation within its own
territory is absolute and exclusive. The
seizure of a vessel within the range of its
cannon by a foreign force is an invasion of
that territory, and is a hostile act which it
is its duty to repel. But its power to secure
itself from injury may certainly be
exercised beyond the limits of its
territory."
The question asked in the brief of

petitioners-appellants as to whether the
seizure of the vessels in question and the

cargoes on the high seas and thus beyond
the territorial waters of the Philippines was
legal must be answered in the affirmative.
4. The next question raised is the alleged

denial of due process arising from such
forfeiture and seizure. The argument on
the alleged lack of validity of the action
taken by the Commissioner of Customs is
made to rest on the fact that the alleged
offense imputed to petitioners-appellants
is a violation of Section 1363(a) and not
Section 1363(f). The title of Section 1363
is clear, "Property subject to forfeiture
under customs laws." The first subsection
thereof, (a) cover any vessel including
cargo
unlawfully
engaged
in
the
importation of merchandise except a port
of entry. Subsection (f) speaks of any
merchandise
of
any
prohibited
importation, the importation of which is
effected or attempted contrary to law and
all other merchandise which in the opinion
of the Collector of Customs have been
used are or were intended to be used as
instrument
in
the
importation
or
exportation of the former.
From the above recital of the legal

provisions relied upon, it would appear
most clearly that the due process question
raised is insubstantial. Certainly, the facts
on which the seizure was based were not
unknown to petitioners-appellants. On
those facts the liability of the vessels and
merchandise under the above terms of the
statute would appear to be undeniable.
The
action
taken
then
by
the
Commissioner
of
Customs
was
in
accordance with law.
How could there be a denial of due

process? There was nothing arbitrary
about the manner in which such seizure
and forfeiture were effected. The right to a
hearing of petitioners-appellants was
respected. They could not have been

unaware of what they were doing. It would
be an affront to reason if under the above
circumstances they could be allowed to
raise in all seriousness a due process
question. Such a constitutional guaranty,
basic and fundamental, certainly should
not be allowed to lend itself as an
instrument for escaping a liability arising
from one's own nefarious acts.
5. Petitioners-appellants would further

assail the validity of the action taken by
the respondent Commissioner of Customs
by the plea that the repeal of Republic Act
No. 426 abated whatever liability could
have been incurred thereunder. This
argument raised before the Court of Tax
Appeals was correctly held devoid of any
persuasive force. The decision under
review cited our opinion in Golay-Buchel &
Cie v. Commissioner of Customs11 to the
effect that the expiration of the Import
Control Law "did not produce the effect of
declaring legal the importation of goods
which were illegally imported and the
seizure and forfeiture thereof as ordered
by the Collector of Customs illegal or null
and void."
Roxas v. Sayoc 12 announced that

principle earlier. Thus: "Herein, we are
concerned with the effect of the expiration
of a law, not with the abrogation of a law,
and we hold the view that once the
Commissioner of Customs has acquired
jurisdiction over the case, the mere
expiration of Republic Act No. 650 will not
divest him of his jurisdiction thereon duly
acquired while said law was still in force.
In other words, we believe that despite the
expiration of Republic Act No. 650 the
Commissioner of Customs retained his
jurisdiction over the case and could
continue to take cognizance thereof until
its final determination, for the main
question brought in by the appeal from
the decision of the Collector of Customs
was the legality or illegality of the decision
of the Collector of Customs, and that

question could not have been abated by
the mere expiration of Republic Act No.
650. We firmly believe that the expiration
of Republic Act No. 650 could not have
produced the effect (1) of declaring legal
the
importation
of
the
cotton
counterpanes
which
were
illegally
imported, and (2) of declaring the seizure
and forfeiture ordered by the Collector of
Customs illegal or null and void; in other
words it could not have the effect of
annulling or setting aside the decision of
the Collector of Customs which was
rendered while the law was in force and
which should stand until it is revoked by
the appellate tribunal."
As late as 1965, in Bombay Dept. Store v.

Commissioner of Customs,13 we had
occasion to reaffirm the doctrine in the
above two decisions, the present Chief
Justice, speaking for the Court, stating that
such expiration of the period of effectivity
of Republic Act No. 650 "did not have the
effect of depriving the Commissioner of
Customs of the jurisdiction, acquired by
him prior thereto, to act on cases of
forfeiture pending before him, which are in
the nature of proceeding in rem...."
It is thus most evident that the Court of

Tax Appeals had not in any wise refused to
adhere faithfully to controlling legal
principles when it sustained the action
taken by respondent Commissioner of
Customs. It would be a reproach and a
reflection on the law if on the facts as they
had been shown to exist, the seizure and
forfeiture of the vessels and cargo in
question were to be characterized as
outside the legal competence of our
government
and
violative
of
the
constitutional
rights
of
petitionersappellants. Fortunately, as had been made
clear above, that would be an undeserved
reflection and an unwarranted reproach.
The vigor of the war against smuggling
must not be hampered by a misreading of
international
law
concepts
and
a
misplaced reliance on a constitutional
guaranty that has not in any wise been
infringed.
WHEREFORE, the decision of respondent

Court of Tax Appeals of November 19,
1964, is affirmed. With costs against
petitioners-appellants.
XXXXXXXXXX
NATIONALITY/ CITIZENSHIP THEORY
[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 City[2]
declaring respondent Alicia F. Llorente
(herinafter referred to as Alicia), as coowners 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
fathers 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 Lorenzos salary and all other obligations

for Paulas 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 Paulas 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 Llorentes 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 petition[22] for letters of
administration over Lorenzos estate in her
favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the
various property were acquired during
their marriage, (3) that Lorenzos 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 Paulas 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.[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.
SO ORDERED.[27]
Hence, this petition.[35]
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 Alicias 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.
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 are binding 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
decedents 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 Lorenzos will.[38]
First, there is no such thing as one

American law. 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.[39]
Second, 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 courts 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.
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]
Validity of the Will
The Civil Code provides:
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 CAG. 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. Llorentes
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.
XXXXXXXXXX
INCIDENTS OF SUCCESSION
G.R. No. L-22595
1927
November 1,
Testate Estate of Joseph G. Brimo, JUAN

MICIANO,
administrator,
petitionerappellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the

deceased Joseph G. Brimo is in question in
this case.
The judicial administrator of this estate

filed a scheme of partition. Andre Brimo,
one of the brothers of the deceased,
opposed it. The court, however, approved
it.
The errors which the oppositor-appellant

assigns are:
(1) The approval of said scheme of

partition; (2) denial of his participation in
the inheritance; (3) the denial of the
motion for reconsideration of the order
approving the partition; (4) the approval of
the purchase made by the Pietro Lana of
the deceased's business and the deed of
transfer of said business; and (5) the
declaration that the Turkish laws are
impertinent to this cause, and the failure
not to postpone the approval of the
scheme of partition and the delivery of the
deceased's business to Pietro Lanza until
the receipt of the depositions requested in
reference to the Turkish laws.
The appellant's opposition is based on the

fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's
will which are not in accordance with the
laws of his Turkish nationality, for which

reason they are void as being in violation
or article 10 of the Civil Code which,
among
other
things,
provides
the
following:
Nevertheless, legal and testamentary

successions, in respect to the order of
succession as well as to the amount of the
successional rights and the intrinsic
validity of their provisions, shall be
regulated by the national law of the
person whose succession is in question,
whatever may be the nature of the
property or the country in which it may be
situated.
But the fact is that the oppositor did not

prove that said testimentary dispositions
are not in accordance with the Turkish
laws, inasmuch as he did not present any
evidence showing what the Turkish laws
are on the matter, and in the absence of
evidence on such laws, they are presumed
to be the same as those of the Philippines.
(Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these

proceedings what the Turkish laws are. He,
himself, acknowledges it when he desires
to be given an opportunity to present
evidence on this point; so much so that he
assigns as an error of the court in not
having deferred the approval of the
scheme of partition until the receipt of
certain testimony requested regarding the
Turkish laws on the matter.
The refusal to give the oppositor another

opportunity to prove such laws does not
constitute an error. It is discretionary with
the
trial
court,
and,
taking
into
consideration that the oppositor was
granted ample opportunity to introduce
competent evidence, we find no abuse of
discretion on the part of the court in this

particular. There is, therefore, no evidence
in the record that the national law of the
testator Joseph G. Brimo was violated in
the testamentary dispositions in question
which, not being contrary to our laws in
force, must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme of

partition in this respect was not erroneous.
In regard to the first assignment of error

which deals with the exclusion of the
herein appellant as a legatee, inasmuch as
he is one of the persons designated as
such in will, it must be taken into
consideration that such exclusion is based
on the last part of the second clause of the
will, which says:
Second. I like desire to state that although

by law, I am a Turkish citizen, this
citizenship having been conferred upon
me by conquest and not by free choice,
nor by nationality and, on the other hand,
having resided for a considerable length of
time in the Philippine Islands where I
succeeded in acquiring all of the property
that I now possess, it is my wish that the
distribution of my property and everything
in connection with this, my will, be made
and disposed of in accordance with the
laws in force in the Philippine islands,
requesting all of my relatives to respect
this wish, otherwise, I annul and cancel
beforehand whatever disposition found in
this will favorable to the person or persons
who fail to comply with this request.
The institution of legatees in this will is

conditional, and the condition is that the
instituted legatees must respect the
testator's will to distribute his property,
not in accordance with the laws of his
nationality, but in accordance with the

laws of the Philippines.
If this condition as it is expressed were

legal and valid, any legatee who fails to
comply with it, as the herein oppositor
who, by his attitude in these proceedings
has not respected the will of the testator,
as expressed, is prevented from receiving
his legacy.
The fact is, however, that the said

condition is void, being contrary to law, for
article 792 of the civil Code provides the
following:
All of the remaining clauses of said will

with all their dispositions and requests are
perfectly valid and effective it not
appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are

modified and it is directed that the
distribution of this estate be made in such
a manner as to include the herein
appellant Andre Brimo as one of the
legatees, and the scheme of partition
submitted by the judicial administrator is
approved in all other respects, without any
pronouncement as to costs.
So ordered.
Impossible conditions and those contrary
to law or good morals shall be considered
as not imposed and shall not prejudice the
heir or legatee in any manner whatsoever,
even should the testator otherwise
provide.
XXXXXXXXXX
And said condition is contrary to law

because it expressly ignores the testator's
national law when, according to article 10
of the civil Code above quoted, such
national law of the testator is the one to
govern his testamentary dispositions.
IN THE MATTER OF THE TESTATE ESTATE

OF EDWARD E. CHRISTENSEN, DECEASED.
Said condition then, in the light of the

legal provisions above cited, is considered
unwritten, and the institution of legatees
in
said
will
is unconditional
and
consequently valid and effective even as
to the herein oppositor.
RENVOI
G.R. No. L-16749
January 31, 1963
ADOLFO C. AZNAR, Executor and LUCY

CHRISTENSEN, Heir of the deceased,
Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositorappellant.
M. R. Sotelo
appellees.
for
executor
and
heir-
Leopoldo M. Abellera and Jovito Salonga

for oppositor-appellant.
It results from all this that the second
clause of the will regarding the law which
shall govern it, and to the condition
imposed upon the legatees, is null and
void, being contrary to law.
LABRADOR, J.:
This is an appeal from a decision of the

Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated
September 14, 1949, approving among
things the final accounts of the executor,
directing the executor to reimburse Maria
Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as
her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the
property to be enjoyed during her lifetime,
and in case of death without issue, onehalf of said residue to be payable to Mrs.
Carrie
Louise
C.
Borton,
etc.,
in
accordance with the provisions of the will
of the testator Edward E. Christensen. The
will was executed in Manila on March 5,
1951
and
contains
the
following
provisions:
3. I declare ... that I have but ONE (1)

child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born
in the Philippines about twenty-eight years
ago, and who is now residing at No. 665
Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no

living ascendants, and no descendants
except my above named daughter, MARIA
LUCY CHRISTENSEN DANEY.
xxx
xxx
HUNDRED PESOS (P3,600.00), Philippine

Currency the same to be deposited in trust
for the said Maria Helen Christensen with
the Davao Branch of the Philippine
National Bank, and paid to her at the rate
of
One
Hundred
Pesos
(P100.00),
Philippine Currency per month until the
principal thereof as well as any interest
which may have accrued thereon, is
exhausted..
xxx
xxx
xxx
12. I hereby give, devise and bequeath,

unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid
at No. 665 Rodger Young Village, Los
Angeles, California, U.S.A., all the income
from the rest, remainder, and residue of
my property and estate, real, personal
and/or mixed, of whatsoever kind or
character, and wheresoever situated, of
which I may be possessed at my death
and which may have come to me from any
source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted

provisions that the executor in his final
account and project of partition ratified
the payment of only P3,600 to Helen
Christensen Garcia and proposed that the
residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
xxx
7. I give, devise and bequeath unto MARIA

HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of
age and who, notwithstanding the fact
that she was baptized Christensen, is not
in any way related to me, nor has she
been at any time adopted by me, and
who, from all information I have now
resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX
Opposition to the approval of the project

of partition was filed by Helen Christensen
Garcia, insofar as it deprives her (Helen) of
her legitime as an acknowledged natural
child, she having been declared by Us in
G.R. Nos. L-11483-84 an acknowledged
natural child of the deceased Edward E.
Christensen.
The
legal
grounds
of
opposition are (a) that the distribution
should be governed by the laws of the
Philippines, and (b) that said order of
distribution is contrary thereto insofar as it

denies to Helen Christensen, one of two
acknowledged natural children, one-half of
the
estate
in
full
ownership.
In
amplification of the above grounds it was
alleged that the law that should govern
the estate of the deceased Christensen
should not be the internal law of California
alone, but the entire law thereof because
several foreign elements are involved, that
the forum is the Philippines and even if the
case were decided in California, Section
946 of the California Civil Code, which
requires that the domicile of the decedent
should apply, should be applicable. It was
also alleged that Maria Helen Christensen
having been declared an acknowledged
natural child of the decedent, she is
deemed for all purposes legitimate from
the time of her birth.
The court below ruled that as Edward E.

Christensen was a citizen of the United
States and of the State of California at the
time of his death, the successional rights
and intrinsic validity of the provisions in
his will are to be governed by the law of
California, in accordance with which a
testator has the right to dispose of his
property in the way he desires, because
the right of absolute dominion over his
property is sacred and inviolable (In re
McDaniel's Estate, 77 Cal. Appl. 2d 877,
176 P. 2d 952, and In re Kaufman, 117 Cal.
286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various
motions for reconsideration, but these
were denied. Hence, this appeal.
The most important assignments of error

are as follows:
THE LOWER COURT ERRED IN IGNORING

THE DECISION OF THE HONORABLE
SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF
EDWARD
E.
CHRISTENSEN
AND,
CONSEQUENTLY, IN DEPRIVING HER OF
HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY

IGNORING AND/OR FAILING TO RECOGNIZE
THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING
FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO

RECOGNIZE THAT UNDER INTERNATIONAL
LAW, PARTICULARLY UNDER THE RENVOI
DOCTRINE, THE INTRINSIC VALIDITY OF
THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF
THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT

DECLARING THAT THE SCHEDULE OF
DISTRIBUTION
SUBMITTED
BY
THE
EXECUTOR
IS
CONTRARY
TO
THE
PHILIPPINE LAWS.
V
I
THE LOWER COURT ERRED IN NOT
DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE

ESTATE IN FULL OWNERSHIP.
There is no question that Edward E.

Christensen was a citizen of the United
States and of the State of California at the
time of his death. But there is also no
question that at the time of his death he
was domiciled in the Philippines, as
witness the following facts admitted by
the executor himself in appellee's brief:
In the proceedings for admission of the

will to probate, the facts of record show
that the deceased Edward E. Christensen
was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival in the
Philippines, as an appointed school
teacher, was on July 1, 1901, on board the
U.S. Army Transport "Sheridan" with Port
of Embarkation as the City of San
Francisco, in the State of California, U.S.A.
He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen

returned to the United States and stayed
there for the following nine years until
1913, during which time he resided in, and
was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the

Philippines was in July of the year 1913.
However, in 1928, he again departed the
Philippines for the United States and came
back here the following year, 1929. Some
nine years later, in 1938, he again
returned to his own country, and came
back to the Philippines the following year,
1939.
Wherefore, the parties respectfully pray

that the foregoing stipulation of facts be
admitted and approved by this Honorable
Court, without prejudice to the parties
adducing other evidence to prove their

case not covered by this stipulation of
facts. 1wph1.t
Being an American citizen, Mr. Christensen

was interned by the Japanese Military
Forces in the Philippines during World War
II. Upon liberation, in April 1945, he left for
the United States but returned to the
Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp.
Proc. 622, as Exhibits "AA", "BB" and "CCDaney"; Exhs. "MM", "MM-l", "MM-2Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen

returned once more to California shortly
after the making of his last will and
testament (now in question herein) which
he executed at his lawyers' offices in
Manila on March 5, 1951. He died at the
St. Luke's Hospital in the City of Manila on
April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the

domicile
of
the
deceased
is
the
Philippines, we are persuaded by the fact
that he was born in New York, migrated to
California and resided there for nine years,
and since he came to the Philippines in
1913 he returned to California very rarely
and only for short visits (perhaps to
relatives), and considering that he appears
never to have owned or acquired a home
or properties in that state, which would
indicate that he would ultimately abandon
the Philippines and make home in the
State of California.
Sec. 16. Residence is a term used with

many shades of meaning from mere
temporary
presence
to
the
most
permanent abode. Generally, however, it
is used to denote something more than
mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find

that the citizenship that he acquired in
California when he resided in Sacramento,
California from 1904 to 1913, was never
lost by his stay in the Philippines, for the
latter was a territory of the United States
(not a state) until 1946 and the deceased
appears to have considered himself as a
citizen of California by the fact that when
he executed his will in 1951 he declared
that he was a citizen of that State; so that
he appears never to have intended to
abandon his California citizenship by
acquiring another. This conclusion is in
accordance with the following principle
expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile"

might well be taken to mean the same
thing, a place of permanent abode. But
domicile, as has been shown, has acquired
a technical meaning. Thus one may be
domiciled in a place where he has never
been. And he may reside in a place where
he has no domicile. The man with two
homes, between which he divides his
time, certainly resides in each one, while
living in it. But if he went on business
which would require his presence for
several weeks or months, he might
properly be said to have sufficient
connection with the place to be called a
resident. It is clear, however, that, if he
treated his settlement as continuing only
for the particular business in hand, not
giving up his former "home," he could not
be a domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise of
intention as well as physical presence.
"Residence
simply
requires
bodily
presence of an inhabitant in a given place,
while domicile requires bodily presence in
that place and also an intention to make it
one's domicile." Residence, however, is a
term used with many shades of meaning,
from the merest temporary presence to
the most permanent abode, and it is not
safe to insist that any one use et the only

proper one. (Goodrich, p. 29)
The law that governs the validity of his

testamentary dispositions is defined in
Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal


successions, both with respect to the
order of succession and to the amount of
consideration, whatever may be the
the country where said property may be
found.
The application of this article in the case

at bar requires the determination of the
meaning of the term "national law" is used
therein.
There is no single American law governing

the validity of testamentary provisions in
the United States, each state of the Union
having its own private law applicable to its
citizens only and in force only within the
state. The "national law" indicated in
Article 16 of the Civil Code above quoted
can not, therefore, possibly mean or apply
to any general American law. So it can
refer to no other than the private law of
the State of California.
The next question is: What is the law in

California governing the disposition of
personal property? The decision of the
court below, sustains the contention of the

executor-appellee that under the California
Probate Code, a testator may dispose of
his property by will in the form and
manner he desires, citing the case of
Estate of McDaniel, 77 Cal. Appl. 2d 877,
176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code
of California, which is as follows:
If there is no law to the contrary, in the

place where personal property is situated,
it is deemed to follow the person of its
owner, and is governed by the law of his
domicile.
The existence of this provision is alleged in

appellant's opposition and is not denied.
We have checked it in the California Civil
Code and it is there. Appellee, on the
other hand, relies on the case cited in the
decision and testified to by a witness.
(Only the case of Kaufman is correctly
cited.) It is argued on executor's behalf
that as the deceased Christensen was a
citizen of the State of California, the
internal law thereof, which is that given in
the abovecited case, should govern the
determination of the validity of the
testamentary provisions of Christensen's
will, such law being in force in the State of
California of which Christensen was a
citizen. Appellant, on the other hand,
insists that Article 946 should be
applicable, and in accordance therewith
and following the doctrine of the renvoi,
the question of the validity of the
testamentary provision in question should
be referred back to the law of the
decedent's
domicile,
which
is
the
Philippines.
The theory of doctrine of renvoi has been

defined by various authors, thus:
The problem has been stated in this way:

"When the Conflict of Laws rule of the
forum refers a jural matter to a foreign law
for decision, is the reference to the purely
internal rules of law of the foreign system;
i.e., to the totality of the foreign law minus
its Conflict of Laws rules?"
On logic, the solution is not an easy one.

The Michigan court chose to accept the
renvoi, that is, applied the Conflict of Laws
rule of Illinois which referred the matter
back to Michigan law. But once having
determined the the Conflict of Laws
principle is the rule looked to, it is difficult
to see why the reference back should not
have been to Michigan Conflict of Laws.
This would have resulted in the "endless
chain of references" which has so often
been criticized be legal writers. The
opponents of the renvoi would have
looked merely to the internal law of
Illinois, thus rejecting the renvoi or the
reference back. Yet there seems no
compelling logical reason why the original
reference should be the internal law rather
than to the Conflict of Laws rule. It is true
that such a solution avoids going on a
merry-go-round, but those who have
accepted the renvoi theory avoid this
inextricabilis circulas by getting off at the
second reference and at that point
applying internal law. Perhaps the
opponents of the renvoi are a bit more
consistent for they look always to internal
law as the rule of reference.
Strangely enough, both the advocates for

and the objectors to the renvoi plead that
greater uniformity will
result from
adoption of their respective views. And
still more strange is the fact that the only
way to achieve uniformity in this choice-oflaw problem is if in the dispute the two
states whose laws form the legal basis of
the litigation disagree as to whether the
renvoi should be accepted. If both reject,
or both accept the doctrine, the result of
the litigation will vary with the choice of
the forum. In the case stated above, had

the Michigan court rejected the renvoi,
judgment would have been against the
woman; if the suit had been brought in the
Illinois courts, and they too rejected the
renvoi, judgment would be for the woman.
The same result would happen, though the
courts would switch with respect to which
would hold liability, if both courts
accepted the renvoi.
The Restatement accepts the renvoi

theory in two instances: where the title to
land is in question, and where the validity
of a decree of divorce is challenged. In
these cases the Conflict of Laws rule of the
situs of the land, or the domicile of the
parties in the divorce case, is applied by
the forum, but any further reference goes
only to the internal law. Thus, a person's
title to land, recognized by the situs, will
be recognized by every court; and every
divorce, valid by the domicile of the
parties,
will
be
valid
everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp. 1314.)
X, a citizen of Massachusetts, dies

intestate, domiciled in France, leaving
movable property in Massachusetts,
England, and France. The question arises
as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a

Massachusetts court. There the rule of the
conflict of laws as to intestate succession
to movables calls for an application of the
law of the deceased's last domicile. Since
by hypothesis X's last domicile was
France, the natural thing for the
Massachusetts court to do would be to
turn to French statute of distributions, or
whatever corresponds thereto in French
law, and decree a distribution accordingly.
An examination of French law, however,
would show that if a French court were
called upon to determine how this

property should be distributed, it would
refer the distribution to the national law of
the
deceased,
thus
applying
the
Massachusetts statute of distributions. So
on the surface of things the Massachusetts
court has open to it alternative course of
action: (a) either to apply the French law is
to intestate succession, or (b) to resolve
itself into a French court and apply the
Massachusetts statute of distributions, on
the assumption that this is what a French
court would do. If it accepts the so-called
renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is

presented which the conflict-of-laws rule
of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn,
refers the matter back again to the law of
the forum. This is renvoi in the narrower
sense. The German term for this judicial
process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a

foreign law is to be resorted to as
governing a particular case, the further
question may arise: Are the rules as to the
conflict of laws contained in such foreign
law also to be resorted to? This is a
question which, while it has been
considered by the courts in but a few
instances, has been the subject of
frequent discussion by textwriters and
essayists; and the doctrine involved has
been descriptively designated by them as
the "Renvoyer" to send back, or the
"Ruchversweisung",
or
the
"Weiterverweisung", since an affirmative
answer to the question postulated and the
operation of the adoption of the foreign
law in toto would in many cases result in
returning the main controversy to be
decided according to the law of the forum.
... (16 C.J.S. 872.)
Another theory, known as the "doctrine of

renvoi", has been advanced. The theory of
the doctrine of renvoi is that the court of
the forum, in determining the question
before it, must take into account the
whole law of the other jurisdiction, but
also its rules as to conflict of laws, and
then apply the law to the actual question
which the rules of the other jurisdiction
prescribe. This may be the law of the
forum. The doctrine of the renvoi has
generally
been
repudiated
by
the
American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also

been defined and the reasons for its
application in a country explained by Prof.
Lorenzen in an article in the Yale Law
Journal, Vol. 27, 1917-1918, pp. 529-531.
The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory

implies that the rules of the conflict of
laws are to be understood as incorporating
not only the ordinary or internal law of the
foreign state or country, but its rules of
the conflict of laws as well. According to
this theory 'the law of a country' means
the whole of its law.
xxx
xxx
(a) The provisions of a foreign law which

disclaims the right to bind its nationals
abroad as regards their personal statute,
and desires that said personal statute
shall be determined by the law of the
domicile, or even by the law of the place
where the act in question occurred.
(b) The decision of two or more foreign

systems of law, provided it be certain that
one of them is necessarily competent,
which
agree
in
attributing
the
determination of a question to the same
system of law.
xxx
xxx
xxx
If, for example, the English law directs its

judge to distribute the personal estate of
an Englishman who has died domiciled in
Belgium in accordance with the law of his
domicile, he must first inquire whether the
law of Belgium would distribute personal
property upon death in accordance with
the law of domicile, and if he finds that the
Belgian law would make the distribution in
accordance with the law of nationality
that is the English law he must accept
this reference back to his own law.
xxx
Von Bar presented his views at the

meeting of the Institute of International
Law, at Neuchatel, in 1900, in the form of
the following theses:
(1) Every court shall observe the law of its

country as regards the application of
foreign laws.
(2) Provided that no express provision to

the contrary exists, the court shall respect:
We note that Article 946 of the California

Civil Code is its conflict of laws rule, while
the rule applied in In re Kaufman, Supra,
its internal law. If the law on succession
and the conflict of laws rules of California
are to be enforced jointly, each in its own
intended and appropriate sphere, the
principle cited In re Kaufman should apply
to citizens living in the State, but Article
946 should apply to such of its citizens as
are not domiciled in California but in other
jurisdictions. The rule laid down of
resorting to the law of the domicile in the
determination of matters with foreign
element involved is in accord with the

general principle of American law that the
domiciliary law should govern in most
matters or rights which follow the person
of the owner.
When a man dies leaving personal

property in one or more states, and leaves
a will directing the manner of distribution
of the property, the law of the state where
he was domiciled at the time of his death
will be looked to in deciding legal
questions about the will, almost as
completely as the law of situs is consulted
in questions about the devise of land. It is
logical that, since the domiciliary rules
control devolution of the personal estate
in case of intestate succession, the same
rules should determine the validity of an
attempted testamentary dispostion of the
property. Here, also, it is not that the
domiciliary has effect beyond the borders
of the domiciliary state. The rules of the
domicile are recognized as controlling by
the Conflict of Laws rules at the situs
property, and the reason for the
recognition as in the case of intestate
succession, is the general convenience of
the doctrine. The New York court has said
on the point: 'The general principle that a
dispostiton of a personal property, valid at
the domicile of the owner, is valid
anywhere, is one of the universal
application. It had its origin in that
international comity which was one of the
first fruits of civilization, and it this age,
when business intercourse and the
process of accumulating property take but
little notice of boundary lines, the practical
wisdom and justice of the rule is more
apparent than ever. (Goodrich, Conflict of
Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the

Civil Code of the Philippines pointed out as
the national law is the internal law of
California. But as above explained the
laws of California have prescribed two sets
of laws for its citizens, one for residents
therein and another for those domiciled in

other jurisdictions. Reason demands that
We should enforce the California internal
law prescribed for its citizens residing
therein, and enforce the conflict of laws
rules for the citizens domiciled abroad. If
we must enforce the law of California as in
comity we are bound to go, as so declared
in Article 16 of our Civil Code, then we
must enforce the law of California in
accordance with the express mandate
thereof and as above explained, i.e., apply
the internal law for residents therein, and
its conflict-of-laws rule for those domiciled
abroad.
It is argued on appellees' behalf that the

clause "if there is no law to the contrary in
the place where the property is situated"
in Sec. 946 of the California Civil Code
refers to Article 16 of the Civil Code of the
Philippines and that the law to the
contrary in the Philippines is the provision
in said Article 16 that the national law of
the
deceased
should govern.
This
contention can not be sustained. As
explained in the various authorities cited
above the national law mentioned in
Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code,
i.e., Article 946, which authorizes the
reference or return of the question to the
law of the testator's domicile. The conflict
of laws rule in California, Article 946, Civil
Code, precisely refers back the case, when
a decedent is not domiciled in California,
to the law of his domicile, the Philippines
in the case at bar. The court of the
domicile can not and should not refer the
case back to California; such action would
leave the issue incapable of determination
because the case will then be like a
football, tossed back and forth between
the two states, between the country of
which the decedent was a citizen and the
country of his domicile. The Philippine
court must apply its own law as directed in
the conflict of laws rule of the state of the
decedent, if the question has to be
decided, especially as the application of
the internal law of California provides no

legitime for children while the Philippine
law, Arts. 887(4) and 894, Civil Code of
the Philippines, makes natural children
legally acknowledged forced heirs of the
parent recognizing them.
TESTATE ESTATE OF AMOS G. BELLIS,

deceased.
The Philippine cases (In re Estate of

Johnson, 39 Phil. 156; Riera vs. Palmaroli,
40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by
appellees to support the decision can not
possibly apply in the case at bar, for two
important reasons, i.e., the subject in each
case does not appear to be a citizen of a
state in the United States but with
domicile in the Philippines, and it does not
appear in each case that there exists in
the state of which the subject is a citizen,
a law similar to or identical with Art. 946
of the California Civil Code.
vs.
PEOPLE'S BANK and TRUST COMPANY,

executor.
MARIA CRISTINA BELLIS and MIRIAM
PALMA BELLIS, oppositors-appellants,
EDWARD A.
appellees.
BELLIS,
ET
AL.,
heirs-
Vicente R. Macasaet and Jose D. Villena for

oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for
heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W.
S. Bellis, et al.
J. R. Balonkita for appellee People's Bank &
Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A.
B. Allsman.
We therefore find that as the domicile of

the deceased Christensen, a citizen of
California, is the Philippines, the validity of
the provisions of his will depriving his
acknowledged natural child, the appellant,
should be governed by the Philippine Law,
the domicile, pursuant to Art. 946 of the
Civil Code of California, not by the internal
law of California..
WHEREFORE, the decision appealed from

is hereby reversed and the case returned
to the lower court with instructions that
the partition be made as the Philippine law
on
succession
provides.
Judgment
reversed, with costs against appellees.
XXXXXXXXXX
G.R. No. L-23678
June 6, 1967
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a

question purely of law, from an order of
the Court of First Instance of Manila dated
April 30, 1964, approving the project of
partition filed by the executor in Civil Case
No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a

citizen of the State of Texas and of the
United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman; by his second
wife, Violet Kennedy, who survived him, he

had three legitimate children: Edwin G.
Bellis, Walter S. Bellis and Dorothy Bellis;
and finally, he had three illegitimate
children: Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis

executed a will in the Philippines, in which
he
directed
that
after
all
taxes,
obligations,
and
expenses
of
administration
are
paid
for,
his
distributable estate should be divided, in
trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis, Miriam Palma Bellis, or
P40,000.00 each and (c) after the
foregoing two items have been satisfied,
the remainder shall go to his seven
surviving children by his first and second
wives, namely: Edward A. Bellis, Henry A.
Bellis, Alexander Bellis and Anna Bellis
Allsman, Edwin G. Bellis, Walter S. Bellis,
and
Dorothy
E.
Bellis,
in
equal
shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G.

Bellis died a resident of San Antonio,
Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of
Manila on September 15, 1958.
The People's Bank and Trust Company, as

executor of the will, paid all the bequests
therein
including
the
amount
of
$240,000.00 in the form of shares of stock
to Mary E. Mallen and to the three (3)
illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each
in satisfaction of their respective legacies,
or a total of P120,000.00, which it
released from time to time according as
the lower court approved and allowed the
various motions or petitions filed by the
latter three requesting partial advances on

account of their respective legacies.
On January 8, 1964, preparatory to closing

its administration, the executor submitted
and filed its "Executor's Final Account,
Report of Administration and Project of
Partition" wherein it reported, inter alia,
the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of
stock amounting to $240,000.00, and the
legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of
P120,000.00. In the project of partition,
the executor pursuant to the "Twelfth"
clause of the testator's Last Will and
Testament divided the residuary estate
into seven equal portions for the benefit of
the testator's seven legitimate children by
his first and second marriages.
On January 17, 1964, Maria Cristina Bellis

and Miriam Palma Bellis filed their
respective oppositions to the project of
partition on the ground that they were
deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs
of the deceased.
Amos Bellis, Jr. interposed no opposition

despite notice to him, proof of service of
which is evidenced by the registry receipt
submitted on April 27, 1964 by the
executor.1
After the parties filed their respective

memoranda
and
other
pertinent
pleadings, the lower court, on April 30,
1964, issued an order overruling the
oppositions and approving the executor's
final account, report and administration
and project of partition. Relying upon Art.
16 of the Civil Code, it applied the national
law of the decedent, which in this case is
Texas law, which did not provide for

legitimes.
Their
respective
motions
for
reconsideration having been denied by the
lower court on June 11, 1964, oppositorsappellants appealed to this Court to raise
the issue of which law must apply Texas
law or Philippine law.
In this regard, the parties do not submit

the case on, nor even discuss, the doctrine
of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31,
1963. Said doctrine is usually pertinent
where the decedent is a national of one
country, and a domicile of another. In the
present case, it is not disputed that the
decedent was both a national of Texas and
a domicile thereof at the time of his
death.2 So that even assuming Texas has
a conflict of law rule providing that the
domiciliary system (law of the domicile)
should govern, the same would not result
in a reference back (renvoi) to Philippine
law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae)
calling for the application of the law of the
place where the properties are situated,
renvoi would arise, since the properties
here involved are found in the Philippines.
In the absence, however, of proof as to the
conflict of law rule of Texas, it should not
be presumed different from ours.3
Appellants' position is therefore not rested
on the doctrine of renvoi. As stated, they
never invoked nor even mentioned it in
their arguments. Rather, they argue that
their case falls under the circumstances
mentioned in the third paragraph of Article
17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil

Code, render applicable the national law of
the decedent, in intestate or testamentary
successions, with regard to four items: (a)

the order of succession; (b) the amount of
successional rights; (e) the intrinsic
validity of the provisions of the will; and
(d) the capacity to succeed. They provide
that
ART. 16. Real property as well as personal


successions, both with respect to the
order of succession and to the amount of
consideration, whatever may he the
the country wherein said property may be
found.
ART. 1039. Capacity to succeed is

governed by the law of the nation of the
decedent.
Appellants would however counter that

Art. 17, paragraph three, of the Civil Code,
stating that
Prohibitive laws concerning persons, their

acts or property, and those which have for
their object public order, public policy and
good customs shall not be rendered
ineffective
by
laws
or
judgments
promulgated, or by determinations or
conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2

of the Civil Code afore-quoted. This is not
correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of
this and the next preceding article" when

they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code,
while reproducing without substantial
change the second paragraph of Art. 10 of
the old Civil Code as Art. 16 in the new. It
must have been their purpose to make the
second paragraph of Art. 16 a specific
provision in itself which must be applied in
testate and intestate succession. As
further indication of this legislative intent,
Congress added a new provision, under
Art. 1039, which decrees that capacity to
succeed is to be governed by the national
law of the decedent.
It is therefore evident that whatever public

policy or good customs may be involved in
our System of legitimes, Congress has not
intended to extend the same to the
succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the
amount of successional rights, to the
decedent's
national
law.
Specific
provisions must prevail over general ones.
Appellants would also point out that the

decedent executed two wills one to
govern his Texas estate and the other his
Philippine estate arguing from this that
he intended Philippine law to govern his
Philippine estate. Assuming that such was
the decedent's intention in executing a
separate Philippine will, it would not alter
the law, for as this Court ruled in Miciano
v. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his
properties
shall
be
distributed
in
accordance with Philippine law and not
with his national law, is illegal and void,
for his national law cannot be ignored in
regard to those matters that Article 10
now Article 16 of the Civil Code states
said national law should govern.
The parties admit that the decedent, Amos

G. Bellis, was a citizen of the State of
Texas, U.S.A., and that under the laws of

Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the
amount of successional rights are to be
determined under Texas law, the Philippine
law on legitimes cannot be applied to the
testacy of Amos G. Bellis.
Wherefore, the order of the probate court

is hereby affirmed in toto, with costs
against appellants. So ordered.
XXXXXXXXXX
56 SCRA 266 Civil Law Preliminary Title
Application of Laws Nationality
Principle
In November 1952, Linnie Jane Hodges, an

American citizen from Texas made a will.
In May 1957, while she was domiciled here
in the Philippines (Iloilo City), she died.
In her will, she left all her estate in favor of

her husband, Charles Newton Hodges.
Linnie however also stated in her will that
should her husband later die, said estate
shall be turned over to her brother and
sister.
In December 1962, Charles died (it

appears he was also domiciled here). Atty.
Leon Gellada, the lawyer of Charles filed a
motion before the probate court (there
was an ongoing probate on the will of
Linnie) so that a certain Avelina Magno
may be appointed as the administratrix of
the estate. Magno was the trusted
employee of the Hodges when they were
alive. Atty. Gellada manifested that
Charles himself left a will but the same
was in an iron trunk in Charles office.
Hence, in the meantime, hed like to have
Magno appointed as administratrix. Judge
Venicio Escolin approved the motion.
Later, Charles will was found and so a

new petition for probate was filed for the
said will. Since said will basically covers
the
same
estate,
Magno,
as
admininistratrix of Linnies estate opposed
the said petition. Eventually, the probate
of Charles will was granted. Eventually
still, the Philippine Commercial and
Industrial
Bank
was
appointed
as
administrator. But Magno refused to turn
over the estate.
time of Linnies death is the law applicable

(and not said law at any other time).
NOTE: Dynamics of law.
XXXXXXXXXX
FORMS, SOLEMNITIES of CONTRACTS,
WILLS
G.R. No. L-68470
October 8, 1985
ALICE REYES VAN DORN, petitioner,

vs.
Magno contended that in her will, Linnie

wanted Charles to turn over the property
to Linnies brother and sister and since
that is her will, the same must be
respected. Magno also contended that
Linnie was a Texan at the time of her
death (an alien testator); that under
Article 16 of the Civil Code, successional
rights are governed by Linnies national
law; that under Texas law, Linnies will
shall be respected regardless of the
presence of legitimes (Charles share in
the estate).
PCIB argued that the law of Texas refers

the matter back to Philippine laws
because Linnie was domiciled outside
Texas at the time of her death (applying
the renvoi doctrine).
ISSUE: Whether or not Texas Law should

apply.
HELD: The Supreme Court remanded the

case back to the lower court. Both parties
failed to adduce proof as to the law of
Texas. The Supreme Court held that for
what the Texas law is on the matter, is a
question of fact to be resolved by the
evidence that would be presented in the
probate court. The Supreme Court
however emphasized that Texas law at the
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.
XXXXXXXXXX
[G.R. No. 133876. December 29, 1999]
BANK OF AMERICA, NT and SA, petitioner,

vs. AMERICAN REALTY CORPORATION and
COURT OF APPEALS, respondents.
DECISION
BUENA, J.:
Does a mortgage-creditor waive its

remedy to foreclose the real estate
mortgage constituted over a third party
mortgagors property situated in the
Philippines by filing an action for the
collection of the principal loan before
foreign courts?
Sought to be reversed in the instant

petition for review on certiorari under Rule
45 of the Rules of Court are the

decision[1] of public respondent Court of
Appeals in CA G.R. CV No. 51094,
promulgated on 30 September 1997 and
its resolution,[2] dated 22 May 1998,
denying
petitioners
motion
for
reconsideration.
Petitioner Bank of America NT & SA

(BANTSA) is an international banking and
financing institution duly licensed to do
business in the Philippines, organized and
existing under and by virtue of the laws of
the State of California, United States of
America
while
private
respondent
American Realty Corporation (ARC) is a
domestic corporation.
Bank of America International Limited

(BAIL), on the other hand, is a limited
liability company organized and existing
under the laws of England.
As borne by the records, BANTSA and BAIL

on several occasions granted three major
multi-million United States (US) Dollar
loans to the following corporate borrowers:
(1) Liberian Transport Navigation, S.A.; (2)
El Challenger S.A. and (3) Eshley
Compania
Naviera
S.A.
(hereinafter
collectively referred to as borrowers), all of
which are existing under and by virtue of
the laws of the Republic of Panama and
are foreign affiliates of private respondent.
[3]
Due to the default in the payment of the

loan amortizations, BANTSA and the
corporate borrowers signed and entered
into
restructuring
agreements.
As
additional security for the restructured
loans, private respondent ARC as third
party mortgagor executed two real estate
mortgages,[4] dated 17 February 1983
and 20 July 1984, over its parcels of land
including improvements thereon, located
at Barrio Sto. Cristo, San Jose Del Monte,

Bulacan, and which are covered by
Transfer Certificate of Title Nos. T-78759,
T-78760, T-78761, T-78762 and T-78763.
Eventually,
the
corporate
borrowers
defaulted in the payment of the
restructured loans prompting petitioner
BANTSA to file civil actions[5] before
foreign courts for the collection of the
principal loan, to wit:
a) In England, in its High Court of Justice,

Queens Bench Division, Commercial Court
(1992-Folio No. 2098) against Liberian
Transport
Navigation
S.A.,
Eshley
Compania Naviera S.A., El Challenger S.A.,
Espriona Shipping Company S.A., Eddie
Navigation Corp., S.A., Eduardo Katipunan
Litonjua and Aurelio Katipunan Litonjua on
June 17, 1992.
b) In England, in its High Court of Justice,

Queens Bench Division, Commercial Court
(1992-Folio
No.
2245)
against
El
Challenger
S.A.,
Espriona
Shipping
Company S.A., Eduardo Katipuan Litonjua
& Aurelio Katipunan Litonjua on July 2,
1992;
c) In Hongkong, in the Supreme Court of

Hongkong High Court (Action No. 4039 of
1992) against Eshley Compania Naviera
S.A., El Challenger S.A., Espriona Shipping
Company
S.A.
Pacific
Navigators
Corporation, Eddie Navigation Corporation
S.A., Litonjua Chartering (Edyship) Co.,
Inc., Aurelio Katipunan Litonjua, Jr. and
Eduardo Katipunan Litonjua on November
19, 1992; and
d) In Hongkong, in the Supreme Court of

Hongkong High Court (Action No. 4040 of
1992) against Eshley Compania Naviera
S.A., El Challenger S.A., Espriona Shipping
Company,
S.A.,
Pacific
Navigators
Corporation, Eddie Navigation Corporation
S.A., Litonjua Chartering (Edyship) Co., Jr.
and Eduardo Katipunan Litonjua on
November 21, 1992.
In the civil suits instituted before the

foreign courts, private respondent ARC,
being a third party mortgagor, was not
impleaded as party-defendant.
On 16 December 1992, petitioner BANTSA

filed before the Office of the Provincial
Sheriff
of
Bulacan,
Philippines,
an
application for extrajudicial foreclosure[6]
of real estate mortgage.
On 22 January 1993, after due publication

and notice, the mortgaged real properties
were sold at public auction in an
extrajudicial
foreclosure
sale,
with
Integrated Credit and Corporation Services
Co. (ICCS) as the highest bidder for the
sum of Twenty Four Million Pesos
(P24,000,000.00).[7]
On 12 February 1993, private respondent

filed before the Pasig Regional Trial Court,
Branch 159, an action for damages[8]
against the petitioner, for the latters act of
foreclosing extrajudicially the real estate
mortgages despite the pendency of civil
suits before foreign courts for the
collection of the principal loan.
In its answer[9] petitioner alleged that the

rule prohibiting the mortgagee from
foreclosing the mortgage after an ordinary
suit for collection has been filed, is not
applicable in the present case, claiming
that:
a) The plaintiff, being a mere third party

mortgagor and not a party to the principal
restructuring agreements, was never

made a party defendant in the civil cases
filed in Hongkong and England;
b) There is actually no civil suit for sum of

money filed in the Philippines since the
civil actions were filed in Hongkong and
England. As such, any decisions (sic)
which
may
be
rendered
in
the
abovementioned courts are not (sic)
enforceable in the Philippines unless a
separate action to enforce the foreign
judgments is first filed in the Philippines,
pursuant to Rule 39, Section 50 of the
Revised Rules of Court.
c) Under English Law, which is the

governing
law
under the
principal
agreements, the mortgagee does not lose
its security interest by filing civil actions
for sums of money.
On 14 December 1993, private respondent

filed a motion for suspension[10] of the
redemption period on the ground that it
cannot exercise said right of redemption
without at the same time waiving or
contradicting its contentions in the case
that the foreclosure of the mortgage on its
properties is legally improper and
therefore invalid.
In an order[11] dated 28 January 1994, the

trial court granted the private respondents
motion for suspension after which a copy
of said order was duly received by the
Register of Deeds of Meycauayan,
Bulacan.
On 07 February 1994, ICCS, the purchaser

of the mortgaged properties at the
foreclosure
sale,
consolidated
its
ownership over the real properties,
resulting to the issuance of Transfer
Certificate of Title Nos. T-18627, T-186272,
T-186273, T-16471 and T-16472 in its

name.
On 18 March 1994, after the consolidation

of ownership in its favor, ICCS sold the real
properties
to
Stateland
Investment
Corporation for the amount of Thirty Nine
Million
Pesos
(P39,000,000.00).[12]
Accordingly, Transfer Certificate of Title
Nos.
T-187781(m),
T-187782(m),
T187783(m), T-16653P(m) and T-16652P(m)
were issued in the latters name.
After trial, the lower court rendered a

decision[13] in favor of private respondent
ARC dated 12 May 1993, the decretal

declaring that the filing in foreign courts
by the defendant of collection suits
against the principal debtors operated as
a waiver of the security of the mortgages.
Consequently, the plaintiffs rights as
owner and possessor of the properties
then covered by Transfer Certificates of
Title Nos. T-78759, T-78762, T-78763, T78760 and T-78761, all of the Register of
Deeds
of
Meycauayan,
Bulacan,
Philippines, were violated when the
defendant
caused
the
extrajudicial
foreclosure of the mortgages constituted
thereon.
Accordingly, the defendant is hereby

ordered to pay the plaintiff the following
sums, all with legal interest thereon from
the date of the filing of the complaint up
to the date of actual payment:
1) Actual or compensatory damages in the

amount of Ninety Nine Million Pesos
(P99,000,000.00);
2) Exemplary damages in the amount of

Five Million Pesos (P5,000,000.00); and
In fine, this Court is called upon to resolve

two main issues:
3) Costs of suit.
1. Whether or not the petitioners act of

filing a collection suit against the principal
debtors for the recovery of the loan before
foreign courts constituted a waiver of the
remedy of foreclosure.
SO ORDERED.
On appeal, the Court of Appeals affirmed

the assailed decision of the lower court
prompting petitioner to file a motion for
reconsideration which the appellate court
denied.
Hence, the instant petition for review[14]

on certiorari where herein petitioner
BANTSA ascribes to the Court of Appeals
the following assignment of errors:
1. The Honorable Court of Appeals

disregarded the doctrines laid down by
this Hon. Supreme Court in the cases of
Caltex Philippines, Inc. vs. Intermediate
Appellate Court docketed as G.R. No.
74730 promulgated on August 25, 1989
and Philippine Commercial International
Bank vs. IAC, 196 SCRA 29 (1991 case),
although said cases were duly cited,
extensively discussed and specifically
mentioned, as one of the issues in the
assignment of errors found on page 5 of
the decision dated September 30, 1997.
2. The Hon. Court of Appeals acted with

grave abuse of discretion when it awarded
the private respondent actual and
exemplary
damages
totalling
P171,600,000.00, as of July 12, 1998
although such huge amount was not asked
nor prayed for in private respondents
complaint, is contrary to law and is totally
unsupported by evidence (sic).
2. Whether or not the award by the lower

court of actual and exemplary damages in
favor of private respondent ARC, as thirdparty mortgagor, is proper.
The petition is bereft of merit.
First, as to the issue of availability of

remedies, petitioner submits that a waiver
of the remedy of foreclosure requires the
concurrence of two requisites: an ordinary
civil action for collection should be filed
and subsequently a final judgment be
correspondingly rendered therein.
According to petitioner, the mere filing of

a personal action to collect the principal
loan does not suffice; a final judgment
must be secured and obtained in the
personal action so that waiver of the
remedy
of
foreclosure
may
be
appreciated. To put it differently, absent
any of the two requisites, the mortgageecreditor is deemed not to have waived the
remedy of foreclosure.
We do not agree.
Certainly, this Court finds petitioners

arguments untenable and upholds the
jurisprudence laid down in Bachrach[15]
and similar cases adjudicated thereafter,
thus:
In the absence of express statutory

provisions, a mortgage creditor may
institute against the mortgage debtor
either a personal action for debt or a real
action to foreclose the mortgage. In other
words, he may pursue either of the two
remedies, but not both. By such election,
his cause of action can by no means be
impaired, for each of the two remedies is
complete in itself. Thus, an election to
bring a personal action will leave open to
him all the properties of the debtor for
attachment and execution, even including
the mortgaged property itself. And, if he
waives such personal action and pursues
his remedy against the mortgaged
property, an unsatisfied judgment thereon
would still give him the right to sue for a
deficiency judgment, in which case, all the
properties of the defendant, other than
the mortgaged property, are again open to
him for the satisfaction of the deficiency.
In either case, his remedy is complete, his
cause of action undiminished, and any
advantages attendant to the pursuit of
one or the other remedy are purely
accidental and are all under his right of
election. On the other hand, a rule that
would authorize the plaintiff to bring a
personal action against the debtor and
simultaneously or successively another
action against the mortgaged property,
would result not only in multiplicity of suits
so offensive to justice (Soriano vs.
Enriques, 24 Phil. 584) and obnoxious to
law and equity (Osorio vs. San Agustin, 25
Phil., 404), but also in subjecting the
defendant to the vexation of being sued in
the place of his residence or of the
residence of the plaintiff, and then again
in the place where the property lies.
In Danao vs. Court of Appeals,[16] this

Court,
reiterating
jurisprudence
enunciated in Manila Trading and Supply
Co. vs. Co Kim[17]and Movido vs. RFC,[18]
invariably held:
x x x The rule is now settled that a

mortgage creditor may elect to waive his
security and bring, instead, an ordinary
action to recover the indebtedness with
the right to execute a judgment thereon
on all the properties of the debtor,
including the subject matter of the
mortgage x x x, subject to the
qualification that if he fails in the remedy
by him elected, he cannot pursue further
the remedy he has waived. (Underscoring
Ours)
Anent real properties in particular, the

Court has laid down the rule that a
mortgage creditor may institute against
the mortgage debtor either a personal
action for debt or a real action to foreclose
the mortgage.[19]
In our jurisdiction, the remedies available

to the mortgage creditor are deemed
alternative and not cumulative. Notably,
an election of one remedy operates as a
waiver of the other. For this purpose, a
remedy is deemed chosen upon the filing
of the suit for collection or upon the filing
of the complaint in an action for
foreclosure of mortgage, pursuant to the
provision of Rule 68 of the 1997 Rules of
Civil Procedure. As to extrajudicial
foreclosure, such remedy is deemed
elected by the mortgage creditor upon
filing of the petition not with any court of
justice but with the Office of the Sheriff of
the province where the sale is to be made,
in accordance with the provisions of Act
No. 3135, as amended by Act No. 4118.
In the case at bench, private respondent

ARC constituted real estate mortgages
over its properties as security for the debt
of the principal debtors. By doing so,
private respondent subjected itself to the
liabilities of a third party mortgagor. Under
the law, third persons who are not parties
to a loan may secure the latter by
pledging
or
property.[20]
mortgaging
their
own
Notwithstanding, there is no legal

provision nor jurisprudence
in our
jurisdiction which makes a third person
who secures the fulfillment of anothers
obligation
by
mortgaging
his
own
property, to be solidarily bound with the
principal obligor. The signatory to the
principal
contractloanremains
to
be
primarily bound. It is only upon default of
the latter that the creditor may have
recourse on the mortgagors by foreclosing
the mortgaged properties in lieu of an
action for the recovery of the amount of
the loan.[21]
In the instant case, petitioners contention

that the requisites of filing the action for
collection and rendition of final judgment
therein should concur, is untenable.
Thus, in Cerna vs. Court of Appeals,[22]

we agreed with the petitioner in said case,
that the filing of a collection suit barred
the foreclosure of the mortgage:
A mortgagee who files a suit for collection

abandons the remedy of foreclosure of the
chattel mortgage constituted over the
personal property as security for the debt
or value of the promissory note when he
seeks to recover in the said collection suit.
x x x When the mortgagee elects to file a

suit for collection, not foreclosure, thereby
abandoning the chattel mortgage as basis
for relief, he clearly manifests his lack of
desire and interest to go after the
mortgaged property as security for the
promissory note x x x.
Contrary to petitioners arguments, we

therefore reiterate the rule, for clarity and
emphasis, that the mere act of filing of an
ordinary action for collection operates as a
waiver of the mortgage-creditors remedy
to foreclose the mortgage. By the mere
filing of the ordinary action for collection
against
the
principal
debtors,
the
petitioner in the present case is deemed
to have elected a remedy, as a result of
which a waiver of the other necessarily
must arise. Corollarily, no final judgment
in the collection suit is required for the
rule on waiver to apply.
Hence, in Caltex Philippines, Inc. vs.

Intermediate Appellate Court,[23] a case
relied upon by petitioner, supposedly to
buttress its contention, this Court had
occasion to rule that the mere act of filing
a collection suit for the recovery of a debt
secured by a mortgage constitutes waiver
of the other remedy of foreclosure.
In the case at bar, petitioner BANTSA only

has one cause of action which is nonpayment of the debt. Nevertheless,
alternative remedies are available for its
enjoyment and exercise. Petitioner then
may opt to exercise only one of two
remedies so as not to violate the rule
against splitting a cause of action.
As elucidated by this Court in the

landmark case of Bachrach Motor Co., Inc.
vs. Icarangal.[24]
For non-payment of a note secured by

mortgage, the creditor has a single cause
of action against the debtor. This single
cause of action consists in the recovery of
the credit with execution of the security. In
other words, the creditor in his action may
make two demands, the payment of the
debt and the foreclosure of his mortgage.
But both demands arise from the same
cause, the non-payment of the debt, and

for that reason, they constitute a single
cause of action. Though the debt and the
mortgage constitute separate agreements,
the latter is subsidiary to the former, and
both refer to one and the same obligation.
Consequently, there exists only one cause
of action for a single breach of that
obligation. Plaintiff, then, by applying the
rules above stated, cannot split up his
single cause of action by filing a complaint
for payment of the debt, and thereafter
another complaint for foreclosure of the
mortgage. If he does so, the filing of the
first complaint will bar the subsequent
complaint. By allowing the creditor to file
two separate complaints simultaneously or
successively, one to recover his credit and
another to foreclose his mortgage, we will,
in effect, be authorizing him plural redress
for a single breach of contract at so much
cost to the courts and with so much
vexation and oppression to the debtor.
Petitioner further faults the Court of

Appeals for allegedly disregarding the
doctrine enunciated in Caltex, wherein this
High Court relaxed the application of the
general rules to wit:
In the present case, however, we shall not

follow this rule to the letter but declare
that it is the collection suit which was
waived and/or abandoned. This ruling is
more in harmony with the principles
underlying our judicial system. It is of no
moment that the collection suit was filed
ahead, what is determinative is the fact
that the foreclosure proceedings ended
even before the decision in the collection
suit was rendered. x x x
Notably, though, petitioner took the Caltex

ruling out of context. We must stress that
the Caltex case was never intended to
overrule the well-entrenched doctrine
enunciated in Bachrach, which to our mind
still finds applicability in cases of this sort.

To reiterate, Bachrach is still good law.
We then quote the decision[25]of the trial

court, in the present case, thus:
The aforequoted ruling in Caltex is the

exception rather than the rule, dictated by
the peculiar circumstances obtaining
therein. In the said case, the Supreme
Court chastised Caltex for making x x x a
mockery of our judicial system when it
initially filed a collection suit then, during
the
pendency
thereof,
foreclosed
extrajudicially the mortgaged property
which secured the indebtedness, and still
pursued the collection suit to the end.
Thus, to prevent a mockery of our judicial
system, the collection suit had to be
nullified
because
the
foreclosure
proceedings have already been pursued to
their end and can no longer be undone.
xxxxxxxxx
In the case at bar, it has not been shown

whether the defendant pursued to the end
or are still pursuing the collection suits
filed in foreign courts. There is no
occasion, therefore, for this court to apply
the exception laid down by the Supreme
Court in Caltex, by nullifying the collection
suits. Quite obviously, too, the aforesaid
collection suits are beyond the reach of
this Court. Thus the only way the court
may prevent the spector of a creditor
having plural redress for a single breach of
contract is by holding, as the Court hereby
holds, that the defendant has waived the
right
to
foreclose
the
mortgages
constituted by the plaintiff on its
properties originally covered by Transfer
Certificates of Title Nos. T-78759, T-78762,
T-78760 and T-78761. (RTC Decision pp.,
10-11)
In this light, the actuations of Caltex are

deserving of severe criticism, to say the
least.[26]
Moreover, petitioner attempts to mislead

this Court by citing the case of PCIB vs.
IAC.[27] Again, petitioner tried to fit a
square peg in a round hole. It must be
stressed that far from overturning the
doctrine laid down in Bachrach, this Court
in PCIB buttressed its firm stand on this
issue by declaring:
While the law allows a mortgage creditor

to either institute a personal action for the
debt or a real action to foreclosure the
mortgage, he
cannot pursue
both
remedies simultaneously or successively
as was done by PCIB in this case.
xxxxxxxxx
Thus, when the PCIB filed Civil Case No.

29392 to enforce payment of the 1.3
million promissory note secured by real
estate mortgages and subsequently filed a
petition for extrajudicial foreclosure, it
violates the rule against splitting a cause
of action.
Accordingly, applying the foregoing rules,

we hold that petitioner, by the expediency
of filing four civil suits before foreign
courts, necessarily abandoned the remedy
to foreclose the real estate mortgages
constituted over the properties of thirdparty mortgagor and herein private
respondent ARC. Moreover, by filing the
four civil actions and by eventually
foreclosing extrajudicially the mortgages,
petitioner in effect transgressed the rules
against splitting a cause of action well-
enshrined in jurisprudence and our statute

books.
In Bachrach, this Court resolved to deny

the creditor the remedy of foreclosure
after the collection suit was filed,
considering that the creditor should not be
afforded plural redress for a single breach
of contract. For cause of action should not
be confused with the remedy created for
its enforcement.[28]
Notably, it is not the nature of the redress

which is crucial but the efficacy of the
remedy chosen in addressing the creditors
cause. Hence, a suit brought before a
foreign court having competence and
jurisdiction to entertain the action is
deemed, for this purpose, to be within the
contemplation of the remedy available to
the
mortgagee-creditor.
This
pronouncement would best serve the
interest of justice and fair play and further
discourage the noxious practice of
splitting up a lone cause of action.
Incidentally, BANTSA alleges that under

English Law, which according to petitioner
is the governing law with regard to the
principal agreements, the mortgagee does
not lose its security interest by simply
filing civil actions for sums of money.[29]
We rule in the negative.
This argument shows desperation on the

part of petitioner to rivet its crumbling
cause. In the case at bench, Philippine law
shall apply notwithstanding the evidence
presented by petitioner to prove the
English law on the matter.
In a long line of decisions, this Court

adopted the well-imbedded principle in
our jurisdiction that there is no judicial

notice of any foreign law. A foreign law
must be properly pleaded and proved as a
fact.[30] Thus, if the foreign law involved
is not properly pleaded and proved, our
courts will presume that the foreign law is
the same as our local or domestic or
internal law.[31] This is what we refer to
as the doctrine of processual presumption.
In the instant case, assuming arguendo

that the English Law on the matter were
properly
pleaded
and
proved
in
accordance with Section 24, Rule 132 of
the Rules of Court and the jurisprudence
laid down in Yao Kee, et al. vs. SyGonzales,[32] said foreign law would still
not find applicability.
Thus, when the foreign law, judgment or

contract is contrary to a sound and
established public policy of the forum, the
said foreign law, judgment or order shall
not be applied.[33]
Additionally, prohibitive laws concerning

persons, their acts or property, and those
which have for their object public order,
public policy and good customs shall not
be rendered ineffective by laws or
judgments
promulgated,
or
by
determinations or conventions agreed
upon in a foreign country.[34]
The public policy sought to be protected in

the instant case is the principle imbedded
in our jurisdiction proscribing the splitting
up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil

Procedure is pertinent -
filing of one or a judgment upon the merits

in any one is available as a ground for the
dismissal of the others.
Moreover, foreign law should not be

applied when its application would work
undeniable injustice to the citizens or
residents of the forum. To give justice is
the most important function of law; hence,
a law, or judgment or contract that is
obviously unjust negates the fundamental
principles of Conflict of Laws.[35]
Clearly then, English Law is not applicable.
As to the second pivotal issue, we hold

that the private respondent is entitled to
the award of actual or compensatory
damages inasmuch as the act of petitioner
BANTSA in extrajudicially foreclosing the
real estate mortgages constituted a clear
violation of the rights of herein private
respondent ARC, as third-party mortgagor.
Actual or compensatory damages are

those recoverable because of pecuniary
loss
in
business,
trade,
property,
profession, job or occupation and the
same must be proved, otherwise if the
proof is flimsy and non-substantial, no
damages will be given.[36] Indeed, the
question of the value of property is always
a difficult one to settle as valuation of real
property is an imprecise process since real
estate has no inherent value readily
ascertainable by an appraiser or by the
court.[37] The opinions of men vary so
much concerning the real value of
property that the best the courts can do is
hear all of the witnesses which the
respective parties desire to present, and
then, by carefully weighing that testimony,
arrive at a conclusion which is just and
equitable.[38]
If two or more suits are instituted on the

basis of the same cause of action, the
In the instant case, petitioner assails the

Court of Appeals for relying heavily on the
valuation made by Philippine Appraisal
Company. In effect, BANTSA questions the
act of the appellate court in giving due
weight to the appraisal report composed
of twenty three pages, signed by Mr. Lauro
Marquez and submitted as evidence by
private respondent. The appraisal report,
as the records would readily show, was
corroborated by the testimony of Mr.
Reynaldo Flores, witness for private
respondent.
On this matter, the trial court observed:
The record herein reveals that plaintiffappellee formally offered as evidence the
appraisal report dated March 29, 1993
(Exhibit J, Records, p. 409), consisting of
twenty three (23) pages which set out in
detail the valuation of the property to
determine its fair market value (TSN, April
22, 1994, p. 4), in the amount of
P99,986,592.00 (TSN, ibid., p. 5), together
with the corroborative testimony of one
Mr. Reynaldo F. Flores, an appraiser and
director of Philippine Appraisal Company,
Inc. (TSN, ibid., p. 3). The latters testimony
was subjected to extensive crossexamination by counsel for defendantappellant (TSN, April 22, 1994, pp. 6-22).
[39]
In the matter of credibility of witnesses,

the Court reiterates the familiar and wellentrenched rule that the factual findings of
the trial court should be respected.[40]
The time-tested jurisprudence is that the
findings and conclusions of the trial court
on the credibility of witnesses enjoy a
badge of respect for the reason that trial
courts have the advantage of observing
the demeanor of witnesses as they testify.
[41]
This Court will not alter the findings of the

trial court on the credibility of witnesses,
principally because they are in a better
position to assess the same than the
appellate court.[42] Besides, trial courts
are in a better position to examine real
evidence as well as observe the demeanor
of witnesses.[43]
Similarly, the appreciation of evidence and

the assessment of the credibility of
witnesses rest primarily with the trial
court.[44] In the case at bar, we see no
reason that would justify this Court to
disturb the factual findings of the trial
court, as affirmed by the Court of Appeals,
with regard to the award of actual
damages.
In arriving at the amount of actual

damages, the trial court justified the
award by presenting the following
ratiocination in its assailed decision[45], to
wit:
Indeed, the Court has its own mind in the

matter of valuation. The size of the subject
real properties are (sic) set forth in their
individual titles, and the Court itself has
seen the character and nature of said
properties during the ocular inspection it
conducted. Based principally on the
foregoing, the Court makes the following
observations:
1. The properties consist of about 39

hectares in Bo. Sto. Cristo, San Jose del
Monte, Bulacan, which is (sic) not distant
from Metro Manila the biggest urban
center in the Philippines and are easily
accessible through well-paved roads;
2. The properties are suitable for

development into a subdivision for low
cost housing, as admitted by defendants

own appraiser (TSN, May 30, 1994, p. 31);
3. The pigpens which used to exist in the

property have already been demolished.
Houses of strong materials are found in
the vicinity of the property (Exhs. 2, 2-1 to
2-7), and the vicinity is a growing
community. It has even been shown that
the house of the Barangay Chairman is
located adjacent to the property in
question (Exh. 27), and the only remaining
piggery (named Cherry Farm) in the
vicinity is about 2 kilometers away from
the western boundary of the property in
question (TSN, November 19, p. 3);
4. It will not be hard to find interested

buyers of the property, as indubitably
shown by the fact that on March 18, 1994,
ICCS (the buyer during the foreclosure
sale) sold the consolidated real estate
properties
to
Stateland
Investment
Corporation, in whose favor new titles
were issued, i.e., TCT Nos. T-187781(m); T187782(m), T-187783(m); T-16653P(m)
and T-166521(m) by the Register of Deeds
of Meycauayan (sic), Bulacan;
5. The fact that ICCS was able to sell the

subject properties to Stateland Investment
Corporation for Thirty Nine Million
(P39,000,000.00) Pesos, which is more
than triple defendants appraisal (Exh. 2)
clearly shows that the Court cannot rely
on
defendants
aforesaid
estimate
(Decision, Records, p. 603).
It is a fundamental legal aphorism that the

conclusions of the trial judge on the
credibility of witnesses command great
respect and consideration especially when
the conclusions are supported by the
evidence on record.[46] Applying the
foregoing principle, we therefore hold that
the trial court committed no palpable error
in giving credence to the testimony of

Reynaldo Flores, who according to the
records, is a licensed real estate broker,
appraiser and director of Philippine
Appraisal Company, Inc. since 1990.[47]
As the records show, Flores had been with
the company for 26 years at the time of
his testimony.
Of equal importance is the fact that the

trial court did not confine itself to the
appraisal report dated 29 March 1993, and
the testimony given by Mr. Reynaldo
Flores, in determining the fair market
value of the real property. Above all these,
the record would likewise show that the
trial judge in order to appraise himself of
the characteristics and condition of the
property, conducted an ocular inspection
where the opposing parties appeared and
were duly represented.
Based on these considerations and the

evidence submitted, we affirm the ruling
of the trial court as regards the valuation
of the property
x x x a valuation of Ninety Nine Million

Pesos (P99,000,000.00) for the 39-hectare
properties (sic) translates to just about
Two Hundred Fifty Four Pesos (P254.00)
per square meter. This appears to be, as
the court so holds, a better approximation
of the fair market value of the subject
properties. This is the amount which
should be restituted by the defendant to
the plaintiff by way of actual or
compensatory damages x x x.[48]
Further, petitioner ascribes error to the

lower court for awarding an amount
allegedly not asked nor prayed for in
private respondents complaint.
Notwithstanding the fact that the award of

actual and compensatory damages by the
lower court exceeded that prayed for in
the complaint, the same is nonetheless
valid, subject to certain qualifications.
On this issue, Rule 10, Section 5 of the

Rules of Court is pertinent:
SEC. 5. Amendment to conform to or

authorize presentation of evidence. When
issues not raised by the pleadings are
tried with the express or implied consent
of the parties, they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the
pleadings as may be necessary to cause
them to conform to the evidence and to
raise these issues may be made upon
motion of any party at any time, even
after judgement; but failure to amend
does not affect the result of the trial of
these issues. If evidence is objected to at
the trial on the ground that it is not within
the issues made by the pleadings, the
court may allow the pleadings to be
amended and shall do so with liberality if
the presentation of the merits of the
action and the ends of substantial justice
will be subserved thereby. The court may
grant a continuance to enable the
amendment to be made.
The jurisprudence enunciated in TalisaySilay Milling Co., Inc. vs. Asociacion de

Agricultures de Talisay-Silay, Inc.[49] citing
Northern
Cement
Corporation
vs.
Intermediate Appellate Court [50] is
enlightening:
There have been instances where the

Court has held that even without the
necessary
amendment,
the
amount
proved at the trial may be validly
awarded, as in Tuazon v. Bolanos (95 Phil.
106), where we said that if the facts
shown entitled plaintiff to relief other than

that asked for, no amendment to the
complaint was necessary, especially
where defendant had himself raised the
point on which recovery was based. The
appellate court could treat the pleading as
amended to conform to the evidence
although the pleadings were actually not
amended.
Amendment
is
also
unnecessary when only clerical error or
non substantial matters are involved, as
we held in Bank of the Philippine Islands
vs. Laguna (48 Phil. 5). In Co Tiamco vs.
Diaz (75 Phil. 672), we stressed that the
rule on amendment need not be applied
rigidly, particularly where no surprise or
prejudice is caused the objecting party.
And in the recent case of National Power
Corporation vs. Court of Appeals (113
SCRA 556), we held that where there is a
variance in the defendants pleadings and
the evidence adduced by it at the trial, the
Court may treat the pleading as amended
to conform with the evidence.
It is the view of the Court that pursuant to

the above-mentioned rule and in light of
the decisions cited, the trial court should
not be precluded from awarding an
amount higher than that claimed in the
pleading notwithstanding the absence of
the required amendment. But it is upon
the condition that the evidence of such
higher amount has been presented
properly, with full opportunity on the part
of the opposing parties to support their
respective contentions and to refute each
others evidence.
The failure of a party to amend a pleading

to conform to the evidence adduced
during trial does not preclude an
adjudication by the court on the basis of
such evidence which may embody new
issues not raised in the pleadings, or serve
as a basis for a higher award of damages.
Although the pleading may not have been
amended to conform to the evidence
submitted during trial, judgment may
nonetheless be rendered, not simply on

the basis of the issues alleged but also on
the basis of issues discussed and the
assertions of fact proved in the course of
trial. The court may treat the pleading as if
it had been amended to conform to the
evidence, although it had not been
actually so amended. Former Chief Justice
Moran put the matter in this way:
`When evidence is presented by one

party, with the expressed or implied
consent of the adverse party, as to issues
not alleged in the pleadings, judgment
may be rendered validly as regards those
issues, which shall be considered as if they
have been raised in the pleadings. There
is implied consent to the evidence thus
presented when the adverse party fails to
object thereto.
Clearly, a court may rule and render

judgment on the basis of the evidence
before it even though the relevant
pleading
had
not
been
previously
amended, so long as no surprise or
prejudice is thereby caused to the adverse
party. Put a little differently, so long as the
basis requirements of fair play had been
met, as where litigants were given full
opportunity to support their respective
contentions and to object to or refute each
others evidence, the court may validly
treat the pleadings as if they had been
amended to conform to the evidence and
proceed to adjudicate on the basis of all
the evidence before it.
In the instant case, inasmuch as the

petitioner was afforded the opportunity to
refute and object to the evidence, both
documentary and testimonial, formally
offered by private respondent, the

rudiments of fair play are deemed
satisfied. In fact, the testimony of
Reynaldo Flores was put under scrutiny
during
the
course
of
the
crossexamination. Under these circumstances,
the court acted within the bounds of its
jurisdiction and committed no reversible
error in awarding actual damages the
amount of which is higher than that
prayed for. Verily, the lower courts
actuations are sanctioned by the Rules
and supported by jurisprudence.
Similarly, we affirm the grant of exemplary

damages although the amount of Five
Million Pesos (P5,000,000.00) awarded,
being excessive, is subject to reduction.
Exemplary or corrective damages are
imposed, by way of example or correction
for the public good, in addition to the
moral,
temperate,
liquidated
or
compensatory damages.[51] Considering
its purpose, it must be fair and reasonable
in every case and should not be awarded
to unjustly enrich a prevailing party.[52] In
our view, an award of P50,000.00 as
exemplary damages in the present case
qualifies the test of reasonableness.

instant petition is DENIED for lack of merit.
The decision of the Court of Appeals is
hereby AFFIRMED with MODIFICATION of
the amount awarded as exemplary
damages. Accordingly, petitioner is hereby
ordered to pay private respondent the
sum of P99,000,000.00 as actual or
compensatory damages; P50,000.00 as
exemplary damage and the costs of suit.
SO ORDERED.

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Persons and Family Relations 1-18

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F.F. CRUZ & CO., INC.

project called the East Bank Levee and

- versus HR CONSTRUCTION CORP.,

The subcontract price agreed upon by the

March 14, 2012

The parties agreed that the requests of

This is a petition for review on certiorari

The Antecedent Facts

Sometime in 2004, FFCCI entered into a

On September 17, 2004, HRCC submitted

Persons and Family Relations Cases (Art 1-18)

FFCCI and the DPWH then jointly

On October 29, 2004, HRCC submitted to

On even date, HRCC submitted its third

On November 25, 2004, HRCC submitted

withholding tax leaving a net payment of

Meanwhile, HRCC sent FFCCI a letter[10]

On March 7, 2005, HRCC, pursuant to the

In its Answer,[12] FFCCI claimed that it no

Likewise, FFCCI maintained that HRCC

Persons and Family Relations Cases (Art 1-18)

payment of the latters progress billings,

On June 16, 2005, an Arbitral Tribunal was

In a Preliminary Conference held on July 5,

Did [HRCC] stop work on the project?

Likewise, during the said Preliminary

The CIAC Decision

On September 6, 2005, after due

WHEREFORE, judgment is hereby rendered

[P]2,239,452.63 as the balance of its

If so, is the work stoppage justified?

[P]2,340,614.20 Total due the Claimant

Persons and Family Relations Cases (Art 1-18)

the awarded amount shall have been

It is accordingly the holding of this Arbitral

During the trial, [FFCCIs] Aganon admitted

On clarificatory questioning by the

The total retention money deducted by

Further, the CIAC ruled that FFCCI had

[FFCCI] admits that in all three instances

Persons and Family Relations Cases (Art 1-18)

law, public order, public policy, morals or

FFCCI then filed a petition for review with

On February 6, 2009, the CA rendered the

The CA further held that the amount due

FFCCI sought a reconsideration[19] of the

In the instant petition, FFCCI submits the

x x x First, [d]oes the act of [FFCCI] in

x x x Second, [d]oes the payment of

Persons and Family Relations Cases (Art 1-18)

accept whatever accomplishment

x x x Third, [d]oes the mere comparison of

x x x Fourth, [d]oes the failure of [FFCCI]

Before we delve into the substantial issues

x x x Fifth, [d]id the [CA] disregard or

In sum, the crucial issues for this Courts

The Courts Ruling

Generally, the arbitral award of CIAC is

Executive Order (E.O.) No. 1008[22] vests

In Hi-Precision Steel Center, Inc. v. Lim Kim

Persons and Family Relations Cases (Art 1-18)

Aware of the objective of voluntary

Thus, in cases assailing the arbitral award

In Spouses David v. Construction Industry